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Property law in New South Wales [Fourth edition.]
 9780409343106, 0409343102

Table of contents :
Dedication
Full Title
Copyright
Preface
Table of Cases
Table of Statutes
Table of Contents
Chapter 1: The Concept of Property
Connections to Property
Introduction to the Concept
Analytical Dimension
What do we mean by the term ‘property’?
Is property a relationship or a thing?
Philosophical Bases of Property
Labour theory of property
Utilitarian justifications for private property
Economic justification for private property
Justice and equality
Women and property
A pluralist approach?
Historical Changes in the Nature and Function of Property
Doctrinal Dimension — The Boundary Between Property and Other Rights
Property and contract
Property and Indigenous rights
Body parts and property rights
Is there property in a spectacle?
Property and information
Property and the right to work
Property and civil rights
Public property, private property, common property
Property rights and human rights
Conclusion
Chapter 2: Land, Fixtures and Chattels
Introduction
Land
Personalty
Choses in possession
Choses in action
What is Land?
Airspace
Subsoil
Natural rights
Boundaries of Land
Land bounded by tidal waters
Land bounded by non-tidal waters
Accretion and erosion
Fixtures
Introduction
General principles
Tenant’s fixtures
Protection of Property Interests in Land
Trespass to land — tort
Title to sue
Recovery of possession
Self-help
Trespass to land — statutory penalties
Chattels
Introduction
Property interests in chattels
Fragmented property interests — bailment
Actions in tort to protect proprietary interests in chattels
Overlapping of remedies
An exception — permanent loss or damage to a reversionary interest
Rights of a bailee
Self-help
Finders
Finder versus employer or principal
Finder versus occupier
Reform
Fixtures by mistake
Unreasonable refusal of consent to annex
Right to implead a third party in an action in conversion
Chapter 3: Fundamental Principles — Tenure and Estates
Introduction
Common Law and Principles of Reception
Doctrine of Tenure
Background and history
Local Developments and the Doctrine of Tenure
New South Wales and tenures — background
Quit rents
Pastoral leases
Other statutory modifications
Relevance of English Tenure to Australia
Differences between English and Australian doctrines
Tenure, allodialism and native title
Doctrine of Estates
Definition of an ‘estate’
Freehold estates
Estates of less than freehold — leasehold
Words of limitation
Determinable and conditional interests
Future interests
Vested and contingent remainders
Reform
Chapter 4: Native Title
Introduction
The Evolution of Native Title in Australia
Relationship with the land
‘Settlement’ and onwards
The Gove case
Mabo (No 2)
Background
The finding in Mabo (No 2)
Some key continuing issues in the ‘common law’ of native title
Legislation
Native Title Act 1993 (Cth)
Native Title Amendment Act 1998 (Cth)
More recent legislative amendments
Reform
Definition of ‘native title’
Cultural knowledge
Compensation
Chapter 5: Possession and Adverse Possession
Introduction
Historical Development of the Concept of Possession
Concept of possession
Possessory actions
Ejectment and Possession
Need to establish ownership?
Need to establish a better right to possession?
Jus Tertii
Adverse Possession
Definition
Rationale
Adverse possession and human rights
Source of adverse possession rights
Adverse possession and the Crown
When does the limitation period start?
What needs to occur for the cause of action to accrue?
What are the criteria for adverse possession?
Property held on trust
Suspending the statutory period
Adding consecutive periods of adverse possession together
Stopping time running
Abandonment
To what rights does adverse possession give rise?
Possessory title and Torrens land
Reform
Paper dealings
Nature of the adverse possessor’s rights before a successful claim over Torrens title land
Abolition of adverse possession doctrine
Chapter 6: Law, Equity and Trusts
Introduction
Legal and Equitable Ownership
Historical introduction
Creation and Transfer of Interests in Land at Law
Deeds
Legal interests created by parol or by conduct
Interests in personalty
Creation and Transfer of Interests in Land in Equity — Contracts for the Sale of Land
General
Auctions
Overcoming the absence of formal requirements — the equitable doctrine of part performance
Equitable interests arising under contract — the doctrine of conversion and requirement of specific enforceability
Creation and Transfer of Interests in Land in Equity — Trusts
Express trusts — general
Transfer of equitable interests
Formalities
Non-express trusts
Estoppel
Proprietary estoppel
Equitable estoppel
Gifts
Personalty
Land
Trusts and Domestic Relationships — Statutory Intervention
Property (Relationships) 1984 Act (NSW) s 20
Family Law Act (Cth) s 79
Reform
Uncertainty surrounding Conveyancing Act 1919 (NSW) s 23
Presumptions of resulting trust and advancement
Domestic labour and unconscionability
Chapter 7: Old System and Priorities
Introduction
Common law and equitable priority rules
Earlier legal interest versus later legal interest
Earlier legal interest versus later equitable interest
Earlier equitable interest versus later legal interest
Prior equitable interest versus later equitable interest
Registration of deeds and priorities
Introduction
Registration of ‘instruments’
Registration and priority
Bona fide and for valuable consideration
Effect of registration on void instruments
Reform
Persistence of old system title generally
Tabula in naufragio
Equities and ‘mere equities’
Chapter 8: Torrens Title
Introduction
Sir Robert Torrens
Introduction of the Torrens scheme
How land is brought under the Torrens system
Old system title and computerisation conversions
Torrens Register, folios and dealings
Principles underpinning the Torrens system
Indefeasibility of Title
What is indefeasibility?
Deferred versus immediate indefeasibility
What will attract indefeasibility on registration?
Exceptions to Indefeasibility
Fraud
Other estates and interests in land
Prior folio
Omission or misdescription of easements
Omission or misdescription of profits à prendre
Wrong descriptions of parcels
Short-term tenancies
Some Other Exceptions to Indefeasibility
In personam exception
Adverse possession
Overriding statutes
Registrar-General’s general power to correct
Other provisions in the Real Property Act
Volunteers
Unregistered Interests under the Torrens system
Caveats
Other circumstances where caveats may be used
Priority notices
Competition between unregistered interests
Section 43A of the Real Property Act
Torrens Assurance Fund — Pt 14 of the Real Property Act 1900 (NSW)
Key sections of the Real Property Act — ss 120 and 129
Fraud and the Torrens Assurance Fund
Damages
Interrelationship with other sections
Proceedings for recovery
Reform
Overriding statutes and the Real Property Act 1900 (NSW)
Which is preferable — deferred or immediate indefeasibility?
Volunteers
Torrens Assurance Fund
Chapter 9: Common Property
Introduction
Co-ownership
General
Joint tenancy
Tenancy in common
Creation of co-ownership — joint tenancy or tenancy in common?
Severance of joint tenancy
Rights and obligations of co-owners
Termination of co-ownership
Strata Schemes
Introduction
Basic structure of strata schemes
Common property
Owners corporation
Management
Responsibilities of owners and occupiers
By-laws
Disputes
Termination of strata schemes
Strata renewal process
Reform
Unilateral severance of Torrens title land
Occupation rents and profits
Strata scheme by-laws and property rights
Chapter 10: Perpetuities
Introduction
History of the Rule against Perpetuities
Modern Rule Against Perpetuities
Shared principles
Common law position
Perpetuities Act 1984 (NSW)
Applying the Rule against Perpetuities
Examples of the rule’s application
Reform
Abolition of the rule against perpetuities
Section 4(3) of the Perpetuities Act
‘Wait and see’ rule
Chapter 11: Leases and Tenancies
Introduction
Leases at Common Law — Terminology
Creation of Leases
Substantive requirements
Formal requirements
Types of Tenancies at Common Law
Fixed-term tenancies
Periodic tenancies
Tenancy at will
Tenancy at sufferance
Tenancy by estoppel
Concurrent leases
Reversionary leases
Covenants in Leases
Introduction
Implied covenants
Express covenants
Enforceability of Covenants
Privity of contract
Privity of estate
Covenants touching and concerning the land
Assignment of the lease
Assignment of the reversion
Can assignors or assignees sue or be sued for past breaches?
Termination of Leases
Termination by notice
Effluxion of time
Contractual remedies
Forfeiture by re-entry
Merger
Surrender
Frustration
Remedies
Damages and injunction
Set-off
Reform of the Common Law
Removal of the certain duration requirement
Abolition of s 127 implied tenancies
Privity of estate and continuing liability for tenants after assignment
Residential Tenancies
Introduction
What is a residential tenancy?
Creating residential tenancies
Parties’ obligations
Rent
Termination
NSW Civil and Administrative Tribunal (NCAT)
Residential tenancies and priorities
Reform of residential tenancies legislation
Retail Leases
What is a retail lease?
Rights and obligations
Rent
Assignment and subletting
Termination
Disputes
Chapter 12: Easements and Profits à Prendre
Introduction
Easements
General
Substantive requirements for the creation of an easement
Examples of easements
Easements distinguished from other types of rights
Formal requirements for the creation of an easement
Common types of easements and the extent of rights conferred
Remedies
Easements and the Torrens system
Extinguishment of easements
Profits à Prendre
General
Creation of profits à prendre
Remedies
Extinguishment of profits
Profits à rendre
Access to Neighbouring Land Act 2000 (NSW)
Reform
Easements in gross
Easements and profits by prescription
Chapter 13: Freehold Covenants
Introduction
Enforceability of the Benefit of a Covenant at Common Law (Benefit of the Covenant Running with the Land of the Covenantee)
Annexation of covenant to the land
Express assignment of the benefit at law
Enforceability of Covenants and s 36C of the Conveyancing Act 1919 (NSW)
Enforceability of the Burden of a Covenant
At law
In equity — the doctrine in Tulk v Moxhay
Requirements of s 88(1) of the Conveyancing Act
Enforceability of the Benefit of a Covenant in Equity
Benefit annexed to the land
Express assignment
Building Schemes
Requirements of a building scheme
Freehold Covenants and Torrens
Restrictive covenants
Building schemes and the Torrens system
Formal Requirements for the Creation of Freehold Covenants
Old system title
Torrens title
Section 88B of the Conveyancing Act
Remedies
Modification and Extinguishment of Covenants
Express agreement
Implied agreement
Merger
Statutory extinguishment under s 89(1) of the Conveyancing Act
Suspension of covenants
Reform
Positive covenants and freehold land
Section 36C of the Conveyancing Act
Chapter 14: Mortgages
Introduction
Nature of a mortgage
Securities over chattels, hire-purchase, consumer credit law and the PPSA
Mortgages over land
Old System Title Mortgages
Creation of legal and equitable mortgages over freehold land
Mortgage of leasehold
Torrens Title Mortgages
Creation of registered and unregistered mortgages over freehold land
Creation of mortgage of leasehold
Crown land mortgages
Clogs on the Equity of Redemption
Introduction
Extinguishment of the right to redeem
Postponement of the right to redeem
Collateral advantages
Other covenants
Statutory intervention
Relationship Debt and Mortgages
Rights and Remedies of the Mortgagee
Personal covenant
Possession of the mortgaged property
Right to assign
Right to improve property
Power to lease
Rights to fixtures
Appointment of a receiver
Foreclosure
Discharge of mortgage
Power of sale
Priorities
Competition between mortgages
Old system title
Torrens title
Tacking
Death and Mortgages
Reform
Accurate nomenclature
Internet advertising
Sureties and sexually transmitted debt
Transfers as mortgages
Resolution of negligence and good faith test with regard to power of sale
Appendix A: A Notice of Adverse Possession
Appendix B: Dealing Lodgment Activity
Appendix C: Torrens Assurance Fund Payments
Index

Citation preview

Property Law in New South Wales Fourth edition

To my mother, Mona, and my late father, Gordon, who stimulated my interest in property JG

To my beloved family, and especially to those who have arrived since the last edition, Silas, William, Jack, Anthea, Eleanor and Charlie NF

To George SD

In loving memory of Professor Phillipa Weeks, whose passion for Property Law inspired generations of ANU Law students HR

Property Law in New South Wales Fourth edition Janice Gray BA, LLB, (Grad) Dip Ed (UNSW), Grad Dip (Leg Pract) (UTS), MA (UNSW), PhD (UEA) Solicitor of the Supreme Court of New South Wales Senior Lecturer, Faculty of Law, University of New South Wales

Neil Foster BA, LLB (UNSW), BTh (ACT), DipATh (Moore), LLM (UoN) Admitted as a Solicitor of the Supreme Court of New South Wales Associate Professor, School of Law, University of Newcastle

Shaunnagh Dorsett BA, LLB (Hons) (Tas), LLM (Calg), PhD (UNSW) Professor, Faculty of Law, University of Technology Sydney

Heather Roberts BA (Hons), LLB (Hons), PhD (ANU)

Senior Lecturer, ANU College of Law, Australian National University

LexisNexis Butterworths Australia 2018

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Author: Title: Edition: ISBN: Notes: Subjects: Other Authors/Contributors:

Gray, Janice. Property Law in New South Wales. 4th edition. 9780409343106 (pbk). 9780409343113 (ebk). Includes index. Property — New South Wales. Leases — New South Wales. Mortgages — New South Wales. Foster, Neil. Dorsett, Shaunnagh. Roberts, Heather.

© 2018 Reed International Books Australia Pty Limited trading as LexisNexis. First edition 2003 (reprinted 2006); second edition 2007 (reprinted 2009); third edition 2012 (reprinted 2014 and 2015). Cover image: ‘Another fence’, photograph by Philip Bell, . This book is copyright. Except as permitted under the Copyright Act 1968 (Cth), no part of this publication may be reproduced by any process, electronic or otherwise, without the specific written permission of the copyright owner. Neither may information be stored electronically in any form whatsoever without such permission. Inquiries should be addressed to the publishers. Typeset in Helvetica Neue LT Std and Bembo Std. Printed by Griffin Press, Australia. Visit LexisNexis Butterworths at www.lexisnexis.com.au

Contents Preface Table of Cases Table of Statutes Chapter 1: The Concept of Property Chapter 2: Land, Fixtures and Chattels Chapter 3: Fundamental Principles — Tenure and Estates Chapter 4: Native Title Chapter 5: Possession and Adverse Possession Chapter 6: Law, Equity and Trusts Chapter 7: Old System and Priorities Chapter 8: Torrens Title Chapter 9: Common Property Chapter 10: Perpetuities Chapter 11: Leases and Tenancies Chapter 12: Easements and Profits à Prendre Chapter 13: Freehold Covenants Chapter 14: Mortgages Appendix A: A Notice of Adverse Possession Appendix B: Dealing Lodgment Activity Appendix C: Torrens Assurance Fund Payments

Index

Detailed Contents Preface Table of Cases Table of Statutes Chapter 1: The Concept of Property Connections to Property Introduction to the Concept Analytical Dimension What do we mean by the term ‘property’? Is property a relationship or a thing? Philosophical Bases of Property Labour theory of property Utilitarian justifications for private property Economic justification for private property Justice and equality Women and property A pluralist approach? Historical Changes in the Nature and Function of Property Doctrinal Dimension — The Boundary Between Property and Other Rights Property and contract Property and Indigenous rights Body parts and property rights

Is there property in a spectacle? Property and information Property and the right to work Property and civil rights Public property, private property, common property Property rights and human rights Conclusion Chapter 2: Land, Fixtures and Chattels Introduction Land Personalty Choses in possession Choses in action What is Land? Airspace Subsoil Natural rights Boundaries of Land Land bounded by tidal waters Land bounded by non-tidal waters Accretion and erosion Fixtures Introduction General principles Tenant’s fixtures Protection of Property Interests in Land Trespass to land — tort

Title to sue Recovery of possession Self-help Trespass to land — statutory penalties Chattels Introduction Property interests in chattels Fragmented property interests — bailment Actions in tort to protect proprietary interests in chattels Overlapping of remedies An exception — permanent loss or damage to a reversionary interest Rights of a bailee Self-help Finders Finder versus employer or principal Finder versus occupier Reform Fixtures by mistake Unreasonable refusal of consent to annex Right to implead a third party in an action in conversion Chapter 3: Fundamental Principles — Tenure and Estates Introduction Common Law and Principles of Reception Doctrine of Tenure Background and history Local Developments and the Doctrine of Tenure New South Wales and tenures — background

Quit rents Pastoral leases Other statutory modifications Relevance of English Tenure to Australia Differences between English and Australian doctrines Tenure, allodialism and native title Doctrine of Estates Definition of an ‘estate’ Freehold estates Estates of less than freehold — leasehold Words of limitation Determinable and conditional interests Future interests Vested and contingent remainders Reform Chapter 4: Native Title Introduction The Evolution of Native Title in Australia Relationship with the land ‘Settlement’ and onwards The Gove case Mabo (No 2) Background The finding in Mabo (No 2) Some key continuing issues in the ‘common law’ of native title Legislation Native Title Act 1993 (Cth)

Native Title Amendment Act 1998 (Cth) More recent legislative amendments Reform Definition of ‘native title’ Cultural knowledge Compensation Chapter 5: Possession and Adverse Possession Introduction Historical Development of the Concept of Possession Concept of possession Possessory actions Ejectment and Possession Need to establish ownership? Need to establish a better right to possession? Jus Tertii Adverse Possession Definition Rationale Adverse possession and human rights Source of adverse possession rights Adverse possession and the Crown When does the limitation period start? What needs to occur for the cause of action to accrue? What are the criteria for adverse possession? Property held on trust Suspending the statutory period Adding consecutive periods of adverse possession together

Stopping time running Abandonment To what rights does adverse possession give rise? Possessory title and Torrens land Reform Paper dealings Nature of the adverse possessor’s rights before a successful claim over Torrens title land Abolition of adverse possession doctrine Chapter 6: Law, Equity and Trusts Introduction Legal and Equitable Ownership Historical introduction Creation and Transfer of Interests in Land at Law Deeds Legal interests created by parol or by conduct Interests in personalty Creation and Transfer of Interests in Land in Equity — Contracts for the Sale of Land General Auctions Overcoming the absence of formal requirements — the equitable doctrine of part performance Equitable interests arising under contract — the doctrine of conversion and requirement of specific enforceability Creation and Transfer of Interests in Land in Equity — Trusts Express trusts — general Transfer of equitable interests

Formalities Non-express trusts Estoppel Proprietary estoppel Equitable estoppel Gifts Personalty Land Trusts and Domestic Relationships — Statutory Intervention Property (Relationships) 1984 Act (NSW) s 20 Family Law Act (Cth) s 79 Reform Uncertainty surrounding Conveyancing Act 1919 (NSW) s 23 Presumptions of resulting trust and advancement Domestic labour and unconscionability Chapter 7: Old System and Priorities Introduction Common law and equitable priority rules Earlier legal interest versus later legal interest Earlier legal interest versus later equitable interest Earlier equitable interest versus later legal interest Prior equitable interest versus later equitable interest Registration of deeds and priorities Introduction Registration of ‘instruments’ Registration and priority Bona fide and for valuable consideration

Effect of registration on void instruments Reform Persistence of old system title generally Tabula in naufragio Equities and ‘mere equities’ Chapter 8: Torrens Title Introduction Sir Robert Torrens Introduction of the Torrens scheme How land is brought under the Torrens system Old system title and computerisation conversions Torrens Register, folios and dealings Principles underpinning the Torrens system Indefeasibility of Title What is indefeasibility? Deferred versus immediate indefeasibility What will attract indefeasibility on registration? Exceptions to Indefeasibility Fraud Other estates and interests in land Prior folio Omission or misdescription of easements Omission or misdescription of profits à prendre Wrong descriptions of parcels Short-term tenancies Some Other Exceptions to Indefeasibility In personam exception

Adverse possession Overriding statutes Registrar-General’s general power to correct Other provisions in the Real Property Act Volunteers Unregistered Interests under the Torrens system Caveats Other circumstances where caveats may be used Priority notices Competition between unregistered interests Section 43A of the Real Property Act Torrens Assurance Fund — Pt 14 of the Real Property Act 1900 (NSW) Key sections of the Real Property Act — ss 120 and 129 Fraud and the Torrens Assurance Fund Damages Interrelationship with other sections Proceedings for recovery Reform Overriding statutes and the Real Property Act 1900 (NSW) Which is preferable — deferred or immediate indefeasibility? Volunteers Torrens Assurance Fund Chapter 9: Common Property Introduction Co-ownership General

Joint tenancy Tenancy in common Creation of co-ownership — joint tenancy or tenancy in common? Severance of joint tenancy Rights and obligations of co-owners Termination of co-ownership Strata Schemes Introduction Basic structure of strata schemes Common property Owners corporation Management Responsibilities of owners and occupiers By-laws Disputes Termination of strata schemes Strata renewal process Reform Unilateral severance of Torrens title land Occupation rents and profits Strata scheme by-laws and property rights Chapter 10: Perpetuities Introduction History of the Rule against Perpetuities Modern Rule Against Perpetuities Shared principles Common law position

Perpetuities Act 1984 (NSW) Applying the Rule against Perpetuities Examples of the rule’s application Reform Abolition of the rule against perpetuities Section 4(3) of the Perpetuities Act ‘Wait and see’ rule Chapter 11: Leases and Tenancies Introduction Leases at Common Law — Terminology Creation of Leases Substantive requirements Formal requirements Types of Tenancies at Common Law Fixed-term tenancies Periodic tenancies Tenancy at will Tenancy at sufferance Tenancy by estoppel Concurrent leases Reversionary leases Covenants in Leases Introduction Implied covenants Express covenants Enforceability of Covenants Privity of contract

Privity of estate Covenants touching and concerning the land Assignment of the lease Assignment of the reversion Can assignors or assignees sue or be sued for past breaches? Termination of Leases Termination by notice Effluxion of time Contractual remedies Forfeiture by re-entry Merger Surrender Frustration Remedies Damages and injunction Set-off Reform of the Common Law Removal of the certain duration requirement Abolition of s 127 implied tenancies Privity of estate and continuing liability for tenants after assignment Residential Tenancies Introduction What is a residential tenancy? Creating residential tenancies Parties’ obligations Rent Termination

NSW Civil and Administrative Tribunal (NCAT) Residential tenancies and priorities Reform of residential tenancies legislation Retail Leases What is a retail lease? Rights and obligations Rent Assignment and subletting Termination Disputes Chapter 12: Easements and Profits à Prendre Introduction Easements General Substantive requirements for the creation of an easement Examples of easements Easements distinguished from other types of rights Formal requirements for the creation of an easement Common types of easements and the extent of rights conferred Remedies Easements and the Torrens system Extinguishment of easements Profits à Prendre General Creation of profits à prendre Remedies Extinguishment of profits

Profits à rendre Access to Neighbouring Land Act 2000 (NSW) Reform Easements in gross Easements and profits by prescription Chapter 13: Freehold Covenants Introduction Enforceability of the Benefit of a Covenant at Common Law (Benefit of the Covenant Running with the Land of the Covenantee) Annexation of covenant to the land Express assignment of the benefit at law Enforceability of Covenants and s 36C of the Conveyancing Act 1919 (NSW) Enforceability of the Burden of a Covenant At law In equity — the doctrine in Tulk v Moxhay Requirements of s 88(1) of the Conveyancing Act Enforceability of the Benefit of a Covenant in Equity Benefit annexed to the land Express assignment Building Schemes Requirements of a building scheme Freehold Covenants and Torrens Restrictive covenants Building schemes and the Torrens system Formal Requirements for the Creation of Freehold Covenants

Old system title Torrens title Section 88B of the Conveyancing Act Remedies Modification and Extinguishment of Covenants Express agreement Implied agreement Merger Statutory extinguishment under s 89(1) of the Conveyancing Act Suspension of covenants Reform Positive covenants and freehold land Section 36C of the Conveyancing Act Chapter 14: Mortgages Introduction Nature of a mortgage Securities over chattels, hire-purchase, consumer credit law and the PPSA Mortgages over land Old System Title Mortgages Creation of legal and equitable mortgages over freehold land Mortgage of leasehold Torrens Title Mortgages Creation of registered and unregistered mortgages over freehold land Creation of mortgage of leasehold Crown land mortgages Clogs on the Equity of Redemption Introduction

Extinguishment of the right to redeem Postponement of the right to redeem Collateral advantages Other covenants Statutory intervention Relationship Debt and Mortgages Rights and Remedies of the Mortgagee Personal covenant Possession of the mortgaged property Right to assign Right to improve property Power to lease Rights to fixtures Appointment of a receiver Foreclosure Discharge of mortgage Power of sale Priorities Competition between mortgages Old system title Torrens title Tacking Death and Mortgages Reform Accurate nomenclature Internet advertising Sureties and sexually transmitted debt

Transfers as mortgages Resolution of negligence and good faith test with regard to power of sale

Appendix A: A Notice of Adverse Possession Appendix B: Dealing Lodgment Activity Appendix C: Torrens Assurance Fund Payments Index

Preface In Chapter 1 of this book, we observe that ‘conceptual questions as to the nature of property law, and evaluative assessments as to the appropriate boundary of property rights … intrude into the judicial and legislative elaboration of … doctrinal rules’.1 In this the fourth edition, we particularly seek to explore the connections between conceptual questions and doctrinal rules and, wherever possible, offer readers discussion and analysis of both. At times, we move from broad, macro discussions on one hand, to highly specific doctrinal analyses of statute and case law on the other. We also seek to enrich our analysis through the integration of relevant secondary literature (from books, scholarly journals and reports, for example). We hope that this means our book will appeal to a wide range of readers, including academics, students, judges and legal practitioners alike. Although we did not have a non-legal audience particularly in mind when writing, we would be delighted if non-lawyers simply wishing to know more about property law also found our book useful. We appreciate that there is a growing awareness of the importance of inter-disciplinarity in problemsolving and scholarship, and see property law as being able to contribute to the developing body of interdisciplinary understandings, and so enhance the successful functioning of many aspects of our society. It goes without saying that we, the authors, are all passionate about property law and hope that our deep fascination with the subject shines through, helping readers develop a similar passion or, if not, at least a warm and satisfying enjoyment of the subject. We have tried to weave a narrative throughout the book — a narrative that emphasises the way in which Australian land law has developed from its early colonial heritage into law that responds to the peculiar Australian conditions and circumstances, and a narrative that sees social, political and cultural experience embedded in land law. Property law’s capacity to adapt to new social, political and cultural circumstances is particularly evident in the chapters on fundamental principles (Chapter 3), native title (Chapter 4) and Torrens title (Chapter 8), for

example, but of course, it is also evident in many of the other chapters in this book. As is to be expected, this edition includes discussion and analysis of new statutory provisions, new reports and policies, and many new cases. These include: native title cases such as the Bar-Barrum People’s appeal in Queensland v Congoo,2 and Akiba v Commonwealth;3 Cassegrain v Gerard Cassegrain & Co Pty Ltd4 and its discussion of the fraud exception to indefeasibility; the impact of the new priority notice regime5 on priority rules within the Torrens system; Re Estate Late Chow Cho-Poon; Application for Judicial Advice6 as a recent application of the rule against perpetuities — and, by way of comparison with New South Wales, the Northern Territory’s most recent report on the rule against perpetuities;7 the High Court’s discussion of proprietary estoppel in Sidhu v Van Dyke;8 the role of the New South Wales Civil and Administrative Tribunal (NCAT) in its application to residential and commercial leasing; an overview of the new regime under the Personal Property Securities Act 2009 (Cth) (PPSA), which has some important and possibly unexpected impacts on security arrangements involving goods;9 and updated references to the new version of the New South Wales strata titles legislation. In this edition, there has been a change to the authorial team. We farewell Brendan Edgeworth, who, along with lead author Janice Gray, was one of the two original authors of the book back in 2003, and, in his place, we welcome Heather Roberts. Heather, formerly a solicitor in the property division of a large commercial firm before joining the Australian National University, has a keen interest in property law and brings her considerable experience and expertise to the authorial role. In terms of responsibilities in this edition, Janice Gray has taken over Chapter 1 on the concept of property, from Brendan Edgeworth. She has substantially revised that chapter to make clear connections between land law and emerging property-related issues (such as housing affordability, the privatisation of Land and Property Information (LPI), and the controversy surrounding compulsory acquisitions). She has also substantially revised and updated the chapters on fundamental concepts (Chapter 3), possession and adverse possession (Chapter 5), and perpetuities (Chapter 10) — chapters

that she wrote for the first edition, and revised and updated in the second and third editions. Meanwhile, Heather Roberts has taken over the Torrens title chapter (Chapter 8), originally both written and subsequently revised by Janice Gray in the previous editions. Heather has also assumed responsibility for revising and updating Chapters 2 and 6 as well as substantially re-writing Chapter 7 (old system and priorities) — all chapters that were originally written and revised in later editions by Brendan Edgeworth. In this edition, Neil Foster has continued to assume responsibility for updating and revising Chapters 4, 9 and 14 (originally written by Janice Gray), while Shaunnagh Dorsett has been responsible for Chapters 11, 12 and 13 (originally written by Brendan Edgeworth). We are grateful to more people than we are able to thank here. However, some individuals deserve special mention. We have very much appreciated the patience and expertise of our editors at LexisNexis, Jocelyn Holmes and Nicola Tomlin. Both have been highly professional and a delight with which to work. In particular, Janice Gray would like to thank David for his continual support and affection. She also thanks Natalie Hodgson for her research assistance and the Faculty of Law, UNSW Sydney, for the research grant funding making Natalie’s employment possible. Neil Foster thanks his family for their ongoing love and support, and his colleagues at Newcastle Law School, especially Dr Kevin Sobel-Read and Dr Tim Connor for assistance with PPSA materials. Shaunnagh Dorsett would like to thank Chris Pearce for his research assistance and the Faculty of Law at the University of Technology Sydney for its support. Heather Roberts would like to thank Andrew Henderson, Darryn Jensen, Roberta McRae, Wayne Morgan and Michael Tarlowski for their comments. We have stated the law as it was available to us on 31 March 2017. Janice Gray Neil Foster

Shaunnagh Dorsett Heather Roberts April 2017

1.

Chapter 1 at 1.5.

2.

Queensland v Congoo (2015) 256 CLR 239.

3.

Akiba v Commonwealth (2013) 250 CLR 209.

4.

Cassegrain v Gerard Cassegrain & Co Pty Ltd (2015) 254 CLR 425.

5.

Real Property Act 1900 (NSW) Pt 7B.

6.

Re Estate Late Chow Cho-Poon; Application for Judicial Advice [2013] NSWSC 844.

7.

Northern Territory Law Reform Committee, Northern Territory Law Reform Committee: Report on Perpetuities, Report No 40, Department of Attorney-General and Justice (NT), July 2014.

8.

Sidhu v Van Dyke (2014) 251 CLR 505.

9.

See Chapter 14 at 14.4–14.10.

Table of Cases References are to paragraph numbers 117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 (1998) 43 NSWLR 504 …. 12.34 7-Eleven Stores Pty Ltd v United Petroleum Pty Ltd [2010] QSC 469 …. 11.40

A Abbatangelo v Whittlesea City Council (2008) V Conv R 54-750; [2007] VSC 529 …. 5.66, 5.118 Abbiss v Burney (1881) 17 Ch D 211 …. 10.12, 10.26 Abela v Public Trustee [1983] 1 NSWLR 308 …. 9.44, 9.46 Abigail v Lapin (1934) 51 CLR 58; [1934] AC 491 …. 8.73, 8.131, 8.138, 8.163, 8.166 Ace Property Holdings Pty Ltd v Australian Postal Corp [2010] QCA 55 …. 5.9, 5.80 Ackroyd v Smith (1850) 10 CB 164 …. 12.5 Acorn Computers v MCS Microcomputer Systems Pty Ltd (1984) 6 FCR 277 …. 6.15 Adamson v Hayes (1973) 130 CLR 276 …. 6.23, 6.53 Adavale Realty Pty Ltd v Williams (RTT 96/024133 …. 11.123 Adderley v Dixon (1824) 1 Sim & St 607 …. 6.14 Adeyinka Oyekan v Musendiku Adele [1957] 1 WLR 876 …. 4.20 Adler v Blackman [1953] 1 QB 146 …. 11.13 Administration of Papua and New Guinea v Daera Guba (1973) 130 CLR 353 …. 4.13

AG Securities v Vaughan [1990] 1 AC 417 …. 11.5 AG(CQ) Pty Ltd as Trustee for AG(CQ) Family Trust v A & T Promotions Pty Ltd as Trustee for Toowoomba Unit Trust [2011] 1 Qd R 306; [2010] QCA 083 …. 7.26, 7.27, 8.162 Agra Bank v Barry (1874) LR 7 HL 135 …. 7.6, 7.39 Agripay Pty Ltd v Byrne [2011] 2 Qd R 501 …. 14.41 Agripower Barraba Pty Ltd v Blomfield (2015) 317 ALR 202 …. 2.19, 2.21 Ahern v LA Wilkinson (Northern) Ltd [1929] St R Q 66 …. 11.44 Ahluwalia v Robinson [2003] NSWCA 175 …. 11.37 Akiba on behalf of the Torres Strait Islanders of the Regional Seas Claim Group v State of Queensland (No 2) [2010] FCA 643 …. 4.34 Akiba v Commonwealth (2013) 250 CLR 209 …. 4.34, 4.57 Akici v LR Butlin [2005] EWCA Civ 1296; [2006] 1 WLR 201 …. 5.9 Alcorn v R [2006] NSWCCA 209 …. 8.204 Alcova Holdings Pty Ltd v Pandarlo Pty Ltd (1988) 15 NSWLR 53 …. 8.89, 8.91 Aldin v Latimer Clark, Muirhead & Co [1894] 2 Ch 437 …. 11.24 Aldred’s Case, Re (1610) 9 Co Rep 57b …. 12.7 Aldridge v Wright [1929] 2 KB 117 …. 12.26, 12.52 Allam Homes Pty Ltd v Vocata [2003] NSWSC 628 …. 8.145 Alleasing Pty Ltd; Re OneSteel Manufacturing Pty Ltd v OneSteel Manufacturing Pty Ltd [2017] FCA 656 …. 14.9 Allen v Anthony (1816) 1 Mer 282; 35 ER 978 …. 7.19 — v Knight (1846) 5 Hare 272 …. 7.28 — v Roughley (1955) 94 CLR 98 …. 5.32, 5.33, 5.38, 5.39, 5.43, 5.44, 5.45, 5.55, 5.77, 5.135, 5.144, 5.145 — v Snyder [1977] 2 NSWLR 685 …. 6.33, 6.34 Allen’s Asphalt Pty Ltd v SPM Group Pty Ltd [2010] 1 Qd R 202; (2009) 255

ALR 588; [2009] QCA 134 …. 8.136, 8.162, 14.16 Allfox Building Pty Ltd v Bank of Melbourne Ltd (1992) NSW ConvR ¶55– 634 …. 14.115 Allianz Australia Insurance Ltd v Lo-Guidice [2012] NSWSC 145 …. 2.48 Allison v Petty (1899) 9 QLJ 125 …. 3.44 Altarama Ltd v Camp (1980) 5 ACLR 513 …. 14.115 Amcor Ltd v Barnes [2016] VSC 707 …. 14.31 American Express International Banking Corporation v Hurley [1985] 3 All ER 564 …. 14.64 Amodu Tijani v Secretary, Southern Nigeria [1921] 2 AC 399 …. 3.43 Amtel Pty Ltd v Ah Chee [2015] WASC 341 …. 14.41 Anderson v Anderson [2016] NSWSC 1204 …. 9.33, 9.35 — v Bowles (1951) 84 CLR 310 …. 11.17, 11.27 — v O’Donnell (2000) 10 BPR 18,501 …. 9.34 Anderson, Ex parte; Re Green (1946) 46 SR (NSW) 389 …. 11.54 Anderson Group Pty Ltd v Tynan Motors Pty Ltd [2006] NSWCA 22 …. 2.62 Andrews v Australia and New Zealand Banking Group Ltd (2012) 247 CLR 205 …. 14.32 — v Parker [1973] Qd R 93 …. 3.114, 3.116 — v Partington (1791) 3 Bro CC 401; 29 ER 610 …. 10.18 Angelopulos v Sabatino (1996) 65 SASR 1 …. 6.41 Anonymous (1722) 2 P Wms 75; 24 ER 646 …. 3.4 Antar v Fairchild Developments Pty Ltd [2008] NSWSC 638 …. 8.145 Antoniades v Villiers [1990] 1 AC 417 …. 11.5 Apostolou v VA Corp Aust Pty Ltd [2010] FCA 64 …. 14.106 Appleyard Capital Pty Ltd, Re (2014) 101 ACSR 629 …. 14.5 Application of Fox (1981) 2 BPR 9310 …. 13.6

Application of Mango Credit Pty Ltd, Re [2016] NSWSC 199 …. 14.31 Apriaden Pty Ltd v Seacrest Pty Ltd (2005) 12 VR 319 …. 11.65 Arambasic v Veza (No 4) [2014] NSWSC 1109 …. 8.124 Argyle Art Centre Pty Ltd v Argyle Bond & Free Stores Co Pty Ltd [1976] 1 NSWLR 377 …. 11.66 Armitage v Nurse [1998] Ch 241 …. 7.7 Armory v Delamirie (1722) 1 Strange 506; 93 ER 664 …. 2.64 Armour v Penrith Projects Pty Ltd [1979] 1 NSWLR 98 …. 8.194 Ashburnam Golf Club Ltd v Hogan (22 July 1982, unreported) …. 5.105 Ashe v Westminster Bank plc [2008] 1 WLR 710 …. 5.124 Asher v Whitlock (1865) LR1QB 1 …. 3.9, 5.16, 5.33, 5.34, 5.37, 5.44, 5.48, 5.70, 5.77, 5.88, 5.135, 5.145 Ashforth, Re [1905] 1 Ch 535 …. 10.10 Ashmore Developments Pty Ltd v Eaton (1992) Qd R 1 …. 11.56 Ashoil Holdings Pty Ltd v Fassoulas (2005) NSW ConvR ¶56-125 …. 12.56, 12.62 Assaf v Kostrevski (1999) NSW ConvR ¶55-883 …. 11.37 Assets Co Ltd v Mere Roihi [1905] AC 176 …. 8.23, 8.28, 8.62, 8.66, 8.70, 8.73 Attorney-General v Brown (1847) 1 Legge 312; 2 SCR (NSW) 30 …. 3.5, 3.7, 3.33, 3.36, 3.38, 4.7 — v Chambers (1854) 4 De GM & G 206 …. 2.13 — v Mosman Council (1910) 11 SR (NSW) 113 …. 2.8 — v Pyle (1738) 1 Atk 435; 26 ER 278 …. 3.115, 10.54 — v Simpson [1901] 2 Ch 671 …. 12.32 Attorney-General (Cth) v R T Co Pty Ltd (No 2) (1957) 97 CLR 146 …. 2.21 Attorney-General (Quebec) v Attorney-General (Canada) [1921] 1 AC 401 …. 4.43

Atwell v Roberts (No 3) [2009] WASC 96 …. 6.19 Aussie Traveller Pty Ltd v Marklea Pty Ltd [1998] 1 Qd 1 …. 11.18, 11.23 Austerberry v Corporation of Oldham (1885) 29 Ch D 750 …. 12.37 — v Oldham Corp (1885) 29 Ch D 750 …. 13.12 Austin Construction Co (Australia) Ltd v Becketts Holdings Pty Ltd (1958) 75 WN (NSW) 444 …. 8.89 Austotel Pty Ltd v Franklins Self-Serve Pty Ltd (1989) 16 NSWLR 582 …. 6.41 Australia and New Zealand Bank Ltd v Sinclair [1968] 2 NSWR 26 …. 14.62 Australia and New Zealand Banking Group Ltd v Bangadilly Pastoral Co Pty Ltd (1978) 139 CLR 195 …. 14.96, 14.98, 14.104, 14.111 — v Comer (1993) NSW ConvR ¶55–668 …. 14.54 — v Devine Holdings Pty Ltd (1991) ANZ ConvR 526 …. 14.86 — v Pola [2013] NSWSC 1801 …. 14.104 — v Widin (1990) 26 FCR 21; 102 ALR 289 …. 6.8, 6.12, 14.16 Australia Capital Financial Management Pty Ltd v Linfield Developments Pty Ltd [2017] NSWCA 99 …. 6.19, 7.26, 7.28 Australia in Owners of East Fremantle Shopping Centre West Strata Plan 8618 v Action Supermarkets Pty Ltd (2008) 37 WAR 498 …. 12.7 Australian Co-operative Development Society Ltd, Ex parte [1978] Qd R 395 …. 14.124 Australian Express Pty Ltd v Pejovic [1963] NSWR 954 …. 14.53 Australian Guarantee Corporation Ltd v De Jager [1984] VR 483 …. 8.78 Australian Guarantee Corporation (NZ) Ltd v CFF Commercial Finance Ltd [1995] 1 NZLR 129 …. 8.168 Australian Hi-Fi Publications Pty Ltd v Gehl [1979] 2 NSWLR 618 …. 8.86, 12.49, 12.51 Australian Provincial Assurance Co Ltd v Rogers (1943) 43 SR (NSW) 202 …. 11.8

Australian Provincial Co Ltd v Coroneo (1938) 38 SR (NSW) 700 …. 2.22 Australian Regional Credit Pty Ltd v Mula [2009] NSWSC 325 …. 14.41 Australian Securities & Investments Commission, Re Money for Living (Aust) Pty Ltd (admins apptd) v Money for Living (Aust) Pty Ltd (admins apptd) (No 2) (2006) 24 ACLC 1240 …. 14.34 Australian Security Estates Pty Ltd v Bluecrest Holdings Pty Ltd (1999) 9 BPR 17,533 …. 8.137 Australian Softwood Forests Pty Ltd v Attorney-General (NSW) (1981) 148 CLR 121 …. 12.65 Avco Financial Services Ltd v Commonwealth Bank of Australia (1989) 17 NSWLR 679 …. 14.125, 14.126 Avco Financial Services v White [1977] VR 561 …. 8.143 Ayton v Ayton (1787) 1 Cox 327; 29 ER 1188 …. 10.21

B Backhouse v Bonomi (1861) 9 HLC 503 …. 12.11 Bacon v O’Dea (1989) 88 ALR 486 …. 8.143 Bahr v Nicolay (No 2) (1988) 164 CLR 604; 78 ALR 1 …. 8.66, 8.75, 8.92, 8.97, 8.101, 12.51 Bailey v Barnes [1894] 1 Ch 25 …. 7.5, 7.31, 14.132 — v J Paynter (Mayfield) Pty Ltd [1966] 1 NSWR 596 …. 11.39 Bain v Brand (1876) 1 App Cas 762 …. 2.25 Bainbrigge v Browne (1881) 18 Ch D 188 …. 7.33 Baird Textile Holdings v Marks & Spencer Plc [2001] EWCA Civ 274 …. 1.45 Baker v Sebright (1879) 13 Ch D 179 …. 3.54 Bakewell Management Ltd v Brandwood [2004] 2 AC 519 …. 12.33 Baldwin v Rogers (1853) 3 De GM & G 649; 43 ER 255 …. 10.21 Ballard’s Conveyance, Re [1937] Ch 473 …. 13.6

Ball-Guymer v Livantes (1990) 102 FLR 327 …. 2.18 Baloglow v Konstantinidis (2000) 11 BPR 20,721 …. 6.22 Bank of New South Wales v Commonwealth (1948) 76 CLR 1 …. 4.50 Bank of South Australia v Ferguson (1998) 192 CLR 248; 151 ALR 729 …. 8.76 Bank of Victoria v Forbes (1887) 13 VLR 760 …. 5.119 — v M’Hutchison (1881) 7 VLR (L) 452 …. 11.13 Bannister v Bannister [1948] 2 All ER 133 …. 6.32 — v Cheung [2014] NSWCATCD 105 …. 11.109 Barham v Barham [2010] NSWSC 503 …. 9.35 Barina Properties Pty Ltd v Bernard Hastie (Australia) Pty Ltd [1979] 1 NSWLR 480 …. 11.43 Barker v Corporation of the City of Adelaide [1900] SALR 29 …. 2.8 Barlin Investments Pty Ltd v Westpac Banking Corporation (2012) 16 BPR 30, 671 …. 8.177, 8.181 Barnes v Addy (1874) LR 9 Ch App 244 …. 6.31, 8.102 Barnhart v Greenshields (1853) 9 Moo PC 18 …. 7.18 Barns v Edwards (1993) 31 NSWLR 714 …. 2.39 — v Queensland National Bank Ltd (1906) 3 CLR 925 …. 14.95, 14.104 Barrett v Barrett (1918) 18 SR(NSW) 637 …. 10.14 Barry v Heider (1914) 19 CLR 197 …. 8.92, 8.93, 8.94, 8.128, 8.129, 8.137, 8.161, 14.19 Bartha v O’Riordan [2004] QSC 205 …. 5.87 Bartholomew’s Will, Re (1849) 1 Mac & G 354 …. 10.14 Bartlett v Ryan (2000) 10 BPR 18,077 …. 5.86, 5.149, 5.155 Basely v Clarkson (1681) 3 Lev 37 …. 2.31 Bass v Gregory (1890) 25 QBD 481 …. 12.7, 12.10 Bassett v Nosworthy (1673) Rep t Finch 102 …. 7.11

Batchelor v Marlow [2003] 1 WLR 764 …. 12.7 Batey v Potts (2004) 61 NSWLR 274 …. 9.50 Bathurst City Council v PWC Properties Pty Ltd (1998) 195 CLR 566 …. 6.31 Batiste v Lenin (2002) 11 BPR 20,403 …. 11.60, 11.72, 11.82 Baumgartner v Baumgartner (1987) 164 CLR 137 …. 6.35, 6.49, 6.55, 7.20 Baxendale v Instow PC [1981] 2 All ER 620 …. 2.15 Baxter v Four Oaks Properties Ltd [1965] Ch 816 …. 13.33 Bayliss v Public Trustee (1988) 12 NSWLR 214 …. 8.126 Baynes & Co v Lloyd & Sons [1895] 2 QB 610 …. 11.23 Bayport v Watson [2002] VSC 206 …. 5.113 Bazley v Wesley Monash IVF Pty Ltd [2011] 2 Qd R 207 …. 1.65 Beames v Queensland [2002] QSC 83 …. 8.118 Beatty v Australia and New Zealand Banking Group Ltd [1995] 2 VR 301 …. 8.32 Beaulane Properties v Palmer [2005] EWHC 1460 …. 5.106 Beca Developments Pty Ltd v Idameneo (No 92) Pty Ltd (1990) 21 NSWLR 459 …. 8.152 Beconwood Securities Pty Ltd v Australia and New Zealand Banking Group Ltd (2008) 246 ALR 361 …. 14.1 Bedford Properties Pty Ltd v Surgo Pty Ltd [1981] 1 NSWLR 106 …. 8.152, 8.160 Beeby v Official Assignee of Pickering [1953] NZLR 832 …. 14.125 Beever v Spaceline Engineering Pty Ltd (1993) NSW ConvR ¶55-678 …. 5.35, 5.86 Belgrave Nominees Pty Ltd v Barlin-Scott Air-conditioning (Australia) Pty Ltd [1984] VR 947 …. 2.21 Bellevue Crescent Pty Ltd v Marland Holdings Pty Ltd (1998) 34 NSWLR 364 …. 12.54

Bellissimo v JCL Investments Pty Ltd [2009] NSWSC 1260 …. 8.136 Belperio v Linehaul Holdings Pty Ltd (2004) 89 SASR 185 …. 11.60 Bendigo and Adelaide Bank Ltd v Karamihos [2014] NSWCA 17 …. 14.36 Benjamin, Re [1926] VLR 378 …. 10.14 Bennell v Western Australia (2006) 153 FCR 120 …. 4.32 Bernstein v Skyviews & General Ltd [1978] QB 479 …. 1.4 Bernstein of Leigh (Baron) v Skyviews and General Ltd [1978] QB 479 …. 2.7 Berryman v Sonnenschein [2008] NSWSC 213 …. 12.36 Beswick v Beswick [1966] Ch 538 …. 13.10 Bethian Pty Ltd v Green (1977) 3 Fam LR 11,579 …. 8.142 Betlehem v Keytown Constructions Pty Ltd [2007] WASC 38 …. 8.142 Bevan v Bevan [2014] FamCAFC 19 …. 6.51 Bevham Investments Pty Ltd v Belgot Pty Ltd (1982) NSW ConvR ¶55–088 …. 14.94 Bhana v Bhana [2002] NSWSC 117 …. 3.113 Big Top Hereford Pty Ltd v Thomas (2006) 12 BPR 23,843 …. 9.65 Biggs v Hoddinott [1898] 2 Ch 307 …. 14.28, 14.30 Billson v Residential Apartments Ltd [1992] 1 AC 494 …. 11.73 Bird v Hildage [1948] 1 KB 91 …. 11.66 Birmingham Citizens Permanent Building Society v Caunt [1962] Ch 883 …. 14.53 Bishop v Taylor (1968) 118 CLR 518 …. 11.4 Biviano v Natoli (1998) 43 NSWLR 695 …. 9.54, 9.59 Black v Garnock (2007) 230 CLR 438; [2007] HCA 31 …. 6.18, 8.135, 8.138, 8.172 Blacks Ltd v Rix [1962] SASR 161 …. 13.39 Blackwell, Re [1926] Ch 223 …. 10.14

Blackwood v London Chartered Bank of Australia (1871) 10 SCR (NSW) Eq 91 …. 7.39 Blades v Higgs (1861) 10 CBNS 713; 142 ER 634 …. 2.63 Blankard v Galdy (1693) 2 Salk 411; 91 ER 356 …. 3.36 Blathwayt v Baron Cawley [1976] AC 397; [1975] 3 All ER 625 …. 3.93 Blaxland v Grattan (1887) 8 LR (NSW) (L) 287 …. 7.41 Bleckly, Re; Bleckly v Bleckly [1951] Ch 740 …. 10.21 Blower v Larkin [1833] NSWSupC 94 …. 5.50 Blulock Pty Ltd v Majic (2001) 10 BPR 19,143 …. 12.34 Blundell v Curvers [2002] NSWSC 436 …. 9.65 Bodney v Bennell (2008) 167 FCR 84 …. 4.32 Bogdanovic v Koteff (1988) 12 NSWLR 472 …. 8.27, 8.124, 8.125 Bolten v Beckenham [1981] 1 QB 278 …. 14.46 Bolton v Bolton (1879) 11 Ch D 968 …. 12.29 Bona Vista Properties Pty Ltd, Re [2007] NSWSC 1278 …. 12.61 Bond v Hong Kong Bank of Australia Ltd (1991) 25 NSWLR 286 …. 14.47 Bondlake Pty Ltd v Owners — Strata Plan No 60285 (2005) 62 NSWLR 158 …. 9.74, 9.75 Bonner v Tottenham & Edmonton Permanent Investment BS [1899] 1 QB 161 …. 11.49 Booth v The Salvation Army Building Association Ltd (1897) 14 TLR 3 …. 14.32 Borg-Warner Acceptance Corporation (Australia) Ltd v Diprose (1987) 4 BPR 9408; NSW ConvR ¶55–364 …. 14.40 Borman v Griffith [1930] 1 Ch 493 …. 12.6, 12.26 Boss v Hamilton Island Enterprises Ltd [2009] QCA 229 …. 11.43 Bostock’s Settlement, Re; Norrish v Bostock [1921] 2 Ch 469 …. 3.77 Boulter v Boulter (1898) 19 LR (NSW) Eq 135 …. 9.56

Boulton v Pilcher (1861) 29 Beav 633 …. 10.14 Bourke v Beneficial Finance Corp Ltd (1991) ANZ ConvR 473 …. 14.112 Bowden v Lo (1998) 9 BPR 16,317; NSW ConvR ¶55-868 …. 11.82, 11.115 Boyce v Beckman (1890) 11 LR (NSW)(L) 139 …. 7.38 Boyd v Mayor of Wellington [1924] NZLR 1174 …. 8.26, 8.28 Boyer v Warbey [1953] 1 QB 234 …. 11.51, 11.86 BP Properties Ltd v Buckler (1988) 55 P & CR 337 …. 5.92 Brace v Duchess of Marlborough (1728) 2 P Wms 491 …. 7.10, 7.31 Bradford Banking Co Ltd v Henry Briggs, Son & Co Ltd (1886) 12 App Cas 29 …. 4.137 Bradford Corporation v Pickles [1895] AC 587 …. 12.11 Bradley v Carritt [1903] AC 253 …. 14.31 Brand v Chris Building Co Pty Ltd [1957] VR 625 …. 2.30, 2.66 Break Fast Investments Pty Ltd v Giannopoulos (also known as Giannopoulos) (No 5) [2011] NSWSC 1508 …. 8.105 Breams Property Investment Co Ltd v Stroulger [1948] 2 KB 1 …. 11.46 Bree v Scott (1904) 29 VLR 692 …. 5.119 Breen v Williams (1996) 186 CLR 71 …. 4.52 Breheney, In the Will of [1915] VLR 242; (1915) 21 ALR 273 …. 10.20 Breskvar v Wall (1971) 126 CLR 376 …. 7.26, 8.20, 8.26, 8.27, 8.29, 8.30, 8.31, 8.44, 8.92, 8.104, 8.124, 8.125, 8.167, 8.202, 14.142 Brett, In the Will of [1947] VLR 483 …. 10.38 Brickwood v Young (1905) 2 CLR 387 …. 9.55 Bridges v Bridges [2010] NSWSC 1287 …. 5.59, 5.80, 5.81, 5.90, 5.121 — v Hawkesworth (1851) 21 LJQB 75; [1843–60] All ER Rep 122 …. 2.67 — v Mees [1957] Ch 475 …. 5.131 Brikom Investments Ltd v Carr [1979] QB 467; [1979] 2 All ER 753 ….

11.66 Brisbane South Regional Health Authority v Taylor [1996] HCA 25 …. 5.58 Brisbane Water County Council v Commissioner of Stamp Duties [1979] 1 NSWLR 320 …. 9.122 British Anzani (Felixstowe) Ltd v International Marine Management (UK) Ltd [1979] 2 All ER 1063 …. 11.82 British Bakeries (Midlands) v Michael Testler & Co Ltd [1986] 1 EGLR 64 …. 11.43 British Road Services Ltd v Arthur V Crutchley & Co Ltd [1968] 1 All ER 811 …. 2.52, 2.62 Broadlands International Finance Ltd v Sly (1987) 4 BPR 9420; NSW ConvR ¶55–342 …. 14.40 Brocklesby v The Temperance Permanent Building Society [1895] AC 173 …. 7.8 Brogue Tableau Pty Ltd v Binningup Nominees Pty Ltd (2007) 35 WAR 27 …. 8.131 Brook, Ex parte; Roberts, Re (1878) 10 Ch D 100 …. 2.28 Brookfield Multiplex Ltd v Owners — Strata Plan No 61288 (2014) 254 CLR 185 …. 9.71 Brown v Brown (1993) 31 NSWLR 582 …. 6.30, 6.54 Brown (on behalf of the Ngarla People) v State of Western Australia (No 2) [2010] FCA 498 …. 4.57, 4.58 Browne v Flower [1911] 1 Ch 219 …. 11.23, 12.7 Brunker v Perpetual Trustee Co Ltd (1937) 57 CLR 555 …. 8.128 Brutan Investments Pty Ltd v Underwriting and Insurance Ltd (1980) 39 ACTR 47 …. 14.116 Bruton v London and Quadrant Housing Trust [2000] 1 AC 406 …. 11.5, 11.18 Brydall v Owners of Strata Plan No 66794 (2009) 14 BPR 26,831 …. 12.7 Bryson v Bryant (1992) 29 NSWLR 188 …. 6.36, 6.55

Buchanan-Wollaston’s Conveyance, Re [1939] Ch 738 …. 9.63 Buckinghamshire County Council v Moran [1990] Ch 623; [1989] 2 All ER 225 …. 5.106, 5.108, 5.110, 5.113, 5.118 Bucknall v Reid (1876) 10 SALR 188 …. 11.29 Bull v Bull [1955] 1 QB 234 …. 9.15 Bullen v A’Beckett (1865) 1 Moo NS 223; 15 ER 684 …. 7.11, 7.40 Bulli Coal Mining Co v Osborne [1899] AC 351 …. 2.10 Bulstrode v Lambert [1953] 1 WLR 1064 …. 12.36 Bunn, Re (1880) 16 Ch D 47 …. 10.14 Bunning Building Supplies v Sgro (1995) V Conv R ¶54-535 …. 8.143 Bunny Industries Ltd v FSW Enterprises Pty Ltd [1982] Qd R 712 …. 6.14, 6.15 Burgess v Rawnsley [1975] Ch 429 …. 9.31, 9.43 Burman’s Caveat, Re [1994] 1 Qd R 123 …. 5.151 Burnett v Randwick City Council [2006] NSWCA 196 …. 2.65 Burnham v Carroll Musgrove Theatres Ltd (1928) 41 CLR 540 …. 11.14 Burrell, Re (1869) LR 7 Eq 399 …. 14.47 Burrows v Crimp (1887) 4 WN (NSW) 11b …. 7.39 Bursill Enterprises Pty Ltd v Berger Bros Trading Co Pty Ltd (1971) 124 CLR 73 …. 2.6, 8.81, 8.82, 9.66, 12.7 Butcher v Bowen [1964] NSWR 36 …. 11.10 Butler v Fairclough (1917) 23 CLR 78 …. 8.66, 8.131, 8.138, 8.147, 8.162, 8.165, 8.167, 8.168 Byrne v Hoare [1965] Qd R 135 …. 2.65

C C J Belmore Pty Ltd v AGC (General Finance) Ltd [1976] 1 NSWLR 507 …. 14.33

Cable v Bryant [1908] 1 Ch 259 …. 11.24 Cadell v Palmer (1833) 1 Cl & Fin 372; 6 ER 956 …. 10.5, 10.26 Cain v New South Wales Land and Housing Corporation [2014] NSWCA 28 …. 11.125 Calabrese v Miuccio (No 2) [1985] 1 Qd R 17 …. 9.43 Calder v Attorney-General of British Columbia (1973) 34 DLR (3rd) 145 …. 4.13, 4.42 Caldwell v Rural Bank of New South Wales (1951) 69 WN (NSW) 246 …. 8.26 Callow v Rupchev (2009) 14 BPR 27,533 …. 9.58, 9.132 Calverley v Green (1984) 155 CLR 242 …. 6.29, 6.30, 6.54, 9.17 Cambridge v Rous (1858) 25 Beav 409; 53 ER 693 …. 10.32 Cameron v Murdoch (1986) 63 ALR 575 …. 6.39 Campbell v Baigent (2010) 15 BPR 28,959 …. 12.59, 12.60, 12.61, 12.62 — v Holyland (1877) 7 Ch D 166 …. 14.70, 14.71 Canas Property Co Ltd v KL Television Services Ltd [1970] 2 QB 433 …. 11.68 Canning’s Will Trusts, Re [1936] Ch 309 …. 10.36 Cape v Trustees of the Savings Bank of New South Wales (1893) 14 LR (NSW) Eq 204 …. 4.80 Capital Finance Australia Ltd v Karabassis (2003) 11 BPR 21,123 …. 8.142 — v Struthers (2008) 14 BPR 98,328; [2008] NSWSC 440 …. 7.29, 8.140 Carberry v Gardiner (1936) 36 SR (NSW) 559 …. 11.8 Cardwell v Walker [2004] 2 P & CR 9 …. 12.6 Carey v Doyne (1856) I Ch R 104 …. 14.47 Carmody v Delehunt [1984] 1 NSWLR 667 …. 9.133 Carpet Fashion Pty Ltd v Forma Holdings Pty Ltd [2004] NSWCA 150 …. 11.21

Carr v Finance Corp of Australia (No 2) (1982) 150 CLR 139 …. 14.92 Carroll v Perpetual Trustee Co Ltd (1916) 22 CLR 423 …. 10.12 Carter v Cole [2006] All ER(D) 139 …. 12.37 Cartwright, Re; Avis v Newman (1889) 41 Ch D 532 …. 3.51 Cassegrain v Gerard Cassegrain & Co Pty Ltd (2015) 254 CLR 425; 316 ALR 111 …. 7.11, 7.24, 8.20, 8.62, 8.127, 9.23 Castell & Brown Ltd, Re [1898] 1 Ch 315 …. 7.28 Castle Constructions Pty Ltd v Sahab Holdings Pty Ltd (2013) 247 CLR 149 …. 8.23, 8.116, 12.48 — v — (No 2) (2013) 303 ALR 84 …. 8.23 Casuarina Rec Club Pty Ltd v Owners — Strata Plan 77971 (2011) 80 NSWLR 711 …. 9.104, 9.127, 9.134 Cavalier v Pope [1906] AC 428 …. 11.37 Cawthorne v Thomas (1993) 6 BPR 13,840 …. 5.103, 5.135 Caxton Publishing v Sutherland Publishing [1939] AC 178 …. 2.49 Ceedive Pty Ltd v May [2005] NSWSC 222 …. 8.93 Central Estates (Belgravia) Ltd v Woolgar (No 2) [1972] 1 WLR 1048 …. 11.66 Central Mortgage Registry of Australia Ltd v Donemore Pty Ltd [1984] 2 NSWLR 128 …. 14.136 Cervi v Letcher (2011) 33 VR 320 …. 5.110, 5.114, 5.116 Chaffers v Abell (1839) 3 Jur 577 …. 10.14 Challenger Managed Investments Ltd v Direct Money Corp Pty Ltd (2003) 59 NSWLR 452 …. 8.184, 8.185, 8.187, 8.188, 8.204 Champion Homes Sales Pty Ltd v JKAM Investments Pty Ltd [2014] NSWSC 952 …. 8.168 Chandra v Perpetual Trustees Victoria Ltd (2007) 13 BPR 24,675 …. 8.4, 8.46, 8.48, 8.50 — v — [2008] NSWSC 178 …. 8.190, 8.191, 8.193

Chang v Registrar of Titles (1976) 137 CLR 177 …. 6.18 Chant v Deputy Commissioner of Taxation (1994) 15 ACSR 184 …. 14.123 Chaplin v Chaplin (1773) 3 P Wms 229 …. 3.48 — v Smith [1926] 1 KB 198 …. 5.9 Chapman, Re [1977] 1 WLR 1163 …. 10.18 Chartered Trust plc v Davies (1997) 76 P & CR 396 …. 11.24 Chase Corporation (Australia) Pty Ltd v North Sydney Brick and Tile Co Ltd (1994) 35 NSWLR 1 …. 14.135 Chasfild Pty Ltd v Taranto [1991] VR 225 …. 8.31, 8.32 Chatham Empire Theatre (1955) Ltd v Ultrans Ltd [1961] 2 All ER 381 …. 11.74 Chatsworth Estates Co v Fewell [1931] 1 Ch 224 …. 13.44, 13.48 Cheah Theam Swee v Equiticorp Finance Group Ltd [1992] 1 AC 472 …. 14.47 Cheedy on behalf of the Yindjibarndi People v Western Australia [2011] FCAFC 100 …. 4.1, 4.86 Chelsea Yacht & Boat Co Ltd v Pope [2000] 1 WLR 1941 …. 2.21 Chia v Rennie (1997) 8 BPR 15,601 …. 14.116 Chick v Dockray [2011] TASFC 1 …. 12.36 China and South Sea Bank Ltd v Tan Soon Gin [1990] 1 AC 536 …. 14.102, 14.109, 14.114 Chiu v Healey (2003) 11 BPR 21,241 …. 12.36, 12.59 Chong v Chanell [No 2] NSWSC 1066 …. 8.151 Christopoulos v Kells (1988) 13 NSWRL 541 …. 12.50 Chronopoulos v Caltex Oil (Australia) Pty Ltd (1982) 45 ALR 481 …. 6.5, 11.51 Chung Ping Kwan v Lam Island Co Ltd [1997] AC 38 …. 5.80 Circuit Finance Australia Limited (recs and mgrs apptd) (in liq) v Panella [2011] NSWSC 311 …. 8.162

Circuit Finance Australia Ltd v Panella (2012) 16 BPR 30,347 …. 6.19 Circuit Finance Pty Ltd v Glenauchen Pty Ltd [2001] SASC 41 …. 14.32 City and Metropolitan Properties Ltd v Greycroft Ltd [1987] 1 WLR 1085 …. 11.56 City Developments Pty Ltd v Registrar-General of the Northern Territory [2001] NTCA 7 …. 12.5 City Motors (1933) Pty Ltd v Southern Aerial Super Service Pty Ltd (1961) 106 CLR 477 …. 2.62 City of Canada Bay v Bonaccorso Pty Ltd (2007) 71 NSWLR 424 …. 8.109, 8.110 City of Subiaco v Heytesbury Properties Pty Ltd [2001] 24 WAR 146 …. 11.77 Citycorp Australia Ltd v McLoughney (1984) 35 SASR 375 …. 14.106 Cityland Property (Holdings) Ltd v Dabrah [1968] Ch 166 …. 14.32 Civil Service Co-operative Society Ltd v McGrigor’s Trustee [1923] 2 Ch 347 …. 11.64 Clare Morris Ltd v Hunter BNZ Finance Ltd (1988) 4 BPR 9609 …. 14.92 Clark v Baker (1987) 4 BPR 9476 …. 14.35 — v Raymor (Brisbane) Pty Ltd (No 2) [1982] Qd R 790 …. 8.143 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 …. 14.92 — v Ramuz [1891] 2 QB 456 …. 6.16 Classic Heights Pty Ltd v Black Hole Enterprises (1994) V Conv R ¶54-506 …. 8.143 Clay v Karlson (1998) 19 WAR 287 …. 3.43 Clayton v Ramsden [1943] AC 320 …. 3.93 Clem Smith Nominees Pty Ltd v Farrelly (1978) 20 SASR 227 …. 13.6 Clements v Ellis (1934) 51 CLR 217 …. 8.20, 8.26, 8.27, 8.28 Clifford, Re [1980] 2 WLR 749 …. 10.18

Clifford v Dove (2003) 11 BPR 21,149 …. 12.9, 12.37, 13.15 Climie v Wood (1869) LR Ex 328 …. 2.26 Clobery v Lampen (1683) 2 Free 24; 2 Ch Cas 155 …. 10.14 Clos Farming Estates Pty Ltd v Easton (2001) 10 BPR 18,845 …. 5.10 — v — (2002) 11 BPR 20,605 …. 12.5, 12.7, 12.65, 12.73 Clunies-Ross v Commonwealth (1984) 155 CLR 193; 55 ALR 609 …. 4.50 Clyne v Lowe (1968) 69 SR (NSW) 433 …. 7.18, 8.89 — v NSW Bar Association (1960) 104 CLR 186 …. 1.73 Coaker v Willcocks [1911] 2 KB 124 …. 12.41 Coe v Commonwealth (1979) 53 ALJR 403 …. 4.9, 4.13 — v — (1993) 68 ALJR 110 …. 4.35 Coffill v Lagudi Holdings Pty Ltd [2016] NSWSC 1764 …. 12.63 Cohen v Popular Restaurants Ltd [1917] 1 KB 480 …. 11.46 Cole v Kelly [1920] 2 KB 106 …. 11.52 Coleman, Re [1936] Ch 528 …. 10.36 Coles Myer NSW Ltd v Dymocks Book Arcade Ltd (1996) 7 BPR 14,638 …. 12.34, 13.49 Coles Supermarkets Australia Pty Ltd v Stateland Developments Pty Ltd [2008] NSWSC 1425 …. 8.145 Colls v Home and Colonial Stores Ltd [1904] AC 179 …. 12.10 Commercial and General Acceptance Ltd v Nixon (1980) ANZ ConvR 306 …. 14.111 — v — (1981) 152 CLR 491 …. 14.104, 14.110, 14.111 Commercial Bank of Australia v Amadio (1983) 151 CLR 447 …. 14.42 Commonwealth Bank of Australia v Buffett (1993) 114 ALR 245 …. 14.47 — v Richards (1987) ANZ ConvR 82 …. 14.106 — v Serobian [2009] NSWSC 302 …. 4.35 — v Tugvale Pty Ltd (1993) NSW ConvR ¶55–687 …. 14.85

Commonwealth v Akiba (2012) 204 FCR 260 …. 4.34 — v Orr (1981) 37 ALR 653 …. 14.60, 14.62 — v Registrar of Titles for Victoria (1918) 24 CLR 348 …. 12.7 — v Verwayen (1990) 170 CLR 394 …. 6.42 — v Yarmirr (2001) 208 CLR 1; 184 ALR 113 …. 3.2, 4.26, 4.27, 4.29, 4.34, 4.40, 4.42, 4.44, 4.48, 4.51, 4.52, 4.54, 4.66, 4.84 Commonwealth Life (Amalgamated) Assurance Ltd v Anderson (1945) 46 SR (NSW) 47 …. 3.59, 11.2, 11.41 Composite Buyers Ltd v Soong (1995) 38 NSWLR 286 …. 8.143 Comptroller of Stamps v Howard-Smith (1936) 54 CLR 614 …. 6.21 Concept Projects Ltd v McKay [1984] 1 NZLR 560 …. 2.28 Congoo (on behalf of Bar-Barrum People) (No 4) v Queensland (2014) 218 FCR 358 …. 4.58 Conlan v Registrar of Titles (2001) 24 WAR 299 …. 8.77 Connell v Bond Corp Pty Ltd (1992) 8 WAR 352 …. 8.145 Connors v United Kingdom [2004] EHRR 189 …. 1.77 Consolidated Trust Co Ltd v Naylor (1936) 55 CLR 423 …. 8.37, 14.56 Cook v Bank of New South Wales (1982) 2 BPR 9580 …. 14.35 — v Shoesmith [1951] 1 KB 752 …. 11.42 Cooke v Dunn (1998) 9 BPR 16,489 …. 5.93, 5.119, 5.140 Coombs v Rogers (RTT 88/288) …. 11.118 Cooper, Re (1882) 20 Ch D 611 …. 7.41 Cooper v Stuart (1889) 14 App Cas 286 …. 3.5, 3.7, 4.9 Cooper’s Conveyance Trusts, Re [1956] WLR 1096 …. 10.54 Cope v Keen (1968) 118 CLR 1 …. 8.126 Copeland v Greenhalf [1952] Ch 488 …. 12.7 Coppage v Kansas 236 US 1 (1915) …. 1.16

Cordingley, Re (1948) 48 SR (NSW) 248 …. 9.64 Corin v Patton (1990) 169 CLR 540 …. 6.46, 8.126, 9.25, 9.31, 9.42, 9.130 Corozo Pty Ltd v Total Australia Ltd [1988] 2 Qd R 266 …. 8.96 Corporate Affairs Commission v ASC Timber Pty Ltd (1989) 18 NSWLR 577 …. 12.65 Costin v Costin [1997] ANZ Ltd v Customs and Excise Commissioners [1983] QB 735 …. 11.9 Couche v Adams (2002) ConvR 400; (1997) NSW ConvR ¶55-811 …. 8.126, 9.32, 9.130 Cottage Holiday Associates 11 BPR 20,101 …. 12.56, 12.60 Countrywide Banking Corp v Robinson [1991] 1 NZLR 75 …. 14.114 Courtenay v Austin (1961) 78 WN (NSW) 1082 …. 8.172 Cousins v Wilson [1994] NZLR 463 …. 2.33 Cowell v Rosehill Racecourse Co Ltd (1969) 56 CLR 605; 43 ALR 69 …. 1.57 Cowlishaw v Ponsford (1928) 28 SR (NSW) 331 …. 12.54 Cox v Bath (1893) 14 LR (NSW) 263 …. 2.63 — v Bishop (1857) 8 De GM & G 815 …. 11.51 — v Colossal Cavern Co, 276 SW 540 (1925) …. 5.85 Crabb v Arun District Council [1976] Ch 179 …. 6.39, 12.17 Craig v Green and Huggins (RTT 97/008879) …. 11.118 Craigie & Harley v Kemp [2016] WASC 243 …. 9.32 Cram Foundation v Corbett-Jones [2006] NSWSC 495 …. 3.82, 3.115, 10.54 Crate v Miller [1947] KB 946 …. 11.11 Cray v Willis (1729) 2 P Wms 528 …. 9.25 Credit Connect v Carney [2010] NSWSC 910 …. 4.34, 14.36 Creer v P & O Lines of Australia (1971) 125 CLR 84 …. 11.43 Cresdon v Chan Pty Ltd (1989) 64 ALJR 111 …. 8.128

Crest Nicholson Residential (South) Ltd v McAllister [2004] 1 WLR 2409 …. 13.4 Critchley v Collins [2004] SASC 10 …. 8.78 Croft v Kennaugh [1945] VLR 40 …. 14.54 Crook v Consumer, Trader and Tenancy Tribunal (2003) 59 NSWLR 300 …. 11.125 Crosbie-Hill v Sayer [1908] 1 Ch 866 …. 14.77 Crow v Wood [1971] 1 QB 77 …. 12.41 Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd [2016] HCA 2016 …. 11.7 Cruse v Mount [1933] Ch 278 …. 11.25 Cuckmere Brick Co Ltd v Mutual Finance Ltd [1971] Ch 949 …. 14.101, 14.111 Cumerlong Holdings Pty Ltd v Dalcross Properties Pty Ltd [2011] HCA 27 …. 13.50 Cunningham v Commonwealth of Australia [2016] HCA 39 …. 1.73 — v Moody (1748) 1 Ves Sen 174 …. 3.102 — v National Australia Bank Ltd (1987) ATPR ¶40–826 …. 14.115 Cure v Bridge Housing Ltd [2014] NSWCATAP 80 …. 11.125 Currumbin Investments Pty Ltd v Body Corp Mitchell Park Parkwood CTS [2012] 2 Qd R 511 …. 12.36 Curryer’s Will Trusts [1938] Ch 952 …. 10.32 Cuzeno Pty Ltd v The Owners — Strata Plan 65870 [2013] NSWSC 1385 …. 12.26

D D v W [2011] SADC 151 …. 9.58 Dabbs v Seaman (1925) 36 CLR 538 …. 12.31, 12.54 Dale v Moses [2007] FCAFC 82 …. 4.17

Dalegrove Pty Ltd v Isles Parking Station Pty Ltd (1988) 12 NSWLR 546 …. 11.54, 11.56 Dally-Watkins, Ex parte; Re Wilson (1955) 72 WN (NSW) 454 …. 14.88 Dalton v Angus (1881) 6 App Cas 740 …. 12.10 — v Ellis; Estate of Bristow (2005) 65 NSWLR 134 …. 13.10 — v Henry Angus & Co (1881) 6 App Cas 740 …. 12.11, 12.33, 12.40 Damdounis v Recorder of Titles (Tas) 2002 11 Tas R 185 …. 8.159 Daniels v Davison (1809) 16 Ves 249; 33 ER 978 …. 7.19 Daniher v Fitzgerald (1919) 19 SR (NSW) 260 …. 14.58 Darby v Harris (1841) 1 QB 895 …. 2.26 Darbyshire v Darbyshire (1905) 2 CLR 787 …. 7.38 Darcey v Pre-Term Foundation Clinic [1983] 2 NSWLR 497 …. 2.39 Dare v Heathcote (1856) 25 LJ Ex 245 …. 12.33 D’Arcy v Burelli Investments Pty Ltd (1987) 8 NSWLR 317 …. 2.28 Dashwood v Magniac [1891] 3 Ch 306 …. 3.52 Daulia Ltd v Four Millbank Nominees Ltd [1978] 1 Ch 231 …. 6.9 Davey v Durrant (1857) 1 De G & J 535; 44 ER 830 …. 14.98 David Blackstone Ltd v Burnetts (West End) Ltd [1973] 1 WLR 1487 …. 11.66 David Jones Ltd v Leventhal (1927) 40 CLR 357 …. 11.23 David Securities Pty Ltd v Commonwealth Bank of Australia (1990) 93 ALR 271 …. 14.32 Davies v Bennison (1927) 22 Tas LR 52 …. 2.8 — v Ryan [1951] VLR 283 …. 8.26 — v Williams (1851) 16 QB 546 …. 12.43 Davis v Commonwealth (1988) 166 CLR 79; 82 ALR 633 …. 1.5, 1.74, 1.75, 1.76 — v Symons [1934] Ch 442 …. 14.25

— v Town Properties Investment Corp Ltd [1903] 1 Ch 797 …. 11.52 Davison’s Settlement, Re [1913] 2 Ch 498 …. 3.65 Dawes v Hawkins [1860] EngR 968; (1860) 8 CB NS 848; 141 ER 1399 …. 5.74 De Campo Holdings Pty Ltd v Cianciullo [1977] WAR 56 …. 9.63 De Rose v South Australia [2013] FCA 988 …. 4.70 — v — (No 2) (2005) 145 FCR 290; [2005] FCAFC 110 …. 4.23, 4.27, 4.58 Deacon v South-Eastern Railway (1889) 61 LT 377 …. 12.29 Dearle v Hall (1823) 3 Russ 1; 38 ER 475 …. 14.52 Debney, Re (1959) 60 SR (NSW) 471 …. 9.64 Debney v Semerdziev [1982] 2 NSWLR 391 …. 14.126 Dee Trading Co Pty Ltd v Baldwin [1938] VLR 173 …. 2.60 Delehunt v Carmody (1986) 161 CLR 464 …. 9.15, 9.22 Delgamuukw v British Columbia (1993) 104 DLR (4th) 470 …. 4.58 — v — [1998] 1 CNLR 14 …. 4.36, 4.43 Delohery v Permanent Trustee Co of New South Wales (1904) 1 CLR 283 …. 12.32 Dendy v Nicholl (1858) 4 CB (NS) 376 …. 11.66 Dennis v McDonald [1982] 1 All ER 590 …. 9.54, 9.58 Deputy Commissioner of Taxation (Vic) v General Credits Ltd (1983) 82 ALR 101 …. 14.50 Dewhirst v Edwards [1983] 1 NSWLR 34 …. 12.33, 12.50, 12.51, 12.53 Diemasters Pty Ltd v Meadowcorp Pty Ltd (2001) 52 NSWLR 572 …. 9.23 Diera Pty Ltd v Grover (1990) ASC 55-974 …. 14.92 Dillon v Nash [1950] VLR 293 …. 11.35 Dillwyn v Llewellyn (1862) 4 De GF & J 517; 45 ER 1285 …. 6.38 Dimmick v Pearce Investments Pty Ltd (1980) 43 FLR 235 …. 14.109 Dinsdale v Arthur [2006] NSWSC 809 …. 6.29

Direct Food Supplies (Victoria) Pty Ltd v DLV Pty Ltd [1975] VR 358 …. 11.71 Director of Public Prosecutions for Victoria v Le (2007) 232 CLR 562 …. 9.3 Djaigween v Douglas (1994) 48 FCR 535 …. 4.84 DKLR Holding Co (No 2) Pty Ltd v Comr of Stamp Duties (NSW) (1982) 149 CLR 431 …. 9.40 Dobbie v Davidson (1991) 23 NSWLR 625 …. 8.55, 12.33, 12.48, 12.51, 12.70 Dockray v Chick [2010] TASSC 32 …. 12.33, 12.52 Dockrill v Cavanagh (1944) 45 SR (NSW) 78 …. 3.59, 11.6, 11.8, 11.13, 11.15 Doe d Carter v Barnard (1849) 13 QB 945; 116 ER 1524 …. 5.32, 5.47, 5.48 Doe d Garnons v Knight (1826) 5 B & C 671 …. 6.5 Doe d Lockwood v Clarke & Brown (1807) 103 ER 313 …. 11.4 Dogan v Morton (1935) 35 SR (NSW) 142 …. 11.64 Doherty v Allman (1878) 3 App Cas 709 …. 3.53 Dolphin’s Conveyance, Re [1970] Ch 654 …. 13.31, 13.32, 13.33 Donald v Suckling (1866) LR 1 QB 585 …. 2.58 Doodeward v Spence (1908) 6 CLR 406 …. 1.63, 1.64, 1.65 Dorman v Rogers (1982) 148 CLR 365 …. 1.72, 1.73 Double Bay Newspapers Pty Ltd v A W Holdings Pty Ltd (1996) 42 NSWLR 409 …. 7.35, 8.164, 8.165 Dowdle v Inverell Shire Council (1998) 9 BPR 17,349 …. 8.151 Downsview Nominees Ltd v First City Corp Ltd [1993] 2 WLR 86 …. 14.66, 14.102 Dowse v Wynyard Holdings Ltd [1962] NSWR 252 …. 11.35 Dresdner v Scida (2003) 12 BPR 22,629 …. 12.23, 12.39 Drulroad Pty Ltd v Gibson (1992) 5 BPR 11,878; NSW ConvR ¶55-637 ….

8.172, 8.181, 14.16 Ducker v Smith [2011] NSWCA 212 …. 9.58 Dugdale, Re (1888) LR 20 Eq 186 …. 3.91 Duke of Norfolk’s Case (1682) 3 Ch Cas 1; 22 ER 931 …. 10.5 Dullow v Dullow (1985) 3 NSWLR 531 …. 6.30, 6.54 Duncan v Cliftonville Estates Pty Ltd (2001) 10 BPR 19,127 …. 12.7 — v Louch (1845) 6 QB 904 …. 12.37 — v McDonald [1997] 3 NZLR 669 …. 8.37, 8.57 Duncliffe v Caerfelin Properties Ltd [1989] 2 EGLR 38 …. 11.56 Durian (Holdings) Pty Ltd v Cavacourt Pty Ltd (2000) NSW ConvR ¶55933; 10 BPR 18,099 …. 12.60, 12.61 Dyce v Lady James Hay (1852) 1 Macq 305 …. 12.7 Dykes v Gerke [1963] NSWR 721 …. 11.76

E E R Ives Investment Ltd v High [1967] 2 QB 379; [1967] 1 All ER 504 …. 6.40, 6.44, 13.14 E S & A Bank v Phillips (1937) 57 CLR 302 …. 14.18 Eade v Vogiazopoulos [1993] 3 VR 889 …. 8.32 Eagling v Gardner [1970] 2 All ER 838 …. 13.33 Earl Bathurst v Fine [1974] 2 All ER 1160 …. 11.72 Earl de la Warr v Miles (1881) 17 Ch D 535 …. 12.68 Eatock v Bolt (2011) 197 FCR 261 …. 4.17 Eaton v Swansea Waterworks Co (1851) 17 QB 267 …. 12.33 Ecclesiastical Commissioners for England’s Conveyance, Re [1936] Ch 430 …. 13.10 Eddowes, Re [1991] 2 Qd R 381 …. 12.5 Edgington v Clark [1964] 1 QB 367 …. 5.141, 5.142

Edward Kazas & Associates Pty Ltd v Multiplex (Mountain Street) Pty Ltd (2002) 11 BPR 20,353 …. 11.24, 11.35 Edwards; Re the Estate of Edwards [2011] NSWSC 478 …. 1.65 Edwards v Amos (1945) 62 WN (NSW) 204 …. 2.55 — v Sims 24 SW 2d 619 (Ky 1929) …. 2.10 Effeney v Millar Investments Pty Ltd [2011] NSWSC 708 …. 12.62 Elderly Citizens Homes of SA Inc v Balnaves (1998) 72 SASR 210 …. 8.140, 8.168 Elfar v Registrar General of New South Wales [2010] NSWSC 539 …. 8.191, 8.193 Elitestone Ltd v Morris [1997] 1 WLR 687 …. 2.21 Elizabeth Bay Road Pty Ltd v The Owners — Strata Plan No 73943 (2014) 88 NSWLR 488 …. 9.111 Ellaway v Lawson [2006] QSC 170 …. 3.93 Ellenborough Park, Re [1956] Ch 131 …. 12.3, 12.5, 12.7, 12.9 Elliot, Re (1886) 7 LR (NSW) 271 …. 8.145 Elliott v Bishop (1854) 10 Exch 496; 156 ER 534 …. 2.26 — v Boynton [1924] 1 Ch 236 …. 11.68 — v Renner [1923] St R Qd 172 …. 12.36 Ellis v City Women’s Hostel (RTT 97/022789) …. 11.92, 11.129 — v Lambeth LBC (2000) 32 HLR 596 …., 5.85 — v Loftus Iron Co (1874) LR 10 CP 10 …. 2.8 Ellison v Alliance Acceptance Ltd (1984) NSW ConvR ¶55–217 …. 14.116 — v O’Neill [1968] 2 NSWR 246 …. 13.6 Elliston v Reacher [1908] 2 Ch 374 …. 13.31, 13.32 Elroa Nominees Pty Ltd v Registrar of Titles [2003] QCA 165 …. 2.15 Elsom & Taylor-Parker v Coroneos [2016] NSWCATCD 47 …. 11.118 Elwes v Brigg Gas Co (1886) 33 Ch D 562 …. 2.66

— v Maw (1802) 3 East 38; 102 ER 510 …. 2.29 Elwin v Monash (1879) 2 SCR (NSW) Eq 57 …. 8.145 Emerald Securities Pty Ltd v Tee Zed Enterprises Pty Ltd (1981) 28 SASR 214 …. 14.118 Eng Mee Yong v Letchumanan [1980] AC 331 …. 8.151 Enkelmann v Glissan (1982) 2 BPR 9640 …. 11.6, 11.8 Epic Feast Pty Ltd v Mawson KLM Holdings Pty Ltd (1998) 71 SASR 161 …. 14.31 Equiticorp Industries Group Ltd v R [1996] 3 NZLR 586 …. 8.103 Equititrust Ltd v Franks (2009) 258 ALR 388 …. 9.20 ER Ives Investment Ltd v High [1967] 2 QB 379 …. 12.17 Errington v Errington [1952] 1 KB 290 …. 11.5 Esber v Kimberley Securities Ltd [2009] NSWSC 1422 …. 4.124, 4.125 Essex County Roman Catholic Separate School Board and Antaya, Re (1977) 80 DLR (3d) 405 …. 10.38 Esso Petroleum Co Ltd v Harper’s Garage (Stourport) Ltd [1968] AC 269 …. 14.28 Estate Late Chow Cho-Poon, Re; Application for Judicial Advice [2013] NSWSC 844 …. 10.18, 10.44 Estate of K, Re (1996) Tas R 365 …. 10.26 Estate of Novosadek, Re [2016] NSWSC 554 …. 9.51 Eudunda Farmers’ Co-operative Society Ltd v Mattiske [1920] SASR 309 …. 8.146 Evanel Pty Ltd v Nelson (1995) 39 NSWLR 209 …. 12.9 Evans v Bicknell (1801) 6 Ves 174 …. 7.7 — v Cornish Nominees Pty Ltd (2009) 14 BPR 27,257 …. 12.34 — v Miller [2011] WASCA 89 …. 13.41 — v Walker (1876) 3 Ch D 211 …. 10.12

Everett v Bayliss (1881) 2 LR (NSW) (Eq) 66 …. 14.44 Expo International Pty Ltd v Chant [1979] 2 NSWLR 820 …. 14.66, 14.106

F FAI Insurance Ltd v Pioneer Concrete Services Ltd (1987) 15 NSWLR 552 …. 8.168 Fairclough v Swan Brewery Co Ltd [1912] AC 565 …. 14.24, 14.25, 14.31 Fairweather v St Marylebone Property Co Ltd [1963] AC 510 …. 5.145 Falloon v Madden; Madden v Madden [2012] NSWSC 652 …. 9.22 Fanigun Pty Ltd v Woolworths Ltd [2006] ANZ ConvR 196 …. 12.36 Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 …. 8.66, 8.104, 8.125 Farmer v Francis (1824) 2 Bing 151; (1826) 2 S & St 505 …. 10.14 Farrand v Yorkshire Banking Co (1888) 40 Ch D 182 …. 7.28 Farrar v Farrars Ltd (1888) 40 Ch D 395 …. 14.97 Farrow Mortgage Services Pty Ltd v Ragata Developments Pty Ltd (1993) 32 NSWLR 333 …. 14.91 Fast Funds Pty Ltd v Coppola; Coppola v Hall [2010] NSWSC 470 …. 14.36 Federated Homes Ltd v Mill Lodge Properties Ltd [1980] 1 All ER 371 …. 13.4, 13.5 Fejo v Northern Territory (1998) 195 CLR 96; 156 ALR 721 …. 3.2, 4.54, 4.56, 4.58, 4.61, 4.76 Fennings v Lord Grenville (1808) 1 Taunt 245; 127 ER 825 …. 5.29 Ferella v Otvosi (2004) 12 BPR 22,191 …. 13.34 Ferguson v Miller [1978] 1 NZLR 819 …. 9.54 — v Registrar of Titles [1919] VLR 509 …. 5.145 Fernandes v Houstein (1963) 4 FLR 355 …. 8.145 Ferrari v Beccaris [1979] 2 NSWLR 181 …. 9.65

Field v Barkworth [1986] 1 WLR 137 …. 11.42 Finlay v R & I Bank of Western Australia Ltd (1993) NSW ConvR ¶55-686 …. 8.181 Finucane v Registrar of Titles [1902] St R Qd 75 …. 8.184 Firth v Halloran (1926) 38 CLR 261 …. 11.77 Flack v Chairperson, National Crime Authority (1997) 150 ALR 153 …. 2.67 Florgale Uniforms Pty Ltd (rec & mgr apptd) (in liq) v Orders (2004) 11 VR 54 …. 14.106 FNCB-Waltons Finance Pty Ltd v Crest Realty Pty Ltd (1987) 10 NSWLR 621 …. 14.78 Ford v Perpetual Trustees Victoria Ltd [2009] NSWCA 186 …. 14.35 Forestview Nominees Pty Ltd v Perpetual Trustees WA Ltd (1998) 193 CLR 154 …. 13.4, 13.5, 13.26 Forgeard v Shanahan (1994) 35 NSWLR 206 …. 9.57, 9.58, 9.59, 9.60, 9.63, 9.132, 9.133 Formby v Barker [1903] 2 Ch 539 …. 13.28 Forrest Trust; Trustees, Executors and Agency Co Ltd v Anson, Re [1953] VLR 246 at 250 …. 9.38 Forster v Finance Corp of Australia Ltd [1980] VR 63 …. 14.96 Forsyth v Blundell (1973) 129 CLR 477 …. 14.19, 14.104, 14.116, 14.117, 14.118, 14.120, 14.121, 14.122 Forte-Senes Hotels Pty Ltd v Austcorp No 473 Pty Ltd (2004) NSW ConvR ¶56-095 …. 11.76 Foster v Mountford (1976) 14 ALR 71 …. 1.71 Fouldes v Willoughby (1841) 8 M & W 540 …. 2.50 — v — (1848) 8 M&W 438 …. 2.49 Four Maids Ltd v Dudley Marshall (Properties) Ltd [1957] Ch 317 …. 14.49 Four Oaks Enterprises Pty Ltd v Clark [2002] ANZ ConvR 440 …. 8.159 Fowley Marine (Emsworth) Ltd v Gafford [1967] 2 QB 808 …. 5.118

Francis v Francis [2009] SASC 363 …. 9.63 Francis Jackson Developments Ltd v Stemp [1943] 2 All ER 601 …. 11.16 Franklin, Re [2009] VSC 496 …. 5.127, 9.9 Fraser v Canterbury Diocesan Board of Finance [2001] Ch 669 …. 3.82 Frasers Lorne Pty Ltd v Joyce Goldsworthy Burke [2008] NSWSC 743 …. 12.61, 12.63, 13.49, 13.50 Frazer v Walker [1967] 1 AC 569; 1 All ER 649 …. 8.27, 8.29, 8.31, 8.44, 8.92, 8.118, 8.124, 8.202 Freed v Taffel [1984] 2 NSWLR 322 …. 9.41 Freemasons Hospital v Attorney General (Vic) [2010] VSC 273 …. 10.54 French v Barcham [2009] 1 All ER 145 …. 9.58 Frieze v Unger [1960] VR 230 …. 9.39, 9.54 Frost, Re (1889) 43 Ch D 246 …. 10.10 Fuentes v Bondi Beachside Pty Ltd [2016] NSWSC 531 …. 6.19 Fuller v De Rose [2006] HCA Trans 49 …. 4.23 — v Goodwin (1865) 4 SCR (NSW) 66 …. 7.38, 7.41 Furdson v Clogg (1842) 10 M & W 572; 152 ER 599 …. 5.142 Fyvie v Anand (1994) BPR 13,743 …. 12.11

G G J Coles & Co Pty Ltd v Commissioner of Taxation (1975) 49 ALJR 188 …. 11.41 Gage v Bulkeley (Packington’s Case) (1744) 3 Atk 215; 26 ER 925 …. 3.54 Gaite’s Will Trusts, Re [1949] 1 All ER 459; (1949) 65 TLR 194 …. 10.31 Gallagher, Ex parte (1908) 8 SR (NSW) 230 …. 8.23 Gallagher v Rainbow (1994) 179 CLR 624 …. 12.5, 12.36 Garcia v National Australia Bank Ltd (1993) 5 BPR 11,996; (1993) NSW ConvR ¶55–662 …. 14.41

— v — (1998) 194 CLR 395 …. 14.41 Gardener v Lewis [1998] 1 WLR 1535 …. 8.87 Garfitt v Allen (1888) 37 Ch D 48 …. 14.51 Garland v Brown (1864) 10 LT 292 …. 10.34 Garofano v Reliance Finance Corp Pty Ltd (1992) NSW ConvR ¶55-640 …. 8.31, 8.93, 8.100 Garrard v Frankel (1862) 30 Beav 445 …. 7.33 Gartner v Kidman (1961-62) 108 CLR 12 …. 3.6 Gazebo Penthouse Pty Ltd v Owners Corporation SP 73943 [2015] NSWCATCD 93 …. 9.110 General Credits Ltd v Southern Goldfields Ltd (1991) ANZ ConvR 40 …. 14.113 George v Commercial Union Assurance Co of Australia Ltd (1977) 1 BPR 9649 …. 14.118 George Wimpey & Co Ltd v Sohn [1967] Ch 487; [1966] 1 All ER 232 …. 5.110, 5.113, 5.118 Georgeski v Owners Corp SP49833 (2004) 62 NSWLR 534 …. 1.58, 2.33 Georgiadis v Australia and Overseas Telecommunications Corp (1994) 179 CLR 297; 119 ALR 629 …. 4.50 Gerhardy v Brown (1985) 159 CLR 70 …. 4.13 Gerraty v McGavin (1914) 18 CLR 152 …. 11.64 Gibbs v Messer [1891] AC 248 …. 8.22, 8.26, 8.27, 8.31, 8.33 Gibson v Co-ordinated Building Services Pty Ltd (1989) 4 BPR 9630 …. 8.151 — v Holland (1865) LR 1 CP 1 …. 6.8 Gifford v Lord Yarborough (1828) 5 Bing 163; 130 ER 1023 …. 2.15 Gilbert v Spoor [1983] Ch 27 …. 13.49 Gill v Lewis [1956] 2 QB 1 …. 11.71 Ginelle Finance Pty Ltd v Diakakis (2002) 12 BPR 22,137 …. 8.98

Ginger Development Enterprises Pty Ltd v Crown Developments Australia Pty Ltd [2003] NSWCA 296 …. 8.137 Gissing v Gissing [1971] AC 886 …. 6.32 Gissing and Sheffield [2012] FMCAfam 111 …. 6.51 Gittany v McDowell (2009) 14 BPR 26,803 …. 12.34 Giumelli v Giumelli (1999) 186 CLR 101 …. 6.31, 6.42 Glass v Hollander (1935) 35 SR (NSW) 304 …. 2.49 GMS Syndicate Ltd v Garry Elliott Ltd [1982] Ch 1 …. 11.71 Godwin v Francis (1870) LR 5 CP 295 …. 6.8 Golden Mile Property Investments Pty Ltd (In Liq) v Cudgegong Australia Pty Ltd (2015) 89 NSWLR 237 …. 6.19 Goodright d Humphreys v Moses (1774) 2 Wm B1 …. 7.11 Goodwin v Papadopoulos (1985) NSW ConvR ¶55-256 …. 12.50 Gordon v Lidcombe Developments Pty Ltd [1966] 2 NSWR 9 …. 11.24 Gorman, Re [1990] 1 All ER 717 …. 9.57, 9.59 Gough v Wood [1894] 1 QB 713 …. 14.63 Gould v Kemp (1834) 2 My & K 304; 39 ER 959 …. 9.8 Govindan-Lee v Sawkins [2016] NSWSC 328 …. 12.34 Goyal v Chandra [2006] NSWSC 239 …. 9.35 Graham v KD Morris & Sons Pty Ltd [1974] Qd R 1 …. 2.8 — v Markets Hotel Pty Ltd (1943) 67 CLR 567 …. 11.39 — v Peat (1801) 1 East 244; 102 ER 95 …. 2.34 — v Philcox [1984] QB 747 …. 12.57 Granada Theatres Ltd v Freehold Investment (Leytonstone) Ltd [1959] Ch 592 …. 11.56 Grant v NZMC Ltd [1989] 1 NZLR 8 …. 11.82 — v Preece [2012] VSC 55 …. 13.49

— v YYH Holdings Pty Ltd [2012] NSWCA 360 …. 2.51 Grave v Wharton (1879) 5 VLR 97 …. 5.143 Great Western Railway Co v Smith (1875) 2 Ch D 235 …. 11.74 Greenfield v Greenfield (1979) 38 P & CR 570 …. 9.46 Greenwood Village Pty Ltd v Tom the Cheap (WA) Pty Ltd [1976] WAR 49 …. 11.71 Greita Sebea v Territory of Papua (1941) 67 CLR 544 …. 2.26 Grescot v Green (1700) 1 Salk 199 …. 11.56 Grey v Inland Revenue Commissioners [1960] AC 1; [1959] 3 All ER 603 …. 6.24 Grgic v Australia and New Zealand Banking Group Ltd (1994) 33 NSWLR 202 …. 8.46, 8.76, 8.77, 8.79, 8.92, 8.93, 8.101 Griffiths v Northern Territory of Australia (No 3) [2016] FCA 900 …. 4.56, 4.70, 4.79 Grigsby v Melville [1973] 1 All ER 385 …. 12.7 Grill v Hockey (1991) 5 BPR 11,421 …. 12.62 Grime v Owners Corporation SP 52011 (Strata & Community Schemes) [2005] NSWCTTT 202 …. 9.78 Groongal Pastoral Co Ltd v Falkiner (1924) 35 CLR 157 …. 4.76, 14.78 Grosvenor Mortgage Management Pty Ltd v Younan (NSWSC, Young J, 23 August 1990, unreported, BC9002094) …. 8.93 Grundel v Registrar-General (1990) 5 BPR 11,217 …. 3.60 — v — (1990) NSW ConvR ¶55-548 …. 11.100 Grundy v Ley [1984] 2 NSWLR 467 …. 8.44, 14.76 Guerin v R (1984) 13 DLR (4th) 321 …. 4.24 Guggenheimer v Registrar of Titles [2002] VSC 124 …. 5.95 Guler v NSW Trustee and Guardian [2012] NSWSC 1369 …. 9.51 Gumana v Northern Territory of Australia (2005) 141 FCR 457 …. 4.34

— v — [2007] FCAFC 23 …. 4.34 Gumland Property Holdings Ltd v Duffy Brothers Fruit Market (Campbelltown) Pty Ltd (2008) 234 CLR 237 …. 11.46, 11.52, 11.60, 11.61 Gurfinkel v Bentley Pty Ltd (1966) 116 CLR 98 …. 14.20, 14.69 Gyarfas v Bray (1989) 4 BPR 9736 …. 13.6

H Hahndorf Golf Club Inc v John Nitschke Nominees Pty Ltd (2003) 86 SASR 221 …. 8.38 Haji Abdul Rahman v Mahomed Hassan [1917] AC 209 …. 8.73 Halaseh v Citibank Pty Ltd (RTT 96/016769) …. 11.131 Hall v Busst (1960) 104 CLR 206 …. 10.2 Hallifax Property Corporation Pty Ltd v GIFC Ltd (1987) NSW ConvR ¶55– 361 …. 14.93, 14.95 Halsall v Brizell [1957] Ch 169 …. 13.14 Hamilton v Iredale (1903) 3 SR (NSW) 535 …. 8.87 Hamlet of Baker Lake v Minister of Indian Affairs and Northern Development (1979) 107 DLR (3rd) 513 …. 4.28 Hammond v Farrow [1904] 2 KB 332 …. 8.89 Hanbury v Jenkins [1901] 2 Ch 401 …. 12.4 Hancock v Watson [1902] AC 14 …. 10.32 Hanny v Lewis (1998) 9 BPR 16,205 …. 12.34 Hanson v Graham (1801) 6 Ves 239 …. 10.14 Hanson Construction Materials Pty Ltd v Vimwise Civil Engineering Pty Ltd [2005] NSWSC 880 …. 8.136 Harada v Registrar of Titles [1981] VR 743 …. 12.7 Harbour Estates Ltd v HSBC Bank plc [2005] 2 WLR 67 …. 13.9 Hardcastle v Hardcastle (1862) 1 H & M 405 …. 10.14

Harding, Re [1956] NZLR 482 …. 10.14 Harding v National Insurance Co (1871) 2 AJR 67 …. 2.26 Hare v Van Brugge (2013) 84 NSWLR 41 …. 12.36, 12.37, 12.45 Harmer v Jumbil (Nigeria) Tin Areas Ltd [1921] 1 Ch 200 …. 11.24 Harnett v Green (No 2) (1883) 4 LR (NSW) 292; 5 ALT 61 …. 5.86, 5.97, 5.102 Harris v Commissioner for Social Housing (2013) 8 ACTLR 98 …. 11.23 — v Flower (1904) 74 LJ Ch 127 …. 12.36 — v King (1936) 56 CLR 177 …. 10.31 — v Smith (2008) 14 BPR 26,223 …. 8.94 — v Western Australian Exim Corp (1994) 129 ALR 387 …. 14.116 Harrison v Murphy (1877) 3 VLR (E) 105 …. 6.8 Harrow London Borough Council v Qazi [2004] 1 AC 983 …. 1.77, 5.3, 5.4, 5.14 Hart’s Trusts, Re (1858) 3 De G & J 195 …. 10.14 Harvey v McWatters (1948) 49 SR (NSW) 173 …. 14.116 Haselhurst v Elliot [1945] VLR 153 …. 11.6 Haskell v Marlow [1928] 2 KB 45 …. 11.26, 11.39 Hassett v Colonial Bank of Australasia (1881) 7 VLR 380 …. 8.83 Hastie v National Australia Bank Ltd (1994) 7 BPR 15,116 …. 8.148 Hawkesbury Valley Developments Pty Ltd v Custom Credit Corp Ltd (1995) NSW ConvR ¶55–731 …. 14.106 Hawkins v Farley [1997] 2 Qd R 361 …. 2.22 Hayes v Northern Territory (1999) 97 FCR 32 …. 4.28, 4.42, 4.59, 4.66 Haynes Case (1614) 12 Co Rep 113; 77 ER 1389 …. 2.67 Hayward v Smith (1887) 9 LR (NSW) Eq 11 …. 14.22 Haywood v Brunswick Building Society (1881) 8 QBD 403 …. 13.16, 13.18 Hazlett v Presnell (1982) 43 ALR 1 …. 2.15

Healey v Hawkins [1968] 1 WLR 1967 …. 12.33 Heath v Pugh (1881) 6 QBD 345 …. 14.67 Heathe v Heathe (1740) 2 Atk 121 …. 9.13 Hedley v Roberts [1977] VR 282 …. 9.54 Hegarty v Ellis (1908) 6 CLR 264 …. 3.34 Heggies Bulkhaul Ltd v Global Minerals Australia Pty Ltd (2003) 59 NSWLR 312 …. 8.97 Heid v Reliance Finance Corp Pty Ltd (1983) 154 CLR 326 …. 7.27, 7.28, 7.29, 8.163, 8.168, 8.171 Hemmings v Stoke Poges Golf Club Ltd [1920] 1 KB 720 …. 2.37, 11.69 Henderson v Astwood [1894] AC 150 …. 14.97 Henriksen v Bilpin Inn Pty Ltd (CT, Rossiter DC, 3 May 1996, unreported) …. 11.144 Henry Roach (Petroleum) Pty Ltd v Credit House (Vic) Pty Ltd [1976] VR 309 …. 14.116 Heslop v Burns [1974] 3 All ER 406 …. 11.5 Hewitt v Loosemore (1851) 9 Hare 449 …. 7.6 Hibbert v McKiernan [1948] 2 KB 142 …. 2.67 Hickey v Powershift Tractors Pty Ltd (1999) NSW ConvR ¶55-889 …. 8.78 Hickson v Darlow (1883) 23 Ch D 690 …. 14.115 Higgs v Nassauvian Ltd [1975] AC 464 …. 5.99, 5.101 Hill v Hill (2013) 11 ASTLR 121 …. 9.51 — v Lyne (1893) 14 LR (NSW) 449 …. 2.13, 2.15 — v Transport for London [2005] 3 WLR 471 …. 5.72 — v Tupper (1863) 2 H & C 121 …. 2.33, 12.5, 12.75 Hillig v NSW Native Title Services Ltd [2006] FCA 1184 …. 4.78 Hillpalm Pty Ltd v Heaven’s Door Pty Ltd (2004) 220 CLR 472 …. 8.109, 8.111

Hilton v Gray [2007] QSC 401 …. 8.46 Hinds v Uellendahl (No 2) (1992) 112 FLR 222 …. 8.97 Hircock v Windsor Homes (Development No 3) Pty Ltd [1979] 1 NSWLR 501 …. 9.23 Hitchcock, Re (1900) 17 WN (NSW) 62 …. 8.131 Hobbs v Petersham Transport Co Pty Ltd (1971) 124 CLR 220 …. 2.46 Hobson v Gorringe [1897] 1 Ch 182 …. 2.20, 2.24, 14.63 Hockley v Rendell (1909) 11 WALR 170 …. 3.53 Hodson v Deans [1903] 2 Ch 647 …. 14.123 Hodson & Howes’ Contract, Re (1887) 35 Ch D 668 …. 14.90 Hoffman v Feinberg [1949] 1 Ch 245 …. 11.72 Hogarth v Jackson (1827) Mood & M 58; ER 1080 …. 5.29 Holden v Blaiklock [1974] 2 NSWLR 262 …. 11.64 Holland, Re; Ex parte Official Trustee in Bankruptcy (1985) 5 FCR 165 …. 9.52 Holland v Hodgson (1872) LR 7 CP 328 …. 2.18, 2.19 Hollins v Fowler (1875) LR 7 HL 757 …. 2.49, 2.59 Hollis’ Hospital and Hague’s Contract, Re [1899] 2 Ch 540 …. 10.38 Hong Kong and Shanghai Banking Corp v Kloekner & Co AG [1989] 3 All ER 513 …. 11.82 Hooker Industrial Developments Pty Ltd v Trustees of the Christian Brothers [1977] 2 NSWLR 109 …. 6.5 Hoole v Smith (1881) 17 Ch D 434 …. 14.86 Hopkins v Worcester and Birmingham Canal Proprietors (1869) LR 6 Eq 437 …. 14.46 Hopkinson v Rolt (1861) 9 HL Cas 514; 11 ER 829 …. 14.18, 14.137 Hopper v Liverpool Corp (1944) 88 Sol J 213 …. 10.54 Hornsby Council v Roads and Traffic Authority (1997) 41 NSWLR 15 ….

12.73 Horsey Estate Ltd v Steiger & Petrifite Company Ltd [1899] 2 QB 79 …. 11.64 Horvath v Commonwealth Bank of Australia [1999] 1 VR 643 …. 8.93 Hosking v Haas [2009] NSWSC 1328 …. 13.33 — v — [2009] NSWSC 624 …. 13.20 — v — (No 2) [2009] NSWSC 1328 …. 13.20, 13.37 — v Smith (1888) 13 App Cas 582 …. 14.77 Hospital Products v United States Surgical Corp (1984) 156 CLR 41 …. 6.31 Houghland v R R Low (Luxury Coaches) Ltd [1962] 1 QB 694; [1962] 2 All ER 159 …. 2.48 Houghton v Immer (No 155) Pty Ltd (1997) 44 NSWLR 46 …. 9.76, 9.110 Howard v Shaw (1841) 8 M & W 118 …. 11.16 Hoyle, Re; Hoyle v Hoyle [1893] 1 Ch 84 …. 6.8 Hudson v Cripps [1896] 1 Ch 265 …. 11.23 Hughes v Griffin [1969] 1 WLR 23 …. 5.87, 5.88 Hulme v Schaecken [1999] NSWSC 1291 …. 9.31 Hume, Re [1912] 1 Ch 693 …. 10.14 Hunt v Luck [1902] 1 Ch 428 …. 7.19, 8.89 Hunter v Canary Wharf Ltd [1997] AC 655 …. 12.7 — v Hunter [1936] AC 222 …. 14.84 Hunter’s Lease, Re [1942] Ch 124 …. 11.46, 11.53, 11.56 Hussey v Palmer [1972] 1 WLR 1286; [1972] 3 All ER 744 …. 6.32, 6.33 Hycenko v Hrycenko [2016] VSC 247 …. 9.45 Hyde v Pearce [1982] 1 WLR 560 …. 5.90, 5.131 — v Pimley [1952] 2 QB 506 …. 11.42 Hyman v Rose [1912] AC 623 …. 11.72

Hypec Electronics Pty Ltd (in liq) v Registrar-General (2005) 64 NSWLR 679 …. 8.16, 8.18

I IAC (Finance) Pty Ltd v Courtenay (1963) 110 CLR 550 …. 8.90, 8.173, 8.174, 5.178, 5.179, 5.180 ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR 140 …. 1.4 Imray v Oakshette [1897] 2 QB 218 …. 11.74 Industrial Properties (Barton Hill) Ltd v Associated Electrical Industries Ltd [1977] QB 580 …. 11.18, 11.18 Inglis v Commonwealth Trading Bank of Australia (1972) 126 CLR 161 …. 14.115 Ingram v Mohren (1993) 10 WAR 497 …. 14.47 Inkhorn Pty Ltd v Herbert [2000] WASCA 333 …. 14.106 International Drilling Fluids Ltd v Louisville Investments (Uxbridge) Ltd [1986] 1 Ch 513 …. 11.43 International Factors v Rodriguez [1979] QB 351 …. 2.57 International Tea Stores Co v Hobbs [1903] 2 Ch 165 …. 12.36 Inwards v Baker [1965] 2 QB 29 …. 6.38, 6.44 Ironside v Cook (1981) 41 P & CR 326 …. 12.33 Italian Forum Limited v Owners — Strata Plan 60919 [2012] NSWSC 895 …. 9.108

J J & H Just (Holdings) Pty Ltd v Bank of New South Wales (1969) 90 WN (Pt 1) (NSW) 571 …. 8.167 — v — (1970) 92 WN (NSW) 803 …. 8.168 — v — (1971) 125 CLR 546 …. 8.138, 8.165, 8.167, 8.181, 8.182, 14.19 J A McBeath Nominees Pty Ltd v Jenkins Development Corp Pty Ltd [1992]

2 Qd R 121 …. 11.43 J C Berndt Pty Ltd v Walsh [1969] SASR 34 …. 11.23 J C Williamson Ltd v Lukey (1931) 45 CLR 282 …. 6.11 JA Pye (Oxford) Ltd v Graham [2000] 3 WLR 242 …. 5.59 — v — [2003] 1 AC 419; [2002] UKHL 30 …. 5.9, 5.14, 5.51, 5.59, 5.61, 5.62, 5.81, 5.82, 5.83, 5.94, 5.100, 5.106, 5.107, 5.108, 5.112, 5.114, 5.117, 5.124, 5.159 JA Pye (Oxford) Ltd v United Kingdom (2006) 43 EHRR 3; [2005] ECHR 921 …. 5.14, 5.60, 5.62, 5.63, 5.159 — v — (2008) 46 EHRR 45 …. 5.60, 5.62, 5.66, 5.69, 5.106 Jackson, Ex parte; Re Australasian Catholic Assurance Co Ltd (1941) 41 SR (NSW) 285 …. 4.55 Jackson v Jackson (1804) 9 Ves Jun 591 …. 9.15 — v NSW Land and Housing Corporation [2014] NSWCATAP 22 …. 11.130 Jacobs v Platt Nominees Pty Ltd [1990] VR 146 …. 8.168 Jaggard v Sawyer [1995] 1 WLR 269 …. 2.8 James v Dean (1805) 11 Ves 383 …. 11.16 — v Harris (1876) 35 LT 240 …. 11.23 — v Plant (1836) 4 A & E 749 …. 12.58 — v Registrar-General (1967) 69 SR (NSW) 361 …. 8.118, 12.50, 12.70 — v Stevenson [1893] AC 162 …. 8.55, 12.70 Jango v Northern Territory of Australia (2006) 152 FCR 150 …. 4.32, 4.70 — v — (2007) 159 FCR 531 …. 4.32, 4.70 Jea Holdings (Aust) Pty Ltd v Registrar-General (NSW) [2013] NSWSC 587 …. 12.7 Jee v Audley (1787) 1 Cox Eq Cas 324; 29 ER 1186 …. 10.31 Jeffries v Great Western Railway Co (1856) 5 E & B 802; 119 ER 680 …. 2.42, 2.55, 2.56

Jelbert v Davis [1968] 1 WLR 589 …. 12.38, 12.57 Jellicoe v Wellington Loan Co (1886) 4 NZLR 330 …. 14.55 Jenkins v Jones (1860) 2 Giff 99; 66 ER 43 …. 14.121 Jensen v Guigni (1994) 6 BPR 13,667 …. 8.137 — v Hawksley [1955] VLR 470 …. 7.21 Jeogla Pty Ltd v ANZ Banking Group Ltd (1999) 150 FLR 359; [1999] NSWSC 563 …. 14.143 Jessica Holdings Pty Ltd v Anglican Property Trust Diocese of Sydney (1992) 27 NSWLR 140 …. 8.136 Jin v Yang [2008] NSWSC 754 …. 8.105 John Alexander’s Clubs v White City Tennis Club (2010) 241 CLR 1 …. 8.172 John F Goulding Pty Ltd v Victorian Railways Commissioners (1932) 48 CLR 157 …. 2.51 Johnson, Ex parte; Re Whyte (1868) 5 WW & A’B (L) 55 …. 12.4 Johnson v McIntosh 8 Wheat 543 (1823) …. 4.13 Johnson Matthey (Aust) Ltd v Dascorp Pty Ltd (2003) 9 VR 171 …. 2.49 Jonah and White [2011] FamCA 22 …. 6.51 Jones v Baker (2002) 10 BPR 19,115 …. 8.136 — v Bartlett (2000) 205 CLR 166 …. 11.37, 11.109 — v Chappell (1875) LR 20 Eq 539 …. 3.53 — v Collins (1891) 12 LR (NSW) L 247 …. 7.39 — v Lavington [1903] 1 KB 253 …. 11.23 — v Lock (1865) 1 Ch App 25 …. 6.45 — v Mackilwain (1826) 1 Russ 220 …. 10.14 — v Pritchard [1908] 1 Ch 630 …. 12.30 Jonray (Sydney) v Partridge Bros Pty Ltd (1969) 89 WN (Pt 1) (NSW) 568 …. 8.174, 8.176, 8.177, 8.181

Jonton Pty Ltd, Re [1992] 1 Qd R 105 …. 7.45 Jorss’ Caveat, Re [1982] Qd R 458 …. 8.151 Jourdain v Wilson [1821] 4 B & Ald 266 …. 11.46 JS and GP, Re (2006) 35 Fam L R 88 …. 6.24 Jurd v Public Trustee [2001] NSWSC 632 …. 6.48

K Kaizen Global Investments Ltd v Australia New Agribusiness & Chemical Group Ltd (in liq), Re [2017] FCA 431 …. 14.5 Karacominakis v Big Country Developments Pty Ltd (2000) 10 BPR 18,235 …. 8.46, 8.57, 11.51, 11.55 Karaggianis v Malltown Pty Ltd (1979) 21 SASR 381 …. 11.35 Karamihos v Bendigo and Adelaide Bank Ltd [2013] NSWSC 172 …. 14.36 Karpany v Dietman (2013) 252 CLR 507 …. 4.34, 4.57 Katakouzinos v Roufir Pty Ltd (1999) 9 BPR 17,303 …. 12.34 Kater v Kater (No 3) [1964] NSWR 987 …. 11.95 Kay v Lambeth London Borough Council [2004] 3 WLR 1396 …. 11.5 — v Lambeth London Borough Council; Leeds City Council v Price [2006] 2 AC 465 …. 1.77 Kay’s Leasing Corporation Pty Ltd v CSR Provident Fund Nominees Pty Ltd [1962] VR 429 …. 14.96 Kebewar Pty Ltd v Harkin (1987) 9 NSWLR 738 …. 12.51 Keeves v Dean [1924] 1 KB 685 …. 11.41 Kelly, Re [1932] IR 255 …. 10.28, 10.29 Kelsen v Imperial Tobacco Co Ltd [1957] 2 QB 334 …. 2.8 Kemp v Lumeah Investments Pty Ltd (1984) NSW ConvR ¶55-162 …. 11.64 Kennard v AGC (Advances) Ltd (1987) V ConvR 54-210 …. 4.34

Kennedy v De Trafford [1897] AC 180 …. 14.103, 14.104 — v General Credits Ltd (1982) 2 BPR 9456 …. 14.50 Kennewell v Dye [1949] Ch 517 …. 14.45 Kenny v Preen [1963] 1 QB 499 …. 11.23 Kent v Kavanagh [2007] Ch 1 …. 12.26 Kerabee Park Pty Ltd v Daley [1978] 2 NSWLR 222 …. 4.124, 8.31, 8.149, 8.151, 8.168 Kerridge v Foley (1964) 82 WN (NSW) 293 …. 13.20, 13.28, 13.45 Khattar v Wiese (2005) 12 BPR 23,235 …. 12.34 Khoury v Khouri (2006) 66 NSWLR 241 …. 6.11, 6.12, 6.23 Kierford Ridge Pty Ltd v Ward [2005] VSC 215 …. 5.82, 5.113 Killick v Second Covent Garden Property Co Ltd [1973] 1 WLR 658; [1973] 2 All ER 337 …. 11.43 Kilpatrick v Gresser (NSWSC, Foster J, 13 May 1987, unreported, BC8701375) …. 11.117 Kindervater, In the Matter of an Application by [1996] ANZ Conv Rep 331 …. 12.34 King v AGC (Advances) Ltd [1983] 2 Qd R 75 …. 8.143 King v David Allen & Sons, Billposting Ltd [1916] 2 AC 54 …. 1.58, 1.59, 12.9, 12.14, 12.65 — v New South Wales Land and Housing Corp (1992) 26 ALD 684 …. 11.129 — v Smail [1958] VR 273 …. 8.124, 8.125, 8.206 King Investment Solutions Pty Ltd v Hussain [2005] NSWSC 1076 …. 14.13, 14.18, 4.32, 14.51, 14.54 King’s Trusts, Re (1892) 29 LR Ir 401 …. 3.116 Kingswood Estate Co Ltd v Anderson [1963] 2 QB 169; [1962] 3 All ER 593 …. 11.7 Kirby v Cowderoy [1912] AC 599 …. 5.102

Kirk v Sutherland [1949] VLR 3 …. 5.145 Kirkland v Quinross Pty Ltd [2008] NSWSC 286 …. 8.116, 8.191 KJRR Pty Ltd v Commissioner of State Revenue (Vic) [1999] 2 VR 174 …. 11.5 Knightsbridge Estates Trust Ltd v Byrne [1939] Ch 441 …. 14.26 — v — [1940] AC 613 …. 14.26 Kogarah Municipal Council v Golden Paradise Corp [2005] NSWCA 230 …. 8.109, 8.112 Koorootang Nominees Pty Ltd v ANZ Banking Group Ltd [1998] 3 VR 16 …. 8.103 Korda v Australian Executor Trustees (SA) Ltd (2015) 255 CLR 62; 317 ALR 225 …. 6.20 Kowalczuk v Accom Finance (2008) 77 NSWLR 205 …. 14.35 Kravchenko v Rock Building Society [2010] ANZ Conv R 10-005 …. 14.106 Kreglinger v New Patagonia Meat and Cold Storage Co Ltd [1914] AC 25 …. 14.29, 14.31 Krey v National Australia Bank Ltd (1992) NSW ConvR ¶55–653 …. 14.92 Krolczyk v Raffan [1992] ANZ ConvR 228 …. 12.36 Kruger v Commonwealth (1997) 190 CLR 1 …. 4.35 Kumar, Re [2017] VSC 81 …. 9.8 Kumar v Dunning [1989] QB 193 …. 13.9 Kushner v Law Society [1952] 1 KB 264; [1952] 1 All ER 404 …. 11.6 Kyren Pty Ltd v Cinema Place Pty Ltd [2006] SASC 93 …. 12.36, 12.38

L La Martina v Penney [1968] SASR 411 …. 8.146 Lace v Chantler [1944] KB 368 …. 11.4 Lacon v Allen (1856) 3 Drew 579 …. 6.12

Ladies’ Hosiery & Underwear Pty Ltd v Parker [1930] 1 Ch 304 …. 11.13 Lagan Navigation Co v Lambeg Bleaching, Dyeing and Finishing Co Ltd [1927] AC 226 …. 12.43 Lake v Craddock (1732) P Wms 158 …. 9.19 Lake Macquarie City Council v Luka (1999) 9 BPR 17,481 …. 12.31, 12.54 Lakshmijit v Faiz Sherani [1974] AC 605 …. 5.90 Lam Kee Ying v Lam Shes Tong [1975] AC 247 …. 5.9 Lamiri v Aidan Nominees Pty Ltd (1987) ANZ ConvR 497 …. 11.23, 11.24 Lancaster v Lloyd (1927) 27 SR (NSW) 379 …. 12.26 Land Settlement Association Ltd v Carr [1944] 1 KB 657 …. 11.10 Landale v Menzies (1909) 9 CLR 89 …. 11.16 Lane v Capsey [1891] 3 Ch 411. 211 …. 12.43 — v Goudge (1803) 9 Ves 225 …. 10.14 Lane Cove Municipal Council v W & H Hurdis Pty Ltd (1955) SR (NSW) 434 …. 13.6 Lanyon Pty Ltd v Canberra Washed Sand Pty Ltd (1966) 115 CLR 342 …. 2.14 Lapin v Abigail (1930) 44 CLR 166 …. 7.26, 7.27, 7.28, 8.168, 14.20 Lardil Peoples v Queensland [2004] FCA 298 …. 4.34 Larke Hoskins & Co Ltd v Icher (1929) 29 SR (NSW) 142 …. 11.14 Larking v Great Western (Nepean) Gravel Ltd (in liq) (1940) 64 CLR 221 …. 11.66 Last v Rosenfeld [1972] 2 NSWLR 923 …. 6.33 Latec Investments Ltd v Hotel Terrigal Pty Ltd (in liq) (1965) 113 CLR 265 …. 7.26, 7.27, 7.33, 7.34, 7.45, 8.77, 14.19, 14.113, 14.139 Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 623 …. 11.60 Lavender v Betts [1942] 2 All ER 72 …. 11.23

Lawson v NSW Department of Housing (RTT 92/001699) …. 11.112 Lawton v Lawton (1743) 3 Atk 13 …. 2.26 Lax Kw’alaams Indian Band v Canada (Attorney-General) 2011 SCC 56 …. 4.34, 4.35 Laybutt v Amoco Australia Pty Ltd (1974) 132 CLR 57; 4 ALR 482 …. 8.145 Le v Williams [2004] NSWSC 645 …. 9.71 Leach v Thomas (1835) 7 C & P 327; 173 ER 145 …. 2.26 Lee v Blakeney (1887) 8 LR (NSW) 141 …. 2.35 Lee’s Application, Re (1996) 72 P & CR 439 …. 13.49 Leeds Industrial Co-operative Society Ltd v Slack [1924] AC 851 …. 12.45 Lee-Parker v Izzet [1971] 1 WLR 1688; [1971] 3 All ER 1099 …. 11.81 Lehrer and the Real Property Act 1900, Re (1960) 61 SR (NSW) 365 …. 8.38, 8.39 Leigh v Dickeson (1884) 15 QBD 60 …. 9.54, 9.55, 9.57, 9.58, 9.64 — v Jack (1879) 5 Ex D 264 …. 5.104, 5.105, 5.106, 5.107 — v Taylor [1902] 1 Ch 523 …. 2.19 Leitz Leeholme Stud Pty Ltd v Robinson [1977] 2 NSWLR 544 …. 11.13, 11.60 Lemmon v Webb [1895] AC 1 …. 2.8 Lend Lease Development Pty Ltd v Zemlicka (1985) 3 NSWLR 207 …. 11.24 Lennard v Jessica Estates Pty Ltd (2008) 71 NSWLR 306 …. 13.50 Lennon v Bell [2005] QSC 286 …. 9.44 Leros Pty Ltd v Terara Pty Ltd (1992) 174 CLR 407; 106 ALR 595 …. 8.31, 8.129 Leverhulme, Re [1943] 2 All ER 274 …. 10.27 Levi v Spicer (2003) 11 BPR 20,927 …. 13.50

Lewen v Dodd (1595) Cro Eli 443 …. 9.13 Lewis v Bell (1985) 1 NSWLR 731 …. 11.5 LHK Nominees v Kenworthy (2002) 26 WAR 517 …. 8.104 Li v Eliezer (NSWSC, Simpson J, 1 May 1997, unreported, BC9703051) …. 11.112 Lidsdale Nominees Pty Ltd v Elkharadly [1979] VR 84 …. 11.66 Lift Capital Partners Pty Ltd v Merrill Lynch International (2009) 73 NSWLR 404 …. 14.31 Lighting by Design (Aust) Pty Ltd v Cannington Nominees Pty Ltd [2008] WASCA 23 …. 11.16 Lissa v Cianci (1993) NSW ConvR ¶55-667 …. 8.101 Littledale v Liverpool College [1900] 1 Ch 19 …. 5.110 Liverpool City Council v Irwin [1977] AC 239 …. 11.35 Liverpool Corporation v H Coghill & Sons Ltd [1918] 1 Ch 307 …. 12.33 LJP Investments Pty Ltd v Howard Chia Investments Pty Ltd (1989) 24 NSWLR 490 …. 2.8 Lloyd v Banks (1868) 3 Ch App 488 …. 7.16 Lloyds and Scottish Trust Ltd v Britten (1982) 44 P & CR 249 …. 14.67 Lloyds Bank Ltd v Bullock [1896] 2 Ch 192 …. 7.30, 8.163 Lloyds Bank NZA v National Safety Council of Australia (1993) 115 ALR 93 …. 14.123 Lochner v New York 198 US 45 (1905) …. 1.16 Lock v Abercester Ltd [1939] Ch 861 …. 12.36 Locke v Yogoat Pty Ltd (1992) 5 BPR 11,687 …. 8.136 Logue v Shoalhaven Shire Council [1979] 1 NSWLR 537 …. 8.31, 8.92, 8.96, 8.101 Loibner v Owens [2006] NSWSC 410 …. 9.57 Loke Yew v Port Swettenham Rubber Co [1913] AC 491 …. 8.67

Lolakis v Konitsas (2002) 11 BPR 20,499 …. 12.7, 12.56 London & Blenheim Estates v Ladbroke Retail Parks Ltd [1992] 1 WLR 1278 …. 12.7 London and County (A & D) Ltd v Wilfred Sportsman Ltd [1970] 3 WLR 418 …. 11.56, 11.69 London Borough of Southwark v Williams [1971] Ch 734 …. 2.31 London County Council v Allen [1914] 3 KB 642 …. 13.2, 13.20 Lonergan v Lewis [2011] NSWSC 1133 …. 12.34 Long Leys Co Pty Ltd v Silkdale Pty Ltd (1991) 5 BPR 11,512 …. 14.56 Long v Gowlett [1923] 2 Ch 177 …. 12.27 — v Mitchie [2003] NSWSC 233 …. 12.56, 12.62 Longley v Longley (1871) LR 13 Eq 133 …. 6.27 Lord v Commissioners for the City of Sydney (1859) 12 Moo PC 473; 14 ER 991 …. 2.14 — v Price (1874) LR 9 Ex 54 …. 2.58 Lord Advocate v Lord Lovat (1880) 5 App Cas 273 …. 5.93, 5.102 Lord Waring v London and Manchester Assurance Co Ltd [1935] Ch 310 …. 14.117 Louis and the Conveyancing Act 1919, Re [1971] 1 NSWLR 164 …. 13.20, 13.28, 13.34, 13.37 Lowe v Sze Tu [2015] HCATrans 179 …. 8.125 Lowe’s Will Trusts, Re [1973] 1 WLR 882 …. 3.17 Loxton v Waterhouse (1891) 7 WN (NSW) 98 …. 2.33 Lubrano v Proprietors of Strata Plan No 4038 (1993) 6 BPR 13,308 …. 9.84 Lukacs v Wood (1978) 19 SASR 520 …. 8.96, 8.101 Luke v Luke (1936) 36 SR (NSW) 310 …. 9.58 Lumbers v W Cook Builders Pty Ltd (2008) 232 CLR 635 …. 2.30 Lyde v Russell (1830) 1 B & Ad 394; 109 ER 834 …. 2.26, 2.28

Lyons v Lyons [1967] VR 169 …. 9.38, 9.43 Lysaght v Edwards (1876) 2 Ch D 499 …. 6.14, 6.15, 6.17, 7.45, 9.30, 9.43

M Mabo v Queensland [1992] 1 Qd R 78 …. 4.14 — v Queensland (No 1) (1988) 166 CLR 186; 83 ALR 14 …. 4.23 — v Queensland (No 2) (1992) 175 CLR 1; 107 ALR 1 …. 1.8, 1.59, 1.78, 3.2, 3.5, 3.6, 3.7, 3.31, 3.33, 3.34, 3.35, 3.36, 3.37, 3.38, 3.91, 3.117, 4.1, 4.4, 4.5, 4.8, 4.9, 4.10, 4.11, 4.13, 4.14, 4.15, 4.16, 4.17, 4.18, 4.19, 4.20, 4.21, 4.22, 4.23, 4.24, 4.25, 4.26, 4.27, 4.28, 4.31, 4.33, 4.36, 4.37, 4.38, 4.39, 4.41, 4.43, 4.44, 4.47, 4.48, 4.57, 4.59, 4.61, 4.62, 4.63, 4.64, 4.66, 4.68, 4.70, 4.73, 4.74, 4.84, 5.8, 5.12, 5.29, 5.33 Macintosh v Bebarfalds Ltd (1922) 22 SR (NSW) 371 …. 3.79 Macintosh v Lobel (1993) 30 NSWLR 441 …. 2.37, 2.38, 14.66 Mack and the Conveyancing Act, Re [1975] 2 NSWLR 623 …. 13.32 Mackintosh v Trotter (1838) 3 M & W 184 at 186; 150 ER 1108 …. 2.28 Mackreth v Symmons (1808) 15 Ves Jun 328 …. 6.16 Macleay, Re (1875) LR 20 Eq 186 …. 3.91 Macpherson v Maund (1937) 58 CLR 341; 11 ALJR 346 …. 10.36 Macquarie Bank Ltd v Sixty-Fourth Throne Pty Ltd [1998] 3 VR 133 …. 8.72, 8.93, 8.104 Macquarie International Health Clinic Pty Ltd v Sydney South West Area Health Service [2010] NSWCA 268 …. 11.64, 11.60, 11.65 Maddison v Alderson (1883) 8 App Cas 467 …. 6.10, 6.11 Magill v Magill (1997) NSW ConvR ¶55-795 …. 9.45 Maher v Bayview Golf Club Ltd (2004) 12 BPR 22,457 …. 12.32 — v Maher (1877) 1 LR Ir 22 …. 10.14 Maiden Civil (P&E) Pty Ltd, Re; Albarran v Queensland Excavation Services Pty Ltd (2013) 277 FLR 337 …. 14.4, 14.5, 14.6

Mailman v Challenge Bank Ltd (1991) 5 BPR 11,721 …. 14.102 Maiorana and the Conveyancing Act, Re [1970] 1 NSWR 627 …. 12.23 Majestic Homes Pty Ltd v Wise [1978] Qd R 225 …. 8.96 Malayan Credit v Jack Chia-MPH Ltd [1986] 1 WLR 590 …. 9.19 Malin, In the Will and Estate of [1905] VLR 270 …. 10.10 Mallett v Mallett (1984) 156 CLR 605 …. 6.51 Malzy v Eichholz [1916] 2 KB 308 …. 11.21, 11.23 Mamfredas Investment Group Pty Ltd (formerly known as MAM Marketing Pty Ltd) v Property IT and Consulting Pty Ltd [2013] NSWSC 929 …. 13.46, 13.48, 13.49 Manchester Bonded Warehouse Co Ltd v Carr (1880) 5 CPD 507; [1874–80] All ER Rep 563 …. 11.25 Manfield & Sons Ltd v Botchin [1970] 2 QB 612 …. 11.16 Mangan, Re (1983) 123 ALR 633 …. 14.57 Mangiola v Costanzo [1980] ANZ ConvR 331 …. 11.4 Manners (dec’d), Re [1955] 1 WLR 1096; [1955] 3 All ER 83 …. 10.18, 10.19 Mansfield v Mansfield (1890) 16 VLR 569 …. 9.38 Manton v Parabolic Pty Ltd (1985) 2 NSWLR 361 …. 14.92 March v March (1945) 62 WN (NSW) 111 …. 6.30 Marchesi v Apostoulou [2006] FCA 1122 …. 5.114 Marengo Cave Co v Ross 7 NE (2nd) 59 (1937) …. 5.85 Margil Pty Ltd v Stegul Pastoral Pty Ltd [1984] 2 NSWLR 1 …. 12.23 Maridakis v Kouvaris (1975) 5 ALR 197 …. 11.76 Marist Bros Community Inc v Shire of Harvey (1994) 14 WAR 69 …. 6.22 Marker v Marker (1851) 9 Hare 1; 68 ER 389 …. 3.54 Markfield Investments Ltd v Evans [2001] 1 WLR 131 …. 5.140 Markham v Paget [1908] 1 Ch 697 …. 11.23

Markos v O R Autor (2007) 13 BPR 24,487 …. 12.60, 13.48 Marks v Warren [1979] 1 All ER 29 …. 11.41, 11.42 Marquess of Zetland v Driver [1939] Ch 1 …. 13.6 Marquis of Cholmondeley v Lord Clinton (1820) 2 Jac & W 1; 37 ER 527 …. 5.53 Marriott, Re [1968] VR 260 …. 12.56 Marsden v Campbell (1897) 18 LR (NSW) Eq 33 …. 7.18, 7.39, 8.89 — v Edward Heyes Ltd [1927] 2 KB 1 …. 3.52 — v McAlister (1887) NSWLR (L) 300 …. 8.87 Marshall v Council of the Shire of Snowy River (1994) NSW ConvR ¶55719 …. 11.7, 11.64, 11.65 Martin, Re [1900] SASR 69 …. 8.145 Martin v King (1996) 7 BPR 14,681 …. 11.115 — v Martin (1959) 110 CLR 297 …. 6.30 Martins Camera Corner Pty Ltd v Hotel Mayfair [1976] 2 NSWLR 15 …. 11.23 Martinson v Clowes (1882) 21 Ch D 857 …. 14.98 Martyn, Re (1965) 65 SR (NSW) 387 …. 13.36 Martyn v Glennan [1979] 2 NSWLR 234 …. 8.152 Mason v Clarke [1955] AC 778 …. 2.31, 2.33, 12.65, 12.68, 12.71 — v Shrewsbury and Hereford Railway Co (1871) LR 6 QB 578 …. 12.9 — v Tritton (1994) 34 NSWLR 572 …. 4.27 Mason and the Conveyancing Act, Re [1962] NSWR 762; (1960) 78 WN (NSW) 925 …. 12.63, 13.48 Massart v Blight (1951) 82 CLR 423 …. 11.42, 11.113 Matthey v Curling [1922] 2 AC 180 …. 11.39 Mattie v Edwards (1847) 16 LJ Ch 405 …. 14.115 Matzner v Clyde Securities Ltd [1975] 2 NSWLR 293 …. 14.18, 14.124,

14.134, 14.136 Maurice Toltz Pty Ltd v Macy’s Emporium Pty Ltd [1970] 1 NSWR 474 …. 12.37 May v Ceedive Pty Ltd (2006) 13 BPR 24,147 …. 2.17, 2.19, 2.20, 2.21 Mayer v Coe (1968) 88 WN (Pt 1) (NSW) 549 …. 8.174 Mayho v Buckhurst (1617) Cro Jac 438 …. 11.46 MBF Investments Pty Ltd v Nolan (2011) 37 VR 116 …. 4.81, 14.106 McCarthy & Stone v Julian S Hodge & Co Ltd [1971] 1 WLR 1547 …. 7.31 McCauley v Karooz (1944) 61 WN (NSW) 165 …. 2.62 McColl v Bright [1939] VLR 204 …. 4.80 McCoy v Caelli [2010] NSWSC 1233 …. 9.33 — v Estate of Peter Anthony Caelli [2008] NSWSC 986 …. 9.33 McDermott v Boggs (NSWSC, Carruthers J, 12 March 1991, unreported) …. 2.39 McGlade v Native Title Registrar [2017] FCAFC 10 …. 4.32 McGrath v Campbell (2006) NSW ConvR 56-159 …. 8.84, 8.94, 12.24, 12.26, 12.50, 12.51, 12.52, 12.53 McGreal v Wake (1984) 269 EG 1254 …. 11.40 McGuigan Investments Pty Ltd v Dalwood Vineyards Pty Ltd [1970] 1 NSWR 686 …. 13.6 McGuiness v NSW Land and Housing Corporation [2014] NSWCATAP 98 …. 11.125 — v Registrar-General (1998) 44 NSWLR 61 …. 5.120, 8.87 — v Registrar-General; Barrett v McGuiness [1998] NSWSC 215 …. 5.120 McGuren v Simpson [2004] NSWSC 35 …. 5.141 McHugh v Union Bank of Canada [1913] AC 299 …. 14.101 McIntyre v Porter [1983] VR 439 …. 12.56 McKean v Maloney (1988) ANZ ConvR 31 …. 14.111

McKean’s Caveat, Re [1988] 1 Qd R 524 …. 8.145 McKenzie v McAllum [1956] VLR 208 …. 11.43 McKeown v Cavalier Yachts Pty Ltd (1988) 13 NSWLR 303 …. 2.3 McMahon v Docker (1945) 62 WN (NSW) 155 …. 11.16 — v McMahon [1979] VR 239 …. 8.149 McManus v Cooke (1887) 35 Ch D 681 …. 12.17 McNamara and the Conveyancing Act, Re (1961) 78 WN (NSW) 1068 …. 9.63 McPhail v Persons, Names Unknown [1973] Ch 447; [1973] 3 All ER 393 …. 5.46, 5.57 Mears v London and South Western Railway Co (1862) 11 CBNS 850 …. 2.60 Measures v McFadyen (1910) 11 CLR 723 …. 11.56, 14.56 Medforth v Blake [2000] Ch 86 …. 14.102 Mediservices International Pty Ltd v Stocks and Realty (Security Finance) Pty Ltd [1982] 1 NSWLR 516 …. 14.92 Mellor v Walmesley [1905] 2 Ch 164 …. 12.31 Mercantile Credits Ltd v Comblas (1982) 56 ALJR 499 …. 14.47 — v Shell Co of Australia Ltd (1976) 136 CLR 326 …. 8.40, 8.41, 8.42, 8.43, 8.46 Mercantile Mutual Life Insurance Co Ltd v Gosper (1991) 25 NSWLR 32 …. 8.92, 8.96, 8.98 Meriton Apartments Pty Ltd v McLaurin & Tait (1976) 133 CLR 671; 50 ALJR 743 …. 8.181 Mervin, Re [1891] 3 Ch 197 …. 10.26 Metropolitan Fire Brigades Board v Tait [1949] VLR 231 …. 11.5 Metropolitan Railway Co v Fowler [1892] 1 QB 165 …. 5.10 Metropolitan Trade Finance v Coumbis (1973) 131 CLR 396 …. 11.14 Meux v Cobley [1892] 2 Ch 253 …. 3.51, 3.53

— v Jacobs (1875) LR 7 HL 481 …. 14.63 Michael v Onisforou (1977) 1 BPR 9356 …. 8.87 Middle Harbour Investments Ltd, Re [1977] 2 NSWLR 652 …. 3.19 Middleton v Arthur (2002) 11 BPR 20,263 …. 12.39 Midland Bank Trust Co Ltd v Green [1983] AC 513 …. 7.12 Midland Brick Co Pty Ltd v Welsh [2006] WASC 122 …. 8.170 Mihalic v Mihalic (1987) 73 ALR 304 …. 8.145 Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 …. 1.8, 1.59, 3.36, 4.1, 4.2, 4.3, 4.5, 4.9, 4.10, 4.11, 4.13, 4.40 Millar v Candy (1981) 58 FLR 145 …. 2.62 Miller v Emcer Products Ltd [1956] Ch 304; [1956] 1 All ER 237 …. 12.9 — v Jackson [1977] QB 966 …. 12.7 — v Minister of Mines [1963] AC 484 …. 8.107, 8.109, 8.143 — v Sutherland (1990) 14 Fam LR 416 …. 6.36, 6.55 Mills v Renwick (1901) 1 SR (NSW) Eq 173 …. 7.38, 7.39 — v Ruthol Pty Ltd (2002) 10 BPR 19,381 …. 7.33 — v Stokman (1967) 116 CLR 61 …. 12.65 Milmo v Carreras [1946] KB 306 …. 11.45 Milne v James (1910) 13 CLR 168 …. 12.33 Milroy v Lord (1862) De GF & J 264; 45 ER 1185 …. 6.45, 8.126 Milutinovic v Milutinovic [2004] NSWSC 1110 …. 8.124 Minister for Education and Training v Canham [2004] NSWSC 274 …. 8.93 Minister for the Interior v Brisbane Amateur Turf Club (1949) 80 CLR 123 …. 11.19 Minister of State for the Army v Dalziel (1944) 68 CLR 261 …. 4.50, 5.10 Minshall v Lloyd (1837) 2 M & W 450 …. 2.18 Minter v Minter (2000) 10 BPR 18,133 …. 9.21

Mir Bros Projects Pty Ltd v 1924 Pty Ltd [1980] 2 NSWLR 907 …. 14.86, 14.92 Mischel Holdings Pty Ltd (in liq) v Mischel [2013] VSCA 375 …. 9.27 Mitchell v Arblaster [1964–65] NSWR 119 …. 9.20 Miwa Pty Ltd v Siantan Properties Pte Ltd [2011] NSWCA 297 …. 11.82 M’Leod v M’Ghie (1841) 2 Man & G 326 …. 2.49 Modular Design Group Pty Ltd, Re (1994) 35 NSWLR 96 …. 14.31 Moffett v Dillon [1999] 2 VR 480 …. 7.27, 7.28, 7.29, 8.170 Mogo Local Aboriginal Land Council v Eurobodalla Shire Council [2002] NSWCA 12 …. 8.120 Monash City Council v Melville (2000) V ConVR 54-261 …. 5.109 Moncrieff v Jamieson [2007] 1 WLR 2620 …. 5.9, 12.7, 12.36 Monds v Stackhouse (1948) 77 CLR 232 …. 10.12 Money v Westpac Banking Corp (1988) ANZ ConvR 553 …. 14.34 Monsell v Team Link Management Pty Ltd (1997) 8 BPR 15,401 …. 14.3 Moody v Steggles (1879) 12 Ch D 261 …. 12.5, 12.6, 12.9 Moon v Diroan Pty Ltd (RTT 96/024196) …. 11.135 Moonking Gee v Tahos (1961) 63 SR (NSW) 935 …. 7.37, 7.39 Moore, Re [1901] 1 Ch 936 …. 10.27 Moore v Dimond (1929) 43 CLR 105 …. 11.13 — v Regents of the University of California 793 P 2d 479 (1990) …. 1.60 — v Ullcoats Mining Co [1908] 1 Ch 575 …. 11.68 Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2012] NSWCA 445 …. 12.34 Moorgate Tobacco Pty Ltd v Philip Morris Pty Ltd (1984) 156 CLR 414; 56 ALR 193 …. 1.69 Moran v Buckinghamshire County Council (1988) 86 LQR 472 …. 5.113 Morgan v Coulson [1981] 2 NSWLR 801 …. 14.37

— v Jeffreys [1910] 1 Ch 620 …. 14.25 Morison v Edmiston [1907] VLR 191 …. 11.13 — v London, County and Westminster Bank Ltd [1914] 3 KB 356 …. 2.61 Morley v Bird (1798) 3 Ves 628 …. 9.18 Morris v Tarrant [1971] 2 QB 143 …. 5.88 Morrison, Jones & Taylor Ltd, Re [1914] 1 Ch 50 …. 2.24 Mortimer v Bailey [2005] 2 P & CR 9 …. 13.41 Morton v Suncorp Finance Ltd (1987) 8 NSWLR 325 …. 14.95 Mostyn v Mostyn (1989) 16 NSWLR 635 …. 6.5 Motor Auction Pty Ltd v John Joyce Wholesale Cars Pty Ltd (1997) 8 BPR 15,565 …. 8.179 Moule v Garrett (1870) LR 5 Ex 132 …. 11.44 — v — (1872) LR 7 Ex 101 …. 11.49, 11.56 Mount Carmel Investments Ltd v Peter Thurlow Ltd [1988] 1 WLR 1078 …. 5.140 Mount Cathay v Pty Ltd v Lend Lease Funds Management Ltd [2012] QCA 274 …. 12.45 Mualgal People v Queensland [1999] FCA 157 …. 4.66 Mulcahy v Curramore Pty Ltd [1974] 2 NSWLR 464 …. 5.45, 5.70, 5.84, 5.86, 5.100, 5.102, 5.135, 5.136, 5.144, 5.145 Multiservice Bookbinding Ltd v Marden [1979] Ch 84 …. 14.32 Mumford v Stohwasser (1874) LR 18 Eq 556 …. 7.31, 7.32, 7.44, 14.133 Munday v Australian Capital Territory (2000) 173 ALR 1 …. 2.67 — v Prowse (1878) 4 VLR (Eq) 101 …. 3.79 Municipal District of Concord v Coles (1905) 3 CLR 96 …. 12.4 Munro v Stuart (1924) 41 SR (NSW) 203 …. 8.68 Murnane v Findlay [1926] VLR 80 …. 5.112 Murrell, Re (1984) 57 ALR 85 …. 14.125

Murtagh v Murtagh [2013] NSWSC 926 …. 9.58 Muschinski v Dodds (1985) 160 CLR 583; 62 ALR 429 …. 6.34, 6.49, 6.55, 7.33, 7.45 Musumeci v Winadell Pty Ltd (1994) 34 NSWLR 723 …. 11.23, 11.73

N Nadrak Pty Ltd v Permanent Custodians Ltd (1994) 6 BPR 13,344 …. 14.32 Naish and the Conveyancing Act, Re [1960] 77 WN (NSW) 892 …. 13.34 Napper v Miller [2002] NSWSC 1122 …. 10.48 — v — (2003) 11 BPR 21,175 …. 10.26 National Australia Bank Ltd v Blacker (2000) 179 ALR 97 …. 2.18, 2.21 — v Bridge Wholesale Acceptance Corp (Aust) Ltd (1990) 21 NSWLR 96 …. 8.152 — v Garrett [2016] FCA 714 …. 14.8 — v New South Wales (2009) 260 ALR 115 …. 3.19, 3.30 — v Smith [2014] NSWSC 1605 …. 14.35 National Bank of Greece SA v Pinios Shipping Co (No 1) [1989] 3 WLR 185 …. 14.64 National Bank of Tasmania Ltd v McKenzie [1920] VLR 411 …. 14.90 National Carriers Ltd v Panalpina (Northern) Ltd [1981] AC 675 …. 11.77 National Provincial and Union Bank of England v Charnley [1924] 1 KB 431 …. 14.16 National Trust v White [1987] 1 WLR 907 …. 12.36 Natva Developments Pty Ltd v McDonald Bros Pty Ltd (2004) 12 BPR 22,287 …. 12.36, 12.64, 12.65 Natwest Markets Australia Ltd v Mannix (1995) NSW ConvR ¶55–743 …. 14.47 Naziridis v Rimis (1999) 9 BPR 16,201 …. 9.65 Neighbourhood Association DP No 285220 v Moffat (2008) NSW ConvR

¶56-208 …. 12.36 Nelson v Kimberley Homes Pty Ltd (1988) NSW ConvR ¶55-394 …. 8.152 — v Nelson (1995) 184 CLR 538 …. 6.30 Nemesis Australia Pty Ltd v Commissioner of Taxation (2005) 225 ALR 576 …. 10.44 New South Wales v Koumdjiev (2005) 63 NSWLR 353 …. 9.76 — v Watton (1999) NSW ConvR ¶55-885 …. 11.37 New South Wales Co-operative Ice & Cold Storage Co, Re (1891) 12 LR (NSW) Eq 87 …. 2.23, 2.28 New South Wales Department of Housing v Hume [2007] NSWCA 69 …. 11.37 New South Wales Land and Housing Corporation v Green (NSWSC, Graham AJ, 31 October 1997, unreported, BC9705949) …. 11.125 New Zealand Government Property Corp v H M & S Ltd [1982] 1 All ER 624 …. 2.28 Newcastle City Council v Kern Land Pty Ltd & Commonwealth Bank of Australia (1997) 42 NSWLR 273 …. 3.113 Newcomen v Coulson (1877) 5 Ch D 133 …. 12.37 Newington v Windeyer (1985) 3 NSWLR 555 …. 5.33, 5.102 Newton Abbot Co-op Society v Williamson & Treadgold Ltd [1952] Ch 286 …. 13.7, 13.29, 13.38 Nguyen v Kaha [2008] NSWCA 794 …. 8.144 Nicholas v Andrew (1920) 20 SR (NSW) 178 …. 5.143 Nicholls v Ely Beet Sugar Factory Ltd (No 1) [1931] 2 Ch 84 …. 12.71 Nilan v Nilan (1951) 68 WN (NSW) 271 …. 2.35 Nisbet and Potts’ Contract, Re [1905] 1 Ch 391; [1906] 1 Ch 386 …. 7.23, 13.17, 13.19 No Fuss Finance Pty Ltd v Miller [2006] NSWSC 630 …. 14.35 Noakes & Co Ltd v Rice [1902] AC 24 …. 14.23, 14.25, 14.30

Noblett and Mansfield v Manley [1952] SASR 155 …. 11.92 Nordern v Blueport Enterprises Ltd [1996] 3 NZLR 450 …. 11.23 North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595 …. 4.63 North Sydney Council, Re (1998) NSW ConvR ¶55-828 …. 5.72 North Sydney Printing Pty Ltd v Sabemo Investment Corp Pty Ltd [1971] 2 NSWLR 150 …. 12.29 Northern Counties of England Fire Insurance Co v Whipp (1884) 26 Ch D 482 …. 7.7, 7.8, 14.128 Northern Land Council v Commonwealth (No 2) (1987) 61 ALJR 616 …. 4.13 Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313 …. 11.37, 11.109 Norton v Dashwood [1896] 2 Ch 497 …. 2.19, 2.23, 2.26 NRMA Insurance Ltd v B & B Shipping and Maritime Salvage Co Pty Ltd (1947) 47 SR (NSW) 273 …. 5.44 NSW Trustee and Guardian v State of New South Wales [2015] NSWSC 1121 …. 9.8 Nullagine Investments Pty Ltd v Western Australia Club Inc (1993) 67 ALJR 739 …. 9.63 Nulyarimma v Thompson; Buzzacott v Minister for the Environment (1999) 96 FCR 153; 165 ALR 621 …. 4.81 NZI Capital Corp Pty Ltd v Child (1991) 23 NSWLR 481 …. 14.45

O OBG Ltd v Allen [2008] 1 AC 1 …. 2.49, 2.61 O’Brien v Robinson [1973] 1 All ER 583 …. 11.40, 11.109 Ocean Accident and Guarantee Corporation Ltd v Ilford Gas Co [1905] 2 KB 493 …. 14.51 Ocean Estates v Pinder [1969] 2 AC 19 …. 5.113

Oertel v Hordern (1902) 2 SR (NSW) Eq 37 …. 8.140 Ofulue v Bossert [2009] 2 WLR 749 …. 5.92, 5.141, 5.142 Ogilvie v Ryan [1976] 2 NSWLR 504 …. 6.13, 6.33, 6.49, 6.55 Oh Hiam v Tham Kong (1980) 2 BPR 9451 …. 8.95 Old Grovebury Manor Farm v W Seymour Plant Sales and Hire Ltd (No 2) [1979] 3 All ER 504 …. 11.64 Old Papa’s Franchise Systems Pty Ltd v Camisa Nominees Pty Ltd [2003] WASCA 11 …. 11.51 Olivieri v Olivieri (1993) 38 NSWLR 665 …. 6.30 Olsson v Dyson (1969) 120 CLR 365 …. 6.43 Olympic Holdings Pty Ltd v Windslow Corp Pty Ltd (in liq) (2008) 36 WAR 342 …. 14.134 On v On [2002] NTSC 18 …. 9.45 O’Neil v Hart [1905] VLR 107 …. 5.119, 5.140 O’Neill v Commonwealth Bank of Australia [2013] NSWSC 836 …. 14.60 OneSteel Manufacturing Pty Ltd (admins apptd), Re [2017] NSWSC 21 …. 14.9 Orr Ewing v Colquhoun (1877) 2 App Cas 839 …. 2.14 O’Shea v Athanasakis (2009) 14 BPR 27,093 …. 12.34 Osmanoski v Rose [1974] VR 523 …. 8.168 Otter v Lord Vaux (1856) 6 De GM & G 638 …. 14.99 Owen v Gadd [1956] 2 QB 99 …. 11.23 Owners — Strata Plan No 70798 v Bakkante Constructions Pty Ltd (2014) 88 NSWLR 513 …. 9.111 Owners — Strata Plan No 73943 v Gazebo Penthouse Pty Ltd [2014] NSWSC 1536 …. 9.110 Owners Corporation of Strata Plan 71623 v Waldorf Apartments Hotel, The Entrance Pty Ltd [2015] NSWSC 1658 …. 8.105 Owners of East Fremantle Shopping Centre West Strata Plan 8618 v Action

Supermarkets Pty Ltd (2008) 37 WAR 498 …. 12.7 Owners of Strata Plan No 3397 v Tate (2007) 70 NSWLR 344 …. 9.108, 9.110, 9.134 Owners SP 35042 v Seiwa Australia Pty Ltd (2007) 13 BPR 24,789; [2007] NSWCA 272 …. 9.71, 9.84 Owners Strata Plan 50276 v Thoo (2013) 17 BPR 33,789 …. 9.84 Owners Strata Plan No 60919 v Consumer Trader and Tenancy Tribunal (2009) 16 BPR 31,673 …. 9.108 Oxford Meat Co Pty Ltd v McDonald [1963] SR (NSW) 423 …. 5.33 Oxley v Imperial Charter Pty Ltd (1996) NSW ConvR ¶55-783 …. 11.144

P P & A Swift Investments v Combined English Stores Group plc [1989] AC 632 …. 11.46 Pacific Film Laboratories Pty Ltd v Federal Commissioner for Taxation (1970) 121 CLR 154 …. 2.5 Page’s Application, Re (1996) 71 P & CR 440 …. 13.49 Paine & Co v St Neots Gas & Coke Co [1939] 3 All ER 812 …. 12.45 Palais Parking Ltd v Shea (1980) 23 SASR 425 …. 8.31 Palmer v Hendrie (1859) 27 Beav 349; 54 ER 136 …. 14.47 Palumberi v Palumberi (1986) NSW ConvR ¶55-287 …. 2.17, 2.22 Pampris v Thanos [1968] 1 NSWR 56 …. 11.25 Pangallo Estate Pty Ltd v Killara 10 Pty Ltd [2007] NSWSC 1528 …. 2.46 Pantalone v Alaouie (1989) 18 NSWLR 119 …. 12.11 Papadopoulos v Goodwin [1982] 1 NSWLR 413 …. 12.23 — v — (1983) 2 NSWLR 113 …. 12.50 Pareroultja v Tickner (1993) 42 FCR 32 …. 4.27 Park v Brady [1976] 1 NSWLR 119 …. 5.122

— v — [1976] 2 NSWLR 329 …. 5.122 Parker v British Airways Board [1982] 1 QB 1004; [1982] 1 All ER 834 …. 2.67 — v Clark [1960] 1 All ER 93; [1960] 1 WLR 286 …. 6.8 — v Registrar-General [1977] 1 NSWLR 22 …. 8.192, 8.195 — v Webb (1693) 3 Salk 5; 91 ER 656 …. 11.46 Parker-Tweedale v Dunbar Bank plc [1991] Ch 12 …. 14.102 Parkinson v Braham [1962] SR (NSW) 663 …. 8.89, 11.8 Paroz v Paroz [2010] QCA 362 …. 9.54 — v — [2010] QSC 203 …. 9.54 — v — [2011] HCATrans 205 …. 9.54 Paterson v McCarthy (1892) 18 VLR 133 …. 14.55 Patsios v Glavinic [2006] VSC 92 …. 5.84 Patterson v Mortgage Finance Australia (Securities) Ltd (1991) ANZ ConvR 46 …. 14.116 Paul, Re (1902) 19 WN (NSW) 114 …. 8.145 Paul v Nurse (1828) 8 B & C 486 …. 11.48, 11.56 Paulet v Stewart [2009] VSC 60 …. 6.30 Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221 …. 2.30 Pawson’s Settlement, Re [1917] 1 Ch 541 …. 14.52 Payne v Dwyer [2013] WASC 271 …. 5.81 — v Rowe [2012] NSWSC 685 …. 9.58 — v Webb (1874) LR 19 Eq 26 …. 9.13 PD Consultants Pty Ltd v Childs [2004] NSWSC 1076 …. 12.34 Pearson v Spencer (1861) 1 B & S 571 …. 12.29 Peat v Chapman (1750) 1 Ves Sen 542 …. 9.13 Peden Pty Ltd v Bortolazzo [2006] 2 Qd R 574 …. 11.23

Pedulla v Panetta [2011] NSWSC 1386 …. 8.183, 8.193, 8.195, 8.204 Peldan v Anderson (2006) 229 ALR 432 …. 9.25, 9.53 Pelenoy Pty Ltd v Donovan Oates Hannaford Mortgage Corp [2004] NSWSC 4 …. 8.129 Pells v Brown (1620) Cro Jac 590 …. 10.5 Pendlebury v Colonial Mutual Life Assurance Society Ltd (1912) 13 CLR 676 …. 14.104, 14.109, 14.111 Penfolds Wines v Elliott (1946) 74 CLR 204 …. 2.46, 2.48, 2.50, 2.60 Pennant Hills Golf Club v Roads and Traffic Authority of New South Wales (1999) 9 BPR 17,011 …. 12.65 Penrith Whitewater Stadium Ltd v Lesvos Enterprises Pty Ltd (2007) 13 BPR 24,799 …. 11.5 Penton v Barnett [1898] 1 QB 276 …. 11.64 — v Robart (1801) 2 East 88; 102 ER 302 …. 2.25, 2.26 Perera v Vandiyar [1953] 1 WLR 672 …. 11.23 Permanent Finance Corp Ltd v Flavel [1968] Qd R 84 …. 14.55 Permanent Mortgages Pty Ltd v Cook [2006] ASC 155-082 …. 14.35 Permanent Trustee Australia Ltd v Shand (1992) 27 NSWLR 426 …. 12.65, 12.73 Permanent Trustee Co Ltd v Frazis [1999] NSWSC 319 …. 14.35 Permanent Trustee Co of NSW v Campbelltown Municipal Council (1960) 105 CLR 401 …. 12.31 — v Richardson (1948) 48 SR (NSW) 313 …. 10.37 Perpetual Finance Corporation Ltd v Blain (1996) 9 BPR 16,243 …. 11.131 Perpetual Nominees Pty Ltd v Springfield Retail Pty Ltd [2009] NSWSC 188 …. 8.144 Perpetual Trustee Co Ltd (original plaintiff); Performance Capital Mortgage Pty Ltd v Motive Finance & Leasing Pty Ltd [2010] NSWSC 429 …. 8.168

Perpetual Trustee Co Ltd v Khoshaba (2006) 14 BPR 26,639 …. 14.35 — v Motive Finance & Leasing Pty Ltd (2011) 15 BPR 29,267 …. 6.8 — v Smith (2010) 273 ALR 469; [2010] FCAFC 91 …. 7.29, 8.168, 8.170, 11.7 Perpetual Trustee Victoria Ltd v English [2009] NSWSC 478 …. 8.52 Perpetual Trustees Australia v Richards [2008] NSWSC 658 …. 8.47 Perpetual Trustees Company Ltd; Application of Chen [2010] NSWSC 808 …. 9.17 Perpetual Trustees of Victoria v Tsai [2004] NSWSC 754 …. 8.50 Perpetual Trustees Victoria Ltd v Cipri [2009] NSWSC 335 …. 8.190 Perpetual Trustees Victoria Ltd v English [2009] NSWSC 478 …. 8.51, 8.52 — v — [2010] NSWCA 32 …. 8.47, 8.53, 8.56 — v Tsai (2004) 1 BPR 22,811; [2004] NSWSC 745 …. 8.46, 8.48 — v Van den Heuvel [2010] NSWCA 171 …. 8.45, 8.56 Perrot’s Case (1594) Moo KB 368; 72 ER 634 …. 10.4 Perry v Clissold [1907] AC 73 …. 2.32, 2.35, 5.33, 5.43, 5.44, 5.47, 5.48, 5.70, 5.135, 5.145 — v Fitzhowe (1846) 8 QB 757 …. 12.43 — v Rolfe [1948] VLR 297 …. 14.139 Perry-Herrick v Attwood (1857) 2 De G & J 21; 44 ER 895 …. 7.8 Person-to-Person Financial Services Pty Ltd v Sharari [1984] 1 NSWLR 745 …. 8.164, 8.165 Pertsoulis, In the Marriage of (1980) 6 Fam LR 39 …. 9.47 Peter v Russel (1716) 1 Eq Ca Abr 321 …. 7.8 Peters v Commonwealth Bank of Australia (1992) NSW ConvR ¶55–629; (1992) ANZ ConvR 497 …. 14.40 Pettey v Parsons [1914] 2 Ch 653 …. 12.39, 12.45 Phillips v Halliday [1891] AC 228 …. 12.5, 12.9

— v Lamdin [1949] 2 KB 33 …. 2.23 — v Martin (1890) 11 LR (NSW) 153 …. 8.92 Philos Pty Ltd v National Bank of Australasia Ltd (1976) 5 BPR 11,810 …. 14.137 Phipps v Acker (1842) 9 Cl & F 583; 8 ER 539 …. 10.14 — v Pears [1965] 1 QB 76 …. 12.7, 12.10, 12.27 Picken v Matthews (1878) 10 Ch D 264; 39 LT 531 …. 10.20 Pickering v Rudd (1815) 4 Camp 219 …. 2.9 Pieper v Edwards [1982] 1 NSWLR 336 …. 12.59, 13.46 Pigot’s Case (1614) 11 Coke 26b; 77 ER 1177 …. 8.57 Pike v Venables (1984) NSW ConvR ¶55-170 …. 13.47 Pilcher v Rawlins (1872) LR 7 Ch App 259 …. 7.9, 8.171, 14.128 Piles Caveats, Re [1981] Qd R 81 …. 8.142 Pinhorn v Souster (1853) 8 Exch 763 …. 11.41 Pink v Lawrence (1978) 36 P & CR 98 …. 9.16 Pioneer Quarries (Sydney) Pty Ltd v Permanent Trustee Co of New South Wales Ltd (1970) 2 BPR 9562 …. 11.71 Pirrie v Saunders (1961) 104 CLR 149 …. 6.8 Plaister, Re, Perpetual Trustee Co v Crawshaw (1934) 34 SR (NSW) 547 …. 9.50 Platzer v Commonwealth Bank of Australia [1997] 1 Qd R 266 …. 7.20 Plymouth Corporation v Harvey [1971] 1 WLR 549 …. 11.64 Port Stephens Shire Council v Tellamist Pty Ltd [2004] NSWCA 353 …. 2.31 — v — [2005] HCATrans 365 …. 2.31 Porter v Associated Securities Ltd (1976) 1 BPR 9279 …. 14.109 Post Investments Pty Ltd v Wilson (1990) 26 NSWLR 598 …. 13.45 Potter v Edwards (1875) 26 LJ Ch 468 …. 14.32

Powell v Langdon (1944) 45 SR (NSW) 136 …. 12.39 — v McFarlane (1979) 38 P & CR 452 …. 5.81, 5.93, 5.106, 5.112, 5.113 Power Rental Op Co Australia, LLC v Forge Group Power Pty Ltd (in liq) (recs and mgrs apptd) [2017] NSWCA 8 …. 14.4, 14.7, 14.8 Powley v Walker (1793) 5 Term Rep 373; 101 ER 208 …. 11.28 Powys v Blagrave (1854) 4 de GM & G 448; 43 ER 582 …. 3.51 Pratten v Warringah Shire Council (1969) 90 WN (Pt 1) (NSW) 134 …. 8.107, 8.108, 8.201 Presbyterian Church (NSW) Property Trust v Scots Church Development Ltd (2007) 13 BPR 24,969 …. 8.68 Proctor v Bishop of Bath and Wells (1794) 2 Hy Bl 358; 126 ER 594 …. 10.35 Production Printing (Aust) Pty Ltd (in liq), Re [2017] NSWSC 505 …. 14.9 Progressive Mailing House Pty Ltd v Tabali Pty Ltd (1985) 157 CLR 17 …. 11.59, 11.60, 11.61, 11.77, 11.79 Proprietors — Strata Plan No 6522 v Furney [1976] 1 NSWLR 412 …. 9.71, 9.78 Proprietors Strata Plan No 30234 v Margiz Pty Ltd (1993) 32 NSWLR 294 …. 9.78 Proprietors Strata Plan No 9968 v Proprietors Strata Plan No 11173 [1979] 2 NSWLR 605 …. 12.62 Prosser v Rice (1859) 28 Beav 68 at 74; 54 ER 291 …. 14.123 Proudfoot v Hart (1890) 25 QBD 42 …. 11.30, 11.39 Provident Capital Ltd v Papa (2013) 84 NSWLR 231 …. 14.35 — v Printy (2008) 13 BPR 25,199; [2008] NSWCA 131 …. 8.46, 8.48; 8.50, 8.52 Prowse v Johnstone [2012] VSC 4 …. 13.49 Prudential Assurance Co Ltd v London Residuary Body [1992] 2 AC 386 …. 11.4, 11.11, 11.84

Pryke v Blazai (2000) 10 BPR 18,489 …. 6.16 PT Ltd v Maradona Pty Ltd (1992) 25 NSWLR 643 …. 8.37, 8.47, 14.56 Pua Hor Ong v Wu You Yang Pty Ltd (2008) 103 SASR 9 …. 8.151 Public Transport Commission (NSW) v Perry (1977) 137 CLR 107 …. 2.31 Public Trustee v Bellotti (1986) 4 BPR 9196 …. 5.155 — v Bennett [2004] NSWSC 955 …. 10.44, 10.63 — v Evans (1985) 2 NSWLR 188 …. 9.49 — v Grivas [1974] 2 NSWLR 316 …. 9.47 — v Paradiso (1995) 64 SASR 387 …. 8.32 Public Trustee (NSW) v Fitter [2005] NSWSC 1188 …. 9.51 Purefoy v Rogers (1671) 2 Wms Saund 380; 85 ER 1181 …. 3.109, 10.10 Putz v Registrar of Titles [1928] VLR 348 …. 14.142 Pwllbach Colliery Co Ltd v Woodman [1915] AC 634 …. 12.30, 12.42 Pyramid Building Society (in liq) v Scorpion Hotels Pty Ltd [1998] 1 VR 188 …. 8.46, 8.72 Pyrmont Point Pty Ltd v Westacott (2016) 91 NSWLR 170 …. 11.138

Q Quach v Marrickville Municipal Council (No 2) (1990) 22 NSWLR 55 …. 5.100, 5.115, 5.119, 5.147, 8.112 Quarmby v Keating [2008] TASSC 71 …. 5.115, 5.149 Queanbeyan Leagues Club v Poldune Pty Ltd (1996) 7 BPR 15,078 …. 8.151 Queensland v Congoo (2015) 256 CLR 239 …. 4.58 Queensland National Bank Ltd v MacBriar [1902] St R Qd 268 …. 14.63 Queensland Premier Mines Pty Ltd v French (2007) 235 CLR 81 …. 14.56 Quennell v Maltby [1979] 1 WLR 318 …. 14.49

R

R v Ballard [1829] NSWSupC 26 …. 4.6 — v Bonjon [1841] NSWSC 92 …. 4.6 — v Hussey (1924) 18 Cr App R 160 …. 11.69 — v Mitton (1827) 3 C & P 31; 172 ER 309 …. 2.63 — v Murrell and Bummaree [1836] NSWSupC 35 …. 4.6 — v NTC Smokehouse Ltd [1996] 2 SCR 672; (1996) 137 DLR (4th) 528 …. 4.28 — v Pamajewon [1996] 2 SCR 821 …. 4.28 — v Symonds [1847] NZPCC 387 …. 4.13 — v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327; 44 ALR 63 …. 3.26, 12.65 — v Van der Peet (1996) 137 DLR (4th) 289 …. 4.28 R & J Lyons Family Settlement Pty Ltd v 155 Macquarie Street Pty Ltd [2006] NSWCA 177 …. 3.80 R (Beresford) v Sunderland City Council [2004] 1 AC 889 …. 12.33 Radaich v Smith (1959) 101 CLR 209 …. 11.5 Rains v Buxton (1880) 14 Ch D 537 …. 5.85 Ramsay v Trustees Executors and Agency Co Ltd (1948) 77 CLR 321 …. 3.93 Rance v Elvin (1985) 50 P & CR 9 …. 12.10 Randall v Stevens (1853) 2 El & Bl 641; 118 ER 908 …. 5.140 Randwick Municipal Corporation v Rutledge (1959) 102 CLR 54; 5 LGRA 127 …. 3.23 Ranger v Giffin (1968) 87 WN (Pt 1) NSW 531 …. 2.66 Rasmanis v Jurewitsch (1969) 70 SR (NSW) 407 …. 9.47 Rasmussen v Rasmussen [1995] 1 VR 613 …. 8.124, 8.125, 8.206 Ratcliffe v Watters (1969) WN (NSW) (Pt 1) 497 …. 8.78 Ravenseft Properties Ltd v Davstone (Holdings) Ltd [1979] 2 WLR 897 ….

11.39 Red House Farms (Thorndon) Ltd v Catchpole [1977] 244 EG 295; 121 Sol J 136 …. 5.97 Reef Health Pty v Vines [2014] NSWSC 70 …. 2.50 Refina Pty Ltd v Binnie [2009] NSWSC 914 …. 5.142, 5.158 Refuge Assurance Co Ltd v Pearlberg [1938] Ch 687 …. 14.44 Regent v Millett (1976) 133 CLR 679 …. 6.11 Regis Property Co Ltd v Dudley [1959] AC 370 …. 11.26, 11.38 — v Redman [1956] 2 QB 612 …. 12.27 Regis Towers Real Estate Pty Ltd v Kin Fung (2001) NSW ConvR ¶55-960 …. 9.127 Registrar of Titles (WA) v Franzon (1975) 132 CLR 611 …. 8.116, 8.192 — v Spencer (1909) 9 CLR 641 …. 8.195 Registrar-General of New South Wales v Jea Holdings (Aust) Pty Ltd (2015) 88 NSWLR 321 …. 12.7, 12.48, 12.50 — v LawCover [2013] NSWSC 1471 …. 8.193 — v Wood (1926) 39 CLR 46 …. 9.24 Registrar-General v Cleaver (1996) 41 NSWLR 713 …. 8.195, 13.9 Reid v Smith (1905) 3 CLR 656 …. 2.21 Reitano v Reitano [2012] NSWSC 1127 …. 6.11 Reliance Permanent Building Society v Harwood-Stamper [1944] Ch 362 …. 14.109 Renals v Cowlishaw (1878) 9 Ch D 125 …. 13.4 Residential Housing Corporation v Esber (2011) 80 NSWLR 69 …. 14.125 Residential Tenancies Tribunal of New South Wales v Offe (NSWSC, Abadee J, 1 July 1997, unreported) …. 11.129 Residential Tenancies Tribunal of New South Wales and Henderson, Re; Ex parte Defence Housing Authority (1997) 146 ALR 495 …. 11.88

Reynolds v Ashby & Son [1904] AC 466 …. 2.24, 2.30 — v Clarke (1725) 2 Ld Raym 1399 …. 2.31 Rhone v Stephens [1994] 2 AC 310 …. 13.12, 13.14, 13.15 Rice v Rice (1853) 2 Drew 73; 61 ER 646 …. 7.26, 7.28, 7.30, 8.168, 8.171, 8.180, 14.128, 14.129 Richards v Rose (1853) 9 Ex 218 …. 12.30, 12.40 Richardson v Greentree (NSWSC, Einstein J, 1 December 1997, unreported) …. 5.87, 5.88, 5.108 — v Langridge (1811) 4 Taunt 128 …. 11.13 Richmond City Local Board of Health v Victorian Permanent Building and Investment Society (1890) 16 VLR 845 …. 14.20 Rickett v Green [1910] 1 KB 253 …. 11.54, 11.86 Ricketts v Enfield Churchwardens [1909] 1 Ch 544 …. 11.46 Rigby v Chief Constable [1985] 1 WLR 1242 …. 2.31 Riley v Penttila [1974] VR 547 …. 5.998, 5.110, 5.112, 5.118 Riley and the Real Property Act, Re (1964) 82 WN (Pt 1) (NSW) 373 …. 5.84, 5.100 Risk v Northern Territory of Australia [2006] FCA 404 …. 4.32 — v — (2007) 240 ALR 74 …. 4.32 — v — [2007] HCATrans 472 …. 4.32 RM Hosking v Barnes [1971] SASA 100 …. 8.97 Roads and Traffic Authority of New South Wales v Swain (1997) 41 NSWLR 452 …. 11.123 Roake v Chadha [1984] 1 WLR 40 …. 13.4 Roberts v IAC (Finance) Pty Ltd [1967] VR 231 …. 14.12 — v Rose (1865) LR 1 Ex 82 …. 12.43 — v Swangrove Estates Ltd [2008] 2 WLR 1111 …. 5.75 Robertson v Butler [1915] VLR 31 …. 5.140

— v Wilson (1958) 75 WN (NSW) 503 …. 11.77 Robinson v Hardcastle (1788) 2 TR 241; 100 ER 131 …. 10.26 — v Kilvert (1889) 41 Ch D 88 …. 11.24 — v Kingsmill (1954) 71 WN (NSW) 127 …. 11.76 — v Registrar-General (1983) NSW ConvR ¶55-138 …. 8.194 Roblin v the Public Trustee for the Australian Capital Territory and Labservices Pty Ltd [2015] ACTSC 100 …. 1.65 Roche v Douglas [2000] WASC 146 …. 1.65 Roche and the Conveyancing Act, Re (1960) 77 WN (NSW) 431 …. 13.6 Roda v Roda [2013] FamCAFC 27 …. 9.19, 9.46 Rogers v Hosegood [1900] 2 Ch 388 …. 13.3, 13.4, 13.5, 13.25, 13.26 — v Resi-Statewide Corp Ltd (1991) 101 ALR 377 …. 8.32 Rose, Re [1952] Ch 499 …. 6.45 Rose v Spicer [1911] 2 KB 234 …. 11.72 Rosedale Farm (NSW) Pty Ltd, Re (2010) 15 BPR 28,791 …. 12.60 Rosher, Re (1894) 26 Ch D 801 …. 3.91 Ross Cook & Brett Cook Pty Ltd v Bli Bli 1 Pty Ltd [2009] QSC 300 …. 8.152 Routledge v Dorrill (1794) 2 Ves Jun 357; 30 ER 671 …. 10.26 Roy v Lagona [2010] VSC 250 …. 5.77, 5.82, 5.89, 5.135 Royal Bank of Scotland v Etridge (No 2) [2001] 4 All ER 449 …. 1.45 Rubibi Community v Western Australia (No 7) [2006] FCA 459 …. 4.32 Rugby School (Governors) v Tannahill [1934] 1 KB 695 …. 11.64 Russel v Russel (1783) 1 Bro CC 269; 28 ER 1121 …. 6.12, 14.16 Russell v Russell [1903] 1 IR 168 …. 10.14 Russo v Bendigo Bank Ltd [1999] 3 VR 376 …. 8.77, 8.78 Ruthol Pty Ltd v Mills (2003) 11 BPR 20,793 …. 7.35, 7.45

Ryan v Brain [1994] 1 Qd R 681 …. 13.34 — v Dries (2002) 10 BPR 19,497 …. 6.29, 9.57, 9.58 — v Kalocsay [2009] NSWSC 1009 …. 8.142 — v O’Sullivan [1956] VLR 99 …. 14.90 — v Starr (2005) 12 BPR 22,803 …. 12.51 Rye v Rye [1962] AC 496 …. 11.75

S S & D International Pty Ltd (in liq), Re [2009] VSC 225 …. 14.125 S & E Promotions Pty Ltd v Tobin Brothers Pty Ltd (1994) 122 ALR 637 …. 11.18 S O Lovely Foods Pty Ltd v Macquarie Bank Ltd (CT, Cavanagh C, 28 March 1996, unreported) …. 11.144 Saade v Registrar-General (1993) 179 CLR 58 …. 8.192, 8.194 Sackville-West v Viscount Holmesdale (1870) LR 4 HL 543 …. 3.78 Safari 4 x 4 Engineering Pty Ltd v Doncaster Motors Pty Ltd [2006] VSC 46 …. 2.49 Sahab Holdings Pty Ltd v Registrar-General [2011] NSWCA 395 …. 8.116 Sahade v Owners Corporation SP 62022 [2013] NSWSC 1791 …. 8.116 — v The Owners — Strata Plan 62022 (2014) 87 NSWLR 261 …. 9.122 Saibai People v Queensland [1999] FCA 158 …. 4.66 Sakoua v Williams (2005) 64 NSWLR 588 …. 11.37, 11.109 Saleeba v Wilkie (2007) ANZ ConvR 664 …. 9.46 Salerno v Proprietors of Strata Plan No 42724 (1997) 8 BPR 15,457 …. 9.108 Saliba v Saliba [1976] Qd R 205 …. 3.91 Sammon, Re (1979) 94 DLR (3d) 594 …. 9.41 Sampi v Western Australia (2010) 266 ALR 537 …. 4.32 Samuel v Jarrah Timber and Wood Paving Corp Ltd [1904] AC 323 ….

14.24 Samuel Allen & Sons Ltd, Re [1907] 1 Ch 575 …. 2.25 Sander v Twigg (1877) 13 VLR 765 …. 14.20 Sanders v Cooper [1974] WAR 129 …. 11.95 Sanderson v Berwick-upon-Tweed Corporation (1884) 13 QBD 547 …. 11.23 Sandhu v Farooqui [2004] 1 P & CR 3 …. 5.91 Sandhurst Trustees Ltd v 72 Seventh Street Nominees Pty Ltd (in liq) (1998) 45 NSWLR 556 …. 3.19, 3.30 Sandilands, Re (1871) LR 6 CP 411 …. 6.5 Sandon v Hooper (1843) 6 Beav 246; 49 ER 820 …. 14.57 Santai v The Owners — Strata Plan No 77971 [2010] NSWSC 628 …. 9.104, 9.127 Santley v Wilde [1899] 2 Ch 474 …. 14.1, 14.25 Sardon Pty Ltd v Registrar of Titles [2004] WASC 56 …. 5.123 Saunders’ Case (1599) 5 Co Rep 12A; 77 ER 66 …. 3.52 Saviane v Stauffer Chemical Co (Australia) Pty Ltd [1974] 1 NSWLR 665 …. 11.30 Saxby Soft Drinks Pty Ltd v George Saxby Beverages Pty Ltd [2009] NSWSC 1486 …. 10.6 Say v Smith (1561) 1 Plowd 269; 75 ER 410 …. 11.4 Say-Dee Pty Ltd v Farah Constructions Pty Ltd [2005] NSWCA 309 …. 8.104 Scanlon v Campbell (1991) 11 SR (NSW) 239 …. 5.140 Schmidt v 28 Myola Street Pty Ltd (2006) 14 VR 447 …. 8.143 Scholes v Blunt (1916) 17 SR (NSW) 36 …. 7.39 Schwann v Cotton [1916] 2 Ch 459 …. 12.26 Sclanders v Cole (1918) 18 SR (NSW) 216 …. 3.51

Scotney v Lomer (1886) 31 Ch D 380 …. 10.14 Scott v Scott [2009] NSWSC 567 …. 9.45 Seager v Copydex Ltd [1967] 2 All ER 415 …. 1.71 Secretary, Department of Social Security v James (1990) 95 ALR 615 …. 6.24 Seddon v Smith (1877) 36 LT 168 …. 5.113, 5.118 Segal Securities Ltd v Thoseby [1963] 1 QB 887 …. 11.66 Segal v Barel (2013) 84 NSWLR 193 …. 9.64, 9.68 — v Obsborne [2016] NSWSC 941 …. 2.22 Segulin v Car Owners’ Mutual Insurance Co Ltd (1984) NSW ConvR ¶55– 191 …. 14.93 Seiwa Pty Ltd v Owners Strata Plan 35042 [2006] NSWSC 1157 …. 9.84 Selby v Nettlefold (1873) 9 Ch App 111 …. 12.39 Sertari Pty Ltd v Nirimba Developments Pty Ltd (2008) NSW ConvR ¶56200 …. 12.36 Seton v Slade (1802) 7 Ves 265 at 273; 32 ER 108 …. 14.24 Sewell v Agricultural Bank of Western Australia (1930) 44 CLR 104 …. 14.98 Sexton v Horton (1926) 38 CLR 240 …. 3.77 Seyffer v Adamson [2001] NSWSC 1132 …. 5.150, 5.152 Seymour v Seymour (1996) 40 NSWLR 358 …. 5.134 Shanly v Ward (1913) 29 TLR 714 …. 11.43 Shaw v Garbutt (1996) 7 BPR 14,816 …. 5.86, 5.92, 5.119, 5.136, 5.140 Shawyer v Amberday Pty Ltd (in liq) (2001) 10 BPR 18,869 …. 7.35 Shelfer v City of London Electric Lighting Co [1895] 1 Ch 287 …. 13.41 Shell Co of Australia Ltd v Zanelli [1973] 1 NSWLR 216 …. 11.75 Shelley’s Case (1581) 1 Co Rep 93b; 76 ER 206 …. 3.71 Shelmerdine v Ringen Pty Ltd [1993] 1 VR 315 …. 5.135 Shepherd v Houston [1927] SASR 144 …. 8.146

Shevill v Builders Licensing Board (1989) 149 CLR 629 …. 11.59, 11.60 Shi v ABI-K Pty Ltd (2014) 87 NSWLR 568 …. 12.34 Shiloh Spinners Ltd v Harding [1973] AC 691 …. 11.72 Shirlaw v Southern Foundries (1926) Ltd [1939] 2 KB 206 …. 11.35 Short v Gill (1892) 13 LR(NSW) Eq 155 …. 7.21 — v Patrial Holdings Pty Ltd (1994) 6 BPR 13,996 …. 12.5 Shrimpton v Shrimpton (1862) 31 Beav 425 …. 10.14 Shropshire County Council v Edwards (1982) 46 P & CR 270 …. 13.5 Shropshire Union Railways & Canal Co v R (1875) LR7HL 496 …. 7.30 Sibbles v Highfern (1987) 164 CLR 214 …. 14.136 Sidebotham v Holland [1895] 1 QB 378 …. 11.11 Sidhu v Van Dyke (2014) 251 CLR 505 …. 6.41, 6.42 Siemenski v Brooks Nominees Pty Ltd 1990 Tas R 236 …. 8.81 Silktone Pty Ltd v Devreal Capital Pty Ltd (1990) 21 NSWLR 317 …. 14.119 Simmons v New South Wales Trustee and Guardian [2014] NSWCA 405 …. 8.97 Simpson v Forrester (1973) 132 CLR 499 …. 14.72 — v Mayor of Godmanchester [1897] AC 696 …. 12.5 — v North West County District Council (1978) 4 BPR 9277 …. 5.140 Sims v Landray [1894] 2 Ch 318 …. 6.9 Sinclair v Jut (1996) 9 BPR 16,219 …. 12.396 Singer Co v Clark (1879) 5 Ex D 37 …. 2.49 Singh v Kaur Bal (No 2) [2014] WASCA 88 …. 9.2, 9.25 Sirtes v Pryer [2006] ANZ ConvR 188 …. 6.34 Sistrom v Urh (1993) 117 ALR 528 …. 9.52 Slater v Slater (1987) 12 Fam LR 1 …. 9.44

Smilevska v Smilevska (No 2) [2016] NSWSC 397 …. 6.13, 6.42, 8.96 Smith v City Petroleum Co Ltd [1940] 1 All ER 260 …. 2.26, 2.28 — v Deane (1889) 10 LR (NSW) Eq 207 …. 7.41 — v Jones [1954] 1 WLR 1089 …. 7.19, 7.33, 7.45 — v Lawson (1997) 75 P & CR 466 …. 5.87 — v Marrable (1843) 11 M & W 5; 152 ER 693 …. 11.25, 11.60 — v Miller (Bryson J, 23 April 1993, unreported, BC9301695) …. 14.32 — v Scott [1973] 1 Ch 314 …. 11.23 — v Smith [1934] Ch 322 …. 14.33 Smith & Snipes Hall Farm Ltd v River Douglas Catchment Board [1949] 2 KB 500 …. 13.3, 13.4, 13.5, 13.10 Smith, Kline & French Laboratories (Australia) Ltd v Secretary, Department of Community Services and Health (1990) 95 ALR 87 …. 1.71 Solak v Bank of Western Australia Ltd [2009] VSC 82 …. 8.48 South Eastern Sydney Area Health Service v Wallace (2003) 59 NSWLR 259 …. 10.27, 10.32 South Maitland Railways Pty Ltd v Satellite Centres Australia Pty Ltd [2009] NSWSC 716 …. 5.101, 5.104, 5.109, 5.110, 5.112 South Staffordshire Water Co v Sharman [1896] 2 QB 44 …. 2.66 South-Eastern Drainage Board (SA) v Savings Bank of South Australia (1939) 62 CLR 603 …. 8.107, 8.114 Southern Centre of Theosophy Inc v South Australia [1982] AC 706 …. 2.15 Southern Rhodesia, Re [1919] AC 211 …. 4.9 Southwark London Borough Council v Mills [2001] 1 AC 1 …. 11.23 Southwell v Roberts (1940) 63 CLR 581 …. 14.57, 4.124 Sovmots Investments Ltd v Secretary of State for the Environment [1979] AC 144 …. 12.26 Spackman v Foster (1883) 11 QBD 99 …. 2.51

Spark v Whale Three Minute Car Wash (Cremorne Junction) Pty Ltd (1970) 92 WN (NSW) 1087 …. 5.33, 5.45 Spencer’s Case (1583) 5 Co Rep 16a; 77 ER 72 …. 11.47, 13.1, 14.17 Spencer v Commonwealth (1907) 5 CLR 418 …. 9.122 Spina v Conran Associates Pty Ltd (2008) 13 BPR 25,435 …. 8.96 Sporle v Whayman (1855) 20 Beav 607; 52 ER 738 …. 14.16 Spotswood v Hand (1874) 5 AJR 85 …. 3.52 Sprott v Harper [2000] QCA 391 …. 9.44 Spyer v Phillipson [1931] 2 Ch 183 …. 2.19, 2.26 Squire v Rogers (1979) 39 FLR 106 …. 9.56 SS & M Ceramics Pty Ltd v Kin [1996] 2 Qd R 540 …. 12.36 St Catherine’s Milling and Lumber Co v R (1888) 14 App Cas 46 …. 4.42 Standard Chartered Bank Ltd v Walker [1982] 1 WLR 1410 …. 14.101 Stanford v Stanford (2012) 247 CLR 108 …. 6.51 Stanhill Pty Ltd v Jackson (2005) 12 VR 224 …. 13.49 Stanwell Park Hotel v Leslie (1952) 85 CLR 189 …. 14.32 Stapleford Colliery Co, Re (1880) 14 Ch D 432 …. 7.25 Star Energy Weald Basin Ltd v Bocardo SA [2011] AC 380 …. 2.6 State Bank of New South Wales Ltd v Chia (2000) 50 NSWLR 587 …. 14.41 State Bank of New South Wales v Berowra Waters Holdings Pty Ltd (1986) 4 NSWLR 398 …. 8.31, 8.116, 14.78 State Electricity Commission of Victoria and Joshua’s Contract, Re [1940] VLR 121 …. 12.30, 12.42 State Transit Authority of NSW v Australian Jockey Club (2003) 11 BPR 21,107 …. 7.21 Staughton v Brown (1875) 1 VLR (L) 150 …. 5.99 Steadman v Steadman [1976] AC 536 …. 6.12

Steel-Maitland v British Airways [1981] SLT 110 …. 2.9 Stefanovic v Petrovic (NSWCA, Gleeson CJ, Meagher JA, Hope AJA, 30 October 1989, unreported) …. 8.126 Stellard Pty Ltd v North Queensland Fuel Pty Ltd …. 6.8 Stening v Abrahams [1931] 1 Ch 470 …. 11.42 Stephens v Stephens (1736) Cas t Talb 228; 25 ER 751 …. 10.26 Stern, Re [1962] Ch 732 …. 10.26 Stern v McArthur (1988) 165 CLR 489 …. 6.14 Stevens v Williams (1886) 12 VLR 152 …. 8.83 Stevenson v Yasso [2006] 2 Qd R 150 …. 4.28 Stewart v Williams (1914) 18 CLR 381 …. 3.25 Sticklehorne v Hatchman (1586) Owen 43 …. 3.51 Stieper v Deviot Pty Ltd (1977) 2 BPR 9602 …. 11.71 Stokes v Costain Property Investments Ltd [1983] 1 WLR 907 …. 3.39 — v Mixconcrete (Holdings) Ltd (1978) 38 P & CR 488 …. 12.37 Stone v Farrow Mortgage Services Pty Ltd (in liq) (1999) 12 BPR 22,175 …. 14.103 Stone Leaf Capital v Daley [2014] NSWSC 477 …. 8.180, 8.181 Stoneham, Re; Stoneham v Stoneham [1919] 1 Ch 149; [1918–19] All ER Rep 1051 …. 6.45 Story v Advance Bank Australia Ltd (1993) 31 NSWLR 722 …. 8.93, 8.100, 8.101, 8.202, 8.205 Stow v Mineral Holdings (Australia) Pty Ltd (1977) 180 CLR 295; 14 ALR 397 …. 1.6, 1.75, 12.12 Street v Mountford [1985] AC 809 …. 11.5 Strode v Parker (1694) 2 Vern 326 …. 14.32 Strong v Bird (1874) LR 18 Eq 315 …. 8.126 Stroyan v Knowles (1861) 6 H & N 454 …. 12.11

Stuart v Hishon [2013] NSWSC 766 …. 6.8 — v Joy [1904] 1 KB 362 …. 11.44 — v Kingston (1923) 32 CLR 309 …. 8.74 — v Marshall (1958) 75 WN (NSW) 252 …. 11.5 Sturges v Bridgman (1879) 11 Ch D 852 …. 12.33 Summers v Salford Corp [1943] AC 283 …. 11.109 Sun North Investments Pty Ltd (as Trustee of Sun Development Trust) v Dale [2014] 1 Qd R 369 …. 14.23, 14.31 Sundara Ptd Ltd, Re [2015] NSWSC 1694 …. 8.114 Sunny Corporation Pty Ltd v Elkayess Nominees Pty Ltd [2006] VSC 314 …. 5.112 Super 1000 v Pacific General Securities [2008] NSWSC 1222; (2008) 221 FLR 427 …. 8.105 Surtees v Surtees (1871) LR 12 Eq 400 …. 9.13 Sutherland v Peel (1864) 1WW & A’B 18 …. 7.41 Sutton v Sutton (1883) 22 Ch D 511 …. 14.45 Suttons Motors (Temora) Pty Ltd v Hollywood Motors Pty Ltd [1971] VR 684 …. 2.63 Swain v Residential Tenancies Tribunal of New South Wales (NSWSC, Rolfe J, 22 March 1995, unreported, BC9504317) …. 11.118 Swan v Sinclair [1924] 1 Ch 254 …. 12.56 Sweet & Maxwell v Universal News Service Ltd [1964] 2 QB 699 …. 11.42 Swettenham v Wild [2005] QCA 264 …. 6.30 Swindon Waterworks Co Ltd v Wilts and Berks Canal Navigation Co (1875) LR 7 HL 697 …. 12.11 Sydney & Suburban Mutual Permanent Building Society Ltd v Lyons [1894] AC 260 …. 7.39 Sydney City Council v Parker (NSWSC, Cantor J, 1 March 1984, unreported) …. 2.36

Symes v Pitt [1952] VLR 412 …. 5.140 Sze To Chun Keung v Kung Kwok Wai David [1997] 1 WLR 1232 …. 5.142 Sze Tu v Lowe [2014] NSWCA 462 …. 8.105

T T Choithram International SA v Pagarani [2001] 1 WLR 1 …. 8.126 Taddeo v Catalano (1975) 11 SASR 492 …. 8.168 Tadrous v Tadrous [2009] NSWSC 407 …. 8.151 Taleb v National Bank Australia Ltd (2011) 82 NSWLR 489 …. 8.162, 8.166, 8.173, 8.182 Tancred v Allgood (1859) 4 H & N 438; 157 ER 910 …. 2.60 Tanwar Enterprises Pty Ltd v Cauchi (2003) 217 CLR 315 …. 6.14, 6.18 Tara Shire Council v Garner [2003] 1 Qd R 556 …. 8.104 Tataurangi Tairuakena v Mua Carr [1927] NZLR 688 …. 8.96, 8.101 Tate v Commonwealth (NSWSC, Loveday J, 17 June 1988, unreported, BC8801829) …. 11.112 Taylor v Beal (1591) Cro Eliz 222; 78 ER 478 …. 11.81 — v London and County Banking [1901] 2 Ch 231 …. 7.30 — v Parkinson (1911) 31 NZLR 354 …. 14.98 — v Stibbert (1794) 2 Ves 437; 30 ER 713 …. 7.19 Taylor d Atkyns v Horde (1757) 1 Burr 60; 97 ER 190 …. 3.9 Teasdale v Sanderson (1864) 33 Beav 534; 55 ER 476 …. 9.58 TEC Desert Pty Ltd v Commissioner of State Revenue (2010) 241 CLR 576 …. 2.18 Tecbild Ltd v Chamberlain (1969) 20 P & CR 633 …. 2.32, 5.98 Tempe Recreational Reserve Trust v Sydney Water Corporation (2014) 88 NSWLR 449 …. 12.36

Templeton (Registrar of Titles (Vic)) v Leviathan Pty Ltd (1921) 30 CLR 34 …. 8.172 Tenstat Pty Ltd v Permanent Trustee Australia Ltd (1992) 28 NSWLR 625 …. 8.40 Tewkesbury Gas Company, Re [1911] 2 Ch 279 …. 14.46 Texaco Antilles Ltd v Kernochan [1973] AC 609 …. 13.34, 13.45 Thamesmead Town Ltd v Allotey (2000) 79 P & CR 557 …. 13.14 The Winkfield [1902] P 42 …. 2.52, 2.61, 2.62, 2.70 Thellusson v Woodford (1799) 4 Ves 227; 31 ER 117; (1805) 11 Ves 112 …. 10.56 Theodore v Mistford Pty Ltd (2005) 221 CLR 612; 219 ALR 296 …. 6.12, 8.16, 14.16 Thompson v Ward (1871) LR 6 CP 327 …. 11.92 Thompson’s Mortgage Trusts, Re [1920] 1 Ch 508 …. 14.124 Thomson v McInnes (1911) 12 CLR 562 …. 6.8 Thoo v Owners — Strata Plan No 50276 [2014] HCASL 79 …. 9.84 Thorndike v Hunt (1859) 3 De G & J 563 …. 7.11 Thorner v Major [2009] 3 All ER 945 …. 6.41 Thorpe v Commonwealth (1997) 71 ALJR 767 …. 4.35 Threlfall, Re (1880) 16 Ch D 274 …. 11.11 Thrift v Thrift (1975) 10 ALR 332 …. 9.54 Thwaites v Brahe (1895) 21 VLR 192 …. 12.33 Ticehurst v Cross (2006) NSW ConvR ¶56-136 …. 11.143, 11.144 Tichborne v Weir (1892) 67 LT 735; [1891–94] All ER Rep 449 …. 11.50 Tickle v Brown (1836) 4 Ad & E 369 …. 12.33 Tidex v Trustees Executors and Agency Co Ltd [1971] 2 NSWLR 453 …. 10.29 Tierney v Loxton (1891) 12 LR (NSW) 308 …. 8.143

Tillack v Tillack [1941] VLR 151 …. 9.65 Tiller v Hawes (2005) 13 BPR 24,203 …. 12.7 Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2010] NSWSC 29 …. 11.60, 11.77 Timpar Nominees Pty Ltd v Archer [2001] WASCA 430 …. 12.36 Todd v Jingalong Pty Ltd [2014] NSWSC 362 …. 8.68 Todrick v Western National Omnibus Co Ltd [1934] 1 Ch 561 …. 12.5 — v — [1934] 1 WLR 589 …. 12.38 Toogood v Mills (1896) 23 VLR 106 …. 6.8 Toohey v Gunther (1928) 41 CLR 181 …. 8.82, 14.23, 14.296 Tooheys Ltd v Municipal Council of Sydney (1946) 71 CLR 407 …. 14.21 Topfelt Pty Ltd v State Bank of New South Wales (1993) NSW ConvR ¶55– 676 …. 14.91 Tophams Ltd v Earl of Sefton [1967] 1 AC 50 …. 13.12 Torrisi v Oliver [1951] VLR 380 …. 11.92 Toscano v Holland Securities Pty Ltd (1985) 1 NSWLR 145 …. 14.35 Town and Country Sports Resorts (Holdings) Pty Ltd v Partnership Pacific Ltd (1988) ATPR ¶40–911 …. 14.116 Townsend v Waverley Council (2001) 120 LGERA 224; [2001] NSWSC 384 …. 5.72, 5.73 Toyota Finance Australia Ltd v Dennis (2002) 58 NSWLR 101 …. 2.63 Travinto Nominees Pty Ltd v Vlattas [1972] 1 NSWLR 24 …. 8.57, 8.58, 8.59 — v — (1973) 129 CLR 1 …. 8.39, 8.42, 8.107, 8.108 Travis v Proprietors — Strata Plan No 3740 (1969) 90 WN (Pt 1) (NSW) 711 …. 9.78 Treloar v Nute [1976] 1 WLR 1295 …. 5.106 Trevallyn-Jones v Owners Strata Plan No 50358 [2009] NSWSC 694 …. 9.84

Treweeke v 36 Wolseley Road Pty Ltd (1973) 128 CLR 274 …. 12.56, 12.59, 12.62 Trieste Investments Pty Ltd v Watson (1963) 64 SR (NSW) 98 …. 8.186 Tristmire Ltd v Mew [2012] 1 WLR 852 …. 2.21 Troja v Troja (1994) 33 NSWLR 269 …. 9.49 Troncone v Aliperti (1994) 6 BPR 13,291 …. 8.143 Truman, Hanbury, Buxton and Co Ltd’s Application, Re [1956] 1 QB 261 …. 13.48 Trust Company Ltd v Chief Commissioner of State Revenue (2007) 13 BPR 25,019 …. 5.26 Trustees of Church Property of the Diocese of Newcastle v Ebbeck (1960) 104 CLR 394 …. 3.92 Trustees of the Property of Cummins (a bankrupt) v Cummins (2006) 227 CLR 278; 224 ALR 280 …. 6.29, 6.54, 9.8, 9.17, 9.19, 9.53 Trustees, Executors and Agency Co Ltd v Short (1888) 13 App Cas 793 …. 5.137 Tse Kwong Lam v Wong Chit Sen [1983] 3 All ER 54; (1983) ANZ ConvR 520 …. 14.111 Tsilhqot’in Nation v British Columbia 2014 SCC 44 …. 4.32 Tubantia, The [1924] P 78 …. 2.41, 2.42 Tuck’s Settlement Trusts [1978] Ch 49 …. 3.93 Tucker v US Department of Commerce 958 F 2d 1411 …. 4.52 Tujilo v Watts [2005] NSWSC 209 …. 12.63 Tulk v Moxhay (1848) 41 ER 1143 …. 13.15, 13.16, 13.17, 13.18, 13.23 Turnbull v National Mutual Royal Bank (1992) 26 NSWLR 361 …. 14.95 Turner v Jackson (1856) 1 VLT 127 …. 3.54 — v York Motors Pty Ltd (1951) 85 CLR 55 …. 11.14, 11.15 Tutt v Doyle (1997) 42 NSWLR 10 …. 8.93 Twentieth Century Banking Corporation Ltd v Wilkinson [1976] 2 WLR

489 …. 14.72

U Ultimate Property Group Pty Ltd v Lord (2004) 60 NSWLR 646 …. 14.106 Underwood Estate Acts and Account (No 2), Re (1888) 9 LR (NSW) (Eq) 105 …. 3.47 Union Lighterage Co v London Graving Dock Co [1902] 2 Ch 557 …. 12.29, 12.33 United Star Bowkett Co-operative Building Society (No 11) Ltd v Clyne (1967) 68 SR (NSW) 331 …. 8.89, 8.181 United States v Alcea Band of Tillamooks 329 US 40 (1946) …. 4.36 United States of America and Republic of France v Dollfus Mieg et Compagnie SA and Bank of England [1952] AC 582 …. 2.43, 2.48 Universal Music Australia Pty Limited v Pavlovic [2015] NSWSC 791 …. 6.8 Usborne v Usborne (1740) Dick 75; 21 ER 196 …. 14.63

V Vacuum Oil Co Ltd v Ellis [1914] 1 KB 693 …. 14.51 Valoutin Pty Ltd v Furst (1998) 154 ALR 119 …. 8.124 Van den Bosch v Australian Provincial Assurance Association Ltd (1968) 88 WN (Pt 1) (NSW) 357 …. 4.75, 4.79 Van den Heuvel v Perpetual Trustees Victoria Ltd; Registrar General of NSW v Van den Heuvel [2010] NSWCA 171 …. 8.47, 8.54, 8.55, 8.56, 9.38, 14.35, 14.36 Van der Peet v R [1996] 2 SCR 507 …. 4.28 Vanderplank v King (1843) 3 Hare 1; 67 ER 273 …. 10.26 Vane v Lord Barnard (1716) 2 Vern 738; 23 ER 1082 …. 3.54 Vantage Systems Pty Ltd v Priolo Corp Pty Ltd [2015] WASCA 21 …. 6.8 Vasiliou v Westpac Banking Corp (2007) 19 VR 229 …. 14.106

Vassos v State Bank of South Australia [1993] 2 VR 316 …. 8.32, 8.93, 8.94, 8.99, 8.202, 8.203 Vaudeville Electric Cinema Ltd v Muriset [1923] 2 Ch 74 …. 2.22 Vella v Permanent Mortgages Pty Ltd (2008) 13 BPR 25,343 …. 8.46, 8.48, 8.50 — v Wah Lai Investment (Aust) Pty Ltd (2004) 12 BPR 22,671 …. 11.7, 11.18 Vernon v Smith (1821) 5 B & Ald 1; 106 ER 1094 …. 11.46 Vero Insurance Ltd v Owners of Strata Plan No 69352 (2011) 81 NSWLR 227 …. 9.76 Verrall v Nott (1939) 39 SR (NSW) 89 …. 2.13 Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479 …. 1.66, 1.68, 2.7, 12.7, 12.10 Victorian Farmers’ Loan and Agency Co Ltd, Re (1897) 22 VLR 629 …. 8.142 Villar, Re [1929] 1 Ch 243 …. 10.27 Vopak Terminal Darwin Pty Ltd v Natural Fuels Darwin Pty Ltd (2009) 258 ALR 89 …. 2.18, 2.26, 2.28 Votrubec Investments Pty Ltd v Hospital Foods and Services Pty Ltd (1981) 5 BPR 11,712 …. 14.57

W W v D (2012) 115 SASR 61 …. 9.58 W R Carpenter Australia v Ogle [1999] 2 Qd R 327 …. 14.75 Waanyi People’s Native Title Application, Re (1994) 129 ALR 100 …. 4.73 Wadham, In the matter of a Caveat by (1879) 13 SALR 70 …. 8.145 Wadi Wadi People’s Native Title Application, Re (1995) 129 ALR 167 …. 4.35 Waimiha Sawmilling Co Ltd v Waione Timber Co Ltd [1926] AC 101 …. 8.21, 8.65, 8.66

Waimiha Sawmilling Co Ltd (in liq) v Waione Timber Co Ltd [1923] NZLR 1137 …. 8.71 Wakeham v Wood (1982) 43 P & CR 40 …. 13.41 Walker v Bridgewood (2006) 12 BPR 23,537; [2006] NSWSC 149 …. 12.36, 12.38, 12.61 — v Linom [1907] 2 Ch 104 …. 7.6, 7.30, 8.163, 14.128 — v Puvesi Pty Ltd (RTT 86/000006) …. 11.92 Wallis’ Cayton Bay Holiday Camp Ltd v Shell Mex and BP Ltd [1975] QB 94; [1974] 3 All ER 575 …. 5.106, 5.107 Walsh v Lonsdale (1882) 21 Ch D 9 …. 6.15, 11.7, 11.76, 12.17, 12.20, 12.68, 14.16, 14.51 Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 …. 6.41, 6.42, 11.7, 11.18 Wandsworth Board of Works v United Telephone Co (1884) 13 QBD 904 …. 2.6 Wanner v Caruana [1974] 2 NSWLR 301 …. 14.33 Ward v Kirkland [1967] Ch 194 …. 12.26, 12.27 — v Western Australia (1998) 159 ALR 483 …. 4.17, 4.42, 4.58 Wardell v Usher (1841) 10 LJCP 316 …. 2.26 Warmington v Miller [1973] QB 877; [1973] 2 All ER 372 …. 11.7 Warren v Keen [1954] 1 QB 15 …. 11.26, 11.38 Watson v Royal Permanent Building Society (1888) 14 VLR 283 …. 14.20 Watt v Lord (2005) 62 NSWLR 495 …. 8.19 Watts v Public Trustee (1949) 50 SR (NSW) 130 …. 8.126 Watu-Ofei v Danquah [1961] 1 WLR 1238 …. 5.118 Waverley Borough Council v Fletcher [1996] QB 334 …. 2.60 Weatherhead v Deka New Zealand Ltd (No 2) [1999] 1 NZLR 453 …. 11.39 Webb v Austin (1844) 7 Man & G 701 …. 11.18

Webeck v Foley (1992) 5 BPR 11,694 …. 5.153 — v — (1992) NSW ConvR 59, 717 …. 5.126 Weber v Ankin (2008) 13 BPR, 25,231 …. 5.74, 5.151, 12.31 Websdale v S & J D Investments Pty Ltd (1991) 24 NSWLR 573 …. 14.92 Webster v Bradac (1993) 5 BPR 12,032 …. 12.63, 13.50 Weg Motors Ltd v Hales [1961] Ch 176 …. 11.46 Weld-Blundell v Wolseley [1903] 2 Ch 664 …. 3.54 Wellaway v Courtier [1918] 1 KB 200 …. 2.31 Weller v Williams [2010] NSWSC 716 …. 8.181 Wernher’s Settlement Trusts, Re [1961] 1 WLR 136 …. 10.18 West v AGC (Advances) Ltd (1986) 5 NSWLR 610 …. 14.35 — v Williams [1899] 1 Ch 132 …. 14.135 West Bank Estates Ltd v Arthur [1967] 1 AC 665 …. 5.105 West Bromwich Building Society v Bullock [1936] 1 All ER 887 …. 14.45 West Coast Hotel Co v Parrish 300 US 379 (1937) …. 1.17 West Ham Central Charity Board v East London Waterworks Co [1900] 1 Ch 624 …. 3.50 West London Commercial Bank v Reliance Permanent Building Society (1885) 29 Ch D 954 …. 14.124 West Sussex Constabulary’s Widows, Children and Benevolent (1930) Fund Trusts, Re [1971] Ch 1 …. 6.27 Western Australia v Brown (2014) 253 CLR 507 …. 4.23, 4.58, 4.62 — v Commonwealth (1995) 183 CLR 373 …. 4.23, 4.33, 4.63 — v Sebastian (2008) 173 FCR 1 …. 4.32 — v Thomas (1996) 133 FLR 124 …. 4.87 — v Ward (2000) 99 FCR 316; 170 ALR 159 …. 4.22, 4.54, 4.58, 4.86 — v — (2002) 213 CLR 1; 191 ALR 1 …. 4.23, 4.27, 4.39, 4.42, 4.44, 4.45,

4.47, 4.49, 4.54, 4.55, 4.56, 4.58, 4.59, 4.60, 4.62, 4.73, 4.74, 4.86, 5.8, 5.29 Westfield Holdings Ltd v Australian Capital Television Pty Ltd (1992) 32 NSWLR 194 …. 14.31 Westfield Management Ltd v Perpetual Trustee Co Ltd (2006) NSW ConvR ¶56-163 …. 12.36 — v — (2007) 233 CLR 528 …. 12.36 Westpac Banking Corporation v Ollis [2008] NSWSC 824 …. 6.14, 8.181 — v Sansom (1995) NSW ConvR ¶55-733 …. 8.203 Westpoint Corporation Pty Ltd v Registrar of Titles [2004] WASC 189 …. 13.18, 13.38 Whaley, Re [1908] 1 Ch 615 …. 2.16, 2.19 Wheeldon v Burrows (1879) 12 Ch D 31 …. 8.84, 12.24, 12.26, 12.32, 12.40 Whitby v Mitchell (1890) 44 Ch D 85 …. 10.4, 10.5 — v Von Luedecke [1906] 1 Ch 783 …. 10.10 White v Betalli [2006] NSWSC 537 …. 9.74, 9.104, 9.108, 9.134 — v — (2007) 71 NSWLR 381 …. 9.74, 9.108, 9.134, 11.7 — v Grand Hotel, Eastbourne Ltd [1913] 1 Ch 113 …. 12.38 — v Hunter (1868) 5 WW & A’B (E) 178 …. 7.37 — v Neaylon (1886) 11 App Cas 171 …. 7.37, 7.38 — v Spiers Earthworks Pty Ltd (2014) 99 ACSR 214 …. 14.9 — v Taylor (No 2) [1969] 1 Ch 160 …. 12.26 — v Tomasel [2004] 2 Qd R 438 …. 8.93, 8.94 White Rose Cottage, Re [1964] Ch 483 …. 14.90 Whitham v Kershaw (1886) 16 QBD 613 …. 11.38 Whittlesea City Council v Abbatangelo (2009) 259 ALR 56 …. 5.51, 5.77, 5.82, 5.109, 5.111, 5.115, 5.116, 5.118 Wicks v Bennett (1921) 30 CLR 80 …. 8.97

Wik Peoples v Queensland (1996) 187 CLR 1; 141 ALR 129 …. 3.7, 3.11, 3.20, 3.22, 3.23, 3.24, 3.25, 3.26, 3.30, 3.32, 3.34, 4.1, 4.9, 4.17, 4.22, 4.37, 4.39, 4.42, 4.44, 4.57, 4.58, 4.62, 4.68, 4.73, 4.74, 11.1 — v — (1996) 63 FCR 450; 134 ALR 637 …. 4.73 Wilcox v Richardson (1997) 43 NSWLR 4 …. 12.51, 12.53 Wilde v Spratt (1986) 70 ALR 171 …. 7.39 Wilford’s Estate, Re; Taylor v Taylor [1934] VLR 129 …. 9.44 Wilkes v Greenway (1890) 6 TLR 449 …. 12.29 — v Spooner [1911] 2 KB 473 …. 7.25, 8.177, 13.19 Wilkie v Blacktown City Council (2002) 121 LGERA 444 …. 11.23 Wilkinson v Haygarth (1847) 12 QB 837; 116 ER 1085 …. 9.54 — v Rogers (1864) 2 De GJ & S 62; 46 ER 298 …. 11.46 Willey v Synan (1937) 57 CLR 200 …. 2.65 Williams v Clark (1851) 4 De G & Sm 472 …. 10.14 — v Earle (1868) LR3QB 739 …. 11.46 — v Hensman (1861) 1 J & H 546 …. 9.27, 9.44, 9.45 — v James (1867) LR 2 CP 577 …. 12.25 — v Legg (1993) 29 NSWLR 687 …. 9.63 — v Marac Australia Ltd (1985) 5 NSWLR 529 …. 8.23 — v Minister, Aboriginal Land Rights Act (1994) 35 NSWLR 497 …. 4.35 — v Papworth [1900] AC 563 …. 8.186 — v State Transit Authority of New South Wales (2004) 60 NSWLR 286 …. 5.7, 7.21, 8.86, 12.33, 12.50, 12.51, 12.52, 12.76 — v — [2005] HCA Trans 296 …. 12.52 — v Wellingborough Borough Council [1975] 1 WLR 1327 …. 14.97 Williams Bros Direct Supply Ltd v Raftery [1958] 1 QB 159 …. 5.105, 5.110 Williamson v Bors (1900) 21 NSWLR (Eq) 302 …. 7.16 — v Friend (1901) 1 SR (NSW) (Eq) 23 …. 2.8

Wilson v Anderson (2002) 213 CLR 401; 190 ALR 313 …. 4.62 — v Knox (1884) 13 LR Ir 349 …. 10.14 — v Lombank [1963] 1 WLR 1294 …. 2.48 — v Registrar-General of New South Wales (2004) 12 BPR 22,667 …. 8.87 — v Stewart (1889) 15 VLR 781 …. 11.66 Wilson, Ex parte; Re Bannister (1925) 25 SR (NSW) 375 …. 14.55 Wily as Administrator of Macquarie Medical Holdings Pty Ltd v Endeavour Health Care Services Pty Ltd (2003) 12 BPR 22,447 …. 14.31 Windella (NSW) Pty Ltd v Hughes (1999) NSW ConvR ¶55–926 …. 14.19 Wirth v Wirth (1956) 98 CLR 228 …. 6.29 Wogama Pty Ltd v Harris [1969] 1 NSWR 245; (1968) 89 WN (Pt 2) (NSW) 62 …. 5.103 Wollondilly Shire Council v Picton Power Lines Pty Ltd (1994) 33 NSWLR 551 …. 10.2 Wong v Beaumont Property Trust Ltd [1965] 1 QB 173 …. 12.29 Wood Factory Pty Ltd v Kiritos Pty Ltd (1985) 2 NSWLR 105 …. 11.65, 11.76 Wood, Re; Tullett v Colville [1894] 3 Ch 381 …. 10.31 Woodall v Clifton [1905] 2 Ch 257 …. 8.43, 11.46 Woodbury v Gilbert (1907) 3 Tas LR 7 …. 8.146 Woodhouse v Walker (1880) 5 QBD 404 …. 3.50 Woodland v Manly Municipal Council (No 1) (2003) 11 BPR 20,903 …. 12.34 Woodward v Wesley Hazell Pty Ltd (1994) ANZ ConvR 624 …. 5.109 Woollerton v Costain [1970] 1 WLR 411 …. 2.8 Worimi (aka Gary Dates) v Worimi Local Aboriginal Land Council (2010) 181 FCR 320 …. 4.27 World Best Holdings Ltd v Sarker [2010] NSWCA 24 …. 11.65

Worssam v Vandenbrande (1858) 17 WR 53 …. 5.140 Worthington v Morgan (1849) 16 Sim 547; 60 ER 987 …. 7.23 Wortley v Birkhead (1754) 2 Ves Sen 571 …. 7.44 Wratten v Hunter [1978] 2 NSWLR 367 …. 6.24 Wrey, Re (1885) 30 Ch D 507 …. 10.14 Wright v Gibbons (1949) 78 CLR 313 …. 9.3, 9.25, 9.29 — v Macadam [1949] 2 KB 744 …. 12.7, 12.27 — v Madden [1992] 1 Qd R 343 …. 6.11 — v New Zealand Farmers Co-operative Association of Canterbury Ltd [1939] AC 439 …. 14.96 — v Williams (1836) 1 M & W 77 …. 12.42 Wurridjal v The Commonwealth of Australia (2009) 237 CLR 309 …. 4.50 Wyatt v Harrison (1832) 3 B & Ad 871 …. 12.11 Wynne v Green (1901) 1 SR (NSW) 40 …. 2.34 — v Moore (1870) 1 AJR 156 …. 14.97 Wynstanley v Lee (1818) 36 ER 643 …. 12.32

X Xenos v Wickham (1867) LR 2 HL 296 …. 6.5

Y Yanner v Eaton (1999) 201 CLR 351; 166 ALR 258 …. 3.2, 4.27, 4.28, 4.57, 4.58, 4.61, 4.85 Yazgi v Permanent Custodians Ltd (2007) NSWCA 240 …. 8.47, 8.48, 8.49, 8.50, 8.197 Yearworth v North Bristol NHS Trust [2009] 3 WLR 118; [2009] EWCA Civ 37 …. 1.64, 1.65 Yeoman’s Row Management Ltd v Cobbe [2008] 4 All ER 713 …. 6.41

Yerkey v Jones (1939) 63 CLR 649 …. 14.40 Yip v Frolich (2004) 89 SASR 467 …. 12.36 York Street Pty Ltd v Proprietors of Strata Plan No 16123 (1998) 43 NSWLR 504 …. 12.34 Yorkshire Bank plc v Hall [1999] 1 All ER 879 …. 14.102 Yorta Yorta Aboriginal Community v Victoria [1998] FCA 1606 …. 4.17, 4.28, 4.29, 4.66 — v — (2001) 110 FCR 244; 180 ALR 655 …. 4.27, 4.29 — v — (2002) 214 CLR 422; 194 ALR 538 …. 4.18, 4.31, 4.32, 4.56, 4.66 Young v Hichens (1844) 6 QB 606 …. 2.41, 2.64 — v Hoger (2002) Q ConvR 54-557 …. 8.71 — v Owners Strata Plan No 3529 (2001) 54 NSWLR 60; [2001] NSWSC 1135 …. 9.110

Z Zanzoul v Westpac Banking Corp (1995) NSW ConvR ¶55–749 …. 14.54 Zapletal v Wright [1957] Tas SR 211 …. 3.81, 3.114, 3.116 Zegir v Woop [1955] VLR 394 …. 11.16 Zeutmint Pty Ltd v Scottish Amicable Life Assurance Society [1984] 3 NSWLR 293 …. 14.116 Zisti v Ryde Joinery Pty Ltd (1996) 7 BPR 15,217 …. 8.173

Table of Statutes References are to paragraph numbers

Commonwealth Aboriginal Land Rights (Northern Territory) Act 1976 …. 4.11 Aged Care Act 1997 …. 11.103 Australian Bicentennial Act 1980 …. 1.74 s 22 …. 1.74 s 22(1)(a) …. 1.74 s 22(6)(d)(i) …. 1.74 s 22(6)(d)(ii) …. 1.74 Australian Consumer Law …. 14.39 Pt 2-2 …. 14.34 Pt 2-3 …. 14.34 s 12BAA(7)(a) …. 14.34 s 18 …. 14.34 s 23(3)(b) …. 14.34 s 26(1) …. 14.34 Australian Securities and Investments Commission Act 2001 …. 14.34 Pt 2 Div 2 …. 14.34 Pt 2 Div 2 Subdiv BA …. 14.34 s 12BAA …. 14.34 s 12CB …. 14.34 s 12DA(1) …. 14.34

s 12GF …. 14.34 s 12GM …. 14.34 Bankruptcy Act 1966 …. 3.30 s 58(1) …. 9.52 s 58(2) …. 9.52 s 121 …. 6.29, 9.53 s 121(1) …. 9.53 s 121(9)(b) …. 9.53 s 133(9) …. 14.17 s 135 …. 7.39 Bills of Exchange Act 1909 s 29 …. 8.205 Cheques and Payment Orders Act 1986 s 32 …. 8.205 Commonwealth of Australia Constitution Act 1901 (Cth) (the Constitution) …. 4.70 s 51(xxxi) …. 1.59, 4.33, 4.50, 14.9 s 109 …. 8.107 s 116 …. 4.1, 4.86 Competition and Consumer Act 2010 …. 14.34 s 4 …. 14.34 s 45 …. 14.34 s 45B …. 14.34 s 47 …. 14.23 s 131A …. 14.34 Sch 2 …. 14.34 Contracts Review Act 1980 …. 14.35

s 6(1) …. 14.35 s 6(2) …. 14.35 s 7(1) …. 14.35 s 9(1) …. 14.35 s 9(2) …. 14.35 s 9(4) …. 14.35 Corporations Act 2001 s 129 …. 8.191 s 420A …. 14.105 s 588FL …. 14.5 s 588FL(4) …. 14.5 s 588FM …. 14.5 s 1346 …. 10.58 Crown Lands Consolidation Act 1913 …. 14.22 s 145A(6A) …. 14.22 s 261A …. 14.22 s 270(3) …. 14.22 s 274(3) …. 14.22 Family Law Act 1975 …. 6.47, 6.51, 6.52, 8.142, 9.17, 9.47, 9.132, 9.133 s 4AA(2) …. 6.51 s 79 …. 6.51, 6.52, 9.47 s 79(1) …. 6.51 s 79(2) …. 6.51 s 79(4)(a)–(c) …. 6.52 s 79(4)(d) …. 6.52 s 79(4)(g) …. 6.52 s 87 …. 9.47

Judiciary Act 1903 s 23 …. 4.58 s 35(3)(b) …. 1.72 National Consumer Credit Protection Act 2009 …. 14.12, 14.34 National Consumer Credit Protection Amendment (Home Loans and Credit Cards) Act 2011 …. 14.12 National Consumer Credit Protection Regulations 2010 r 79A …. 14.27 National Credit Code …. 14.12, 14.16, 14.27, 14.34, 14.36, 14.39, 14.94, 14.141 Pt 3-2 …. 14.141 Pt 3-2A …. 14.12 Pt 3-2B …. 14.12 s 5 …. 14.12, 14.36, 14.141 s 5(1)(b) …. 14.36 s 5(1)(b)(i) …. 14.12 s 5(1)(b)(ii) …. 14.12 s 5(1)(b)(iii) …. 14.12 s 5(1)(d) …. 14.12 s 7 …. 14.36 s 14(1) …. 14.12 s 15 …. 14.12 s 42 …. 14.12 s 42(1) …. 14.12 s 42(2)(b) …. 14.36 s 42(4) …. 14.16 s 76 …. 14.36

s 82 …. 14.27 s 88(2) …. 14.94 s 88(4) …. 14.94 Native Title Act 1993 …. 4.4, 4.9, 4.29, 4.31, 4.32, 4.33, 4.49, 4.51, 4.57, 4.58, 4.63, 4.64, 4.66, 4.67, 4.68, 4.69, 4.70, 4.71, 4.72, 4.73, 4.74, 4.76, 4.77, 4.78, 4.80, 4.82, 4.84, 4.87 Preamble …. 4.64, 4.71, 4.73 Pt 2 Div 2A …. 4.75 Pt 2 Div 2B …. 4.76 Pt 2 Div 3 …. 4.71 Pt 2 Div 3 Subdiv B …. 4.67 Pt 2 Div 3 Subdiv C …. 4.67 Pt 2 Div 3 Subdiv D …. 4.67 Pt 2 Div 3 Subdiv E …. 4.71, 4.67 Pt 2 Div 3 Subdivs E–N …. 4.71 Pt 2 Div 3 Subdiv G …. 4.77 Pt 2 Div 3 Subdiv J …. 4.77 Pt 2 Div 3 Subdiv JA …. 4.82 Pt 2 Div 3 Subdiv P …. 4.72 Pt 8A …. 4.67 s 7(2) …. 4.65 ss 15–16 …. 4.68 s 15(1)(d) …. 4.68 s 17 …. 4.70 s 17(2) …. 4.70 s 17(2)(a) …. 4.70 s 17(3) …. 4.70

s 18(1) …. 4.70 s 19 …. 4.68 s 20 …. 4.70 ss 21–22H …. 4.75 ss 23A–23JA …. 4.76 s 24AA(4) …. 4.71 s 24AA(4)(a)–(k) …. 4.71 s 24AB …. 4.71 s 24EB(3) …. 4.71 ss 24GA–24GE …. 4.77 s 24GB …. 4.71 s 24GB(6) …. 4.71 s 24HA …. 4.78 ss 24JA–24JB …. 4.77 s 24JAA …. 4.82 s 24JB(2) …. 4.71 s 24MD …. 4.33 s 24MD(6B) …. 4.80 s 24OA …. 4.71 s 26 …. 4.72 s 26(1)(c)(iii) …. 4.80 ss 26A–26C …. 4.80 s 42 …. 4.72 s 43A …. 4.72, 4.80 s 51(1) …. 4.70 s 51(3) …. 4.70 s 51(6) …. 4.70

s 51A …. 4.79, 4.87 s 51A(2) …. 4.79 s 53 …. 4.79 s 201 …. 4.65 s 211 …. 4.21, 4.34 s 223 …. 4.29, 4.30, 4.31, 4.32, 4.66, 4.83, 4.84 s 223(1) …. 4.36 s 223(1)(c) …. 4.66 s 228 …. 4.65 s 229 …. 4.68 s 230 …. 4.68 s 231 …. 4.68 s 232 …. 4.68 s 238 …. 4.71 s 240 …. 4.70 s 249C …. 4.76 Native Title Amendment Act 1998 …. 4.4, 4.9, 4.69, 4.70, 4.71, 4.74, 4.75, 4.77, 4.79, 4.81, 4.87 Native Title Amendment Act (No 1) 2010 …. 4.82 Native Title Amendment (Indigenous Land Use Agreements) Bill 2017 …. 4.32 Native Title Amendment (Reform) Bill 2011 …. 4.83 Personal Property Securities Act 2009 …. 14.3, 14.4, 14.5, 14.6, 14.7, 14.8, 14.10, 14.12 Ch 4 …. 14.10, 14.12 Pt 2.5 …. 14.10 Pt 5.3 …. 14.5 s 6(2) …. 14.8

s 8 …. 14.8 s 8(1)(j) …. 14.8 s 10 …. 14.8 s 12(1) …. 14.6 s 12(2)(e) …. 14.12 s 12(3)(c) …. 14.6, 14.7 s 13 …. 14.6 s 13(2)(a) …. 14.6 s 13(3) …. 14.6 s 19(2) …. 14.5 s 19(5) …. 14.5 s 20 …. 14.5 s 21 …. 14.5 s 21(2) …. 14.5 s 42 …. 14.10 s 43 …. 14.10 s 44 …. 14.10 s 46 …. 14.10 s 55 …. 14.5 s 55(3) …. 14.5 ss 107–144 …. 14.10 s 109(1)(c) …. 14.10 s 119 …. 14.12 s 267 …. 14.6, 14.7, 14.9 s 308 …. 14.5 s 311 …. 14.5 s 320 …. 14.5

s 322(3) …. 14.5 Personal Property Securities Amendment (PPS Leases) Act 2017 …. 14.6 Personal Property Securities Regulations 2010 Pt 4 …. 14.12 reg 9.2 …. 14.5 Plant Breeder’s Rights Act 1994 …. 1.70 Plant Variety Rights Act 1987 …. 1.70 Racial Discrimination Act 1975 …. 4.23, 4.33, 4.35, 4.63, 4.64, 4.65 s 8 …. 4.64 s 10 …. 4.14 Statute of Westminster Adoption Act 1942 …. 3.28

Australian Capital Territory Human Rights Act 2004 …. 1.78, 5.65 s 12 …. 1.78 Land Titles Act 1925 (formerly Real Property Ordinance 1925) s 94(2) …. 11.118 s 94(3) …. 11.118

New South Wales Aboriginal Land Rights Act 1983 …. 4.12 Access to Neighbouring Land Act 2000 …. 2.8, 12.74 s 7 …. 12.74 s 11 …. 12.74 s 12 …. 12.74 s 17(c) …. 12.74 s 21 …. 12.74

s 26 …. 12.74 Administration of Estates Act 1954 …. 3.30 Administrative Decisions Review Act 1997 …. 11.130 Agricultural Tenancies Act 1990 …. 2.29 s 10 …. 2.29 s 13 …. 11.28 Bills of Sale Act 1898 …. 14.3 Catchment Management Authorities Act 2003 Sch 4 …. 8.201 Civil and Administrative Tribunal Act 2013 …. 9.112, 9.117, 9.125, 11.126, 11.128, 11.130, 11.144 s 7 …. 11.126 s 32 …. 9.125 s 34(1)(a) …. 11.130 s 36(1) …. 11.126 s 37 …. 11.126 s 38(2) …. 11.126 s 38(3)(b) …. 11.126 s 38(4) …. 9.120, 11.126 s 40(1) …. 11.130 s 45 …. 9.120 s 45(1)(a) …. 11.128 s 45(1)(b) …. 11.128 s 45(4) …. 11.128 s 49 …. 11.127 s 50(2) …. 11.127 s 54(1) …. 11.130

s 54(2) …. 11.130 s 54(4) …. 11.130 s 55 …. 11.127 s 59(1) …. 11.126 s 60 …. 9.120 s 60(1) …. 11.128 s 60(2) …. 11.128 s 60(3) …. 11.128 s 60(3)(e) …. 9.120 s 60(5) …. 11.128 s 67 …. 11.126 s 80(1) …. 11.130 s 80(2)(b) …. 9.125, 11.130 s 80(3) …. 11.130 s 82(3) …. 9.125, 9.127 s 83 …. 9.125 s 83(1) …. 11.130 s 83(3) …. 11.130 Sch 4 …. 11.126, 11.144 Sch 4 Pt 3 cl 3(1) …. 9.112, 9.125 Sch 4 Pt 5 cl 3 …. 11.126 Sch 4 Pt 5 cl 4 …. 11.126 Sch 4 Pt 6 cl 12(1) …. 11.130 Sch 4 Pt 6 cl 12(2)(b) …. 11.130 Civil and Administrative Tribunal Rules 2014 r 31 …. 11.128 Civil Liability Act 2002

Pt 12 …. 2.9 s 72(1) …. 2.9 s 73 …. 2.9 Civil Procedure Act 2005 s 20 …. 2.35, 5.26, 5.28 Closer Settlement and Public Reserve Funds Act 1906 …. 8.187 Coal Acquisition Act 1981 s 5(4) …. 8.201 Coastal Protection Act 1979 s 55N …. 2.15 Community Land Development Act 1989 …. 9.70 Confiscation of Proceeds of Crime Amendment Act 2005 …. 9.51 Consumer Credit (New South Wales) Act 1995 …. 14.12, 14.35 Consumer Credit Code …. 14.12 s 70 …. 14.35 Contracts Review Act 1980 …. 14.34, 14.35, 14.36, 14.39 Conveyancing Act 1919 …. 3.27, 3.66, 9.20, 9.22, 11.87, 14.18, 14.72, 14.87, 14.128 Pt 2 Div 3C …. 8.191 Pt 23 …. 7.36, 14.77 Pt 23 Div 1 …. 14.128, 14.135, 14.137 s 7 …. 6.5, 6.53, 14.15 s 7(1) …. 6.5 s 9 …. 3.54 s 12 …. 11.45, 13.8 s 16(1) …. 3.110 s 19 …. 3.44, 3.69

s 19(1) …. 3.66, 3.69 s 19(2) …. 3.69 s 19A …. 3.69 s 21 …. 3.48 s 23 …. 6.53 s 23A …. 10.4 s 23A(1) …. 10.4 s 23B …. 6.23, 14.15 s 23B(1) …. 6.5, 9.29, 9.40, 11.6, 11.76, 12.16, 12.55, 12.67 s 23B(2)(c) …. 11.76 s 23B(2)(d) …. 6.6, 11.6 s 23B(3) …. 6.5 s 23C …. 6.22, 6.23, 6.46, 6.53, 14.16 s 23C(1) …. 6.22, 6.23, 6.53, 11.7, 12.17, 12.68, 13.38, 13.43 s 23C(1)(a) …. 6.22, 6.23, 6.24, 6.53, 9.34 s 23C(1)(a)–(c) …. 6.23 s 23C(1)(b) …. 6.23, 6.24, 6.46, 6.53, 9.42 s 23C(1)(c) …. 6.23, 6.24, 6.53, 13.29 s 23C(2) …. 6.25, 6.26 s 23D(1) …. 11.13 s 23D(2) …. 5.7, 6.6, 8.129, 8.161, 11.6, 11.8, 11.10, 11.131 s 23E …. 14.16 s 23E(c) …. 5.70 s 23E(d) …. 6.10, 12.17, 13.38 s 23G(1b) …. 8.6 s 24 …. 9.40 s 26 …. 9.15, 9.21, 9.22, 9.23, 9.24, 9.133

s 26(1) …. 9.20, 9.21, 9.22, 9.23 s 26(2) …. 9.20, 9.21, 9.23 s 31 …. 10.56 s 31A …. 10.56 s 35 …. 9.8 s 36 …. 10.37, 10.45 s 36A …. 9.65 s 36C …. 13.10, 13.31, 13.53 s 38 …. 6.5, 9.40, 14.15 s 38(1) …. 6.5 s 38(3) …. 6.5 s 44(2) …. 3.110, 3.112, 3.113, 9.40, 10.10 s 45A …. 12.19 s 46 …. 12.16, 14.15 s 47 …. 3.62, 3.79 s 47(1) …. 3.62, 3.66 s 47(2) …. 3.66, 3.70 s 50(1) …. 3.83, 3.89, 3.100 s 53 …. 5.30, 7.43 s 53(1) …. 7.23 s 53(3) …. 7.23 s 54A …. 6.8, 6.9, 6.10, 6.22, 6.23, 9.43, 9.46, 11.7, 12.14, 12.68 s 54A(1) …. 6.8, 6.22, 12.17 s 54A(2) …. 6.10, 12.17, 14.16 s 66G …. 9.64, 9.132, 9.133 s 66G(1) …. 9.63 s 66G(4) …. 9.64

s 66K …. 6.16 s 66L …. 6.16 s 66M …. 6.16 s 67 …. 12.25, 12.27, 12.28, 13.9 s 67(1) …. 12.27 s 67(5) …. 12.27 s 68 …. 13.9 s 69 …. 12.6, 12.22, 12.23 s 70 …. 13.4 s 70(1) …. 13.4, 13.5, 13.9, 13.12, 13.25, 13.31, 13.52 s 70A …. 11.45, 13.15 s 70A(1) …. 11.49, 13.12, 13.21, 13.52 s 74 …. 11.87 s 74(2) …. 11.29, 11.33 s 78(1)(D) …. 14.17 s 84 …. 11.29, 14.58 s 84(1)(a) …. 11.31 s 84(1)(b) …. 11.30 s 85 …. 11.29 s 85(1)(a) …. 11.32 s 85(1)(b) …. 11.32 s 85(1)(c) …. 11.32 s 85(1)(d) …. 11.33, 11.34, 11.59, 11.62, 11.63, 11.64 s 87A …. 12.65 s 88(1) …. 12.23, 13.7, 13.17, 13.22, 13.27, 13.31, 13.35, 13.36, 13.37, 13.38 s 88(1)(c) …. 12.23

s 88(1)(d) …. 12.23 s 88(3) …. 13.19, 13.37 s 88(3)(a) …. 13.43 s 88A …. 12.4 s 88A(1) …. 12.75 s 88A(1)–(1C) …. 12.4 s 88A(3) …. 12.4 s 88AA …. 12.66 s 88AB …. 12.65 s 88B …. 12.2, 12.6, 12.22, 12.59, 13.37, 13.40, 13.45, 13.46 s 88B(3)(c)(ii) …. 12.6 s 88B(3)(c)(iii) …. 12.6, 13.45 s 88B(3A) …. 12.22 s 88BA …. 12.37 s 88BB …. 12.40 s 88D …. 13.20 s 88E …. 13.20 s 88K …. 2.8, 5.159, 12.2, 12.34, 12.34, 12.76 s 88K(1) …. 12.34 s 88K(2)(a) …. 12.34 s 88K(2)(b) …. 12.34 s 88K(2)(c) …. 12.34 s 88K(4) …. 12.34 s 89 …. 5.159, 8.201, 12.59, 12.62, 13.46 s 89(1) …. 12.56, 12.59, 12.60, 12.62, 13.42, 13.46 s 89(1)(a) …. 12.60 s 89(1)(b) …. 12.62, 13.44

s 89(1)(c) …. 12.63, 13.50 s 89(1A) …. 12.62 s 89(3) …. 12.56, 12.62 s 89(8) …. 12.59, 13.46 s 91(1) …. 14.56, 14.77 s 91(3) …. 14.77 s 91(3)(a) …. 14.77 s 91(4) …. 14.56 s 91(5) …. 14.77 s 91(6) …. 14.56, 14.77 s 92 …. 14.86 s 92(1) …. 14.46 s 92(2) …. 14.46 s 92(3) …. 14.46 s 92(4) …. 14.46 s 93 …. 14.33, 14.79 s 94(1) …. 14.77 s 96 …. 8.18 s 96A …. 9.18 s 98 …. 14.79 s 99 …. 9.18 s 100 …. 14.67, 14.71, 14.70 s 100(1) …. 14.75 s 100(2) …. 14.75 s 102 …. 14.45, 14.72 s 103(2) …. 14.67, 14.114 s 106 …. 14.58, 14.60, 14.61, 14.62

s 106(1) …. 14.62 s 106(3) …. 14.58 s 106(6) …. 14.58 s 106(7) …. 14.58 s 106(8) …. 14.58 s 106(8A) …. 14.58 s 106(11) …. 14.58 s 106(17) …. 14.61, 14.62 s 108(1) …. 14.96 s 109 …. 14.65, 14.91 s 109(1) …. 14.82 s 109(1)(a) …. 14.82, 14.89, 14.96, 14.97 s 109(1)(c) …. 14.65 s 109(1)(e) …. 14.82, 14.96 s 109(1)(f) …. 14.82, 14.96 s 109(2) …. 14.84, 14.85 s 109(3) …. 14.65, 14.82 s 109(5) …. 14.65, 14.96, 14.97 s 110 …. 14.82, 14.91, 14.96 s 110(4) …. 14.82 s 111 …. 14.82, 14.87, 14.116 s 111(2)(a) …. 14.23, 14.84 s 111(2)(b) …. 14.86, 14.88 s 111(2)(b1) …. 14.84, 14.86 s 111(2)(c) …. 14.84 s 111(2)(d) …. 14.86 s 111(3) …. 14.87

s 111(3)(a) …. 14.86 s 111(3)(b)(i) …. 14.86 s 111(3)(b)(ii) …. 14.86 s 111(3)(c) …. 14.86 s 111(4) …. 14.88, 14.95 s 111A …. 14.107, 14.143 s 111A(5) …. 14.107 s 111A(6) …. 14.107 s 112 …. 14.125 s 112(1) …. 14.90 s 112(2) …. 14.17, 14.83 s 112(3) …. 14.118, 14.120, 14.121, 14.122 s 112(3)(a) …. 14.121 s 112(3)(b) …. 14.121 s 112(4) …. 14.124, 14.125 s 112(9) …. 14.125 s 113(3) …. 14.84, 14.121 s 115(3) …. 14.65 s 115(6) …. 14.64 s 115(7) …. 14.64 s 115A(2)(c) …. 14.65 s 116 …. 11.52 s 117 …. 11.52, 11.54, 11.56, 11.69, 11.86 s 117(1) …. 11.52 s 117(8) …. 14.64 s 118 …. 11.52, 11.53, 11.54, 11.56, 11.86 s 119 …. 11.54

s 120 …. 11.66 s 120A(3) …. 11.20 s 120A(5) …. 11.19 s 122 …. 11.75 s 127 …. 6.6, 8.57, 8.129, 11.4, 11.14, 11.18, 11.38, 11.57, 11.85 s 127(1) …. 11.14 s 128 …. 11.64, 11.86 s 129 …. 11.64, 11.65, 11.72 s 129(1) …. 11.64 s 129(2) …. 11.72, 11.73 s 129(6)(a) …. 11.64, 11.73 s 129(8) …. 11.64, 11.71 s 129(10) …. 11.64 s 130 …. 14.17 s 130(1) …. 11.74 s 132 …. 11.43 s 133A …. 11.79 s 133B …. 11.43 s 133B(2) …. 2.27 s 164 …. 7.15, 7.23, 7.24 s 164(1)(b) …. 7.24 s 170 …. 14.88 s 170(1)(b1) …. 14.88 s 177 …. 12.8, 12.11, 12.40 s 177(3) …. 12.11 s 177(4) …. 12.11 s 177(5)–(7) …. 12.11

s 177A …. 14.53 s 178 …. 12.33 s 179 …. 12.33 s 181B(1) …. 12.40 s 184B(1) …. 7.37 s 184C …. 7.37 s 184D(1) …. 14.77 s 184G …. 2.24, 7.37 s 184G(1) …. 7.37, 7.38, 7.39, 7.40, 14.128 s 184G(2) …. 7.39 Conveyancing Amendment (Law of Support) Act 2000 …. 12.11 Conveyancing Amendment (Rule in Pigot’s Case) Act 2001…. 8.57 Conveyancing and Law of Property Act 1898 …. 10.2 s 37 …. 10.2 s 68 …. 3.56 s 69 …. 3.56 s 77 …. 10.2 Credit Act 1984 …. 14.12 Credit (Commonwealth Powers) Act 2010 …. 14.141 s 3(1) …. 14.141 Crimes (Sentencing Procedure) Act 1999 s 17 …. 9.85, 11.104 Criminal Law Amendment Act 1883 …. 3.30 Crown Lands Act 1884 …. 2.10 Crown Lands Act 1989 …. 11.94 s 170 …. 5.30, 5.72, 5.73, 5.74 s 170(1) …. 5.73

s 170(1)(c) …. 5.73 s 170(2) …. 5.73 s 172 …. 2.14 s 172(4) …. 2.15 Crown Lands (Combined Tenures) Act 1989 …. 11.94 Crown Lands Occupation Act 1839 …. 3.24 Damage by Aircraft Act 1952 …. 2.9 Deeds Registration Act 1898 …. 8.1 Dividing Fences Act 1991 s 10 …. 12.41 Dower Act 1837 …. 3.48 Drug Misuse and Trafficking Act 1985 …. 11.125 Electronic Conveyancing (Adoption of National Law) Act 2012 …. 8.17 App …. 8.17 Electronic Conveyancing National Law …. 8.5, 8.17 s 9 …. 8.182 s 10 …. 8.182 s 22 …. 8.17 s 23 …. 8.17 Electronic Transactions Act 2000 …. 6.8 Environmental Planning and Assessment Act 1979 Pt 4 …. 9.63 s 4(1) …. 9.63 s 4B(1)(a) …. 9.63 s 28(2) …. 12.64, 13.42, 13.51 s 146A …. 11.112 Fair Trading Act 1987 …. 11.127, 14.37, 14.39

s 18 …. 11.127 Farm Debt Mediation Act 1994 …. 8.114 Fisheries Management Act 1994 …. 8.7 Forfeiture Act 1995 Pt 3 …. 9.51 s 4 …. 9.51 s 5 …. 9.51 s 5(2) …. 9.51 s 5(3) …. 9.51 ss 10–14 …. 9.51 Holiday Parks (Long-term Casual Occupation) Act 2002 …. 11.90 s 3 …. 11.90 s 5 …. 11.90 Human Tissue Act 1983 s 32 …. 1.62 Imperial Acts Application Act 1969 …. 3.6, 3.44, 3.69, 9.133 s 8 …. 6.7, 9.60 s 18 …. 2.38, 11.69 ss 18–20 …. 2.38 s 32 …. 3.50, 3.52 s 32(1) …. 11.38 s 32(3) …. 11.38 Inclosed Lands Protection Act 1901 s 3 …. 2.39 s 4 …. 2.39 s 4(1) …. 2.39 Industrial Arbitration Act 1940

s 88B …. 8.108 s 88F …. 14.37 Industrial Relations Act 1996 …. 14.34, 14.37 s 106 …. 14.37 Land and Environment Court Act 1979 s 40 …. 12.2, 12.34 Landlord and Tenant (Amendment) Act 1948 …. 11.87, 11.103, 11.116 Limitation Act 1939 …. 5.88 Limitation Act 1969 …. 3.82, 4.35, 5.2, 5.71, 5.124, 5.128, 5.147, 5.149 s 11 …. 5.128 s 11(1) …. 5.147 s 11(2)(a) …. 5.78 s 11(3)(a) …. 5.132 s 11(3)(b)(i) …. 5.132 s 11(3)(b)(ii) …. 5.132 s 11(3)(b)(iii) …. 5.132 s 11(3)(b)(iv) …. 5.132 s 27 …. 5.70, 5.130 s 27(1) …. 5.71, 5.72, 5.135 s 27(2) …. 5.2, 5.71, 5.78 s 28 …. 5.70, 5.76, 5.77, 5.86 s 31 …. 5.78 s 36 …. 5.128 s 37 …. 5.130 s 37(2) …. 5.131 s 37(3) …. 5.131 s 38 …. 5.77

s 38(1) …. 5.70, 5.77 s 38(2) …. 5.135, 5.136 s 38(3) …. 5.137, 5.143 s 38(5) …. 5.126, 9.62 s 39 …. 5.140 s 41 …. 5.122 s 42 …. 14.47 s 43 …. 14.47 s 47(1) …. 5.129 s 51 …. 5.132 s 52(e) …. 5.133 s 54(1) …. 5.141 s 54(4) …. 5.141 s 55 …. 5.134 s 65 …. 5.122 s 65(1) …. 5.146 Sch 4 …. 5.122 Local Government Act 1919 …. 8.111 s 398 …. 5.100, 8.108 Local Government Act 1993 …. 5.153, 8.112 s 42 …. 8.112 s 45 …. 8.112 s 45(1) …. 8.110 Nature Conservation Trust Act 2001 …. 13.1 Perpetuities Act 1984 …. 3.97, 10.6, 10.7, 10.8, 10.24, 10.26, 10.27, 10.41, 10.43, 10.44, 10.48, 10.52, 10.53, 10.61, 10.64 s 3(1) …. 10.41

s 3(2) …. 10.41 s 4(3) …. 10.37, 10.41, 10.43, 10.53, 10.64 s 6(1) …. 10.57 s 7 …. 10.6, 10.41, 10.43, 10.56 s 7(1) …. 10.53 s 8 …. 10.24, 10.41, 10.44, 10.46, 10.47, 10.48, 10.56 s 8(1) …. 10.44, 10.46, 10.47 s 9 …. 10.45, 10.48 s 9(1) …. 10.44, 10.45, 10.46, 10.47 s 9(4) …. 10.17, 10.24, 10.44, 10.46, 10.48 s 10 …. 10.46, 10.47, 10.48 s 13 …. 10.58 s 14 …. 10.55 s 14(2) …. 10.54, 10.55 s 15 …. 10.42 s 17(1) …. 10.52 s 18 …. 10.56 s 18(1) …. 10.56 s 19 …. 10.37, 10.56 s 20(2) …. 10.37 Sch 1 …. 10.37, 10.56 Personal Property Securities Amendment (PPS Leases) Act 2017 …. 14.6 Personal Property Securities (Commonwealth Powers) Amendment Act 2009 …. 14.4 s 4 …. 14.3 Probate Act 1890 …. 10.10 Probate and Administration Act 1898 …. 3.19, 14.138

s 40 …. 3.47 s 44 …. 14.138 s 52 …. 3.48, 3.49 Property Legislation Amendment Act 2005 …. 13.45 Property (Relationships) Act 1984 …. 6.47, 6.48, 6.49, 6.50, 6.51, 8.142, 9.132, 9.133 s 4(1) …. 6.48 s 4(2) …. 6.48, 6.49 s 4(2)(e) …. 6.49 s 4(2)(f) …. 6.49 s 4(3) …. 6.48 s 5 …. 6.48 s 5(1)(b) …. 6.50 s 5(2) …. 6.50 s 17 …. 6.50 s 18(1) …. 6.48 s 20 …. 6.13, 6.48, 6.50 s 20(1) …. 6.48 s 20(1)(b) …. 6.48 Property, Stock and Business Agents Act 2002 …. 9.80 Public Parks Act 1884 s 4 …. 5.73 Real Estate (Limitation of Actions) Act 1837 (8 Will IV No 3) …. 5.71 Real Estate of Intestates Distribution Act 1862 (Lang’s Act) (26 Vic No 20) …. 3.27, 3.30, 3.55, 3.56 Real Property Act 1862 …. 3.27, 8.5 Real Property Act 1900 …. 5.7, 5.30, 5.148, 5.156, 5.160, 6.5, 8.6, 8.11, 8.14, 8.16, 8.19, 8.21, 8.25, 8.56, 8.60, 8.64, 8.69, 8.71, 8.74, 8.79, 8.84,

8.85, 8.105, 8.107, 8.110, 8.111, 8.113, 8.114, 8.117, 8.122, 8.123, 8.124, 8.135, 8.136, 8.139, 8.159, 8.172, 8.183, 8.187, 8.188, 8.189, 8.191, 8.194, 8.195, 8.196, 8.199, 8.201, 9.23, 11.52, 11.104, 12.27, 12.28, 12.46, 12.47, 12.50, 14.1, 14.18, 14.19, 14.22, 14.46, 14.56, 14.58, 14.78, 14.82, 14.94, 14.95, 14.129 Pt 3 …. 8.155 Pt 4 …. 8.6 Pt 4A …. 8.6 Pt 4B …. 8.6 Pt 6A …. 5.70, 5.148, 5.149, 5.150, 5.158, 8.106 Pt 7A …. 8.131, 8.136, 8.160 Pt 7B …. 8.160 Pt 13 …. 8.196 Pt 14 …. 8.183, 8.188, 8.196, 8.198 s 3 …. 8.159, 14.21, 14.126 s 3(1) …. 8.13, 8.33, 8.155, 8.159, 12.28 s 3(1)(a) …. 8.19, 11.52, 11.55 s 12(1) …. 8.6 s 12(1)(d) …. 8.116 s 12(1)(e) …. 8.132 s 12(1)(f) …. 8.133 s 12(1A) …. 8.6 s 12(3) …. 8.118 s 12(3)(b) …. 8.117 s 12(3)(d) …. 8.117 s 12A …. 8.196 s 12A(2) …. 9.33, 9.131 s 12A(3) …. 9.33

s 12C …. 8.207 s 12D …. 8.12 s 13 …. 14.22 s 13D(3) …. 8.7 s 13J …. 3.38 s 14(2) …. 5.150, 8.15 s 14(2)(b) …. 8.6 s 17(1) …. 8.6 s 17(2) …. 8.6 s 17(3) …. 8.6 s 20 …. 5.46 s 23(2) …. 8.6 s 23E(c) …. 6.6 s 28A …. 8.7 ss 28C–28EA …. 8.155 s 28P(1)(d) …. 8.7 s 28T …. 8.7, 8.155 s 28O …. 8.196 s 31B …. 8.14 s 31B(2) …. 8.12 s 31B(3) …. 8.12 s 32(1) …. 8.13, 8.14 s 32(3) …. 8.15 s 32(7) …. 8.12 s 33 …. 8.16 s 33(4) …. 8.16 s 33(6) …. 8.16

s 33A …. 8.201 s 33AA …. 8.18 s 33AA(2)(b) …. 8.18 s 33AA(3) …. 8.18 s 33AAA …. 8.18 s 33AAA(1) …. 8.18 s 33AAA(2) …. 8.18 s 33AAA(3)(b) …. 8.18 s 33AAA(3)(c) …. 8.18 s 33AAA(3)(d) …. 8.18 s 33AB(1) …. 8.18 s 34(1) …. 8.18 s 36 …. 8.182 s 36(1A) …. 8.19 s 36(1B) …. 8.137 s 36(C) …. 8.19 s 36(5) …. 8.23, 14.129 s 36(6A) …. 12.50 s 36(9) …. 8.23, 14.129, 14.136 s 36(11) …. 8.19, 14.65 s 38 …. 8.16 s 39 …. 14.20 s 39(1)(g) …. 8.191 s 39(1B) …. 8.19, 8.189, 8.191 s 39(2) …. 8.19 s 39(3) …. 8.19 s 39C …. 14.20

s 40 …. 8.19, 8.25 s 40(1) …. 8.19 s 40(1A)(a) …. 8.19 s 40(1A)(b) …. 8.19 s 40(1B)–(3) …. 8.19 s 41 …. 8.25, 12.50 s 41(1) …. 8.128 s 42 …. 8.25, 8.27, 8.36, 8.44, 8.52, 8.53, 8.61, 8.62, 8.63, 8.66, 8.80, 8.81, 8.97, 8.98, 8.103, 8.104, 8.113, 8.114, 8.124, 8.125, 8.127, 8.128, 8.192, 8.201, 9.29, 11.8, 12.18, 12.46, 12.69, 13.19, 13.36, 14.56, 14.120, 14.122, 14.129, 14.136 s 42(1) …. 8.25, 8.60, 8.61 s 42(1)(a) …. 8.83 s 42(1)(a1) …. 5.7, 8.84, 8.85, 12.18, 12.47, 12.48, 12.50, 12.51 s 42(1)(b) …. 8.85, 8.123, 12.70 s 42(1)(c) …. 8.83, 8.87 s 42(1)(d) …. 8.88, 8.90, 8.91, 11.131, 14.62 s 42(3) …. 8.113, 8.114, 8.201 s 43 …. 8.25, 8.27, 8.61, 8.65, 8.97, 8.124, 8.172, 8.179 s 43(1) …. 8.61, 8.67 s 43A …. 8.90, 8.159, 8.171, 8.172, 8.173, 8.174, 8.175, 8.177, 8.178, 8.179, 8.181, 8.182, 14.120, 14.122, 14.129 s 43A(1) …. 8.90 s 44 …. 8.25 s 45 …. 8.25 s 45(1) …. 8.25 s 45(2) …. 8.25, 8.62 ss 45B–45G …. 5.49, 8.106

s 45C …. 5.56, 5.155 ss 45C–45E …. 5.155 s 45D …. 5.74, 5.151, 5.155 s 45D(1) …. 5.149, 5.150, 5.154, 8.154 s 45D(1)(b) …. 5.120 s 45D(2A) …. 5.151, 5.160 s 45D(2B) …. 5.151, 5.160 s 45D(3) …. 5.153 s 45D(4) …. 5.120, 5.153 s 45D(5) …. 5.151 s 45D(6) …. 5.150 s 45D(8) …. 5.153 s 45D(9) …. 5.153 s 45E …. 8.188, 8.189 s 45E(1) …. 5.155 s 45E(3) …. 5.155 s 46 …. 12.18 s 46A …. 12.6, 13.39 s 47 …. 13.39 s 47(1) …. 12.18, 12.50, 12.69, 13.19 s 47(6) …. 12.55, 12.58 s 47(7) …. 12.6, 13.45 s 49 …. 12.56, 12.62 s 49(2) …. 12.56 s 51 …. 11.52, 11.55, 11.56, 12.28, 13.9, 14.56 s 52 …. 11.55, 11.56, 14.56 s 53 …. 8.89, 8.91, 11.8

s 53(3) …. 8.43 s 53(4) …. 11.131, 14.62 s 54(1) …. 11.76 s 54(3) …. 11.76 s 56(1) …. 14.18 s 56C …. 8.34, 8.44, 8.56, 8.79, 8.122, 8.197, 8.205, 14.35 s 57 …. 14.18, 14.21, 14.54, 14.75, 14.82, 14.91 s 57(1) …. 14.18, 14.20, 14.91, 14.116 s 57(2) …. 14.120, 14.122 s 57(2)(a) …. 8.48, 14.91 s 57(2)(b) …. 14.92 s 57(2)(b)(ii) …. 14.91 s 57(2)(b1) …. 14.91 s 57(3) …. 14.87, 14.92, 14.94 s 57(5) …. 14.95 s 58 …. 14.82, 14.91 s 58(1) …. 14.96, 14.97, 14.122 s 58(2) …. 14.120, 14.122 s 58(3) …. 14.125, 14.126 s 58A …. 14.82, 14.91 s 59 …. 14.120, 14.122 s 60 …. 14.19, 14.54, 14.61 s 61 …. 14.74, 14.75 s 61(2)(c) …. 14.75 s 62 …. 14.75 s 62(3) …. 14.75 s 64 …. 14.21

s 65 …. 5.155, 14.78 s 65(1) …. 14.78 s 74 …. 8.151 s 74A(1) …. 8.136 s 74A(2)(b) …. 8.136 s 74B …. 8.134 s 74B(1) …. 8.6 s 74C …. 8.134 s 74F …. 8.135, 8.136, 8.142, 8.153, 8.155, 8.156 s 74F(1) …. 8.128, 8.129, 8.131 s 74F(2) …. 8.137, 8.142 s 74F(3) …. 5.155, 8.153, 8.154 s 74F(4) …. 8.153, 8.155 s 74F(5) …. 8.136 s 74F(6) …. 8.136 s 74G …. 8.135, 8.136 s 74H(1)(b) …. 8.139 s 74H(3) …. 8.155 s 74H(4) …. 8.139 s 74H(5) …. 8.139 s 74I …. 8.135, 8.147, 8.150 s 74I(1) …. 8.136, 8.147, 8.148 s 74I(5) …. 8.147 s 74J …. 8.150 s 74J(1) …. 8.136, 8.147, 8.148 s 74J(4) …. 8.147 s 74K …. 8.135

s 74K(2) …. 8.150, 8.151 s 74L …. 8.136 s 74MA …. 8.135, 8.136, 8.148, 8.150, 8.151 s 74MA(1) …. 8.148 s 74MA(2) …. 8.151 s 74N …. 8.160 s 74O …. 8.135 s 74P …. 8.135, 8.152, 8.160 s 74P(1)(a) …. 8.152 s 74P(1)(b) …. 8.152 s 74P(1)(c) …. 8.152 s 74Q …. 8.135, 8.136 s 74R …. 8.141, 8.135 s 74T …. 8.159 s 74T(1) …. 8.159 s 74T(5) …. 8.160 s 74U …. 8.159 s 74V(1)(a) …. 8.159 s 74V(1)(b) …. 8.159 s 74V(2)(a) …. 8.160 s 74V(2)(b) …. 8.160 s 74V(2)(c) …. 8.160 s 74V(3) …. 8.159 s 74V(4) …. 8.159 s 74W(1) …. 8.159 s 74W(2) …. 8.159 s 74W(3) …. 8.160

s 74X(1) …. 8.160 s 74X(2)(a) …. 8.159 s 74X(2)(b) …. 8.160 s 74X(2)(d) …. 8.160 s 74Y …. 8.160 s 74Z …. 8.160 s 76 …. 14.48 s 79 …. 14.48 s 82 …. 8.128, 8.132 s 82(1) …. 8.19 s 82(2) …. 8.19 s 82(3) …. 8.19, 8.132 s 96 …. 8.19 s 97 …. 9.33, 9.34, 9.41, 9.131 s 97(1A) …. 8.136 s 97(2)(b) …. 9.33 s 97(5) …. 9.33, 9.131 s 100(1) …. 9.23 s 100(2) …. 3.97, 8.15, 8.16 s 104(1) …. 8.19 s 104(2) …. 8.19 s 111 …. 8.16 s 117 …. 14.35 s 117(1A) …. 8.19 s 117(1B) …. 8.19 s 118 …. 8.25 s 118(1)(d)(ii) …. 8.62, 8.63, 8.125, 8.127

s 120 …. 8.188, 8.189, 8.191, 8.192 s 120(1) …. 8.188, 8.192 s 120(2) …. 8.188 s 120(2)(a) …. 8.188 s 120(2)(b) …. 8.188 s 121 …. 8.23 s 122 …. 8.23 s 126 …. 8.192 s 129 …. 8.188, 8.189, 8.191, 8.192, 8.193 s 129(1) …. 8.189, 8.190, 8.193, 8.203 s 129(1)(e) …. 8.192, 8.194, 8.203 s 129(2) …. 8.191, 8.193 s 129(2)(a) …. 8.195 s 129(2)(c) …. 8.195 s 129(2)(g) …. 8.207 s 129(2)(h) …. 8.195 s 129(3)(a) …. 8.207 s 129A(2)(j) …. 14.35 s 131 …. 8.198 s 131(2) …. 8.199 s 131(6) …. 8.199, 8.199 s 131(7) …. 8.199 s 131(7)(a) …. 8.199 s 131(7A) …. 8.199 s 131(9) …. 8.199 s 131(10) …. 8.199 s 132 …. 8.198

s 132(1) …. 8.198 s 132(2)(a) …. 8.198 s 132(2)(b) …. 8.198 s 132(2A) …. 8.198 s 133(2)(a) …. 8.200 s 134 …. 8.187 s 135 …. 8.123 s 135(2) …. 8.200 s 136 …. 8.121 s 137 …. 8.121 s 138 …. 8.120, 8.121 s 138(1) …. 8.119, 8.120 s 138(3) …. 8.119 s 188(1)(d) …. 8.33 Real Property (Amendment) Act 1970 …. 8.16 Real Property Amendment (Compensation) Act 2000 …. 8.184, 8.187, 8.188, 8.198, 8.207 Real Property Amendment (Electronic Conveyancing) Act 2014 …. 8.18 Real Property Amendment (Electronic Conveyancing) Act 2015 …. 8.157 Pt 7B …. 8.157 Sch 1.6 …. 8.18 Real Property and Conveyancing Amendment Act 2009 …. 8.113 Sch 2 cl 4 …. 14.107 Sch 3 …. 8.107, 8.113 Real Property (Computer Register) Amendment Act 1979 …. 8.11, 8.16 Registration of Interests in Goods Act 1986 …. 14.3 s 3 …. 14.3

Registration of Interests in Goods Regulation 2004 cl 10 …. 14.3 Residential Tenancies Act 1987 …. 3.55, 11.87, 11.88, 11.116, 11.117, 11.123, 11.136 s 16(2)(d)(iii) …. 11.129 s 33 …. 11.136 s 68(2) …. 11.125 s 76 …. 11.131 Residential Tenancies Act 2010 …. 3.55, 11.25, 11.84, 11.87, 11.88, 11.89, 11.90, 11.91, 11.92, 11.93, 11.94, 11.95, 11.97, 11.98, 11.99, 11.100, 11.101, 11.102, 11.104, 11.106, 11.107, 11.108, 11.113, 11.114, 11.15, 11.116, 11.117, 11.118, 11.119, 11.131, 11.132, 11.133, 11.134, 11.136 s 3 …. 11.88 s 4 …. 11.88 s 7 …. 11.88, 11.89, 11.103 s 8 …. 11.89 s 8(1)(a) …. 11.90 s 8(1)(b) …. 11.91 s 8(1)(c) …. 11.90, 11.92 s 8(1)(d) …. 11.93 s 8(1)(e) …. 11.94 s 8(1)(f) …. 11.95 s 8(1)(g) …. 11.96 s 8(1)(h) …. 11.97 s 8(1)(i) …. 11.98 s 8(1)(j) …. 11.99 s 9(2) …. 11.88 s 10 …. 11.88, 11.101

s 13 …. 11.88, 11.100, 11.131 s 13(2) …. 11.104 s 15 …. 11.104 s 15(4) …. 11.104 s 15(5) …. 11.104 s 18 …. 11.106 s 21(1) …. 11.104 s 29(1) …. 11.105 s 29(1)–(3) …. 11.105 s 29(4) …. 11.105 s 29(6) …. 11.105 s 41(1) …. 11.117 s 41(2) …. 11.117 s 42(2) …. 11.117 s 42(3) …. 11.117 s 43(1) …. 11.118 s 43(2) …. 11.118, 11.122 s 44(1) …. 11.117 s 44(5) …. 11.117 s 44(6) …. 11.117 s 47 …. 11.117 s 50 …. 11.108 s 50(2) …. 11.108 s 50(3) …. 11.108 s 51(2)(a) …. 11.109 s 51(2)(b) …. 11.109 s 51(3)(b) …. 11.109

s 51(3)(c) …. 11.109 s 51(4) …. 11.109 s 52 …. 11.109 s 62 …. 11.109, 11.110 s 63 …. 11.109 s 63(2) …. 11.109 s 64 …. 11.110 s 66(1) …. 11.111 s 66(2) …. 2.27, 2.69, 11.111 s 66(3) …. 2.27, 2.69 s 67 …. 2.29, 11.111 s 67(2) …. 2.29 s 68 …. 11.111 s 69 …. 11.111 s 70 …. 11.112 s 71 …. 11.112 s 74 …. 11.113 s 75 …. 11.113 s 75(2) …. 11.113 s 76 …. 11.131 s 77 …. 11.114, 11.134 s 77(5) …. 11.114 s 81 …. 11.119 s 81(2) …. 11.120 s 81(4) …. 11.131 s 81(4)(a) …. 11.131 s 81(4)(b) …. 11.131

s 81(4)(c) …. 11.131 s 83 …. 11.120 s 84 …. 11.106 s 84(3) …. 11.123 s 85 …. 11.106 s 85(3) …. 11.123 s 86 …. 11.106 s 86(4) …. 11.123 s 87(1) …. 11.121 s 87(2) …. 11.121 s 87(4) …. 11.123 s 87(5) …. 11.123 s 88(1) …. 11.121 s 89(4) …. 11.124 s 90(1) …. 11.125 s 90(2) …. 11.125 s 90(3) …. 11.125 s 90(5) …. 11.125 s 91(1)(a) …. 11.125 s 91(1)(b) …. 11.125 s 91(4) …. 11.125 s 92(1) …. 11.125 s 92(3) …. 11.125 s 93(1) …. 11.125 s 96 …. 11.106 s 97 …. 11.106 s 98(1) …. 11.121

s 104 …. 11.125 s 109 …. 11.122 s 113 …. 11.123 s 114 …. 11.124 s 115 …. 11.124 s 119 …. 11.120 s 120 …. 2.37 s 120(1) …. 11.120 s 125 …. 11.131 s 126 …. 11.115 s 127 …. 11.115 s 127(1) …. 11.115 s 128 …. 11.115 s 129 …. 11.115 s 130 …. 11.115 s 130(4) …. 11.115 s 131(2) …. 11.115 s 131(3) …. 11.115 s 132 …. 11.115 s 132(5) …. 11.115 s 133 …. 11.115 s 134 …. 11.115 s 135 …. 11.115 ss 138–441 …. 11.88 ss 143–154 …. 11.88 s 187(1)(a) …. 11.129 s 187(1)(b) …. 11.129

s 187(1)(c) …. 11.129 s 187(1)(d) …. 11.129 s 187(1)(i) …. 11.129 ss 192–195 …. 11.127 s 196(1) …. 11.127 s 219(1) …. 11.104 s 219(2) …. 11.104 Sch 2 …. 11.105 Residential Tenancies Regulation 2010 reg 4(1) …. 11.104 reg 4(2) …. 11.104 reg 6 …. 11.105 reg 14(1) …. 11.93 reg 14(2) …. 11.93 reg 15 …. 11.102 reg 16 …. 11.102 reg 16(3) …. 11.102 reg 19 …. 11.102 reg 20 …. 11.102 reg 21 …. 11.105 reg 22(1) …. 11.117 Sch 1 …. 11.104 Sch 2 …. 11.105, 11.112 Retail Leases Act 1994 …. 11.137, 11.138, 11.139, 11.140, 11.141, 11.142 Pt 2 …. 11.139 Pt 2A …. 11.139 Pt 8 …. 11.143

Pt 8 Div 3 …. 11.144 s 3 …. 11.138, 11.139 s 3(a) …. 11.138 s 3(b) …. 11.138 s 5 …. 11.138 s 6(1)(b) …. 11.138 s 6(1)(c) …. 11.138 s 6A …. 11.138 s 7 …. 11.139 s 9 …. 11.139 s 11 …. 11.139 s 11A …. 11.139 s 14 …. 11.139 s 14(1) …. 11.139 s 16(1) …. 11.139 s 16(2) …. 11.139 s 16(3) …. 11.139 s 18(2) …. 11.140 s 18(3) …. 11.140 s 18(4) …. 11.140 s 19 …. 11.140 s 19A …. 11.140 s 20(1) …. 11.140 s 20(4) …. 11.140 ss 22–30 …. 11.140 s 34A …. 11.142 s 35 …. 11.142

s 36 …. 11.140 s 39 …. 11.141 s 39(1)(a) …. 11.141 s 39(1)(b) …. 11.141 s 39(2) …. 11.141 s 40(1) …. 11.141 s 40(3) …. 11.141 s 41 …. 11.141 s 41(d) …. 11.141 s 41A …. 11.141 s 42 …. 11.141 s 44(1) …. 11.142 s 44(2) …. 11.142 s 44(3) …. 11.142 s 44(4) …. 11.142 s 58 …. 11.142 s 62B(8) …. 11.144 s 63 …. 11.144 s 66 …. 11.143 s 68 …. 11.143 s 70 …. 11.144 s 71 …. 11.144 s 71A …. 11.144 s 72(1) …. 11.144 s 72AA …. 11.144 s 73 …. 11.144 s 75(1) …. 11.144

s 77 …. 11.144 s 79 …. 11.138 Sch 1 …. 11.138 Retirement Villages Act 1999 …. 11.91 s 5 …. 11.91 Roads Act 1993 s 6(1) …. 12.31 Sale of Goods Act 1898 …. 14.3 Security Interests in Goods Act 2005 …. 14.3 Pt 2 …. 14.3 s 5(3) …. 14.3 s 31(1) …. 14.3 s 31(2) …. 14.3 s 31(3) …. 14.3 s 31(4) …. 14.3 State Revenue Legislation Amendment Act 2010 …. 8.187 Strata Schemes Development Act 2015 …. 9.69, 9.70, 9.71, 9.75, 9.74, 9.75, 9.76, 9.129, 13.52 Pt 3 …. 9.70 Pt 5 …. 9.70 Pt 6 …. 9.70 Pt 10 …. 9.97, 9.129, 9.134 s 4(1) …. 9.71, 9.72, 9.73, 9.76 s 4(1)(a) …. 9.71 s 4(1)(b) …. 9.71 s 4(1)(c) …. 9.71 s 5(1) …. 9.71

s 6 …. 9.71 s 9(4) …. 9.73 s 10(1)(a) …. 9.73 s 10(1)(b) …. 9.73, 9.107 s 13(4) …. 9.75 s 17(3) …. 9.75 s 23 …. 9.76 s 24(2)(a) …. 9.76 s 24(3) …. 9.76 s 25 …. 9.76 s 28 …. 9.73, 9.78 s 28(1) …. 9.76 s 33 …. 9.77 s 34 …. 9.77 s 36(2) …. 9.75 s 135 …. 9.128 s 136 …. 9.128 s 142(3) …. 9.128 s 153(2) …. 9.129 s 154 …. 9.129 s 158 …. 9.129 s 160 …. 9.129 s 171(2) …. 9.129 s 182(1)(e) …. 9.129 s 176(3) …. 9.129 Sch 2 cl 2 …. 9.73 Sch 8 …. 9.97

Strata Schemes (Freehold Development) Act 1973 …. 9.69, 9.74, 9.108 s 5 …. 9.76 s 5(1) …. 9.71, 9.72, 9.73 s 5(1)(a) …. 9.73 s 6 …. 9.74 s 7 …. 9.73 s 8(1) …. 9.73 s 8(1)(a) …. 9.73 s 8(4) …. 9.73 s 8(4B) …. 9.74, 9.107 s 9(3A) …. 9.75 s 13(3A) …. 9.75 s 18(1) …. 9.76 s 18(2) …. 9.76 s 19 …. 9.76 s 20 …. 9.73, 9.76 s 20(b) …. 9.76 s 21 …. 9.76 s 24 …. 9.78 s 26 …. 9.77 s 28(4) …. 9.75 s 50 …. 9.74 s 50(2) …. 9.75 s 50(3) …. 9.75 s 51(1) …. 9.128 s 51(4) …. 9.128 s 51(6) …. 9.128

s 51A …. 9.128 s 51A(3) …. 9.128 s 54 …. 9.78 s 61(2)(a) …. 9.78 s 62(1) …. 9.78 s 62(3) …. 9.78 s 65A …. 9.78 s 78(2) …. 9.73 s 113(1) …. 9.74 s 113(2) …. 9.75 s 113(3) …. 9.75 Dictionary …. 9.74 Strata Schemes (Leasehold Development) Act 1986 …. 9.70 Strata Schemes Management Act 1996 …. 9.69, 9.83, 9.105, 9.108, 13.1 Ch 2 Pt 4A …. 9.81 Ch 3 …. 9.83 Ch 4 …. 9.101 s 8(2) …. 9.79 s 11 …. 9.79 s 13 …. 9.79 s 16(4) …. 9.79 s 18 …. 9.79 s 21(1) …. 9.79 s 21(2) …. 9.79 s 21(3) …. 9.79 s 21(4) …. 9.79 s 26 …. 9.80

s 27 …. 9.80 s 28(3) …. 9.80 s 28(7) …. 9.80 s 40B(2)(a) …. 9.75 s 41 …. 9.105 s 42 …. 9.105 s 43 …. 9.104 s 43(4) …. 9.105 s 44(1) …. 9.106 s 44(2) …. 9.106 s 45 …. 9.126 s 45(1) …. 9.111 s 45(2) …. 9.111 s 45(3) …. 9.111 s 46 …. 9.106 s 47 …. 9.107 s 48(1) …. 9.107 s 48(2) …. 9.107 s 49 …. 9.108 s 49(1) …. 9.108 s 49(3) …. 9.109 s 49(4) …. 9.109 s 51(1) …. 9.110 s 52 …. 9.110 s 53 …. 9.110 s 54 …. 9.110 s 55 …. 9.110

s 61(2) …. 9.83 s 62 …. 9.84 s 63 …. 9.84 s 64 …. 9.84 s 65(2) …. 9.85 s 65(3) …. 9.85 s 65(5) …. 9.85 s 66 …. 9.87 s 67 …. 9.87 s 68(1)(a) …. 9.88 s 69(2) …. 9.89 s 70 …. 9.89 s 71 …. 9.90 s 72(1) …. 9.90 s 72(2) …. 9.90 s 75(1) …. 9.88 s 75(5) …. 9.100 s 75A(1) …. 9.91 s 76(1) …. 9.92 s 76(2) …. 9.92 s 76(4) …. 9.92 s 78(1) …. 9.92 s 78(2) …. 9.92 s 78(3) …. 9.92 s 79(2) …. 9.92 s 79(3) …. 9.92 s 80 …. 9.92

s 80A …. 9.100 s 80C …. 9.100 s 80D …. 9.111 s 81 …. 9.93 s 82 …. 9.93 s 83 …. 9.93 s 85 …. 9.94 s 87(1)(a) …. 9.95 s 87(1)(b) …. 9.95 s 87(2) …. 9.95 s 89(1) …. 9.95 s 95(2) …. 9.95 s 96 …. 9.96 s 97(1) …. 9.96 s 98(2) …. 9.97 s 101 …. 9.98 s 102 …. 9.98 s 106 …. 9.98 s 107(2) …. 9.100 s 108(2) …. 9.99 s 110 …. 9.82 s 111 …. 9.82 s 113(1)(c) …. 9.75 s 116(1) …. 9.101 s 116(2) …. 9.101 s 117(1)(a) …. 9.102 s 117(1)(b) …. 9.102

s 117(1)(c) …. 9.102 s 118 …. 9.96 s 118(1) …. 9.103 s 119 …. 9.96, 9.103 s 120 …. 9.103 s 125(1)(a) …. 9.114 s 125(1)(b) …. 9.114 s 125(1)(c) …. 9.114 s 125(3) …. 9.115 s 127 …. 9.114 s 128 …. 9.115 s 130 …. 9.115 s 132 …. 9.115 s 133(c) …. 9.115 s 182(1) …. 9.121 s 182(2) …. 9.121 s 182(4) …. 9.121 s 183 …. 9.122 s 183(2) …. 9.122 s 183(3)–(5) …. 9.122 s 183(6) …. 9.122 s 183(8) …. 9.122 s 183A …. 9.124 s 183B …. 9.124 s 186(2) …. 9.120 s 192 …. 9.120 s 193(2) …. 9.120

s 203 …. 9.111 s 203(1) …. 9.126 s 206 …. 9.126 Sch 1 …. 9.105 Sch 3 cl 6(1) …. 9.100 Dictionary Pt 2 cl 5 …. 9.100 Strata Schemes Management Act 2015 …. 9.69, 9.74, 9.75, 9.79, 9.81, 9.83, 9.84, 9.85, 9.88, 9.92, 9.93, 9.94, 9.95, 9.97, 9.103, 9.104, 9.105, 9.108, 9.111, 9.112, 9.114, 9.115, 9.116, 9.118, 9.120, 9.121, 9.127 Pt 5 …. 9.83 Pt 5 Div 3 …. 9.98 Pt 6 …. 9.83 Pt 7 Div 3 …. 9.110 Pt 8 …. 9.101 Pt 9 …. 9.83 Pt 10 …. 9.83 Pt 11 …. 9.69, 9.84, 9.86, 9.89, 9.90 Pt 12 …. 9.117 s 4(1) …. 9.74, 9.93, 9.95, 9.98, 9.115 s 5(1) …. 9.77 s 6 …. 9.100 s 8 …. 9.79 s 9 …. 9.79 s 13 …. 9.79 s 22 …. 9.96, 9.103 s 26 …. 9.74, 9.75 s 27 …. 9.121

s 27(3) …. 9.121 s 27(4) …. 9.121 s 29 …. 9.79 s 36 …. 9.79 s 36(2) …. 9.79, 9.80 s 36(4) …. 9.79 s 41 …. 9.79 s 49 …. 9.80 s 52 …. 9.80 s 53(3) …. 9.80 s 66 …. 9.81 s 68(1) …. 9.75 s 72 …. 9.124 s 73 …. 9.87 s 74(1) …. 9.89 s 74(2) …. 9.89 s 74(4) …. 9.88, 9.90 s 75(5) …. 9.89 s 77 …. 9.90 s 79 …. 9.92 s 79(6) …. 9.100 s 80 …. 9.91 s 81 …. 9.92 s 81(4) …. 9.92 s 83(1) …. 9.92 s 83(2) …. 9.73, 9.92 s 84(1) …. 9.92

s 85 …. 9.92 s 86 …. 9.92 s 95 …. 9.100 s 100 …. 9.82 s 102 …. 9.100 s 102(4) …. 9.100 s 103 …. 9.111 s 103(2) …. 9.111 s 103(4) …. 9.111 s 106 …. 9.76, 9.84 s 106(3) …. 9.78 s 106(5) …. 9.84 s 108 …. 9.78 s 117 …. 9.82 s 119 …. 9.84 s 120 …. 9.84, 9.85 s 122(2) …. 9.85 s 122(3) …. 9.85 s 122(5) …. 9.85 s 134(1) …. 9.105 s 134(2) …. 9.105 s 134(3) …. 9.105 s 135(1) …. 9.106 s 135(2) …. 9.106 s 136 …. 9.104 s 136(2) …. 9.105 s 137 …. 9.109, 9.126

s 139 …. 9.108, 9.109 s 139(1) …. 9.108 s 139(2) …. 9.108 s 139(4) …. 9.109 s 139(5) …. 9.109 s 139(6) …. 9.109 s 140 …. 9.75 s 140(1) …. 9.74 s 141(1) …. 9.107 s 141(2) …. 9.107 s 141(4) …. 9.107 s 143(1) …. 9.110 s 143(2) …. 9.110 s 145 …. 9.110 s 146 …. 9.111, 9.126 s 146(3) …. 9.111 s 146(4) …. 9.111 s 147 …. 9.111, 9.126 s 147(2) …. 9.126 s 147(3) …. 9.126 s 150 …. 9.108 s 151 …. 9.101 s 152 …. 9.101 s 153 …. 9.102 s 153(1) …. 9.102 s 153(1)(b) …. 9.102 s 153(1)(c) …. 9.102

s 160 …. 9.93 s 160(4) …. 9.93 s 161(1) …. 9.93 s 161(3) …. 9.93 s 161(4) …. 9.93 s 164 …. 9.95 s 164(2) …. 9.95 s 167 …. 9.95 s 176 …. 9.127 s 177 …. 9.96 s 178 …. 9.96 s 178(2) …. 9.97 s 179 …. 9.98 s 180(1)(b) …. 9.98 s 180(1)(c) …. 9.98 s 182 …. 9.99 s 186 …. 9.106 s 199 …. 9.86, 9.127 s 200(1) …. 9.127 s 200(2) …. 9.127 s 201 …. 9.86 s 207 …. 9.86 s 209 …. 9.86 s 216 …. 9.112 s 217 …. 9.114 s 218(1) …. 9.115 s 218(3) …. 9.115

s 223 …. 9.115 s 224(c) …. 9.115 s 227(1) …. 9.114 s 227(1)(c) …. 9.114 s 227(2) …. 9.114 s 227(4) …. 9.114 s 228 …. 9.118 s 236 …. 9.122, 9.123 s 236(1) …. 9.122 s 236(3) …. 9.122 s 236(4) …. 9.122 s 236(5) …. 9.122 s 236(6) …. 9.122 s 237 …. 9.124 s 239 …. 9.127 s 242 …. 9.119 s 248 …. 9.126 s 253(2) …. 9.127 s 258 …. 9.96, 9.103 s 259 …. 9.103 Sch 2 cl 4(1) …. 9.100 Sch 3 cl 16 …. 9.86 Strata Schemes Management Regulation 2010 cl 15 …. 9.111 Sch 1 item 9 …. 9.99 Strata Schemes Management Regulation 2016 cl 26 …. 9.111

cl 26(2) …. 9.111 cl 36 …. 9.109 Strata Titles Act 1973 …. 9.69, 9.113 Strata Titles (Part Strata) Amendment Act 1992 …. 9.70 Strata Titles (Staged Development) Amendment Act 1993 …. 9.70 Succession Act 2006 …. 3.19, 3.49, 3.100, 10.1 Ch 4 …. 3.43 Pt 3 …. 3.49 Pt 4.2 …. 3.43 Pt 4.3 …. 3.43 Pt 4.4 …. 3.43 s 4 …. 3.47, 3.100 s 4(1) …. 3.83 s 38 …. 10.17 s 38(1) …. 3.67, 3.71 s 41 …. 10.1 s 44 …. 14.138 s 136 …. 3.19, 3.43 s 137 …. 3.43 Supreme Court Act 1970 s 23 …. 14.70 s 58 …. 14.70 s 68 …. 13.41 s 70 …. 5.26 s 73 …. 11.70 s 79 …. 5.26 Supreme Court Rules 1970

Pt 42 r 4(2) …. 2.36 Sydney Water Act 1994 s 37(4) …. 8.201 Trustee Act 1925 s 12 …. 8.139 s 77 …. 14.73 Uniform Civil Procedure Rules 2005 …. 5.28, 5.46 r 1.12 …. 2.36 r 6.8 …. 5.46 r 10.15 …. 5.46 r 14.5 …. 5.46 r 16.4 …. 5.46 r 36.5 …. 2.36 r 36.8 …. 5.46 Water Industry Competition Act 2006 s 64(2) …. 8.201 Water Management Act 2000 …. 1.4, 12.11 s 55 …. 4.19 s 173(3) …. 8.201 Western Lands Act 1901 …. 4.62, 11.94 Wills, Probate and Administration Act 1898 …. 3.19 see also Probate and Administration Act 1898 s 5 …. 3.47, 3.83 s 24 …. 3.67, 3.71 s 61B(7) …. 3.19 Sch 1 Pt 2 …. 3.19

Northern Territory Electronic Conveyancing (National Uniform Legislation) Act 2013 …. 8.17

Queensland Consumer Credit (Queensland) Act 1994 …. 14.12 Electronic Conveyancing National Law (Queensland) Act 2013 …. 8.17 Fisheries Act 1994 s 14 …. 4.28 Land Title Act 1994 Pt 7A …. 8.157 s 185(1)(a) …. 8.92 Property Law Act 1974 s 13(1) …. 13.53 s 43(1) …. 9.133 s 55 …. 13.53 s 97 …. 14.72 ss 195–198 …. 2.68 s 196 …. 2.68 s 197 …. 2.68 s 210 …. 10.44 Queensland Coast Islands Declaratory Act 1985 …. 4.14 s 3 …. 4.14 Stamp Act 1894 s 53(5) …. 8.30

South Australia Electronic Conveyancing National Law (South Australia) Act 2013 …. 8.17

Law of Property Act 1936 …. 10.62 s 61 …. 10.62 s 62(1) …. 10.62 s 62(2) …. 10.62 s 62(4) …. 10.62 Natural Resources Management Act 2004 s 146(8) …. 1.4 Real Property Act 1886 …. 8.1, 8.4, 8.107, 8.114 Pt 13A …. 8.157 s 6 …. 8.114

Tasmania Electronic Conveyancing (Adoption of National Law) Act 2013 …. 8.17 Land Titles Act 1980 s 3(1) …. 8.159 s 52 …. 8.157 s 63 …. 9.131 s 138U …. 5.115, 5.149 Mining Act 1929 …. 1.75 s 15C(1) …. 1.75 Water Management Act 1999 s 60 …. 1.4

Victoria Charter of Human Rights and Responsibilities Act 2006 …. 1.78, 5.65, 5.66 s 13 …. 1.78 s 20 …. 1.78

Electronic Conveyancing (Adoption of National Law) Act 2013 …. 8.17 Limitations of Actions Act 1958 s 14(1) …. 5.127 s 14(4) …. 9.9 Transfer of Land Act 1958 …. 8.142 Pt V Div 1B …. 8.157 s 43 …. 8.203 s 44(1) …. 8.32 s 77 …. 14.106 s 77(1) …. 14.106

Western Australia Electronic Conveyancing Act 2014 …. 8.17 Land Act 1933 …. 4.58 s 32 …. 4.62 s 109 …. 4.59 Land (Titles and Traditional Usage) Act 1993 …. 4.67 Noongar (Koorah, Nitja, Boordahwan) (Past, Present, Future) Recognition Act 2016 …. 4.32 Property Law Act 1969 s 34(1)(a) …. 6.22 Public Works Act 1902 …. 4.58, 4.59 s 18 …. 4.59 Rights in Water and Irrigation Act 1914 …. 4.59 s 3 …. 4.59 Titles Validation Act 1995 …. 4.67

Brazil Constitution of the Federative Republic of Brazil Art 5(xxiii) …. 5.52, 5.53

Malaysia National Land Code 1965 s 340 …. 8.35

New Zealand Personal Property Securities Act 1999 …. 14.4 Property Law Act 2007 s 212 …. 11.84

United Kingdom Accumulations Act 1800 (Thellusson Act) …. 10.56 Administration of Justice Act 1705 …. 9.133 Australia Act 1986 …. 3.28, 3.29 Australian Courts Act 1828 …. 3.6 Common Law Procedure Act 1852 …. 5.28 Contracts (Rights of Third Parties) Act 1999 …. 13.53 s 1 …. 13.53 s 1(3) …. 13.53 Crown Suits Act 1769 …. 3.12, 3.36, 5.135 Forfeiture Act 1870 …. 3.30 Human Rights Act 1998 …. 1.76, 1.77, 1.78 s 2 …. 5.63 s 3 …. 5.63 Inclosure Act 1773 …. 3.16

Judicature Act 1873 …. 3.74, 11.51 Land Registration Act 1925 …. 3.28 Land Registration Act 2002 …. 5.61, 5.63, 5.64, 5.117, 8.4 Pt 9 …. 5.69 Sch 6 …. 5.69 Landlord and Tenant (Covenants) Act 1995 …. 11.86 Law of Property Act 1922 …. 3.16 Law of Property Act 1925 …. 3.28, 3.30, 5.63 s 36 …. 9.131 s 56(1) …. 13.10 s 62 …. 12.27 s 78 …. 13.4 Limitation Act 1980 s 15(6) …. 5.106, 5.109 Sch 1, para 8(4) …. 5.106, 5.109 Magna Carta 1215 Ch 34 …. 5.20 New South Wales Constitution Act 1855 …. 3.25, 3.26 Prescription Act 1832 …. 12.32 Real Property Limitation Act 1833 (3 & 4 Will IV c 27) …. 5.28 Sale of Waste Lands Act 1842 …. 3.24 Settled Land Act 1925 …. 3.28 Statute of De Donis Conditionalibus 1285 …. 3.44, 3.69 Statute of Frauds 1677 …. 3.47, 6.7, 6.8 s 1 …. 11.13 Statute of Marlborough 1267 …. 3.50, 3.52 Statute of Quia Emptores 1290 …. 3.17, 3.43

Statute of Uses 1535 …. 1.3, 3.106, 3.108, 3.109, 3.112, 3.113, 6.3, 10.5 Statute of Westminster 1931 …. 3.28 Statute of Wills 1540 …. 3.18, 3.43, 3.67, 3.106, 10.5 Statutes of Forcible Entry …. 2.38 Tenures Abolition Act 1660 (12 Car 2 c 24) …. 3.18 Torts (Interference with Goods) Act 1977 s 7 …. 2.70 Trustee Act 1925 …. 3.28 Wills Act 1837 s 28 …. 3.67 s 34 …. 3.67

United States of America Constitution …. 1.15 Fifth Amendment …. 1.15 Fourteenth Amendment …. 1.15 Uniform Commercial Code Art 9 …. 14.4

International European Convention on Human Rights …. 5.63, 5.65 Art 1 …. 5.14, 5.63 Art 8 …. 5.14, 5.67 Art 41 …. 5.63 European Convention on Human Rights — Protocol No 1 …. 1.76, 5.14 Art 1 …. 1.76, 1.78, 5.62, 5.63, 5.64, 5.67, 5.159 Art 8 …. 1.77, 1.78

International Convention on the Elimination of All Forms of Racial Discrimination Art 1(4) …. 4.64 International Covenant on Civil and Political Rights …. 1.76, 5.65 International Covenant on Civil and Political Rights — Second Optional Protocol …. 5.65 International Covenant on Economic, Social and Cultural Rights …. 1.76 Art 11 …. 5.68 Universal Declaration on Human Rights …. 5.65 Art 17(1) …. 5.65

[page 1]

Chapter 1

The Concept of Property Connections to Property 1.1 Property, and in particular real property, plays a significant role in all our daily lives. For a start we all live somewhere, whether it be in a house, apartment, shed, tent or caravan, or simply on the bare earth itself. Some people own the property they live in, while others may be tenants, guests or squatters. Others still simply have a right to use another’s property as a shortcut to get to the beach or bus stop, for example. Additionally, lenders may take security over property to reduce their risk or developers may decide to place ongoing restrictions on the height or use of materials in certain developments, for example. In short, the range of property interests is extensive. However, what is clear is that every day we engage with property1 and are expected not to violate the property rights of others, just as we expect them not to violate ours. In most societies, certainly capitalist ones, the accumulation of property is also generally associated with wealth and power. Meanwhile, people with few or no property rights are likely to become part of an underclass linked to poverty.2 Given property’s importance, it is perhaps unsurprising that disputes over property are both common and bitterly contested.3 Further, debate around property issues often dominates political and social agendas. For example, in Australia, particularly in the eastern capital cities of Sydney and Melbourne,

the question of housing affordability and, especially, the way in which law, policy and governance impact on the capacity of young people to access the housing market has become very topical.4 [page 2] 1.2 The question of the compulsory acquisition, by government, of privately owned land, for public benefit has also been of concern. For example, the resumption of private land to build motorways or tunnels aimed at decreasing traffic congestion for the wider community has been the subject of robust debate.5 So, too, has the issue of the privatisation of New South Wales’s land titling services, the running of which is to be the subject of a 35year concession in favour of a private operator.6 Given that the security of registered land titles is the cornerstone of the New South Wales Torrens land titling system, the move to privatisation has raised several concerns. These include: whether the integrity of the titling system will be compromised; the likelihood of increased costs for home buyers;7 and whether the extensive and specific expertise of Land Property Information (LPI)’s skilled workforce may be lost.8 Hence, we can see that property issues are commonly connected to social, legal and political arrangements. 1.3 However, the importance of property and its capacity to excite great passion is hardly a new phenomenon. Historically, wars have been fought over property, particularly land,9 but arguably also over property in oil10 and water.11 Marriages have been organised on the basis of prior property holdings and potential entitlements.12 Kings, queens, the legislature and the Church have all at various times come into conflict over the distribution of property and the taxes that are commonly associated with it.13 The state has also been at [page 3] odds with individuals over property, particularly in relation to the preservation of historic and cultural sites.14

Yet, what we mean by ‘property’ is often not clearly spelt out. Indeed, the term’s meaning may vary according to who is using it and in what context it is being used. Several scholars point out that property is a complex and contested term,15 while, according to others, it may even defy definition.16 Despite such difficulties, it is helpful to explore ideas about property’s definition and the various theoretical justifications for property given that property is so fundamental to society’s functioning, in many cases acting as a tool of social organisation and being closely connected to the notion of democracy.17 Real property (ie, property in land), for a long time, has assumed a place of great importance in the property pantheon. Like personal property rights, real property rights have a vast sphere of enforceability. They are enforceable against all the world, not simply against a limited range of parties (such as the parties to a contract). Hence, I do not need to have a special agreement with an individual not to harm my land. I am entitled to expect that everyone will uphold my property rights in my land. Further, the remedies for breach of a real property right historically have been more extensive than for some other rights, such as personal property rights, contractual rights or rights in tort. This is the case because remedies for real property relied on ‘real actions’. Real actions permitted a breach of a real property right to sound in restoration of the res (Latin for ‘the thing’) itself. Hence, if person A forcibly evicted person B from person B’s freehold land, person B could obtain an order that the land be returned to him or her. He or she did not have to settle for damages. The freeholder could receive the res, that is, the particular block of land itself.18 That the remedy for deprivation of land was a return of the land itself was thought appropriate because land was regarded as both unique and valuable. As no two pieces of land are the same, damages were not regarded as adequate compensation for loss of, or infringement to, real property rights. Historically, land was also the most valuable asset anyone would have been likely to hold. Therefore, it made sense to protect real property rights by way of extensive remedies over and above the protection afforded to other rights, such as personal property and personal rights, breach of which sounded in damages.19 [page 4]

Cooke argues that the public aspects of land ownership have also been responsible for land law being treated as special. She observes that, ‘arguably, if rights in land become chaotic, the resulting disruption is greater than if other forms of ownership are threatened’.20 Although referring to a non-common law jurisdiction,21 Fitzpatrick’s work on land rights’ disruption in East Timor (including the destruction of land records) offers some support for Cooke’s proposition.22 Property, therefore, is important in a political and economic sense. A secure property system arguably helps enhance order. However, property is also important environmentally, culturally and socially. We engage with property both directly and indirectly. Kevin Gray notably underscores property’s importance when he states that land [real property] ‘is where life begins and where life ends’.23 To some, particularly Indigenous Australians, property may also have a spiritual element. They see themselves as belonging to the land and the land belonging to them.24 With this general understanding of our connectedness to property in mind, we now turn to a more specific and theoretical consideration of the concept of property, especially property’s definition and the justifications for property.

Introduction to the Concept 1.4 In 1765, in his influential Commentaries on the Laws of England, Sir William Blackstone offered the following definition of property: Property is that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe.25

A little further on in this work, he was moved to add: ‘There is nothing which so generally strikes the imagination, and engages the affections of mankind, as the right of property’.26 Little difficulty arises in trying to identify the different character of these statements. The first is in the nature of a description which purports to identify what the essential elements of property are and what distinguishes it from other areas of substantive law. The latter is a prescriptive or evaluative assessment, which expresses the author’s moral or political approval of the institution. Each statement is an aspect of the

conceptual analysis of property. By contrast, an examination of the concrete rules of property law is a different form of inquiry again. [page 5] While it is important to keep these questions separate, it is nonetheless evident, as will be seen in the following chapters, that conceptual questions as to the nature of property law, and evaluative assessments as to the appropriate boundary of property rights, repeatedly intrude into the judicial and legislative elaboration of those doctrinal rules. For this reason, it is important to examine these conceptual questions; a fuller, critical understanding of those rules should follow from a study of both descriptive and evaluative aspects of property law. For instance, when a legislature enacts a statute regulating rights over water,27 it is expressing some clear values about appropriate levels of ‘dominion’ and ‘exclusion’. Similarly, where it falls to a court to determine whether ownership of land allows the proprietor to prevent aircraft from flying overhead in the light of common law rules developed long before the invention of mechanised flight, judges are forced to develop principles which, in turn, reflect some underlying, evaluative concept of property, such as assessments about the ‘ordinary’ uses of land.28 There are, therefore, basically three dimensions to the concept of property. These dimensions are: 1.

Analytical. What do we mean by the term ‘property’?

2.

Philosophical. What justifications are there for a particular regime of property rights?

3.

Doctrinal. What are the legal rules that classify, define and delimit property rights, and so mark out the boundary between property rights and other rights?

The purpose of this chapter is to explore in parallel fashion these three aspects of conceptual inquiry, and to examine how they bear in a general way on the more specific, doctrinal rules internal to property law to be canvassed in detail in later chapters.

Analytical Dimension What do we mean by the term ‘property’? 1.5 As observed above, the definition of the term ‘property’ has been, and continues to be, the subject of intense debate among philosophers, political theorists and economists. The debate has not been far from the concerns of lawyers either. The chief reason for this is that every definition of property has direct consequences for questions of the distribution of economic wealth and power, the role of governments and the autonomy [page 6] of citizens. This is demonstrated by an example offered by Bowles and Gintis.29 They point to an episode in 1960 in North Carolina where four black students refused to leave a café after being refused service on racial grounds. The authors emphasise that this act of defiance was not merely an instance of civil disobedience. It was, at a deeper level, a clash of two qualitatively different classes of rights: the civil rights of the customers as citizens and the property rights of the owner. Likewise, in Davis v Commonwealth.30 In each of these instances, a broad definition of the rights of the property holder will reduce correspondingly the civil rights, or liberties, of others; a narrow one will tip the balance in favour of the non-proprietors, or the public. The drawing of the boundary of property rights is, therefore, commonly an exercise that extends far beyond the question of what an owner may do with his or her property. And this issue sometimes raises controversial questions of power and responsibility.31 We will examine the various arguments that suggest where this line ought to be drawn later in this chapter. As a preliminary approach to addressing the question of the boundary between property rights and other forms of rights, it is necessary to determine as an analytical matter the general nature of a property right. Blackstone’s definition above (at 1.4) is a useful starting point. It involves the identification of three basic elements in any property right. They are:

1.

dominion;

2.

exclusion; and

3.

external things.

1.6 First, the term ‘property’ directs attention to the dominion or control exercised by a person or legal subject over an object. Dominion denotes some form of legally authorised power. The rights I exercise in relation to my bicycle, my books or my bag clearly fall within this category. This ‘bundle of rights’, as Kevin Gray describes them,32 is necessarily concentrated in one or more specific persons; it makes little sense to say that everyone has dominion. It follows that the term ‘property’ is inappropriate to describe my rights of access and use of the local public library or park. Because these rights are widely enjoyed and distributed among citizens generally, they cannot be described as private property.33 1.7 Second, a supplement to this right of dominion is the right to exclude others from enjoying the same rights or interfering with the property holder’s rights. If there is no right to exclude, it is inappropriate to describe anyone as having dominion. In turn, this means that there are no property rights in existence in relation to the thing. In so far as the [page 7] property holder can call on the state to enforce those rights of dominion and exclusion, it can be concluded that property is a matter of law, rather than physical power. As Jeremy Bentham put it: The savage who has killed a deer may hope to keep it for himself … How miserable and precarious is such a possession! … Property and law were born together and die together. Before laws there was no property; take away laws and property ceases.34

1.8 The third element of property is a ‘thing’ or, in Blackstone’s words, ‘the external things of the universe’. This may be a physical thing, or chattel, such as a car or painting. The term also extends to land, which includes airspace, and to intangible things such as shares (the ownership of rights in a corporation), patents (the right to develop an invention exclusively) and copyright (the right to reproduce an original work). One further standard

feature of a property right, glossed over by Blackstone, is the right to transfer, or alienate, the thing. This was noted by Blackburn J in Milirrpum v Nabalco35 where the issue before the court was whether Aboriginal customary rights over land qualified as property. His Honour argued as follows: I think that property in its many forms, generally implies the right to use or enjoy, the right to exclude others, and the right to alienate. I do not say that all these rights must co-exist before there can be a proprietary interest, or deny that each of them may be subject to qualifications.36

It followed from this definition that the Aboriginal plaintiffs, who held the land in accordance with traditional customs which, among other things, prohibited transfer, could not be said to have property rights in their land.37 1.9 As a result of this analysis, it is possible to identify, as Snare does, a set of rules that must be present for ownership to arise.38 Thus, if we say ‘A owns P’, we imply that: 1.

A has the right to use P;

2.

others may use P if, and only if, A consents; and

3.

A may permanently transfer the rights under 1 and 2 to other, specific persons by consent.

These primary rules are commonly supplemented by other rules from the areas of criminal law and tort. They can be summarised as: 4.

punishment rules, which detail what may happen to B if he or she wrongfully interferes with A’s use of P; [page 8]

5.

damage rules, which require B to pay compensation if he or she damages P without A’s consent; and

6.

liability rules, which specify that if A’s use of P results in damage to others he or she will be held responsible.

1.10 Property law is conventionally concerned with the first three of these sets of rules, though in spelling out the consequences of different types of transactions (such as an instance of double dealing where A purports to sell P to both B and C), the liabilities, damages and punishment that the unsuccessful

party may incur are often addressed. Equally, certain damage rules may both be relevant to questions of responsibility to others and constitute the basis for a person’s right to ownership. Thus, where A takes possession of land without the consent of the owner and remains in occupation for 12 years, he or she may use that wrongful act to claim property rights against others, including the former owner. This book will follow a broadly similar course, with a central focus on rules in categories 1–3, and only tangential treatment of the remaining categories of rules. The basic reason for this is one of convenience: the latter set of rules is remedial, or consequential, on the former. They are appropriately dealt with in specialised works. 1.11 Honoré provides a more detailed analysis of the substantive elements of property. He identifies no fewer than 11 elements that may form the basis of a property right. Like Blackstone, his analysis also contains clear, evaluative elements. This is not a criticism in itself; it is merely to acknowledge that evaluation is never far from the surface of legal analysis, however objective it presents itself as being. For Honoré, these 11 elements are the mark of any ‘mature’ legal system.39 The elements comprise the following: 1.

The right to possess. This is the right to exclusive physical control of a thing over which ownership is claimed. For non-physical things, such as copyright, control denotes enjoyment in the sense of being able to reap the rewards of using the thing and prevent others from doing so.

2.

The right to use. This is the right to actually make use of or enjoy the thing.

3.

The right to manage. This is the right to determine who may use a thing and how.

4.

The right to the income. This is the right to the value generated by the thing.

5.

The right to the capital. This is the right to consume, waste or destroy.

6.

The right to security. This is the right to exclude others, including the state.

7.

The power of transmissibility. This is the right to transfer the thing to others, either inter vivos (ie, during one’s lifetime), or on death.

8.

The absence of term. This is the right to enjoy the thing indefinitely.

9.

The prohibition of harmful use. This is the duty to refrain from using the thing in ways that interfere with the property or personal rights of others. [page 9]

10. Liability to execution. This is the liability to have the thing taken away for the satisfaction of debts. 11. Residuary rights. These are rights that govern the entitlements of other persons to the thing when present ownership has lapsed. 1.12 As we will see in the following chapters, it is not necessary for all of these rights to exist for it to be possible to say that a property right exists. Indeed, the study of property law involves an examination of how these various rights can be divided up between different persons. Honoré emphasises that in most instances of property ownership an owner will be able to demonstrate only some of these rights. Where a building is leased, for example, both landlord and tenant can point to some of these rights, but not others. However, it is the mark of ‘mature’ or ‘liberal’ legal systems that they accommodate this particular, complex patchwork of rights. Why only liberal systems have such a wide range of elements in the property list will be explored below. A preliminary question, however, is whether property is about things or relations. Moreover, a secondary question arises: Does this definition have any political consequences?

Is property a relationship or a thing? 1.13 When we talk about rights to exclude as an integral element of property, we focus on the rights the property holder may exercise with respect to third parties and, conversely, the limitations on the rights of third parties in relation to that object. If we talk about property as essentially a legal relationship between a person (the property holder) and a thing, or indeed as a thing itself (for instance, when we say ‘this is my property’), two habits of

thought tend to follow. First, we obscure the extent to which rights over property are almost always limited. In Snare’s and Honoré’s lists, for example, property rights invariably involve prohibitions against certain classes of harmful use. This is the case with land, if it is developed in such a way as to cause environmental damage; where chattels are used recklessly, such as cars driven dangerously; and even intangible property, if directed to harmful ends, as in the case of tobacco trade marks or computer malware. Put another way, these obligations demonstrate both the impossibility and undesirability of absolute or unlimited property rights. Second, where property is seen predominantly as thing–ownership, as it is in Blackstone’s work, it may, on one reading at least, downplay the ‘public interest’ side of property; that is, the fact that property rights are invariably modified by the rights of others. Property as thing–ownership emphasises instead the rights exercisable by the property holder over the thing. It follows from this perspective that attempts to restrict these rights will be seen in light of this theory as a restriction on freedom rather than a balancing of private and public interest. 1.14 These tendencies inherent in the thing–ownership view of property led to a range of critiques of this definition of property in the early part of the 20th century by a group of American jurists known as the ‘legal realists’.40 One such critique was advanced by [page 10] Hohfeld. He objected to the idea that the concept of property was about things at all. His central contention was that all rights, including property rights, are not concerned with things but legal relations. Thus, to own property is to stand in a particular relationship with others. This relationship can be broken down into powers, duties, rights, immunities and so on. In this way, Hohfeld rejected two elements of Blackstone’s theory: first, its notion of property as an absolute right; and second, its characterisation of property as a physical thing. Thus, he concluded: Since all legal interests are “incorporeal” — consisting, as they do, of more or less limited

aggregates of abstract legal relations — such a supposed contrast as that sought to be shown by Blackstone can but serve to mislead the unwary.41

1.15 This debate was as much political as academic. Around the time that Hohfeld was writing, Blackstone’s ‘physicalist’ and John Locke’s ‘labour’42 theories of property were having considerable influence on the development of property law by the United States Supreme Court. This process began in the late 19th century and continued until the late 1930s. To some extent, this was due to the fact that the drafting of the United States Constitution was undertaken by people who were heavily influenced by Locke’s labour theory. In particular, the Fifth Amendment, and later the Fourteenth, offered protection to citizens against appropriation of property ‘without due process of law’.43 This meant that property could not be taken by the state (for instance, in cases of compulsory acquisition) unless appropriate compensation had been paid. Originally drafted to restrict state acquisition of property for public purposes without full compensation, the concept of property in the Amendments was expanded in later decisions along Blackstonian lines, to the effect that property rights were absolute and, further, that any interference by the state was, therefore, a curtailment of those rights. 1.16 A sequence of judicial decisions extended this principle — which came to be known as ‘substantive due process’ — to legislation that purported to regulate business activities, particularly in relation to the setting of prices.44 In the leading case of Lochner v New York,45 legislation regulating working hours was struck down on the basis that it amounted to a constitutionally invalid interference with freedom of contract. Later, Pitney J of the United States Supreme Court summed up the philosophy behind such decisions as follows: It is impossible to uphold freedom of contract and the right of private property without at the same time recognizing as legitimate those inequalities of fortune that are the necessary result of those rights.46

[page 11] For Keynes, this represents the emergence of ‘fidelity to laissez-faire constitutionalism’.47

1.17 Another realist, Felix Cohen, described this approach as the ‘thingification’ of property, on the ground that it presumed to derive legal principles from the nature of the thing itself.48 Yet to argue in this way was to invert the process by which property rules developed. First, a policy was decided in relation to how a thing should be enjoyed; later, a rule was devised to regulate that thing. In other words, political choices gave rise to legal rules. They did not issue from the nature of things. Moreover, if property was seen in a broader way as a set of legal relations among many people, the social impact of particular rules would be more readily brought into focus. In this way, private right and public interest could be more effectively balanced. The United States Supreme Court eventually abandoned this approach. In 1937, after threats that the court might be stacked to ensure New Deal legislation would not be ruled unconstitutional, the court overturned earlier authority which had heavily restricted the regulation of private property.49 This can be seen as a triumph of the relational view of property. Equally, it better accords with the totality of rights and obligations listed under the definition of ‘property’ by Snare and Honoré. 1.18 An argument similar to this relational one was advanced by the realist Morris Cohen who sought to attack a different aspect of the thesis of property as thing–ownership.50 Cohen focused on how our legal thinking tends to draw a broad distinction between property and sovereignty; the former is an element of civil or private law, whereas the latter properly belongs to the sphere of the political, or public law. In parallel fashion, the underlying principle of the first is dominium, or control over things. The latter by contrast is underpinned by the principle of imperium, or rule over citizens. This is a modern idea, Cohen emphasises. Feudalism was characterised by a fusion of these two principles: ownership of land meant direct control over tenants, evidenced by oaths of fealty, and rights on the part of lords, such as power to consent to the tenant’s marriage or to be the local magistrate. But on closer examination, Cohen adds, while political power and property ownership have been formally and institutionally separated in law in highly industrialised societies, they often continue to involve analogous exercises of rule by property owners. Thus, he gives the example of the power that ‘bankers and financiers exercise when they determine the flow of investment’,

dramatically evident in the case of ‘needy countries’.51 It follows that ‘[t]here 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’. He concluded that this [page 12] ought to be restricted in the same way that autocratic rules have been curbed by the public law of liberal democratic societies. 1.19 A further criticism of the notion of property as thing–ownership is largely historical. It addresses the dramatic changes in property over time. While the notion of property as thing–ownership mirrored patterns of resource distribution in the pre-industrial era, where small-scale, individual ownership of goods and enterprises was the dominant form of property, industrialised societies are organised along completely different lines. In the latter societies, the great proportion of industrial property is held by corporations, where legal control is fragmented into very specific entitlements spread across large numbers of individuals and institutions, such as managers, directors, shareholders, debenture-holders, mortgagees, unions, workers, insurers and so on. In this context, property as thing –ownership begins to look increasingly implausible.52 Perhaps it is closer to the mark to conclude that the variety of property rights — and, therefore, the boundary between property rights and other rights — makes it more difficult to identify a set of core characteristics than it was in Blackstone’s time. This idea is not so novel. It is reflected in most law curricula: corporations law, securities law and industrial relations law, to take a few examples, are not widely seen as sub-branches of property law, but rather as distinct areas of legal relations underpinned by principles which are unhelpfully reduced to notions of ownership, even if some elements of ownership illuminate aspects of these laws (for instance, in relation to the transfer of shares). 1.20 Political and philosophical justifications of property have become a little hazier too, given this changed landscape of property rights. Grey

exaggerates when he says that ‘[t]he dissolution of the traditional conception of property erodes the moral basis of capitalism’.53 He bases his argument on the powerful force that flows from seeing property as an individual’s exclusive right over a thing he or she has made, bought, or derives a livelihood from. However, there is a germ of truth in his assessment: it is surely the case that the moral claims that an individual worker has in the fruits of his or her labour are generally seen as more justifiable and, therefore, generate more popular resistance to any state interference, than the very different bundles of rights owned by shareholders, creditors, mortgagees, and managers of large corporations. More topically, these differences can be seen in relation to current political debates around aged care user-pays policies, which impinge on rights over ‘the family home’. These distinctions and others feature prominently in the philosophical arguments about property which are the subject of the next section. 1.21 Despite the weaknesses of the ‘thing-ownership’ approach to property outlined above and despite the considerable support for Alexander’s view that ‘[n]o [page 13] expression better captures the modern legal understanding of ownership than the metaphor of property as a bundle of rights’,54 the thing-ownership approach to property has undergone somewhat of a revival in recent times.55 Proponents of a means-based (rather than ends-based) approach to property have played an important part in this revival. Means-based theorists focus on the tools or strategies of property while ends-based theorists focus on the outcomes that property is to serve, and the values, such as democracy and/or human flourishing, which underpin those outcomes. Baron observes that means-based theorists emphasise the ‘mechanics of how property operates’, including property’s ‘use of qualities such as “modularity”56 or “boundaries”57 or “residual managerial authority”58 to solve problems of social organization and information economy’.59 Meansbased property theorists also argue that the bundle of rights approach obscures

critical features of property such as the right of exclusion, indirectness and the in rem nature (or ‘thingness’) of property.60 Heller alluded to this obscurity when he observed that: … while the modern bundle-of-legal relations metaphor reflects well the possibility of complex relational fragmentation, it gives a weak sense of the “thingness” of private property.61

Yet ‘thingness’ may be important. In the environmental sphere, a focus on ‘thingness’ may prove attractive. It may serve to help emphasise the physicality and materiality of natural resources, leading to enhanced environmental awareness and improved ecologically sustainable outcomes. The ‘thingification’ of property may arguably help refocus attention on the object or thing itself, meaning that property is not seen as a series of disaggregated [page 14] rights disconnected from the ‘thing’ those rights govern.62 Accordingly, recasting focus on the ‘thing’ may help direct attention to the status and condition of the natural resources themselves and facilitate easier recognition of environmental harm.63

Philosophical Bases of Property 1.22 In addition to the question of what we mean when we use the term ‘property’, there is the question of our evaluation of it. Property is always a reflection of some of the most deeply held values in any society. This is unsurprising given that property is the institution which determines the precise nature and distribution of the means of production, consumption and exchange. In doing so, it is also the primary determinant of wealth and the means of sustenance, and much more besides. Furthermore, as Macpherson argues, it may be more accurate to suggest that it is the ideas and values of the dominant classes that determine the meaning and ambit of ‘property’ at any time.64 This statement is as true of Blackstone’s theory as any other. The Blackstonian definition of ‘property’ (at 1.4) contains many clear resonances

with the philosopher John Locke’s earlier ‘labour theory’ of property. As one of the dominant modern theories of property, it will be examined first.

Labour theory of property 1.23 This theory owes its existence to the philosophy of John Locke as the first philosopher to ground the institution of private property exclusively in labour. The basic idea of this theory is that people are entitled to own both what they produce by means of their own efforts and whatever they have laboured on. Central to this argument is its individualism. Thus, for Locke, the starting point in justifying the institution of private property was the individual human being. In so far as an individual has an inviolable property right in his or her own person, that individual has an analogous right in his or her labour. Equally, individuals have a property right in the external things of the world with which they have ‘mixed their labour’. So, the catching of a wild animal, or the staking out of a field for agriculture, gives rise to a property right in the animal and field respectively: For this labour being the unquestionable property of the labourer, no man but he can have a right to what that is once joyned to, at least where there is enough, and as good, left in common for others.65

[page 15] The labourer is justified in keeping the thing worked on because he or she has ‘added something to them more than nature … had done’.66 Locke’s theory is based on ‘natural rights’. Legal rights to property, to the extent that they derive from these natural acts, pre-exist the positive laws of any state. They originate in the act of appropriation or creation of an object. This act is protected by the law of nature which gave property rights to individuals. On Locke’s reasoning, individuals later came together to form states premised on the protection of these pre-existing rights. A further element of this theory is that it applies universally: any individual can, at least in principle, become a property holder. This marks it out from earlier theories which confined property to certain classes or groups.

1.24 Locke suggests that individuals may appropriate as much property as they can by labouring on it, subject to two limits. First, there must be ‘enough, and as good, left in common for others’;67 that is, as long as others suffer no reduced opportunities to acquire property as a result of the initial appropriation. Second, no one should appropriate so much property as would ‘spoil’ in his or her possession. Taken together, these would both seem to impose considerable restrictions on individual wealth maximisation and at the same time introduce a significant egalitarian counterweight to the otherwise unlimited individualism of this theory. Yet Locke imposes significant limitations on each. In relation to the first proviso, there is no objection to unlimited acquisition of land, for example, because — far from worsening the position of others — such appropriation actually improves their situations. Why? Because in order to provide for his or her own sustenance, a person would need to enclose and cultivate, say, a 10-acre block of land. The same person might need 100 acres of uncultivated land to provide food to live on. Accordingly, such an act of appropriation actually increases the amount of land available to others. Locke concludes that in effect it involves giving ‘ninety acres to Mankind’.68 In the case of spoilage, the conversion of perishable foodstuffs into money will ensure that the producer will not commit any unacceptable offence to principles of property. First, money does not spoil; second, the surplus produce will be for the benefit of others. 1.25 These arguments give rise to many difficulties. First, Locke makes no distinction between the mixing of labour with something and the mere act of appropriation. If it is the former that yields a strong moral argument in favour of affording an individual a property right, because labour gives an object the impress of the labourer’s personality, the same cannot be said of the appropriator who does no meaningful mixing of labour at all; for example, someone who merely encloses land. This is particularly so in light of Locke’s other rationale for giving property rights to the ‘labourer’, namely that the labourer has added value to the thing. It is hard to avoid the conclusion here that his theory operates to justify the unlimited private expropriation of land and goods held in common. This seems especially true in light of the contrast he consistently draws between individual enclosure

[page 16] and collective waste. He returns again and again to the image of hunter– gatherers on ‘waste’ land on the one hand, and individuals cultivating and, therefore, making productive use of land on the other. In the former case, there is no question of property rights coming into existence. Locke’s theory, therefore, seems blind to the possibility of collective or communal productive use of land beyond the narrow example of individual agriculture. 1.26 Such inconsistencies may be explained by the fact that Locke’s theory was written at a time of the enclosure movement in Britain and imperial expansion abroad. Both these exercises involved the removal of traditional owners from their land. These owners had shared characteristics. They held the land in some form of collective ownership. They used the land in traditional ways such as hunting, gathering and small-scale crop production, which was very different from methods of modern agriculture and intensive farming. Clearly, a labour theory of Locke’s hue tends to de-legitimate these forms of landholding. This point is underscored by the fact that, throughout his work, Locke makes use of the examples of the indigenous Indians in North America and the Europeans who had settled there. While he had no difficulty in seeing how the Indians could acquire rights over animals killed or fruit picked, he rejected the idea that they might have property in the land.69 This has led Williams to conclude that this theory provided a ready-made justification for the appropriation of the land of American Indians.70 1.27 Another difficulty with Locke’s theory is the selectivity of persons capable of ownership. He says that the ‘turves my servant has dug’ belong, not to the servant, but to the owner. It is not clear why this should be so, given that his theory is based on the personality of the appropriator. If this is a problem in the context of servants and agricultural labour, there are even greater difficulties in modern societies, where the dominant form of economic activity is industrial production. Industrial production is characterised by massive division of labour in the manufacture of goods. A labour theory based on individual appropriation gives little guidance in these cases. Much the same argument applies to the position of women. The domestic labour of married women, for example, appears to give rise to property rights

in their husbands. Yet, as Clark suggests, this is another example of the longstanding sexism in political and social theory: ‘In regarding marriage as he does, Locke is clearly making the relationship between men and women subservient to the needs of ensuring certainty of ownership under male control’.71 This theory also runs into difficulties in relation to his own provisos limiting the amount of property that an individual may acquire. Locke’s conclusion that enclosure actually leads to more land being available to others greatly exaggerates the benefits that the private [page 17] property of one person has for others. Where one person effectively acquires a monopoly, the opportunities for others are dramatically reduced. Further, the vast holdings of one person can lead to power to dominate others. Locke’s argument derives some superficial plausibility from his examples of the unlimited expanses of land in North America. The argument seems less convincing where, as in most cases, there is not enough to go around. At a deeper level, it tends to delegitimate non-economic values by placing an unqualified faith in the productive use of land: unused land, or wilderness, is waste, lacking in value, which can only be introduced by labour. Environmental values have no place in this productivist theory. Moreover, land is something to be exploited or owned. The notion of some symbiotic relationship with land, as exists in many pre-modern societies, is implicitly rejected. 1.28 Despite these weaknesses, Locke provides a powerful, and popular, moral argument for property rights. The notion that a labourer ought to receive the fruits of his or her efforts expresses a profound justification for private property, and one not necessarily confined to the property regimes of advanced Western liberal democracies. Arguments in favour of Indigenous land rights and rights to cultural heritage are often articulated, and compellingly so, in terms of the labour exerted in the use, custodianship and production of such property. Its flaws may make it an unsatisfactory single

rationale for a just property regime; but this does not undermine its claim to offer one basis among many for a particular distribution of property rights.

Utilitarian justifications for private property 1.29 The utilitarian justification for private property starts by rejecting the natural rights argument as too unstable a basis for justifying a private property regime. A more secure footing is the empirically more verifiable proposition that the objective of all human beings is to maximise their own happiness. This leads to the normative claim that the good society ought to be organised in such a way as to achieve the greatest happiness for the greatest number of its people. Thus, for Jeremy Bentham, utilitarianism’s most famous proponent, property is conceived as a means to achieving happiness, because people need and want to possess and consume various things to achieve some measure of happiness. This utilitarian objective of protecting property yields four subsidiary principles: subsistence, security, abundance and equality. Of these, it is security that is pre-eminent and, therefore, this, for Bentham, is the principal object of law. Unlike Locke, he sees the state of nature as a lawless one which leads to endless wasteful conflict for resources. The insecurity of the lawless state of nature undermines any possibility of industry, for its fruits may be appropriated by those who have not laboured. If law comes to guarantee security in the fruits of labour, then industry will flourish. It is, therefore, law that creates property, not labour. In this way, Bentham develops an idea taken up more systematically in the work of the efficiency theorists (see 1.32–1.35); he presents an image of the individual as a selfish, rational calculator who needs incentives protected by law to foster industriousness. 1.30 Bentham is keen to emphasise that legislators should not seek to achieve equality in the distribution of property, even though it is one of his property principles. The [page 18] major reason for this is that the benefit conferred on the person to whom

property is redistributed will always be less than pain caused. Why? Because the pain will be felt by all property holders: An attack upon the property of an individual excites alarm among other proprietors. This sentiment spreads from neighbour to neighbour, till at last the contagion possesses the entire body of the state.72

The principle of equality is achieved in a different way under a private property regime. Where people are secure in the fruits of their labour, subsistence and abundance will increase. This will lead in turn to a greater level of overall equality among citizens. To prove his point, Bentham draws a comparison between feudalism and 19th-century capitalist societies. In the former, a far greater level of inequality prevailed, as evidenced by the vast number of serfs under a small number of large land-holders. In capitalist societies, by contrast, a more equal distribution of wealth prevails, with greater access for all. This theory articulates a persuasive set of arguments justifying private property; but it also presents difficulties. First, the traditional utilitarian calculus ignores the question of marginal utility. Taking some small amount of property from a millionaire (for instance, in the form of taxes) and giving it to the destitute may involve only a minor level of pain for the former but a considerably greater increase in pleasure for the latter. In this way, the argument that security of property is paramount and inviolable is weakened. Second, it is not necessarily the case that redistributive policies of government cause uniform anxiety among all property holders. Wealth taxes, for example, are sometimes supported by more affluent citizens. Third, no distinction is drawn in this theory between different types of property. The security afforded by food, clothing, housing and basic commodities will undoubtedly deliver significant measures of utilitarian happiness. Yet it is difficult to extend this argument to those commodities that are merely forms of conspicuous consumption. 1.31 A related argument can be applied to the pattern of property rights identified by Honoré.73 Does property in the utilitarian scheme require the maximum of this list of property rights, or will some lesser proportion do? It is arguable that if more individuals have some property rights over a particular thing, rather than one person having all of those rights to the exclusion of others, this will generally increase the overall sum of happiness that property

can deliver. These objections and others have led to a range of refinements of the utilitarian position. These are represented in the law and economics literature.

Economic justification for private property 1.32 The economic justification for private property lies in the objective of promoting the twin goals of efficiency and wealth maximisation. These are seen to be rather more concrete and measurable than the utilitarian’s ‘greatest happiness of the greatest number’, [page 19] though the emphasis on the need for the law to provide incentives for a wealth-maximising individual, in conjunction with the belief that increases in overall wealth redound to the benefit of all society, indicates clear affinities between the two schools of thought. Munzer sees the differences in the following way: [U]tility and efficiency both have something in common and differ in a key respect. What they have in common is the concept of individual preference-satisfaction. They differ in that the principle of utility, but not efficiency, supposes that interpersonal comparisons of individual preference-satisfaction are possible.74

In other words, the economic or efficiency theorists avoid the sort of calculation of individuals’ comparative happiness so common in, for instance, Bentham’s work. 1.33 For the economic theorist, there are three conditions necessary for an efficient and, therefore, wealth-maximising property regime. First, owners of property ought to have an exclusivity of ownership protected by law. My ownership, in other words, must be protected from infringement by the state. Second, the rights associated with my ownership must be legally transferable, either in sum or in part. This is said to further the objective of efficiency as follows: transferability allows acquisition by the person most capable of putting the property to most efficient use. Posner, one of the leading proponents of an economic theory of law, offers the following example of a farmer to

demonstrate the practical operation of this principle. Farmer A makes $100 a year from working his land, and that leads him to value the land at $1000. Farmer B feels that he could make more than this, and so values the land at $1500. At a price of $1250, both would be better off: Thus there are strong incentives for the parties voluntarily to exchange A’s land for B’s money, and if B is as he believes a better farmer than A, the transfer will result in an increase in the productivity of the land. Through a succession of transfers, resources are shifted to their most valuable uses and efficiency in the use of economic resources is thereby maximised.75

The third principle follows directly from this argument. Given the objective of the maximisation of wealth and the fact that private property with the characteristics of untrammelled rights to exclude and alienate furthers efficient use, the more private property, the more efficiency and, consequently, the greater the increase in wealth. Thus, the law should guarantee a universality of property. All things should be privately owned, with the exception of things so plentiful that common ownership will not jeopardise the rights of others. Examples include sunshine and air. This argument warns against regimes of common property on grounds of inefficiency of use. It originates in the economic theorist’s view of the individual as an individual wealth-maximiser, which is strikingly similar to that of the utilitarians. Where there is common property, such as the medieval commons used for the public grazing of livestock, over-use and ultimately degradation of such land invariably occurs. Why? Because there is an incentive for a particular right-holder to increase the number of livestock on the commons without regard to the [page 20] ultimately damaging effects. In a collective regime, the benefits of this activity will accrue to the over-grazer in the form of higher livestock sales, while the cost will be spread over all the right-holders. As this cost to the individual will in most instances be considerably less than the benefit he or she gains, this practice will proliferate.76 1.34 This is a powerful argument, and supported by various studies examining the comparative levels of efficiency of private and common property regimes.77 Yet, it also has its weaknesses and many objections have

been voiced against it. One of these is advanced by Carter, who suggests that the problem here is not so much the collective ownership of the commons, as the private ownership of livestock.78 Another is that this argument misdescribes the way in which commons were actually regulated. There were detailed customary rules about unfair use79 — which might explain why this type of property holding lasted for much longer than our present property regime has done so far. A related counter-argument is that it is the very unregulated nature of some commons that was the root cause of the over-grazing and degradation. A parallel might be drawn with public parks. Restrictions on what people may do in public parks ensure that they and the amenities they offer remain undiminished for all. The commons versus private property analogy also plays down the extent to which private property has its own (public) costs in terms of public policing of protection and preservation of property which are paid for by all, and private insurance to achieve the same results, the costs of which are, in commercial property, passed on to all in the form of increased prices for commodities. The policy question then becomes: Which form of regulation — private ownership or a regulated system of public use — is the most efficient? This type of argument has particular relevance for the debate about the privatisation of state-owned and, therefore, collectively held assets, such as utility services and utility infrastructure.80 1.35 Whatever answer is given to the broader questions of social justice in the case of particular exercises of privatisation policy, there is something clearly counter to the public interest in too vigorous an application of the universality principle, the third principle in the economic justification argument. If all roads, schools, hospitals and social services were in private hands, it is difficult to see how provision for the most disadvantaged citizens [page 21] would improve.81 Markets depend on exchange to operate. Where certain individuals have nothing to exchange, the market has nothing to offer them.82 This latter point exposes something of a blind spot in the economic theories:

they are generally unconcerned about redistribution. No limits to the amount of property are imposed, and vast inequalities of wealth are consistent with their proposals, even where the poorest in society are destitute. This general problem with the market and its productive and distributive mechanisms forms the basis of another set of property theories which have equality as their primary value.

Justice and equality 1.36 Many theorists have asserted that principles of justice and equality ought to be the primary goals in any property regime. This has led to the proposal of a number of different solutions. Perhaps the most famous is that of Karl Marx, who saw private property, particularly in its most developed form in capitalist societies, not so much as a means of wealth maximisation, but primarily as a tool of oppression. In class societies where some people own economic resources, or the ‘means of production’, and others own only their labour, a striking power imbalance arises. This is because the property owners can dictate the terms of employment, including wages, under which workers are engaged. This continues to be the case where workers become unionised, for at the same time capital becomes even more powerful.83 The need for owners to make a profit ensures that labourers never get a return for their work commensurate with the value of what they produce. Accordingly, the gap between what they receive in wages and the value of what they produce — the ‘surplus value’ — is extracted by the employer. Moreover, some of this value will be reinvested in more private property (eg, factories) that in turn form the basis of even more exploitation of workers. The result for Marx is an ever-increasing cycle of exploitation.84 This will produce periodic crises that provide opportunities for workers collectively as a class to revolt and institute a system that, ultimately, is the only way of breaking the link between property and exploitation: a communist society where the means of production would be owned by all. 1.37 The history of the 20th century bears witness to many attempts to put this theory into practice. By the time of the fall of the Berlin Wall in 1989, however, even those who had most fervently advocated such reforms felt compelled to admit failure on a number of grounds. This economic and

political model was incapable of delivering meaningful justice, equality or efficiency. Principles of justice were offended both by the preferential [page 22] treatment in terms of property entitlement given to party elites and the denial of rights to the produce arising from forms of individual enterprise. Equality was undermined by tolerance of wide disparities of wealth distribution — even though these were dwarfed by patterns of unequal distribution in capitalist societies — and power. Efficiency was compromised significantly by a centralised, command economy that choked private initiative and discouraged foreign investment of resources and information.85 1.38 One theory that proposes a less revolutionary version of this critique is that put forward by Tawney. He suggested that it was not the institution of private property generally, but ‘the unregulated operation, under modern conditions of industrial production, of the institution of private property’ that caused economic evils. The moral justification that allowed small producers property rights in their smallholdings and produce was irrefutable; its extension to types of property such as capital, interest and rent is indefensible. The former is active and productive; the latter by contrast is passive, unproductive and inefficient: There is no more fatal obstacle to efficiency than the revelation that idleness has the same privileges as industry, and that for every additional blow with the pick or hammer an additional profit will be distributed among shareholders who wield neither.86

Accordingly, he suggested a function-based justification for private property. Private property for smallholders fulfils a positive function utterly lacking in the case of capital, interest and rent. This too is a powerful critique in its central message: more protection ought to be given to property that is created than that which merely yields income to its owner. No loss of efficiency would result if some of this were redistributed to the needy. And it avoids the objections that are fatal to Marxist accounts of private property. Present tax laws that treat income derived from investment property differently from, say, wages or the residential home, demonstrate this principle at work.

1.39 Yet Tawney’s theory oversimplifies the position of ‘passive’ property if it suggests that such property does not play any useful role. In a highly industrialised and internationalised economic system, ‘capital flight’ is a real problem for the development of active, productive property. Such passive property is often necessary for active property to get off the ground. Take the example of a small, income-strapped information technology company wishing to expand. It needs investment to do so. Denying such investors profits may lead to the loss of this source of capital altogether. Tawney’s individual, self-employed and self-reliant labourer producing a livelihood represents a small fraction of economic activity today. A further development that undermines the force of this argument is the fact that most ‘passive’ property holders are now institutional investors who hold workers’ funds in the form of superannuation, life insurance, and so on. In this way, a form of socialisation of the economy is taking place.87 Of course, this suggests the desirability of greater levels [page 23] of regulation to ensure that socially beneficial investment is encouraged.88 But to deny it the protection of property would be to disadvantage many of those ‘active’ property holders Tawney would seek to protect. Nonetheless, his central philosophical project of drawing distinctions between the different types of property, and the different principles that should regulate them, remains a persuasive one for those who see present distributions of property as indefensibly unequal. This line of argument spells out values that seem to underpin the critiques of the realists above.89 1.40 Values have also been a key concern of another school of property theorists. That school is concerned with ‘progressive property’. It argues that property ‘implicates plural and incommensurable values’.90 Some of those values promote ‘individual interests, wants, needs, desires and preferences while others promote social interests including environmental stewardship, civic responsibility, and aggregate wealth’.91 Other values still govern human interaction permitting people to interact with each other respectfully.

According to this school, values can generate moral demands and obligations that underpin judgments about where the limits of property lie; that is, of what is and is not within the proprietary paradigm. On this reasoning, the values with which property is concerned include ‘life and human flourishing, the protection of physical security, the ability to acquire knowledge and make choices, the freedom to live one’s life on one’s own terms … wealth, happiness, and other aspects of individual and social well-being’.92

Women and property 1.41 A further set of theoretical analyses of property law has come from feminism. These approaches to property have tended to focus on three separate aspects of property law. First, in relation to the philosophical debates, some feminists have argued that these accounts ignore the ways in which women are systematically disadvantaged by the law of property in patriarchal societies, and offer no reasons to redress this. A good example of this line of critique is that of Clark, who points out the gender-blindness of Locke’s labour theory and, by implication, other labour and desert theories that ignore the way in which women have traditionally laboured. Not only are women generally invisible in this work, either as labourers or creators of property, but their position in the social division of [page 24] labour (in which they are more likely to be restricted to various forms of domestic labour) is completely ignored.93 1.42 A second strand of theory examines doctrinal questions and, in particular, analyses how particular legal principles contribute to gender-based inequality.94 The general trajectory of feminist doctrinal critique is an examination of how the detailed rules of property law specifically work against women. They are considered to operate to this effect in two different ways. First, the critique identifies how the formal rules are actually different for men and women. Thus, Otto describes how the rules in relation to constructive

trusts over matrimonial property are systematically stacked against women.95 A second, more common line of critique focuses on how the rules, though formally the same for men and women, are insufficiently sensitive to the different and, crucially, unequal positions of the parties to various transactions. This is a version of the anti-discrimination notion that to treat unequals equally is to perpetuate inequality. So, Neave concludes that one consequence of the operation of traditional property rules in the domestic setting is to unfairly compensate women for the labour they contribute.96 1.43 A third approach to women and property might be described as a functional approach. This category of critique attempts to look at the outcomes of current regimes of property law. In particular, these analyses attempt to show how the present operation of property rules creates a general condition where women own far less property than men. As Rose puts it: A quite common perception about women and property is that women do not have much, at least in comparison to men … In the ordinary course of things, we are surprised to find women of great wealth, just as we are surprised to find women who lead Fortune 500 companies.97

One aspect of this process is captured by the notion of ‘the feminisation of poverty’, where studies have found that women seem to outnumber men significantly in the ranks of the officially recognised poor.98 These analyses generally attempt to show how the present matrix of property laws contributes to create a general condition of disadvantage for women.99 [page 25] 1.44 This is not to suggest that there is an uncontested unitary feminist approach to questions of property law. As with feminist approaches to law and society generally, feminist approaches to property law retain an enriching diversity of perspectives and opinions. 1.45 Hunter, McGlynn and Rackley note that there is no one single feminist position on legal issues arising in any one case; rather, there are multiple feminist positions that will take different approaches and yield different results when put into practice. This was one of the key lessons from the Feminist Judgments Project.100

1.46 West seeks to show significant incompatibilities between different feminist approaches by identifying a basic distinction between liberal and radical feminists.101 The former seek, by means of laws such as antidiscrimination law, to be treated as formally equal to men, and presume that this will be enough to ensure a general level of sex equality. Other feminists, by contrast, suggest that this will merely perpetuate a patriarchal order; its peculiar values of a selfish competitive individualism, as extolled by Locke and others, would remain untouched. An example of this in the area of land law is Green’s characterisation of various key concepts as either masculine or feminine.102 So landscapes, she argues, are commonly conceived as feminine — local, physical, emotional — while land is conceived in masculine terms as space — transparent, infinitely knowable, real, natural and unproblematic. Modern land law’s registration systems can be seen as reflecting this by means of their ‘distancing from the material and subjectively known (feminine) place to an intellectual (masculine) space’.103 A similar argument is advanced by Schroeder. She concludes that the definition of property as a ‘bundle of rights’ is a phallic metaphor for property.104 1.47 Against this style of critique, liberal and other feminists suggest that this argument over-simplifies matters because it presumes an essential and unshifting set of characteristics of the feminine and masculine.105 They add that men and women change as cultural expectations and social environments and opportunities change. Consequently, the sharp [page 26] contrasts drawn between men and women are exaggerated and politically unhelpful. It follows that to suggest, as Green does, that the rule certainty required by the market is essentially masculine, and therefore at odds with a different set of feminine values, reduces a much more complex phenomenon to a purely gendered one; both the principle and reality of market efficiency embrace many more factors than this. Also, what follows politically from this critique? That feminists should oppose the market? Would uncertainty be a virtue? This type of feminist theorising appears to say very little about these important questions.

Meanwhile, Carr and Wong seek to apply feminist approaches to very practical issues encountered in the legal system. They explore the distinctiveness of feminist approaches to property law and the role that feminist approaches can play in exposing the gendered dimension of what would appear to be a neutral project. They focus on: (a) how feminist scholarship has interrogated the assumption that the home is a domain free from state and commercial interference; and (b) judicial responses to claims on the family home made by former cohabitants in consequence of relationship breakdowns.106 Carr and Wong conclude that feminist approaches to property law help unravel the gendered consequences of the contemporary redistribution of property, which they see as being closely connected to the prevailing neoliberal ideology.107

A pluralist approach? 1.48 One question that immediately arises in the context of the above discussion is: Does one have to choose between the various theories of property? Is it being merely eclectic, or worse, incoherent, to rely on a number of justifications to support particular property rules? For example, is the privatisation of energy infrastructure justifiable only in Lockean terms? Or will utilitarian terms suffice? Is it possible to advance both at the same time? Each of these theories regularly surfaces in popular and legal justifications for private property, yet, as we have seen, all are subject to their separate deficiencies. Can a defensible case be made to amalgamate the best elements of the best of these theories while simultaneously avoiding the worst? Munzer attempts just such a project, and produces a compelling analysis and convincing integration. Munzer commences his thesis with the claim that there are three main pillars of property justification theory: 1.

utility and efficiency;

2.

justice and equality; and

3.

labour and desert. Munzer argues that the virtues of each of these pillars, or principles — and

each of them expresses some important virtues that the others omit — can be combined in ways [page 27] that blunt the ills to which each is separately prone. In particular, he accepts the force of the first as providing a level of wealth which allows for much social benefit. It follows that those critiques — from Rousseau and Proudhon to Marx — that emphasise the injustice and inequality of the market are at their weakest in failing to attend to the importance of providing incentives to increased levels of production. They are too single-mindedly and exclusively distribution oriented. 1.49 A justice and equality principle mitigates the harshness of this principle in practice. This principle is derived primarily from the Kantian idea of the equal moral worth of all human beings, though supplemented with some ‘Aristotelian and Marxian bricks’.108 It leads Munzer to develop two theses: (i) the ‘floor’ thesis; and (ii) the ‘gap’ thesis. In every society, he concludes, a generalised respect for a principle of equal moral worth would lead to a distribution of property that would ensure a basic minimum below which no person would be allowed to fall (the floor thesis).109 Second, in order to ensure a fully human life, the gap between the very rich and poor should not be too great, because ‘inequalities that are extreme and visible can wound selfesteem and create justified moral resentment’ and ‘the wide inequalities rest on no differences in moral merit and are instead an affront to equal moral worth’.110 Dramatic inequalities also ‘can distort the legal and political process and reinforce myths offensive to equal moral worth’. Finally, Munzer preserves a form of Locke’s labour or desert theory, but revises it by imposing limitations on those property rights in some situations; for example, in times of scarcity. This principle is further modified by the operation of the other master principles above. Having developed in detail his justifications for the institution of private property, Munzer puts it to work in three controversial problem areas: (i) business enterprise in capitalist and socialist economies; (ii) the justifiability of

the taxation of gifts and bequests; and (iii) government powers to acquire or resume private property. In doing so, his property regime resembles somewhat the distributional practices of social-democratic states where incentives for private enterprise and abolition of poverty or propertylessness form twin, and equally important, public policy objectives. One important point about pluralist analyses is that they are expressly context dependent. Pluralist analysis is a philosophy that must be tailored to the circumstances of particular economies and societies at particular stages of their development. Thus, one might expect a greater emphasis on the question of redistribution in an economy of vast disparities of wealth where the poor are in abject poverty, than would be the case, even using Munzer’s general criteria, in a society where there was a great level of underdevelopment yet a broadly equal economic distribution. [page 28]

Historical Changes in the Nature and Function of Property 1.50 The philosopher C B Macpherson has attempted a historical sketch of the way in which property has changed from the period of early feudalism to the latter part of the 20th century. He sees feudalism as marked by forms of property that were inclusive in nature. Property was largely both perceived to be, and in reality was, a right of access to the accumulated productive resources of society. He adduces much evidence to support this claim. First, economic production was organised on a predominantly collective basis; property rights gave expression to this in the form of rights of access to land. Second, land was held in common; the notion of common property was, therefore, widely current. Third, the right to exclude, far from being central to the meaning of property, was peripheral to it. Fourth, land was not readily marketable. This further militated against seeing property in terms of exclusion. A dramatic change in the concept of property occurred in the ‘liberal

seventeenth century’.111 For the first time in history, the concept of property was narrowed. It came to be seen in individualist terms and was no longer something that was owned collectively. Property shifted from being a right not to be excluded to a right to exclude others. And this, Macpherson argues, originates with the labour theory. In so far as this view of labour is exclusively individualist, any rights that derive from it will inevitably be so. This change was intimately bound up with, and fostered, the rise of market-based production and consumption. It resulted in habits of thought that focused exclusively on an individual’s rights to the ‘thing’ at the expense of how those rights intersected with the rights of other individuals. As a result, Macpherson concluded, in 1973: Property, nowadays, in the general understanding, at all levels from the usage of social and political theorists to that of the ordinary newspaper writer and reader, is usually equated with private property … So much is this the case that the very notion of “common property” is almost a contradiction in terms.112

This development is directly traceable to what he calls ‘the modern world of the full capitalist economy’.113 1.51 By the middle of the 20th century, a change occurred in this conception of property. It was caused by the emergence of the welfare state. The characteristic of this state is that it fulfils many of the roles that were traditionally performed by private property. Thus, income is provided as of right to those individuals who cannot find employment offered by the owners of private property or who cannot produce their own wealth. Also, the state itself becomes an employer of vast numbers of people in its own right. This development is accompanied by the exponential increase in government contracts, so that more and more citizens depend indirectly on the state for their living. Finally, the state as regulator confers, through licences, the power on individuals to be able to work in particular trades and occupations. How do these changes impact on property? Here, Macpherson follows [page 29] the work of Reich.114 Reich argued that the myriad of ways in which the state impacts on citizens in their productive lives requires much greater levels

of protection against the arbitrary withdrawal of the means of subsistence. To the extent that the state could do this, it could tyrannise the people. In consequence, constitutional protection similar to that preventing the expropriation of other forms of property by the state was in order. 1.52 Macpherson concludes that these changes suggest that we are witnessing the emergence of a new concept of property where the dominant element is not a right to exclude (as it was in the height of liberal capitalism), but a right not to be excluded from a share in the collective productive resources of society: ‘The rise of the welfare state has created new forms of property and distributed them widely — all of them being rights to revenue’.115 This reflects an element of the concept of property in precapitalist, feudal times. This concept should be expanded, he argues, to embrace the right to a fully human life. This would entail seeing property as not merely a right to an income, but a right to the means of labour or a job. Writing in the 1960s and early 1970s, Macpherson identified democratic pressures nudging governments in this direction. Further, as Grey notes,116 while seeing property as a bundle of rights undermines unqualified proposals for unregulated private property, this more complex vision is not convincing enough to induce electorates to vote for political parties proposing to provide further protections for the poor. 1.53 Kamenka and Tay have argued in a similar way.117 They focus on the ideologically less significant role that the concept of property now plays. Where property rights have become so complex that in more developed societies even the poorer classes have some private property, older ideological claims such as the Marxist call to abolish private property completely, or the laissez faire idea that it should remain completely free from governmental interference, have diminishing appeal. Where most members of society have a stake in the regime of property rights, and a parallel interest in not being unduly affected by the damaging effects of the unregulated property rights of others, it becomes impossible to say simply that one is either ‘for’ or ‘against’ private property. Or, as one of Seabrook’s respondents tersely and cynically put it: ‘When we had nowt we threatened the rich. Now we act like they did’.118 1.54

These arguments have a somewhat dated feel to them now. Written

during a time of welfare state expansion and unparalleled economic growth, promises that property rights might afford all an opportunity to share in the collective goods of society seemed quite plausible. But, at present, notions of public ownership guaranteeing all citizens access to socially created wealth appear to have given way to policies favouring privatisation [page 30] and deregulation, with attendant high levels of economic inequality and social exclusion. An ascendant neo-liberal philosophy prevails in most developed states today, with an attendant valorisation of private property over common, or public, property. Accordingly, governments increasingly transfer stateowned industries, enterprises and services to private ownership in the belief that increased efficiency and quality of service delivery will result. A pervasive sense of property as a right to exclude is now the dominant idea of property, as the sheer scale of private ownership overtakes public property.119 In this climate, pinning so much on the positive value attached to private property may not be enough to provide strong political justifications for a property right in one’s work, or in rights of access to accumulated resources, as Macpherson suggested. However, if Kevin Gray is correct, the focus on property as a right to exclude may be undergoing some radical changes. He argues that expanding rights of access where monopoly service infrastructure has been opened up to third party competition has resulted in the birth of a new form of property — regulatory property.120 1.55 Many of these points of philosophical argument and historical change may be examined and tested in specific legal contexts where courts and legislators have been asked to extend or narrow the rights to be accorded property holders, on the one hand, and other citizens, on the other. Another way of putting this point is this: On what basis are the relations between property holders and others to be drawn, or what is the extent of the property owner’s right to exclude others as compared with the (emerging) rights of others?

Doctrinal Dimension — The Boundary Between Property and Other Rights Property and contract 1.56 An enforceable contract entitles a party to the contract to sue for damages in the event of breach by the other. This basic remedy is intended to make good any damage suffered by the innocent party. The right in question is a right, not to any specific thing (even if the transfer of a thing is the subject matter of the contract), but a personal right enforceable against the other party to get damages for breach of an obligation. As a general principle, this right is not enforceable against third parties. [page 31] This contrasts with a property right, which confers a right over a thing. This right may be enforceable against third parties. For instance, where the remedy of specific performance of a contract is available, and the contract involves a promise to transfer or create rights over things, the plaintiff may be said to have acquired a proprietary interest. In consequence, the plaintiff has two separate remedies: (i) a contractual remedy against the original party; and (ii) a proprietary remedy against a third party. So, where a landlord agrees to grant me a lease, and this agreement attracts the remedy of specific performance, but before I take possession of the premises he or she grants a lease to a third party who knows of my agreement, I have two very different remedies available to me. I can either: sue the landlord for damages on the grounds of breach of contract; or sue the third party under the principles of property law on the basis that the contract gave me a property right that confers protection against those with whom I have not contracted. The former remedy is personal, the latter proprietary.121 1.57 Even where contracts purport to confer rights over things, there may be some question as to whether those rights are proprietary or not. In order to be proprietary rights, they must come under one of the recognised categories of proprietary rights. If they do not, only personal remedies will be available

against the person who purported to grant them. An example of the former is the purchase of a cinema ticket. The owner contracts to admit the purchaser to the cinema for a single showing of a film. However, even though this gives rights of access to property, it does not confer property rights on the patron. This is because he or she cannot assert any temporary rights over the cinema itself. The only remedy available, in the event that the cinema owner does not make good his or her promise, is to sue in damages. Thus, in Cowell v Rosehill Racecourse,122 a patron who was forcibly ejected from a racecourse argued that his licence had been invalidly revoked. The High Court held that a court would not grant decrees of specific performance in relation to such contracts. 1.58 A further example of this principle at work is the case of King v David Allen.123 The appellant gave the respondent a right to use the side of a theatre wall for affixing bills and posters for a period of five years. The appellant then granted a lease of the premises to a tenant who refused to acknowledge this right. The House of Lords held that the respondent had no property right to enforce against the tenant. The rights conferred by the original contract were purely contractual. They gave the respondent a right to use the wall — a licence — but did not purport to grant any rights to the property itself. The only remedy against the theatre owner was a right in damages. To achieve the latter the contract would have had to expressly give something in the nature of a lease, which is a recognisable proprietary interest. This principle was affirmed in the recent New South Wales Supreme Court decision in Georgeski v Owners Corp SP49833.124 The plaintiff, who [page 32] was the grantee of a licence over the foreshore and an adjacent stretch of water in the Georges River, was held to have no right to sue third parties who trespassed on the land. Two propositions emerge from these cases, therefore. First, a licence is not a recognised proprietary interest and cannot be enforced against third parties.125 Second, even if a contract purports to transfer a recognised

proprietary interest, such an interest will only arise if the remedy of specific performance can be obtained.126

Property and Indigenous rights 1.59 In Milirrpum v Nabalco Pty Ltd,127 Blackburn J concluded that it made ‘little sense to say that the clan has the right to use and enjoy the land’ in so far as their rights extended only to performing certain rituals on it. Also, the members of the clan had no meaningful right to exclude members of other clans. Finally, they expressly acknowledged that they had no right to alienate the land. Adding all these elements together, it was impossible to find that the traditional rights of Aboriginal clans — however much those rights were identifiable legal rights over their own land according to their own customs — were property within the Anglo-Australian meaning of the term. This authority has been swept aside by Mabo v Queensland (No 2) (Mabo (No 2)),128 where a majority of the High Court held that native title was indeed recognised by the common law. It followed that it did not matter that particular aspects of native title — such as the right to collective use of land for purely spiritual purposes — did not neatly fit into a Western definition of property rights for it to be enforceable. If a right were established under traditional custom, it would be recognised by the common law. But native title, nonetheless, has features not shared by other forms of property. First, it is not generally alienable. It can be passed from one generation of a clan to another pursuant to customary rules, and can be transferred to the Crown in accordance with the Crown’s right of preemption. But it cannot be transferred to others. Second, native title is vulnerable to the Crown’s right to extinguish it by the exercise of its radical title. Yet it is still a special form of property, as Brennan J emphasised: 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 … to deny that the indigenous people owned their land.129

[page 33]

In a similar vein, Bartlett argues that the various dimensions of native title rights make it appropriate to describe them as, in aggregate, amounting to property rights, even by reference to a strict criterion of what constitutes property. He concludes that the fact that native title can now form the basis for compensation under s 51(xxxi) of the Commonwealth of Australia Constitution Act 1901 (Cth) (the Constitution), that it allows rights to exclude others by means of a variety of equitable and common law remedies, and that it is a burden on the title of the Crown, all point to the rights being proprietary, rather than personal.130 Nonetheless, it might be concluded from this that there is a dualistic property regime in Australia: a Western model premised on the individualistic principles of modern markets; and a traditional model based on customary, communal forms of social organisation where the meaning of property does not require rights of exclusion or alienation, and may indeed include particular bundles of personal rights as identified in King v David Allen.131

Body parts and property rights 1.60 Advances in technology and science have put pressure on concepts of property in relation to body parts, such as organs and cells, by making it feasible to transplant them from one person to another, or use them for research purposes.132 This problem arose in the Californian case of Moore v Regents of the University of California.133 In this case, a team of medical researchers removed the diseased spleen of the plaintiff. Unbeknown to him, it was used to develop a cell-line that proved to be enormously valuable in the manufacture of pharmaceutical products. Estimates suggested that, from the time of registration of the patent of the cell-line in 1984, until 1990 when the Supreme Court of California came to hear the matter, the value of the cellline had increased to US$3 billion. The question for the court was: Is it possible to have property rights in human tissue — and therefore to be the owner of the cell-line? Moore claimed to own the cells as chattels and that their removal and use for a purpose to which he did not consent gave him a right to sue the wrongdoer for conversion. 1.61 The majority of the Supreme Court held that there was a complete absence of authority for the proposition that excised cells are sufficiently like

chattels to support an action in conversion. Statutory provisions that governed the disposal of such tissue were held to further undermine this argument. Also, wrongful publicity cases — where famous persons’ likenesses are deployed without consent for advertising purposes — did not extend to cases such as this. It followed that Moore had no proprietary remedy against the Regents. He did have a personal remedy, though: he was awarded damages against the defendants for breach of their fiduciary duty to inform him in advance about what they proposed to do with the cells and why. It followed that the defendants had exclusive property rights over the cell-line, in the form of patents. [page 34] It is interesting to observe the important and, arguably, decisive part played by philosophical arguments in the various judgments. For the majority, an efficiency argument largely prevailed. If researchers were not protected in cases such as this, the community as a whole would lose a valuable resource because, deprived of the possible profits, a significant disincentive would be placed in the path of such research. The minority emphasised the dual philosophical issues of ownership of property in one’s ‘body and its products’ in the Lockean sense, and the unethical nature of this practice through nondisclosure.134 They also argued that the economic arguments of the majority were weak, on the basis that the cell-lines could still be sold if the plaintiff succeeded. Research could, therefore, proceed once a sale price was concluded. 1.62 There are doubts about whether this case is good law in New South Wales. In New South Wales, s 32 of the Human Tissue Act 1983 (NSW) prohibits the sale of human tissue while a person is living or dead except in designated circumstances, which include the tissue having been processed or treated and the sale or supply being for the purpose of enabling the tissue to be used for therapeutic, medical or scientific purposes.135 1.63 The leading Australian common law authority on property in body parts is the High Court decision in Doodeward v Spence.136 The appellant

purchased the preserved body of a two-headed baby for the purpose of display for profit. After police confiscated the item, the appellant sued to recover it. The High Court held that, unlike a corpse awaiting burial in respect of which there can be no rights of property, where a body or body part had had the ‘lawful exercise of work or skill’ performed on it, the person in whose possession it lies can bring an action to recover it. 137 1.64 English case law is also relevant. In Yearworth v North Bristol NHS Trust,138 the Court of Appeal of England and Wales recognised human sperm, stored on behalf of men undergoing chemotherapy, as an object of property. The court held that the men owned their sperm because they ‘had generated and ejaculated’ it for the sole purpose of using it for their own benefit. The Court of Appeal stated that, while it could find that the men had property in their sperm based on the Australian case of Doodeward v Spence, it preferred to base its decision on a broader principle that did not rely on the exercise of work or skill. 1.65 The basis for proprietary rights in human sperm, and other tissue, was examined in the case of Edwards; Re the Estate of Edwards.139 The court relied on Doodeward to find that [page 35] sperm stored for the purposes of fertility treatment was property on the basis of the work and skill applied to preserve and store it. The most recent Australian case on whether semen is personal property is the Supreme Court of the Australian Capital Territory case of Roblin v the Public Trustee for the Australian Capital Territory and Labservices Pty Ltd.140 However, as this case distinguished between sperm taken with consent prior to death and sperm taken after death, the court in Roblin did not rely on Doodeward.141 It did, however, conclude that the case law is uniform in its view that stored sperm provided by a man prior to his death is property (relying on Roche v Douglas,142 Yearworth v North Bristol NHS Trust143 and Bazley v Wesley Monash IVF Pty Ltd144).

Is there property in a spectacle? 1.66 In 1937, the High Court in Victoria Park Racing and Recreation Grounds Co Ltd v Taylor145 had to determine whether the owners of a racecourse could prevent, by means of an injunction, an unauthorised broadcast of races and results from a platform erected on adjacent land. By a majority of three to two, the High Court held that there was no cause of action at common law protecting the plaintiffs’ rights. Unlike some United States authorities, who found a ‘quasi-property’ in cases where an individual has expended considerable effort and incurred significant expense in creating something of value, the majority held that there was no such principle of property law in Anglo-Australian law. As Dixon J in the majority concluded: 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 this 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.146

1.67 It is clear that Dixon J sees a basic philosophical difference between the law of ‘British jurisdictions’ and that of the United States in its treatment of the concept of property. The United States courts have tended to give protection of ‘broadcasting rights’ on the basis that they constitute ‘quasiproperty’ where the plaintiff demonstrates enterprise, organisation and labour. In doing so, his Honour suggested that they have [page 36] developed the concept of property ‘under a wide generalisation’. As has been noted above, this concept originates in, or at the very least is consonant with, a Lockean or utilitarian philosophy. By contrast, courts in ‘British’ jurisdictions have not given protection to all ‘intangible elements of value, that is, value in exchange’ where enterprise and labour have been shown, but have instead proceeded on a much more incremental basis by developing the ‘special heads of protected interests’ such as copyright, trade marks, and so on. Furthermore, this practice has unfolded without reference to broader policy or philosophical justifications.

These divergent approaches to the definition of property and judicial reasoning indicate important differences between the jurisprudence of the United States Supreme Court and courts in other former British colonies and Britain itself. 1.68 By contrast, Evatt J, in dissent in Victoria Park Racing, was inclined to consider precisely these broader justificatory or philosophical issues in determining the appropriate boundaries of property rights. Accordingly, this was a case where the defendant ‘endeavoured to reap where it had not sown’ and also ‘cannot be regarded as honest’. Rich J added that the law needed to keep pace with technological developments and, therefore, protection of the plaintiff was consistent with the policy underlying nuisance law. The result of the decision was to declare legal the defendants’ activities on their land. But the message from the court was that, as a property holder, the appellant was not left defenceless in this situation: as a property holder, it was in a position to protect itself by building a fence tall enough to prevent ‘overlooking’ by the respondent. 1.69 The general principle underpinning the approach of courts to these questions was affirmed in Moorgate Tobacco Pty Ltd v Philip Morris Pty Ltd,147 where Deane J concluded that: Neither legal principle nor social utility requires or warrants the obliteration of that boundary [between legal restraint and unrestricted competition] by the importation of a cause of action whose main characteristic is the scope it allows, under high-sounding generalisations, for judicial indulgence of idiosyncratic notions of what is fair in the market place.

As in many such boundary disputes, a comprehensive legislative solution, where all possible policy implications and interests can be considered, represents a preferable expression of public policy. It has resulted, for example, in the enactment of broadcasting services legislation.

Property and information 1.70 In the context of what is commonly described as an ‘information’ society, courts and legislatures are regularly called on to confer property rights on certain forms of knowledge and information, or to expand existing protections to cover new forms of intellectual creation.148 Thus, original literary and artistic works in material form are protected by

[page 37] copyright, original inventions by patents, and business reputation and goodwill by the tort of passing off. These categories of ‘intangible property’ have been long protected by statute and common law. For example, the Commonwealth enacted the Plant Variety Rights Act 1987 (Cth) (replaced by the Plant Breeder’s Rights Act 1994 (Cth)) to create property rights in newly propagated varieties of plants. It is an example of a new form of property rights. Obviously, in the process of enacting this legislation, many of the philosophical arguments canvassed above were ventilated.149 1.71 An example of the judicial development of this area of property law is the case of Foster v Mountford.150 The plaintiff successfully sought an injunction to prevent publication of a book that contained details of Aboriginal tribal secrets given in confidence to the defendant, an anthropologist. The court relied on a series of earlier cases where there were unauthorised uses of confidential information in commercial settings and plaintiffs were able to get equitable relief.151 It would seem to follow that, in so far as legally protected confidential information affords the right to transfer it, the right to enjoy it — for instance, in cases of commercial exploitation, if desired — and the right to exclude others from unauthorised use, then, as recognised in these cases, it is a form of proprietary right. This was acknowledged by Gummow J in Smith, Kline & French Laboratories (Australia) Ltd v Secretary, Department of Community Services and Health,152 where he concluded: The 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.

Property and the right to work 1.72 As noted above, the law has traditionally drawn a distinction between property rights and other types of rights. For present purposes, however, it is important to note that property rights are usually defined in contradistinction to personal or contractual rights, on the one hand, and political or civil rights on the other. The issue of where to draw the boundary between these discrete categories arose in the case of Dorman v Rogers.153 The appellant had been struck off the Register of Medical Practitioners in New South Wales after

having been convicted of making dishonest claims for payment of medical services. He appealed to the High Court, relying on s 35(3)(b) of the Judiciary Act 1903 (Cth), which provided an appeal of right to the High Court where a Supreme Court judgment involved ‘directly or indirectly a … question … respecting any property or any civil right amounting to or of the value of $20,000 or upwards’. The respondents argued, among other things, that it was not a property right. [page 38] 1.73 A majority of the High Court in Dorman agreed. Gibbs CJ cited the unanimous judgment of the High Court in Clyne v NSW Bar Association,154 which concluded that, in the case of a right to practise a profession, ‘[t]here is no “property” that can be said to be involved’. He added that: What is valuable is the person’s own earning capacity, which is personal to him. The right is, of course, not transmissible, and the financial consequences of possessing the right will depend on the skill, ability and fortune of the individual concerned.155

The necessary requirement of transferability of the interest was also the basis of the judgment of Stephen J (Brennan and Mason JJ concurring), who drew a sharp contrast between rights to practise law and medicine and rights to ‘conduct hotels or lotteries or the growing of certain primary products where quota limits on production exist’.156 He noted that the former derived exclusively from the possession of personal qualities. By contrast: The latter have value not by virtue of registration which is merely certification of the possession of personal qualities inherently incapable of transfer to another, whereas the right to enter upon and share in an activity, entry to which is controlled by the state and is not dependent merely upon the personal qualities of an intending entrant, will be readily transferable, and its scarcity value realizable, so long as the law permits such transfer.157

As this judgment suggests, the concept of property as evidenced in prevailing legal doctrine does not extend to purely personal rights — such as the right to reputation or the right to work — or civil rights in the broader sense, such as the right to vote, freedom of association and freedom of speech.158

Property and civil rights

1.74 In Davis v Commonwealth,159 the High Court was asked to decide where to draw the line between the property rights of the defendant and the civil rights — specifically the right to freedom of speech — of the plaintiff. This was evidenced in an assertion by the defendant that its rights as owners of designs under the Australian Bicentennial Act 1980 (Cth) were infringed by the production of shirts with designs ‘bearing a discernible similarity’, as the court found, to the official symbols of the Australian Bicentennial Authority (the Authority). The symbols in question were the figures ‘1788’ and ‘1988’. The inner symbol was surrounded by an outer ring containing the words ‘200 years of suppression and depression’. The plaintiffs had already been refused consent by the Authority to use the [page 39] symbols produced on the shirts. The Authority relied on s 22 of the Act, which made it an offence to use a symbol ‘capable of being mistaken for’ official symbols. The High Court unanimously accepted the plaintiffs’ argument, holding that: … the framework of regulation created by s 22(1)(a) with s 22(6)(d)(i) and (ii) reached 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 …160

The court went on to consider a range of possible uses of these symbols, such as ‘Melbourne 1988’ to illustrate the ‘extraordinary power to regulate the use of everyday expressions in this country’. The framework was, therefore, beyond the power of the Commonwealth. However, it may be that freedom of expression as a civil right will give way to rights of the Commonwealth where those rights are ‘reasonably and appropriately adapted to achieve the ends that lie within the limits of constitutional power’.

Public property, private property, common property 1.75

The case of Stow v Mineral Holdings (Australia) Pty Ltd161 demonstrates

the essentially private, or privative, nature of property rights. The appellants lodged objections under the Mining Act 1929 (Tas) with the warden to mining and prospecting activity in an area adjoining Tasmania’s South-West National Park. The respondents opposed this action on the ground that the appellants had no jurisdiction under the Act to object because they did not have any estate or interest in the land within s 15C(1) of the Mining Act. The High Court had to consider whether the appellants as bushwalkers, campers and naturalists had a sufficient proprietary interest to make an objection. A majority held that they did not. Though the Act offered no definition of ‘interest in land’, it was held to be of a proprietary nature that does ‘not embrace interests in which the person concerned has no greater claim than any other member of the public’. In this way, the rights of the bushwalkers and others are to be seen as ‘public rights’. Moreover, the greater use of these rights by some people, as in the case of keen bushwalkers, ‘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’.162 In this scheme, therefore, property may be private if held by an individual; it may be public if held by a public institution, or by the state; but the notion of common property seems to be a contradiction in terms. This would suggest that we are as far away as ever from Macpherson’s claim that a notion of property is emerging which is ‘a right not to be excluded’.163 Does this mean that we devalue the rights of the public against those who hold private property? [page 40]

Property rights and human rights 1.76 To the extent that property rights entail a right to exclude and to use and enjoy, they have the potential of impacting adversely on the human rights of others.164 We have seen above in Davis v Commonwealth165 that, in certain circumstances, where property rights unreasonably affect civil rights to free expression, they will be curtailed by the courts. Importantly, civil rights are protected not only by municipal law, but also by international instruments

such as the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights. Article 1 of Protocol No 1 to the European Convention on Human Rights provides: Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding conditions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions and penalties.

As these instruments increasingly gather force in the domestic law of nation states, international human rights law is beginning to have some bearing on the boundaries of property rights. This has been particularly the case in the European Union where the European Convention on Human Rights binds member states. Some member states have even proceeded to incorporate the Convention directly into domestic law. The United Kingdom, for example, enacted the Human Rights Act 1998 (UK) to achieve this objective. However, with the United Kingdom’s impending departure from the European Union (Brexit), the role of European Union law in United Kingdom law will need to be revisited. 1.77 For the present, it remains useful to consider United Kingdom law and European Law in relation to human rights. The reach of human rights law was referred to pointedly by Lord Bingham of Cornhill in Harrow London Borough Council v Qazi.166 He concluded, in the context of an appeal concerning the validity of a termination of a joint tenancy in light of Art 8 of the European Convention on Human Rights (the right to respect for private and family life, home and correspondence), that ‘few things are more central to the enjoyment of human life than having somewhere to live’.167 By a narrow majority, the House of Lords held that the Human Rights Act did not confer a right on the co-joint tenant that prevailed over the landlord’s common law right to possession. Contrast this case with the decision of the European Court of Human Rights in Connors v United Kingdom,168 where a family of ‘gypsies’ was evicted from a local authority site by the owner. The court held that there were insufficient procedural protections of the family’s rights in the local law as required by Art 8. The family was awarded compensation for its loss of the

[page 41] site. Clearly, this decision qualifies Qazi. Some further elaboration of relevant principles was conducted in the conjoined appeals in Kay v Lambeth London Borough Council and Leeds City Council v Price, where a seven-judge panel of the House of Lords, by a majority of 4:3, largely affirmed the majority view in Qazi.169 1.78 The Parliament of Victoria has introduced the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Victorian Charter). Section 13 of the Victorian Charter echoes Art 8 of the European Convention on Human Rights (European Convention). It provides that a person ‘has the right (a) not to have his or her … home … unlawfully or arbitrarily interfered with’. Also, s 20 of the Victorian Charter, labelled ‘Property Rights’, contains a provision similar to Art 1 of Protocol No 1 of the European Convention. Section 20 states: ‘A person must not be deprived of his or her property other than in accordance with law’. The courts will be required to interpret legislation consistently with the Victorian Charter wherever possible, as long as this does not disturb the purpose behind the legislation. The European authorities appear to be directly relevant to the interpretation of this provision. Although New South Wales does not yet have a Human Rights Act, there is mounting political pressure to adopt one, so that the overseas jurisprudence may have increasing relevance here. In any event, international developments can influence judicial discretion in hard cases separately, as demonstrated in Mabo (No 2),170 and the delicate balancing act involved when judges in other jurisdictions seek to reconcile human rights law with property law will continue to resonate with policy debates about the legitimate boundaries of property rights in Australia.171

Conclusion 1.79 The rights considered above as property rights involved an examination of the boundary between property rights and other sorts of rights external to property law. It follows that property law can be seen as a subcategory of private law

concerned with the rights individuals have over things, which at the same time directly impact on the property rights and civil rights of others. By contrast to the external boundaries of property law, there is a host of distinctions internal to property law, whereby property rights are classified depending on the nature of the thing over which rights are claimed, and the nature of the rights claimed. This is the subject of the Chapter 2, which will outline the divisions governing the principles that underpin the layout of this book.

1.

We engage with property in land (known as real property) and with other non-land property (known as either personal property, personalty or choses), such as cars, chairs or shares. The term ‘personal property’ is not to be confused with the term ‘personal right’. The latter, although it sounds similar to ‘personal property’, actually denotes a non-proprietary interest such as a licence.

2.

For a discussion on poverty, see A Durbach, B Edgeworth and V Sentas, Law and Poverty in Australia: 40 Years after the Poverty Commission, The Federation Press, Sydney, 2017, particularly C Goldie and B Edgeworth, ‘Law, Poverty and Inequality in Contemporary Australia’, Ch 5, p 73.

3.

G Alexander and E Penalver, An Introduction to Property Theory, Cambridge University Press, New York, 2012, p 1.

4.

V Milligan, J Yates and H Pawson, Submission to the Council for Federal Financial Relations Affordable Housing Working Group, City Futures Research Centre, Faculty of Built Environment, University of NSW Australia, Sydney, 20 16; C Martin, Submission to the Review of the Residential Tenancies Act 2010 (NSW), City Futures Research Centre, Faculty of Built Environment, University of NSW Australia, Sydney, 2016; H Pawson and S Herath, Disadvantaged Places in Urban Australia: Residential Mobility, Place Attachment and Social Exclusion, AHURI Final Report No 243, Australian Housing and Urban Research Institute Limited, Melbourne (accessed 29 May 2017), .

5.

See, eg, the land resumptions associated with the WestConnex motorway in Sydney’s south west (accessed 2 April 2017), .

6.

Legislation approving the sale of land titling services in New South Wales was passed in September 2016, and the concession is expected to commence in 2017. Land Property Information (LPI) (a division of a larger government department) is responsible for land titling services. Other landrelated services such as valuations and titling have been privatised previously.

7.

Note that in the United States, title insurance is common. If such insurance became necessary in New South Wales, it would be likely to increase costs for property owners.

8.

See, eg, The Law Society of New South Wales, Baird Government should follow UK & abandon LPI ‘cash grab’, Sydney, 5 December 2016 (accessed 1 March 2017), .

9.

Nazi Germany’s policies of expansion before and during World War II were commonly explained as a quest for more land, or ‘lebensraum’ (living space).

10.

Eg, ownership of oil was a factor in the Iraqi and Kuwaiti conflicts of the 1990s.

11.

Water lies at the heart of aspects of conflict in the Middle East. See, eg, M Zeitoun, ‘The Influence of Narratives on Negotiations over and Resolution of the Upper Jordan River Conflict’ (2013) 18(2) International Negotiation 293–322.

12.

See the marriages of European royalty and, more generally, the concept of the marriage settlement and contract. See D Wilson, Women, Marriage and Property in Wealthy Landed Families in Ireland, 1750–1850, Manchester University Press, Manchester, 2008; B J Harris, English Aristocratic Women, 1450–1550: Marriage and Family, Property and Careers, Oxford University Press, Oxford, 2002.

13.

See, eg, the rationale for the introduction of the English Statute of Uses 1535. The statute was designed to limit the effect of the use (a precursor to the modern day trust) because putting property behind a use limited the King’s capacity to collect taxes. (Seisin was absent and it was on the basis of seisin that taxes were collected.) See F W Maitland, Equity, Cambridge University Press, Cambridge, 1949, p 34, for a discussion on the statute. See Chapter 6 at 6.3.

14.

As observed above, conflict between the state and individuals concerning property is also evident in relation to compulsory acquisitions; an issue that has been explored in popular culture, in films such as The Castle.

15.

C M Rose, Property and Persuasion: Essays on the History, Theory, Rhetoric of Ownership, Westview Press, Boulder, 1994, discusses how property either defies definition or is a contested term.

16.

J Waldron, The Right to Private Property, Clarendon Press, Oxford, 1998, p 26.

17.

J W Singer, ‘Property as the Law of Democracy’ (2014) 63 Duke Law Journal 1287–1335.

18.

C Harpum, S Bridge and M Dixon, Megarry and Wade: The Law of Real Property, 7th ed, Sweet and Maxwell, London, 2008, pp 6, 93.

19.

Note that, within the sphere of property, there is a range of subcategories (diagrammatically represented in Chapter 2 at 2.1). The range includes real property and personal property. As Cooke explains, the law also upholds personal rights that are not proprietary at all. She observes that the overlap in terminology is unfortunate. See E Cooke, Land Law, 2nd ed, Clarendon Press, Oxford, 2012, p 6.

20.

E Cooke, Land Law, note 19 above, p 6.

21.

None of the pre-colonial, Portuguese colonial nor Indonesian eras of rule in East Timor relied on a common law system.

22.

D Fitzpatrick, Land Claims in East Timor, Asia Pacific Press, Canberra, 2002; D Fitzpatrick, A McWilliam and S Barnes, Property and Social Resilience in Times of Conflict: Land, Custom and Law in East Timor, Ashgate, Aldershot, 2012.

23.

K Gray and S Francis Gray, Elements of Land Law, 5th ed, Oxford University Press, Oxford, 2009, p 2.

24.

See Chapter 4.

25.

W Blackstone, Commentaries on the Laws of England, Dawsons, London, 1966, Vol II, p 2.

26.

Blackstone, note 25 above, Vol II, p 2.

27.

See, eg, Water Management Act 2000 (NSW); ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR 140. See J Gray and L Lee, ‘National Water Initiative Styled Water Entitlements as Property: Legal and Practical Perspectives’ (2016) 33 Environmental Planning and Law Journal 284; J Gray and L Lee, ‘Water Entitlements as Property: A Work in Progress or Watertight Already?’ in C Holley and D Sinclair, Reforming Water Law and Governance: Lessons from Leading-Edge Australian Water Strategy,

Springer, Singapore, forthcoming, 2017. Note that in Tasmania and Queensland, unlike New South Wales, the legislature specifically declares that a water licence is the personal property of the licensee. See Natural Resources Management Act 2004 (SA) s 146(8); Water Management Act 1999 (Tas) s 60. More generally, see A Scott, The Evolution of Resource Property Rights, Oxford University Press, 2008, Oxford. 28.

See, eg, Griffiths J in Bernstein v Skyviews & General Ltd [1978] QB 479 at 488. See also Chapter 8. This question is explored in detail in S Grattan, ‘Judicial Reasoning and the Adjudication of Airspace Trespass’ (1996) 4 APLJ 128.

29.

S Bowles and H Gintis, Democracy and Capitalism: Property, Community and the Contradictions of Modern Social Thought, Routledge, London, 1986, p 27.

30.

Davis v Commonwealth (1988) 166 CLR 79; 82 ALR 633. See 1.74.

31.

See, eg, J W Singer, The Edges of the Field: Lessons on the Obligations of Ownership, Beacon Press, Massachusetts, 2000; J W Singer, Entitlements: The Paradoxes of Property, Yale University Press, Yale, 2000.

32.

K Gray, ‘Property in Thin Air’ (1991) 50 Cam LJ 252.

33.

Stow v Mineral Holdings (Australia) Pty Ltd (1977) 180 CLR 295; 14 ALR 397. For further discussion of this case, see 1.75. However, it should be noted that increased rights of access, according to scholars such as Gray, may be characterised as a new form of property. See K Gray, ‘Regulatory Property and the Jurisprudence of Quasi-Public Trust’ (2010) 32 Syd LR 22.

34.

J Bentham, Principles of the Civil Code, C K Ogden (ed), 1931, Ch VIII; cited in C B Macpherson (ed), Property: Mainstream and Critical Positions, Blackwell, Oxford, 1978, p 52.

35.

Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141.

36.

Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 at 171. As will be seen later, this case was overturned in Mabo v Queensland (No 2) (1992) 175 CLR 1; 107 ALR 1 (Mabo (No 2)).

37.

For the present law in relation to native title, see Chapter 4.

38.

F Snare, ‘The Concept of Property’ (1972) 9 American Philosophical Quarterly 200 at 202–4. See also G Calabresi and A Douglas Melamed, ‘Property Rules, Liability Rules, and Inalienability: One View of the Cathedral’ (1972) 85 Harv L Rev 1089. This enormously influential theoretical framework was celebrated in the 1997 special issue of the Yale Law Journal: (1997) 106(7) Yale LJ. The relevant articles come from a symposium: Property Rules, Liability Rules, and Inalienability: A Twenty-Five Year Retrospective, pp 2083–213.

39.

A M Honoré, ‘Ownership’, in Oxford Essays in Jurisprudence, A G Guest (ed), Clarendon Press, Oxford, 1961, pp 107–47.

40.

See, generally, W Twining, Karl Llewellyn and the Realist Movement, Weidenfeld and Nicolson, London, 1973.

41.

W Hohfeld, ‘Some Fundamental Legal Conceptions As Applied in Judicial Reasoning’ (1913) 23 Yale LJ 16 at 24.

42.

For details of this theory, see 1.23–1.26.

43.

See the Fourteenth Amendment, US Constitution: ‘No individual can be deprived of property without due process of law’.

44.

For an excellent discussion of this and related issues, see E Keynes, Liberty, Property and Privacy: Toward a Jurisprudence of Substantive Due Process, Pennsylvania State University Press, Pennsylvania,

1996, especially Chs 5 and 6. 45.

Lochner v New York 198 US 45 (1905).

46.

Coppage v Kansas 236 US 1 at 17 (1915).

47.

Keynes, Liberty, Property and Privacy, note 44 above, p 128.

48.

F Cohen, ‘Transcendental Nonsense and the Functional Approach’ (1935) 35 Colum L Rev 809.

49.

See, eg, West Coast Hotel Co v Parrish 300 US 379 (1937). For a detailed account of this period, see Keynes, Liberty, Property and Privacy, note 44 above, Ch 6.

50.

M Cohen, ‘Property and Sovereignty’ (1927) 13 Cornell L Rev 8.

51.

Cohen, ‘Property and Sovereignty’, note 50 above, at 14.

52.

On this general point, see T C Grey, ‘The Disintegration of Property’ in J R Pennock and J W Chapman (eds), Nomos XXII: Property, New York University Press, New York, 1980, pp 69–85; and, from a Marxist perspective, K Renner, The Institutions of Private Law in Relation to their Social Function, O Kahn-Freund (ed), A Schwarzschild (trans), Routledge, London, 1949.

53.

Grey, ‘The Disintegration of Property’, note 52 above, pp 76–7.

54.

G Alexander, Commodity and Proprietary: Competing Visions of Property in American Legal Thought, University of Chicago, Chicago, 1997, p 19. Note also that Penner observes that ‘[t]he currently prevailing understanding of property in what might be called mainstream Anglo-American legal philosophy is that property is best understood as a “bundle of rights”’ in J E Penner, ‘The “Bundle of Rights” Picture of Property’ (1995) 43 UCLA L Rev 711 at 712.

55.

Key proponents of property as the law of things include Smith and Penner. See H E Smith, ‘Property as the Law of Things’ (2012) 125 Harv L Rev 1691; J E Penner, The Idea of Property in Law, Clarendon Press, Oxford, 1997, pp 68–73. See also R C Ellickson, ‘Two Cheers for the Bundle-of-Sticks Metaphor, Three Cheers for Merrill and Smith’ (2011) 8 (3) Econ Journal Watch 215. Note that other scholars such as Merrill have chosen to emphasise one stick in the bundle of rights as being paramount. Merrill emphasises the exclusion stick alone rather than a bundle of sticks. See T W Merrill, ‘Property and the Right to Exclude’ (1998) 77(4) Neb L Rev 730; T W Merrill, ‘Property and the Right to Exclude II’ (2014) 3 Brigham-Kanner Property Rights Conference Journal 1.

56.

Eg, see H E Smith, ‘Institutions and Indirectness in Intellectual Property’ (2009) 157 U Pa L Rev 2083 as cited in J Baron, ‘Rescuing the Bundle of Rights Metaphor’ (2014) (82) 1 Cincinnati L Rev 57.

57.

H E Smith, ‘Property as the Law of Things’ (2012) 125 Harv L Rev 1691 at 1703, as cited in Baron, ‘Rescuing the Bundle of Rights Metaphor’, note 56 above.

58.

T W Merrill, ‘The Property Strategy’ (2012)160 U Pa L Rev 2061.

59.

J Baron, ‘Rescuing the Bundle of Rights Metaphor’ (2014) (82) 1 Cincinnati L Rev 57 at 59.

60.

Baron, ‘Rescuing the Bundle of Rights Metaphor’, note 59 above.

61.

M Heller, ‘Boundaries of Private Property’ (1997) 108 Yale LJ 1163 at 1193.

62.

See N Graham, ‘Dephysicalisation and Entitlement: Legal and Cultural Discourses of Place as Property’ in B Jessup and K Rubenstein (eds), Environmental Discourses in Public and International Law, Cambridge University Press, Cambridge, 2012; E Freyfogle, On Private Property: Finding Common Ground on the Ownership of Land, Beacon Press, Boston, 2007, p vii.

63.

For a discussion of property as a thing, see Smith, ‘Property as the Law of Things’, note 57 above, at 1691. For a discussion of the weaknesses in the bundle of sticks approach as it applies to land, see N Graham, Lawscape, Routledge, Abingdon, 2011.

64.

Macpherson (ed), Property: Mainstream and Critical Positions, note 34 above.

65.

J Locke, Second Treatise on Government, P Laslett (ed), Cambridge University Press, Cambridge, 1964, [28].

66.

Locke, Second Treatise on Government, note 65 above, [28].

67.

Locke, Second Treatise on Government, note 65 above, [27]–[28].

68.

Locke, Second Treatise on Government, note 65 above, [37].

69.

Locke, Second Treatise on Government, note 65 above, [26].

70.

R A Williams, The American Indian in Western Legal Thought: The Discourses of Conquest, Oxford University Press, Oxford, 1990.

71.

L M G Clark, ‘Women and Locke: Who Owns the Apples in the Garden of Eden?’ in L M G Clark and L Lange (eds), The Sexism of Social and Political Theory: Women and Reproduction from Plato to Nietzsche, University of Toronto Press, Toronto, 1979, p 33.

72.

J Bentham, The Theory of Legislation, C K Ogden (ed), Kegan Paul, London, 1931, Ch X; cited in Macpherson (ed), Property: Mainstream and Critical Positions, note 34 above, p 55.

73.

See 1.11.

74.

S R Munzer, A Theory of Property, Cambridge University Press, Cambridge, 1990, p 203.

75.

R Posner, Economic Analysis of Law, Little, Brown & Co, Boston, 1973, p 11. For an excellent brief introduction to the economic analysis and justification of property rights, see A Clarke and P Kohler, Property Law: Commentary and Materials, Cambridge University Press, Cambridge, 2005, pp 42–50.

76.

This is explored in detail by G Hardin, ‘The Tragedy of the Commons’ in B Ackerman (ed), Economic Foundations of Property Rights, Little, Brown & Co, Boston, 1975, p 4ff.

77.

See, eg, G G Stevenson, Common Property Economics: A General Theory of Land Use Applications, Cambridge University Press, Cambridge, 1990.

78.

A Carter, The Philosophical Foundations of Property Rights, Harvester, New York, 1989, p 68. See also B Ziff, Principles of Property Law, 6th ed, Carswell, Ontario, 2014; E Ostrom, Governing the Commons, Cambridge University Press, New York, originally published 1990, reprinted 2015.

79.

See D W Bromley, Environment and Economy: Property Rights and Public Policy, Blackwell, Oxford, 1991.

80.

In relation to telecommunications, see K Gray, ‘Regulatory Property and the Jurisprudence of Quasi-Public Trust’ (2010) 3 Syd LR 2. In relation to sewerage infrastructure, see J Gray and A Gardner, ‘Legal Access to Sewage and the Re-invention of Wastewater’ (2008) 12(2) Australasian Journal of Natural Resources Law and Policy 115–59. More generally, see also J Stiglitz, The Price of Inequality, Penguin, London, 2013, especially Ch 4; T Picketty, Capital in the Twenty First Century, Arthur Goldhammer (trans), Harvard University Press, Cambridge, MA, 2014.

81.

So, for example, in the United States, where there are more of these services in private hands than in any other of the advanced capitalist countries, there is extensive poverty, despite the fact that it is one of the wealthiest societies.

82.

Further, in the water trading sector many sellers have been characterised as ‘unwilling sellers’. They have little real freedom to decide if they will sell their privatised water entitlements. Decisions to sell have commonly been driven by drought and ensuing weak financial positions.

83.

See, generally, H Braverman, Labor and Monopoly Capital, Monthly Review Press, New York, 1974.

84.

K Marx, Theories of Surplus Value, Lawrence and Wishart, London, 1969.

85.

See Z Bauman, ‘Communism: A Postmortem’ in Intimations of Postmodernity, Routledge, London, 1992.

86.

R H Tawney, The Sickness of an Acquisitive Society, Allen & Unwin, London, 1920; cited in Macpherson (ed), Property: Mainstream and Critical Positions, note 34 above, p 150.

87.

R Knieper, ‘Property and Contract’ (1980) 4 Int Jnl of the Soc of Law 423.

88.

Note that socially beneficial investment has become a topical issue in the superannuation context.

89.

For an extended discussion of the political preferences of the realists, see A Hunt, The Sociological Movement in Law, Macmillan, London, 1978, Ch 3.

90.

G S Alexander, E M Penalver, J W Singer and L S Underkuffler, ‘A Statement of Progressive Property’ (2009) 94 Cornell L Rev 743.

91.

Alexander, Penalver, Singer and Underkuffler, ‘A Statement of Progressive Property’, note 90 above.

92.

Alexander, Penalver, Singer and Underkuffler, ‘A Statement of Progressive Property’, note 90 above. For further consideration of progressive property, see J A Lovett, ‘Progressive Property in Action: The Land Reform (Scotland) Act 2003’ (2011) 89(4) Neb L Rev 739; E Rosser, ‘The Ambition and Transformative Potential of Progressive Property’ (2013) 101(1) Cal L Rev 107. In response to Rosser, see T M Mulvaney, ‘Progressive Property Moving Forward’ (2014) 5 California Law Review Circuit 349.

93.

Clark, ‘Women and Locke: Who Owns the Apples in the Garden of Eden?’, note 71 above, p 33.

94.

For practical examples of how the application of property principles contribute to gender-based inequality, see S Moa, A Human Rights Approach to Women’s Land Rights in Tonga, PhD thesis, Faculty of Law, University of NSW Australia, Sydney, Australia, submitted 2017.

95.

M Otto, ‘A Barren Future? Equity’s Conscience and Women’s Inequality’ (1992) 18 MULR 808.

96.

M Neave, ‘From Difference to Sameness — Law and Women’s Work’ (1992) 18 MULR 768.

97.

C M Rose, ‘Women and Property: Gaining and Losing Ground’ (1992) 78 Virginia L Rev 421–2.

98.

B Cass, ‘The Feminisation of Poverty’ in B Caine, E A Grosz, and M de Lepervanche (eds), Crossing Boundaries: Feminisms and the Critique of Knowledges, Allen & Unwin, Sydney, 1988.

99.

For a discussion on how the land acquisition process, which is formally gender neutral, fails to consider the ways in which women may be disadvantaged by land acquisition, see M Manuchehri, ‘Large-Scale Land Acquisitions and Applying a Gender Lens to Supply Chain Reform’ (2016) 25(2) Washington International LJ 365. One of Manuchehri’s arguments is that while companies consider international legal norms about free, prior and informed consent and the United Nations Guiding Principles on Business and Human Rights so as to avoid ‘land grabs’ in the Global South, they do not specifically consult with women. She concludes that if women were consulted, there would be fewer adverse effects on communities.

100. The original Feminist Judgment Project was undertaken by a group of socio-legal scholars in the

United Kingdom. They took a selection of significant English judgments and rewrote alternative feminist judgments. The material is published in R Hunter, C McGlynn and E Rackley (eds), Feminist Judgments: From Theory to Practice, Hart, 2010. In particular, see pp 12–13. Note that the book includes a ‘property and markets’ section featuring the following cases: Royal Bank of Scotland v Etridge (No 2) [2001] 4 All ER 449; Baird Textile Holdings v Marks & Spencer Plc [2001] EWCA Civ 274. See also R Hunter, ‘Can Feminist Judges Make a Difference?’ (2008) 15 International Journal of the Legal Profession 7; H Douglas, F Bartlett, T Luker and R Hunter (eds), Australian Feminist Judgments: Righting and Rewriting Law, Hart, 2014. Note that the latter reference contains an equity judgment but not a property law judgment specifically. 101. R West, ‘Jurisprudence and Gender’ (1988) 55 U Chi L Rev 1. 102. K Green, ‘Being Here — What Can a Woman Say About Land Law?’ in A Bottomley (ed), Feminist Perspectives on the Law Curriculum, Cavendish, London, 1996, p 95. 103. Green, ‘Being Here — What Can a Woman Say About Land Law?’ note 102 above, p 95 (italics in original). 104. J L Schroeder, ‘Chix Nix Bundle-O-Stix: A Feminist Critique of the Disaggregation of Property’ (1994) 93 Mich L Rev 239. 105. See, eg, C Smart, ‘Feminist Jurisprudence’ in P Fitzpatrick (ed), Dangerous Supplements, Pluto Press, London, 1991, pp 133–58. 106. H Carr and S Wong, ‘Feminist Approaches to Property Law Research’ (2014) 3 Property Law Review 247. 107. For other feminist approaches to a range of property interactions see C Grant Bowman, ‘Path from Feminist Legal Theory to Environmental Law and Policy’ (2013) 22(3) Cornell Journal of Law and Public Policy 641; H Lim and A Bottomley, Feminist Perspectives on Land Law, Routledge, Abingdon, 2007. 108. Munzer, A Theory of Property, note 74 above, p 247. 109. This line of argument echoes that of John Rawls generally in relation to social justice: see J Rawls, A Theory of Justice, Harvard University Press, Cambridge, Mass, 1971. For a more recent elaboration, see M Nussbaum, Frontiers of Justice, Harvard University Press, Cambridge, Mass, 2006. 110. Munzer, A Theory of Property, note 74 above, p 249. 111. Macpherson (ed), Property: Mainstream and Critical Positions, note 34 above, p 206. 112. C B Macpherson, Democratic Theory: Essays in Retrieval, Clarendon, Oxford, 1973, p 123. 113. Macpherson, Democratic Theory: Essays in Retrieval, note 112 above, p 125. 114. C Reich, ‘The New Property’ (1964) 73 Yale LJ 733. 115. C B Macpherson, ‘A Political Theory of Property’ in Macpherson, Democratic Theory: Essays in Retrieval, note 112 above, p 131. 116. T C Grey, ‘The Disintegration of Property’ in Pennock and Chapman (eds), Nomos XXII: Property, note 52 above, pp 69–85. 117. A Erh-Soon Tay and E Kamenka, ‘Introduction: Some Theses on Property’ (1988) 11 UNSWLJ 1. 118. J Seabrook, What Went Wrong?, Victor Gollancz, London, 1978, p 31. 119. T Prosser and M Moran, Privatization and Regulatory Change in Europe, Open University Press, Buckingham, 1994; B Edgeworth, Law, Modernity, Postmodernity: Legal Change in the Contracting

State, Ashgate, Aldershot, 2003, Ch 5. Note, however, Gray’s proposition that a new kind of more democratic property has been born, that is, regulatory property. This type of property is underpinned by a right of access. See K Gray, ‘Regulatory Property and the Jurisprudence of Quasi-Public Trust’ (2010) 32 Syd LR 22. Note that the 2017 UK election results reflected support, from young voters in particular, for the policies of Labour leader, Jeremy Corbyn. Several of those policies were designed to shift ownership from private back to public (eg, through the renationalisation of the railways). It is too soon to tell, but perhaps the election results reflect the beginning of a turning tide. 120. K Gray, ‘Regulatory Property and the Jurisprudence of Quasi-Public Trust’ (2010) 32 Syd LR 22. 121. See further, Chapter 11. 122. Cowell v Rosehill Racecourse Co Ltd (1969) 56 CLR 605; 43 ALR 69. 123. King v David Allen & Sons, Billposting Ltd [1916] 2 AC 54. 124. Georgeski v Owners Corp SP49833 (2004) 62 NSWLR 534. 125. This is known as the numerus clausus [closed list] principle that limits the creation of new interests, particularly in land. See further, B Edgeworth, ‘The Numerus Clausus Principle in Australian Property Law’ (2006) 32 Mon ULR 387. 126. On this point, see further Chapter 6. 127. Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 at 272. See Chapter 4 more generally for discussion of this case and Mabo v Queensland (No 2) (1992) 175 CLR 1; 107 ALR 1. 128. Mabo v Queensland (No 2) (1992) 175 CLR 1; 107 ALR 1. 129. Mabo v Queensland (No 2) (1992) 175 CLR 1 at 36; 107 ALR 1 at 36. 130. R H Bartlett, ‘The Proprietary Nature of Native Title’ (1998) 6 APLJ 77. 131. King v David Allen & Sons, Billposting Ltd [1916] 2 AC 54. 132. See, eg, B G Hanneman, ‘Body Parts and Property Rights: A New Commodity for the 1990s’ (1993) 22 Sw U L Rev 399. For a wide-ranging and insightful analysis, see M Davies and N Naffine, Are Persons Property? Legal Debates about Property and Personality, Ashgate, Aldershot, 2001. 133. Moore v Regents of the University of California 793 P 2d 479 (1990). 134. See, eg, Moore v Regents of the University of California 793 P 2d 479 (1990) at 510 per Mosk J. 135. For a discussion of the pros and cons of the propertisation of human body parts, see Australian Law Reform Commission, Essentially Yours: The Protection of Human Genetic Information in Australia, ALRC Report 96, Ch 20 (accessed 12 June 2017), . 136. Doodeward v Spence (1908) 6 CLR 406. 137. For the general principles involved in protecting personal property rights, see Chapter 2. 138. Yearworth v North Bristol NHS Trust [2009] 3 WLR 118 at [45]. 139. Edwards; Re the Estate of Edwards [2011] NSWSC 478. For a general discussion, see L Bennett Moses, ‘Property in Sperm’ (2011) 1 Prop L Rev 135–9. 140. Roblin v the Public Trustee for the Australian Capital Territory and Labservices Pty Ltd [2015] ACTSC 100. 141. Doodeward v Spence (1908) 6 CLR 406.

142. Roche v Douglas [2000] WASC 146. 143. Yearworth v North Bristol NHS Trust [2009] EWCA Civ 37. 144. Bazley v Wesley Monash IVF Pty Ltd [2011] 2 Qd R 207. See M Quigley, ‘Property in Human Biomaterials – Separating Persons and Things?’ (2012) 32(4) Oxford Journal of Legal Studies 659. Quigley summarises the English law on property in human biomaterials and argues that separation from a person as a criterion for determining whether something is property is philosophically problematic. See also N Rolf, ‘Making Something into Nothing: Reforming the “No Property” Rule for Human Tissue’ (2013) 21 Journal of Law and Medicine 312, which compares the legal position in Australia regarding property in regenerative tissue to the legal position in the United States and United Kingdom, and proposes a framework for property rights at common law. 145. Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479 at 507. 146. Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479 at 507. 147. Moorgate Tobacco Pty Ltd v Philip Morris Pty Ltd (1984) 156 CLR 414 at 445–6; 56 ALR 193 at 214. See further, K Gray, ‘Property in Thin Air’ (1991) 50 Cam LJ 252. 148. See M Walpole and J Gray, ‘Taxing Virtually Everything: Cyberspace Profits, Property Law and Taxation Liability’ (2010) 39 Australian Taxation Review 1. 149. For an overview of these arguments, see D Ellinson, ‘A New “Breed” of Intellectual Property Rights’ (1988) 62 LIJ 742. 150. Foster v Mountford (1976) 14 ALR 71. 151. For instance, Seager v Copydex Ltd [1967] 2 All ER 415 (information about an invention). 152. Smith, Kline & French Laboratories (Australia) Ltd v Secretary, Department of Community Services and Health (1990) 95 ALR 87 at 135. 153. Dorman v Rogers (1982) 148 CLR 365. 154. Clyne v NSW Bar Association (1960) 104 CLR 186 at 205. 155. Dorman v Rogers (1982) 148 CLR 365 at 367. 156. Dorman v Rogers (1982) 148 CLR 365 at 369. 157. Dorman v Rogers (1982) 148 CLR 365 at 370. 158. Note that in Cunningham v Commonwealth of Australia [2016] HCA 39, the High Court considered whether a politician’s retirement allowance (as opposed to a right to work) was property. French CJ and Kiefel and Bell JJ concluded that ‘if a right or entitlement was always, of its nature, liable to variation, apart from the fact that it was created by statute, a variation later effected cannot properly be described as an acquisition of property’: at [46]. 159. Davis v Commonwealth (1988) 166 CLR 79; 82 ALR 633. See also 1.5. 160. Davis v Commonwealth (1988) 166 CLR 79 at 100; 82 ALR 633 at 645 per Mason CJ, Deane and Gaudron JJ. 161. Stow v Mineral Holdings (Australia) Pty Ltd (1977) 180 CLR 295; 14 ALR 397. 162. Stow v Mineral Holdings (Australia) Pty Ltd (1977) 180 CLR 295 at 312; 14 ALR 397 at 411 per Aickin J. 163. See 1.5. Clarke and Kohler, Property Law: Commentary and Materials, note 75 above, add a further refinement by distinguishing between ‘open access communal property’ and ‘state property’: at pp 35–41. Public rights are relevant to the former but not the latter.

164. As an aside, it can be noted that there are proponents of property rights for wild animals as well as for humans. See J Hadley, Animal Property Rights: A Theory of Habitat Rights for Wild Animals, Lexington Books, Lanham, MD, 2015. 165. Davis v Commonwealth (1988) 166 CLR 79; 82 ALR 633. 166. Harrow London Borough Council v Qazi [2004] 1 AC 983. 167. Harrow London Borough Council v Qazi [2004] 1 AC 983 at [8]. 168. Connors v United Kingdom [2004] EHRR 189. 169. Kay v Lambeth London Borough Council; Leeds City Council v Price [2006] 2 AC 465. For a discussion of these cases, see K Gray and S Gray, Elements of Land Law, 5th ed, Oxford University Press, Oxford, 2009, pp 123–31. 170. Mabo v Queensland (No 2) (1992) 175 CLR 1 at 42; 107 ALR 1. See further, Chapter 4. 171. Note that the Australian Capital Territory also has the Human Rights Act 2004 (ACT) (of which s 12 protects the right of a person ‘not to have his or her privacy, family, home [emphasis added] or correspondence interfered with unlawfully or arbitrarily’). Further, in 2016 the Premier of Queensland announced that the Queensland Government will introduce a Human Rights Act following the recommendations of a parliamentary inquiry. See Anti-Discrimination Commission, Queensland, Human Rights Act for Qld, media release, 31 October 2016 (accessed 22 May 2017), .

[page 43]

Chapter 2

Land, Fixtures and Chattels Introduction 2.1 The common law has traditionally classified property rights by reference to the nature of the object over which rights are held, on the one hand, and the specific bundle of rights that are asserted in respect to it, on the other. The objects of property have been divided into two basic categories: 1.

real property, or realty; and

2.

personal property, or personalty. These have been further subdivided, as illustrated in Figure 2.1.1 Figure 2.1:

Categories of property

Land 2.2 Land, also known as ‘realty’ or ‘real property’, is defined as rights over land and anything annexed to it. It may also include a quantum of airspace. This particular category [page 44] of property is also known, for obvious reasons, as ‘immovables’. The distinct physical features of land, including its immovability, in conjunction with its economic and social significance, have given rise to a particular pattern of legal regulation. As can be seen from Figure 2.1, realty is itself divided into two separate categories: corporeal and incorporeal. Corporeal property, or ‘hereditaments’,2 refers to rights to the land itself. Incorporeal property, by contrast, relates to rights over the land. The distinction is somewhat artificial: even someone who owns the land itself generally only values the rights over that land. Still, in so far as the distinction identifies different orders of rights — such as a right of occupation, as opposed to a right of way — it is a useful heuristic device for ranking different types of rights. As a preliminary matter, we need to define ‘land’. In addition to the physical earth, it is generally considered to include anything attached to it, and the airspace above it. Land also includes fixtures; that is, those chattels that have become part of the realty. A chattel will be considered to be affixed to the realty — and therefore a part of it — if it is annexed to the realty. The detailed rules relating to the definition of land, and the doctrine of fixtures, will be discussed below.3

Personalty 2.3 As Figure 2.1 illustrates, there are two distinct classes of personalty, or personal property: chattels real, or leaseholds, and pure personalty. The first category, leaseholds, is more naturally a part of real property and will be treated as such later.4 Leaseholds have been classified as personalty for historical rather than conceptual reasons. Within the framework of the

common law, the lease was originally conceived as affording personal rights only on the lessee. It followed that if, for example, the lessee was dispossessed by a third party, his or her only remedy was an action of damages, which was the same limited remedy as was available in respect of other chattels. To this extent, the lease resembled chattels more than land.5 By contrast, an essential feature of real property was a right to repossession of the land or thing (in Latin, res). The feudal prejudice against the lease disappeared by the middle of the 17th century, but too late to affect the system of classification of property rights that had already developed. Distinguishing between land and chattels on the basis of available remedies has also been largely superseded, since it is now possible to get an order for repossession of a chattel in much the same way as for land.6

Choses in possession 2.4 The words ‘choses in possession’, ‘chattels’ and ‘goods’ denote tangible personal property. The terms refer to physical things that are not land, such as cars, paintings and [page 45] clothing. The tangible nature of such property has direct consequences for the manner in which certain types of proprietary rights are created over it. So, for example, if a person takes a thing into his or her physical possession, he or she will have some proprietary rights over it. Of course, these rights may be limited if superior rights lie in someone else, as in the case where an owner loses an object and a stranger finds it.7

Choses in action 2.5 Choses in action are property rights over intangible things, covering rights as diverse as intellectual property (copyright, patents, industrial designs and confidential information), shares, rights to payment of debts, and money. Clearly, it is not possible to acquire rights over intangible property in the same

manner as it is over tangible property. For instance, intangible property cannot be possessed physically, so it cannot give rise to possessory rights. Similar considerations apply to the transfer of rights over such property. As the economies of advanced industrialised societies become increasingly information based, this area of property has assumed growing social, financial and economic significance. One useful way of distinguishing between the two sets of rights (tangible and intangible) is by comparing ownership of a book with ownership of the right to make copies of the book.8 The former is an example of a chose in possession, or chattel; the latter is a form of intangible property. There is no physical thing over which the copyright owner has rights; he or she only has a right of reproduction.

What is Land? 2.6 The meaning of this term is not self-evident. In addition to the physical earth, land is generally considered to include the airspace above it, as well as the minerals, vegetation and buildings on it. Furthermore, even if the earth is removed, the owner of the land still retains rights to the space it once occupied. The airspace can be sold as land in its own right.9 This sense of land as including both airspace and subsoil is captured in the Latin expression cuius est solum eius est usque ad coelum et usque ad inferos: ‘ownership of land extends up to heaven and down to the centre of the earth’.10 The courts and legislatures have significantly trimmed the expanse of rights implied in the Latin ‘fanciful phrase’.11 To confer such broad rights on owners would clearly impact adversely on others and the public generally, who might have a legitimate need to use the land’s airspace and subsoil.12 [page 46]

Airspace 2.7 Subject to zoning laws, the owner of land may use his or her airspace to build to any height and for any purpose.13 As for excluding others, he or she is entitled to use so much of the airspace as is necessary for the reasonable

enjoyment of the land. In Bernstein of Leigh (Baron) v Skyviews and General Ltd,14 the owner of land objected to aircraft flying some hundreds of feet over his property for sightseeing purposes. The court held that to allow trespass15 in respect of this type of activity would be an unreasonable use of the land, concluding that the owner has exclusive rights to the airspace ‘to such height as is necessary for the ordinary use of the land and the structures upon it’.16 Moreover, in 1937 in Victoria Park Racing Co v Taylor,17 the High Court held that inspecting land and watching activities taking place on it, such as sporting events, from an adjacent property, is not actionable either as a trespass or nuisance. 2.8 Invasions of the airspace over which the owner has exclusive rights, however transient, are actionable as trespass. So, where a horse bit and kicked another through a fence, the defendant was held liable.18 It was once thought that firing a bullet through the airspace of an owner’s land would not of itself amount to trespass, but would if it struck buildings or the land.19 However, in Davies v Bennison,20 where the defendant shot a cat sitting on a shed, it was held that even if the bullet touched nothing on the owner’s land it would be trespass. If the jib of a crane on land intrudes into a neighbour’s airspace, it will constitute trespass.21 The plaintiff may be entitled to an injunction to stop the interference.22 A court may refuse to grant an injunction if the trespass is trivial23 or where the owner has rejected reasonable offers of compensation.24 Statute now provides that courts may grant easements over land25 or rights of access over land,26 for the purposes of building, repair or maintenance of adjoining land. Other examples of trespass are advertising signs protruding into a neighbour’s airspace,27 overhead electric cables28 and encroaching walls.29 Overhanging trees, however, do not constitute trespass. The intrusion caused by trees is considered to be a consequential, rather [page 47] than direct, encroachment. Therefore, the remedy is in nuisance, which requires proof that the protruding branches caused actual damage.30

2.9 By s 72(1) of the Civil Liability Act 2002 (NSW) (contained within Pt 12 ‘Damage by Aircraft’), there is no right to sue in trespass for flight over property at a height: … above the ground that is reasonable (having regard to wind, weather and all the circumstances of the case) so long as the Air Navigation Regulations are complied with.31

This provision is clearly consistent with the extent of the right to sue in trespass spelled out in Bernstein. Section 73 of the Civil Liability Act imposes strict liability for any ‘material loss or damage’ caused by overflying aircraft. It was held that damage resulting from vibrations caused by aircraft is covered by the equivalent English provision.32

Subsoil 2.10 Scant authority exists about the extent of the rights of an owner below the surface. There is no reason why the same policy reasons that impose limits on airspace rights should not equally apply to the subsoil. Yet one Kentucky case held that where a cave entrance on land held by A extended under land held by B at a point 350 feet below the surface, it was trespass for A to use it at that point.33 In the absence of a specific statutory restriction or a reservation to the Crown in the original Crown grant, the owner has a general right to extract minerals below the surface.34 In New South Wales, original Crown grants usually reserved rights to minerals. These reservations continue to operate today, even in respect of Torrens title land, as restrictions noted on the registered title.35 According to Bradbrook,36 a more comprehensive policy of reserving minerals to the Crown was introduced by the Crown Lands Act 1884 (NSW) and continued in later legislation. Special legislation has since been passed conferring rights over specific resources such as coal, petroleum and atomic substances.37

Natural rights 2.11 Ownership of land brings with it a number of ‘natural’ rights, such as the right to support from adjacent landowners, and certain rights to water. As these rights are similar in some respects to particular types of easements, they will be dealt with in Chapter 12.38

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Boundaries of Land 2.12 Land may have either artificial or natural boundaries. Artificial boundaries are fixed until such time as the adjacent owners agree to shift them, and remain unaffected by movements in the land itself. Natural boundaries may shift from time to time by the operation of natural forces, especially where the boundary is water. Different rules apply depending on whether the water is tidal or non-tidal.

Land bounded by tidal waters 2.13 If land is bounded by tidal waters, either because it is situated by the sea, or by a tidal river or lake, the owner owns the land up to the mean highwater mark. The mean high-water mark is the mean, assessed on an annual basis, of the highest and lowest high tides of each lunar month of the year.39 The rule applies to land held under the Torrens system.40 Land below the mean high-water mark belongs to the Crown in right of the state.41

Land bounded by non-tidal waters 2.14 At common law, if land contains non-tidal waters (whether in the form of a river or lake) the owner retains exclusive rights to the bed, the alveus.42 But if land is bounded by non-tidal waters, ownership of the land confers rights up to the ‘middle line’ (in Latin, the medium filum) of the water.43 The rule has been held to apply to Torrens title land.44 The common law rule is effectively obsolete in regard to both non-tidal lakes and rivers by virtue of s 172 of the Crown Lands Act 1989 (NSW), so that the owner’s rights end where land and water meet.45

Accretion and erosion 2.15 Though the natural processes of accretion and erosion have the effect of modifying the physical boundaries of land, the legal boundaries will only change if the following requirements are met. The erosion or accretion must

be so gradual as to be imperceptible to the naked eye.46 Rapid transformations of boundaries — for instance, by avulsion, earthquake or flood — will not affect legal boundaries. In the case of land bounded by the sea, where accretion occurs, title to the increase in land will be in the landowner.47 [page 49] The principle of erosion works in a parallel way, so that any decrease in land will accrue to the Crown.48 The principles of accretion and erosion apply equally to tidal and non-tidal land, so that the rights of private, adjacent landowners will be modified in the same way. These principles have been modified by s 172(4) of the Crown Lands Act 1989 (NSW): they no longer apply to non-tidal lakes. In Southern Centre of Theosophy Inc v South Australia,49 the Privy Council held that the doctrine applies to both old system and Torrens title land, but may be excluded by agreement. In that case, the Privy Council upheld a finding that an accretion of 20 acres of land accrued to the owner of land adjacent to water. It was held that the accretion was caused by the gradual and imperceptible deposit of sand by wind and water over a period of some 70 years, notwithstanding some sudden movements of dunes at one point in the boundary. The limitations on the doctrine of accretion can be varied in the conveyance so as to include any changes in the boundaries by the operation of natural forces.50 Such a grant is known as a ‘movable freehold’.51

Fixtures Introduction 2.16 Land includes fixtures. Fixtures are chattels that have become part of the realty by virtue of having been attached to it in a particular way, or annexed to it. Where the owner of the chattel and the owner of the land are one and the same, it is ‘a matter of perfect indifference whether you call the things chattels or whether you call them parts of the house’.52 However,

annexation becomes very important in the following circumstances, for example: There is a sale of land. A contract of sale will only confer rights to the land — rights over any chattels on the land will remain with the vendor, unless the contract provides otherwise. A life tenancy comes to an end and the tenant leaves chattels by will — the remainder person will be entitled to fixtures. The owner of land gives a mortgage over the land, and later annexes chattels to the land. Who has rights over the chattels? After a mortgage is granted, the owner annexes chattels belonging to another person — for instance, pursuant to a bailment. If the mortgagee enforces the security, does the bailor retain rights over the chattels? Fixtures are annexed by a tenant. Do they become part of the landlord’s property, or do they remain the tenant’s? [page 50]

General principles 2.17 It is unsurprising that many of the leading authorities on the contemporary law of fixtures appear in the middle of the 19th century. Historically, this is the very time of the eclipse of agricultural production by industrial production. The emergence of the factory and its need for machinery with an often comparatively short useful working life gave rise to a requirement that these chattels be readily removable. Unlike agricultural fixtures such as fences, gables and barns, which were annexed in ways that paralleled the ways that buildings were constructed, and were therefore easily seen as part of the land itself, industrial machinery tended to be bolted into place. The purpose of the nut and bolt is nothing more than to annex a chattel in a way that also allows it to be easily detached. The facility of removal, however, is not necessarily conclusive as to the key question with which the law of fixtures is concerned: is the chattel to be considered part of the land, or does it retain its status as a chattel? To answer this question, more recent

authorities have come to place a greater measure of reliance on parties’ intentions, objectively construed, than was the case under the old law.53 2.18 The general principle governing fixtures is quicquid plantatur solo, solo cedit (whatever is attached to the soil becomes part of the soil).54 So, building materials delivered to a site remain chattels until they form part of a building on the land, at which time they will be part of the land. When they are severed from the land, they return to their former state as chattels. In the leading case Holland v Hodgson,55 two tests were held to be necessary to determine whether a chattel had been annexed to the land. The court will look, first, to the degree of annexation of the chattel; and second, to the object, or purpose, of annexation. The degree of annexation is a purely physical matter. Some doubt exists as to the true nature of the test for the object of annexation. There is authority that suggests that it is purely subjective.56 However, from Holland v Hodgson the court found that the circumstances surrounding the annexation will indicate the object of annexation. That formulation indicates an objective test, rather than actual intention.57 In National Australia Bank Ltd v Blacker,58 Conti J set out a number of considerations, later described as ‘useful guides’, to determine the object of annexation. These include: whether the attachment is for the better enjoyment of the item or for the land itself; the nature of the item; the purpose of the annexation; and whether the item was to be in position temporarily or permanently. [page 51] 2.19 In Agripower Barraba Pty Ltd v Blomfield,59 Sackville AJA (with whom Bathurst CJ and Beazley P agreed) noted that greater emphasis has been placed on the ‘more amorphous concept of the purpose or object of annexation’ over the degree of annexation. However, the degree of annexation remains central to determining the onus of proof. If the chattel is attached in any way, however slight, there is a presumption that it is a fixture. The question is then: Is the intention clear enough to rebut the presumption? The presumption in favour of an object being a fixture will increase in proportion to the degree of attachment.60 A corresponding presumption operates if the chattel is

unattached: in that case, it is presumed to remain a chattel. As Blackburn J’s oft-quoted dictum in Holland v Hodgson states: Perhaps the true rule is, that articles not otherwise attached to the land than by their own weight are not to be considered part of the land, unless the circumstances are such as to show that they were intended to be part of the land, the onus of showing that they were so intended lying on those who assert that they have ceased to be chattels, and that, on the contrary, an article which is affixed to the land even slightly is to be considered as part of the land, unless the circumstances are such as to show that it was intended all along to continue as a chattel, the onus lying on those who contend it is a chattel.61

In Holland v Hodgson, the owner of land installed looms in a mill by means of nails hammered into wooden beams. It was held that the circumstances indicated that they were to be part of the land. Tapestries were the subject of a number of cases, their differing outcomes illustrating the importance of the facts and surrounding circumstances of a case in applying the Holland test. In Leigh v Taylor,62 a life tenant had attached valuable tapestries to the walls by means of mounting them on wooden frames that were nailed onto the walls. The life tenant died before removing the tapestries and the question arose as to whether they passed as part of the deceased’s personal estate, or whether they formed part of the realty, and so passed to the remainderperson. The House of Lords held that the object of annexation was to enjoy the tapestries as chattels, not to annex them to the realty. Further factors indicating that they were to remain as chattels were that they could be removed without causing damage to the walls, and that a life tenant would not be expected to make such an improvement to the land. Leigh v Taylor was distinguished in Re Whaley,63 where tapestries affixed by the owner were held to be fixtures on the basis that because they were affixed by an owner, it would be reasonable to assume that an owner would want the land to be improved by their presence; and the tapestries were designed to enhance the Elizabethan character of the room in which they were displayed. Also, in Norton v Dashwood,64 tapestries were held to be fixtures because they could not be removed without damaging the brickwork, tearing the fabric and leaving the room ‘maimed and disfigured’. [page 52]

2.20 In Hobson v Gorringe,65 a contest arose between a mortgagee and the owner of a gas engine that had been hired to the landowner as part of a hire– purchase agreement. Clearly, as the engine was bolted and cemented into place, there was a strong presumption that it was a fixture. As for the object of annexation, the complicating factor was the agreement between the owner of the engine and the owner of the land, which expressly declared that the chattel would not become the property of the landowner until all instalments were paid and the option to purchase had been exercised. The land was mortgaged and, on default, the mortgagee, Gorringe, claimed ownership of the chattel. The court held that the engine was a fixture because the object of attaching the engine, evident from the circumstances which were ‘patent for all to see’, was to annex it to the land. The ‘chance agreement’ between the parties was not relevant to determining the purpose of annexation. The case is further authority of the objective nature of the ‘object of annexation’ test. Likewise, a belief on the part of a purchaser that he was buying a chattel, rather than a fixture, will not change the fixture’s status.66 2.21 Standard social or architectural practices in relation to the use of certain chattels may form part of the circumstances that indicate whether the object of annexation is to enhance the realty, or to enjoy the chattels as chattels. In Belgrave Nominees Pty Ltd v Barlin-Scott Air-conditioning (Australia) Pty Ltd,67 for example, the disputed chattel was an air-conditioning system. The court held that such systems are common features of modern high-rise office buildings and, therefore, on being attached to the realty, become fixtures. Other relevant circumstances in Belgrave were the relationship of the party making the annexation vis à vis the owner or possessor of the land, the mode of annexation, and the purpose for which the chattel was fixed.68 Similarly, the House of Lords in Elitestone Ltd v Morris69 emphasised the significance of the physical bonding between chattel and land; the practicability of removal of the fixture and its later reconstitution; and the generic character of the building. Likewise, in Reid v Smith70 a house built on brick piers, though not attached to the realty, was found to be a fixture. This was because the intention to affix was found, recognising that buildings were not generally physically annexed to the land in the area (North Queensland) because of white ant infestations. In contrast, in Attorney-General (Cth) v R T Co Pty Ltd (No 2),71 it was held

that printing presses bolted onto the floor of a basement were chattels because the intention of annexation was to steady them, not make them part of the building. In Agripower Barraba Pty Ltd v Blomfield,72 the New South Wales Court of Appeal distinguished between items stored inside and out of a shed in a processing facility. The items outside the shed were fixtures, as they were bolted to the metal bases and frames as part of an integrated [page 53] processing facility. The items inside the shed were connected to the plant and equipment but generally could be easily disconnected. These items were held to be chattels. In National Australia Bank Ltd v Blacker,73 items of irrigation equipment were held not to be fixtures, since the electric pumps and sprinkler heads rested on their own weight for operational purposes, and special valves connected to hosing could be easily removed. They were not ‘integers of the irrigation system’ because the intention was that they could be moved around the property when the need arose. Likewise, in Chelsea Yacht & Boat Co Ltd v Pope74 a houseboat moored next to, and connected to, an electrical circuit board that could be readily disconnected was held not to be a fixture. 2.22 In Palumberi v Palumberi,75 a stove and carpets were held to be fixtures on the sale of land, whereas a television antenna was held to be a chattel. All objects were attached to a small degree, but the purpose of annexation differed from chattel to chattel. So, the stove and carpet were intended to form part of the land, whereas the antenna was intended to enhance enjoyment of the television (another chattel) and, therefore, was not intended to be a fixture. The question of dishwashers arose in the cases of Hawkins v Farley76 and Segal v Obsborne.77 In Hawkins, kitchen cabinets had been constructed to incorporate the dishwasher, and tiling fitted with the dishwasher, in situ. The court found in that case that although the degree of annexation was slight, the gap left by its removal would be ‘unsightly’, and the custom design of the kitchen, to accommodate the dishwasher, meant that the dishwasher was a fixture. In Segal, Darke J distinguished Hawkins to find that the dishwasher was not a fixture. His Honour noted that although dishwashers may be intended to

remain in position for some years, in contemporary Australia they were considered replaceable, portable items; and that it was ‘not uncommon nowadays’ for dishwashers to be removed and reinstalled in another property.78 The dishwasher was located in a space designed to accommodate dishwashers generally, rather than in a custom-design, and there was no suggestion that its removal had damaged the property or the dishwasher. In Australian Provincial Co Ltd v Coroneo,79 a theatre contained rows of seats that were bolted to the floors and fastened together. The Court of Appeal refused to interfere with a finding that the seats remained chattels because they were regularly moved — the best seats went to the back for picture shows and to the front for concerts. By contrast, in [page 54] Vaudeville Electric Cinema Ltd v Muriset,80 where the premises were used exclusively as a cinema, cinema chairs that were bolted in place by the owner were held to be fixtures because the object of annexation was to provide a permanent benefit for the building. Each of these examples indicates how the particular circumstances of each case have a critical effect on whether chattels become fixtures.81 2.23 All chattels annexed to the realty before a contract of sale pass to the purchaser, subject to contrary agreement.82 Where land passes by will or on intestacy, all fixtures are included.83 In the case of mortgages, the mortgagee’s rights extend to fixtures whether they are annexed before or after the execution of the mortgage, unless the agreement provides otherwise.84 2.24 If the fixtures are the property, not of the mortgagor, but of a third party (for instance, where A hires machinery to mortgagor B), A will have a right of entry to remove the fixture, but only if the bailment agreement confers such a right. This right is an equitable interest in the land.85 As noted above,86 a mortgagee will also acquire an interest in the fixture, whether the mortgage was created before the chattel was annexed to the land or after.87 In the case of old system land, the right of the owner of the chattel may take priority over the mortgagee, but only if the mortgagee had notice.88 If the

mortgagee has no notice, he or she will take priority.89 However, if the mortgagee’s interest is equitable, the chattel owner’s right of entry will usually take priority irrespective of notice, in accordance with general equitable principles.90 The position of the equitable interest holder under the Torrens system depends on whether or not the mortgage is registered.91

Tenant’s fixtures 2.25 The law of fixtures poses a particularly acute problem for tenants who annex chattels to the land, for the reason that, once the lease ends, any right to enjoy the fixture, being part of the land, automatically terminates with it. Equally, in the absence of an agreement between the parties, annexing chattels to the land may be a breach of a repairing covenant, as may be the subsequent removal of any fixtures.92 In order to obviate hardship to tenants, the common law developed rules that allowed tenants to remove certain fixtures annexed [page 55] during the tenancy. These fixtures have come to be known as ‘tenant’s fixtures’. In Penton v Robart,93 the court based the rules on the rationale that if the rule were otherwise, the purpose of the letting would often be defeated. During the currency of the lease, the landlord is deemed to be the owner of the fixture (as it is part of the land), but is subject to the tenant’s right to remove it.94

Trade, domestic or ornamental fixtures 2.26 The basic rule is that a tenant may remove fixtures if they are of a trade, domestic or ornamental kind;95 and if the tenant did not intend to make a permanent improvement to the property.96 In determining the tenant’s intention, relevant factors considered are whether removal would cause material injury to the land or would cause destruction of the fixture.97 So, if a tenant puts new doors and windows into the premises, even for trade purposes, they will become part of the land (ie, they will be treated as the

landlord’s, rather than the tenant’s, fixtures) and cannot be removed.98 The rules governing tenant’s fixtures apply equally as between life tenants and remainderpersons, so that trade, domestic and ornamental fixtures may be removed prior to the death of the life tenant.99 Authorities suggest that the rights of the tenant for life to remove are different from those of the leasehold tenant, but how different is unclear. In Norton v Dashwood, Chitty J held that his or her rights were less; whereas in Penton v Robart, Lord Kenyon CJ held that they were greater.100 The category of trade fixtures includes petrol pumps at a garage;101 fittings in a public house;102 shelves and counters;103 and shrubs planted by a market gardener.104 Examples of domestic and ornamental fixtures include stoves and kitchen ranges;105 ornamental chimney-pieces (but not brick pillars resting on a dairy floor to support pans);106 bells, and wires to operate them;107 and wood panelling and period fireplaces.108 2.27 By s 133B(2) of the Conveyancing Act 1919 (NSW), if a right to make improvements, such as annexing fixtures, is granted in the lease, but is expressed to be subject to the [page 56] landlord’s consent, the consent must not be unreasonably withheld. Similarly, a landlord of residential premises must not unreasonably withhold consent to annexing a fixture that is ‘of a minor nature’.109 However, no such restriction applies to landlords to ‘any other’ fixture.110

Time for removal 2.28 Subject to any agreement to the contrary, the tenant may exercise the right to remove the fixtures at any time prior to the termination of the lease.111 If the tenant does not do so, ‘the law presumes that he [sic] voluntarily relinquishes his claim in favour of the landlord’.112 In order to avoid hardship to tenants, there are two exceptions to this rule. First, in tenancies of uncertain duration, such as a tenancy at will or a short-term periodic tenancy, a tenant has a reasonable time after the termination of the

tenancy to remove fixtures.113 Second, if the lease is brought to an end by forfeiture or surrender, the tenant may remove fixtures as long as he or she retains a right to possession, such as by virtue of a new tenancy, a tenancy at sufferance,114 or under a belief that there is a right to remain (eg, where the tenant claims a right under an assignment that is later held to be invalid).115 Once the tenant has quit the premises, he or she loses all rights to remove fixtures.116 The tenant’s right to remove fixtures is subject to a mortgagee’s general rights over the land, whether or not the mortgage was granted before or after the chattels were affixed.117

Exceptions 2.29 The common law rules governing tenant’s fixtures do not apply to certain agricultural tenancies or residential tenancies. The rights of parties under these types of tenancies are governed by statute. In the case of agricultural tenancies, the tenant has a right to remove fixtures.118 However, this right is subject to the landlord’s right to purchase the fixtures at a reasonable price. In the case of agricultural tenancies not covered by the Agricultural Tenancies Act 1990 (NSW) (basically, those where the tenancy is over land less than one hectare in size, or where the land is not used solely or mostly for agricultural purposes), the common law rule in Elwes v Maw119 applies: the tenant has no right to remove fixtures. Residential tenants may remove fixtures from the premises, if the fixtures [page 57] were annexed in accordance with a term of the agreement, or with the landlord’s written consent, before the premises are vacated.120 If the tenant causes damage by the removal of the fixture affixed by the tenant, the tenant must notify the landlord without delay and provide compensation.121

Chattels annexed by mistake or by a person with no title 2.30

What is the position where a chattel is annexed to the land by

mistake? A person may annex a chattel to a parcel of land, erroneously believing that he or she owns it. This happened in Brand v Chris Building Co Pty Ltd,122 where a house was built, by mistake, on a block of land not owned by the plaintiff. The court held that, in the absence of an equity of acquiescence, the plaintiff had no remedy.123 The fact that the chattels in question — building materials — had become attached to the realty ensured that they became the property of the owner of the realty. Developments in the law of unjust enrichment may come to render this decision doubtful, but do not appear to have modified it yet.124 The same principle applies to a chattel that has been innocently misappropriated or stolen, and is later annexed to the land of another innocent person. In this case, the person who affixes the chattel has no title to it; it becomes the property of the landowner.125

Protection of Property Interests in Land Trespass to land — tort 2.31 Trespass to land is established by an intentional unauthorised entry onto land in the actual possession of another person, or remaining on such land after the withdrawal or expiry of permission.126 Land for this purpose includes anything attached to the soil, or a profit à prendre.127 Because of the requirement of possession, a contractual licensee cannot sue in trespass. The intentional propulsion of objects onto another’s land is also trespass.128 But if no volition can be established (eg, if A has a seizure and falls onto another’s land), no liability ensues.129 The interference must also be direct; so, for example, water that ultimately [page 58] reaches a plaintiff’s land after crossing somebody else’s land is not trespass but nuisance.130 There is no defence of necessity to an action for trespass — whether based on homelessness or some other reason131 Nor does a defence of honest and reasonable mistake apply.132

2.32 Where the trespass to land is so extensive that it amounts to possession, the trespasser has a title — in the form of a possessory title — to the land.133 Possession will be established by physical control over the land to the extent that others are excluded, coupled with an intention to possess it (animus possidendi). Trivial acts of trespass, such as tethering ponies and children playing, will not constitute possession.134 The trespasser–possessor can assert this title against all the world except the true owner.135 As we shall see later, this possessory title, or ‘squatter’s title’, will defeat even the title of the documentary owner after a certain period of time.136

Title to sue General 2.33 The tort of trespass is concerned with protecting actual possession of the land. Accordingly, persons out of possession of the land at the time of the wrongful invasion cannot sue. So, a purchaser under a contract of sale cannot sue for trespass until title (and the right to possession) passes.137 Likewise, a landlord cannot sue in trespass during the currency of the lease, but can sue to protect the reversionary interest (ie, the right to future possession), if he or she can prove permanent injury to the land.138 A licence to occupy land, without a right of exclusive possession, will not give the licensee a right to sue in trespass.139 However, if the licence is coupled with the grant of an interest in land, such as a profit à prendre, the owner of the right can sue in trespass for interference with the interest.140

Dispossessors 2.34 Even a person who has dispossessed another can sue in trespass.141 The defendant cannot set up the dispossessed owner’s title (or previous possessor’s title) as a defence. In other words, the defendant cannot plead the jus tertii (the right of a third person).142 [page 59]

Of course, the dispossessed owner, or prior possessor, can sue the ‘squatter’ in trespass for the act of dispossession and continuing acts of trespass. Further, he or she can sue anyone else who trespassed on the land since the time of the original dispossession, by the fiction of trespass by relation.143 In this case, the title to sue is not possession, but the owner’s or prior possessor’s right to immediate possession. It is an exception to the general rule that trespass exclusively protects possession. The fact that the trespasser has forcibly entered the property and, therefore, may be criminally liable144 has no bearing on whether he or she has possession and, therefore, a possessory title.

Recovery of possession 2.35 By s 20 of the Civil Procedure Act (2005) (NSW), a person who has been dispossessed may make a claim for judgment for possession of land. This remedy replaces the older action of ejectment, which was originally a form of the action of trespass.145 All that is necessary for the plaintiff to bring an action under s 20 is that he or she has a better right to possession of the land than the defendant.146 Of course, the best way to prove a better right to possession is by establishing absolute ownership; that is, by: being the registered proprietor of Torrens title land;147 establishing an unbroken chain of documentary old system title back to the original Crown grant;148 or having been in adverse possession for the statutory period (normally 12 years).149 However, any lesser period of possession will do.150 In addition to recovering possession, the plaintiff may seek mesne profits from the trespasser for the loss of the land.151 Mesne profits include the rental value of the property for the period of dispossession, and may even include lost interest on a premium offered by a prospective tenant.152 2.36 The courts have discretion to order a stay of execution of the writ for possession. By rr 1.12 and 36.5 of the Uniform Civil Procedure Rules 2005 (NSW), a judgment for possession may specify the time for compliance. In Sydney City Council v Parker,153 the court, interpreting a similarly worded provision,154 balanced the hardship to the trespassers in possession of the plaintiff’s land, who were in receipt of pensions and were homeless,

[page 60] against the council’s need for immediate possession of the premises. The court suspended the time for compliance with the judgment for two months to allow the squatters time to find alternative accommodation.

Self-help 2.37 In addition to the right to sue for trespass and recovery of possession, an owner or possessor of land may exercise the right of self-help to remove a trespasser from the land. In Hemmings v Stoke Poges Golf Club,155 where an overholding tenant was physically evicted, it was held that the owner would not incur liability if he or she used only so much force as was reasonably necessary to remove the trespasser. The right has been affirmed by the New South Wales Court of Appeal in MacIntosh v Lobel.156 It may be exercised before the institution of court proceedings, or afterwards (as it was in that case), if the court determines that the occupant is a trespasser and has no right to remain. Alternatively, the plaintiff may obtain a writ of possession and have it executed by the sheriff. There is no such right of physically recovering possession from an overholding tenant of residential premises after the termination of a residential tenancy agreement, in the absence of a judgment, warrant or order of a court, or an order of the NSW Civil and Administrative Tribunal (Consumer and Commercial Division). Section 120 of the Residential Tenancies Act 2010 (NSW) makes it an offence to enter premises without such authorisation.

Trespass to land — statutory penalties Forcible entry 2.38 Although a trespasser who has taken possession of land has a title to the land, the act of trespass may give rise to criminal penalties in addition to liability in tort. Interference with land has had a long history of protection by means of the Statutes of Forcible Entry (UK), which date from the 14th century. The relevant provisions have been re-enacted in New South

Wales.157 Section 18 of the Imperial Acts Application Act 1969 (NSW) provides: No person shall make any entry into any land except where such entry is given by law and, in such case, with no more force than is reasonably necessary.

The prohibition contained in s 18 does not restrict the owner’s, or prior possessor’s, right to exercise self-help.158

Inclosed lands 2.39

By s 4(1) of the Inclosed Lands Protection Act 1901 (NSW):

Any person who, without lawful excuse … enters into inclosed lands without the consent of the owner, occupier or person apparently in charge of those lands, or who remains on those lands after being requested by the owner, occupier or person apparently in charge of those lands to leave those lands, is liable to a penalty …

[page 61] ‘Inclosed lands’ means any lands, either public or private, inclosed or surrounded by a fence, wall or other erection.159 ‘Lawful excuse’ in s 4 is not established merely by a person proving that he or she had a mistaken belief, whether the belief is reasonable or not. Rather, a mistaken belief will be a defence only if the circumstances that the trespasser believes to be true would, if in fact true, give that person a lawful right to enter the premises.160 Accordingly, a person who entered a clinic with a view to gathering information in relation to activity suspected of being illegal, but not actually so, does not enter with lawful excuse because no one has a right to enter premises under such suspicion. A claim of a right to possession of the land is a lawful excuse, but only if it is made bona fide, and with a reasonable foundation on substantial grounds. The claim must be known to, and not impossible in, the law.161 In McDermott v Boggs,162 ‘occupier’ for the purposes of s 4(1) was held to include a tenant who occupies a part of premises. It followed that the landlord committed an offence by being on that part of the premises without the tenant’s consent.

Chattels Introduction 2.40 As in the case of land, there are a number of different possible proprietary interests in chattels.163 These particular interests are protected by a variety of tort remedies that are specific to the property interest in question. Equally, there are different types of unauthorised acts that may be committed in relation to a chattel, from the most trivial interference to outright destruction. These various infringements also give rise to different actions. The first question to be addressed in determining what remedy the holder of a proprietary interest has in relation to a particular unauthorised act is: What is the precise property interest that has been infringed? These interests are analogous to the different property interests over land. The chattel interests will be examined separately, and the torts devised to protect them will follow.164

Property interests in chattels Actual possession 2.41 Actual possession, in law, is established when two conditions are met. First, there must be de facto control over the chattel. Second, the possessor must show an intention to possess it, or animus possidendi. These elements, which parallel those necessary to establish a possessory title to land,165 can be seen in the following cases. [page 62] In Young v Hichens,166 two competing fishing vessels were attempting to catch a shoal of fish. The plaintiff sued the defendant in trespass, alleging that the defendants had interfered with their possession of the fish. It was held that the plaintiffs, who had partially enclosed their net around the fish, did not have possession because they did not have custody or control of them. By contrast, in The Tubantia,167 a salvage company was held to have possession of a sunken ship and its contents where it had laid buoys and lights around the

site where the ship was located, and had cut access holes in the ship’s hull. The type of control necessary will vary with the nature of the chattel. 2.42 Possession, rather than full ownership, can arise in many different situations. Some of the more common examples are: bailment, where the owner grants a temporary right of possession to another;168 hire–purchase agreements; contracts for the sale of a chattel where the seller retains custody of the chattel; and cases where a stranger finds a lost or mislaid chattel. In The Tubantia, discussed at 2.41, the possession acquired by the plaintiffs for practical purposes amounted to ownership, since there was no better title to the chattels in anyone else; it was an example of original possession, or discovery. The law gives protection to the possessor, however limited his or her rights are, for a good reason. If only the true owner could sue in cases of wrongful interference, there would be a free-for-all — no possessory title could be safe. As Lord Campbell CJ put it in Jeffries v Great Western Railway Co,169 ‘I think it most reasonable law, and essential to the interests of society, that peaceable possession should not be disturbed by wrongdoers’. An employee who has custody of goods on behalf of an employer is not treated in law as a possessor. In this situation, the employer has ‘constructive possession’ of the chattel, and has title to sue if the chattel is wrongfully dealt or interfered with.

Right to immediate possession 2.43 A person will have a right to immediate possession where he or she is presently out of possession, and has a right to take possession of the chattel immediately.170 So, if A hires her car to B for a week, B has actual possession during the week. A has a right to immediate possession only at the end of the period. However, even though B will have no superior right to possession against A at this time, B will still have actual possession. As we have seen above, actual possession is a proprietary interest that will form the basis

[page 63] for an action in tort against persons, other than A, who wrongfully interfere with the chattel.

Right to future possession, or reversionary interest 2.44 A mere right to future possession, as distinct from actual possession or a right to immediate possession, refers to the right that a person has to possess the chattel at the conclusion of the rights of someone who is presently entitled to possession. By analogy with the landlord’s interest in the law of leases, this right is sometimes referred to as a ‘reversionary’ interest: the right to immediate possession of the chattel reverts to the owner or a person with superior rights to the present possessor at some designated time in the future. As we shall see below, the holder of a reversionary interest in chattels has limited rights to sue.

Ownership 2.45 At common law, the complicated question about ownership arising from the doctrine of tenure — that is, whether a person other than the Crown could ‘own’ land — was not relevant to chattels. Accordingly, it has always been possible to own a chattel absolutely. In the most common situation, the owner will be in possession, and so will have all the rights outlined above subsumed within his or her ownership. Only where ownership rights are fragmented will the question of the precise lesser proprietary interest of the party alleging the wrongful act be of importance. It follows that ownership is not technically relevant to whether it is possible to bring a particular action to protect one’s rights to the chattel (in trespass, detinue, conversion or negligence).171 Rather, the key question is whether the owner, or any other person who was in possession at the time of the wrongful act, had an immediate right to possession, or had merely a reversionary interest in the chattel. There is one situation where ownership of the chattel may be important: where the defendant defends the action on the basis that the plaintiff’s title is in some way inferior to that of a third person who is not a party to the action.

This defence is known as the jus tertii. It will be discussed below.172 First, it may be useful to look at one typical way in which property rights over chattels are fragmented.

Fragmented property interests — bailment Types of bailment 2.46 Bailment173 is one of the most common ways in which property interests in chattels are fragmented. A bailment arises where there is a delivery of chattels by the owner, or a person with a right to possession, into the possession of another person on an express or implied promise that the chattels will be redelivered to the bailor or dealt with in a [page 64] stipulated way.174 So, where A hires a car for a month from B, the contract of hire will detail the terms of the bailment. Bailments may be for a fixed term or may be at will. A fixed-term bailment confers possession on the bailee and a right to future possession on the bailor. At the end of the term, the bailor has an immediate right to possession, which matures into possession on redelivery of the chattel. By contrast, in the case of a bailment at will, the bailor may demand the return of the chattel at any time. It follows that throughout the currency of the bailment, the bailor has an immediate right to possession. Bailments can be created by contract, and the terms of the contract will usually specify certain events that will bring the bailment to an end (eg, using the chattel in an unauthorised way). When such an event occurs, the bailor will get an immediate right to possession. In Penfolds Wines v Elliott,175 allowing bottles to be filled by another wine producer was expressed in the contract of bailment as a factor bringing the bailment to an end.

Bailments at will and gratuitous bailments 2.47

A gratuitous bailment is one that is not for reward or consideration.

Only one party (bailor or bailee) benefits: the other party receives nothing in return for the bailment. A gratuitous bailment may be for a specified term or it may be at will (in which case, the chattel must be returned immediately on the owner’s request). By contrast, the defining feature of a bailment at will is that it is never for a specified term. The basis of the bailment is that the bailee may retain the goods only until the bailor demands their return. A bailment at will may be gratuitous or it may be for reward, as shown in Figure 2.2 below. Figure 2.2:

Bailments at will and gratuitous bailments

Whether the bailment is gratuitous or for reward does not affect the bailor’s standing to sue.176 The determining factor in relation to the remedies available to a bailor is the bailor’s right to possession. In a bailment at will, the bailor always has a right of immediate possession and has a sufficient title to sue in conversion and detinue, irrespective of whether the bailment was one for reward or not.177 [page 65] We now turn to the different actions available to a person with an interest in chattels in the event of wrongful interference.

Actions in tort to protect proprietary interests in chattels Trespass

2.48 The gist of the tort of trespass is wrongful intentional direct interference with a chattel in the possession of another.178 Thus, as Dixon J noted in Penfolds Wines Pty Ltd v Elliott 179 ‘trespass is a wrong to possession’. Persons with merely a deferred, or reversionary, right to possession (such as a bailor during the currency of the bailment), or persons with a right to immediate possession (eg, where the bailment has come to an end but the bailor has not physically recovered the chattel), cannot sue in trespass. In so far as this tort is directed at protecting possession, only a plaintiff who has possession at the time of the interference may sue. There is one exception to this general rule. If the bailment is at will (ie, if it can be revoked at any time), the bailor has a right to immediate possession (rather than actual possession), and this is sufficient to ground an action in trespass where the defendant has committed an act of trespass against the bailee in possession of the chattel.180 In Wilson v Lombank181 it was held that, where a bailor had a standing credit arrangement with a bailee (car repairer) and could repossess a car at any time, he had sufficient title to maintain an action in trespass against a third party who took the car from the bailee. There was no obvious bailment at will here, so the case is at odds with earlier authorities and, therefore, doubtful. Interference is established when physical contact, however slight, is made with a chattel in the possession of another. There is some doubt as to whether trespass to chattels is actionable without proof of actual damage.182

Conversion 2.49 The tort of conversion ‘consists in an act intentionally done inconsistent with the owner’s right, though the doer may not know of, or intend to challenge, the property or possession of the true owner’.183 As the requisite intent relates to intentional wrongful interference with goods, not with the rights of another person, the tort is a ‘tort of strict [page 66] liability’. That is, the defendant may commit conversion ‘without any fault on

their part’.184 Innocence and ignorance of the plaintiff’s rights is therefore no defence. Thus, a person who in good faith buys and sells goods not known to be stolen is nevertheless liable in conversion.185 However, not all wrongful intentional acts will amount to conversion. There must be some dealing with the plaintiff’s goods, or an act of dominion (such as taking them for one’s own use), which is adverse to the plaintiff’s title or right to use or possess. So, mere removal of the goods is not enough to constitute conversion. This principle was established in the leading case, Fouldes v Willoughby.186 The defendant was the master of a ferry boat. After a dispute with the plaintiff, he turned the plaintiff’s horses off the ferry. The plaintiff claimed that this unauthorised act amounted to conversion. The court held that, while the defendant might have been liable in trespass, there was no conversion. A simple removal of the goods, without an intention to make further use of the chattel, did not challenge the property or dominion of the true owner. Conversion is also known by the older name of ‘trover’. Acts which have been held to amount to acts of dominion inconsistent with the plaintiff’s title include mutilation of the chattel;187 unauthorised sale;188 and pawning the chattel.189 If the act is not intentional, as where a person negligently destroys hired furniture, there is no conversion. 2.50 In order to be successful, the plaintiff must have been in possession at the time of the original unauthorised act, or have had a right to immediate possession.190 The facts of Penfolds Wines v Elliott 191 demonstrate some of the key distinctions between this tort and trespass. The appellants were wine producers and sold their wines in bottles that were supplied on condition that they were returned as soon as the contents had been consumed. The effect of this contractual condition was to bring to an end the purchaser’s, or bailee’s, right to possession from the time the wine was drunk. From that moment, therefore, the owner, or bailor, acquired a right to immediate possession. The respondent was the owner of a hotel that sold bulk wine to purchasers who supplied their own bottles. Many of these bottles belonged to the plaintiffs. Was filling the wine bottles trespass, conversion, or both? By majority, the High Court held that the appellants could not sue in trespass because they did not have actual possession of the bottles at the time of the

allegedly tortious act. While there was clearly interference with the chattels, the possession that was interfered with at that time was the possession of the [page 67] bailee, not that of themselves, as bailors. Furthermore, the bailee would not be able to bring an action in trespass because the interference was authorised. As for conversion, the court, again by majority, held that the acts of the respondent amounted to conversion because they constituted an assertion of dominion over the chattels. The filling of bottles provided by the appellant’s bailees was for the purposes of the respondent’s trade, which, far from being a casual interference with proprietary rights, was quite inconsistent with recognition of the appellant’s title.192

Detinue 2.51 Detinue is the tortious or wrongful detention of goods and refusal to hand them over to a person with a right to immediate possession who has formally demanded their return.193 The right exists irrespective of whether the manner of the original acquisition was wrongful or not. The right of action accrues at the time of the refusal to hand over, not at the time of the original acquisition, even if that acquisition is wrongful.194 As in the case of conversion, a person with only contractual rights to possession, without a right to immediate possession, has no right to sue in detinue. Furthermore, a plaintiff without a right to immediate possession, as in the case of a bailor during the term of the bailment, cannot sue in detinue.195

Negligence 2.52 Unlike the torts of trespass, conversion and detinue, negligence is not an intentional tort. Negligence is established if the defendant has breached a duty of care owed to the plaintiff and this breach has caused reasonably foreseeable damage to the chattel. In order to be able to sue in negligence, the plaintiff can be in possession of the chattel, so that a bailee, for example, can

sue in negligence.196 It is also possible to sue if the plaintiff has an immediate right to possession of the chattel, or has a reversionary interest.197

Overlapping of remedies 2.53 One act of a wrongdoer may amount to two different intentional torts. Thus, if a thief takes a bicycle that is in my possession, I will be able to sue him or her in either trespass or conversion. The act would amount to an intentional interference with my possession of the chattel, as well as an act of dominion inconsistent with my title. Equally, it is possible for the torts of conversion and detinue to overlap, as where a bailee, at the end of a bailment, uses a chattel as his or her own instead of returning it. In this case, if [page 68] the bailee makes a demand for return of the chattel, he or she can sue in either detinue or conversion. But for obvious reasons, it is never possible to sue both in trespass or detinue in relation to the same facts; for detinue to arise, the chattel must be in the possession of the wrongdoer. And, because that means that the plaintiff is out of possession (since one or other of the plaintiff and defendant must be in possession at the time of the wrongful act), no action in trespass could arise. This interlinking of torts is illustrated in Figure 2.3.198

Figure 2.3:

Interlinking of torts

Jus tertii defence 2.54 The jus tertii defence has already been examined in the context of title to land. It is a defence whereby a defendant claims that the plaintiff has no cause of action because a third party (the tertius in Latin) has a better title than the plaintiff has. The way the defence works is best illustrated by an example. Suppose A is the owner of a chattel. B becomes his or her bailee for a term. The term has expired. Before A takes action to recover the chattel, C takes it without A’s consent. B sues C in conversion. The jus tertii defence would allow the defect in B’s title — the superior right in A — to be pleaded as a defence to the action. 2.55 The availability of the jus tertii defence arose in Jeffries v Great Western Railway Co.199 The defendants seized trucks in the plaintiff’s possession. In fact, the title of the plaintiff was possibly defective because the person who sold him the trucks had been declared bankrupt. The defendant attempted to assert the superior title of those who took under the order of the Court of Bankruptcy as a defence to an action in conversion. The court held that such evidence was inadmissible, on the ground that possession is title in an action against a wrongdoer. The case is, therefore, authority for the proposition that the jus tertii defence is not available in such actions. However, as Wightman J noted, ‘[i]n some cases the plaintiff was not in actual possession; and, when that is the case, it may well be that the defendant

may shew the jus tertii’.200 The cases are reducible to three distinct situations where the rights of a third party will be [page 69] of direct assistance to an otherwise ‘wrongful’ defendant. A superior right of possession arises when: 1.

the wrongdoer defends the action on behalf of, or with the authority of, the true owner; or

2.

the conduct causing the injury to the chattel was authorised by the true owner; or

3.

the wrongdoer has, since the injury to the chattel occurred, become the true owner.201

2.56 In each of these instances, the rights of the third party are relevant to the defence to this extent: the defendant is able to justify his or her actions on the basis that they were directly traceable to the superior right to immediate possession of the third party. But, defined in this way, this defence is much more restricted than the traditional understanding of the jus tertii defence. It follows that the phrase is unfortunate and only serves to mislead. A better way of describing the defence available to a wrongdoer in these circumstances is to say: if the alleged wrongdoer is, in fact, shielded by the rights of a person who has a better right to possession than the plaintiff, he or she would not be liable in either trespass, conversion, detinue or negligence. To use the facts of Jeffries v Great Western Railway Co to illustrate: if the persons who took under the bankruptcy order in Jeffries case had engaged Jeffries to take possession of the trucks, the act of taking possession is performed under a better right to possess than the present possessor. Wightman J’s point in Jeffries, that the plaintiff out of possession must overcome the jus tertii, is therefore a specific example of the relevance of third party rights; the plaintiff out of possession must show a right to immediate possession, which is better than the right to possess of the alleged tortfeasor. In such a contest, the existence of better rights in a third party, behind whom the defendant can shield, will be decisive to the defence.

2.57 As noted at 1.56, there is a fundamental conceptual distinction between contractual and proprietary rights. This has clear consequences for the right to bring actions in either trespass or conversion. Thus, where A contracts to purchase a car from B, but the car is taken from B’s possession by C prior to formal transfer of ownership or delivery, A has only contractual remedies against B. A cannot sue C in trespass because, at the time of the wrongful act, the car was in the possession of B. Also, though A had a contractual right to compel B to deliver the car, he had no immediate right to possession of it, since at that time he had not been given any proprietary rights under the terms of the contract.202 Of course, the terms of the contract may provide otherwise.

An exception — permanent loss or damage to a reversionary interest General rule 2.58 As we have seen above, the basic rule is that a person with a right to future possession, as opposed to immediate possession, such as a bailor during the currency of the bailment, cannot sue a third party in trespass, conversion, detinue or negligence [page 70] while the bailment is subsisting. Because this person, the reversionary interest holder, has neither actual possession nor a right to immediate possession, he or she has no sufficient proprietary interest capable of protection. Thus, if A lends her car to B for three months, A has no legal possession or right to possession during the term of the bailment. Accordingly, if B immediately lends the car to C for a week, and C causes damage to it, A cannot sue B or C in trespass, conversion, detinue or negligence during the three-month period of the bailment. So, in Donald v Suckling,203 A deposited debentures with B as security for money owed to B. Before the money was tendered to B, B pledged them with C. The court held that A could not maintain detinue against C for recovery of the debentures without having paid or tendered the

amounts owing to B. The bailment between A and B was still subsisting and was not affected by the pledge by B to C. It was held in Lord v Price204 that where goods remain in the possession of the vendor after purchase, subject to the vendor’s lien for unpaid purchase money, the purchaser cannot maintain an action of conversion against a wrongdoer. In the above example of the loan of the car, the result would be otherwise if a term of the contract of bailment both prohibited sub-bailments and declared the bailment at an end if the bailee acted in breach of any of its terms. On the loan (sub-bailment) to C, the bailor A would have a right to immediate possession. Also, the act of sub-bailment would be an act of dominion inconsistent with the rights of the bailor and would give the bailor a right to sue the bailee in conversion. Note that there would be no right to sue in trespass in this case, as the bailor was not in possession at the time of the wrongful act. 2.59 Regardless of whether there had been a prohibition on sub-bailments, B as bailee would be able to sue C in conversion or detinue if, for example, she sold the car to D.205 D would also be liable in conversion and detinue as a result of his purchase, even without notice of C’s defective title.206 Thus, the bailor has three options if he or she wishes to pursue one of the above actions to compensate for the loss or damage to a chattel: 1.

wait until the term of the bailment expires and the right to immediate possession arises;

2.

pursue an action on the basis that the actions of the bailee (in causing the loss or damage to the chattel) are repugnant to, and have therefore determined, the bailment, and hence the bailor’s right to immediate possession arises; or

3.

if the damage or loss to his or her chattel is permanent, pursue an action on the case for the damage to his or her reversionary interest. It is to the last of these remedies that we now turn. [page 71]

Nature of the exception 2.60 In special circumstances, the holder of a reversionary interest may have what many authors describe as an action on the case.207 In Penfolds Wines v Elliott, Dixon J remarked that it is: … a special action on the case and does not depend on the plaintiff’s having immediate right to possession … the foundation of the action is the damage and “permanent” damage to the chattel must have occurred, that is damage which would enure to the reversioner.208

The leading case is Mears v London and South Western Railway Co.209 Mears owned a barge and hired it to Russell. During the term of the hire, Russell employed the defendants to unload a boiler from the barge and their negligence in carrying out this operation caused the boiler to drop through the bottom of the barge. As a result, the barge was out of commission for some considerable time. In answer to the defendants’ argument that there was no precedent for an action by a reversioner for any damage to a chattel, Williams J said that, unlike the case of a temporary injury, ‘where there is a permanent injury, the owner may maintain an action against the person whose wrongful act has caused that injury’.210 Trindade and Cane conclude that, although the damage in Mears was caused by negligence, the principle of the case also extends to intentional damage, and that even where the injury to the chattel is caused by negligence, the action still appears to be framed as an action on the case.211 The decision in Mears was applied by the Supreme Court of Victoria in Dee Trading Co Pty Ltd v Baldwin.212 In that case, the owner of a motor vehicle was able to sue a third party for damage caused to the vehicle, despite the fact that the car was actually in the possession of a bailee under a hire–purchase agreement. The court found that the fact that the owner also had a right to recover the damages from the bailee did not preclude him from pursuing an action on the case for the damage caused to his reversionary interest in the vehicle. But the nature of such an injury must be clearly demonstrated.213 A ‘mere wrongful taking’ may not be sufficient to ground such an action because the loss (and thus the damage to the reversionary interest) must be permanent.214

Rights of a bailee

2.61 The fragmentation of interests and the types of remedy available for wrongful interference with chattels intersect in the context of bailment. The issue is particularly acute in an action for damages for conversion. The measure of damages for conversion is the full value of the chattel. There is a special rule in the case of documents that provide [page 72] evidence of title to a debt: the converter is liable for the face value of the document rather than the piece of paper.215 Thus, each person who interferes with the chattel to the extent that he or she would be treated in law as claiming ownership is, in effect, compelled to pay the full purchase price. A consequence of this principle is that a number of different tortfeasors may each be liable to the owner, so that the owner might acquire the value of the chattel many times over if it passes through a number of hands. The leading case establishing the bailee’s right of action based on his or her possessory interest is The Winkfield.216 A steamship, the Winkfield, collided with a mail steamship, the Mexican, which sank; most of the Mexican’s cargo of mail and parcels was lost. The Postmaster-General (the bailee) sued the owners of the Winkfield for the total value of the mail lost.217 The court found that: … the law is that in an action against a stranger for loss of goods caused by his negligence, the bailee in possession can recover the value of the goods. This is the case even though the bailee would have had a good answer to an action by the bailor for damages for loss of the thing bailed.218

Where the defendant has paid full damages to the bailee, he or she has a complete defence against a further claim by the bailor.219 2.62 On the authority of The Winkfield, therefore, not only can a bailee in possession of a chattel sue in trespass, conversion or detinue, but he or she can also sue in negligence.220 In Anderson Group Pty Ltd v Tynan Motors Pty Ltd221 a bailee was able to sue the sub-bailee for the full value of the car when it was stolen from the sub-bailee’s premises in circumstances where the sub-bailee had failed to take reasonable care of the car. This was the case even though the bailee was in breach of the terms of a bailment of a car. Additionally, the bailee can sue the bailor for wrongful acts during the currency of the term of

bailment. In City Motors v Southern Aerial Super Service,222 a bailor repossessed a truck in circumstances not authorised under the hire–purchase agreement. The High Court held that the bailee could sue in detinue. A bailee in possession may sue for any injury to the chattel and, in the case of acts that constitute conversion, may recover the full value, irrespective of whether the: chattel has been destroyed or merely damaged;223 damage to the chattel exceeds the value of the bailee’s own limited interest; [page 73] bailee is answerable to the bailor for the damage or loss in question;224 or bailee is a bailee at will or a bailee for a term that is still subsisting when the wrong occurred.225

Self-help 2.63 A person who has committed trespass by taking a chattel from the possession of another is subject to the remedy of ‘recaption’, or the physical recapture of the chattel.226 This remedy, which parallels the self-help remedy in relation to land,227 is equally available in conversion and detinue. In Blades v Higgs,228 the defendant’s servants forcibly recovered rabbits from a dealer who purchased them from a trespasser. The trespasser had shot them on the defendant’s land. The court held that the remedy of recaption applied to the dealer’s refusal to hand them over in the same way as for a trespassory taking. The New South Wales Court of Appeal in Toyota Finance v Dennis,229 however, decided that the right of forcible recaption is restricted to trespassory takings of chattels ‘that that person knows he or she is not entitled to’. The owner may use such force as is reasonably necessary to repossess the chattel;230 or they may lawfully recover the chattel by means of a trick.231 The self-help remedy extends to a right to enter onto the land of the wrongdoer to retake the chattel.232

Finders 2.64 Particular problems arise in the context of cases where chattels are lost and later found by strangers. As we have seen above, the starting point for determining whether a right to sue in trespass, conversion, detinue or negligence has arisen is the question of the plaintiff’s possession or immediate right to possession. In the case of bailment, this is a relatively straightforward matter because of the express or implied terms relating to the right to possession. It is a more difficult question where original possession is at issue — that is, where chattels are taken from a state of nature — as the case of Young v Hichens233 shows. The basic principle governing the rights of finders was established in Armory v Delamirie.234 In that case, a boy employed by a chimney sweep found a jewel. He took it to a goldsmith for valuation. The goldsmith refused to hand it back. The boy sued in conversion, and was [page 74] successful. The court concluded that a finder in actual possession of a chattel, though not an owner, has a sufficient title to sue a stranger. The case is also authority for a narrow definition of the jus tertii defence because the clear defect in the finder’s title was no bar to success in an action in conversion. While Armory v Delamirie settled the question of a finder’s rights in a contest with a complete stranger, it had no direct bearing on the issue of the rights of the employer of the finder, or the rights of the owner of the land on which the chattel was found. In the case of employees, the rights of the finder will be determined by the terms of the employment relationship. In the case of occupiers, the degree of attachment of the chattel to the land becomes crucial.

Finder versus employer or principal 2.65 Where the employee or agent finds a chattel in the course of employment or agency, he or she does so on behalf of his or her employer or principal. The latter acquires finder’s rights superior to those of the actual

finder.235 If the employment or agency is wholly incidental or collateral to the finding, the employee or agent will hold as against all but the true owner.236 So, where a boatswain found contraband coins on a ship and passed them immediately to customs officials, he did not have the requisite possession to maintain an action against the officials when the owner of the coins (unsurprisingly) failed to claim them.237 More recently, in Burnett v Randwick City Council,238 possession of gymnasium equipment was held to be vested in the company, not in the directors who were physically in possession. Tobias JA observed in that case that while ‘[a]n officer may well carry on the company’s business and his or her decisions may control the manner in which the company’s property is held, used, acquired or disposed of … this does not vest in that officer … such control and dominion over the property of the company as to change the physical custody of that property from the possession of the company to the possession of the officer’. 239

Finder versus occupier 2.66 As we have seen above, where a chattel has become a fixture, it becomes part of the realty.240 It follows that if that chattel has been lost and is later annexed by someone other than the owner of the land without the landowner’s knowledge or consent, then the owner of the realty has best title to it, even in a contest with the owner.241 In relation to finders, the general rule is that an occupier of land has rights superior to those of a finder over chattels in or attached to the land if he or she has manifested an intention to exercise control over the area where the chattel was found. Where the chattels are attached to or [page 75] buried in the land, such an intention is presumed, even though the occupier is unaware of the presence of the chattel. So, where banknotes were found under the foundations of a house,242 a ring was found in a pool,243 a prehistoric boat was discovered embedded in soil,244 or a brooch was found

nine inches below the surface in a public park by means of a metal detector,245 the occupier of the land prevailed. 2.67 The occupier will also have superior rights to the finder with regard to chattels found on, but not in or attached to, the land if he or she has manifested an intention to exercise control over the land and the things on it or in it before the chattel is found. The intention is a question of fact, and is indicated, for example, by the nature of the land. Where the relevant land was the executive lounge of an airport,246 or where banknotes were found on the floor of a shop by a customer,247 the finder was successful. An ‘occupier’ of a chattel such as a ship, motor car, caravan or aircraft is to be treated as if he or she were the occupier of a building for the purposes of the foregoing rules.248 In Flack v Chairperson, National Crime Authority,249 the National Crime Authority searched the house occupied by the plaintiff, suspecting that drugs were stored there. The searchers found a large sum of money in a bag in a wardrobe. The plaintiff claimed to know nothing about the bag or its contents. The defendants took it away. No person was charged in relation to the money, so the plaintiff brought an action seeking the return of the bag and the money. It was held that an intention to exercise control over land will be presumed in the case of residential premises where the occupier has exclusive possession. The plaintiff was successful. A finder of a chattel cannot prevail over an occupier if he or she takes possession with dishonest intent or in the course of trespassing. In Hibbert v McKiernan,250 trespassers on a golf course were held to have no rights to lost balls. In Parker v British Airways Board,251 trespassers or dishonest finders were held to have ‘very limited rights’. However, it is arguable that as against a complete stranger who is not an occupier of the land on which the chattel is found, the trespasser would have sufficient possession to prevail.252 Rights over a chattel will be lost where the chattel is physically abandoned, that is, left with a renunciation of rights over it, but only if another person acquires a possessory title over it.253 Until that time, the chattel remains the property of the prior possessor. [page 76]

Reform Fixtures by mistake 2.68 The obvious injustice of the rule that if someone annexes chattels to land by mistake he or she will lose all rights over them should be remedied. There is no good reason supporting the windfall to the landowner in these circumstances, or the disproportionate penalty to the mistaken party. One valuable reform would be to adopt ss 195–198 of the Property Law Act 1974 (Qld). These provisions confer a wide discretion on the court to apportion rights between the parties. By s 196, where a person makes a lasting improvement on land owned by another in the genuine but mistaken belief that such land is his or her property, or is the property of someone on whose behalf he or she makes the improvement, the court may make a variety of orders. The orders include: vesting the land, or part of it, in the improver; removing the improvement; compensation; or granting possession of the land on specified terms and conditions.254

Unreasonable refusal of consent to annex 2.69 If a right to annex fixtures is given in the lease but is expressed to be subject to the landlord’s consent, the consent may be unreasonably withheld in the case of landlords of residential premises.255 This rule confers an excessive right on landlords. The policy reason why landlords of nonresidential premises must not unreasonably withhold consent in such circumstances is because it allows tenants to enjoy and make the most use of the premises without jeopardising the rights of landlords. There appears to be no sound reason why residential tenants should not have the same rights.

Right to implead a third party in an action in conversion 2.70 It is arguable that the extensive protection offered to persons with possession, or an immediate right to possession (as manifested in the right to sue in conversion all those who wrongfully exercise dominion over the chattel, and to get damages to the full value of the chattel), is far too great.

Thus, where a bailee, X, in breach of the terms of the bailment disposes of the chattel to Y, both X and Y are liable in conversion, and both are liable to pay damages to the full value of the chattel. In such a case, the plaintiff is compensated in a way that may far exceed his or her actual loss.256 Likewise, a finder of a ring embedded in soil on A’s land who removes it is liable to both A and the true owner. In its 1971 report on detinue and conversion, the English Law Commission (the Commission) identified three objectives that the law should aim to meet: 1.

to give any interested party the right to be joined in an action for wrongful interference in order to avoid multiplicity of actions; [page 77]

2.

to protect defendants, so far as practicable, from the risk of double liability; and

3.

to limit the plaintiff’s damage to his or her actual loss.257

There is some limited protection for the wrongdoer. As we have seen above, if sued by a bailee, the wrongdoer has a defence to any further action from the bailor, and the bailee must generally account to the bailor for any excess over his or her own interest.258 As Fleming notes,259 s 7 of the Torts (Interference with Goods) Act 1977 (UK), which largely implemented the recommendations of the Commission, has effectively resolved these problems. While not significantly removing the complexity of this area of law, it is a desirable and overdue reform that would strike a more appropriate balance between property owners and those who interfere with chattels, often unwittingly. ______________________________ 1.

Based on a table devised by J H Baker in An Introduction to English Legal History, Butterworths, London, 1971, p 137.

2.

This ancient term was used to describe land because, in feudal times only, land was capable of passing to an heir on intestacy.

3.

See 2.6–2.30.

4.

See Chapter 9.

5.

For a further discussion, see Chapter 7.

6.

See, eg, McKeown v Cavalier Yachts Pty Ltd (1988) 13 NSWLR 303 (order granted for specific restitution of a yacht).

7.

As to the rights of finders, see 2.64–2.67.

8.

For a case which raised the distinction, see Pacific Film Laboratories Pty Ltd v Federal Commissioner for Taxation (1970) 121 CLR 154 (different rights over film prints and the right to produce copies).

9.

Bursill Enterprises Pty Ltd v Berger Bros Trading Co Pty Ltd (1971) 124 CLR 73, discussed at 8.81–8.82. Strata schemes legislation is a further example of the principle. See, generally, Chapter 10.

10.

See Star Energy Weald Basin Ltd v Bocardo SA [2011] AC 380; R Balkin and J Davis, Law of Torts, 5th ed, LexisNexis Butterworths, Sydney, 2013, p 117.

11.

Wandsworth Board of Works v United Telephone Co (1884) 13 QBD 904 at 915 per Brett MR.

12.

For an exploration of the competing moral arguments courts have deployed to address this question in a number of jurisdictions, see S Grattan, ‘Judicial Reasoning and the Adjudication of Airspace Trespass’ (1996) 4 APLJ 128.

13.

Victoria Park Racing Co v Taylor (1937) 58 CLR 479.

14.

Bernstein of Leigh (Baron) v Skyviews and General Ltd [1978] QB 479.

15.

For the requirements necessary to establish this tort, see 2.31.

16.

Bernstein of Leigh (Baron) v Skyviews and General Ltd [1978] QB 479 at 488 per Griffith J.

17.

Victoria Park Racing Co v Taylor (1937) 58 CLR 479.

18.

Ellis v Loftus Iron Co (1874) LR 10 CP 10.

19.

Pickering v Rudd (1815) 4 Camp 219.

20.

Davies v Bennison (1927) 22 Tas LR 52.

21.

Woollerton v Costain [1970] 1 WLR 411; Graham v KD Morris & Sons Pty Ltd [1974] Qd R 1.

22.

Graham v KD Morris & Sons Pty Ltd [1974] Qd R 1; Jaggard v Sawyer [1995] 1 WLR 269.

23.

Attorney-General v Mosman Council (1910) 11 SR (NSW) 113.

24.

LJP Investments Pty Ltd v Howard Chia Investments Pty Ltd (1989) 24 NSWLR 490.

25.

Conveyancing Act 1919 (NSW) s 88K.

26.

Access to Neighbouring Land Act 2000 (NSW); see further, 12.74.

27.

Kelsen v Imperial Tobacco Co Ltd [1957] 2 QB 334.

28.

Barker v Corporation of the City of Adelaide [1900] SALR 29.

29.

Williamson v Friend (1901) 1 SR (NSW) (Eq) 23.

30.

Lemmon v Webb [1895] AC 1.

31.

Civil Liability Act 2002 (NSW) Pt 12 re-enacted the Damage by Aircraft Act 1952 (NSW).

32.

Steel-Maitland v British Airways [1981] SLT 110.

33.

Edwards v Sims 24 SW 2d 619 (Ky 1929).

34.

Bulli Coal Mining Co v Osborne [1899] AC 351.

35.

See 8.80.

36.

A Bradbrook, ‘The Relevance of the Cuius Est Solum Doctrine to the Landowner’s Claims to Natural Resources Located Above and Beneath the Land’ (1988) 11 Adel LR 462.

37.

See, generally, Bradbrook, ‘The Relevance of the Cuius Est Solum Doctrine to the Landowner’s Claims to Natural Resources Located Above and Beneath the Land’, note 36 above.

38.

See 12.11.

39.

Attorney-General v Chambers (1854) 4 De GM & G 206.

40.

Verrall v Nott (1939) 39 SR (NSW) 89.

41.

Hill v Lyne (1893) 14 LR (NSW) 449.

42.

Orr Ewing v Colquhoun (1877) 2 App Cas 839.

43.

Lord v Commissioners for the City of Sydney (1859) 12 Moo PC 473; 14 ER 991.

44.

Lanyon Pty Ltd v Canberra Washed Sand Pty Ltd (1966) 115 CLR 342.

45.

See, generally, P Butt, Land Law, 6th ed, Thomson Reuters/Lawbook Co, Sydney, 2010, pp 33–6.

46.

Gifford v Lord Yarborough (1828) 5 Bing 163; 130 ER 1023; Hazlett v Presnell (1982) 43 ALR 1 at 7; Elroa Nominees Pty Ltd v Registrar of Titles [2003] QCA 165 at [37].

47.

Note, however, the provisions of s 55N of the Coastal Protection Act 1979 (NSW), restricting the circumstances in which a court may make a declaration about the increase by way of accretion of an area of private land adjacent to the coast.

48.

Hill v Lyne (1893) 14 LR (NSW) 449.

49.

Southern Centre of Theosophy Inc v South Australia [1982] AC 706.

50.

Baxendale v Instow PC [1981] 2 All ER 620.

51.

For difficulties that arise in relation to these interests, and an argument that they should be abolished, see R Annand, ‘Movable Fees’ [1982] Conv 208.

52.

Re Whaley [1908] 1 Ch 615 at 620 per Neville J.

53.

See, eg, Palumberi v Palumberi (1986) NSW ConvR ¶55-287 at 596 per Kearney J; May v Ceedive Pty Ltd (2006) 13 BPR 24,147 at [66] per Santow JA. For a commentary see R Abbs, ‘The Law of Fixtures: Informed Principle or Independent Predilection?’ (2004) 11 APLJ 31.

54.

Minshall v Lloyd (1837) 2 M & W 450 at 459 per Parke B. See also TEC Desert Pty Ltd v Commissioner of State Revenue (2010) 241 CLR 576 at [23]. For a general discussion of this principle, see B Collier, ‘Distinguishing Chattels and Fixtures: Intent and Annexation’ (1994) 2 APLJ 45.

55.

Holland v Hodgson (1872) LR 7 CP 328.

56.

Ball-Guymer v Livantes (1990) 102 FLR 327.

57.

Vopak Terminal Darwin Pty Ltd v Natural Fuels Darwin Pty Ltd (2009) 258 ALR 89.

58.

National Australia Bank Ltd v Blacker (2000) 179 ALR 97 at [13]–[14] per Conti J.

59.

Agripower Barraba Pty Ltd v Blomfield (2015) 317 ALR 202 at [76] per Sackville AJA.

60.

Spyer v Phillipson [1931] 2 Ch 183.

61.

Holland v Hodgson (1872) LR 7 CP 328 at 335. See also May v Ceedive Pty Ltd (2006) 13 BPR 24,147.

62.

Leigh v Taylor [1902] 1 Ch 523.

63.

Re Whaley [1908] 1 Ch 615.

64.

Norton v Dashwood [1896] 2 Ch 497 at 501 per Chitty J.

65.

Hobson v Gorringe [1897] 1 Ch 182.

66.

May v Ceedive Pty Ltd (2006) 13 BPR 24,147.

67.

Belgrave Nominees Pty Ltd v Barlin-Scott Air-conditioning (Australia) Pty Ltd [1984] VR 947.

68.

Belgrave Nominees Pty Ltd v Barlin-Scott Air-conditioning (Australia) Pty Ltd [1984] VR 947 at 951 per Kaye J.

69.

Elitestone Ltd v Morris [1997] 1 WLR 687.

70.

Reid v Smith (1905) 3 CLR 656.

71.

Attorney-General (Cth) v R T Co Pty Ltd (No 2) (1957) 97 CLR 146.

72.

Agripower Barraba Pty Ltd v Blomfield (2015) 317 ALR 202.

73.

National Australia Bank Ltd v Blacker (2000) 179 ALR 97.

74.

Chelsea Yacht & Boat Co Ltd v Pope [2000] 1 WLR 1941. See also Tristmire Ltd v Mew [2012] 1 WLR 852 (three houseboats, originally capable of floating, but later resting on their own weight platforms set into the seabed, were found to be chattels), discussed in P Butt, ‘Is a Houseboat a Fixture?’ (2013) 87 ALJ 163.

75.

Palumberi v Palumberi (1986) NSW ConvR ¶55-287.

76.

Hawkins v Farley [1997] 2 Qd R 361.

77.

Segal v Obsborne [2016] NSWSC 941.

78.

Segal v Obsborne [2016] NSWSC 941 at [82].

79.

Australian Provincial Co Ltd v Coroneo (1938) 38 SR (NSW) 700. For further examples, see A Moore, S Grattan and L Griggs, Bradbrook, MacCallum and Moore’s Australian Real Property Law, 6th ed, Thomson Reuters, Sydney, 2016, pp 794–801.

80.

Vaudeville Electric Cinema Ltd v Muriset [1923] 2 Ch 74.

81.

On this point, see L Griggs, ‘The Doctrine of Fixtures: Questionable Origin, Debatable History, and a Future that is Past!’ (2001) 9 APLJ 51.

82.

Phillips v Lamdin [1949] 2 KB 33.

83.

Norton v Dashwood [1896] 2 Ch 497.

84.

Re New South Wales Co-operative Ice & Cold Storage Co (1891) 12 LR (NSW) Eq 87.

85.

Re Samuel Allen & Sons Ltd [1907] 1 Ch 575.

86.

See 2.16.

87.

Hobson v Gorringe [1897] 1 Ch 182; Reynolds v Ashby & Son [1904] AC 466.

88.

Re Morrison, Jones & Taylor Ltd [1914] 1 Ch 50.

89.

Hobson v Gorringe [1897] 1 Ch 182.

90.

Re Morrison, Jones & Taylor Ltd [1914] 1 Ch 50. The position is further complicated by s 184G of the Conveyancing Act. See, generally, Chapter 7.

91.

See, generally, Chapter 8.

92.

See 11.39, 11.108.

93.

Penton v Robart (1801) 2 East 88 at 91; 102 ER 302 at 303 per Kenyon CJ.

94.

Bain v Brand (1876) 1 App Cas 762 at 772.

95.

Elliott v Bishop (1854) 10 Ex 496 at 507–8; 156 All ER 534 at 539; Vopak Terminal Darwin Pty Ltd v Natural Fuels Darwin Pty Ltd (2009) 258 ALR 89 at [67]. See further, P Butt, Land Law, 6th ed, note 45 above, pp 429–30.

96.

Spyer v Phillipson [1931] 2 Ch 183.

97.

Greita Sebea v Territory of Papua (1941) 67 CLR 544.

98.

Climie v Wood (1869) LR Ex 328.

99.

Lawton v Lawton (1743) 3 Atk 13.

100. Norton v Dashwood [1896] 2 Ch 497 at 500; Penton v Robart (1801) 2 East 88 at 91; 102 ER 302 at 303. 101. Smith v City Petroleum Co Ltd [1940] 1 All ER 260. 102. Elliott v Bishop (1854) 10 Exch 496; 156 ER 534. 103. Harding v National Insurance Co (1871) 2 AJR 67. 104. Wardell v Usher (1841) 10 LJCP 316. 105. Darby v Harris (1841) 1 QB 895. 106. Leach v Thomas (1835) 7 C & P 327; 173 ER 145. 107. Lyde v Russell (1830) 1 B & Ad 394; 109 ER 834. 108. Spyer v Phillipson [1931] 2 Ch 183. 109. Residential Tenancies Act 2010 (NSW) s 66(2). 110. Residential Tenancies Act 2010 (NSW) s 66(3). 111. D’Arcy v Burelli Investments Pty Ltd (1987) 8 NSWLR 317; Vopak Terminal v Natural Fuels Darwin Pty Ltd (2009) 258 ALR 89. 112. Lyde v Russell (1830) 1 B & Ad 394 at 395; 109 ER 834 at 834 per Tenterden CJ. 113. Ex parte Brook; Re Roberts (1878) 10 Ch D 100; Smith v City Petroleum Co Ltd [1940] 1 All ER 260. 114. New Zealand Government Property Corp v H M & S Ltd [1982] 1 All ER 624. 115. Concept Projects Ltd v McKay [1984] 1 NZLR 560. This right is sometimes referred to as an ‘excrescence on the term’: Mackintosh v Trotter (1838) 3 M & W 184 at 186; 150 ER 1108 at 1109. For a discussion of the history of the term, see D’Arcy v Burelli Investments Pty Ltd (1987) 8 NSWLR 317 at 321 per Young J. 116. D’Arcy v Burelli Investments Pty Ltd (1987) 8 NSWLR 317. 117. Re New South Wales Co-Operative Ice & Cold Storage Co (1891) 12 LR (NSW) Eq 87. See also 2.23. 118. Agricultural Tenancies Act 1990 (NSW) s 10. 119. Elwes v Maw (1802) 3 East 38; 102 ER 510. 120. Residential Tenancies Act 2010 (NSW) s 67. 121. Residential Tenancies Act 2010 (NSW) s 67(2). As to this obligation, see 11.111. 122. Brand v Chris Building Co Pty Ltd [1957] VR 625.

123. For discussion of the equity of acquiescence, see 6.37. 124. See, for instance, Lumbers v W Cook Builders Pty Ltd (2008) 232 CLR 635; Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221. For a discussion of relevant case law, see S Degeling and B Edgeworth, ‘Improvements to Land Belonging to Another’ in Property and Security: Selected Essays, L Bennett Moses, B Edgeworth and C Sherry (eds), Thomson Reuters, Sydney, 2010, pp 277–90. 125. Reynolds v Ashby & Son [1904] AC 466 at 475 per Lord Lindley. Of course, the owner of the chattel can sue the thief in conversion: see 2.49–2.50. 126. Port Stephens Shire Council v Tellamist Pty Ltd [2004] NSWCA 353 per Santow JA at [189]–[190]. Special leave to appeal to the High Court was refused: Port Stephens Shire Council v Tellamist Pty Ltd [2005] HCATrans 365. 127. See, eg, Wellaway v Courtier [1918] 1 KB 200 (the removal of turnips); Mason v Clarke [1955] AC 778 (HL) (the right to take rabbits). 128. Rigby v Chief Constable [1985] 1 WLR 1242. 129. Public Transport Commission (NSW) v Perry (1977) 137 CLR 107. 130. Reynolds v Clarke (1725) 2 Ld Raym 1399. For further examples, see generally, Balkin and Davis, Law of Torts, note 10 above, Ch 5. 131. London Borough of Southwark v Williams [1971] Ch 734. 132. Basely v Clarkson (1681) 3 Lev 37. 133. Perry v Clissold [1907] AC 73. 134. Tecbild Ltd v Chamberlain (1969) 20 P & CR 633. 135. Perry v Clissold [1907] AC 73. 136. See, generally, Chapter 5. 137. Cousins v Wilson [1994] NZLR 463. 138. Loxton v Waterhouse (1891) 7 WN (NSW) 98. 139. Hill v Tupper (1863) 2 H & C 121; Georgeski v Owners Corp SP49833 (2004) 62 NSWLR 534. 140. Mason v Clarke [1955] AC 778. 141. Graham v Peat (1801) 1 East 244; 102 ER 95. 142. For this defence, see 5.19. See 2.54–2.57 for the defence in relation to chattels. 143. Wynne v Green (1901) 1 SR (NSW) 40. See also C Sappideen and P Vines (eds), Fleming’s Law of Torts, 10th ed, Thomson Reuters/Lawbook Co, Sydney, 2011, p 50. 144. As to which, see 2.38–2.39. 145. Sappideen and Vines (eds), Fleming’s Law of Torts, note 143 above, p 49. 146. Perry v Clissold [1907] AC 73. For a discussion of the question of relativity of titles, see Chapter 5. 147. See Chapter 8. 148. See Chapter 4. 149. See Chapter 5. 150. Perry v Clissold [1907] AC 73. 151. Nilan v Nilan (1951) 68 WN (NSW) 271.

152. Lee v Blakeney (1887) 8 LR (NSW) 141. 153. Sydney City Council v Parker (NSWSC, Cantor J, 1 March 1984, unreported). For a discussion of this case, see P Ryan, ‘Squatters’ (1985) 2 EPLJ 52. 154. Supreme Court Rules 1970 (NSW) Pt 42 r 4(2). 155. Hemmings v Stoke Poges Golf Club [1920] 1 KB 720. 156. MacIntosh v Lobel (1993) 30 NSWLR 441. 157. Imperial Acts Application Act 1969 (NSW) ss 18–20. 158. Macintosh v Lobel (1993) 30 NSWLR 441. 159. Inclosed Lands Protection Act 1901 (NSW) s 3. 160. Darcey v Pre-Term Foundation Clinic [1983] 2 NSWLR 497. 161. Barns v Edwards (1993) 31 NSWLR 714. 162. McDermott v Boggs (NSWSC, Carruthers J, 12 March 1991, unreported). 163. For the variety of interests in land, see 2.2. 164. For a general discussion, see S Green and J Randall, The Tort of Conversion, Hart Publishing, UK, 2009, pp 94–118; S Douglas, Liability for Wrongful Interference with Chattels, Hart Publishing, UK, 2011. 165. As to which, see 5.42–5.46. 166. Young v Hichens (1844) 6 QB 606. 167. The Tubantia [1924] P 78. 168. For different types of bailment, see 2.46–2.47. 169. Jeffries v Great Western Railway Co (1856) 5 E & B 802 at 805; 119 ER 680 at 681. 170. The expressions ‘right to immediate possession’ and ‘immediate right to possession’ are both commonly used to describe this right, and are sometimes used interchangeably. See, eg, United States of America and Republic of France v Dollfus Mieg et Compagnie SA and Bank of England [1952] AC 582 at 605 per Earl Jowitt. The former placing of the epithet seems more appropriate. 171. As to these torts, see 2.48–2.52. For a general discussion, see Green and Randall, The Tort of Conversion, note 164 above, Ch 4; Douglas, Liability for Wrongful Interference with Chattels, note 164 above. 172. See 2.54–2.56. 173. For a rigorous discussion of the proprietary nature of a bailment, see A Clarke and P Kohler, Property Law: Commentary and Materials, Cambridge University Press, Cambridge, 2005, pp 653–6. 174. Hobbs v Petersham Transport Co Pty Ltd (1971) 124 CLR 220 at 238. 175. Penfolds Wines v Elliott (1946) 74 CLR 204. See also Pangallo Estate Pty Ltd v Killara 10 Pty Ltd [2007] NSWSC 1528. 176. Houghland v R R Low (Luxury Coaches) Ltd [1962] 1 QB 694; [1962] 2 All ER 159. 177. United States of America and Republic of France v Dollfus Mieg et Compagnie SA and Bank of England [1952] AC 582. 178. See further, Balkin and Davis, Law of Torts, note 10 above, pp 94–101. 179. Penfolds Wines v Elliott (1946) 74 CLR 204 at 225 per Dixon J. See also Allianz Australia Insurance

Ltd v Lo-Guidice [2012] NSWSC 145 at 27. 180. United States of America and Republic of France v Dollfus Mieg et Compagnie SA and Bank of England [1952] AC 582. In other words, the bailee is in the position of an agent or employee. This ‘possession’ is sometimes known as ‘constructive possession’. Compare the rationale offered by Lord Porter (at 611), who concluded that the bailor has possession. 181. Wilson v Lombank [1963] 1 WLR 1294. 182. Sappideen and Vines (eds), Fleming’s Law of Torts, note 143 above, p 50. 183. Caxton Publishing v Sutherland Publishing [1939] AC 178 at 202 per Lord Porter. See also OBG Ltd v Allen [2008] 1 AC 1. 184. Johnson Matthey (Aust) Ltd v Dascorp Pty Ltd (2003) 9 VR 171 at 151. See, eg, Safari 4 x 4 Engineering Pty Ltd v Doncaster Motors Pty Ltd [2006] VSC 460. 185. Hollins v Fowler (1875) LR 7 HL 757. 186. Fouldes v Willoughby (1848) 8 M&W 438. 187. M’Leod v M’Ghie (1841) 2 Man & G 326. 188. Glass v Hollander (1935) 35 SR (NSW) 304. 189. Singer Co v Clark (1879) 5 Ex D 37. 190. Penfolds Wines v Elliott (1946) 74 CLR 204; Reef Health Pty v Vines [2014] NSWSC 70. 191. For a further example, see discussion of Fouldes v Willoughby (1841) 8 M & W 540 in N Foster, Torts Cases and Commentary Supplement: Defamation and Wrongful Interference with Goods, LexisNexis Butterworths, Sydney, 2014, pp 102–3. 192. For a discussion of the difficulties of determining the ratio decidendi of this case, see G Paton and G Sawer, ‘Case Note: Penfolds Wines v Elliott’ (1956) 63 LQR 461 at 469–70. 193. Spackman v Foster (1883) 11 QBD 99. See also Grant v YYH Holdings Pty Ltd [2012] NSWCA 360. See further, Balkin and Davis, Law of Torts, note 10 above, pp 101-7. 194. John F Goulding Pty Ltd v Victorian Railways Commissioners (1932) 48 CLR 157. 195. On the operation of the limitation of actions statutes, and the cause of action, see Grant v YYH Holdings Pty Ltd [2012] NSWCA 360. 196. British Road Services Ltd v Arthur V Crutchley & Co Ltd [1968] 1 All ER 811; The Winkfield [1902] P 42. 197. See 2.60. 198. This diagram is a variation of one produced by H Luntz, D Hambly and R Hayes in Torts: Commentary and Materials, 2nd ed, Butterworths, Sydney, 1985, p 996. 199. Jeffries v Great Western Railway Co (1856) 5 E & B 802; 119 ER 680. 200. Jeffries v Great Western Railway Co (1856) 5 E & B 802 at 807; 119 ER 680 at 681. 201. B Edgeworth, C Rossiter, M Stone and P O’Connor, Sackville & Neave Australian Property Law, 10th ed, LexisNexis Butterworths, 2016, pp 106-9. See also Edwards v Amos (1945) 62 WN (NSW) 204. 202. International Factors v Rodriguez [1979] QB 351. 203. Donald v Suckling (1866) LR 1 QB 585.

204. Lord v Price (1874) LR 9 Ex 54. 205. As for the rights of bailees, see 2.61–2.62. 206. Hollins v Fowler (1875) LR 7 HL 757. It is important to note that legislation in all states protects innocent purchasers in D’s position from liability in certain circumstances. 207. E Tyler and N Palmer (eds), Crossley Vaines on Personal Property, 5th ed, Butterworths, 1973, pp 75– 6; F Trindade and P Cane, The Law of Torts in Australia, Oxford University Press, Melbourne, 1985, pp 139–40. 208. Penfolds Wines v Elliott (1946) 74 CLR 204 at 230. 209. Mears v London and South Western Railway Co (1862) 11 CBNS 850. 210. Mears v London and South Western Railway Co (1862) 11 CBNS 850 at 854–5. 211. Trindade and Cane, The Law of Torts in Australia, note 207 above, p 139; Sappideen and Vines (eds), Fleming’s Law of Torts, note 143 above, p 86. 212. Dee Trading Co Pty Ltd v Baldwin [1938] VLR 173. 213. Tancred v Allgood (1859) 4 H & N 438; 157 ER 910. 214. Trindade and Cane, The Law of Torts in Australia, note 207 above, pp 139–40. 215. Morison v London, County and Westminster Bank Ltd [1914] 3 KB 356; OBG Ltd v Allen [2008] 1 AC 1. 216. The Winkfield [1902] P 42. 217. The defendants did not raise the question of how it was that the Postmaster-General was deemed to be bailee (ie, in actual possession of the chattels), rather than the owners and operators of the Mexican, until it was too late and the court refused to consider the issue. 218. The Winkfield [1902] P 42 at 54 per Collins MR. 219. The Winkfield [1902] P 42 at 61. 220. See also British Road Services Ltd v Arthur V Crutchley & Co Ltd [1968] 1 All ER 811. 221. Anderson Group Pty Ltd v Tynan Motors Pty Ltd [2006] NSWCA 22. 222. City Motors (1933) Pty Ltd v Southern Aerial Super Service Pty Ltd (1961) 106 CLR 477. 223. McCauley v Karooz (1944) 61 WN (NSW) 165. 224. The Winkfield [1902] P 42. 225. Millar v Candy (1981) 58 FLR 145. 226. Blades v Higgs (1861) 10 CBNS 713; 142 ER 634. For a recent overview, see C Hawes, ‘Recaption of Chattels: The Use of Force against the Person’ (2006) 12 Canterbury Law Review 253. 227. See 2.37. 228. Blades v Higgs (1861) 10 CBNS 713; 142 ER 634. 229. Toyota Finance Australia Ltd v Dennis (2002) 58 NSWLR 101. 230. R v Mitton (1827) 3 C & P 31; 172 ER 309. 231. Suttons Motors (Temora) Pty Ltd v Hollywood Motors Pty Ltd [1971] VR 684. 232. Cox v Bath (1893) 14 LR (NSW) 263. 233. Young v Hichens (1844) 6 QB 606.

234. Armory v Delamirie (1722) 1 Strange 506; 93 ER 664. 235. Willey v Synan (1937) 57 CLR 200. 236. Byrne v Hoare [1965] Qd R 135. 237. Willey v Synan (1937) 57 CLR 200. 238. Burnett v Randwick City Council [2006] NSWCA 196. 239. Burnett v Randwick City Council [2006] NSWCA 196 at 96. See further discussion in N Foster, Torts Cases and Commentary Supplement, note 191 above, pp 80–1. 240. See 2.16–2.30. 241. Brand v Chris Building Co Pty Ltd [1957] VR 625. 242. Ranger v Giffin (1968) 87 WN (Pt 1) NSW 531. 243. South Staffordshire Water Co v Sharman [1896] 2 QB 44. 244. Elwes v Brigg Gas Co (1886) 33 Ch D 562. 245. Waverley Borough Council v Fletcher [1996] QB 334. 246. Parker v British Airways Board [1982] 1 QB 1004; [1982] 1 All ER 834. 247. Bridges v Hawkesworth (1851) 21 LJQB 75; [1843–60] All ER Rep 122. 248. Parker v British Airways Board [1982] 1 QB 1004; [1982] 1 All ER 834. 249. Flack v Chairperson, National Crime Authority (1997) 150 ALR 153. 250. Hibbert v McKiernan [1948] 2 KB 142. 251. Parker v British Airways Board [1982] 1 QB 1004 at 1017; [1982] 1 All ER 834 at 843 per Donaldson LJ. 252. For a discussion of reform of the law of finding, see J Tooher, ‘Jubilant Jamie and the Elephant Egg: Acquisition of Title by Finding’ (1998) 6 APLJ 117. 253. Haynes Case (1614) 12 Co Rep 113; 77 ER 1389; Munday v Australian Capital Territory (2000) 173 ALR 1. 254. Property Law Act 1974 (Qld) s 197. See further, S Degeling and B Edgeworth, ‘Improvements to Land Belonging to Another’ in L Bennett Moses, B Edgeworth and C Sherry (eds), Property and Security: Selected Essays, Thomson Reuters, Sydney, 2010, pp 277–90. 255. Residential Tenancies Act 2010 (NSW) s 66(2), (3). 256. See A Tettenborn, ‘Damages in Conversion — Exception or Anomaly?’ [1993] CLJ 128. 257. United Kingdom Law Commission, Detinue and Conversion, 18th Report, Command 4774, 1971, pp 21–2. 258. The Winkfield [1902] P 42. 259. Sappideen and Vines (eds), Fleming’s Law of Torts, note 143 above, p 79.

[page 79]

Chapter 3

Fundamental Principles — Tenure and Estates Introduction 3.1 Common law property doctrines are relatively recent phenomena in the Australian context. They were introduced when the British Crown claimed sovereignty over Australia a little more than 200 years ago. The imported English common law (both in terms of judge-made law and statute) together with enactments of the local legislature and decisions of local courts (both of which were also based on English common law principles) have historically provided the recognised sources of property law in Australia. 3.2 In 1992, this position changed to the extent that the landmark decision of Mabo v Queensland (No 2)1 recognised an ongoing Indigenous connection to land as giving rise to a form of title known as ‘native title’. With the Mabo decision, the common law recognised rights and interests in relation to land that went beyond its previous understandings. However, how native title is to be understood has proved complex. According to Pearson, native title, a nonIndigenous construct, provides the tool by which the common law can interpret a parallel system of law contained in Indigenous traditions and customs as far as they relate to land and water.2 Native title, then, is rather like a mirror that reflects different understandings. Yet, whether native title is simply a new form of property right and another source of property law, or

something beyond that, has been the subject of considerable legal debate and analysis.3 Some decisions of [page 80] the High Court have found that native title is a sui generis form of interest in relation to land.4 It is a right recognised by the common law but is not ‘of’ the common law5 and, accordingly, it lies outside the doctrines of tenure and estates.6 (Native title will be explored more fully in Chapter 4.) 3.3 It follows from the above that today our legal system recognises three basic sources of rights in or in relation to land in New South Wales. They are: 1.

the common law brought from England;

2.

enactments of the local legislature and decisions of the local courts; and

3.

native title.7

However, the focus of this chapter is limited to a discussion of the doctrines of tenure and estates: two fundamental property doctrines operating within the common law. In particular, this chapter will explore how the various sources of property law have moulded or impacted on these doctrines. The chapter commences with a consideration of the principles of reception.

Common Law and Principles of Reception 3.4 The common law divided English colonies into three categories for the purposes of determining which principles of English law were to apply on colonisation.8 Colonies could be acquired by: (a) settlement; (b) conquest; or (c) cession. In the case of settlement, the acquired land received as much of the law of England as was applicable to the colonists’ own ‘situation and the condition of the infant colony’.9 By contrast, if land were acquired by conquest or ceded by treaty, the laws of the conquered remained in place until such

[page 81] time as those laws were replaced by the laws of the invader.10 In Australia, land was treated legally as having been acquired by settlement.11 3.5 Settlement was a principle of acquisition appropriate to land that was unoccupied or unpopulated. Put another way, it was legally appropriate where the land was terra nullius (ie, land belonging to no one). But given that Indigenous people had inhabited Australia for between 40,000 and 60,000 years before the arrival of Europeans, Australia could hardly be factually considered land belonging to no one. Land in Australia was not, in the words of Blackstone, ‘desert and uncultivated’.12 Hence, it was necessary to extend the legal doctrine of terra nullius to cases where there were found to be no ‘settled inhabitants or settled law’ (author’s emphasis) in order to cover the Australian position.13 Nowadays, history, anthropology and law have all demonstrated that Australia was not terra nullius and that application of the doctrine in either its ordinary or extended sense was incorrect.14 Accordingly, the relevance of the settlement principle would appear contestable but as it is a principle deeply embedded in Australian law it appears unlikely to be overturned, at least in the near future.15 3.6 As Australia was acquired on the basis of ‘settlement’ (and, in turn, the English law regarded as applicable to Australian conditions was ‘received’ into the colony), it would seem relevant to inquire into which aspects of English law were applicable to Australian conditions. To explain, it is arguable that as English and Australian conditions were so vastly different from each other, very little English law would have been applicable to the infant colony. England was moving towards a political democracy, and in Australia a large antipodean prison was being imposed on a traditional native society.16 Yet, judging from the amount [page 82] of English law that found its way into the Australian jurisdiction, it would

seem that this interpretation of events was either contested or ignored.17 A further question is when was the relevant ‘cut-off’ date for assessing the applicability of English law? The answer remained unclarified until 1828, when the British Parliament passed the Australian Courts Act 1828.18 That statute declared that all the laws and statutes that were in force in England on 25 July 1828 were to be applied if they were relevant to the particular Australian circumstances. It was not until the passing of the Imperial Acts Application Act 1969 (NSW) that the question of which pre-1828 statutes were relevant in the circumstances was resolved.19 3.7 More specifically, the question arose as to whether the two fundamental doctrines of tenure and estates (being English common law principles) were part of the law applicable to the infant colony. Decisions such as AttorneyGeneral v Brown, Cooper v Stuart and, more recently, Mabo v Queensland (No 2) and Wik Peoples v Queensland20 have all confirmed the view that these two fundamental doctrines became part of the law applicable to the infant colony. As they are so entrenched in Australian property law, the doctrines of tenure and estates both deserve further examination, albeit that today the doctrine of tenure is of diminishing practical importance.

Doctrine of Tenure Background and history 3.8 According to Pollock and Maitland, the doctrine of tenure is a system of land holding where ‘the King himself holds land which is in every sense his own’.21 They continue: The person who 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 the others off it, holds the land of the King either immediately or mediately. In the simplest case he holds it immediately of the King; only the King and he have rights in it. But it well may happen that between him and the King there stand other persons.22

[page 83] 3.9

The doctrine of tenure has its roots in feudalism and the associated

concept of seisin.23 Feudalism was the key structure of social organisation in the Middle Ages and was itself a response to the chaos in which Western Europe found itself after the decline of the Roman Empire.24 The postRoman period was marked by regular marauding and a general debilitating decline in political, commercial and social stability. In such circumstances, it is not surprising that the weak looked to their wealthy and powerful neighbours for physical protection, entering into a bond with them under which the vassal (weaker party) provided assistance to the lord (stronger party) in return for protection. This practice came to be known as ‘commendation’. Later, the same principle of mutual obligation was extended to land, whereby the vassal transferred his or her land to a stronger and more powerful neighbour in return for protection. And so there developed a unique system of enmeshing personal ties with ties to the land. This marked the beginnings of European feudalism. 3.10 There is dispute as to how much feudalism had spread from Europe to England before the Norman Conquest in 1066. For example, while Maitland25 asserted that feudalism existed in England before the conquest, others have noted that: Nothing precisely like the fief [or fee] existed in pre conquest England. There, land was usually held either by immemorial inheritance, without specific service, or by an outright grant from the Crown, or else under a lease which, while it would normally require some service from the lessee, did not, like the enfeoffment, burden the land itself with a fixed, permanent (and often military) service.26

Irrespective of the degree of pre-conquest feudalism in England, it was certainly true that after the Norman invasion William, Duke of Normandy, needed a large army of specially trained knights and a system of castles, of a type unfamiliar in England, in order to [page 84] secure and maintain his position.27 As it happened, these needs were satisfied by the feudal system that was implanted in England after 1066. 3.11 Although land was not granted specifically for the purpose of entrenching feudalism, many of the landed estates which had previously

belonged to (English) King Harold and his followers were redistributed among William’s loyal followers, who had fought at the Battle of Hastings.28 The Domesday Book of 1086, which recorded land holdings in England, revealed that about one-half of the surveyed land of England was held by the King’s greater followers.29 The redistribution of the estates did not involve the out-and-out transfer of land to loyal Norman followers.30 Instead, the King retained ownership of the land and his subjects held their estates by virtue of feoffment with livery of seisin.31 Therefore, from this point on, two central principles of English land law were established: 1.

the doctrine of tenure, which addressed the question: ‘Upon what terms is this land held?’; and

2.

the doctrine of estates, which addressed the question: ‘For how long is this land held?’32 [page 85]

Feudalism and free tenures 3.12 Under the feudal compact, the King retained absolute ownership, merely granting something lesser, an estate, to his subject, who became a tenant. What was alienated or inherited was an estate in land rather than the land itself.33 The grant of the estate came with attached duties. Indeed, linked to the grant from the King was an intricate and complex system of dues, obligations and services which bound the subject and the King. The essence of the feudal nature of land law may be seen to lie in these obligations. Without the obligations of services and incidents, the land-holder would have held completely free. This would have amounted to absolute ownership or allodial title, but such a form of ownership did not sit comfortably with feudal conceptions of mutual obligation and was, therefore, virtually unknown in England.34 Indeed, the overwhelming view was that only the Crown had an absolute title, and this was because the Crown owed no obligations to an overlord.

Services 3.13 The different types of tenures could, in part, be differentiated according to the different types of services and obligations that accompanied them. Examples of services attaching to land included the provision of foot soldiers or armed horsemen, the provision of agricultural labour, the saying of masses, the organising of public hangings, and even the holding of the King’s head while he was seasick crossing from Dover to Whitsond.35 ‘Tenure by knight service’ involved the provision of horsemen to the King for 40 days each year.36 Services that related to the provision of personal obligations fell under the head of ‘tenure by serjeanty’, subcategories of which were grand and petty serjeanty. Services of a religious nature gave rise to ‘frankalmoign tenure’ while ‘socage tenure’ was a residuary category for all ‘free’ tenures that did not fall into the other designated categories.37 Naturally, the provision of these services affected, to varying degrees, the way tenants went about their daily lives and hence the provisions had social as well as legal significance.38 [page 86]

Incidents 3.14 In addition to services, there were some other incidental obligations (incidents) that attached to the free tenures. Such incidents were more useful to the lords than services because they were less susceptible to devaluation. Examples of feudal incidents are homage,39 fealty,40 suit of court,41 aids for the knighting of the lord’s eldest son and the marriage of his eldest daughter,42 primer seisin,43 wardship and marriages,44 and escheat.45 3.15 The incidents of fealty and homage were particularly important in symbolising the whole feudal compact.46 The tenant swore an oath to serve his lord in ‘life and limb and earthly honour’.47 He then placed his hands between the lord’s and undertook to become the lord’s man, swearing that he (the tenant) would devote himself to the lord’s service and remain a subject of the lord in many aspects of his daily existence.48 Interestingly, this ceremony took place, not in a general sense, but in regard to a particular piece of land. Once the service and incidents had been delineated, they were fixed and had

to be complied with by the tenant. In return, the tenure of the estate usually became hereditary. The quid pro quo of the feudal arrangement was that the tenant received the lord’s protection both physically and legally, as well as the benefits of ownership, while the lord received the services he needed, at the expense of parting with direct control of the land. Usually, the tenant–lord relationship did not end there. Most commonly, the tenant went on to replicate the process by which he or she had acquired an interest in land; that is, he or she created a tenant of his or her own, who, in turn, created a tenant of his or her own. [page 87] This process, known as ‘subinfeudation’, continued until eventually a large tenurial pyramid represented the pattern of land holding in England, as illustrated in Figure 3.1.49 Figure 3.1:

Tenurial pyramid

Below the tenurial pyramid — unfree tenures, manorial law and villeinage

3.16 Beneath feudalism proper and the system of free tenures was another system of social organisation which was based on the lord of the manor’s authority within the village structure. The lord of the manor’s relationship with the villagers and the peasant agricultural workers, who were essential to, and supported feudalism from the bottom up (eg, by growing the crops that fed those more elevated in the social order), was simply not recognised by the formal feudal framework. Within feudalism proper, the lord of the manor, as the tenant in demesne, held the lowest (in that it was furthermost from the King) recognisable position. The lord’s relationship with the cottars (the lowly peasants who performed much of the agricultural work) and the owners of the small strips of land in the village (the villeins) remained squarely outside (and below) formal feudalism.50 Cottars and villeins did not hold any interests ‘of’ the King or a mesne (or intermediate) lord. In such a context, the lord of the manor himself became a ‘quasi King’, developing his own fiefdom, regulating the lives of those who lived in the village and wielding an authority that went basically unchallenged, even by the monarch himself. Accordingly, village disputes were settled in the manorial courts rather than the King’s courts. Traditionally, fields within the village were divided up into small strips, with villagers owning varying numbers of scattered strips. This was not an efficient way to farm. Consequently, attempts to consolidate land and make it more productive had been made [page 88] since medieval times but the most concerted effort in that regard occurred between 1760 and 1830 when the English Parliament passed the Inclosure Acts.51 These Acts consisted of a series of laws which led to enclosure of ‘the commons’ (and effectively the loss of common land) along with the redistribution of plots and the requirement for farmers to fence their land. Theoretically, the poor were compensated for loss of their rights to use common land as well as their loss of ‘gleaning rights’, as the right to scavenge food left on the land by others was known. However, this compensation (where provided) was commonly inadequate and large numbers of village poor were left indigent and miserable.

Although enclosure enhanced farming efficiencies and permitted the introduction of new agricultural technology, it arguably exacerbated the gap between rich and poor. Bigger areas of land were held by fewer people who rented them out for high prices. In response to worsening circumstances such as these, many impoverished villagers left the rural areas, migrating to the cities in search of work in the burgeoning factories. As early as 1516, the writer Thomas More, in his book Utopia, attacked the principle of enclosure of land and criticised its effect on poor farmers and their workers. He notably drew a link between unemployment as a result of enclosure on one hand, and crime on the other.52 Many after him have written about (a) the connection between enclosure and crime, and (b) the consequent need to accommodate the growing number of convicted criminals — a need that was addressed, at least in part, by the establishment in 1788 of a penal colony in New South Wales.53 Returning to the position within the rural village, it can be observed that one of the reasons for the lord’s power lay in the nature of the villagers’ obligations to him. As we have learned above, obligations such as services were not of themselves unusual in post-conquest (feudal) England but what was different in relation to the services owed by villagers to the lord (compared with those owed within the formal feudal structure) was their ambit.54 Whereas the ambit of the services which a ‘free’ tenant was required to render was known with certainty, the ambit of the services required of an ‘unfree’ tenant (such as a villein) was variable and uncertain. This distinguished the one from the other. Further, the villein had no seisin55 and he or she could not transfer his or her interest without the consent of the lord.56 The villein could not even move to a new village without first [page 89] gaining the permission of the lord. Compliance was ensured through the imposition of heavy taxes and fines. Yet over time all the services owed by the villein were commuted to

monetary obligations and ultimately (perhaps by way of replication of feudalism proper) these services were found to attach not to the person but rather to the land. Hence, the position was that the villein held land ‘of’ the lord of the manor, by virtue of customary services; services that eventually evolved into monetary obligations. This type of tenure was known as ‘villeinage’, but it remained outside feudalism proper and maintained its unfree status. Later, villeinage became known as copyhold tenure. The etymology of this term lies in the fact that, although transfers of the villein’s land were (when permitted by the lord to take place) recorded in court rolls, the rolls proved difficult to access. Therefore, copies of the rolls’ entries were made and used by those wishing to establish and prove title to land. Hence, it was known as copyhold tenure. Notably, the copyhold tenant could not sue or be sued in the common law courts in respect of his or her holding. This left only the manorial (or lord’s) courts as an avenue of redress. Copyhold tenure was finally abolished by the Law of Property Act 1922 (UK) and, although never imported into Australia, is helpful in gaining an understanding of the doctrine of tenure more generally.

Historical development of the free tenures 3.17 The English Statute of Quia Emptores, passed in 1290, was instrumental in simplifying the formal tenurial system. For example, it prevented further subinfeudation of fee simple estates.57 From 1290 onwards, instead of creating further rungs on the tenurial ladder to accommodate newcomers, a system of substitution prevailed, and a new tenant wishing to hold land would step directly into the shoes of a previous tenant.58 Fewer people were involved with the same piece of land. This, together with the incident of escheat (which provided for the taking of land by the immediate lord when a tenant died without an heir [page 90] and in other special circumstances),59 meant that the tenurial pyramid

contracted in size remarkably because there were fewer rungs on it.60 Dealings with the land were also freed up as a result of the statute because the statute allowed the tenant to alienate land without the permission of the lord. Over time, too, feudal incidents associated with socage tenure were commuted to monetary equivalents — but, as the value of money was whittled away by inflation, mesne (or intermediate) lords and overlords were less inclined to expend resources on the collection of these moneys.61 As the role of mesne lords diminished and intermediate holdings dropped out of the feudal arrangement, socage tenants eventually came to hold directly ‘of’ the King.62 3.18 Tenure by knight service (by contrast with socage tenure) did not, however, fall away so simply. The incidents of wardship and marriage63 remained, allowing the mesne lord to retain some control over his or her land. Eventually, however, the Tenures Abolition Act 1660 intervened,64 with the effect of abolishing most — but not all — feudal incidents. That Act also had the effect of converting the tenures of knight service and serjeanty to socage tenure.65 Further, some of the more onerous incidents of socage tenure itself, such as aids, were removed. In fact, the only (valuable) incidents of socage tenure which remained were escheat and forfeiture.66 Yet, even escheat lost its force once it became possible to devise property under a will.67 Weakened by these changes, the real significance of tenurial incidents declined. 3.19 However, the practical importance of the doctrine of tenure has been the subject of much discussion and, at times, confusion. For example, the eminent English property lawyer and scholar Joshua Williams said: [page 91] … the first thing … the student has to do is to get rid of the idea of absolute ownership. Such an idea is quite unknown to English law. No man is in law the absolute owner of lands. He can only hold an estate in them.68

It is claimed that Professor Maitland, when lecturing at Lincoln’s Inn, would quote Williams’ words, but continue, ‘And the next thing a student must do is painfully re-acquire it’.69 According to Cyprian Williams:

… when the student has assimilated the whole history of the law of real property from the time of the Norman conquest down to the year of 1845 and subsequently to the year of 1925, he must arrive at the conclusion that a tenant in fee simple of land enjoys all the advantages of absolute ownership, except the form. For what is ownership and what is absolute ownership, which a tenant in fee simple enjoys: and in what way does the form of ownership, which he undoubtedly has, differ from absolute ownership?70

If the reasoning of Professor Maitland and Cyprian Williams is correct, it may explain, in part, why a failure to preserve the distinction between tenurial (on one hand) and absolute, or allodial, land holding (on the other) does not always result in consternation. For example, it may explain why (on one analysis) the Wills, Probate and Administration Act 1898 (NSW) blurred the distinction, seemingly without dire consequence.71 To explain, the Wills, Probate and Administration Act permitted real property passing as bona vacantia,72 by virtue of s 61B(7) of that Act, to be treated as personalty would have been treated; that is, allodially, rather than tenurially. Under the bona vacantia provisions in the Act, real property passed directly to the Crown by virtue of the Crown succeeding to the rights vested in the deceased. By comparison, under the doctrine of tenure and in the context of escheat, the Crown acquired the deceased’s interest in land by virtue of title paramount. The mesne lord or Crown did not succeed to the deceased’s interest. Once the tenant ‘dropped out of the picture’, through death, the mesne lord or the Crown took back what had always been his or hers, but which, during the tenant’s life, had been subject to the tenant’s intervening interest.73 Since the Succession Act 2006 (NSW) came into [page 92] force on 1 March 2008, s 136 of that Act has dealt with bona vacantia. Section 136 simply states that ‘[I]f an intestate dies leaving no person who is entitled to the intestate estate, the State is entitled to the whole of the intestate estate’. Figure 3.2 shows the different types of tenure in the English tenurial system. Of these, socage tenure was the only kind imported into New South Wales.

Figure 3.2:

Types of tenure

Local Developments and the Doctrine of Tenure New South Wales and tenures — background 3.20 As noted, in New South Wales the only type of imported English tenure was socage tenure, a tenure which evolved into a tenure free of incidents. Socage tenure required the payment of money by the grantee, rather than the performance of services. It is, therefore, not surprising that in New South Wales the notion of property interests being unfettered by obligations gained acceptance. Such a form of tenure has served to encourage relatively easy alienation of interests in land and, in many ways, seems to have brought notions of real property in New South Wales closer to notions of personalty, which notably is not held ‘of’ the Crown. The complexities of the English tenurial system, having never been imported into New South Wales, have often allowed property in New South Wales to be perceived, in practice, as more allodial than traditionally tenurial. Indeed, Fry observed the way in which Australian conditions varied from

those in England when he said: [page 93] Tenurial incidents in medieval England were, however, peculiarly appropriate to the feudal period, and those in modern Australia are of a different nature.74

Further, while in Wik Peoples v Queensland75 Brennan CJ (with whom Dawson and McHugh JJ concurred) indicated a strong willingness to uphold expressly the doctrine of tenure in the Australian context, he spoke of it in terms different from its English counterpart, when he said: By the interlocking doctrines of tenure and estates, the land law provides for the orderly enjoyment in succession of any parcel of land. The doctrine of tenure creates a single devolving chain of title and the doctrine of estates provided for the enjoyment of land during successive periods.76

Brennan CJ’s characterisation of a local version of the doctrine of tenure is without reference to the presence of incidents and services; incidents and services being the essence of tenure as traditionally defined. Indeed, when viewed in these terms, there is, perhaps surprisingly, some similarity between Brennan CJ’s approach and that of Fry. In this context, it is useful to examine some of the distinctive aspects of local property law.

Quit rents 3.21 Property law in New South Wales developed as a subset of the law which generally regulated and ordered the colony. Sometimes it deliberately fashioned itself in response to the distinctive Australian conditions, while at other times it inadvertently moved in a divergent path from its English counterpart. For example, although in New South Wales quit rents were modelled on the English practice of commuting the agricultural service usually associated with socage tenure to money payments (payments which, in turn, permitted the tenants to go ‘quit’ or free from their services), they (quit rents) developed a decidedly local flavour in the colonial conditions. Their substantive features

and their mode of functioning reveal dramatic divergences from the system in place in England. 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, and 50 acres, if married) free of quit rents for 10 years. Free settlers were granted 100-acre blocks on similar terms.77 Generally, these grants contained a prohibition on alienation for a fixed term, usually seven years, as well as the obligation to clear and cultivate a set proportion of the land. A period of considerable uncertainty followed in the 1820s and 1830s, due in large measure to attempts to put the land 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 [page 94] in could be granted without purchase. After a grace period of seven years, the land was subject to a quit rent of 5% of the market value, redeemable at 20 years. No further obligation to pay quit rents of any form arose once 20 repayments had been duly made. Clearly, nothing like this arrangement was possible under the English system of tenure. In this instance, quit rents were not in any meaningful sense forms of feudal incidents but, rather, a purchase by instalment.78 In 1826, the procedure was finally formalised to allow immigrants to buy all land in this fashion, representing a severe deviation from the English approach.79

Pastoral leases 3.22 In discussing the sui generis nature of a pastoral lease, the decision in Wik Peoples v Queensland80 highlighted how early statutes in Australia were ‘designed to provide for conditions unknown in England and to meet local wants in a fashion unprovided for in England’.81 The statutory pastoral lease represented a modification to one of the types of interests in property recognised by the doctrines of tenure and estates.82 3.23

In order to understand the concept of the pastoral lease and its

relationship to tenures more fully, it is worth considering the historical development of the statutory pastoral lease. Much of the need for statutory regulation of interests in land in New South Wales arose because of people’s propensity to leave the limits of location (ie, the environs of Sydney) and to occupy large tracts of land where stock could be depastured.83 In the course of doing this, the squatters (as they were called) occupied land to which they had no documentary title. The governors wished to regulate and control the squatters’ activities, and were disinclined to grant the squatters fee simple estates in land and thus highly reward the squatters’ uncontrolled straying from the circumjacence of Sydney.84 On the other hand, the squatters themselves were keen to acquire some kind of security with regard to the land, particularly as they usually incurred expense in fencing it, digging dams, clearing paddocks and building homesteads. 3.24 Such a frontier phenomenon was unknown in England, and hence English land law did not need to develop mechanisms for regulating such conditions. Clearly, [page 95] New South Wales did,85 and hence it developed a system of ‘occupation licences’ under the Crown Lands Occupation Act 1839 (NSW). Under this Act, it was illegal to occupy Crown land beyond the limits of location without a valid lease or licence.86 The Sale of Waste Lands Act 1842 (Imp) took control of Crown land a little further by bringing management and disposal of such land under statutory control.87 Thus, according to Fry, ‘the year 1846 saw the first step taken along a road which led to the subsequent invention of a multitude of Australian tenures of new types’.88 In the following year, an Order in Council was issued which gave the Governor of New South Wales the capacity to grant leases in unsettled lands for terms not exceeding 14 years, for pastoral purposes.89 This encouraged land to be taken up beyond the 19 counties around Sydney; hence, land holding in New South Wales, like that in other parts of the country, developed into ‘a patchwork quilt of freeholdings, Crown lease-holdings and Crown reserves’.90

3.25 By 1855, the individual nature of the development of New South Wales land law was left up to the New South Wales legislature, rather than English authorities, by virtue of the New South Wales Constitution Act 1855 (Imp). Under this statute, England surrendered control over Crown lands. Thereafter, it was the colonial legislature which was responsible for passing legislation which met the needs of the developing colony. ‘New forms of tenure’ continued to develop and, according to Gummow J in Wik: … legislative activity illustrated the general propositions that statute may create interests in property which are unknown to the common law.91

Gummow J continued: To these new forms of tenure the terms “lease” and “licence” applied in a new generic sense.92

Clearly, these new forms of tenure were not merely clones of established and known common law concepts. They were unique statutory responses fashioned by peculiar circumstances. Hence, it is not surprising that any historical account of Australian — and, indeed, New South Wales — land law would need to reflect the contributions of both feudal doctrines and these responses to special Australian conditions. [page 96] Millard and Millard summarised the position in writing about the ‘new forms of tenure’93 that were in operation in New South Wales by 1905 and which were created by legislative activity, when they said: The whole of the numerous and elaborate provisions of the Acts for the alienation and occupation of Crown lands are examples of the legislation which has been necessary to meet the peculiar conditions and wants of the colony. Nothing corresponding to the body of laws thereby created is found in English law, there being nothing in England analogous to the vast area of unoccupied lands in this colony, of which the Crown is the nominal, and the public the real owner, the settlement of which is necessary to the welfare and progress of the country.94

3.26 The majority judgments in the Wik decision served to highlight just how far away from traditional English law Australia had positioned itself, in regard to the doctrine of tenure.95 In that case, Toohey J offered a brief account of the initial source of Crown grants. He said that the source lay in the Crown’s prerogative power to dispose of such lands,96 and he explained

how early governors’ commissions contained a power to dispose of Crown lands. Eventually, however, this prerogative power was replaced by statutes;97 one consequence of which was that revenues from the sale of land could not be siphoned off by the Crown, but instead could be directed to colonial needs. The New South Wales Constitution Act was instrumental in these changes. It was not a parochial or domestic statute, but a United Kingdom statute which had paramount force. Hence, its interference with Crown prerogative was in no way problematic. After it was passed, any grants of Crown land had to be made pursuant to statute. New forms of tenure were, therefore, created by operation of statute. Indeed, in Queensland approximately 70 different kinds of Crown leaseholds and Crown perpetual leasehold tenures were created.98 The question then became whether a grant of Crown land made under statute would mirror grants made at common law in regard to the doctrine of tenure. The majority seemed to steer away from accepting this approach, with Toohey J relying on the words of Mason J in R v Toohey; Ex parte Meneling Station Pty Ltd.99 There Mason J said: The grazing licence is the creature of statute forming part of a special statutory regime governing Crown land. It has been characterised in the light of the relevant statutory provisions without attaching too much significance to similarities which it may have with the creation of particular interests by the common law owner of land.100

[page 97] Toohey J found that the rights created by statute should be understood, by reference to their place in the wider statutory scheme and not by the simple application of feudal notions of tenure. An appreciation that the law changes generally to accommodate different circumstances — and, in particular, that it changed historically to accommodate the very different situation in Australia to that in England — was considered relevant.101 By reliance on Fry’s work, Toohey J, along with the rest of the majority, concluded that feudal notions were inappropriate to Australian land tenures. Indeed, Kirby J added that: … it is a mistake to import into the peculiar Australian statutory creation, the pastoral lease, all

of the features of leases in English leasehold tenures dating back to medieval times … it is much more appropriate to give content to the statutory pastoral lease by reference to the statute, unencumbered [by feudal doctrine]. Doing so represents a more orthodox approach to the construction of an Australian statute, made for peculiarly, and in some ways unique, local and land conditions.102

Other statutory modifications 3.27 Lang’s Act103 is yet another example of the independent development of New South Wales property law. That Act dramatically altered the New South Wales law of inheritance on intestacy. Meanwhile, the Real Property Act 1862 (NSW) introduced into New South Wales a scheme of title by registration, and the Conveyancing Act 1919 (NSW) was responsible for extensively codifying much property law. All of these Acts, to some extent, put Australian law at variance with English law.104 3.28 Further, a number of English statutes which were incorporated into New South Wales law were not systematically updated with the English amendments that continued to be passed,105 nor was the spate of English legislation in the mid-1920s (including the Law of Property Act 1925 (UK), the Settled Land Act 1925 (UK), the Trustee Act 1925 (UK) and the Land Registration Act 1925 (UK)) ever replicated in Australia.106 However, had the British Parliament sought to have these statutes enforced in Australia, it could have done so until the late 1930s, under the doctrine of ‘paramount force’.107 ‘Paramount force’ meant that colonial legislation could be overridden and that the British Parliament could legislate for its dominions. Legal history reveals that this power was used infrequently, and hence there was ample opportunity for the nascent state to mould its law according to its own predisposition. [page 98] 3.29 In regard to the common law (as opposed to statute), it was not until the Australia Act 1986 (UK) was passed that the Australian courts were released from the requirement to follow English authority.108 This Act also removed appeals to the Privy Council and effectively established the High Court of Australia as the highest court in the land. English decisions, like those

of Canada, New Zealand and the United States, could be cited and relied on, but they were not authoritative.

Relevance of English Tenure to Australia Differences between English and Australian doctrines 3.30 Gummow J’s comment that ‘traditional concepts of English land law, although radically affected in their own 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’109 forces us to consider the relevance or otherwise, in the Australian context, of tenure as defined by the English legal system. In this regard, the following issues are relevant, and can be observed from the foregoing discussion: English-defined tenure automatically implies that land is held subject to services and incidents.110 In Australia, no services ever attached to the socage tenure that was imported. Indeed, even quit rents were not substitutes for services. They were, as mentioned above, purchase moneys paid by instalment. Lang’s Act, the development of the bona vacantia jurisdiction and the concurrent demise of escheat on intestacy, together with the Forfeiture Act 1870 (Imp), all accounted for the disappearance of the few incidents that had been imported in the first place.111 3.31 Further, the irrelevance of English tenure in the Australian context is suggested by the fact that the doctrine traditionally implies a spatial fragmentation of rights. It implies that the Crown, the tenant in chief, mesne lords, and tenants in demesne all have co-existing rights in a certain tract of land. Allodial land denotes quite the reverse because parties own it absolutely, totally and separately. Yet, as noted earlier, it is arguably allodial land, or something rather close to it, that has always existed in Australia, despite the words of Brennan J (as he was then) that it is ‘far too late in the day to contemplate an

[page 99] allodial or other system of land ownership’112 in this country. Tenure as redefined in Mabo v Queensland (No 2) (Mabo (No 2)) emphasises this; it describes the Crown’s right to property and its capacity to create title, but no more.113 3.32 By contrast, reliance on English tenure would have many more dramatic consequences in Australia than in England, partly because of the manner in which English tenure would interact with native title. Such a proposition is all the more interesting given that, according to Professor Jenks, writing in 1895: … the theory [of tenure] 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, those 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.114

Tenure, allodialism and native title 3.33 Given the above position, it is worth exploring the relationship between tenure, allodialism and native title. Despite the fact that Australian land law did not simply transpose and import English land law to foreign shores, it has been argued that here in Australia ‘the ghost of feudalism hovered over the scene’.115 Indeed, in 1847, Stephen CJ stressed that when a grant of land is made it has to be assumed that the Crown holds the title to the land, and that title is then the source for the creation of lesser estates.116 Later, in 1992, Brennan J stated in Mabo (No 2) that ‘the doctrine of tenure applies to every Crown grant of an interest in land’.117 3.34 Clearly, one of the most significant vestiges of the feudal doctrine of tenure is its fundamental tenet and oft-asserted proposition that land cannot be owned allodially, but only ‘of the Crown’ or tenurially.118 In fact, although the colonial and state legislatures created such tenures as they saw fit, some of

which were typically locally flavoured and described by ever-expanding legal terminology,119 they were created in an environment [page 100] ‘where the local common law recognised no allodial species of estate which was held independently of any grant by the Executive Government or of any grant pursuant to statute’.120 However, as Gummow J pointed out, the assumption that the common law could not recognise allodial title proved to be incorrect in the light of Mabo (No 2).121 3.35 The Mabo (No 2) decision demonstrated that native title, which is a title based on an ongoing Indigenous connection to land, was not dependent on the pre-existence of a tenurial system of land holding.122 Indeed, as the Indigenous connection with land predated both ‘settlement’ and the claim of sovereignty by the Crown of England, native title may be said to exist outside the doctrine of tenure, although it is a title recognised by the common law.123 3.36 Brennan J’s judgment in Mabo (No 2) confirmed the view that Australian freehold titles generally operate by way of Crown grants of estates; but in order to square this proposition with the concept of native title,124 which is not dependent on the existence of tenure, he was forced to revisit the long-held view — outlined in Attorney-General v Brown125 and relied on until and including Milirrpum v Nabalco126 — that absolute beneficial ownership was a concomitant of sovereignty. In doing so, he found that radical title, not absolute beneficial ownership, was a concomitant of sovereignty.127 This revisionist approach permitted the recognition of a dual system of land holding in Australia: the common law tenurial system and allodially held native title. Yet, perhaps surprisingly, the co-existence of two land-holding systems was not a new concept, even in the English context. The continuing Anglo-Saxon holdings after the Norman Conquest128 and the allodial land holdings on the Shetland and Orkney Islands,129 as well as the Nullum Tempus Act,130 demonstrate that English law had some familiarity with the concept of dual systems of land holding. Further, the law pertaining to acquisition by conquest (discussed at 3.4) illustrated in the conquests of the American–Indian peoples,

for example, could also be seen to acknowledge the co-existence of tenure with other [page 101] systems of land holding. For example, as we have noted, if land were acquired by conquest, the law of the conquered remained intact until such time as the conquerors decided to replace it with their own laws. Indeed, Holt CJ in Blankard v Galdy131 noted that ‘in the case of an infidel country, their laws by conquest do not entirely cease, but only such as are against the law of God’. The doctrine of continuity presumed that pre-existing rights would endure. Hence, prior to the conquered’s interests in land being extinguished by the conqueror (which in the case of England was the Crown), two types of land holdings (that of the conquered and that of the conqueror) co-existed. 3.37 Instead of trying to fit recognition of an allodial title (such as native title) around the doctrine of tenure, it is possible that another, simpler approach could have been taken in the Australian context. It may have been possible, for example, to overturn the doctrine of tenure altogether; a course effectively followed in several of the states of the United States of America132 where it appears to have been achieved relatively seamlessly. In Australia, however, the High Court in Mabo (No 2)133 chose to review existing authority and found that the doctrine of tenure was part of the skeleton of Australian common law. The court held that to ignore or deny the doctrine would risk damaging the fabric of the Australian legal system. The result was that the doctrine of tenure was thrust into the limelight in 1992 and has since enjoyed more attention than it had known for some time. But while there has been acceptance on one level that the feudal doctrine forms part of the skeleton of Australian law, there is at the same time, as we have observed, evidence that it was only ever a modified version of the doctrine of tenure that found its way into New South Wales property law in the first place. 3.38 In summary, ambivalence about the role of the doctrine of tenure — and, in particular, its intersection with allodial title — still remains. While Brown forcefully argued that the law respecting property was governed by

feudal principles, we can observe varying degrees of retreat from that position.134 Indeed, the uncertainty surrounding the application of the feudal doctrine of tenure seems to be made plain by s 13J of the Real Property Act 1900 (NSW), which equates the state’s holding with that of a subject; that is, a fee simple. This seems to suggest that the Australian understanding of the feudal doctrine of tenure is clearly at variance with the English understanding of the doctrine.135 [page 102] In this context, it was not surprising to see Deane and Gaudron JJ comment in Mabo (No 2), in words redolent of Professor Maitland and Cyprian Williams, that ‘the primary estate of a subject, the estate in fee simple, became for all practical purposes, equivalent to full ownership of the land itself’.136 In order to explore these ideas further, it is necessary to examine the doctrine of estates more carefully.

Doctrine of Estates Definition of an ‘estate’ 3.39 So far, we have discussed how the common law, as exercised pursuant to local conditions, and with reference to native title jurisprudence, has moulded and shaped the doctrine of tenure since its arrival on Australian shores. In particular, we have observed how, under the feudal system of land holding and the doctrine of tenure, a subject did not ‘own’ land. Only the Crown ‘owned’ land. The tenants to whom the land was granted held something else, but clearly not the land itself. The law described the ‘thing’137 that the tenant held as an ‘estate’.138 This ‘thing’ is the bundle of rights that a tenant is able to exercise at successive times in respect of land.139 It has been described as ‘an abstract entity’ that is ‘interpose[d] … between the tenant and the land’.140 Further, the term ‘estate’ has been said to indicate ‘an interest in land of some particular duration’.141 Where the doctrine of tenure implies a

spatial fragmentation of rights, the doctrine of estates involves a temporal fragmentation of rights. 3.40 The two types of estates that exist in New South Wales (and indeed, Australia) are (i) the freehold estate, and (ii) estates of less than freehold. The leasehold estate is an estate of less than freehold.142 The term ‘freehold’ has its origins in the feudal experience and refers to estates of an uncertain duration; whereas the term ‘leasehold’ refers to estates of certain duration. By historical development, possession of the freehold estate gave rise to seisin and, as a consequence of this distinction, actions for the recovery of land, as opposed to claims for damages, were only available to the freeholder. 3.41 As noted, estates of freehold could be created for different but indefinite durations. For example, an estate could be limited to the life of a person, or could extend for as long as that person had heirs. Hence, A could be granted an interest for A’s life and, subsequently, B could be granted an interest for B’s life, then C could be granted an interest in remainder [page 103] for as long as he or she had heirs.143 This capacity to divide up interests in land on the basis of time (creating successive interests) is what lies at the heart of the doctrine of estates and contributes to the doctrine’s high degree of in-built flexibility; a quality regarded as one of its great virtues. Figure 3.3 details the different categories and subcategories of estates.

Figure 3.3:

Types of estates

Freehold estates 3.42

There are three freehold estates:

1.

the fee simple;

2.

the fee tail; and

3.

the life estate. [page 104]

Fee simple estate 3.43 The fee simple estate is the largest estate in land, in that it lasts the longest. Historically the word ‘fee’ denoted that the estate was heritable (ie, it could be inherited) while the word ‘simple’ denoted that the estate could be taken generally by heirs and was not restricted or limited to a particular line of heirs, as was the case with an entailed fee. An heir inherited automatically on the death of the fee simple holder but the identity of the heir and, therefore, who would actually inherit, was not always a simple matter. It was determined according to a detailed formula of descent which favoured the male rather than female issue of the deceased.144 By the 13th century, and with the passing of the Statute of Quia Emptores 1290, there was another method by which property could pass from one person to another. A new method arose when the law permitted the fee simple holder to alienate (pass) his or her estate inter vivos (ie, during the holder’s own lifetime). One did not have to wait for death for the estate to pass. Originally the fee simple estate only lasted as long as the original grantee was alive or while that original grantee had heirs.145 This remained the case even when the estate had been alienated inter vivos pursuant to the Statute of Quia Emptores. Therefore, it was possible for the estate to evaporate in the hands of the alienee when there were no more heirs of the original fee simple holder. This situation was altered by the 14th century, when the estate in fee simple was permitted to continue as long as the new fee simple holder had heirs. However, it was not until 1540 and the passing of the Statute of Wills that the fee simple holder could avoid having the estate that he or she held at death automatically pass, on death, to his or her heir. When the Statute of Wills 1540 came into operation, it permitted the holder of a fee simple estate to make a testamentary disposition in favour of someone other than an heir. Prior to 1540, however, the creativity of lawyers had to be relied on to achieve a similar effect. In that regard, the development of the ‘use’146 (the trust’s precursor) assisted because it allowed the freeholder to achieve a quasi form of testamentary disposition. Today, the longevity of the fee simple estate is not determined by the availability of heirs. It continues irrespective of heirs. Further, the holder of the fee simple estate can pass his or her estate inter vivos

or can pass it by virtue of testamentary disposition. If the holder of the fee simple dies without a will (ie, intestate), his or her interest will be distributed according to the law of intestacy pursuant to Ch 4 (and particularly Pts 4.2, 4.3 and 4.4) of the Succession Act 2006 (NSW).147 Where ‘an intestate dies leaving no person who is entitled to the intestate estate, the State is entitled to the whole of the intestate estate’ pursuant to s 136 of the Succession Act, although the state may, under s 137 of the Act, [page 105] waive its rights in favour of a dependent or another person who has a just or moral claim, for example. Over time, we have come to see the fee simple estate as the largest known estate and the closest thing to absolute ownership that the doctrine of tenure admits. It is regarded as ‘the most comprehensive estate in land which the law recognises’.148 The fee simple estate can either be absolute, determinable or conditional.149

Fee tail 3.44 The fee tail — or, as it is sometimes called, the ‘estate tail’ or ‘entail’ — is another estate of freehold and inheritance. It was, however, only heritable through a line of lineal heirs. Collateral heirs, such as brothers and sisters, were excluded. It was different from the fee simple in that the sequence of inheritance was defined and restricted (ie, it was not ‘simple’). One purpose of the estate tail was to keep the estate locked into a certain branch of a family.150 A fee tail was expressed in terms such as ‘To Mary and the heirs of her body’. When the line of lineal descendants who could take by virtue of the fee tail had run out, the interest reverted to the donor and his or her heirs. The line of lineal descendants could be further specified by gender if desired, causing only female issue or alternatively male issue to inherit.151 Determinable limitations or conditions subsequent could also be added to restrict grants of fee tail estates.152

Initially, the common law treated fees tail as though they were merely fee simple interests subject to a condition, that condition being that the heirs of the specified class existed. As soon as an heir of the specified class was born, the common law treated the condition as having been satisfied. It followed from this that the interest held was an unfettered fee simple which could be alienated. If the interest could be alienated by the donee or one of his or her heirs, the wishes of the donor could be defeated. Future heirs were deprived of their interest, and the interest did not revert to the donor and his or her heirs on a failure of heirs of the donee. The Statute of De Donis Conditionalibus 1285 rectified this so as to heed the wishes and intention of the donor.153 The statute provided that, in the circumstances outlined above, on the donee’s death, the land should pass to the donee’s issue, but if there were no issue or the line of issue ran out then the land should revert to the donor. Although the holder of the fee tail could still alienate it, that alienation was restricted by the fact that the interest created by the alienation only lasted as long as [page 106] the alienor’s life. When the line of issue ran out, the interest in remainder154 (the fee tail being an interest less than a fee simple) reverted to the donor or, alternatively, passed in remainder to another person who might have been specified. In practice, the fee tail came to be an inalienable estate. Because of this, the tenant in fee found it a less than useful estate, but the large and powerful families, who wished to use the fee tail to tie up wealth in particular family branches, were loath to permit alteration to it. Once again lawyers developed creative responses to overcome the restrictions. In particular, they relied on fictitious procedures and used the common recovery and the fine to bar the rights of the specified line of descendants and anyone taking in reversion or remainder.155 The result was that the fee tail was converted into a fee simple. In Australia, the fee tail was rarely used, partly because our history was that of a traditional Indigenous community meeting with a penal colony. Established wealthy landed families did not form the upper echelon of society in Australia, so there was little need to employ aspects of the law, such as the

fee tail, which preserved the rights of such a group. In New South Wales, the fee tail can no longer be created.156 The result of an attempt to create a fee tail is the creation of a fee simple. Further, s 19 of the Conveyancing Act 1919 (NSW) converted any pre-existing fees tail into fee simple estates, while De Donis Conditionalibus itself was repealed in New South Wales by the Imperial Acts Application Act 1969 (NSW).157

Life estate 3.45 The life estate is an estate of freehold, but it is not an estate of inheritance. The fact that the word ‘fee’ is absent from its name is an indication of this. The life estate ceases on the death of the grantee, and the reversion passes to the grantor or to the tenant in remainder. The life tenant is entitled to possession of the land during his or her lifetime. Possession may take the form of physical possession or possession of rents and profits through leases, licences or agistment. Life estates can either be ordinary or pur autre vie.158 The estates can be subdivided further into absolute, determinable or conditional.159 3.46 Ordinary life estate There are two types of life estates that can be created by express grant (in a settlement or will): (i) the ordinary life estate; and (ii) the life estate ‘pur autre vie’. The former simply arises when a grant is made in the form ‘To A for life’. A receives a life estate; it terminates when A dies. This type of estate is often used in wills [page 107] where the testator does not wish to create an estate of inheritance. For example, where the testator has children from an earlier marriage, and wishes to provide for them in the long term, he or she may grant those children a fee simple estate in remainder, leaving a preceding life estate to his or her second spouse. The life estate is also sometimes used in the context of retirement villages so as to provide security of tenure for residents. It may also exist in the context of a constructive trust. 3.47

Pur autre vie The life estate pur autre vie arises when either:

the original grant measures the life estate against the life of another person rather than the grantee himself or herself, for example, ‘To A during the life of B’; or the present life tenant transfers the life estate. In old French, the words pur autre vie mean ‘through the life of another’. Hence, the life estate exists through the life of another, or is measured against the life of another. The ‘other’ person is not the present holder of the actual life estate. For example, if a grant is made ‘To A for life’ but A then transfers his or her interest to B, B holds an interest only for as long as A lives. At the expiration of A’s life, B’s interest determines (ends), although B might still be living. A is called the cestui que vie160 and B is called the life tenant pur autre vie. Originally, difficulties arose when the tenant pur autre vie (B in the above example) died before the cestui que vie (A in this case). This meant that the person whose life was measuring the life estate, A, was still alive, but the person in whose hands the estate had rested, B, was dead. However, because this was not an estate of inheritance technically the interest could not pass from the tenant pur autre vie, B, to his or her heirs. The way the law dealt with this problem was to treat the land as being without a tenant and, consequently, open to claim by the first person to obtain seisin of it by occupation alone. This approach was known as the doctrine of ‘general occupancy’ because anyone could claim the land. If, however, the grant of a life estate to B was phrased in terms of ‘To B and his heirs for the life of A’, on B’s death B’s heir could enter, but as a ‘special occupant’, rather than an heir.161 In both cases, the term used to describe the processes by which the new tenant took was the ‘doctrine of occupancy’. Since the Statute of Frauds 1677, the doctrine of general occupancy no longer exists. Section 5 of the Wills, Probate and Administration Act 1898 (NSW) provided that life estates pur autre vie were capable of being devised; however, this section was repealed by the Succession Act. Section 4 of the Succession Act permits ‘property to which the person is entitled at the time of the person’s death’ to be devised. This would appear to include a life estate pur autre vie. Presumably, life estates pur autre vie may also pass on intestacy pursuant to s 40 of the now Probate and Administration Act. Naturally, the

life estate pur autre vie still determines when the person whose life is used as the measuring life dies. [page 108] 3.48 Dower This form of life estate was created by operation of law, rather than by express grant. It provided for a widow to receive one-third of her husband’s land for life. The husband had to have been seised of either a fee simple or a fee tail estate and had to have been in possession solely or as a tenant in common during the marriage in order for dower to apply. Finally, it must have been possible for heritable issue of the marriage to have been born. It did not matter that they had not actually been born. If land had been granted ‘To A and the heirs of his body begotten on X’,162 but A had married F and not X, F could not claim dower. Following the Dower Act 1837 (NSW), dower was defeasible by alienation. Further, equitable interests in possession were subject to dower (whereas prior to that Act no dower could be taken out of equitable interests).163 Dower was seen as a means by which women could be provided with security but, in a competition between this objective and the push for fewer restrictions on the free alienability of land, the latter won the day.164 Dower is now obsolete in New South Wales.165 3.49 Curtesy Curtesy describes the life estate that a widower took, by the curtesy of England, on his wife’s death.166 Where the widow (on the basis of dower) was entitled to only one-third of her husband’s property, the widower (on the basis of curtesy) was entitled to the whole of his late wife’s property. In relation to curtesy, equity always followed the law and hence curtesy could be taken out of the widow’s equitable estates. One precondition to the widower taking such a life estate was that his wife must have been entitled to an estate of freehold either solely or by virtue of a tenancy in common, but not by way of joint tenancy. The wife must also have borne live issue who were capable of inheriting the land. Further, the land must not have been disposed of in a will or inter vivos. Since a wife could not alienate her property without her husband’s agreement and could not devise it without her husband’s consent, this requirement could often be satisfied with a little planning.

Curtesy has been abolished in New South Wales, but some of the policy reasons behind dower and curtesy have been incorporated into modern day legislation, such as the Succession Act.167 That Act allows adjustment of the testator’s will to accommodate the interests of parties [page 109] for whom, subject to particular requirements, the court believes it would have been appropriate for the testator to have made some provision.

Doctrine of waste 3.50 The grant of a life estate is different from the grant of a fee simple estate because the grantor of the former retains a continuing interest in the land, which may or may not be disposed of in favour of a third party.168 While the grantee of a life estate will wish to use the land during his or her lifetime, exploiting it to gain profit or advantage, the grantor will have a different agenda. The grantor will wish either to have the land improved, or at least retained in its original condition, so that when it is returned to him or her (or passes in remainder to the person he or she has designated) it will not be devalued. Clearly, the interests of the grantor and grantee of the life estate are not necessarily compatible, and in order to resolve potential conflict the doctrine of waste was developed. Waste in this context means permanently altering the land.169 Initially, the doctrine of waste was applicable only to life estates that were acquired by virtue of dower or curtesy. If waste were committed by a tenant holding pursuant to an express grant, it was not actionable at common law. This was so because it was thought that the grantor of an estate expressly granted, having not availed himself or herself of the opportunity to impose a liability for waste, should bear the consequences.170 The common law position altered as a result of the Statute of Marlborough 1267, a statute received as part of the law of New South Wales and operating today in amended form as s 32 of the Imperial Acts Application Act. Marlbridge, as the statute was sometimes called, made life tenants and tenants for years liable for

waste unless they had a special licence to commit waste. Where a life tenant had a special licence to commit waste, he or she was described as being ‘unimpeachable of waste’. A tenant in remainder who wishes to prevent waste continuing is able to bring an action before his or her own estate vests in possession. The remedies available include an injunction, damages and restitution. An injunction operates to prevent the tenant in possession from committing waste. Damages provide monetary recompense for the harm or loss caused by the waste, and restitution results in a return to the tenant in remainder of the profits gleaned from the waste. At common law, there are three types of waste: (i) permissive; (ii) voluntary; and (iii) ameliorating. There is also the waste that is recognised by a court exercising its equitable jurisdiction. 3.51 Permissive waste Permissive waste occurs when the life tenant permits the property to decay. This is usually demonstrated by allowing the property to fall into a state [page 110] of disrepair.171 A life tenant is not liable for permissive waste unless the instrument which created the life tenancy specifies that the liability to repair falls on the life tenant.172 Hence, if liability is not imposed by the instrument creating the estate, the property is allowed to fall into a state of disrepair without liability attaching;173 for example, ditches do not have to be cleaned out to prevent foundations rotting,174 and buildings do not have to be repaired.175 3.52 Voluntary waste Voluntary waste occurs where there is a positive or deliberate act that results in harm to the property. The consequence of the act means that the tenant in remainder or the reversioner will receive an interest of less value than if the act had not occurred. Examples of voluntary waste include demolishing the internal walls of a house with the result that the character of the house is altered;176 or opening and working a mine that results in the life tenant acquiring more; and the tenant in remainder or the

reversioner acquiring fewer benefits than intended.177 The life tenant will be liable for voluntary waste unless the instrument creating the life estate exempts him or her. This has been so since the commencement of the Statute of Marlborough in 1267.178 It should be noted, however, that even a life tenant who is unimpeachable for waste at common law may still be found liable for equitable waste. 3.53 Ameliorating waste Ameliorating waste describes conduct by the life tenant that improves the land.179 By definition, such cases raise the issue of whether the conduct is indeed properly described by the term ‘waste’.180 Naturally, it is unusual for the tenant in remainder or the reversioner to complain of improvement to the land. Hence, cases of ameliorating waste arise only rarely. Nevertheless, the court did find that ameliorating waste occurred when a disused corn store was converted into dwelling-houses181 and when a farm was converted into intensive market gardens.182 However, in these particular cases it was — and, indeed, generally would be — clearly inappropriate for the court [page 111] to award damages when no loss had been suffered.183 It would also be inappropriate for the court to grant an injunction184 unless there was waste of a ‘substantially injurious nature’.185 One circumstance where it has been suggested that ameliorating waste might conceivably occur and an injunction might be appropriate is where an historical building is demolished to make way for a modern apartment block.186 If the apartment block were more valuable than the historic building then, presumably, the only way the court could find ameliorating waste would be if it were prepared to adjudge the historical building aesthetically superior. Such an exercise would clearly take the court out of its familiar legal terrain and into a sphere where its credentials may be said to be questionable and its skills undeveloped. 3.54 Equitable waste Equitable waste describes the waste that a life tenant is allowed to commit at common law but which equity will restrain. Hence, although a person may, at common law, be regarded as unimpeachable for

waste which has been occasioned by obvious acts of destruction, if equity regards it as unconscionable to commit these acts, it will impose liability for them on the life tenant. Accordingly, a life tenant, who at common law had the right to strip lead, iron, glass and timber from a castle, was found in equity to be liable for waste.187 Further, a tenant who was not liable at common law for felling trees that had provided both shelter and aesthetic appeal was found to be liable in equity.188 Section 9 of the Conveyancing Act provides statutory recognition of the concept of equitable waste. That section also provides that a life tenant can be exempted from liability for waste where the instrument conferring the life estate unequivocally provides for this.

Estates of less than freehold — leasehold Historical development 3.55 Leaseholds are often referred to as estates of less than freehold but, historically, a leasehold was not recognised as an estate in land at all. Technically, it was classified as personalty rather than realty. Consequently, there were some circumstances where the lease was treated differently from other interests in land, which were classified as realty. For example, on intestacy, realty was dealt with by the royal courts which employed feudal principles (such as primogeniture189) but personalty, by contrast, was dealt with by the manorial courts, which, as we learned earlier in this chapter, operated beneath and outside [page 112] feudalism proper. The manorial courts commonly relied on Roman law approaches. Hence, a leasehold on intestacy would be divided equally among the deceased’s next of kin but a fee simple estate would pass to the deceased’s heir. Ultimately, in New South Wales, most of these distinctions fell away, in large part because of the reforms contained in Lang’s Act.190 Categorisation of the lease as personalty also meant that if the lessee were evicted he or she had only contractual remedies against the lessor, for breach of contract.191 The evicted tenant could not recover possession by use of the

possessory remedies, such as the assize of novel disseisin, because use of these remedies was dependent on the tenant having seisin. A leaseholder had possession but did not have seisin. (For the purposes of this discussion, seisin may be seen as possession of a freehold estate.) Bearing in mind the special position that land held in society, it is not surprising that an order for damages, rather than repossession of land, was seen by many leaseholders as an unsatisfactory remedy. 3.56 Developments in the law meant that, by the 15th century, the leaseholder could be protected from third parties, and not merely from the lessor with whom the leaseholder had contracted.192 This protection was provided through the action of ejectment. Although the leaseholder’s occupation came to be as effectively protected as that of the freeholder, it was too late to go back and reclassify a lease as a form of realty. Instead, leasehold interests continued to be categorised as personalty, albeit a type of personalty closely related to land.193 That is why, as perverse as it may seem, technically the hierarchy of estates dictates that a lease of 100 years’ duration remains inferior to a life estate. History aside, in most circumstances today leases are, in practice, no longer seen as inferior to freehold estates. Legislative reforms have assisted the treatment of leaseholds.194 Yet, despite their genesis as personalty, leases have consistently been referred to as ‘estates’.195 This is somewhat anomalous, given that the doctrine of estates does not apply to personalty and, accordingly, at common law there is no facility for interests, such as life estates, to be carved out of leases.196 Hence, at common law, no remainders or reversions [page 113] could exist in leases. Successive interests could only be created by virtue of subleases or with the assistance of equity, through a ‘use’ (which later developed into a trust).197

Key aspects

3.57 A lease necessarily involves a leaseholder (also known as a lessor or landlord/lady) and a lessee (also known as a tenant). A lease grants to the lessee the right of exclusive possession of land for a fixed duration. Leases contain mutual rights and obligations, called covenants.198 For example, the lessee has a right to possess the land during the term of the lease while the lessor has a right to regain possession on expiration of the lease. Other examples of covenants include the lessor covenanting not to interfere with the lessee’s quiet enjoyment of the land. In return, the lessee will usually covenant to pay rent and keep the land in a state of good repair. Most leases contain both implied and express covenants.199 The interest that the lessor is left with after a smaller interest, such as a lease, has been carved out, is known as the ‘reversion’. Put another way, in the context of a lease, the reversion amounts to the lessor’s title minus the lessee’s interest. One of the key discriminators between leasehold and freehold title is duration. A leasehold is said to have a fixed duration based on blocks of time, whereas a freehold has an indefinite duration based on lives.200 In practical terms, this distinction is not always clearly evident. For example, some leases appear to have an indefinite duration, because they do not simply determine (end) on a fixed date. This point will become clearer as we examine the different kinds of leases. There are three main types of leases: 1.

fixed-term tenancy;

2.

periodic tenancy; and

3.

tenancies at will and at sufferance.201

Fixed-term tenancy 3.58 A fixed-term tenancy or lease is one where the starting and ending points are known from the outset. In other words, those points fix the duration of the lease. The dates might be set by reference to the day, month and year, or by reference to other determinants — Christmas or university holidays, for example. Hence, a lease for three weeks, four years, or from Christmas Day until four days after Anzac Day would amount to a fixed-term

lease. That the specific date is not specified at the outset does not matter if the date is ascertainable by reference to some other determinant. [page 114] Further, a fixed-term lease does not require that time runs continuously. Hence, a series of blocks of time can still amount to a fixed-term lease. For example, a lease for the month of January over the next five years would be valid as a fixed-term lease.

Periodic tenancy 3.59 As the name suggests, a periodic tenancy is based on periods of time; for example, one week, one month or one year. This kind of lease is common in residential tenancies. For example, a tenant might first enter a fixed-term lease of one year from a set commencement date and thereafter move to a week-to-week, periodic tenancy. The periodic tenancy does not need to be formally renewed each week. That occurs automatically unless the lessor or lessee brings the tenancy to an end by a breach of covenant or the required notice. Although it is not necessarily obvious in advance when the periodic tenancy will end (because it may be renewed over and over again), it is still considered to be a lease of definite duration. This is because the tenant only has right to possession for the specified period. At the expiration of that period (eg, at the end of the month), the lessor can reclaim possession and bring the lease to an end. Hence, the time when the lease can be brought to an end is known. If the period is not specified in the lease, it can be implied from what is usual in similar circumstances. Non-agricultural leases usually have their periods deduced from the payment periods applicable to the rent.202 For example, if rent has to be paid each week, the lease will be assumed to be a weekly periodic tenancy.203

Tenancies at will and at sufferance 3.60

A tenancy at will occurs when it is understood that possession exists

on the basis that either the lessor or lessee can bring the tenancy to an end at his or her will (or put another way, at any time).204 Although a tenancy at will may be created expressly, it is often implied by law. A tenancy at will commonly arises after a lease of another type (eg, a fixed-term lease) comes to an end and the tenant stays on (holds over) with the consent of the lessor. As noted, the general rule is that the tenancy is brought to an end when either party demonstrates that it is his or her will that the tenancy should end. Yet, somewhat contradictorily, in some circumstances it has been found that the tenancy will not determine until reasonable notice has been given.205 Although the lessee’s possession under a tenancy at will is consensual, and the lessee is able to enforce that possession against the rest of the world, he or she is unable to enforce it against the lessor. In that sense, the tenancy at will does not look like a lease at all; but on [page 115] another view, the requirement of reasonable notice does perhaps make it look rather like a periodic tenancy with only a brief period. A tenancy at sufferance arises when a tenant ‘holds over’ without the lessor’s consent (or dissent). The only difference between a tenant at sufferance and a trespasser is that the tenant at sufferance’s original entry onto the premises was not wrongful.

Words of limitation 3.61 At common law, the rules of conveyancing were very strict, and certain specific words had to be used in order to create the kind of freehold estate one intended. Different words were applicable for a fee simple, a fee tail and a life estate. The phrase ‘words of limitation’ refers to the words which defined the extent of the estate, while ‘words of purchase’ defined the person or persons on whom the estate was conferred. The consequences of a failure to use the correct words could be very severe. For example, the failure to use

the correct words of limitation to create a fee simple would result in the grant being construed as a life estate, by default. 3.62 Historically, the courts treated grants inter vivos and dispositions under a will very differently. The courts were far stricter in regard to grants made inter vivos. In those circumstances, the words of limitation had to be correct and deviations were not tolerated, whereas, in wills, the courts were satisfied if the intention of the testator were clear. In New South Wales, since 1 July 1921, statutory provisions have made rigid compliance with formulaic verbal requirements unnecessary in deeds;206 however, in order to understand the way in which the amending provisions operate it remains necessary to understand which words were historically required for the creation of different estates (ie, which words of limitation were needed.)207 3.63 At this point, it should be noted that the Torrens system has never required adherence to words of limitation in regard to registered interests. Under the Torrens system, title is created by registration and not by properly attested deeds, as is the case under old system title. Further, the Torrens system relies on the registration of a standardised memorandum of transfer to transfer property. The memorandum of transfer simply refers to ‘an estate in fee simple’ without any mention of words of limitation.208 Should a lesser interest, such as a life estate, be the subject of the transfer, the memorandum of transfer is simply amended accordingly so as to reference that type of estate. Again, words of limitation are unnecessary.209 [page 116]

Fee simple and words of limitation 3.64 Disposition inter vivos During the Middle Ages, land was conveyed by ‘feoffment with livery of seisin’. This procedure involved: the passing of the estate; and a ceremony that handed over possession. The ceremony required both parties to be present either on or near the land. A clod of dirt, a twig or the branch of a tree was then handed to the

transferee as a symbolic gesture that the interest had passed hands.210 These acts, together with a declaration of delivery, marked the receipt of seisin. The law, however, also needed a way to distinguish what kind of interest was conveyed. For example, it needed to distinguish between freehold estates, because some (like the fee simple and fee tail) were heritable and others (like the life estate) were not. The way of distinguishing between the estates was by use of the correct words of limitation. 3.65 In order to dispose of a fee simple estate inter vivos at common law, it was essential to use the precise terminology, which included the word ‘heirs’ after the grantee’s name.211 Even the slightest variation from this precise terminology would be fatal. For example, leaving off the ‘s’ and writing ‘To A and his heir’ (instead of ‘To A and his heirs’) was insufficient for the interest to be construed as a fee simple estate.212 In the phrase ‘To A and his heirs’, the words ‘and his heirs’ were called ‘words of limitation’, while the words ‘To A’ delineated the person who was to receive the interest, and were called ‘words of purchase’. Although it may seem counter-intuitive, the words ‘and his heirs’ did not actually give the heirs any interest in the land at all. These words simply set the boundaries of the type of estate that had been created, that is, a fee simple (as noted earlier, a fee simple being an estate that could descend to heirs). Indeed, at the time of the grant or conveyance it was technically impossible for A’s heirs to acquire an interest because an heir cannot be ascertained until such time as the ancestor (the father, uncle or whoever it may be) dies. 3.66 In New South Wales, since 1 July 1920 when the Conveyancing Act came into effect, these rigid requirements have not applied to dispositions inter vivos. Section 47(1) permits the words ‘fee’ or ‘fee simple’ to describe adequately a fee simple estate, and hence the words ‘and his [or her] heirs’ are no longer necessary. Section 47(2) also permits a description of an estate which omits words of limitation entirely to be construed as a fee simple estate, unless a contrary intention can be gleaned from the conveyance. Finally, s 19(1) has the effect of creating a fee simple estate from any attempt to create what would once have created a fee tail estate. 3.67 Testamentary dispositions From 1540 onwards, interests in land could be devised under a will, pursuant to the Statute of Wills 1540. Such

dispositions never required the same rigid adherence to exact phraseology as did dispositions inter vivos. It has been [page 117] suggested that this was because the Statute of Wills permitted a testator to devise land ‘at his free will and pleasure’,213 a phrase which the courts interpreted as requiring a less draconian approach. The will merely had to demonstrate an intention to pass a fee simple estate for a fee simple to be construed. Hence, expressions such as ‘To A in fee simple’ and ‘To A forever’ were regarded as sufficient. By comparison, a phrase such as ‘to A’ was prima facie insufficient to demonstrate that the testator intended creating an estate of freehold that could be freely inherited. In those circumstances, a life estate would be created. Before 1840 in New South Wales, the onus was on the devisee to prove that the testator intended to pass a fee simple estate. However, statutes operating in New South Wales since 1 January 1840 ultimately reversed this onus, so that a disposition that neglects to include appropriate words of limitation will now be construed as a fee simple estate unless a contrary intention is evidenced.214

Fee tail and words of limitation 3.68 Dispositions inter vivos The word ‘heirs’ had to be used to create a fee tail because like the fee simple estate this estate was also one of inheritance. However, the fee tail estate included further words, which had the effect of restricting the line of inheritance to lineal descendants of the grantee. These further words were termed ‘words of procreation’. Hence, in a grant ‘To A and the heirs of his [or her] body’ the word ‘heirs’ indicated that a fee was being created, while the words ‘of his [or her] body’ indicated that the fee was restricted rather than simple. Some flexibility was permitted in regard to the words of procreation. ‘To A and the heirs of her body’, ‘To A and the heirs begotten by her’ and ‘To A and the heirs of his flesh’ were acceptable, but ‘To A and any children borne of A’ was unacceptable because the word ‘heirs’ was

missing, and hence it was impossible to create a fee. Instead, a life estate was created by default. The fee tail estate could be restricted further still so that it passed to lineal descendants on the basis of gender. This was achieved by incorporating the words ‘male’ or ‘female’; for example, ‘To A and the heirs female of his body’. Other words could also be incorporated to ensure that the fee tail passed only to lineal descendants of a specified parentage; for example, ‘To A and the heirs male of his flesh begotten to M’. Clearly, words of procreation were capable of severely restricting the scope of the fee tail estate created.215 In New South Wales, until 1920, when s 19(1) of the Conveyancing Act provided that fee tail estates could no longer be created, words of limitation had to be rigorously complied with. Further, s 19(2) of the same Act converted most entailed estates existing at 1 July 1920 [page 118] into fee simple estates. Any entailed estates that were not caught by this section were ultimately caught by s 19A of the Conveyancing Act, which was inserted by an amendment passed after the Imperial Acts Application Act had been passed. The Imperial Acts Application Act repealed the Statute of De Donis Conditionalibus 1285 from 1 July 1971 onwards; the latter being the statute that had permitted the creation of entailed estates in the first place. 3.69 Testamentary dispositions Consistent with the law regarding the creation of fee simple estates and life estates, the courts did not rigidly enforce the words of limitation where testators sought to create fee tail estates in wills. Hence, expressions that would have been insufficient to pass a fee tail inter vivos were capable of passing a fee tail in a will. For example, ‘To A and his issue’ or ‘To A in fee tail’ were acceptable to pass a fee tail if contained in a testamentary disposition. Section 19 of the Conveyancing Act also applies to fee tail estates purportedly created by a will, as well as to grants and conveyances inter vivos. It deems that an interest that, prior to 1920, would have been a fee tail, is, after 1920, a fee simple estate.216

Life estate and words of limitation 3.70 Dispositions inter vivos Before 1920, if a grantor made a grant using the words ‘To A for life’, a life estate was created. Further, before 1920, if the grantor attempted to create a fee simple but failed to use the proper words of limitation, a life estate was created by default. In New South Wales, since 1920, a life estate can only be created if clear words of intention to create a life estate are evidenced;217 for example, ‘To A for life’. Since 1920, a life estate is no longer the default estate. (As noted earlier, the fee simple now bears this role.) Naturally, if a life estate pur autre vie is being created as a result of a transfer it is not necessary to demonstrate clear words of intention, because a life estate is the only kind of estate that exists to be transferred. 3.71 Testamentary dispositions In New South Wales, since 1840, a will without any words of limitation has been effective to pass a fee simple, unless the rest of the will displays a contrary intention.218 If a party wishes to demonstrate a contrary intention, he or she bears the onus of proof. The burden of ‘proving’ a life estate under a will is easily removed by a clear intention to create a life estate being exhibited; for example, ‘To A for life’ or ‘To A for as long as he or she lives’.219 [page 119]

Equitable estates and words of limitation 3.72 The previous discussion of words of limitation in regard to fee simple estates pertained to common law requirements. Now we consider the position in regard to equitable interests. In order to appreciate this fully, we must understand something of the development of the Court of Chancery and the emergence of equitable interests. 3.73 Equitable interests were only possible because first the King and later the Court of Chancery gave recognition to them.220 Prior to 1875, the common law of England was administered by common law courts such as the King’s Bench and Common Pleas.221 These courts recognised and enforced

rights known as ‘legal’ rights. Bringing actions in the common law courts was often difficult, expensive and time consuming, due largely to a complicated and rigid system of writs. So as to bypass the writ system and in the pursuit of justice, parties began to petition the King directly. Initially, the monarch and his council heard these cases, but in time the task was delegated to the Chancellor, who presided over the Court of Chancery. This court sought to temper the rigours of, and fill the gaps in, the common law. At least initially, the jurisdiction sought to provide a contextualised and individualised form of justice.222 Rights enforced in this court were known as ‘equitable’ rights. Hence, two parallel systems of justice developed: common law, on the one hand, and equity, on the other. 3.74 When the Judicature Act 1873 (UK) was passed, it had the effect of merging the administration of common law and equity. Although separate substantive bodies of law continue to exist in the form of common law and equity, today they are heard by a single court exercising jurisdiction over both.223 3.75 One of the finest developments of the Court of Equity is the trust. It is a device which allows A to hold a legal interest in property while B holds an equitable interest in the same property. The holder of the legal interest is known as the ‘trustee’ and the holder of the equitable interest is known as the ‘beneficiary’. The device permits property to be dealt with in a very flexible manner.224 [page 120] 3.76 Now that we appreciate a little of what is meant by the term ‘equitable interest’, we return to discuss the relationship between words of limitation and equitable interests. Historically, whether or not specific words of limitation were needed for equitable interests depended on whether the trust behind which the equitable interest existed was executed or executory. In this context, an executed trust was one where nothing further needed to be done to create it, while an executory trust required some further instrument to be executed in order for the equitable interests to be defined.225 In regard to

executed trusts, if the trust were drawn in technical language, requirements for the correct words of limitation were strictly enforced. Other sections of the instrument could not be relied upon to interpret the words contained in the limitation. 3.77 If, however, an executed trust was not drafted in technical language, but it was still possible to glean the nature of the intended interest from the instrument creating it, equity was likely to give effect to that intention, even if the correct words of limitation were absent.226 3.78 In regard to executory trusts, equity again displayed flexibility. It was prepared to look for evidence of the settlor’s intention concerning the kind of interest to be created, and it was prepared to uphold this intention despite the absence of the technically correct words of limitation.227 3.79 Since 1920, deeds that create either legal or equitable fee simple estates have not had to comply with the rigid requirements that dictated the use of specific words of limitation.228 However, it has been suggested that if the trust is not created under a deed,229 then the pre-1920 regime may still apply.230

Determinable and conditional interests 3.80 As noted earlier, there are three estates of freehold (fee simple, fee tail and life estate). In this section we focus on the fee simple estate, which can (a) exist absolutely or (b) be modified or limited. A fee simple estate may be limited or modified by a determining event or a condition subsequent. If modified by a determining event, the fee is known as a determinable fee or a determinable interest. If modified by a condition subsequent, the fee is known as a fee defeasible by condition subsequent, a conditional fee or a conditional interest.

Determinable fee 3.81 A determinable fee is limited by a happening that may or may not occur. This uncertainty is unavoidable because a fee simple is, by definition, an estate of indefinite

[page 121] duration. To end the fee definitely at a certain point would cause the interest to become one of a fixed duration. The determining or limiting event marks out the boundary of the determinable fee as shown in Figure 3.4.231 Figure 3.4:

Boundary of a determinable fee

3.82 If the determining event does occur, the fee reverts to the grantor. Hence, in a grant in the form of ‘To A in fee simple until she ceases to reside in Australia’, the fee will automatically revert to the grantor if A does, in fact, cease to reside in Australia. The right of reverter arises immediately and requires no further action. After the grant has been made, but before the determining event occurs, the grantor is said to have a ‘possibility of reverter’.232 It should be noted that this is different from a grantor’s reversion,

because a reversion is held when the grantor has passed or created an interest less than a fee simple. For example, ‘To A for life’ gives the grantor a reversion. [page 122] If the determining event becomes impossible to satisfy, then the determinable fee will blossom into an absolute fee. 3.83 In the past, a fee simple could not be created after a determinable fee. For example, it was not possible to make a grant such as, ‘To A and his heirs until A buys a motorbike, and then to B and his heirs’. In this case, B was unable to take an interest even when A had bought a motorbike. Nowadays, s 50(1) of the Conveyancing Act permits the possibility of reverter to be considered an alienable right inter vivos. If the ability to alienate, previously found in s 5 of the Wills, Probate and Administration Act, has been imported into s 4(1) of the Succession Act, the possibility of reverter will also remain alienable by virtue of a disposition in a will. If a determinable life estate has been created, it is possible to follow this gift with another that would come into effect should the determining event occur; for example, ‘To A for life or until she gets a tattoo, and then to B and his heirs’. When a determining event is found to be void, the whole grant will fail, because the determining event cannot be severed from the grant, it being inherently part of the estate itself. 3.84 Certain words are regarded as being indicative, but not definitive, of a determinable interest. These are: while; during; until; so long as; and for as long as.233

Fee simple defeasible by condition subsequent 3.85 An interest limited by a condition subsequent is sometimes called a ‘defeasible’ fee or a ‘modified’ fee. These terms refer to an estate in fee that is subject to a condition subsequent. A condition subsequent, rather than defining the parameters of the interest, is regarded as a specified event that cuts short an already otherwise defined interest. The condition subsequent is not ingrained in the boundary of the interest. It is merely an extra limitation that, if satisfied, will limit the already defined estate. 3.86

Cheshire and Burn state that:

… if the terminating event is an integral and necessary part of the formula from which the size of the interest is to be ascertained, the result is the creation of the determinable interest; but if the terminating event is external to the limitation, if it is a divided clause from the grant, the interest granted is an interest upon condition.234

[page 123] 3.87 If the condition subsequent should occur, the grantor has a right of reentry,235 but the grantor can decide himself or herself whether he or she wishes to exercise this right. It could be the case that, although the condition subsequent has been fulfilled and the grantee’s interest could be brought to an end, the grantor decides not to exercise his or her right. If the grantor does exercise the right of re-entry he or she must either physically retake possession or rely on a court order to regain possession.

Figure 3.5:

Fee simple defeasible by a condition subsequent

3.88 Certain words are regarded as being indicative, but not presumptive, of a conditional interest. These are: on condition that; provided that; and but if.236 3.89 Should the condition subsequent fail because it is found to be void, it can be severed leaving the rest of the grant intact. It is not possible to create a fee simple after a conditional fee, because the fee has already been passed to the grantee. The fact that the condition subsequent, if satisfied, will cut short the interest does not alter the fact that the whole fee has already been granted and cannot be granted again. Nowadays, however, the grantor’s right of re-entry can be alienated according to statutory provisions.237 [page 124]

Historically it was not possible to create a remainder after a conditional life estate. Hence, it would not have been valid to make a grant in the following terms: ‘To A for life but, if he gets divorced, to B and her heirs.’ This would have been construed as a remainder cutting short the life estate. Such a grant then would have offended one or more of the remainder rules.238 Nowadays, a grant of this nature could be affected by putting it behind a trust, which would cause an equitable future interest in B to be created.

Void limitations and conditions 3.90 The classification of the divesting event results in different consequences where that divesting event is found to be void. If a void divesting event is classified as a determinable limitation, the whole grant will fail; but if it is classified as a condition subsequent, the offending condition subsequent may be severed, leaving the rest of the grant intact. Limitations have been found to be void for a number of reasons, including: denying the power to alienate; being against public policy (eg, for immorality or illegality); being directed against the course of action that is prescribed by law; and for uncertainty. 3.91 A condition cannot remove the power to alienate because the power to alienate is generally regarded as being enshrined in ownership, and to deny this power would be to deny a fundamental indicium of ownership.239 In Re Dugdale,240 the court affirmed the view that a general restraint on alienation was void. Hence, ‘To A and her heirs but, if she attempts to sell the property, then to B and his heirs’ would be void. The law is less clear where the limitation places only a partial restriction on alienation. 3.92 In Trustees of Church Property of the Diocese of Newcastle v Ebbeck,241 the High Court found that a clause which required a son and his wife to profess the Protestant faith in order to receive the benefit of a residuary estate, although not void for uncertainty, was void on the grounds of public policy. According to Dixon CJ, on the facts, the disposition created a tension between the wife’s (Roman Catholic) religious beliefs and a serious temporal interest of her husband. If the wife could not, or would not, desert her religious beliefs, the limitation provided an inducement to him to desert the marriage.

3.93 In Clayton v Ramsden,242 a grant in the following terms was found to be void for uncertainty: ‘I give my residuary estate to my daughter provided that if she at any time after my death marries a person who is not of Jewish parentage and of the Jewish faith [page 125] her interest is to cease.’ The term ‘Jewish faith’ was held to be too nebulous. However, in Blathwayt v Baron Cawley243 a condition that referred to what should occur if the donee were to ‘become a Roman Catholic’ was upheld and was not found to be uncertain. It is the ‘certainty of concept’ and ‘not ease of application’ that is at the heart of invalidity for uncertainty.244 Meanwhile, in Ellaway v Lawson245 the court found a condition stating that that the applicant would not receive a bequest until (a) she divorced her husband or (b) her husband died, was not a void condition. By applying Ramsay v Trustees Executors and Agency Co Ltd,246 the court concluded that the standards of ordinary and decent persons would prevent such conditions from providing an incentive for divorce.

Future interests 3.94 As we have seen, the doctrine of estates recognised that successive interests in land can exist. It, therefore, lays the groundwork for the recognition of future interests. By recognising that a grantor could grant an interest that was less than the one he or she held, the doctrine was compelled to recognise that something would be left over and retained by the grantor. If the grantor in so doing denied himself or herself a right to present possession (this being held by the holder of the lesser interest), it became possible to see interests in land as either present interests or future interests. 3.95 A present interest entitled the grantee to an immediate right to possession, use and enjoyment of the land. A future interest, on the other hand, delayed or postponed that right to possession to some time in the future. If the interest were a present interest, it was not subject to the technical and

complicated rules to which a future interest was subject. Initially the common law recognised two types of future interests: 1.

the reversion; and

2.

the remainder. In both cases, the right to possession of the land arose in the future.

Reversion 3.96 As noted at 3.57, the reversion is what the grantor is left with after he or she has granted or carved out an estate less than the one he or she originally held.247 For example, if the grantor holds a fee simple estate but grants only a life estate to another, the grantor is left with the fee simple estate minus the life estate. That residue has come to be known [page 126] as the reversion. A reversion, although a present right in some ways, does not give a right to present possession. The right to present possession rests with the holder of the life estate. The reversion allows the grantor to take possession of the land some time in the future. In that sense, the reversion is a future interest. Thus, if G, the fee simple holder, grants ‘To A for life’, G has carved out a lesser interest for A in the form of a life estate. What is left in the hands of G, the grantor, is the reversion. There is no need for the grantor to grant the reversion specifically to himself or herself. It arises automatically by operation of law. A reversion is not the same as the grantor’s reverter that comes into play if the limitation in a determinable fee occurs. Neither is a reversion the same as the grantor’s right of re-entry, which arises when a condition contained in a conditional fee occurs. The reason for this is that the grantor has already passed the whole fee. He or she has not carved out an interest less than a fee that is passed to the grantee, while simultaneously holding a residue for himself or herself.

The holder of a reversion has a present right to future enjoyment of the land and, in that sense, is said to have a future interest.

Remainder 3.97 A remainder is the interest in a grant which is to be taken by a grantee in the future, after the interest in possession has come to an end. For example, in a grant ‘To A for life, remainder to B and her heirs’, A has a present interest in possession, and B has an interest in remainder — in fact, a fee simple estate in remainder. Although B has a present right, his or her right to possession is in the future and, hence, the remainder is regarded as a future interest in that sense. He or she has no immediate right to possession. B must wait until A dies, some time in the future, before B can take possession and use and enjoy the land. If B is dead by the time A dies, B’s estate will be entitled to possession.248 There is no limit on the number of remainders in a grant. Hence, it is possible for G to grant ‘To A for life, to B for life, to C for life and to D and her heirs’.249

Vested and contingent remainders 3.98

Remainders can either be vested or contingent.

Vested 3.99 An interest may be ‘vested in interest’ or ‘vested in possession’, or vested in both interest and possession. If vested in both interest and possession, it is classified as a present interest, because the grantee is able to use and enjoy the land immediately. If, however, [page 127] the interest is vested in interest, but not possession, it is a future interest, the right to use and enjoy the land being postponed until the future. As we have seen above, reversions are vested in interest, but while the life-estate holder is

alive they are not vested in possession. A remainder will not necessarily be vested in interest. It may be a vested remainder but alternatively it may be a contingent remainder.

Contingent 3.100 A contingent interest gives no interest at all (either in interest or possession) until certain conditions precedent are satisfied. For example, if G grants ‘To A for life, then to B and her heirs’, the remainder to B is vested in interest but not possession until A dies. Nevertheless, B has nothing further to do but to wait until A dies (or, expressed legally, B only has to wait for the natural determination of the prior particular estate). If, however, G grants ‘To A for life, then to B and her heirs when she graduates in law’, A has an interest (a life estate) which is vested both in interest and possession, while B does not have any interest at all until she graduates in law. Until that point, B only has the prospect or possibility of an interest. When B graduates in law, then, if A is still alive, B will have an interest (a fee simple) which has vested in interest but not in possession. When A dies, if B has graduated in law, B will have a fee simple which is both vested in interest and in possession. At common law, B could not assign her possibility of an interest (ie, her expectancy). Nowadays, statutory provisions in New South Wales and other states do permit the assignment of such an expectancy.250 3.101 For a future interest to be regarded as vested rather than contingent, the tenant in remainder (B in the example above) must be clearly identifiable and there must be nothing else for him or her to do other than wait for the life-estate holder to die. 3.102 Even when an interest is vested, it is possible in some circumstances for it to be divested either partially or completely. For example, if G grants ‘To A for life, remainder to such of A’s issue as A shall appoint, and in default of an appointment among all A’s children in equal shares’, the remainders to the children in equal shares are vested, subject to being divested to the extent of any appointment made by A.251 3.103 As we will see in Chapter 10, there are occasions when the wording of the grant makes it difficult to tell whether the interest is vested or

contingent. Where this is the case, the courts will favour finding the remainder vested if at all possible. 3.104 At common law, the legal contingent remainder rules dictated when a legal contingent remainder was valid. These rules could be easily offended and, hence, were not a very efficient way of ‘tying up’ interests in land and directing the behaviour of the grantee — which, of course, was their purpose. [page 128]

Legal remainder rules 3.105 As we have noted, medieval landowners were keen to acquire land but were anxious that it not fall out of the family’s hands. Therefore, once land had been acquired grantors tried to impose restrictions on grantees. For example, grantees were commonly directed towards marrying certain people. Grantors relied heavily on legal contingent remainders to direct the course of conduct of grantees. However, when the contingent remainder offended the remainder rules, the remainder failed and the grantor’s objective went unfulfilled. When we speak of contingent remainders in this context, we are concerned with contingencies that precede the vesting of the estate in interest, not the vesting of the estate in possession. The four legal contingent remainder rules were as follows: 1.

A remainder after a fee simple estate was void. For example, the remainder ‘To A and his heirs and then to B and his heirs’ was void, because the fee simple had already been granted (to A) and the grantor could not give (to B) what the grantor did not have to give.

2.

Any remainder that cut short the prior particular estate252 was void. For example, in the remainder ‘To A for life but, if A becomes a Catholic, then to B and her heirs’, B’s remainder was void and A still took a life estate.

3.

Any remainder that, if it were to take effect, would leave a gap in seisin was void. For example, in the grant ‘To A for life, remainder to B and her heirs when she (B) has a baby’, there was a potential gap in seisin. B

might not have had a baby by the time A died, so there was the possibility of a gap in seisin. Hence, the remainder to B was void and A took a life estate. 4.

A remainder must be supported by a prior particular estate of freehold created by the same interest. For example, in the grant ‘A lease to A for 10 years, remainder to B and her heirs’, B’s remainder was void, because A’s interest was a leasehold and not a freehold estate.

The basis of these rules was mainly to ensure that the person who held seisin could be established, because it was on the basis of seisin that feudal incidents were levied. Even if remainders avoided falling foul of the legal contingent remainder rules, remainders could be artificially destroyed. As a result, the grantor’s attempts to control behaviour (and along with it, land) were again thwarted.253 Alternative means for the protection of remainders were sought by landowners and once the ‘use’ was developed it became a favoured tool serving this end.254 Putting remainders behind a use had [page 129] the effect of creating equitable interests that did not offend the legal contingent remainder rules.

Legal executory interests 3.106 A legal executory interest is another type of legal, future, contingent interest; but, unlike the legal remainders we have considered thus far, it could only be created after the passing of the Statute of Uses 1535. Similarly, legal executory interests created in a will were possible only after the passing of the Statute of Wills 1540. The development of equity generally — and, more specifically, the use — is discussed in Chapter 6. It is enough for present purposes to understand that the common law, with its doctrines of tenure and estates, was insufficient to cater for the changing needs and tolerances of society. For example, as we

have noted, before the Statute of Wills, freeholders were frustrated by their inability to dispose of their estates on death to whomsoever they chose. More generally, they also resented the feudal dues and incidents that were payable on the death of a freeholder (and at other times). Further, they were dissatisfied with the public and formal requirements incumbent on a party wishing to convey land.255 In response to these concerns, the Court of Chancery256 (later Equity) developed the ‘use’, which, as we have observed, was a precursor to the modern-day trust. Placing an interest behind a use resulted in one party (today known as the trustee) holding legal title to the land, while another party (nowadays known as the beneficiary) received an equitable title in the same land. Hence, if B were the freeholder, he or she would structure the conveyance in the following form: ‘To A and his heirs to the use of B and his heirs’. In this example, A is called the ‘feoffee to uses’ (later, the trustee) and B the ‘cestui que use’257 (later, the beneficiary). According to such a conveyance, A held the legal title to the fee simple estate and B held the equitable title to the same fee simple estate. If A refused to acknowledge that he or she held the interest to the use or benefit of B, B could not seek redress at common law, because B’s interest was not recognised at common law. B had to seek the assistance of the Court of Chancery. There, the Chancellor would have asked A if it did not bother his or her conscience not to recognise B’s interest. (If A found that it did not bother his or her conscience, imprisonment often provided the opportunity to rethink the matter.) 3.107 Putting a conveyance behind a use brought many advantages. For example, it had the effect of avoiding the feudal dues usually payable on the death of B, as in the above example. Assuming B conveyed his or her interest to two or more joint feoffees to use, then, as long as the number stayed above two, the interest in land would not have to pass by inheritance, on the death of a feoffee to uses. Instead, it would vest in the remaining feoffees by survivorship, and feudal taxes and burdens would not be payable. Further, if the cestui que use, B, conveyed himself or herself an interest for life behind a use and then

[page 130] granted an interest in remainder to C in fee simple, the effect was to avoid feudal incidents on B’s death and to pass the property to C as might a will. The legal remainder rules (which, we have observed, caused many legal remainders to fail) were not applicable to equitable future (ie, successive) interests. One significant reason allowing equitable future interests to escape the net of the remainder rules lay in the fact that the Court of Chancery was not concerned with the issue of seisin. Under the use, the feoffee to uses held seisin and as his or her estate was one recognised by the common law, the Court of Chancery felt able to operate outside the strictures of the common law remainder rules. 3.108 However, one effect of conveyancers employing the use was a loss of revenue for the King. Unhappy about this outcome, a response came from the King in the form of the Statute of Uses 1535. That statute converted what would have been an equitable interest arising under the use into a legal interest. It was said to ‘execute’ the use. Hence, the situation can be summarised like this: Before 1535. A remainder that simply said ‘To A for life at 21 years’ was void, because A might not reach 21 years before the natural determination of the prior particular estate, and hence there would be a gap in seisin. If, however, the grant in remainder were placed behind a use and it said, ‘To B and her heirs, to the use of A for life at 21 years’ then, before 1535, A’s life estate in remainder would have been equitable and not subject to the remainder rules. A would have had an interest which sprang up when A reached 21 years, at which time the Court of Equity would have enforced that interest against B, the holder of the legal fee simple. After 1535. The Statute of Uses converted A’s equitable life estate into a legal life estate. After 1535, B (in the example above) received no interest at all. Further, where A had not reached 21 years, the grantor held the legal estate (by way of resulting trust) until such time as A reached 21 years. In cases involving what would have been, prior to the Statute of Uses, a shifting interest, the situation was a little more complex. To explain, if the

grant were in the form of ‘To A and his heirs to the use of B and his heirs, but if C graduates in medicine then to the use of C and his heirs’, an issue arose in the post-Statute of Uses era, of how the interest could shift from B to C. If the original use in favour of A had been executed and the legal title existed in B, not A, it was not possible for A to be seised to the use of C should C ultimately graduate in medicine. This difficulty was overcome by somewhat contentiously interpreting the above grant as having allowed A to retain a ‘scintilla’ of title, on which the statute could rely, so permitting the vesting of the fee simple estate in C when C graduated in medicine. 3.109 One of the key issues to be dealt with was whether this new kind of legal interest — created by virtue of the Statute of Uses and known as a ‘legal executory interest’258 — was subject to the legal remainder rules. Broadly speaking, the answer was in the negative. However, there were some exceptions, the most notable being the rule [page 131] in Purefoy v Rogers,259 which stated that, where a gift contained in a grant to uses or a will was at all capable of complying with the legal remainder rules, then it was to be treated as a legal contingent remainder and not as a legal executory interest.260 The result was that the legal contingent remainder would fail if there were a gap in seisin; for example, even though the interest had been created behind a use, or was contained (after 1540) in a will.

Current position on remainder and executory interests 3.110 In New South Wales, the relevant statutory provisions applying to remainder and executory interests are ss 16(1) and 44(2) of the Conveyancing Act. The situation is also affected by the Imperial Acts Application Act (effective 1 January 1971). Section 16(1) Conveyancing Act states that: A contingent remainder existing at any time after the commencement of this Act shall be capable of taking effect notwithstanding the want of a particular estate of freehold to support it in the same manner as it would take effect if it were a contingent remainder of an equitable estate supported by an outstanding legal estate in fee simple.

This section clearly aims at preventing a legal contingent remainder from failing for want of a prior particular estate. 3.111 Unclear drafting leaves the section open to two interpretations. First, the legal contingent remainder could be treated from the outset as though it is actually an equitable contingent remainder. The result would be to save the contingent remainder but it would, nevertheless, be subject to the rule against perpetuities, which may cause it ultimately to fail.261 Alternatively, the legal contingent remainder, if validly created, could be interpreted as existing until the prior particular estate determines. If, on the determination of the prior particular estate, the contingency has not been met, the legal contingent remainder is then treated as though it were an equitable contingent remainder. Again, this approach subjects the remainder to the rule against perpetuities, but doctrinally it is arguably ‘purer’ in that it keeps the remainder subject to the legal contingent remainder rules for as long as possible.262 3.112 Section 44(2) of the Conveyancing Act also modifies the earlier common law position in New South Wales. It states that: Every limitation which may be made by way of use operating under the Statute of Uses or this Act may be made by direct conveyance without the intervention of uses.

The aim of this section is obviously to bypass the need to put springing and shifting limitations behind a use in order to save them from the legal remainder rules. Hence, after s 44(2) was passed and before 1971, when the Statute of Uses was repealed, a conveyance [page 132] in the form of: ‘To A and her heirs in fee simple, but if A buys a motor bike to B in fee simple’ would have been valid. However, s 44(2) of the Conveyancing Act is drafted as though it is still possible to make limitations under the Statute of Uses, which of course is no longer the case. Yet, if the repeal of that statute means that no limitation may now be made ‘by way of a use operating under the Statute of Uses’ (because without the Statute there is no such thing), it is arguable that the grant in favour of B, in the example above, would be void. Why? Because if the

Statute of Uses is no longer valid, nor is s 44(2), and the limitation without the protection of s 44(2) would offend the legal remainder rule prohibiting a grant after a grant in fee simple. Such an interpretation of the operation of s 44(2) has the effect of thrusting the law in this area back into the pre-1535 position. 3.113 On the other hand, it could be argued that s 44(2) of the Conveyancing Act was drafted in accordance with the law that was valid in 1920 and that law included the Statute of Uses. Hence, the section is to be read as if the Statute of Uses were still valid. If this were done, the grant to B would not fail. Despite the obvious uncertainty surrounding the interrelationship of s 44(2) and the repeal of the Statute of Uses, the issue has never been litigated.263

Reform 3.114 A brief discussion of Zapletal v Wright264 and Andrews v Parker265 serves to demonstrate why the law of conditional and determinable interests is in need of reform. Although not a High Court case, Zapletal is worth considering because it serves to demonstrate the practical difficulties encountered in characterising an interest as determinable or conditional in circumstances when the limitation is void. In that case, the (female) plaintiff and the (male) defendant lived together for 15 years. During that time, they had two children and bought land in joint names with the money that had been provided by the defendant. The man agreed to put title in their joint names but subject to the limitation that, if the plaintiff (woman) left him, her interest would terminate. During the time they lived together, the plaintiff contributed extensively to household expenses. Ultimately, the plaintiff left the defendant. She then claimed the property should be sold and that she was entitled to half of the proceeds available. If the limitation were found to be void for immorality because it encouraged the plaintiff to continue living in a de facto rather than a de jure marriage, the characterisation of the fee as either determinable or defeasible/conditional assumed great significance. To explain, if the interest were determinable, the whole grant would fail and the plaintiff would

[page 133] receive nothing; but if it were conditional, the offending limitation could be severed and the plaintiff would retain her share in the property. The court found the interest to be a conditional one, stating: … 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 … 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.266

3.115 Parker raised similar issues, concerning the characterisation of an interest, in the Queensland Supreme Court. There, the plaintiff (male) and defendant (female) lived together in a house owned by the plaintiff, who transferred title of the house to the defendant on her agreement that if she ever returned to her husband, she would re-transfer the property to the plaintiff. She did not leave the house to return to her husband. Instead, the husband moved into the house as well, and the defendant then asked the plaintiff to move out. He did. Later, the plaintiff took proceedings to recover the property. He was met with the defendant’s claim that the limitation restricting her from returning to her husband was void for immorality. The court held that the gift was in the form of an interest defeasible by a condition subsequent but that the condition subsequent was not designed to induce immorality because it did not induce the woman to live apart from her husband. She had already made that choice. Stable J noted that ‘[s]ocial judgements of today upon matters of “immorality” are as different from those of the last century as is the bikini from the bustle’. Without citing Zapletal, the court found that the plaintiff was entitled to a reconveyance of the property that he had transferred to the defendant because she was more blameworthy in the matter than he was. These cases serve to demonstrate how the consequences of the categorisation may be of great significance; however, in practical terms, the characterisation of an interest as either determinable or conditional seems to rest largely on semantics.267 (Does the grant use the words ‘while’, ‘during’, ‘until’ or ‘for as long as’, or does it use ‘but if’ or ‘provided that’?) Such an

approach emphasises form rather than substance, which does not seem to reflect modern trends in judicial interpretation. 3.116 Following from this, it may well be the case that categorisation as either a determinable or conditional interest could result in discrimination, particularly when the limitations relate to marriage (including same-sex marriage) or religion, for example. It would appear that this area of the law is ripe for reform and, indeed, has been so for some time — at least according to one judge, who as early as 1892 said that the distinction [page 134] between conditional and determinable interests was ‘little short of disgraceful to our jurisprudence’.268 Cases such as Zapletal and Parker acknowledge that gifts can be used in terrorem. This may be repugnant morally, but not legally. Perhaps an alternative and better way of dealing with these issues may be within the framework of constructive trusts, where it is possible to adjust the interests of parties according to accepted equitable doctrines or extensions of those doctrines, rather than within the parameters of conditional and determinable interests. 3.117 Another area that is arguably in need of reform is the doctrine of tenure itself. In this chapter, we have highlighted how the Mabo v Queensland (No 2) (Mabo (No 2))269 decision afforded the doctrine a significance beyond that which it deserves. Since Mabo (No 2), there have been calls for the doctrine’s abolition in the Australian context. Hepburn has put a cogent argument for this, and has suggested replacing the doctrine with an allodial system of land holding for Australia.270 Interestingly, the Law Reform Commission of New Zealand came to the same conclusion for New Zealand in its 1992 report Tenure and Estates in Land.271 Although the Commission’s conclusions have not been implemented, it is arguable that Australia should consider the abolition of the doctrine of tenure. In particular, it would be useful to consider the models used in several states of the United States, where allodial systems of land holding have existed since the time of Thomas

Jefferson despite the fact that that country’s legal system was born (like Australia’s) out of an English legal heritage.272 3.118 In conclusion, this chapter examined some of the fundamental principles underpinning New South Wales property law. It outlined the common law principles relating to the reception of English law into Australia and, in particular, examined two key English property law imports: the doctrines of (i) tenure and (ii) estates. In order to understand the doctrine of estates more fully, it examined the historical development of estates and interests and the rules pertaining to them. Accordingly, one purpose of the chapter was to enrich understandings of the operation of modern property law by familiarising readers with the relevant terminology and the development of concepts and principles, and to introduce them to areas in which law reform is needed. However, another purpose of the chapter was to provide a platform from which those readers interested in legal history may pursue further research and investigation.

1.

Mabo v Queensland (No 2) (1992) 175 CLR 1; 107 ALR 1 (Mabo (No 2)).

2.

See N Pearson, ‘The Concept of Native Title at Common Law’ in Land Rights — Past, Present and Future, Northern and Central Land Councils Conference, Darwin and Alice Springs, 1996, pp 118– 23. Note that native title has also been held to apply to some aspects of water: Commonwealth v Yarmirr (2001) 208 CLR 1. See also V Marshall, Overturning Aqua Nullius: Securing Aboriginal Water Rights, Aboriginal Studies Press, Canberra, 2017, which argues that Aboriginal water rights require legal recognition as property.

3.

See J Webber, ‘Beyond Regret: Mabo’s Implications for Australian Constitutionalism’ in D Ivison, P Patton and W Sanders, Political Theory and The Rights of Indigenous Peoples, Cambridge University Press, Cambridge, 2000, p 61. Discussion of this point may be found at 4.36–4.50; P Lane, ‘The End of Property As We Know It’ (2000) 8 APLJ 1; R Bartlett, ‘The Proprietary Nature of Native Title’ (1998) 6 APLJ 77; J Gray, ‘Is Native Title a Proprietary Right?’ (2002) 3 Murdoch eLaw Journal, (accessed 21 March 2011), .

4.

See Fejo v Northern Territory (1998) 195 CLR 96 at 128–30; Yanner v Eaton (1999) 201 CLR 351 at [75]–[76] per Gummow J.

5.

Fejo v Northern Territory (1998) 195 CLR 96 at 128; Yanner v Eaton (1999) 201 CLR 351 at [75]– [76].

6.

S Dorsett, ‘“Since Time Immemorial”: A Story of the Common Law Jurisdiction, Native Title and the Case of Tanistry’ (2002) 26 MULR 32 at 33 notes that it is important to remember that ‘native title is not really a descriptor of Indigenous relationships to country, but a category of White law’. See B Edgeworth, ‘The Mabo “Vibe” and its Many Resonances on Property Law’ in S Brennan, M Davis, B Edgeworth and L Terrill (eds), Native Title From Mabo to Akiba: A Vehicle for Change and

Empowerment?, The Federation Press, Sydney, 2015. 7.

This is not to suggest that native title is the same as a tenured estate. As the material in Chapter 4 demonstrates, native title is, in some ways, an inferior title to that of a tenured estate. Yet it would be incorrect to see native title as simply as another form of land holding.

8.

For a discussion of the history of the common law, see T F T Plucknett, Concise History of the Common Law, 5th ed, Butterworths, London, 1956. For an abbreviated version, see also S Dorsett, ‘“Since Time Immemorial”: A Story of the Common Law Jurisdiction, Native Title and the Case of Tanistry’, note 6 above.

9.

W Blackstone, Commentaries on the Laws of England, 14th ed, T Caddell and W Davies, London, 1803, p 107. See also A C Castles, An Australian Legal History, Law Book Co, Sydney, 1982, pp 9– 13.

10.

The Privy Council’s memorandum from an anonymous case indicates the acceptance of these international constitutional principles justifying the application of English common law to new territories. See Anonymous (1722) 2 P Wms 75 at 75–6; 24 ER 646 at 646. See also M Walters, ‘British Imperial Constitutional Law and Aboriginal Rights: A Comment on Delgamuukw v British Columbia’ (1992) 17 Queens Law Journal 350 at 359–63. See also S Hepburn, ‘Disinterested Truth: Legitimation of the Doctrine of Tenure Post-Mabo’ (2005) 29 MULR 1.

11.

See U Secher, ‘The Reception of Land Law into the Australian Colonies Post-Mabo: The Continuity and Recognition Doctrines Revisited and the Emergence of the Doctrine of Continuity Pro Tempore’ (2004) 27(3) UNSWLJ 703; U Secher, ‘The Doctrine of Tenure in Australia PostMabo: Replacing the “Feudal Fiction” with the “Mere Radical Title Fiction” — Part 1’ (2006) 13(2) APLJ 107.

12.

Blackstone, Commentaries on the Laws of England, note 9 above; Attorney-General v Brown (1847) 1 Legge 312; Cooper v Stuart (1889) 14 App Cas 286.

13.

Cooper v Stuart (1889) 14 App Cas 286 at 291; Attorney-General v Brown (1847) 1 Legge 312 accepted that Australia was terra nullius and, hence, the principle of settlement was applied.

14.

Mabo v Queensland (No 2) (1992) 175 CLR 1; 107 ALR 1 overturned the terra nullius doctrine in the Australian context.

15.

Brennan J noted in Mabo v Queensland (No 2) (1992) 175 CLR 1 at 31; 107 ALR 1 at 20 that the issue of sovereignty was not justiciable in a municipal court (and that issue is linked to the issue of acquisition). See also U Secher, ‘The Mabo Decision — Preserving the Distinction Between “Settled” and “Conquered or Ceded” Territories’ (2005) 24 UQLJ 36.

16.

See Mabo v Queensland (No 2) (1992) 175 CLR 1 at 81; 107 ALR 1 at 60, where Deane and Gaudron JJ commented that if the High Court were starting afresh ‘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’.

17.

Eg, much English water law found its way into Australian water law despite the fact that English rivers are often wide with deep banks while Australian rivers commonly have shallow banks and dry up altogether on occasions throughout the year. See Gartner v Kidman (1961-62) 108 CLR 12 at 23 per Windeyer J. See also A Gardner, R Bartlett and J Gray, Water Resources Law, LexisNexis Butterworths, Sydney, 2009, p 151.

18.

9 Geo IV c 83.

19.

Of course, over time, the body of ‘received’ law did not remain static. It was altered and modified

by judge-made law, along with the local statutes of the colony (including Commonwealth statutes after Federation in 1901). For a discussion of the impact of imperial statutes, see H B Bignold, Imperial Statutes in Force in New South Wales, Law Book Co, Sydney, 1914, Vol 2, pp 10–17; A Castles, ‘The Paramount Force of Commonwealth Legislation since the Statute of Westminster’ (1962) 35 ALJ 402; P Butt, Land Law, 6th ed, Lawbook Co, Sydney, 2010, pp 3–4. 20.

Attorney-General v Brown (1847) 1 Legge 312; Cooper v Stuart (1889) 14 App Cas 286; Mabo v Queensland (No 2) (1992) 175 CLR 1; 107 ALR 1; Wik Peoples v Queensland (1996) 187 CLR 1; 141 ALR 129.

21.

F Pollock and F W Maitland, The History of English Law (Before the Time of Edward I), 2nd ed, Cambridge University Press, Cambridge, 1924, Vol 1, p 232.

22.

Pollock and Maitland, The History of English Law, note 21 above, p 232.

23.

‘Seisin’ was originally a term used to denote possession alone, but it later came to denote possession of a freehold estate. According to K Gray and S Gray, Elements of Land Law, 5th ed, Oxford University Press, Oxford, 2008, p 151: Seisin expressed an organic element in the relationship between tenant, land and lord, and came to provide presumptive evidence or entitlement within the medieval framework of rights in land. Moreover from the 15th century onwards, seisin was the technical term used to ‘denote the completion of that investiture, by which the tenant was admitted into the tenure; and without which, no freehold could be constituted or pass’ (Taylor d Atkyns v Horde (1757) 1 Burr 60 at 107, 97 ER 190 at 216 per Lord Mansfield). Note that the judgments of Cockburn CJ and Mellor J in Asher v Whitlock (1865) LR1QB 1 indirectly raise the issue of whether retaining the difference between seisin and possession, in the context of an action to recover land, is necessary.

24.

P Anderson, Passages from Antiquity to Feudalism, Verso Editions, London, 1978; Plucknett, Concise History of the Common Law, note 8 above, pp 509–15. For useful discussion of feudalism, see also R A Brown, Origins of English Feudalism, Barnes and Noble, New York, 1973.

25.

F Maitland, Domesday Book and Beyond, Cambridge University Press, Cambridge, 1897.

26.

G S W Barrow, Feudal Britain: The Completion of the Medieval Kingdoms 1066–1344, Edward Arnold Ltd, London, 1956, p 43. Before the Norman invasion, land in England was held as folkland, bookland, laenland (ie, leasehold) or allodial land. Only laenland appears to have involved holding ‘of’ the landlord in return for performing services. None of the other methods of landholding involved either (a) holding ‘of’ the king or (b) by way of the intercession of a lord as part of a tenurial system.

27.

Barrow, Feudal Britain: The Completion of the Medieval Kingdoms 1066–1344, note 26 above, pp 42– 3.

28.

For an interesting discussion of Crown grants, see K McNeil, Common Law Aboriginal Title, Oxford University Press, 1989, pp 84–5. McNeil explains that many of the titles did not, in practice, originate in a Crown grant. He suggests that the survival of the Anglo-Saxon system of stripholding, together with the fact that the Domesday survey’s purpose was to determine who held what lands of whom (an inquiry it probably would have been unnecessary to make if everyone had simply held of a Crown grant anyhow), demonstrates that it was untrue to say that all land originated in a Crown grant. See also W Holdsworth, A History of English Law, 1st–7th eds, Methuen, Sweet and Maxwell, London.

29.

R Lennard, Rural England 1086–1135, Clarendon Press, Oxford, 1959, pp 25–6; cited in P Butt, Land Law, 5th ed, Lawbook Co, Sydney, 2006, p 3.

30.

There is reason to believe that William did not take all land for himself (before he went on to grant land to his subjects). It is thought that some land remained outside the King’s hands. Indeed, it has been suggested that for some time there existed a dual system of land titles. On one hand, there was the land held by the Anglo-Saxons who had not resisted William and were, therefore, permitted to retain their pre-existing interests. Co-existing with this land was the land that had been confiscated by William and redistributed among his followers. It would seem that this dual system operated for some time but, by 1788, the English doctrine of tenure had chosen to disregard the duality and instead operated on the basis that all land had vested in the Crown. The Crown then proceeded to grant the land to subjects. See Barrow, Feudal Britain: The Completion of the Medieval Kingdoms 1066–1344, note 27 above, p 43. Barrow’s view would seem to conflict with Blackstone’s: Blackstone, Commentaries on the Laws of England, note 9 above, pp 50–1. Blackstone said 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”. At any rate, it is clear that the ‘modern’ definition of tenure, which relies on a Crown grant, is a fiction. According to Gummow J in Wik Peoples v Queensland (1996) 187 CLR 1 at 172; 141 ALR 129 at 223, this modern definition of tenure seemed to provide justification of imperial expansion. These views are also affirmed in Holdsworth, A History of English Law, note 28 above.

31.

This was a process which invested a person with land by means of public delivery. It involved a ceremony called ‘livery of seisin’. See 3.64.

32.

C Harpum, S Bridge and M Dixon, Megarry and Wade: The Law of Real Property, 8th ed, Thomson Reuters, London, 2012, p 24.

33.

Later English law did accommodate an exception to the rule that no subject could acquire property unless it had previously been held of the Crown and alienated by the Crown. The Crown Suits Act 1769 (Imp) (the Nullum Tempus Act) permitted a subject to bar the Crown from recovering possession of land that the Crown had owned but never alienated, provided that the subject had enjoyed possession adversely to the Crown for a period of 60 years. This meant that the Crown could now be disseised of land and the adverse possessor’s seisin could result in him or her holding a fee simple estate in land which had not previously been the subject of a Crown grant.

34.

Allodialism is the direct ownership of land without holding through the Crown or one of the Crown’s lords. Having said that allodial title is not part of the common law approach to land holding, there are actually some small pockets of allodially held land still in existence today. See 3.31.

35.

For this and further interesting examples of feudal incidents, see R Megarry, Miscellany-at-Law: A Diversion for Lawyers and Others, Stevens and Sons Ltd, London, 1955, p 155. See also A W B Simpson, A History of the Land Law, 2nd ed, Clarendon Press, Oxford, 1986.

36.

See Plucknett, Concise History of the Common Law, note 8 above, pp 531–3.

37.

The services associated with socage tenure included ploughing the King’s or lord’s land on an allocated number of days per year or raising a flag annually.

38.

Chattels or personalty were not subject to such restrictions because they were held allodially, or absolutely.

39.

The solemn ceremony by which the tenant became bound to the lord. The ceremony involved the tenant placing his hands between the lord’s and swearing his (not usually her) allegiance.

40.

The oath taken by the tenant in homage. It effectively amounted to an oath of fidelity in which the tenant swore to perform feudal obligations.

41.

The obligation of the tenant to attend and participate in cases heard by the lord in his court.

42.

The rendering of financial assistance to the lord on occasions such as those delineated in this chapter.

43.

The right of the King on the death of a tenant holding directly of the King to take possession of the land until homage was performed and relief rendered. Relief was the lord’s right to money payable by the tenant when the heir succeeded. This generally amounted to one year’s value of the land. In the case of primer seisin, the lord in question was the King himself.

44.

The process by which a male heir (under 21 years of age) and female heir (under 14 years of age, if married, and 16 years, if unmarried) became wards of the lord of whom the land was held. This right permitted the lord to hold and use the land for his own purposes until the wardship came to an end on attainment of the ages specified above. Further, the lord also had control over when and whom the ward could marry. If the ward refused to marry the person designated as ‘suitable’, the lord could levy a payment amounting to the value of the marriage. If the ward married without the permission of the lord, the ward had to pay double the amount of the value of the marriage.

45.

The process by which the land reverted to the intermediate lord or the Crown when a tenancy came to an end. Property usually escheated because there was no heir to continue the tenancy or because the tenant committed a crime and was sentenced to death. These explanations are largely taken from Harpum, Bridge and Dixon, Megarry and Wade: The Law of Real Property, note 32 above, pp 31–32. Escheat is discussed at 3.17.

46.

See Harpum, Bridge and Dixon, Megarry and Wade: The Law of Real Property, note 32 above, p 25.

47.

Barrow, Feudal Britain: The Completion of the Medieval Kingdoms 1066–1344, note 26 above, p 43.

48.

Historically, land was predominantly held by men and accounts of feudalism reflect this. Presumably, however, if land were held by women, the tenant would have sworn to become the lady’s man, devoting himself to the lady’s service.

49.

For detailed information on tenants in chief, see Barrow, Feudal Britain: The Completion of the Medieval Kingdoms 1066–1344, note 26 above, p 43.

50.

Villeins were villagers who usually owned strips of land in one or more of the village’s three fields. Cottars were the workers who actually tilled the soil. It is also interesting to note that ‘villain’ is a variant of the word ‘villein’, from the Old French ‘vilein’.

51.

See, eg, the Inclosure Act 1773 (UK). In common usage, the term is ‘enclosure’.

52.

For the effects of enclosure on the poor, see also Oliver Goldsmith’s poem ‘The Deserted Village’ (1770) and George Crabbe’s poem ‘The Village’ (1783).

53.

Later enclosure of the fields forced the rural poor to migrate to industrialised cities to seek work. As those cities became more heavily populated and the availability of work became scarce, crime rates rose. In turn, authorities sought a new place to incarcerate the rising criminal class and, ultimately, they settled on Australia as the site of an antipodean prison.

54.

Each lord of the manor could impose different services and rules in relation to the running of the village. Hence, variation was rife.

55.

For simplicity, seisin may be seen as possession of freehold title. See earlier discussion in note 23 above at 3.9.

56.

Harpum, Bridge and Dixon, Megarry and Wade: The Law of Real Property, note 32 above, p 26, comment that ‘At first, the villein tenant was literally a tenant “at will”’. A tenant at will’s interest is not assignable. The only way a villein could transfer his or her interest was to surrender that interest to the lord on trust and to admit to the alienee. The alienee was admitted at a session of the manorial court and the alienee’s name was copied onto the court rolls. Hence, this provides another explanation of why villeinage became known as ‘copyhold tenure’.

57.

The statute did not apply to life estates of fees tail, nor did it bind the Crown. Although it is widely thought that subinfeudation was never part of Australian law, Butt, Land Law, note 19 above, p 84, observes that a variant of subinfeudation may exist in relation to some land.

58.

The following example was taken from an earlier version of Halsbury’s Laws of Australia, looseleaf, LexisNexis, Australia, 28.1, ch 2, [10]: If Albert held the land from Lord Havelock, and Albert alienated all or part of the land to Brian, Brian stood in Albert’s shoes. Brian now held directly from Lord Havelock; no new subtenancy between Albert and Brian could be created. See also Halsbury’s Laws of Australia, looseleaf, LexisNexis, Australia, 355 — Real Property, I Introduction — Real Property, (1) Historical Foundation of Real Property in Australia, (E) Doctrine of Tenure — Real Property, [355-70].

59.

Eg, propter delictum tenentis applied where the tenant was convicted of a crime and sentenced to death. See T Cyprian Williams, ‘The Fundamental Principles of the Present Law of Ownership of Land’ (1931) 75 Sol Jo 843 at 844–6 for further examples.

60.

Further simplification of tenures occurred when knight service was commuted to a monetary equivalent known as ‘scutage’, ie, shield money.

61.

A D Hargreaves and B A Helmore, Introduction to the Principles of Land Law, Law Book Co, Sydney, 1963, p 35. Inflation was rife in the 16th and 17th centuries.

62.

Movement in this direction was assisted by the rule that, where there is no evidence to the contrary, a tenant will be deemed to hold land directly of the King. See Harpum, Bridge and Dixon, Megarry and Wade: The Law of Real Property, note 32 above, pp 29–30; Re Lowe’s Will Trusts [1973] 1 WLR 882.

63.

Described in note 44 above.

64.

12 Car 2 c 24.

65.

Frankalmoign and copyhold were not converted to socage tenure. The honorary services associated with grand serjeanty were specifically retained, as were the services incidental to socage (eg, those of petty serjeanty). See Hargreaves and Helmore, Introduction to the Principles of Land Law, note 61 above, p 36. In England today, some land is still held by virtue of serjeanty, eg, the Dukes of Marlborough and Wellington hold the land that was formerly granted to their ancestors by ‘the service of bringing a small flag to Windsor on the anniversaries of Blenheim and Waterloo respectively’. See C F Colbert and N A M Mackay, History of Scots and English Land Law, Geographical Publications Ltd, Hertfordshire, 1977.

66.

Forfeiture was a right of the Crown dependent upon the royal prerogative (compare tenure) to seize the lands of a person who had committed high treason.

67.

The Statute of Wills 1540 permitted testamentary disposition.

68.

J Williams, Principles of the Law of Real Property, 1st ed, Sweet & Maxwell, London, 1880.

69.

T Cyprian Williams, ‘The Fundamental Principles of the Present Law of Ownership of Land’ (1931) 75 Sol Jo 843 at 843.

70.

Williams, ‘The Fundamental Principles of the Present Law’, note 69 above, p 843.

71.

With the introduction of the Succession Act 2006 (NSW), the Wills, Probate and Administration Act was renamed the Probate and Administration Act 1898 (NSW). The Succession Act covers both testamentary dispositions and intestacy. Meanwhile, the renamed Probate and Administration Act has a more limited focus and, as the name suggests, is concerned with the mechanisms that facilitate or enable distribution of the estate (ie, probate and administration). For wills made prior to the commencement of the Succession Act, see ‘Transitional Provisions’ in Sch 1 Pt 2 of that Act.

72.

Bona vacantia is ownerless property. For a discussion of the general principles of bona vacantia, see N Ing, Bona Vacantia, Butterworths, London, 1971.

73.

See Re Middle Harbour Investments Ltd [1977] 2 NSWLR 652; Sandhurst Trustees Ltd v 72 Seventh Street Nominees Pty Ltd (in liq) (1998) 45 NSWLR 556; National Australia Bank Ltd v New South Wales (2009) 260 ALR 115.

74.

P Fry, ‘Land Tenures in Australian Law’ [1946–47] Res Judicatae 158 at 169, quoted by Kirby J in Wik Peoples v Queensland (1996) 187 CLR 1 at 243; 141 ALR 129 at 279.

75.

Wik Peoples v Queensland (1996) 187 CLR 1; 141 ALR 129.

76.

Wik Peoples v Queensland (1996) 187 CLR 1 at 90; 141 ALR 129 at 156.

77.

Instructions to Governor Macquarie, Historical Records of Australia, (hereafter HRA), Pt 1, Vol II, p 193. The instructions to Sir Thomas Brisbane were in similar terms: see HRA, Pt 1, Vol X, p 599.

78.

The best land was valued at 10 shillings an acre, the worst at five shillings: Lord Bathurst to Brisbane, 30 May 1823, HRA, note 77 above, Pt 1, Vol XI, p 87.

79.

See HRA, note 77 above, Pt 1, Vol XI, p 87. See also Stanley to Governor Bourke, 28 September 1833, HRA, Pt 1, Vol XVII, p 219; Governor Bourke to Rice, 8 February 1835, HRA, Pt 1, Vol XVII, p 650; Government Gazette, 9 October 1846; Grey to Fitzroy, 30 June 1847, HRA, Vol XXV, p 643.

80.

Wik Peoples v Queensland (1996) 187 CLR 1; 141 ALR 129.

81.

Wik Peoples v Queensland (1996) 187 CLR 1 at 174; 141 ALR 129 at 224 per Gummow J.

82.

The pastoral lease also represents a modification of the doctrine of estates, in that it deals with a modification to an interest in land; an interest which can be explained by virtue of a categorisation based on temporal fragmentation. It is, nevertheless, discussed at this point because of the references by both Fry (see note 74 above) and Gummow J (in Wik Peoples v Queensland (1996) 187 CLR 1 at 174; 141 ALR 129 at 224) to the development of new tenures.

83.

Wik Peoples v Queensland (1996) 187 CLR 1 at 109; 141 ALR 129 at 171 per Toohey J.

84.

The early governors could make grants by virtue of the powers under their commissions. See Randwick Municipal Corporation v Rutledge (1959) 102 CLR 54 at 71; 5 LGRA 127.

85.

It should be noted that the law of New South Wales became the law of Queensland (until repealed) when Queensland became a separate colony in 1859. Queensland also had the facility to cope with the movement of squatters.

86.

Wik Peoples v Queensland (1996) 187 CLR 1 at 109; 141 ALR 129 at 171 per Toohey J.

87.

Wik Peoples v Queensland (1996) 187 CLR 1 at 109; 141 ALR 129 at 171 per Toohey J.

88.

P Fry, ‘Land Tenures in Australian Law’ [1946–47] Res Judicatae 158 at 160, quoted by Toohey J in Wik Peoples v Queensland (1996) 187 CLR 1 at 109; 141 ALR 129 at 171.

89.

Wik Peoples v Queensland (1996) 187 CLR 1 at 109; 141 ALR 129 at 171–2.

90.

P Fry, ‘Land Tenures in Australian Law’ [1946–47] Res Judicatae 158 at 160–1, quoted in Wik Peoples v Queensland (1996) 187 CLR 1 at 110; 141 ALR 129 at 172.

91.

Stewart v Williams (1914) 18 CLR 381 at 390, quoted in Wik Peoples v Queensland (1996) 187 CLR 1 at 174; 141 ALR 129 at 224.

92.

Wik Peoples v Queensland (1996) 187 CLR 1 at 174; 141 ALR 129 at 224.

93.

This phrase is used by Griffith CJ: see Stewart v Williams (1914) 18 CLR 381 at 390. Griffith CJ also used the term ‘fancy tenures’ (at 390).

94.

A C Millard and G W Millard, The Law of Real Property in New South Wales, 3rd ed, Law Book Co, Sydney, 1923, p 5.

95.

See L Godden, ‘Wik, Feudalism, Capitalism and the State: A Revision of Land Law in Australia’ (1997) 5 APLJ 2.

96.

Wik Peoples v Queensland (1996) 187 CLR 1 at 108; 141 ALR 129 at 170 per Toohey J.

97.

For an account of this, see P McDermott, ‘Wik and Doctrine of Tenures: A Synopsis’ in G Hiley (ed), The Wik Case, Butterworths, Sydney, 1997, p 35.

98.

Wik Peoples v Queensland (1996) 187 CLR 1 at 112; 141 ALR 129 at 173 per Toohey J.

99.

R v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327; 44 ALR 63.

100. R v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327 at 344; 44 ALR 63 at 76. 101. Wik Peoples v Queensland (1996) 187 CLR 1 at 112; 141 ALR 129 at 173–4. 102. Wik Peoples v Queensland (1996) 187 CLR 1 at 243–4; 141 ALR 129 at 279. 103. Formally known as the Real Estate of Intestates Distribution Act 1862 (NSW) (26 Vic No 20). The effects of the Act are described in A Buck, ‘Torrens Title, Intestates and the Origins of Australian Property Law’ (1996) 6(2) APLJ 93. 104. Eg, in New South Wales estates tail were abolished. See the discussion of entailed estates at 3.44. 105. Hargreaves and Helmore, Introduction to the Principles of Land Law, note 61 above, 1963, p 3. 106. Hargreaves and Helmore, Introduction to the Principles of Land Law, note 61 above, pp 3–4. See also Butt, Land Law, note 19 above, p 6. 107. When the Statute of Westminster 1931 (UK) came into effect and the Statute of Westminster Adoption Act 1942 (Cth) was passed, this was no longer possible. However, somewhat peculiarly, British Parliamentary supremacy still applied to state legislation. See also the Australia Act 1986 (UK). 108. This was followed up by the Australia Act 1986 (Cth). 109. Wik Peoples v Queensland (1996) 187 CLR 1 at 177; 141 ALR 129 at 226. 110. Harpum, Bridge and Dixon, Megarry and Wade: The Law of Real Property, note 32 above, p 24. 111. As quit rents were not an incident in the English sense, the only incident of note in Australia was escheat. Escheat for a felony was abolished by the Criminal Law Amendment Act 1883 (NSW). Escheat on intestacy or for lack of devisees was abolished by the Administration of Estates Act 1954

(NSW). Even escheat pertaining to bankruptcy was replaced by a statutory power to disclaim: see the Bankruptcy Act 1966 (Cth). See also Sandhurst Trustees Ltd v 72 Seventh Street Nominees Pty Ltd (in liq) (1998) 45 NSWLR 556. Sandhurst held that, where a landowner’s trustee in bankruptcy or liquidator disclaims land under the statutory power, the land escheats to the Crown. The High Court in National Australia Bank Ltd v New South Wales [2009] 260 ALR 115 cited Sandhurst but did not apply it. In obiter, the court held that title would not escheat absolutely to the Crown where the court was able to vest the title in someone else (in that case, National Australia Bank). 112. Mabo v Queensland (No 2) (1992) 175 CLR 1 at 47; 107 ALR 1 at 33. 113. Mabo v Queensland (No 2) (1992) 175 CLR 1; 107 ALR 1. This case is discussed in detail in Chapter 4. See also B Edgeworth, ‘Tenure, Allodialism and Indigenous Rights at Common Law: English, United States and Australian Land Law compared after Mabo v Queensland’ (1994) 23 Anglo-American Law Review 397. 114. E Jenks, The History of the Australasian Colonies, Cambridge University Press, Cambridge, 1895, p 59, quoted in Wik Peoples v Queensland (1996) 187 CLR 1 at 187; 141 ALR 129 at 234 per Gummow J. 115. Hargreaves and Helmore, Introduction to the Principles of Land Law, note 61 above, p 18. See J Devereaux and S Dorsett, ‘Towards a Reconsideration of the Doctrines of Estates and Tenures’ (1996) 4 APLJ 1. 116. Attorney-General v Brown (1847) 1 Legge 312; 2 SCR (NSW) 30. 117. Mabo v Queensland (No 2) (1992) 175 CLR 1 at 48; 107 ALR 1 at 34. 118. This issue is explored in Edgeworth, ‘Tenure, Allodialism and Indigenous Rights at Common Law’, note 113 above. 119. For example, in Hegarty v Ellis (1908) 6 CLR 264, Higgins J used the term ‘quasi-Crown lands’ to identify those areas where there had been conferred a tenure short of a fee simple. See Wik Peoples v Queensland (1996) 187 CLR 1 at 174; 141 ALR 129 at 224. 120. Wik Peoples v Queensland (1996) 187 CLR 1 at 175; 141 ALR 129 at 225. 121. Wik Peoples v Queensland (1996) 187 CLR 1 at 175; 141 ALR 129 at 225. 122. Mabo v Queensland (No 2) (1992) 175 CLR 1 at 48; 107 ALR 1 at 34. 123. For a discussion of native title’s relationship to the common law, see S Dorsett, ‘Since Time Immemorial: A Story of Common Law Jurisdiction, Native Title and the Case of Tanistry’ (2002) 26 MULR 32. See also S Hepburn, ‘Feudal Tenure and Native Title: Revising an Enduring Fiction’ (2005) 27 Syd LR 49. 124. Mabo v Queensland (No 2) (1992) 175 CLR 1 at 16; 107 ALR 1 at 8. See Chapter 4 for a discussion of what constitutes native title. 125. Attorney-General v Brown (1847) 1 Legge 312. 126. Milirrpum v Nabalco (1971) 17 FLR 1. Sovereignty is the overarching right to make laws for a country. 127. Radical title is ultimate or final title. 128. See K McNeil, Common Law Aboriginal Title, Oxford University Press, Oxford, 1989, p 85; Barrow, Feudal Britain: The Completion of the Medieval Kingdoms 1066–1344, note 26 above, p 43. See also Lennard, Rural England 1086–1135, note 29 above. 129. Some lands in the Shetland and Orkney Islands continued to be held after the Norman Conquest.

These are noted by Brennan J in Mabo v Queensland (No 2) (1992) 175 CLR 1 at 46; 107 ALR 1 at 32 where he cites, among other things, Bell, Lectures on Conveyancing, Edinburgh, 1867, Vol 1, pp 531–2. 130. Crown Suits Act 1769 (Imp). 131. Blankard v Galdy (1693) 2 Salk 411 at 412; 91 ER 356 at 357. 132. Hepburn, ‘Disinterested Truth: Legitimation of the Doctrine of Tenure Post-Mabo’, note 10 above. 133. Mabo v Queensland (No 2) (1992) 175 CLR 1; 107 ALR 1. 134. Attorney-General v Brown (1847) 1 Legge 312; 2 SCR (NSW) 30. Eg, Butt claims that ‘[i]n Australia, the concept of one person holding of another under the hierarchical landholding structures developed in medieval times, was unknown’: P Butt, Land Law, note 19 above, p 83. Similarly, A R Buck says that ‘[b]y 1863 … feudal principles were eschewed from the land and from the idea of property in New South Wales’: ‘The Ghost of Feudalism: Law and the Idea of Property in NSW, 1788–1863’, Master of Arts (Economics) Thesis, University of Newcastle, February 1994. 135. For further consideration of these issues in the New Zealand context, see the New Zealand Law Reform Commission preliminary paper, Tenure and Estates in Land, No 20, June 1992. 136. Mabo v Queensland (No 2) (1992) 175 CLR 1 at 80; 107 ALR 1 at 59. 137. For a brief introduction to estates, see B Edgeworth, C Rossiter, P O’Connor and A Godwin, Sackville and Neave Australian Property Law, 10th ed, LexisNexis Butterworths, Sydney, 2016, p 168. 138. See Stokes v Costain Property Investments Ltd [1983] 1 WLR 907 at 909 for comment on the nature of what a tenant ‘owns’. 139. See K Gray, ‘Property in Thin Air’ (1991) 50 Cam LJ 252. 140. F H Lawson, The Rational Strength of English Law, Stevens and Sons Ltd, London, 1951, p 87, quoted in A P Moore, S Grattan and L Griggs, Bradbrook, MacCallum and Moore’s Australian Real Property Law, 6th ed, Thomson Reuters/Lawbook Co, Sydney, 2016, p 57. 141. Harpum, Bridge and Dixon, Megarry and Wade: The Law of Real Property, note 32 above, p 37. 142. Butt, Land Law, note 19 above, p 104, suggests that, although the term ‘estate’ has been applied to leaseholds since the time of Littleton, this terminology is not strictly speaking correct because at common law a leasehold cannot be divided up into life estates or entailed estates. 143. A remainder is a future interest in that it vests in possession at some time in the future. It does, however, vest in interest immediately. 144. See R E Megarry and H W R Wade, The Law of Real Property, 5th ed, pp 540–42; cited in Harpum, Bridge and Dixon, Megarry and Wade: The Law of Real Property note 32 above, p 38, for the 10 rules that were used to determine an heir; Simpson, A History of the Land Law, note 35 above, pp 57–63; Butt, Land Law, note 19 above, p 114. See also Clay v Karlson (1998) 19 WAR 287. 145. See Harpum, Bridge and Dixon, Megarry and Wade: The Law of Real Property, note 32 above, p 39. 146. The use is discussed in Chapter 6. 147. See explanation at note 70, above. 148. Amodu Tijani v Secretary, Southern Nigeria [1921] 2 AC 399 at 403 (Privy Council). 149. Determinable and conditional interests are discussed later in this chapter at 3.80. 150. Butt, Land Law, note 19 above, p 137, cites Plucknett and Simpson in support of the view that the

fee tail had its origins in the maritagium or marriage settlement. He suggests that the fee tail was designed to benefit the daughter of the donor, her husband and their issue. 151. See 3.68. 152. See discussion of determinable and conditional interests later in this chapter at 3.80. 153. De Donis Conditionalibus was received law on ‘settlement’ in Australia. See Allison v Petty (1899) 9 QLJ 125 at 129. 154. Remainders are discussed later in this chapter at 3.97. 155. For an account of how these actions worked, see Harpum, Bridge and Dixon, Megarry and Wade: The Law of Real Property, note 32 above, pp 72–74; Butt, Land Law, note 19 above, pp 140–2; M A Neave, C J Rossiter and M A Stone, Sackville and Neave Property Law: Cases and Materials, 5th ed, Butterworths, Sydney, 1994, p 171. (Note that this is not discussed in the 10th edition of Sackville and Neave Australian Property Law, published in 2016. See note 137 above.) 156. This is the same in Queensland, Victoria and Western Australia. 157. It was also repealed in Queensland and Victoria. The effect has been to give greater weight to the statutory provisions dealing with fees tail. 158. This term is explained at 3.47. 159. See 3.80–3.93 for definitions and discussion of these terms. 160. Old French for ‘he who lives’. 161. The person was prevented from entering as an heir because the estate was not one of inheritance. On special occupancy, see Re Underwood Estate Acts and Account (No 2) (1888) 9 LR (NSW) (Eq) 105 at 111. 162. See Harpum, Bridge and Dixon, Megarry and Wade: The Law of Real Property, note 32 above, p 50. 163. Historically equity did not follow the law in relation to dower. See Chaplin v Chaplin (1773) 3 P Wms 229, which involved a trust estate. 164. A Buck, ‘Women, Property and English Law in Colonial New South Wales’ in D Kirby (ed), Law and History in Australia, La Trobe University, Melbourne, 1987, Vol IV; M L Fellows, ‘Wills and Trusts: The Kingdom of the Fathers’ (1991) 10 Law and Inequality 137 at 146–50. Interestingly, there was no dower on copyhold tenures, but in many manors there was a custom for widows to have freebench, which was similar to dower. See Harpum, Bridge and Dixon, Megarry and Wade: The Law of Real Property, note 32 above, p 50. 165. Conveyancing Act 1919 (NSW) s 21. See also Probate and Administration Act 1898 (NSW) s 52. For a more detailed account of dower, see Butt, Land Law, note 19 above, pp 149–50. 166. See E Coke, Coke Upon Littleton, 19th ed, with notes by F Hargraves and C Butler, 1832 (Co Litt); cited in Harpum, Bridge and Dixon, Megarry and Wade: The Law of Real Property, note 32 above, p 78. Harpum, Bridge and Dixon observe (at p 29) that ‘Littleton’s Tenures was first printed in or about 1481; Sir Edward Coke’s commentary was first published in 1628)’. 167. Section 52 of the Probate and Administration Act denies a right of dower and curtesy, but Pt 3 of the Succession Act permits adjustments to wills on the basis of a range of circumstances. 168. The interest that the grantor retains is called the reversion, discussed at 3.96. 169. West Ham Central Charity Board v East London Waterworks Co [1900] 1 Ch 624 at 635. Waste means altering the nature of land so as either to improve or harm it. See Co Litt 53a, b, note 166 above.

170. Woodhouse v Walker (1880) 5 QBD 404 at 406. 171. The issue of permissive waste is not relevant to leasehold tenancies because statute imposes a covenant that requires the tenant to maintain the property in good repair. See Chapter 11. 172. Powys v Blagrave (1854) 4 de GM & G 448; 43 ER 582. 173. Re Cartwright; Avis v Newman (1889) 41 Ch D 532 at 536; Sclanders v Cole (1918) 18 SR (NSW) 216 at 217. 174. Sticklehorne v Hatchman (1586) Owen 43. 175. Meux v Cobley [1892] 2 Ch 253. 176. Marsden v Edward Heyes Ltd [1927] 2 KB 1 at 8. 177. Saunders’ Case (1599) 5 Co Rep 12A; 77 ER 66; Spotswood v Hand (1874) 5 AJR 85. Note that if the mine were already working, then continuing to work it would not be classified as permissive waste because the grantor would have intended the life tenant to carry on enjoying the profits of the mine. See Dashwood v Magniac [1891] 3 Ch 306 at 306–61 per Lindley, Bowen and Kay LJJ. 178. See Imperial Acts Application Act 1969 (NSW) s 32. 179. Doherty v Allman (1878) 3 App Cas 709; Meux v Cobley [1892] 2 Ch 253; Hockley v Rendell (1909) 11 WALR 170. 180. Jessel MR in Jones v Chappell (1875) LR 20 Eq 539 at 542 said that ‘in order to prove waste you must prove an injury to the inheritance’. 181. Doherty v Allman (1878) 3 App Cas 709. 182. Meux v Cobley [1892] 2 Ch 253. 183. Damages are a common law remedy which provide monetary recompense for harm suffered. Damages have made a foray into the equitable jurisdiction through the operation of what have become known as ‘Lord Cairns’ damages’. 184. An injunction is a remedy of the Court of Equity and either mandates or prevents certain acts. 185. Doherty v Allman (1878) 3 App Cas 709. 186. Butt, Land Law, note 19 above, p 156. 187. Vane v Lord Barnard (1716) 2 Vern 738; 23 ER 1082. 188. Gage v Bulkeley (Packington’s Case) (1744) 3 Atk 215; 26 ER 925; Marker v Marker (1851) 9 Hare 1 at 17; 68 ER 389 at 396; Turner v Jackson (1856) 1 VLT 127; Weld-Blundell v Wolseley [1903] 2 Ch 664. The exception to this rule lay where it was necessary to cut down trees to preserve the remaining trees. See Baker v Sebright (1879) 13 Ch D 179. 189. Primogeniture caused the eldest son to take to the exclusion of his siblings. 190. Real Estate of Intestates Distribution Act 1862 (NSW). 191. For a discussion of this, see Harpum, Bridge and Dixon, Megarry and Wade: The Law of Real Property, note 32 above, p 40. Chambers points to the re-emergence of the contractual aspects of the lease, particularly by reference to the Residential Tenancies Act 1987 (NSW) and the importance that commercial tenancies have assumed: R Chambers, An Introduction to Property Law in Australia, 3rd ed, Sydney, Lawbook Co, Sydney, 2013, p 111. Note that the Residential Tenancies Act 1987 (NSW) has now been repealed and replaced by the Residential Tenancies Act 2010 (NSW).

192. The development of the remedy of trespass as relevant to leaseholders is complex. See Plucknett, A Concise History of the Common Law, note 8 above, pp 369–73. 193. Harpum, Bridge and Dixon, Megarry and Wade: The Law of Real Property, note 32 above, p 40. The authors (by reference to Littleton) also note that when leases became fully protected by the law of property they became estates but that it was too late for them to be reclassified. Note also that leaseholds are categorised as ‘chattels real’. 194. Eg, Real Estate of Intestates Distribution Act 1862 (NSW) (Lang’s Act). 195. See Harpum, Bridge and Dixon, Megarry and Wade: The Law of Real Property, note 32 above, p 40. 196. In New South Wales, ss 68 and 69 of the Conveyancing and Law of Property Act 1898 (NSW) make an exception to the common law position and permit a life tenant to create a lease for a period of 10 years. 197. See Chapter 6. 198. See Chapter 11 for a fuller discussion of leases. 199. See Chapter 11. 200. Chambers makes this simple but nice point: Chambers, An Introduction to Property Law in Australia, note 191 above, p 111. 201. The categories of leases outlined here are explored in more detail in Chapter 11. 202. Agricultural leases are often for one year so that crops can be harvested. 203. See Dockrill v Cavanagh (1944) 45 SR (NSW) 78. 204. Commonwealth Life (Amalgamated) Assurance Ltd v Anderson (1945) 46 SR (NSW) 47. 205. Grundel v Registrar-General (1990) 5 BPR 11,217 at 11,222, where a six-month notice period was needed for termination of a tenancy at will involving an elderly tenant who had been in occupation for 12 years. 206. Conveyancing Act 1919 (NSW) s 47(1). 207. Eg, interpreting s 47 of the Conveyancing Act (discussed below at 3.66) requires an understanding of the material in 3.65. 208. See Chapter 8. 209. There is a divergence of views on whether before 1920, it was necessary to use words of limitation in relation to unregistered interests under the Torrens system. See P Butt, Land Law, 4th ed, Thomson Legal and Regulatory Ltd, Sydney, 2001, p 108. 210. The ceremonial handing over of possession was called ‘livery of seisin’. 211. Simpson, A History of the Land Law, note 35 above, p 52. 212. Re Davison’s Settlement [1913] 2 Ch 498. 213. See Butt, Land Law, note 19 above, p 130. 214. In 1840, New South Wales adopted ss 28 and 34 of the English Wills Act 1837 (Imp). These were later embodied in s 24 of the Wills, Probate and Administration Act 1898 (NSW). In turn, s 24 of the Wills, Probate and Administration Act is now embodied in s 38(1) of the Succession Act, which deletes mention of the specific kind of estate and simply states: A disposition of real property to a person without words of limitation is to be construed as passing the whole estate or interest of the testator in that property to that person.

215. The fee tail estate was a helpful tool of social engineering. Refer to Chapter 1 and the discussion of how property may be used to shape society. 216. As the Victorian Law Reform Commission, Review of the Property Law Act 1958 — Final Report, Melbourne, 2010, p 80 [6.3]–[6.4] noted, not all states took quite the same approach (accessed 6 June 2017), . 217. Conveyancing Act 1919 (NSW) s 47(2). 218. This was possible under s 24 of the Wills, Probate and Administration Act. Under s 38(1) of the Succession Act, a will without words of limitation is effective to pass the whole of the testator’s estate or interest unless there is a contrary intention. 219. Note that the rule in Shelley’s Case (emerging from Shelley’s Case (1851) 1 Co Rep 93b; 76 ER 206) was relevant to limitations made in New South Wales before 1920. The rule demonstrated the rigidity of the common law in regard to words of limitation. For details of how it operated, see J Gray, B Edgeworth, N Foster and S Grattan, Property Law in New South Wales, LexisNexis Butterworths, 2007, pp 109–110; Moore, Grattan and Griggs, Bradbrook, MacCallum and Moore’s Australian Real Property Law, note 140 above, pp 519–20. Note that R Megarry and H Wade, The Law of Real Property, 5th ed, Stevens & Sons, London, 1984, p 1161 (referencing H W Challis, The Law of Real Property, 3rd ed, 1911, p 154), provide a detailed account of the rule in Shelley’s Case. They observe that a more detailed account still may be found in the 2nd edition of their book at p 60. See also D Smith, ‘Was there a Rule in Shelley’s Case?’ (2009) 30 J Legal History 53. 220. See Chapter 6 for a fuller discussion of the development of equity. 221. Prior to the Judicature Acts, common law and equity were administered in separate courts. These two courts are examples of common law courts. See J D Heydon, M J Leeming and P G Turner, Meagher, Gummow and Lehane’s Equity: Doctrines and Remedies, 5th ed, LexisNexis Butterworths, Australia, 2015, pp 36–44. 222. There is a view that the more the Court of Chancery developed, the more hidebound it became, so that ultimately it emerged as much bound by precedent as the common law. 223. Note that the English Judicature Acts were replicated in the New South Wales jurisdiction. For a discussion of this process, see Heydon, Leeming and Turner, Meagher, Gummow and Lehane’s Equity: Doctrines and Remedies, note 221 above, pp 36–47. 224. See Chapter 6 for further discussion. 225. See Harpum, Bridge and Dixon, Megarry and Wade: The Law of Real Property, note 32 above, p 439, fn 257. 226. Re Bostock’s Settlement; Norrish v Bostock [1921] 2 Ch 469 at 480–1; Sexton v Horton (1926) 38 CLR 240 at 247–8. 227. See Sackville-West v Viscount Holmesdale (1870) LR 4 HL 543; Sexton v Horton (1926) 38 CLR 240 at 250. The settlor is the party who creates the trust. 228. Section 47 of the Conveyancing Act means that, since 1 July 1920, both legal and equitable interests created in a deed do not have to comply with strict words of limitation. 229. Eg, by way of a written declaration of trust but not in a deed. 230. Moore, Grattan and Griggs, Bradbrook, MacCallum and Moore’s Australian Real Property Law, note 140 above, p 57. See also Butt, Land Law, note 19 above, p 133.

231. ‘The limitation marks the bounds or compass of the estate, and the time of its continuance’: Zapletal v Wright [1957] Tas SR 211 at 218, quoting Preston on Estates, Vol 1, p 49. See Harpum, Bridge and Dixon, Megarry and Wade: The Law of Real Property, note 32 above, p 64. 232. A possibility of reverter may be statute-barred under the Limitation Act 1969 (NSW) if, after the fee simple has determined (or put another way after it has terminated on the occurrence or nonoccurrence of an event), an adverse possessor takes possession of the land for 12 years or more. See Fraser v Canterbury Diocesan Board of Finance [2001] Ch 669. Cram Foundation v Corbett Jones (2006) NSWSC 495 at [31] treated the possibility of reverter on termination of a determinable fee as not being subject to the rule against perpetuities, although the court acknowledged contrary views. 233. Harpum, Bridge and Dixon, Megarry and Wade, The Law of Real Property, note 32 above, p 65. 234. E H Burn, Cheshire and Burn’s Modern Law of Real Property, 15th ed, Butterworths, London, 1988, p 341. 235. If the grantor is dead, this right passes to his or her successors. 236. Harpum, Bridge and Dixon, Megarry and Wade: The Law of Real Property, note 32 above, p 65. 237. By deed: Conveyancing Act 1919 (NSW) s 50(1). 238. See 3.105. 239. It is worth noting that native title as described in Mabo v Queensland (No 2) (1992) 175 CLR 1; 107 ALR 1 does not permit the alienation of the interest (except perhaps in regard to a surrender to the Crown). 240. Re Dugdale (1888) LR 20 Eq 186. The relevant clause said: ‘if my son commits any act by reason of which he would be deprived of the personal beneficial enjoyment of the premises in his lifetime then the trust shall cease’. See also Re Macleay (1875) LR 20 Eq 186, where the court found a partial restraint on alienation valid; Re Rosher (1894) 26 Ch D 801, where the court found a partial restraint on alienation invalid; Saliba v Saliba [1976] Qd R 205 where, considering the circumstances, the court found a partial restraint void. 241. Trustees of Church Property of the Diocese of Newcastle v Ebbeck (1960) 104 CLR 394. 242. Clayton v Ramsden [1943] AC 320. By comparison, a similar condition regarding the Jewish faith was found not to be void in Re Tuck’s Settlement Trusts [1978] Ch 49. 243. Blathwayt v Baron Cawley [1976] AC 397; [1975] 3 All ER 625. 244. Harpum, Bridge and Dixon, Megarry and Wade: The Law of Real Property, note 32 above, p 66. See also P Butt, ‘Testamentary Conditions in Restraint of Religion’ (1977) 8 Syd LR 400. 245. Ellaway v Lawson [2006] QSC 170. 246. Ramsay v Trustees Executors and Agency Co Ltd (1948) 77 CLR 321. 247. Most commonly, the grantor carves out the lesser interest from his or her fee simple estate. 248. For further practical examples of future interests, see P Tan, E Webb and D Wright, Butterworths Tutorial Series: Land Law, 3rd ed, LexisNexis Butterworths, Australia, 2002, pp 102–4. Note that Real Property Act 1900 (NSW) s 100(2) permits the Registrar to create and issue separate certificates of title for future interests (‘an estate in remainder’). Torrens Title is discussed in Chapter 8. 249. In the case of contingent gifts, however, a grant must not offend the rule against perpetuities. See the Perpetuities Act 1984 (NSW). See also Chapter 10.

250. Conveyancing Act 1919 (NSW) s 50(1). The Succession Act permits the assignment of an expectancy if it is characterised as property to which the testator is entitled under s 4. 251. This example is taken from Harpum, Bridge and Dixon, Megarry and Wade: The Law of Real Property, note 32 above, p 314. See also Cunningham v Moody (1748) 1 Ves Sen 174. 252. A particular estate amounts to only part (‘a particula’) of the fee simple, eg, the preceding life estate: Butt, Land Law, note 19 above, p 159. 253. Moore, Grattan and Griggs, Bradbrook, MacCallum and Moore’s Australian Real Property Law, note 140 above, pp 520–21; Edgeworth, Rossiter, O’Connor and Godwin, Sackville and Neave Australian Property Law, note 137 above, pp 182-4; C Harpum, S Bridge and M Dixon, Megarry and Wade: The Law of Real Property, 7th ed, Thomson Reuters (Legal), London, 2008, p 370. 254. See discussion of equity at 3.73 and in Chapter 6. 255. Burn, Cheshire and Burn’s Modern Law of Real Property, note 234 above, p 38. 256. Originally, litigants petitioned the Chancellor directly. 257. This term comes from the French ‘cestui a que use le feoffment fuit fait’. 258. Legal executory interests were comprised of springing and shifting uses and executory devises. 259. Purefoy v Rogers (1671) 2 Wms Saund 380; 85 ER 1181. 260. Harpum, Bridge and Dixon, Megarry and Wade: The Law of Real Property, note 32 above, p 1219. 261. See Chapter 10. 262. For a discussion of how these two different interpretations of the section can yield different results, see Butt, Land Law, note 19 above, pp 156–7. See also P W Young, Annotated Conveyancing Act 1919 (NSW) and Real Property Act 1900 (NSW), 2010–2011 ed, LexisNexis Butterworths, Australia, 2011, pp 41–2. 263. Young, Annotated Conveyancing Act 1919 (NSW) and Real Property Act 1900 (NSW), note 262 above, p 81. Newcastle City Council v Kern Land Pty Ltd & Commonwealth Bank of Australia (1997) 42 NSWLR 273 and Bhana v Bhana [2002] NSWSC 117 discuss the operation of s 44(2) of the Conveyancing Act but the litigation does not turn on the section. 264. Zapletal v Wright [1957] Tas SR 211. 265. Andrews v Parker [1973] Qd R 93. 266. Zapletal v Wright [1957] Tas SR 211 at 217–18. 267. As noted, the consequences are different in cases where the limiting event occurs or is void. Further, the grantor’s possibility of reverter under a determinable interest probably is not subject to the rule against perpetuities. See Attorney-General v Pyle (1738) 1 Atk 435; 26 ER 278; The Cram Foundation v Corbett-Jones [2006] NSWSC 495. Butt points out that, although a contrary decision is to be found in Hopper v Liverpool Corporation (1944) 88 Sol Jo 213 (Bennett VC), that decision is criticised in ‘Notes’ (1946) 62 LQR 222. For discussion of the issue, see A Lyall in ‘Human Rights and Conditional and Determinable Interests’ (1987) 22 Irish Jurist 250 at 259; cited in Butt, Land Law, note 19 above, p 203. 268. Re King’s Trusts (1892) 29 LR Ir 401 at 410 per Porter MR. 269. Mabo v Queensland (No 2) (1992) 175 CLR 1; 107 ALR 1. 270. Hepburn, ‘Disinterested Truth: Legitimation of the Doctrine of Tenure Post-Mabo’, note 10 above. 271. New Zealand Law Commission, Preliminary Paper No 20, 1992, pp 30–1.

272. See J C Gray, The Rule Against Perpetuities, 4th ed, Little, Brown & Co, Boston, 1942, pp 16–23. Note that Scotland has also done away with the doctrine of tenure. See Abolition of Feudal Tenure etc (Scotland) Act 2000 (UK). See also Scottish Law Commission, Report on Abolition of the Feudal System (SLC 168), 1999.

[page 135]

Chapter 4

Native Title Introduction 4.1 Rights in land in New South Wales are recognised through a number of different systems of land holding. For example, Chapter 7 deals with the recognition and operation of rights in land pursuant to old system title, while Chapter 8 discusses rights in land according to the Torrens title system. In this chapter, we turn to yet another system under which rights in relation to land may be recognised: that of native title. It is worth noting at the outset that there is debate about whether native title simply represents another aspect of property law or whether it is conceptually more diverse than that.1 As the focus of this book is property law, the issue of how native title is characterised will be deferred until later in this chapter, where it is discussed in some detail, particularly in the context of the Mabo v Queensland (No 2) (Mabo (No 2))2 decision and its aftermath. This chapter concentrates on the constitution, interpretation, recognition, characterisation, operation and extinguishment of native title rights. In order to appreciate these, however, it is necessary to trace briefly the evolution of native title, commencing with the Indigenous relationship to the land, moving on to ‘settlement’ of that land by Europeans, and to the mounting of the Milirrpum v Nabalco Pty Ltd3 (Gove Island Land Rights case or Gove case) and Mabo (No 2) cases. After this, we discuss a range of issues left unanswered by Mabo (No 2), some of which are dealt with in later case law or addressed in the

statutory regimes that were introduced following the Mabo (No 2) and Wik Peoples v Queensland (Wik)4 decisions. A purely doctrinal approach is not possible in this chapter because culture, religion and history are central to the validity and understanding of native title.5 As will be seen [page 136] below, the notion of continuity is embedded in the requirement for the establishment, maintenance and enforceability of native title.6

The Evolution of Native Title in Australia Relationship with the land 4.2 As noted in Chapter 3, Indigenous people lived in Australia for thousands of years prior to European contact. Their society is culturally diverse and complex.7 Land plays a key role in social organisation as well as economic and cultural life. It is not only the source of food and shelter, but also holds a great spiritual significance.8 Hence, it is central to Indigenous being and, consequently, the land imposes weighty responsibilities on all who claim native title.9 Land is treated with reverence and care.10 Not surprisingly, much Indigenous law relates to conduct that ensures the preservation of the land in good condition for those who come later. Indeed, Blackburn J in Milirrpum v Nabalco11 found that the Yolngu people had a ‘more cogent feeling of obligation to the land than of ownership of it’. He continued: It is dangerous to attempt to express a matter so subtle and difficult by a mere aphorism, but it seems easier, on the evidence, to say that the clan belongs to the land than that the land belongs to the clan.

Indigenous law also embraces some very subtle systems of inheritance, related to shifting kin definitions, which in turn establish overlapping degrees of responsibility for land.12 4.3 Some law is secret. Traditions, stories, songs of country and special knowledge are only passed on once members of the group demonstrate

sufficient maturity to be entrusted with them. Some special knowledge is never shared with the whole group but is held solely by traditional elders. The obligation to protect and nurture the land is even more [page 137] onerous for these people, but all users are seen as custodians. According to this paradigm, present users are part of a continuum, and one’s association with land is seen as cyclical rather than linear in nature. Protecting and caring for the land, or ‘growing up the land’ as it is sometimes called,13 involves making sure the land is passed on to the next generation in a state fit for physical and spiritual use.14 It has been said that: The fundamental truth about the Aboriginal’s relationship to the land is that whatever else it is, it is a religious relationship … There is an unquestioned scheme of things in which the spirit ancestors, the people of the clan, particular land and everything that exists on and in it, are organic parts of one indissoluble whole.15

As the interconnectedness between land, law, history and spirituality is central to Indigenous existence, any interference to one of these (such as land) reverberates throughout Indigenous society generally. The result is that the whole community is left somewhat exposed and vulnerable.16

‘Settlement’ and onwards 4.4 This strong connection with the land existed in Australia before European contact and continued until 1770, when Captain James Cook claimed Australia for Great Britain. From this point on, however, it became more difficult for Indigenous Australians to maintain their connection to the land.17 Of course, invasion of land itself is a common historical phenomenon. It usually involves force and subjugation. To that extent, the experience of Indigenous Australians is not unusual. However, their experience was peculiar in that the imperial government of Britain issued specific instructions concerning the taking of possession of land, which referred to the gaining of Indigenous permission; that is, it referred to the European immigrants’ need to gain consent. For example, the Admiralty’s instructions to Captain Cook, issued in 1768, were in the following terms:

You are also with the consent of the natives to take possession of convenient situations in the country in the name of the King of Great Britain, or if you find the country uninhabited take possession for His Majesty by setting up proper marks and inscriptions as first discoverers and possessors.18

[page 138] These instructions leave open whether a simple courtesy was afforded to the Indigenous population or, alternatively, whether the instructions incorporated a legal acknowledgment that pre-existing Indigenous rights and interests would be interfered with by European contact.19 Ultimately, however, the consent aspect of these instructions was not followed. Cook simply claimed possession of New South Wales on 22 August 1770, without either seeking or obtaining Indigenous permission.20 Nettheim, citing Reynolds, suggests that the reason for disregard of the imperial government’s instructions lay in Sir Joseph Banks’ testimony to the House of Commons committee on transportation in 1785.21 There, Banks surmised that ‘natives’ lived only on the coastal fringes of New South Wales and, hence, New South Wales could be taken to be uninhabited. Such reasoning very comfortably fed into acceptance of the terra nullius doctrine and acquisition of the colony by settlement rather than conquest.22 It would seem that the falsity of Banks’ surmise assisted in Indigenous people being led into a future of dispossession, disentitlement, and deprivation. Redress of this situation underpins the reconciliation movement,23 and influenced the negotiation and consultative processes that preceded the passing of the Native Title Act 1993 (Cth) and the Native Title Amendment Act 1998 (Cth).24 The effect of Banks’ conclusions could be seen more immediately when Governor Arthur Phillip took up his post. His instructions did not acknowledge any rights of the [page 139] pre-existing inhabitants.25 Phillip was merely encouraged to establish ‘friendly relations’ with Indigenous peoples; but, contradictorily, it was also recognised

that he might have to take steps to curb their ‘interference’. Significantly, he was authorised to grant land to people who would ‘improve’ it, yet there was no reference to his having to obtain the consent of the prior inhabitants before any grant was made.26 4.5 Hence, with the arrival of Captains Cook and Phillip, a bleak history began. In Deane and Gaudron JJ’s words in Mabo (No 2): As political power in relation to domestic matters was transferred from the Imperial Government in England to the European Colonists on the other side of the world, the Aborigines were increasingly treated as trespassers to be driven, by force if necessary, from their traditional homelands.27

Deane and Gaudron JJ stated: … the oppression and, in some areas of the continent, the obliteration or near obliteration of the Aborigines were the inevitable consequences of their being dispossessed of their traditional lands.28

Accordingly, Deane and Gaudron JJ concluded: The acts and events by which that dispossession in legal theory was carried into practical effect constitute the darkest aspect of the history of this nation.29

Dawson J, although in dissent, appeared to conclude similarly on this issue, when he stated: ‘There may not be a great deal to be proud of in this history of events’.30 Yet there were many incidents of Indigenous resistance to European invasion.31 These incidents attest to the facts, first, that ‘natives’ were present; and, second, that they were particularly attached to their land, having special entitlements to the use and occupation of defined tracts.32 [page 140] 4.6 Nevertheless, historical and legal records reveal judicial divergence on the issue of Indigenous legal rights. For example, on one hand, Burton J, a member of the New South Wales Supreme Court in 1836, rejected the idea that Indigenous people were governed by law, stating in his notes on R v Murrell,33 a criminal case, that: [Indigenous] practices are only such as are consistent with a state of the grossest darkness and irrational superstition and although in some cases being a show of justice — are founded entirely

upon principles, particularly in their mode of vindication for personal wrongs, upon the wildest most indiscriminatory notions of revenge.34

Hence, without a recognisable system of law, it was open to him to conclude that Indigenous people had no recognisable rights to be protected. On the other hand, contrasting positions can be seen in Willis J’s judgment in R v Bonjon and the judgments of Dowling J and Forbes CJ in R v Ballard or Barrett.35 Forbes CJ thought that intra-Aboriginal crimes should be settled according to Aboriginal people’s own customs, thus acknowledging a kind of self-governance based on pre-existing Indigenous law and traditions. Dowling J went a little further by introducing the concept of consent, stating that: Until the Aboriginal natives of this Country shall consent, either actually or by implication, to the interposition of our laws in the administration of justice for acts committed by themselves upon themselves, I know of no reason human, or divine, which ought to justify us in interfering with their institutions even if such an interference were practicable.36

He continued, ‘The Englishman has no right wantonly to deprive the savage of any property he possesses or assumes a dominion over’ (emphasis added). Among other things, the views of Dowling J and Forbes CJ serve to demonstrate the significance accorded by some to Indigenous customs and traditions; customs and traditions that have been found to lie at the heart of native title. Importantly, Dowling J’s view also recognised that Indigenous people owned property, although according to him ‘the notions of property may be very imperfect in the native’.37 4.7 The courts also handed down other cases less sympathetic to Indigenous rights. Attorney-General v Brown38 is one of them. It dealt with the issue of whether Indigenous [page 141] rights survived settlement. In that case, a coal miner sought to defend an action for trespass by rejecting the proposition of Crown ownership. The Full Court’s response was quite plain. It held that the lands of the colony: … are, and ever have been, from the time of its first settlement in 1788, in the Crown … as his or her property, they have been and may now be effectually granted to subjects of the Crown.39

The court also observed that recognition of any Indigenous rights in land would be inconsistent with the Crown holding title.40 4.8 Some years later, when reflecting on the issue of the recognition of preexisting local law and its relationship to property, Deane and Gaudron JJ commented that ignorance may have been an excuse in the very early days, but: Increasingly, the fact that particular tribes or clans enjoyed traditional entitlements to the occupation and use of particular lands for ritual, economic and social purposes was understood. Increasingly, that fact was even acknowledged by government authorities and in formal dispatches.41

Further, James Stephen, head of the Imperial Colonial Office, noted: It is an important and unexpected fact that these Tribes had proprietary rights in the Soil — that is, in particular sections of it which were clearly defined or well understood before the occupation of their country.42

The 19th-century legal luminary Dr Lushington also appeared to recognise both the radical title held by the Crown and ‘the rights in relation to the territory of the Aboriginal occupants’.43 4.9 Yet, despite this, as mentioned above, a legal fiction flourished that was based on the view that the land belonged to no one. The fiction was embodied in the doctrine of terra nullius and the interaction of that doctrine with the doctrine of tenure.44 The [page 142] doctrine of tenure permitted full legal and beneficial ownership of all lands to vest in the Crown, thereby serving to help dispossess Indigenous Australians.45 The logic went as follows. The land was either ‘desert uninhabited’ or inhabited by people so barbarous that there was no settled law. Hence, it was impossible to reconcile any customary rights ‘with the institutions or the legal ideas of civilised society’.46 As there was no sovereign Indigenous lawmaker in the colony, the British Crown became the sovereign lawmaker on acquisition of the colony. In short, the British Crown’s sovereignty filled a void. The Crown became owner because there was no other owner.47 Once the Crown held all land, then others, according to the doctrine of tenure, could only hold

‘of’ the Crown; all land being held mediately and intermediately of the Crown. There is no place for allodial holdings under the doctrine of tenure. Hence, if the proposition that the land were terra nullius is rejected, then ‘the notion that sovereignty carried ownership in its wake must be rejected too’.48 When this rejection finally occurred, it left open a window for the recognition of Indigenous customs and traditions. They could be recognised outside the doctrine of tenure.49 Yet, long before the landmark case of Mabo (No 2) was decided, the struggle for the recognition of Indigenous rights in land had begun. In its legal dimension it was binary, involving both a common law approach that sought recognition of native traditions and customs, as well as a land rights approach that sought the transfer of claimed land through specific land rights legislation.50 One of the key cases relevant to the first approach was Milirrpum v Nabalco, commonly known as the Gove case.51

The Gove case 4.10 In the 1960s there was a growing awareness of Indigenous identity and pride, in part fuelled by a worldwide Black Power movement.52 Indigenous people in Australia began to demonstrate resistance in various forms, much of which culminated in the Wave Hill strike. This involved the Gurindji people walking off a cattle station in the Northern [page 143] Territory in response to poor pay and conditions, and ultimately retaking their tribal lands.53 Further, in the 1960s and 1970s, reserves where Indigenous people lived, and which had remained untouched by outsiders for many years because they were remote and inhospitable, became the subject of non-Indigenous interest with the advent of the mining boom. The result was that Indigenous people living on reserves faced unprecedented pressure to accommodate mining interests. In 1971, the Yolngu people from Yirrkala, on the Gove peninsula, unsuccessfully resisted this pressure in Milirrpum v Nabalco.54 In that case,

Blackburn J found that Indigenous people did have a recognisable system of law, but that they did not have a proprietary interest (in land). He found that the usual indicia of property were not present: the right to use and enjoy, the right to alienate, and the right to exclude. He also held that, even if these indicia were present, some formal act by the Crown would have been needed to recognise the Indigenous relationship to the land before it could be protected.55 4.11 Milirrpum v Nabalco was not appealed. Instead, over the next decade or so the fight for rights in land became a statutory one. The Whitlam Government was elected in 1972, and there followed two reports on how Indigenous land rights could be best achieved.56 These reports formed the basis of a Whitlam Government Bill that was modified and eventually enacted by the Fraser Government as the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). The Act directly vested existing reserves in Aboriginal ownership,57 as well as providing a mechanism for claims to be lodged by Aboriginal groups. The latter process involves Aboriginal people convincing an Aboriginal Land Commissioner that they are the owners of the land in question under Aboriginal law. The commissioner then makes a recommendation to the relevant Commonwealth Minister about whether the land should pass to the Aboriginal people by the grant of a title under Australian law. While such a process does not recognise a title to land outside the common law, it does permit recognition of the significance of the Indigenous connection to the land, as well as recognition of custom and tradition.58 [page 144] 4.12 By contrast, direct vesting was not introduced by the Aboriginal Land Rights Act 1983 (NSW). That Act allows a claim to be made to land without requiring proof of anything other than that the land is claimable within the terms of the Act. It therefore moves away from proof of traditional ownership as a cornerstone. Unfortunately, this approach has set up some tension between traditional owners and other Indigenous people resident in the same

area. The Aboriginal Land Rights Act has been the subject of criticism, some of which takes the form that the Act fails to provide the opportunity to make a claim on the grounds of historical or traditional connection.59 Running counter to that view is one that sees the mechanism for claims under the Act as simple, unique and providing a fairly good model for other jurisdictions, should they choose to follow it.60

Mabo (No 2) Background 4.13 The failure of the Yolngu people’s claim in Milirrpum v Nabalco and the passing of land rights legislation seemed to deter Indigenous Australians from seeking recognition of their rights through the common law. Yet, internationally, common law recognition through ‘native’ or ‘Aboriginal’ title, as it was sometimes called, was a known phenomenon. For example, in the United States, Johnson v McIntosh61 had settled the question of competing claims between Aboriginal people and settlers on the basis of native title at common law, while Calder v Attorney-General of British Columbia62 in Canada and R v Symonds63 in New Zealand both relied on the continued existence of native title. Those seeking to test the native title doctrine in the Australian context were given hope by two cases in particular. They were Administration of Papua v Daera Guba64 and Coe v Commonwealth.65 In the first case, Barwick CJ intimated that native title might exist, while, in the second, the whole court agreed that the issue of native title amounted to an ‘arguable question if properly raised’.66 In Northern Land Council v Commonwealth (No 2),67 native title was referred to as a ‘question of fundamental importance’. Further, in Gerhardy [page 145] v Brown,68 Deane J seemed to reveal dissatisfaction with the decision in Milirrpum when he stated that if Milirrpum were correct, Australia had not yet

achieved the ‘retreat from injustice’ which had taken place in American jurisprudence at the beginning of the 19th century. 4.14 In this climate, five Meriam plaintiffs initiated proceedings in the High Court against the state of Queensland. Two dropped out, leaving Eddie Mabo, David Passi and James Rice to continue. These men sought a declaration that the Meriam people were entitled to their lands and the surrounding waters in the Murray Islands, on the basis that they held a traditional native title to them; or, in the alternative, that they held their land by virtue of possessory title or local custom. The plaintiffs also argued that any interference with or infringement of these rights constituted a breach of a fiduciary duty owed by the state of Queensland to the Meriam people. Such a breach would, they argued, cause compensation to flow. In February 1986, the matter was remitted to the Supreme Court of Queensland for hearing. The court was also to determine all matters of fact that the pleadings raised,69 but its task was interrupted when the status of the Queensland Coast Islands Declaratory Act 1985 (Qld) had to be clarified midstream. The defendant relied on this Act and, while its validity was tested, the case had to be adjourned. The effect of this Act was to declare retroactively that, on annexation, the islands off the Queensland coast (including the plaintiffs’ home island of Mer): … were vested in the Crown in the right of Queensland freed from all other rights, interests and claims of any kind whatsoever and became waste lands of the Crown in Queensland.70

The High Court held that the Queensland Act contravened s 10 of the Racial Discrimination Act 1975 (Cth) because it ‘abrogated the immunity of the Meriam people from arbitrary deprivation of their legal rights in and over the Murray Islands’.71 The finding allowed the litigation to proceed to the next stage, where the question of whether native title existed was decided.72

The finding in Mabo (No 2) General 4.15 The High Court in Mabo v Queensland (No 2)73 held that the common law of Australia recognised a form of native title that was grounded in the laws and customs of

[page 146] Indigenous people. The court concluded that the ‘rights and interests in land possessed by the Indigenous inhabitants of the territory’ existed long before the relevant laws of England were brought to Australian shores and that they ‘survived the change in sovereignty’.74 As this was the first time an Australian appellate court recognised native title, enforcement through the courts of the rights associated with native title became available only from 1992.

Sovereignty 4.16 The Crown’s acquisition of sovereignty was held not to be justiciable in a municipal court.75 Further, when the British Crown acquired sovereignty, native title was not automatically extinguished. Instead, sovereignty gave rise to radical or ultimate title, rather than absolute beneficial ownership. Therefore, it was only where native title was extinguished altogether that the Crown’s radical title blossomed into absolute beneficial ownership. This approach (best exemplified in the leading judgment of Brennan J) allowed the court to recognise native title rights while retaining the basic structure or ‘skeleton’ of the common law property system.76

Origin and nature of native title 4.17 According to the reasoning in Mabo (No 2), the origins and content of native title lie in the ‘traditional laws acknowledged by and the traditional customs observed by the Indigenous inhabitants of a territory’.77 The nature and incidents of native title are also determined by reference to the customs and laws of the Indigenous group, and their ascertainment is a ‘matter of fact’.78 While, on one hand, this is a respectful approach, on the other, it has placed a large burden on Indigenous people to prove by factual evidence what those customs and traditions involve. Clearly, where there is a clash of cultures (Indigenous versus non-Indigenous) this task becomes somewhat difficult, despite the practical efforts of some courts that have been willing to employ a variety of approaches aimed at bridging this gap.79 Ordinarily, native title will be a communal rather than an individual title, but that does not preclude Indigenous laws and customs creating entitlements

in individuals.80 Later cases have explored this issue further, and demonstrated that different Indigenous groups [page 147] are not precluded from coming onto the land and using it for hunting and ceremonies, for example, if that has been the traditional practice.81 Rights under native title generally belong to group members and membership is determined, according to Brennan J, by ‘biological descent’.82 Native title is also conceived of as an inalienable right, although it is possible to surrender it to the Crown.83 The lack of alienability raises an issue that is discussed in more detail later: how should native title be characterised? In Mabo (No 2) it was variously described as being ‘proprietary’,84 ‘personal’,85 ‘usufructuary’,86 ‘sui generis’,87 affording a ‘permissive occupancy’88 and perhaps ‘possessory’.89

Connection 4.18

According to Brennan J in Mabo (No 2):

Where a clan or group has continued to acknowledge the laws and (so far as is practicable) observe the customs based on the traditions of that clan or group, whereby their traditional connection with the land has been substantially maintained, the traditional community title of that clan or group can be said to remain in existence.90

Yet this connection is not to be ‘frozen as at the moment of establishment of a Colony’.91 Indeed, Deane and Gaudron JJ stated that: [page 148] Provided any changes do not diminish or extinguish the relationship between a particular tribe or other group and particular land, subsequent developments or variations do not extinguish the title in relation to that land.92

The type of connection that is required was another issue for consideration. Different views were expressed. Brennan J required only a ‘traditional connection’93 with the land, while Deane and Gaudron JJ referred to

‘occupation or use’.94 By comparison, Toohey J emphasised the need for a ‘physical presence’ on the land,95 but his approach did not preclude claimants living a nomadic existence from establishing the requisite connection. He stated that connection should be judged ‘in accordance with the way of life and habits, customs and usages’ of the claimants.96 Where there is a loss of connection with Indigenous traditions and customs, native title will be extinguished. Ceasing to acknowledge traditional law or failing to observe customs would amount to a loss of connection, as would the death of the last member of the group or clan.97

Native title over waters 4.19 Mabo (No 2) asserted that native title exists over land. The implication seems clear that it also exists over water, permitting Indigenous people the right to fish in rivers, for example.98 However, the specific issue of whether native title extended to coastal seas and other offshore areas went unanswered by that decision. The issue is explored below at 4.34.

Extinguishment 4.20 The concomitant of sovereignty, radical title, permits the Crown to extinguish native title where a clear and plain intention to extinguish is evident.99 The majority in Mabo (No 2), relying on the presumption set out in Adeyinka Oyekan v Musendiku Adele,100 found that no intention to extinguish native title existed at the point of the British acquisition of sovereignty.101 Native title was, however, extinguished on a more ad hoc basis by the Crown and the various legislatures. Acts of extinguishment can include: [page 149] the passing of legislation that manifests an intention to extinguish native title; valid laws or executive acts creating rights in land in third parties that are inconsistent with the survival of native title; and Crown acquisition of the absolute beneficial ownership of land.

4.21 Extinguishment by legislation When legislation extinguishes native title, it is common for it to vest an interest in the Crown itself or a third party. At other times, the extinguishing legislation may cause executive acts to be inconsistent with the continuation of native title. Although acts of extinguishment must be unambiguous,102 the legislation need not single out the particular interests to be extinguished. If the general intention of the legislation exhibits a clear and plain intention to extinguish, that will be adequate.103 In some cases, however, the legislation or acts will be compatible with the continued existence of native title — albeit, at times, continued existence with limitations. To explain, some legislation will permit the co-existence of native title along with the carrying out of a statutory purpose. For example, legislation that sets aside land for a national park could accommodate the continued existence of native title,104 as could the creation of reserves or the appointment of ‘trustees’ to control a reserve where no grant of title was made.105 In such circumstances, there would be no intention to extinguish native title. 4.22 Extinguishment by inconsistent grant Another method of extinguishing native title is through legislation that authorises the granting of an inconsistent interest over the very same land.106 Where the grant causes the two interests to be in conflict, native title will be extinguished to the extent of the inconsistency.107 Resolution of whether or not the grant is inconsistent has involved an analysis of the nature and incidents of native title and their fields of operation, compared with the competing rights under the later grant.108 According to Mabo (No 2), at common law the granting of estates or interests less than freehold or leasehold, such as an authority to prospect for minerals,109 would not necessarily extinguish native title. 4.23 Extinguishment by appropriation If the Crown acquires the absolute beneficial ownership of land as the result of a compulsory acquisition,110 or surrender,111 native title [page 150]

will be extinguished. Further, extinguishment will also occur if the Crown commences works on the relevant land totally preventing native title holders from exercising their rights. It is necessary to examine the terms under which the native title interest is acquired in order to gauge whether the requisite intention to extinguish exists. In the case of ‘works’, the examination is of the nature of the works. Extinguishment would, therefore, seem to extend to the compulsory acquisition of land for use as a school, for example. Extinguishment by appropriation raises the issue of whether the mere statutory dedication of land for a specific purpose is enough of itself to extinguish native title. According to Brennan J it is not.112 The use of the land extinguishes native title. However, the question is one that has been debated in subsequent cases. In Western Australia v Ward,113 the majority of the High Court rejected the notion of ‘operational inconsistency’ and affirmed that the relevant issue is not how the land is actually used, but whether there has been a disposition of the relevant rights and interests in a way that is inconsistent with continued recognition of native title. In other words, questions of extinguishment of native title must be addressed by considering the ‘rights’ granted rather than considering evidence of how the land was actually used.114 At one stage, the decision of the Full Court of the Federal Court in De Rose v South Australia (No 2),115 was thought to establish that native title in a specific area had been extinguished only once specific improvements authorised by the terms of a lease had been erected. However, it seems clear since the later decision of the High Court in Western Australia v Brown116 that this view is wrong, and the view expressed previously in Ward is the correct one. Further, it is worth noting that negotiated settlements may also be executed. These may extinguish native title through surrender, but will not necessarily do so.117 Hence, it can be seen that, while native title did survive the acquisition of sovereignty, its continued existence has been precarious. In fact, native title was highly precarious; more precarious than titles derived from the Crown, which cannot be extinguished by inconsistent grant. Fortunately, since 1975 this harshness has been tempered somewhat by the interaction of the Racial Discrimination Act 1975 (Cth) with native title.

[page 151] The difference this Act made is illustrated in Mabo v Queensland (No 1) (Mabo (No 1)) and Western Australia v Commonwealth, for example.118

Fiduciary relationship? 4.24 Toohey J in Mabo (No 2) introduced the concept that the Crown was in a fiduciary relationship with native title holders.119 He came to this conclusion on the basis that, first, native title could not be alienated to anyone outside the clan or group except to the Crown; and, second, the Crown was able to extinguish native title. According to Toohey J, the existence of a fiduciary relationship did not preclude the legislature from extinguishing native title but, if extinguishment were adverse to the native title holders’ interests or was brought about in a manner which ignored those interests, then a breach of the fiduciary obligation would result and damages would be payable.120 Brennan J in Mabo (No 2) concluded that, if Indigenous people surrendered native title to the Crown in expectation of the receipt of a Crown grant, a fiduciary obligation may arise.121 His reasoning focused on the expectation itself giving rise to a fiduciary obligation. Deane and Gaudron JJ’s approach was slightly different. They thought that native title could be protected by virtue of the imposition of a constructive trust under which the Crown was the trustee, and native title holders the beneficiaries.122 Notably, the relationship of trustee and beneficiary is one of those recognised as giving rise to a fiduciary obligation.

Compensation 4.25 By a narrow margin, the High Court in Mabo (No 2) did not support the payment of compensation for prior extinguishment of native title. Mason CJ and McHugh J stated that: … neither of us nor Brennan J agrees with the conclusion to be drawn from the judgments of Deane, Toohey and Gaudron JJ that, at least in the absence of a clear and unambiguous statutory provision to the contrary, extinguishment of native title by the Crown by inconsistent grant is wrongful and gives rise to a claim for compensatory damages.123

They also noted that Dawson J’s judgment supported the conclusion that compensation was not payable, because Dawson J characterised native title as a form of permissive occupancy at the will of the Crown.124 The Crown could simply withdraw its permission without facing the obligation to compensate. [page 152]

Some key continuing issues in the ‘common law’ of native title General 4.26 As the court in Mabo (No 2) was not in complete agreement on a number of aspects of native title, several issues were left without clarification. Debate has continued, a significant volume of litigation has ensued, generating much case law, and some legislation has been passed. According to Kirby J, in Commonwealth v Yarmirr (known as the Croker Island case): It was to be expected that [the] … significant change in legal doctrine [initiated by Mabo (No 2)] would give rise to many doubts and uncertainties, especially during the early stages of clarification and elucidation … The process of elucidation of the law is continuing.125

An account of the relevant legislation is provided later in this chapter; meanwhile, some of the key issues and problems emerging in the decisions of later courts in what may be called the ‘common law’ of native title following from Mabo (No 2)126 follow.

Connection to the land 4.27 As mentioned above, the issue of connection to the land proved to be an interesting point of divergence between Brennan, Deane, Gaudron and Toohey JJ in Mabo (No 2). One aspect of that divergence arose in relation to the need for a physical connection to the land. Decisions such as Pareroultja v Tickner127 and Mason v Tritton128 have not tended to emphasise a physical presence requirement, while the High Court in Western Australia v Ward129 found it unnecessary to decide whether continuing use or physical connection

were required. Notably, the Full Federal Court decision in Yorta Yorta Aboriginal Community v Victoria130 did not support a finding of native title as the result of simply carrying out activities on the land, unless the activities are connected or linked to the traditions and customs of the group. Kirby J, in Commonwealth v Yarmirr,131 also favoured an approach that downplayed the importance of physical occupation. He distanced himself from the primary judge and the majority of the Full Court in Yarmirr, believing that Mary Yarmirr’s references to ‘my country’ or ‘Mandilarri-Ildugij country’, and her culturally different explanations of how her people ‘owned’ the particular estate, were helpful in ascertaining the issues of possession and ownership. He stated: [page 153] … such concepts appear far more relevant than physical possession of the area which, of its nature [it consisted of an area of sea] was not capable of being “occupied”, as non-Indigenous perspectives understand that term.132

Further, he saw Yarmirr’s comments, accepted by traditional law and custom, as an ‘integral part of the “socially constituted fact”’ that the High Court had upheld in Yanner v Eaton.133 In De Rose v South Australia (No 2),134 the Full Court of the Federal Court made it clear that an absence of physical presence on the land alone did not preclude the establishment of a relevant ‘connection’, especially where at least one major reason for irregular or limited physical use of the land was a justified fear of harm from non-Indigenous occupants.135 4.28 One of the reasons that the issue of continuing connection has become vexed is because it necessarily raises the question of how far present practices can deviate from past ones without loss of connection.136 Despite statements in Mabo (No 2)137 that suggest a repugnancy towards a ‘frozen rights’ approach,138 some later cases have shown less tolerance for change to, and adaptation of, Indigenous customs and traditions. At first instance, Olney J in the Yorta Yorta decision found, by relying on the amateur anthropological observations of a pastoralist, Edward Curr, from the 1840s, rather than later Indigenous accounts, that the claimants had lost their traditional connection

with the land.139 He found a lack of evidence of ‘aspects of traditional lifestyle’140 and, in words echoing back to Brennan J in Mabo (No 2),141 that ‘the tide of history [had] indeed washed away any real acknowledgment of their traditional laws and any real observance of their traditional customs’.142 His views seemed to reflect the more conservative approach taken in some Canadian cases, such as [page 154] R v Van der Peet,143 R v NTC Smokehouse144 and R v Pamajewon.145 Those cases respectively found that the selling of 12 fresh salmon, the selling of processed fish, and high-stakes Bingo games were examples of activities that deviated too far from the original customs to be construed as modern manifestations of older traditions and customs.146 However, when it came to Hayes v Northern Territory, Olney J’s position seemed to have changed slightly. There he spoke of ‘some modification and adaptation of the old laws and customs’ as being acceptable.147 The acceptance of modification could also be seen in Yanner v Eaton,148 where Gummow J, in discussing whether the use of a motor-powered boat for fishing essentially altered a traditional activity, concluded that it was simply ‘an evolved, or altered, form of traditional behaviour’. While it was not a decision about the existence of native title, a similar result was reached in the decision of the Queensland Court of Appeal in Stevenson v Yasso.149 Mr Yasso was found to be not guilty of possessing a fishing net without a licence because his doing so was incidental to taking fish in accordance with ‘Aboriginal tradition’. The majority specifically held that the fact that he was using a modern net, which was not made of traditional fibres, did not stand in the way of him claiming that he was fishing under Aboriginal tradition.150 4.29 On appeal in (Branson and Katz JJ) instance decision had majority also said that

the Full Federal Court, the majority in Yorta Yorta rejected the appellants’ argument that Olney J’s first been prefaced on a frozen rights approach.151 The if a frozen rights approach had been taken, it would

have been wrong. Instead, they found that much hinged on what the word ‘traditional’ meant and how s 223 of the Native Title Act 1993 (Cth) operated.152 They emphasised that native title is able to survive changes to traditionally based practices, but it will be extinguished if those changes mean that practices cannot properly be ‘characterised as traditional’.153 Native title will also be extinguished where the practice ‘reflect[s] a breaking with the past rather than the maintenance of the ways of the past in changed circumstances’.154 Branson and Katz JJ also stated that the test for whether a custom or tradition retained its traditional character was objective rather than [page 155] subjective.155 This view may be compared, and perhaps contrasted, with Kirby J’s view in the High Court decision of Yarmirr, in which he says that: It is the traditional connection arising from the acknowledgement of laws and customs by the Indigenous community, and not recognition or acceptance by others of the connection, which is the source of native title.156

4.30 Quite notable was Black CJ’s dissenting judgment in the Federal Court Full Court Yorta Yorta decision. He found that the decision at first instance, although not exactly based on a ‘frozen rights’ approach, was nevertheless too restrictive in its understanding of the term ‘traditional’. His approach has been said to mark a subtle shift in the interpretation of the term ‘traditional laws and customs’, because it moves away from seeing the traditional laws and customs contemplated by s 223 of the Native Title Act as ‘traditions in themselves’, towards seeing them ‘as laws and customs drawn from a particular Indigenous tradition, a particular Indigenous socio-legal order’.157 On the analysis offered by Black CJ, these ‘traditions’, it was argued, operated as ‘fundamentally dynamic, normative frameworks, reaching across generations’. They are not ‘freestanding practices’, but instead need to be conceptualised as ‘interrelated elements within these normative frameworks’.158 4.31 On appeal to the High Court in Yorta Yorta, Gleeson CJ, Gummow and Hayne JJ, forming part of the majority, continued the discussion relating to normative systems.159 They found that Indigenous customs were not

freestanding, but instead were referenced to a normative framework. Even so, they did not allow the appeal. On the issue of normative systems, they stated: It is only if the rich complexity of Indigenous societies is denied that the reference to traditional laws and customs as a normative system jars the ear of the listener.160

The same judges also went on to discuss specifically the issue of how change affected ‘connection’. In particular, they asked critically important questions, such as: What is it that actually intersects with the common law? [page 156] Is it a body of law and custom as it exists today but which, in some way, is connected with a body of law and custom that existed at sovereignty? How, if at all, is account to be taken of the inescapable fact that since, and as a result of, European settlement, Indigenous societies have seen great change?161 In attempting to answer these questions, Gleeson CJ, Gummow and Hayne JJ found that it is imperative to address them by bearing in mind ‘all the elements of the definition of native title’.162 Native title that represents communal, group or individual rights in relation to land or water, in accordance with s 223 of the Native Title Act, must be: possessed under traditional laws acknowledged by traditional customs observed by the people concerned — put another way, the rights and interests ‘must find their source in traditional law and custom, not in the common law’;163 such that ‘… by the traditional laws acknowledged and traditional customs observed by the relevant peoples, those peoples have “a connection with” the land or waters … the connection to be identified is one whose source is traditional law and custom, not the common law’;164 ‘recognised’ by the common law of Australia.165 The last element for consideration necessarily raises the issue of timing. When is the relevant time to consider if the rights and interests are recognised by the common law of Australia? Is the law to be considered any aspect of the general law as it stood after the decision in Mabo (No 2) but before the enactment of the Native Title Act?166 Further, how does this element of the

definition speak to the significance that is to be attached to the identification of what traditional law or custom may have said, ‘at the time sovereignty was first asserted, about the rights and interests of peoples in the land or waters’?167 4.32 Although the answers to these complex questions may take some time to tease out in relation to any given set of facts, it is clear that the High Court has reaffirmed the importance of the position of customs and traditions at the time of the assertion of sovereignty.168 It has also re-emphasised the ‘forensic task’ of putting evidence of traditions and customs before the court as a means of establishing connection.169 Yet the court acknowledges that: It is not possible to offer any single bright line test for deciding what inferences may be drawn or when they may be drawn, any more than it is possible to offer such a test for deciding what changes or adaptations are significant.170

[page 157] Although it is heartening that Gleeson CJ, Gummow and Hayne JJ state that some interruption of the enjoyment or exercise of native title rights and interests between the assertion of the Crown’s sovereignty and the present will ‘not necessarily be fatal to a native title claim’171, it is disappointing that it remains so very difficult, in practical terms, to establish when the change or adaptation is of such a kind that the right or interest can no longer be considered a manifestation of the original tradition or custom.172 It is perhaps in response to these concerns that Graeme Neate, the then President of the National Native Title Tribunal, claimed in 2002 that many groups may turn to the use of mediated settlements rather than litigation.173 Since the High Court decision in Yorta Yorta, a number of decisions have hinged on the question of continuity of connection with the land.174 In Risk v Northern Territory of Australia,175 Mansfield J found that the Larrakia people in the Darwin area had not observed traditional laws and customs since before European settlement of the area, and hence their claim for recognition of native title failed. Similarly, in Jango v Northern Territory of Australia176 Sackville J was unable to be satisfied that the applicants in a native title claim covering tourist areas near Uluru were part of a group of Western Desert people exercising traditional laws and customs sufficiently related to those exercised at

the acquisition of sovereignty. On the other hand, in Rubibi Community v Western Australia (No 7)177 Merkel J found that the local Indigenous community near Broome had established native title over areas of that town where there had not been extinguishment. In Sampi v Western Australia,178 the Full Court held that a relevant connection to land in the Dampier Peninsula had been made out.179 [page 158] In Bennell v Western Australia,180 Wilcox J at first instance found that the Noongar people in south-western Western Australia constituted a community that was able to establish relevant continuity and, in a (politically, if not legally) controversial decision, ruled that native title might still exist over a large settled region that includes metropolitan Perth and a number of smaller towns. However, this decision was overturned in appeal in Bodney v Bennell,181 the Full Court holding that his Honour had not addressed the question whether there had been continuous acknowledgment and observance of the traditional laws and customs by the community from sovereignty until recent times.182 The Full Court indicated that continuity must be established ‘for each generation’.183 Following the Full Court decision in the Noongar claim, negotiations have been underway for a settlement of issues in the area outside the court system. A group called the South West Aboriginal Land and Sea Council (SWALSC) has been involved on behalf of native title holders.184 Part of the arrangements involved the enactment by the Western Australia Parliament of the Noongar (Koorah, Nitja, Boordahwan) (Past, Present, Future) Recognition Act 2016 (WA), which was assented to on 6 June 2016. However, the settlement also requires the registration under the Native Title Act 1993 (Cth) of a number of Indigenous Land Use Agreements (ILUAs) (see 4.67 for more detail about these agreements.) In McGlade v Native Title Registrar,185 the Full Court of the Federal Court held that not all the proposed ILUAs could be registered, as not all the relevant individuals who jointly comprised the relevant registered native title claimant or claimants had signed the ILUAs. At the time of writing, legislation has been introduced into the Federal Parliament to allow

an ILUA to be registered even if not all members of a registered native title claimant (RNTC) have agreed to it, but the legislation has not yet passed the Senate.186 [page 159] The decision in Bodney187 confirmed the view of many commentators that the ‘connection’ requirements for native title had become too strict and, in many cases, almost impossible to establish. The Australian Law Reform Commission (ALRC) was asked to consider this issue, among others, in its most recent review of the area. In its final report, the ALRC made a number of recommendations for change to the legislation to clarify issues around the connection requirements.188 It proposes, for example, in s 223 of the Native Title Act, specific recognition that laws and customs may adapt and evolve, and provision that it is not necessary for those laws or the community concerned to have been in continuous and uninterrupted existence since sovereignty for a connection to be established.

Compensation 4.33 As noted above,189 the position emerging from Mabo (No 2) was that compensation for loss of native title was not payable.190 Nevertheless, after the Racial Discrimination Act came into force, the rights of Indigenous people were to be treated ‘no less favourably’ than the rights of non-Indigenous people.191 Some of the implications that were thought to arise from this legislation were addressed in the Native Title Act. The Act authorises the compulsory acquisition of native title by states, and grants a consequent right to compensation in ‘just terms’ where that occurs.192 A right to compensation in just terms is also established by the Commonwealth Constitution, but only in so far as the loss of native title amounts to an ‘acquisition’.193 The impact of the native title legislation on the question of compensation is examined later in this chapter.194

Native title over waters 4.34 The argument for denying the existence of native title over coastal waters was as follows. Native title was claimable only over land that fell under the umbrella of the Crown’s sovereignty. When the Crown acquired sovereignty on ‘settlement’, that sovereignty extended only as far as the mean low-water mark and not beyond it. Hence, no native title could exist over areas that were not within the bounds of the area claimed by sovereignty.195 Coastal waters and offshore areas were beyond these bounds. [page 160] The majority of the High Court in Commonwealth v Yarmirr found that it is not necessary for the Crown to have radical title (a concomitant of sovereignty) for native title to exist in an area.196 The majority dismissed appeals from both the Commonwealth and the claimants, thereby affirming the first instance and Full Federal Court decisions. Those decisions were that native title did exist over the sea, but that it did not give rise to a right of exclusive possession. Instead, native title in this case constituted a right to fish, hunt and gather for personal, non-commercial needs, as well as the right to access the sea and seabed in order to exercise rights to travel, visit and protect places of cultural and spiritual significance.197 In Lardil Peoples v Queensland198 and Gumana v Northern Territory,199 the decision in Yarmirr has been applied to find that, while native title may exist over areas of either riverbed or seabed below the high water mark, such title will not be exclusive. In Akiba on behalf of the Torres Strait Islanders of the Regional Seas Claim Group v State of Queensland (No 2),200 it was found at first instance by Finn J that the Torres Strait Islander communities in question had long exercised fishing rights and were entitled to continue to do so, subject, however, to general state regulation of commercial fishing.201 While this decision was initially overturned by the Full Court of the Federal Court,202 on appeal the High Court upheld the trial judge’s decision, affirming that the mere regulation of an activity that would otherwise form a part of a native title right, does not of itself extinguish that right.203

A similar decision was then reached by the High Court in Karpany v Dietman,204 the court holding that South Australian legislation regulating fishing had not extinguished [page 161] native title rights to fish, which could be used under s 211 of the Native Title Act 1993 (Cth) as a defence to a criminal charge of unlawfully taking fish.205

Fiduciary relationship 4.35 There has been very little judicial consideration of the fiduciary issue in the post-Mabo (No 2) era. It was taken up by French J (as his Honour then was) in Re Wadi Wadi People’s Native Title Application,206 but in Coe v Commonwealth207 the issue was not decided, and in Thorpe v Commonwealth208 Kirby J also left the issue open. It has, however, been the subject of considerable academic discussion.209 One of the most attractive reasons for Indigenous people to mount a fiduciary argument in relation to native title concerns compensation. As claims for equitable compensation for breach of a fiduciary obligation are not statute-barred in New South Wales,210 the door to compensation for the pre-1975 extinguishment of native title would be left open if the fiduciary argument were to succeed.211 Perhaps one of the reasons for judicial reticence in finding the existence of a fiduciary relationship between the Crown and Indigenous people, concerning native title, is a more general coyness about spelling out ‘how [a fiduciary relationship] arises, what are its indicia, what are the particular obligations arising from the relationship and what remedies follow upon failure to observe them’.212 The fiduciary relationship has been said to be ‘a concept in search of a principle’.213 At the moment this doctrine, as it is currently interpreted, seems of little assistance in achieving justice for native title holders.214 [page 162]

Is native title a proprietary interest? 4.36 Judicial divergence on the nature of native title As noted earlier, there was judicial divergence in Mabo (No 2) on the question of the nature of native title.215 Although it is plain that the nature and incidents of native title are referable to Indigenous customs and traditions, there have been various attempts to equate native title with known common law rights, particularly proprietary rights.216 At other times, they have been equated with personal or usufructuary rights. This is not surprising, given that the task of recognition is made easier if the unknown is equated with the known.217 Yet there are difficulties in using all of these characterisations. Perhaps in recognition of these difficulties, Deane and Gaudron JJ in Mabo (No 2) observed that ‘the preferable approach … is to recognise the inappropriateness of forcing … native title to conform to traditional common law concepts’.218 However, Mabo (No 2) also provided support for characterising at least some native title interests as proprietary, when Brennan J stated that: 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.219

That his Honour specifically referred to ‘a proprietary native title’ at another point is also a clear indication that he intended at least some incidents of native title to be characterised as proprietary. Further, it is worth noting that international cases such as United States v Alcea Band of Tillamooks 1220 and Delgamuukw v British Columbia221 indicate that Aboriginal rights may be regarded as proprietary in nature.222 Clearly, such a characterisation affords the right important status in any hierarchy of rights, because proprietary rights receive a higher level of protection than personal rights and, as such, are enforceable against the whole world.223 4.37 Support for a proprietary analysis of native title can also be seen in Toohey J’s position in Mabo (No 2).224 He suggested that, in regard to extinguishment, native title should be treated in the same way as a proprietary interest, when he required that any extinguishment by inconsistent grants or appropriation be evidenced by clear and plain [page 163]

legislative authority.225 Further, his finding that ‘the Meriam people may have acquired a possessory title on annexation’226 also supports a proprietary analysis of the rights of Indigenous people. It is also arguable that common law Aboriginal title, being a form of possessory title, would result in Indigenous people being seised of a fee simple estate.227 Yet Toohey J’s reasoning also offered some support for the proposition that traditions and customs mediated through native title may not resemble any common law rights at all, proprietary or otherwise, when he stated: … it would defeat the purpose of recognition and protection if only those existing rights and duties which were the same as, or which approximated to, those under English law could comprise traditional title; such a criterion is irrelevant to the purpose of protection.228

4.38 That native title may have a different nature according to the different circumstances in which it arises is another interpretation available from Brennan J’s words in Mabo (No 2).229 There, he seemed to imply that native title is for some purposes proprietary, but is not necessarily so in all circumstances. In referring to the interests of the Meriam people, whose rights were being assessed, he stated that ‘as a community, they held a proprietary interest in the Islands’.230 Later, however, he suggested that there might be some flexibility regarding a more general interpretation of the nature of native title, when he said that native title may be: … protected by such legal or equitable remedies as are appropriate to the particular rights and interests established by the evidence; whether proprietary or personal or usufructuary in nature and whether possessed by a community, a group or individual.231

Pearson appeared to rely on Brennan J’s approach, at least partially, when he developed a distinction between the external and internal aspects of native title.232 According to Pearson, the external aspect refers to the relationship of the community as a whole to the non-Indigenous legal system (an aspect discussed in Mabo (No 2)),233 while the internal aspect relates to the rights of individuals and sub-groups within the overall community ownership. Some of the rights comprising the internal aspect may be proprietary in the Englishbased common law sense, and some may not; these are matters for Indigenous law. Pearson’s approach deals with the proprietary question summarily by simply characterising the external aspect as proprietary. This approach has its appeal, and it may well be the case

[page 164] that the High Court adopts this reasoning, but as yet the court does not appear to have reached this point. 4.39 The potential flexibility of the manner in which native title is characterised is evident in Brennan J’s discussion of remedies,234 where he seemed to suggest that legal and equitable remedies may support native title, whether that title is characterised as proprietary, personal or usufructuary. His approach permits appreciation of the fact that traditions and customs, when mediated through native title, may resemble a range of different common law rights. Of course, as noted above at 4.37, Indigenous customs and traditions sometimes may not resemble any common law rights at all. Where the latter is the case, an understanding of such difference may not yet be available. We will need to explore more creative means for giving expression to Indigenous customs and traditions if they are unfamiliar to the common law.235 The divergence of judicial opinion regarding characterisation was evident again when Toohey J suggested that native title’s nature was variable. He stated in the Wik Peoples v Queensland (Wik) decision that ‘at one end of the spectrum, native title rights may “approach the rights flowing from full ownership at common law”’.236 On the other hand, they may amount to an entitlement ‘to come onto land for ceremonial purposes, all other rights in the land belonging to another group’. Meanwhile, Gummow J stated in the same case that: The content of native title, its nature and incidents, will vary from one case to another. It may comprise what are classified as personal or communal usufructuary rights involving access to the area of land in question to hunt for or gather food, or to perform traditional ceremonies … At the opposite extreme, the degree of attachment to the land may be such as to approximate that which would flow from a legal or equitable estate therein.237

These extracts seem to point to the range of possibilities available in response to the question: what is the nature of native title? Yet the argument is open that decisions, such as the Wik decision, suggested that some resolution of the question has already been achieved, because in that case the majority agreed that an inconsistent grant could extinguish native title only if legislation manifested a clear and plain intention for extinguishment to result

from the grant. In coming to that view, the majority dealt with native title as though it were proprietary in nature. The position was, however, clouded by Brennan CJ maintaining his earlier position and concluding that native title could be extinguished by Crown grant with or without legislative authority. Yet his Honour’s view on this issue, in both Mabo (No 2) and Wik, did not square with another of his conclusions that native title was a right to be ‘fully respected’. According to Bartlett, ‘“Full respect” suggests that native title, representing an exclusive relationship to land, is a proprietary interest’.238 [page 165] 4.40 More recently, in Commonwealth v Yarmirr, the majority found the exercise of inquiring into the existence of native title should be conducted outside a proprietary framework. It stated that: Because native title has its origin in traditional laws and custom, and is neither an institution of the common law nor a form of common law tenure, it is necessary to curb the tendency (perhaps inevitable and natural) to conduct an inquiry about the existence of native title rights and interests in the language of the common law property lawyer.239

Perhaps the warning contained in these words should be extended to a discussion of the nature of native title once native title is established. In those circumstances, too, it may also be advisable to avoid the ‘language of the common law property lawyer’. 4.41 Indicia of property and their relationship to native title In order to discuss more fully whether some aspects of native title may be satisfactorily described as proprietary in nature, one approach is to revisit the question of what constitutes a proprietary interest.240 As noted in Chapter 1 and Chapter 3, the right to use and enjoy, the right to alienate, and the right to exclude are commonly seen as indicia of property.241 Clearly, no incidents of native title are capable of demonstrating strict compliance with all these indicia because, for example, native title cannot be alienated outside the group.242 On this analysis, one may be tempted to conclude that no native title rights could possibly be seen as proprietary in nature. Yet such a conclusion would be too simplistic in the light of post-Mabo (No 2) case law, both in Australia and

Canada. It would also be inappropriate in light of the fact that, even in regard to the common law, there does not appear to be a requirement that all these indicia are present at any one time for an interest to be characterised as proprietary. For example, a non-assignable lease is treated as property, even though it cannot be transferred to another.243 4.42 Returning to the first indicium of a proprietary right (the right to use and enjoy), it is quite clear that incidents of native title may involve using and enjoying the land — to live, hunt, fish and gather, for example.244 They may also involve use for ceremonies. The Canadian Supreme Court in Calder v Attorney-General of British Columbia245 spoke of ‘a right to occupy the lands and to enjoy the fruits of the soil, the forest and of the rivers and [page 166] streams’, while the Privy Council in St Catherine’s Milling and Lumber Co v R246 saw native title as extending to the fruits and produce of the land and to hunting and fishing. Both Ward v Western Australia247 and Hayes v Northern Territory248 at first instance determined that the content of native title included the right ‘to possess, occupy, use and enjoy’ the land, as well as the right to: control access; use and control the use of resources; maintain places that hold significance for the Indigenous community; and protect cultural knowledge.249 On appeal in the Ward case, the High Court stated that: [Where] native title rights and interests that are found to exist do not amount to a right, as against the whole world, to possession, occupation, use and enjoyment of land or waters, it will seldom be appropriate, or sufficient, to express the nature and extent of the relevant native title rights and interests by using those terms.250

Implicit in this statement is the view that at times, native title will be able to satisfy the ‘using and enjoying’ component. Further, in Commonwealth v Yarmirr,251 ‘using and enjoying’ was found to extend to the use of water for the purpose of passage from place to place and for the preservation of cultural and spiritual beliefs and practices. Most difficulties with ‘the right to use and enjoy’ tend to arise, not in

relation to its existence, but rather because the right to use and enjoy native title may be inconsistent with the exercise of common law rights.252 4.43 The second indicium of a proprietary right (the right to alienate), deserves consideration. It raises more immediate problems concerning the characterisation of native title as proprietary. As observed earlier, the right to alienate has traditionally been seen as an important aspect of property. However, some common law interests have been classified as proprietary despite the fact that there have been restrictions imposed on their alienability. Examples include entailed estates (such as fee tail male, fee tail female and fee tail special) as well as property, the alienation of which is affected (even if only in a small way) by the rule against perpetuities.253 This would suggest that restrictions affecting alienability do not necessarily result in an interest being regarded as non-proprietary. Therefore, although native title’s alienability is very restricted (it can only be alienated within the group or surrendered to the Crown), it does not automatically follow that it should be denied proprietary status on this basis. [page 167] By contrast, according to Deane and Gaudron JJ in Mabo (No 2), this very lack of alienability was one of the reasons to conclude that common law native title: … invites analogy with the kind of entitlement to use or occupy the land of another which confers no interest in the land and constitutes a “mere equity”.254

Even where these judges observed that ‘the rights under common law native title can … approach the rights flowing from full ownership’, they resisted a proprietary analysis and chose to see native title as sui generis.255 In the Canadian context, a lack of alienability has also led to an Aboriginal right being termed ‘personal’.256 However, the Supreme Court of Canada has sought to clarify the limited sense in which Aboriginal title should be seen as personal. Lamer CJ stated that: This Court has taken pains to clarify that Aboriginal title is only “personal” [in the sense that it is inalienable] … and does not mean that Aboriginal title is a non-proprietary interest which

amounts to no more than a license to use and occupy the land and cannot compete on an equal footing with other proprietary interests.257

In the Australian context, Brennan J, when considering whether native title was lost at the time the Crown acquired sovereignty, stated that: It would be wrong, in my opinion, to point to the alienability of land by that community and, by importing definitions of “property” which require alienability under the municipal laws of our society, to deny that the Indigenous people owned their land.258

He went on to suggest that a failure to classify native title as proprietary could lead to curious results. For example, if native title were not proprietary, and if native title were extinguished by the Crown, he thought it seemed rather odd that the new interests which the Crown created in place of native title would, in fact, be proprietary.259 In other words, he was uncomfortable with a proprietary interest blossoming out of soil that had previously been able to yield only a lesser interest. 4.44 On the question of the third indicium of a proprietary right (the right to exclude), Indigenous people have long been able to demonstrate that, as traditional communities, they excluded others from hunting, fishing and gathering, for example.260 The fact that they often invited other traditional groups to pass over their land or partake of its fruits for ceremonies or festivities may not necessarily deny the exclusivity element. It may be argued by way of analogy that exclusive possession of land demonstrates a proprietary interest, at least in regard to the question of what will survive a change in sovereignty.261 [page 168] The common law is quite familiar with the concept of possession that permits concurrent use by others; for example, by way of an easement. In Commonwealth v Yarmirr,262 the question of exclusive possession was revisited, with the finding at first instance that it was not possible for exclusive possession to co-exist with other, non-exclusive rights being overturned by the High Court. The issue of exclusive possession remained for some time a live one for

McHugh J, because in Western Australia v Ward263 he reasserted a position he took in Wik v Queensland,264 which was that: Possession that is not exclusive is a contradiction in terms, for the right of general control and exclusion is central to the concept of legal possession.265

It should be noted, however, that McHugh J was in dissent in Ward’s case. 4.45 In conclusion, many incidents of native title would look as if they were able to satisfy reasonably easily two of the three conventional indicia of a proprietary right. In regard to the third, alienability, as noted above, there appears to be evidence to suggest that lack of satisfaction of this element will not necessarily preclude a finding of a proprietary interest. To recapitulate, even in the common law, a lack of alienability or restricted alienability has not precluded a proprietary characterisation.266 Yet it may ultimately be the case that considering the indicia of property, on one hand, and assessing whether native title interests meet them, on the other, is an inappropriate or flawed approach in itself. Gleeson CJ, Gaudron, Gummow and Hayne JJ imply that this may be the case when they state that: … the expression “possession, occupation, use and enjoyment … to the exclusion of all others” is a composite expression directed to describing a particular measure of control over access to land. To break the expression into its constituent elements is apt to mislead.267

They continue, warning that it would be wrong to invite attention to: … the common law content of the concept of possession and whatever notions of control over access might be thought to be attached to it, rather than to the relevant task, which is to identify how rights and interests possessed under traditional law and custom can properly find expression in common law terms.268

Difficulties with the proprietary approach 4.46 While it is possible to make an argument for the proposition that native title, at least in some circumstances, may be seen as proprietary in nature, there are several difficulties in [page 169] employing a proprietary framework as the sole means of characterising native title. Some of these difficulties may be termed cases of ‘square pegs and round

holes’. Where native title does not easily fit the proprietary paradigm, it would seem inappropriate to force it to do so, irrespective of the benefits that might flow from such forcing.269 4.47 In Western Australia v Ward, Gleeson CJ, Gaudron, Gummow and Hayne JJ appeared concerned that native title should not be treated as a proprietary interest in the form of a fee simple estate if that were not the most appropriate way of dealing with it. They commented that: … it is a mistake to assume that what the NTA [the Native Title Act] refers to as “native title rights and interests” is necessarily a single set of rights relating to land that is analogous to a fee simple.270

It is possible to extrapolate from this statement that sometimes native title may equate with a single set of interests, such as a proprietary interest, but at other times that characterisation may be too limited.271 Indeed, the High Court clearly warned against over-simplifying the relationship of Indigenous people to the land by commenting: It is wrong to see Aboriginal connection with the land as reflected only in concepts of control to access to it. … [To do so is] to reduce a very complex relationship to a single dimension. It is to impose common law concepts of property on peoples and systems which saw the relationship between community and the land very differently from the common lawyer.272

These words highlight the need to ‘step outside the square’. They recognise that native title is perhaps not best understood simply in terms of a common law proprietary analysis, many of the difficulties of which are outlined in the sections on the indicia of property and compensation, above. The High Court’s approach is far from new in this regard. 4.48 The move away from a simple proprietary analysis of native title has been under discussion for some time. It has been evident both in case law and in academic scholarship.273 For example, the simple equation of native title with a proprietary right has drawn criticism from academics such as Webber, who states: … Indigenous title is frequently discussed as though it were simply another kind of interest affecting land, slipped into the structure of Australian property law.274 The implications are thoroughly captured by determining the content of Indigenous law according to the rules of Indigenous customary law, examining to what extent the title has been extinguished by prior

[page 170]

acts of the non-Indigenous sovereign, and then enforcing the remaining interests. That view of Indigenous title is, however, altogether too limited, not just because a more ambitious interpretation should be preferred as a matter of policy, but because it misunderstands what the recognition of Indigenous title necessarily involves. Indeed, it mischaracterises the very nature of Indigenous title as a legal doctrine.275

Webber argues that native title has significance ‘beyond the bounds of land law’ and that Mabo (No 2) ‘initiates a process of mutual adjustment that will continue long into the future’.276 Further, Sweeney observed that ‘caution needs to be exercised to avoid classifying the incidents of Aboriginal title in terms of English property law concepts’.277 Caution against this characterisation is suggested because such an approach is said to lead to a process of ‘rights reductionism’ and ‘involves the delegitimation of Indigenous rights’.278 4.49 Bearing this in mind, it is perhaps useful to interpret Indigenous traditions and customs through the medium of native title, concluding that native title is sui generis; although many of its incidents are synonymous with common law rights, some of which are personal and usufructuary, while others are proprietary. At other times, native title bears little or no synonymy with common law rights.279 Hence, it may be possible to see native title extending beyond proprietary understandings, but at the same time having the scope to incorporate these understandings within its ambit, where applicable. In reflecting on the richness and uniqueness of native title, it has been said that: Native title involves concepts that are not traditionally the domain of the Australian courts, such as collective rights, legal pluralism, and issues of competing sovereignty. It is an area where judges cannot always draw on familiar ways of understanding the issues before them.280

Presumably though, it is evidence of a synonymy with property rights that has led some authors to link traditional customs and traditions to property in discussions which analyse the nature of native title.281 Yet, as observed, there may be risks in relying too heavily on a proprietary framework. If we are too determined to cast Indigenous traditions and customs in the proprietary mould, we may run the risk of losing sight of their real meaning, that is, of their essence. The process of equation may result in customs and traditions being converted into something that they are not, when the aim is simply for

[page 171] them to find reflection in the common law. Therefore, it would seem important that the ‘recognition space’ of native title should preserve — not destroy, diminish or dilute — the uniqueness of Indigenous customs and traditions.282 The majority of the High Court indicated that it recognised these potential problems when it commented in Western Australia v Ward that:283 The difficulty of expressing a relationship between a community or group of Aboriginal people and the land in terms of rights and interests is evident. Yet that is required by the [Native Title Act]. The spiritual or religious is translated into the legal. This requires the fragmentation of an integrated view of the ordering of affairs into rights and interests which are considered apart from the duties and obligations which go with them. The difficulties are not reduced by the inevitable tendency to think of rights and interests in relation to land only in terms familiar to the common lawyer.284

Through these words, the High Court also appears to be acknowledging the ‘strait-jacket’ that the Native Title Act has imposed on the interpretation of Indigenous rights. A discussion of that Act follows later (at 4.63–4.74). 4.50 Compensation and a proprietary analysis Despite the difficulties of characterising native title as proprietary, and despite the importance of looking to more creative understandings of native title, there is still some pressure to characterise native title as proprietary for expedient reasons. The following two expediencies are relevant: 1.

Proprietary rights are known, familiar and convenient. Common understandings therefore follow.

2.

Proprietary interests rank very prominently in the hierarchy of rights.

In regard to point 2, it is relevant that extinguishment of a proprietary right triggers constitutionally enshrined compensation. Indeed, s 51(xxxi) of the Commonwealth Constitution speaks of ‘the acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws’. That this provision is to be interpreted liberally can be seen in Clunies-Ross v Commonwealth.285 Case law also suggests that the term ‘property’ is to be interpreted free from ‘the artificial refinements of any particular legal system’.286 In fact, Dixon J pursued this point quite vigorously in Bank of New South Wales v Commonwealth, where he stated that:

I take Minister of State for the Army v Dalziel to mean that s 51(xxxi) is not to be confined pedantically to the taking of title by the Commonwealth to some specific estate or interest in land recognized in law or in equity and to some specific form of property in a chattel or chose in action similarly recognized, but that it extends to innominate and anomalous interests.287

[page 172] Dixon J’s words, therefore, suggest that native title may fall under the definition of property relevant to s 51(xxxi) of the Commonwealth Constitution.288 It would also appear that native title’s lack of alienability outside the group would not prevent it from being characterised as proprietary for the purposes of s 51(xxxi).289 Indeed, as Brennan has noted, it seems likely, given the breadth of the word ‘property’ as interpreted by the jurisprudence on s 51(xxxi), that extinguishment of native title might be characterised as an ‘acquisition’ of property attracting the requirement of compensation on ‘just terms’.290 4.51 No doubt, where native title is extinguished, constitutionally enshrined compensation on ‘just terms’ would reduce injustice resulting from its loss. That desire to compensate in order to ‘do justice’ is observable in the Native Title Act, where much of the logic for the validation of post-1975 grants was that they constituted property and, therefore, discrimination arose where no compensation was payable. Clearly, construing native title as a proprietary interest for the purposes of compensation results in very satisfactory moral and political outcomes, but there still remains a problem with characterising a right as proprietary if it does not sufficiently resemble a proprietary interest. It would be doctrinally unsatisfactory to characterise all rights comprising native title as proprietary if they did not all amount to proprietary interests. Where native title rights, which are referable to Indigenous customs and traditions, reflect a synonymy with proprietary rights, the characterisation may be appropriate. But where native customs and traditions are not synonymous with proprietary interests under the common law, it would be legally problematic to mould those customs into the shape of proprietary interests merely in order for them to be recognised by the common law as native title rights and, consequently, for compensation to flow

on their loss. Gleeson CJ, Gaudron, Gummow and Hayne JJ seemed to warn against this tendency in Commonwealth v Yarmirr.291 4.52 On one reading, merely characterising a right as proprietary so that desired political, social or moral outcomes are achieved could be said to taint the operation of the law and invest the judiciary with too much legislative influence. On this issue McHugh J, quoting Posner J, said that courts ‘have no authority to “provide a solvent” for every social, [page 173] political or economic problem or wrong’.292 He went on to quote himself and Gaudron J in Breen v Williams, where they stated that, in ‘a democratic society, changes in the law that cannot logically or analogically be related to existing common law rules and principles are the province of the legislature’.293 On another, and perhaps more compelling, reading of the situation, it may be that it is important to avoid characterising native title as proprietary in circumstances where it bears little or no resemblance to a proprietary interest, because the distortion that is done to it in the process of reshaping and reinventing may foreclose other, more imaginative understandings of the traditions and customs which underpin native title. Therefore, if at times native title is more personal or usufructuary — or indeed, something else altogether — rather than proprietary, perhaps that should be respected, even if it means that the consequences are harsh, particularly regarding compensation.294 Where there is a failure to trigger compensation, another solution will need to be worked out if the political will is to redress the loss of Indigenous rights. Such a solution may involve a legislative response which offers redress for the loss of rights that do not fit the proprietary framework, or it may involve revisiting the question of extinguishment, for example.295 Ultimately, a movement away from an approach that says ‘if there are serious questions of Indigenous rights, they should be squarely addressed and exhaustively defined, so that political and economic life can proceed in full certainty of what those rights entail’ could be embraced. Such a repositioning may well embody a commitment to a

process of ‘mutual adjustment’ that requires the redefinition of the relationship between Indigenous and non-Indigenous communities.296 4.53 Native title as sui generis If native title is not necessarily best described by reference to common law rights such as proprietary rights, perhaps brief consideration needs to be given to whether the sui generis classification is more apt. Pearson has argued for the characterisation of native title as sui generis because: (1) it is inalienable; (2) it is a communal right which has an internal dimension regulated by Indigenous law and custom and; (3) … it is subject to extinguishment by the valid exercise of Legislative and Executive powers in circumstances where other titles to land are not.297

Despite the fact that the appearance of some of these characteristics in other contexts (eg, entailed estates) has not forced the relevant rights and interests to be reclassified as sui generis, that might not be an argument for precluding such a classification in this context. Perhaps it is the unique combination of these characteristics that may permit the right to be best seen as sui generis. That native title is effectively a means or space for recognition [page 174] by the common law of Indigenous customs and traditions may be another good reason to characterise it as sui generis. Native title’s role of assisting Indigenous customs and traditions to find reflection in the common law is seemingly unique. Strelein has observed that a characterisation of native title as sui generis revealed ‘an explicit acknowledgement that native title should not be understood by reference to common law property rights’.298 Perhaps she is correct, but it is certainly arguable that native title may both be sui generis and, at times, embrace rights resembling proprietary and personal rights. Native title may also embrace rights that bear little or no similarity to proprietary or personal rights. Seen this way, the terms ‘sui generis’ and ‘proprietary’ are not necessarily mutually exclusive. 4.54

Native title as a ‘bundle of rights’ Finally, another possible

classification is that native title is a ‘bundle of rights’. Most commonly, the bundle of rights template extends only to the inclusion of a range of different personal rights. However, it would appear that it is at least possible to conceive of the bundle being constituted by personal, usufructuary or proprietary rights. The bundle of rights approach to native title gained greater currency following the majority decision of Beaumont and von Doussa JJ in the Full Federal Court appeal in Western Australia v Ward.299 There, those judges stated that, even where native title recognised an entitlement to exclusive possession, it remained a personal right rather than an interest in land.300 They claimed support for their position in the High Court decision of Fejo v Northern Territory, where Kirby J referred to ‘the bundle of rights which we now call native title’.301 While the bundle of rights approach may have gained favour with the High Court in Ward, that court, a year before in Commonwealth v Yarmirr, seemed concerned to leave open the possibility that, once established, native title may have ‘some or all of the features which a common lawyer might recognise as a species of property’.302 Nevertheless, the majority also warned against simply identifying native title as property, when it commented: Neither the use of the word “title” nor the fact that the rights and interests include some rights and interests in relation to land should, however, be seen as necessarily requiring identification of the rights and interests as what the common law traditionally recognized as items of “real property”.303

The appeal to the High Court in Western Australia v Ward has confirmed that court’s attraction to the bundle of rights approach.304 The majority explained it by stating that the metaphor drew attention to the fact that, first, ‘there may be more than one [native title] interest’ and, second, there ‘may be several kinds of rights and interests in relation to land [page 175] that exist under traditional law and custom’. Further, the court continued, ‘not all of those rights and interests may be capable of full or accurate expression as rights to control what others may do on or with the land’.305 However, as the focus of Ward’s case in the High Court was more on the

extinguishment of native title, rather than its nature, the latter issue was not definitively addressed there. 4.55 One argument against the bundle of rights approach is that it may place a greater onus on Indigenous people to prove their native title than would the alternatives. This is because it would seem easier to demonstrate that an Indigenous system of law, customs and traditions operated and continues to operate, albeit in a modernised way, than to establish the identity of each right making up the bundle, as well as having to establish the pedigree of each right in the bundle (by offering proof of continuity and its connection to traditions and customs). This calls for a high degree of specificity, particularly where the native title interest is something less than the right ‘to possess, occupy, use and enjoy’.306 Another criticism of the bundle of rights approach is that it treats native title as simply a composite of disparate rights, rather than being linked to a cohesive system of Indigenous law.307 In recent years, the ‘bundle of rights’ theory of property law has come under attack by theorists even outside the context of indigenous rights.308 4.56 The future Rather than seeing native title simply in terms of known common law rights and interests, it may be useful to conceive of it in a more creative fashion, seeing it as representing a point of interface between two different legal systems: the common law, on one hand, and Indigenous traditions and customs, on the other.309 Guidance on how we might approach this intersection was spelled out in Western Australia v Ward. There, the majority stated that the location of the intersection between these two legal systems should be determined as a result of careful attention being paid to the content of traditional law and custom and the way in which rights and interests existing ‘under that regime find reflection in the statutory and common law’.310 Perhaps, however, the most challenging and rewarding aspect of trying to develop more creative responses to native title issues relates to the process by which traditions and customs that, to date, seem foreign and unrecognisable may be interpreted. It is suggested that such an interpretation could possibly occur as a result of the process of ‘mutual adjustment’, [page 176]

referred to by Webber.311 It would also appear that Kirby J in Ward entered into the ongoing dialogue that nourishes and sustains the process of ‘mutual adjustment’ when he began to explore the way in which dreaming beings located at certain sites are narrated in song cycles, dance rituals and body designs. Stylistically, he approached the discussion through questions that he sought to answer himself. They included: ‘Would such a claim [to cultural knowledge] be one “in relation to” land or waters?’312 He concluded by stating: If this cultural knowledge, as exhibited in ceremony, performance, artistic creation and narrative, is inherently related to the land according to Aboriginal beliefs, it follows logically that the right to protect such knowledge is therefore related to the land for the purposes of the [Native Title Act].313

Further, he also engaged in a dialogue with other members of the bench who were unable to find that cultural knowledge amounted to a form of native title, since they feared that such a finding would acknowledge a right ‘akin to a new species of intellectual property’.314 He rejected their reasoning by commenting on the inadequacy of established intellectual property laws to deal with the kind of protection sought. Kirby J embraced the breadth that a classification of native title as sui generis may permit. Indeed, he stated that ‘there has been little need to elaborate the well-established principle that native title is sui generis and should not be restricted to rights with precise common law equivalents’.315 The prospect that the court might further explore this issue is encouraging. It opens our minds to the embracing of understandings different from those referenced to established, common law rights. Ultimately, it may be that such an approach will assist the development of a more successful interpretation and accommodation of native title. In this respect, it is interesting to note that, as noted below at 4.70, the first substantive decision on compensation for extinguishment of native title, Griffiths v Northern Territory of Australia (No 3),316 has recognised ‘loss of connection with land’ as a separate head of damages.

Extinguishment 4.57 The case law following Mabo (No 2)317 has both clarified and blurred a number of issues in relation to extinguishment. Some of these are discussed below.

One preliminary issue should be clarified. The Native Title Act does contain some provisions dealing with extinguishment of native title, which will be dealt with below. But it seems accepted that, even apart from the application of those provisions, native title may be extinguished under ‘common law’, based on the provisions about to be discussed.318 [page 177] In Wik Peoples v Queensland319 and Yanner v Eaton,320 the approach was to weigh up the nature and incidents of native title against the operation of the relevant inconsistent grant (that grant being born either of the common law or statute). On this approach, the characterisation of the two competing interests is relevant, and questions such as these arise: Does the interest of the grantee give rise to exclusive possession?321 Is native title of such a nature that it reflects a general connection to the land?322 Alternatively, can native title be treated as a ‘bundle’ of discrete rights permitting the extinguishment of some and not others?323 Yanner v Eaton involved an Indigenous man catching and killing a crocodile with the assistance of a harpoon-style implement. The man ate some of the crocodile and refrigerated the rest, at home, for later use. The question was whether any native title right the man may have had to take the crocodile was extinguished by the relevant fauna legislation, which vested ‘ownership’ in the Crown. In part, the case explored the question of the grantee’s right to exclusive possession and the need for legislation to require a clear and plain intention. The court read ‘ownership’ in this context as merely being a right to regulate; a sort of ‘radical title’, rather than beneficial ownership against those with native title. That is why the case found that legislation preserving a species of fauna may not necessarily extinguish native title but could reduce the sphere of operation of native title. Put another way, depending on how it is interpreted, legislation may sometimes only burden or regulate, and not necessarily extinguish, native title. (As noted above at 4.34, a similar approach

has been taken to legislation regulating fishing in the more recent High Court decisions in Akiba v Commonwealth and Karpany v Dietman.324) 4.58 In Wik Peoples v Queensland, Fejo v Northern Territory and Yanner v Eaton,325 the decisions of the High Court were not given in appeals brought in respect of determinations by the Federal Court of applications under the Native Title Act. By contrast, in Western Australia v Ward the determination provisions of the Native Title Act were ‘directly engaged’.326 Indeed, that Act lies at the heart of the extinguishment issue in Ward. The question of whether there could be partial extinguishment of native title rights and interests and what principles should be adopted in determining them had to be decided there, by reference to the Native Title Act, not by an examination of the general law. [page 178] In Ward, the issue of extinguishment was considered in several different contexts involving inconsistent grants (through pastoral leases and leases under the Land Act 1933 (WA)), appropriation (under the Public Works Act 1902 (WA)) and the creation of reserves for public purposes, to name but a few. The case involved a large native title claim by the Miriuwung Gajerrong people to 8000 square kilometres of land, including part of the East Kimberley region in Western Australia and land in the Northern Territory. The claim extended to land that was part of the Ord River Irrigation Area, Lake Argyle, Lake Kununurra, the Glen Hill pastoral lease, land subject to mining tenements, part of the Argyle diamond mine, part of the Keep River and Mirima National Parks, some Aboriginal-owned land in the Northern Territory, grazing land, areas of vacant Crown land that had formerly been pastoral lease land, various reserves, three islands in the Cambridge Gulf and parts of the inter-tidal zone of the gulf.327 In considering the issue of extinguishment, the High Court rejected Lee J’s finding at first instance that the ‘permanent adverse dominion’ test was the appropriate one to determine if extinguishment had taken place. That test, which had its genesis in the dissenting judgment of Lambert JA in the British

Columbia Court of Appeal decision in Delgamuukw v British Columbia,328 emphasised the need for an ‘act authorized by legislation which demonstrates the exercise of permanent adverse dominion as contemplated by legislation’.329 Instead, the High Court favoured the test employed by Beaumont and Von Doussa JJ in the Full Federal Court,330 which is known as the ‘inconsistency of incidents’ test. That test requires a comparison between the legal nature and incidents of the statutory right which has been granted and the native title rights which are claimed.331 Gleeson CJ and Gaudron, Gummow and Hayne JJ in the High Court also rejected North J’s dissenting view in the Full Federal Court, in which he stated that there could be inconsistency between native title and statutory rights, but that the degree of inconsistency would determine whether or not native title was wholly extinguished.332 The High Court expressed its counterview plainly, stating that: Two rights are inconsistent or they are not. If they are inconsistent, there will be extinguishment to the extent of the inconsistency; if they are not, there will not be extinguishment.333

This approach seems to be a fairly clear affirmation that extinguishment will be complete and not partial in this context. [page 179] Nevertheless, while some incidents of native title may be completely extinguished, it follows that if the ‘bundle of rights’ approach is employed as a means of characterising native title, there may be other rights in the bundle left unaffected by the extinguishment. Put another way, they will not be excised from the bundle. Such an approach requires the clear enunciation of the different incidents that constitute the bundle of rights known as native title. Examples of these incidents might include the right to burn country, the right to hunt or the right to gather traditional food on the land. Whereas the right to burn country may be inconsistent with rights under a pastoral lease, the rights to hunt and gather may not. It will be interesting to see how partial extinguishment in this context is played out.334

The firm view of the High Court that extinguishment is a matter of the relevant rights concerned, not the way that those rights are exercised, can be seen in its decision in Western Australia v Brown.335 At first instance in that litigation, Bennett J, in Brown (on behalf of the Ngarla People) v State of Western Australia (No 2),336 after an extensive review of previous authority, concluded that a mining lease had extinguished native title on those areas of the land concerned that had actually been developed, but had not extinguished native title rights on the undeveloped areas of the land. However, the High Court disagreed. They held that the question of extinguishment was one that had to be determined as of the moment the relevant rights were created, that the grant of mineral leases in this case had recognised the rights of third parties to also use the land, and, hence, that there had been no grant of ‘exclusive possession’. In these circumstances, native title, while it could not be exercised fully on any part of the land actually being used to extract minerals, was not completely extinguished, and could be exercised again once that task had been completed or abandoned.337 This decision meant that the earlier holding of the Full Federal Court in De Rose v South Australia (No 2),338 in so far as it seemed to envisage extinguishment by ‘later use’, was incorrect and should not be followed in future.339 However, while the general approach of ‘inconsistent rights’ is now well accepted, there can still be differences of opinion as to the content of rights created, especially by grants of land in unusual circumstances. In Queensland v Congoo,340 the High Court had to consider the question of extinguishment where the Commonwealth had temporarily taken control of land in World War 2 as a training area, and subsequently abandoned it. There had been a statement made in Parliament that the government intended as little interference with ‘individual rights’ as possible. But the relevant regulations empowered the government to treat such land as if it had an ‘unencumbered interest in fee simple’. The High Court divided evenly, in a 3:3 decision, on the question whether native title [page 180] had been extinguished. In consequence, the 2:1 decision of the Full Federal

Court341 was affirmed,342 resulting in the decision that native title had not been extinguished.343 4.59 On the issue of extinguishment by appropriation to the Crown, one of the questions that emerged in the post-Mabo (No 2) era was whether, on compulsory acquisition, native title was extinguished over every square centimetre of land acquired. In that regard, Hayes v Northern Territory344 held that extinguishment extended only to the land necessary or incidental to the use of the building or work. In Western Australia v Ward,345 the issue of compulsory acquisition also arose. Some of the claims involved possible extinguishment by appropriation through application of s 109 of the Land Acts (1898, 1933) (WA), the Public Works Act 1902 (WA) and the Rights in Water and Irrigation Act 1914 (WA). Whether or not the act of resuming caused extinguishment was found to be dependent on the effect of resumption as set out in the individual pieces of legislation. The court held that resumption under s 18 of the Public Works Act or s 3 of the Rights in Water and Irrigation Act resulted in the Crown being vested with a fee simple estate. Therefore, native title was extinguished. 4.60 When land has been reserved, the issue regarding extinguishment is whether ‘rights have been created in others that are inconsistent with native title rights and interests’.346 The High Court decided that the inquiry concerning extinguishment is ‘about inconsistency of rights, not inconsistency of use’.347 In the particular case of the Miriuwung Gajerrong peoples, the court found that designation as a reserve for certain purposes under Western Australian legislation does not, in itself, create any right in the public that extinguishes native title interests.348 If land is reserved for a public purpose, that will result in extinguishment of any native title right that pertains to how the land can be used. The use will already have been designated as part of the reservation. However, other native title rights may well not be inconsistent with the designated public use and they may continue to be exercised by the Indigenous people who hold them. 4.61 In regard to the question of extinguishment by grant of a fee simple estate, Mabo (No 2) established that such a grant extinguishes native title. Later cases, such as Fejo v Northern Territory,349 have confirmed this finding. Indeed,

even where a grant in fee simple has been made but the Indigenous owners continue their connection with the land, [page 181] extinguishment will still take place.350 That is because the court has chosen to focus, not on the factual, continuing connection, but rather on the extensive nature of the interest granted. A fee simple estate is the closest thing to absolute ownership that the common law recognises. It permits the greatest range of activities on and dealings with the land known to the common law. Its potential to be utilised accordingly is what extinguishes native title. 4.62 Mabo (No 2) clarified that ordinary common law leases extinguished native title.351 The issue of whether a pastoral lease extinguished native title was decided in Wik Peoples v Queensland.352 There, it was found that a pastoral lease did not necessarily extinguish native title. The particular claim of native title and the terms of the pastoral lease would need to be considered.353 Western Australia v Ward discussed whether a lease of a reserve under s 32 of the Land Act 1933 would extinguish native title.354 Although the features of the interest granted were not prescribed by the Act, the court was able to find that the rights granted were rights as a lessee and that they gave rise to exclusive possession. As such, they were totally inconsistent with the continued existence of native title.355 In Wilson v Anderson,356 the High Court held that a ‘perpetual lease’ granted under the Western Lands Act 1901 (NSW) extinguished native title. In Western Australia v Brown,357 however, as noted above at 4.58, a ‘mineral lease’ was held not to do so, especially because it explicitly recognised a right in third parties to use the land so long as that use did not interfere with mining operations. The High Court stressed on a number of occasions that the lease did not grant ‘the right to exclude any and everyone from that land for any reason or no reason at all’,358 which it would have needed to do, to extinguish native title.

Legislation Native Title Act 1993 (Cth) Introduction 4.63 After Mabo v Queensland (No 2) (Mabo (No 2))359 was handed down in 1992, discussion took place as to whether individuals should have to litigate their claims as Eddie Mabo had done, or whether legislation should set up a process or scheme for dealing [page 182] with claims.360 Ultimately, it was decided to set up a scheme, and the Commonwealth Government passed the Native Title Act 1993 (Cth) in order to facilitate this. The Act did not attempt to codify native title. Instead, it was designed to operate in conjunction with the common law. As well as providing a mechanism for dealing with claims, another purpose of the Native Title Act was to validate land titles that came into existence after the passing of the Racial Discrimination Act 1975 (Cth) and which were issued over native title land. There was an argument that the post-1975 titles might not be valid because, if their issuance had the effect of extinguishing native title and no compensation had been paid to Indigenous owners, that act of issuance was discriminatory and in breach of the Racial Discrimination Act. Native title holders had not been afforded the same procedural and compensation rights as ‘ordinary’ title holders.361 The Native Title Act was a compromise that failed to satisfy many of the competing interest groups. It offended those who thought the aim of such legislation should be land management, and it simultaneously offended those who thought the legislation’s aim should be the recognition of Indigenous human rights.362 As a result, the legislation, like the discussion leading up to it and the Mabo (No 2) decision itself, provoked different responses. Two years after its inception, the Native Title Act was described as a

legislative attempt to deal with the ‘novel legal problems’ raised by the recognition of native title.363 A detailed understanding of the operation of the Native Title Act is best gleaned elsewhere.364 However, key aspects of the Act are outlined below. 4.64 The Native Title Act’s Preamble noted the dispossession of Indigenous people and stated that the legislature intended the Act to constitute a ‘special measure’ within the meaning of the Racial Discrimination Act.365 This suggested a desire to redress some of the concerns about the perpetuation of injustice towards Indigenous people expressed by the High Court in Mabo (No 2). It is, therefore, ironic that the validation of grants made after the coming into effect of the Racial Discrimination Act ‘completed the legitimation [page 183] of the dispossession of Aboriginal people up until 1 January 1994’.366 That is, the passing of the Native Title Act assisted and reinforced the dispossession that its Preamble suggested it was seeking to redress.

Validation of existing grants 4.65 The validation of all existing grants meant that ‘full force and effect’ was given to all Crown grants made before 1 January 1994 or legislation made prior to 1 July 1993 where there was invalidity caused by the existence of native title. Hence, in a competition between native title and ordinary title, ordinary title prevailed.367 Such was the extent of the validation of ordinary title, that the Racial Discrimination Act did little to protect Indigenous interests in land.368 Put simply, native title could still be extinguished after the passing of the Racial Discrimination Act. To redress the loss ‘and provide for those Aboriginal people who have been dispossessed and lost all kind of contact with the land that could begin to justify … [native] title status’, s 201 of the Native Title Act as enacted in 1993 made provision for a National Aboriginal and Torres Strait Islander land fund.369 It was designed to meet the social and economic needs of dispossessed Indigenous people by assisting in

the acquisition of land and its management. The fund was later re-established under more specific legislation.

Definition of ‘native title’ 4.66 The Native Title Act defines native title and native title rights in s 223 of the Act, which states: (1) The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where: (a)

the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and

(b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and (c) the rights and interests are recognised by the common law of Australia.

This definition reflects the High Court’s definition of ‘native title’ in Mabo (No 2); a definition that was referable to Indigenous customs and traditions.370 Under this definition, native title has either been seen as exclusive or nonexclusive. Exclusive native title rights have been found to include: rights to live on land; rights to use and enjoy plant, animal, fish and bird life for customary and traditional purposes; and [page 184] the right to maintain the land by stewarding it, protecting important sites, and holding spiritual, cultural and social activities on it.371 Non-exclusive rights permit similar kinds of activities, but their use and enjoyment are tempered by the rights of non-native title holders to exercise their rights as well. For example, in Commonwealth v Yarmirr,372 Gleeson CJ, Gaudron, Gummow and Hayne JJ found that the Yuwurrumu members did not have an exclusive right to use and enjoy the seabed and the water above it, because ‘common law public rights to navigate and to fish’, as well as ‘the international right of innocent passage which is recognised by Australia’, could not be interfered with. A right to exclusive possession by native title holders

could not have co-existed with these rights. Therefore, it was found that the relevant native title rights gave rise to ‘non-exclusive’ possession. Notably, s 223 of the Native Title Act sets out a requirement that the rights and interests claimed as native title must be recognised by Australian common law. This may pose problems for those Indigenous rights that do not resemble common law rights, as has been discussed earlier in this chapter. While the reference to the common law may have been seen initially as a means to allow the courts to continue to develop the rules of common law concerning the recognition of native title in accordance with the process begun in Mabo (No 2), in fact s 223(1)(c) has received a very narrow interpretation by the High Court. In Yorta Yorta Aboriginal Community v Victoria,373 the majority held that the effect of s 223(1)(c) is essentially to limit the type of recognition that may be extended to native title rights where those rights might be ‘antithetical to fundamental tenets of the common law’, and to direct attention to the need to limit native title rights to those where there is continuity with laws and customs exercised prior to European settlement.374

Native title determinations 4.67 The Native Title Act also provides for mechanisms to determine native title. Accordingly, native title is determined either by the National Native Title Tribunal (which the Act established) or by the Federal Court. The tribunal’s role in this regard is restricted to determining native title in circumstances where the parties in question agree, or seek to come to agreement, by virtue of mediation. Where the parties cannot agree as to the existence of native title, the Act redirects them into the litigious process and the Federal Court is left to decide the matter. [page 185] From the outset, the Commonwealth legislation was designed to have compatible state legislation exist alongside it. After a faltering start, this has been achieved. Now, all states and territories have passed legislation complementary to the Native Title Act.375

An important part of the legislation, however, provides for a non-litigious resolution of issues. Subdivisions B, C, D and E of Div 3 of Pt 2 of the Act provide for three different types of ‘Indigenous Land Use Agreement’ (ILUA) and for their effect.376 The ILUAs are designed to be a mechanism whereby native title parties and others can reach a binding agreement on resolution of issues without an adversarial battle in the courts.377 They have been very popular; the latest information is that there are now 1165 registered ILUAs.378 Proper negotiation of such agreements, of course, requires an understanding of the legal basis of native title and how it is dealt with under the Act.

Past acts 4.68 The Native Title Act instituted a ‘past acts’ regime. This regime is relevant to more fully understanding the validation of native title and its interaction with other forms of title, as well as the issue of compensation. The Commonwealth legislation authorises states and territories to validate past acts.379 In so doing, the legislation also provides for the extinguishment of native title according to the category of past act that took place.380 Many, but not all, past acts extinguish native title; for example, category A past acts include grants of freehold title and grants of commercial, agricultural, pastoral or residential leases.381 Under the Native Title Act, these grants extinguish native title permanently, whereas category B ‘past acts’ extinguish native title only to the extent of the inconsistency.382 Category C acts (currently, only mining leases)383 and category D acts (which include any past acts not included in categories A, B and C, such as an easement, licence or permit) apply the ‘non-extinguishment principle’.384 [page 186] This scheme does not validate every grant made in the past, nor every piece of legislation which may have had the effect of impairing or extinguishing native title.385 For example, native title may be extinguished by the valid operation of legislation apart from the Native Title Act. Hence, whether a particular statute has extinguished native title must be determined according to

the common law as set out in Mabo (No 2)386 and other relevant cases. Whether a pastoral lease that was granted prior to the operation of the Act, and that was outside the ‘past act’ categories under the Act, was valid was, therefore, left after Wik for the courts to decide.387 4.69 The validation aspect of the Native Title Act was left largely intact by amendments made in 1998.388 The 1998 amendments also introduced the concepts of a ‘previous exclusive possession act’ and a ‘previous non-exclusive possession act’. The result is that now there is no doubt that both a freehold title and a residential lease extinguish native title as a result of being incorporated into the ‘previous exclusive possession act’ category. The common law is left to decide if nonexclusive pastoral leases extinguish or suppress native title.389

Compensation for past acts 4.70 Section 17 of the Native Title Act spells out two main grounds for the payment of compensation when native title is extinguished by virtue of a past act. They are where: 1.

native title is extinguished by a category A or category B past act; or

2.

native title has been affected by a category C past act (a mining lease) or a category D past act (any past act not included in categories A, B or C).

In regard to the first ground, compensation is payable on the same basis as that spelled out in the Commonwealth Constitution; that is, on ‘just terms’.390 The compensation is for the ‘loss, diminution, impairment or other effect … on their native title rights’.391 In regard to the second ground, two regimes operate: 1.

If compensation would have been available had the native title holder held ‘ordinary title’ rather than native title, the measure and extent of compensation available is determined by the compensation regime that would have applied to an ordinary title holder.392 [page 187]

This type of regime works by making native title the same as ordinary title. In New South Wales, in these circumstances, the term ‘ordinary title’ can be equated with freehold title. It has been suggested that problems may occur with this approach when a native title holder suffers loss but there is no equivalent position for an ordinary title holder; for example, if the loss is spiritual. It is important to acknowledge what Pearson, an Indigenous leader and lawyer, called ‘a loss of culture’ rather than simply a ‘loss of real estate’.393 Denying this harm does not seem to do justice to Deane and Gaudron JJ’s view that native title is a strong right.394 However, as noted below, the recent compensation decision in Griffiths v Northern Territory of Australia (No 3)395 does, to some extent, take these matters into account. 2.

Where extinguishment would have been impossible had the native title holder been the holder of an ‘ordinary title’, compensation will be available on just terms.396 This situation was altered slightly by changes embodied in the Native Title Amendment Act, discussed later in this chapter.397

Where compensation is payable, it is payable only by the relevant government and not by any third parties.398 Under the Commonwealth regime, compensation is usually monetary, but a claimant may request payment in kind, in the form of land, goods or services.399 Experience has demonstrated that because compensation is payable only after the existence of native title has been determined, the wait for compensation could be very long. Only a few cases so far have considered the compensation regime under the Native Title Act in any detail. One was the decision of Sackville J in Jango v Northern Territory of Australia.400 An argument was put in that case that, if native title were held to have existed, then it was not completely extinguished until some time after a number of significant improvements had been made on the land, including the building of an airport. His Honour, after a detailed consideration of the legislative history of the ‘extraordinarily complex’ compensation provisions in the Native Title Act,401 concluded that extinguishment of native title by the construction of public works took place when the construction of the

[page 188] works commenced, and hence that no compensation would be payable to native title holders based on the value of the public works themselves.402 The issue of compensation was then considered in De Rose v South Australia,403 where compensation was ordered in a consent order; as a result, the case did not provide any guidance on how the amount in question had been calculated. However, clearer guidance has now been provided on these issues in the decision of Mansfield J in Griffiths v Northern Territory of Australia (No 3).404 In brief, compensation of over $3.3 million was ordered for the effect on native title rights and interests of various land grants and other works, which had occurred after 1975. This was made up of: an award for economic loss of about $500,000, which valued the relevant land at 80% of its ‘freehold value’ under the European title system (given that the rights involved were not all those of ‘exclusive possession’); an order for non-economic loss, representing an overall amount for ‘loss of traditional attachment to land’ of $1.3 million; and an award of simple interest of some $1.4 million, dating back to the original time that rights were extinguished some 30 years prior. It seems likely that this decision may be appealed, but it seems to represent a good basis at the moment for dealing with some of these complex issues of compensation.405

Future acts 4.71 The Native Title Act, as well as dealing with the consequences of the previous extinguishment of native title, makes detailed provision for the future (ie, for actions done after the commencement of the legislation).406 The Preamble to the Act deals with this element of the legislation when setting out the principle that: In future, acts that affect native title should only be able to be validly done if, typically, they can also be done to freehold land and if, whenever appropriate, every reasonable effort has been made to secure the agreement of the native title holders through a special right to negotiate.

The regime governing ‘future acts’ was changed dramatically with the passage of the Native Title Amendment Act 1998 (Cth).407 The previous regime will not be discussed [page 189] here.408 The current rules are set out in Pt 2 Div 3 of the Native Title Act. They are very complex, and it is not possible to explore them in detail here.409 Broadly speaking, the logical starting point (as signalled by the words of the Preamble noted above) is that, under s 24OA of the Native Title Act,410 unless otherwise provided, a ‘future act’ is invalid ‘to the extent that it affects native title’. The Act is intended to be the only means by which native title in the future may be impaired or extinguished. Within earlier provisions of Pt 2 Div 3, however, there are a number of specific situations that amount to exceptions to the general rule under s 24OA. They are set out in Subdivs E– N of Pt 2 Div 3, and include, for example, acts done pursuant to ‘Indigenous land use agreements’, acts done to manage water supplies, and certain acts done to provide facilities for services to the general public.411 The Native Title Act requires a sequential approach to be followed to the various categories of future acts, which are listed in order in s 24AA(4). With the exception of future acts dealt with by an ILUA, if a future act falls within one of the earlier provisions of s 24AA(4)(a)–(k), then it cannot be dealt with under one of the later provisions.412 In some of these cases the ‘non-extinguishment principle’ in s 238 of the Native Title Act applies, so that native title will only be suspended, rather than completely extinguished, and hence may revive after the relevant ‘future act’ has ceased to operate.413 In other cases the ‘future act’ will completely extinguish native title.414

Right to negotiate 4.72 Certain types of future act are said to be subject to a specific ‘right to negotiate’ dealt with in Subdiv P of Pt 2 Div 3 of the Native Title Act. The

right to negotiate procedures must be followed for the relevant ‘future act’ to be valid. Future acts subject to the right to negotiate are defined in s 26, and mostly include mining rights and the compulsory acquisition of land by a government. Where state law makes its own provision for negotiation procedures, and that law is determined by the relevant Commonwealth Minister to contain adequate safeguards, then compliance with the state procedures will be deemed to be sufficient compliance with the Act.415 [page 190]

The Wik decision and its sequel 4.73 As noted, neither the Mabo (No 2) decision nor the Native Title Act explicitly spelled out whether pastoral leases extinguished native title.416 Certainly, Brennan J in Mabo (No 2) seemed to imply that pastoral leases, like all Crown leases, extinguished native title,417 while the Preamble to the Act, as well as the past acts regime contained within it, also seemed to imply the same. However, when the issue was put to the test, the High Court found in Wik Peoples v Queensland (Wik) that a pastoral lease did not ‘necessarily extinguish all incidents of Aboriginal title’.418 The majority noted that a ‘clear and plain intention’ was needed to extinguish native title.419 According to the majority of Toohey, Gaudron, Gummow and Kirby JJ, that intention is only evident where the inconsistency between native title and the rights of the grantee is so great as to prevent native title and the rights of the grantee from co-existing.420 The majority found that pastoral leases were unlike common law leases in that they did not automatically confer a right to exclusive possession. The pastoral lease was sui generis in nature, giving rise to a new form of tenure.421 It was a statutory response to the peculiar historical, domestic conditions of Australia. In coming to its conclusion, the court took account of the imperial dispatches on the matter, which suggested that it was unlikely that the legislature intended to exclude Aboriginal people altogether. The majority also based its decision on the fact that a grant of this nature was for a pastoral purpose only, and that the lease could be affected by exceptions relating to

minerals, timber and other materials, as well as access by, and the depasturing of, stock upon a stock route. Further, the remoteness and size of the vast land tracts which were the subject of the leases also suggested to the majority that the land was not intended to be for the exclusive possession of the grantee of the lease.422 4.74 Ultimately, the Wik decision affirmed the paramountcy of a pastoral lease over native title, but, by finding that a pastoral lease per se was not necessarily inconsistent [page 191] with native title, the court left open the possibility of co-existence.423 This led to calls by the Pastoralists and Graziers Association and others for legislation to delineate in what circumstances native title would be extinguished by the grant of a pastoral lease. The call for certainty became loud and — together with other long-brewing concerns, many evident since the inception of the Native Title Act — was taken up by the Liberal–National Coalition Government elected in March 1996. The Wik decision, which was handed down on 23 December 1996, provided a timely opportunity for legislative intervention, but it is clear that the government’s planned overhaul of native title was in train before the Wik case was decided.424 The ‘10 Point Plan’ set out the government’s proposed changes. It sought the diminution of native title rights then existing in relation to pastoral leases, and also sought to reduce native title rights in reserves, towns and cities, as well as over water. It placed restrictions on how and when native title claims could be made and what compensation could flow from the loss of native title. Consequently, it became very difficult to see how these proposals were at one with any notions of equality between native title and other forms of land holding commonly used in Australia, such as old system, Torrens, strata and community title.425 Like Mabo (No 2) several years before, the plan served to divide the community. Ultimately, it provided the basis for the Native Title Amendment Act 1998 (Cth), a piece of legislation that had a difficult passage through

parliament, but which was eventually passed subject to many amendments, when the government struck a deal with an independent senator.426 The key features of the Act are set out below.427

Native Title Amendment Act 1998 (Cth) Intermediate period acts 4.75 The intermediate period referred to here is between 1 January 1994 and 23 December 1996 when the Wik decision was handed down. Part 2 Div 2A of the Native Title Act (ss 21–22H), inserted by the Native Title Amendment Act 1998 (Cth), permits grants made in this period over land that was formerly the subject of a freehold estate or a lease, including a pastoral lease, to be validated. Mining leases are not included in this [page 192] category. The effect of the validation is to override native title in all cases. In most cases, it will also mean the extinguishment of native title.

Extinguishment 4.76 At common law, a clear and plain intention, such as a grant of freehold,428 is needed to extinguish native title. Initially, the common law was not so clear on the issue of whether a short-term lease, for example, would have the same effect. It left open the possibility that a short-term lease would only suspend native title for the duration of the lease, after which native title could be revived. The Native Title Act, however, is categorical. Part 2 Div 2B of the Act (ss 23A–23JA) deems that a short-term lease automatically extinguishes native title. This is so because a short-term lease is seen as giving rise to a right of exclusive possession.429 Under the Act, native title will also be extinguished by a ‘scheduled interest’.430 The effect of this deeming procedure is to broaden and increase the range of areas where other title can triumph over native title. 4.77

At common law, native title is extinguished only in relation to

reserved land by virtue of a clear and plain statutory authority. The Native Title Act, as originally enacted, treated a future act ‘done in good faith and in accordance with the reservation’ as a past act. The effect of this was to extinguish or diminish native title. Part 2 Div 3 Subdiv J of the Act (ss 24JA– 24JB), inserted by the Native Title Amendment Act, does away with the requirement that the act be done ‘in good faith and in accordance with the reservation’, and instead demands only that the impact of the future act on native title is ‘no greater than the impact that any act that could have been done under’ the reservation would have been. By treating native title in this way, the Act is deviating quite strongly from the common law principle that had the extinguishment of past acts being confined to just that, acts in the past.431 The capacity for native title to be extinguished is also greatly affected by the operation of Pt 2 Div 3 Subdiv G of the Native Title Act (ss 24GA–24GE), which declares that if the grantee of a non-exclusive agricultural or pastoral lease expands his or her rights to engage in or carry on any primary production activity, or any associated or incidental activity, native title will be extinguished. One of the harshest aspects of these provisions is that extinguishment is to occur irrespective of the rights originally granted. Hence, if the original grant did not pertain to primary production, for example, but the present activity does involve primary production, native title will be extinguished. The only restrictive proviso is that the expansion or activity could have been authorised at any time before 31 March 1998. It should be noted that primary production in this context includes fishing, forestry, horticultural, pastoral and cultivation activities, and that expansion can even include tourism. [page 193] 4.78 In circumstances where a non-claimant application is made, there is the very real possibility of extinguishment of native title.432 For example, any future act undertaken pursuant to a non-claimant application which has not been withdrawn by the applicant or dismissed by the National Native Title Tribunal433 will be valid and will have the effect of extinguishing — or at least

overriding — a native title claim, unless the claimant of native title (ie, the relevant Indigenous group or individual) registers its claim within three months. The task of registration by claimants has also become onerous under the amendments. By contrast, the task of registration by non-claimants is not as onerous, there being no requirement that they demonstrate how native title has been extinguished. Further, future legislation concerning the management and regulation of water and ‘living aquatic resources’, as well as airspace and future grants of any lease, licence, permit or authority with respect to those resources, overrides native title pursuant to s 24HA of the Act. This section suggests a wide range of non-Indigenous interests which take precedence over native title, again confirming that the operation of the Act has entrenched the inequality as between various forms of title. The Act, therefore, represents a whittling away of the status of native title — a title which the Native Title Act originally proclaimed to be, for the purpose of the future acts regime, equal in status to freehold.

Compensation 4.79 In an attempt to cut back the amount of compensation available for ‘past acts’, the Native Title Amendment Act 1998 (Cth) introduced s 51A into the Native Title Act. This section restricts the quantum of damages to the amount available had there been a compulsory acquisition. Such a formula would probably not be able to take account adequately of the loss of anything above a freehold equivalent, such as spiritual loss. Yet, as s 51A(2) makes s 51A subject to the ‘just terms’ standard contained in s 53 of the Act, the ‘just terms’ standard may still provide the scope to compensate over and above freehold value.434 Note that in the compensation decision in Griffiths v Northern Territory of Australia (No 3)435 discussed previously at 4.70, while the ‘economic loss’ component of compensation was capped at the freehold value, Mansfield J still was able to award a substantial ‘loss of connection to land’ component of damages. [page 194]

The right to negotiate 4.80 In regard to mining tenements and the compulsory acquisition of land for grants to private individuals or parties, the Native Title Act created a right to negotiate. The legislation recognised the right of native title holders to negotiate and also created a duty for governments and the grantees of mining tenements and others to negotiate.436 The 1998 amendments cut back the right to negotiate very considerably. While they maintained the right to negotiate regarding mining interests and the compulsory acquisition of native title rights, as well as interests for the benefit of third parties, they denied the right to negotiate for compulsory acquisitions for privately built infrastructure437 and the creation or variation of certain mining rights, permitting some kind of low-impact or small-scale mining if the approval of the Commonwealth Minister were granted, for example.438 Section 43A has also been incorporated into the Native Title Act by the amendments. It provides an alternative state and territory regime which operates over ‘alternative provision areas’. The right to negotiate is consequently lost where the Commonwealth Minister has given his or her approval to the scheme. The section applies to future acts over land which have been the subject of pastoral leases or many types of freehold.

Conclusion concerning the 1998 amendments 4.81 Reaction to the Native Title Amendment Act 1998 (Cth) was diverse. For example, many mining and pastoral interests were placated by the changes, but the amendments certainly did not gain universal approval. Human rights organisations and some political parties were outspoken in their dissatisfaction with the amendments. The amendments also spawned two controversial court cases whose object was to prove that the amendments gave rise to inequality and that inequality, in turn, amounted to genocide. Neither of these cases was successful.439 The Native Title Amendment Act contained other amendments relevant to land law, but space does not permit a discussion of these here. Into this category would fall issues concerning the six-year sunset clause and land use agreements.440

[page 195]

More recent legislative amendments 4.82 More recent amendments to the Native Title Act have mainly introduced refinements to the legislation rather than generating the political controversy of the 1998 changes.441 One controversial amendment, however, was the addition in 2010 of a new category of ‘future act’ under Subdiv JA of Pt 2 Div 3, allowing certain public housing projects to proceed as part of the ‘intervention’ process in the Northern Territory without necessarily taking account of underlying native title rights.442 4.83 A substantial package of amendments to the legislation was put forward as a Private Member’s Bill by the Australian Greens during 2011, in the form of the Native Title Amendment (Reform) Bill 2011 (Cth). The Senate Legal and Constitutional Affairs Legislation Committee recommended that the Bill not proceed, but there may be further debate on the issues in the future.443 Many of the amendments deal with issues that have been identified as needing clarification in this chapter, such as the clarification of the definition of ‘traditional’ in s 223 of the Native Title Act, and a proposal to introduce a ‘presumption of continuity’ of connection. These are matters on which recommendations have now been made by the Australian Law Reform Commission (ALRC).

Reform Definition of ‘native title’ 4.84 One of the very positive features of s 223 of the Native Title Act 1993 (Cth) is that it largely retains the common law definition of native title gleaned from Mabo v Queensland (No 2) (Mabo (No 2)).444 In turn, that common law definition was made referable to Indigenous customs and traditions. Yet, s 223 requires that the rights and interests claimed as native title must be recognised by the common law. At first blush, that requirement seems acceptable and suggests that native title may provide what Pearson has called a ‘recognition space’ for Indigenous customs and traditions in the

common law world.445 Yet, if the Act does not create new forms of title,446 but demands that Indigenous customs ‘fit’ the common law model in order to be recognised, difficulties could arise. For example, it may mean that s 223 potentially acts as a filter, keeping out any customs or traditions that [page 196] are too foreign or different. If that were the case, opportunities for interpreting aspects of native title that are different from the cultural and legal understandings non-Indigenous people bring to the matter may be denied. This would seem to be unfortunate and at odds with the messages being sent by the High Court to respect the sui generis nature of native title and to leave ‘the language of the common law property lawyer’ behind.447 This suggests an amendment to s 223 may be necessary, but any amendment would need to be preceded by extensive research and consultation.448 The recent ALRC Report449 represents a good start to this process, which ought to be carefully considered by the government for enactment. 4.85 An important part of the concept of native title is the question of the ‘connection’ that a tribal group has to have with a pre-1788 community. In this respect, it is commendable that the Commonwealth Government’s Australian Institute of Aboriginal and Torres Strait Islander Studies has produced a report as to how issues of ‘connection’ should be dealt with when dealing with consent determinations of native title.450 The articulation of a clear policy would have the potential to avoid needless litigation and may have an impact on the way that the courts regard the issue.

Cultural knowledge 4.86 The issue of the recognition of cultural knowledge through native title rights has not yet been satisfactorily resolved, and the present position needs reform. Where artwork is located on rocks, or where ceremonies are performed on land, the ‘connection’ aspect of those practices to the land is fairly self-evident, but at other times cultural knowledge is not so physically related to the land.451 For example, it could concern restricting access to

‘representations, images or oral accounts relating to such land or waters’. An example would be restricting the ‘reproduction of a Dreaming story relating to a particular site, where the reproduction could be proved to contravene Aboriginal law’.452 In the latter circumstances, some members of the High Court have shied away from finding the existence of native title rights, stating that they are unprepared to recognise ‘something approaching an incorporeal right akin to a new species of intellectual property’.453 They have commented that ‘The recognition of this [incorporeal] right would extend beyond [page 197] denial or control of access to land held under native title’.454 It is suggested that the law needs to be reformed to take account of the ‘land-relatedness’ of the spiritual beliefs and cultural narratives of Indigenous people.455 Where song cycles, dances, body art and ceremony are wedded to the land, the law needs to acknowledge these as aspects of native title. As Kirby J, in dissent on this point, has stated: If this cultural knowledge, as exhibited in ceremony, performance, artistic creation and narrative, is inherently related to the land according to Aboriginal beliefs, it follows logically that the right to protect such knowledge is therefore related to the land for the purposes of the NTA. Indeed, as stated in Yanner v Eaton: … an important aspect of the socially constituted fact of native title rights and interests that is recognised by the common law is the spiritual, cultural and social connection with the land.456

Perhaps the most appropriate manner to go about reforming this area of law is to take up Kirby J’s suggestion, which is to see these practices as human rights — human rights that are protected under international instruments.457 Another alternative could be to mount a constitutional argument that conceives of cultural knowledge as based on the spirituality of Indigenous people. Such spirituality, it could be argued, is protected by s 116 of the Commonwealth Constitution.458

Compensation 4.87

Some of the key questions relevant to compensation are:

What should be compensated? How should the quantum of that compensation be determined? In what form should it be paid? The common law, together with the Native Title Act and the Native Title Amendment Act 1998 (Cth), has sought to address some of these issues, but there is still scope to improve on the present position. For example, in deciding what should be compensated, we need to have some understanding of what has been lost. Once again, this involves inquiring into the nature of the interest extinguished or impaired. As the material in this chapter demonstrates, there is no unity of understanding regarding this concept. Further, where traditions and customs exist but are not recognised through native title, because they do not find reflection in the common law, compensation is precluded. Perhaps [page 198] revisiting our understanding of how native title is to be interpreted and amending the relevant legislation so that new interpretations are available would be a good starting point in assisting with the development of a more equitable compensation scheme. To highlight the problem of simply treating Indigenous customs and traditions (mediated through native title) as something that they are not, we need only look as far as the issue of the ‘freehold cap’. The freehold cap means that the quantum of compensation payable is capped at the value of the same property had it been held by virtue of a freehold title. There has been strong support for a freehold cap to the quantum of compensation payable.459 However, such an approach does not necessarily permit consideration of ‘any special or unique aspects of the links’ that native title holders may have with the land.460 For example, a freehold cap would probably prevent property that had a low freehold value but a strong ceremonial or spiritual value being adequately compensated.461 Native title and freehold are simply not the same.462 In recognition of this, it is suggested that s 51A (capping native title compensation at the level of a compulsory acquisition of freehold title), which

was introduced into the Native Title Act as part of the 1998 amendment package, be repealed.463

1.

See J Webber, ‘Beyond Regret: Mabo’s Implications for Australian Constitutionalism’ in D Ivison, P Patton and W Sanders, Political Theory and the Rights of Indigenous Peoples, Cambridge University Press, Cambridge, 2000, p 61.

2.

Mabo v Queensland (No 2) (1992) 175 CLR 1; 107 ALR 1 (Mabo (No 2)).

3.

Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 (Gove Island Land Rights case) (Gove case).

4.

Wik Peoples v Queensland (1996) 187 CLR 1; 141 ALR 129.

5.

The relevance of religion, eg, is shown in the decision of the Full Court of the Federal Court in Cheedy on behalf of the Yindjibarndi People v Western Australia [2011] FCAFC 100 that allowing mining over a particular area, which would cut off a source of ceremonial ochre, did not amount to a breach of s 116 of the Commonwealth of Australia Constitution (the Constitution), which prohibits Commonwealth interference with freedom of religion.

6.

See D Ritter’s opening paper presented to ‘Turning Back the Tide — The Use of History in the Native Title Process’, a conference sponsored by the Native Title Research Unit of the Australian Institute of Aboriginal and Torres Strait Islander Studies, 10–11 May 1999, Canberra.

7.

The term ‘Indigenous people’ is very broad and covers different groupings such as Yuin, Pitjantjatjara, Eora and Torres Strait Islanders. Not all bands or tribal groups, nor all members of a band or tribal group, would necessarily share exactly the same views; any generalisations about Indigenous people are flawed, at least to that extent.

8.

See M Dodson, ‘Aborigines and the Criminal Justice System’ (1987) 28 Abor LB 4; B Butcher and D Turnbull, A People’s History of Australia Since 1788, McPhee Gribble, Melbourne, 1988, Vol 1, p 19; C F Black, The Land is the Source of the Law: A Dialogic Encounter with Indigenous Jurisprudence, Routledge, 2011.

9.

See also P Sutton, ‘The Robustness of Aboriginal Land Tenure Systems: Underlying and Proximate Customary Titles’ (1996) 67(1) Oceania 7.

10.

B Chatwin, The Songlines, Vintage, Sydney, 1988, picks up many of these themes. The novel is somewhat controversial in that it is written by an ‘outsider’, an Englishman, yet deals with Indigenous culture and the creation songs pertaining to the land.

11.

Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 at 268–73.

12.

M Langton, ‘Grandmothers’ Law, Company Business and Succession in Changing Aboriginal Land Tenure Systems’ in Our Land is Our Life, G Yunupingu (ed), University of Queensland Press, St Lucia, 1997.

13.

This is a term commonly used by Indigenous people. See P Toyne and D Vachon, Growing Up the Country: the Pitjantjatjara Struggle for Their Land, McPhee Gribble, Melbourne, 1984, pp 5–8.

14.

Indigenous middens are evidence of an organised system of recording how the resources of the land and sea were used. By placing the shells and bones of seafood and animals eaten at ceremonial gatherings in layers, Aborigines ensured that those who next came to the site would know not to deplete resources by eating the same types of food as those which were last eaten. This explanation was given during a visit to the middens at Wallaga Lake on the far south coast of New South Wales by members of the Yuin nation: Personal communication, 16 January 1998.

15.

Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 at 167.

16.

Indigenous people today would argue that the same notions of interconnectedness and intermingling still underpin their cultural identity, beliefs and customs.

17.

See Deane and Gaudron JJ’s discussion of ‘white expropriation’ of land in Mabo v Queensland (No 2) (1992) 175 CLR 1 at 105; 107 ALR 1 at 79. They state that land was ‘granted by the Crown or dedicated or reserved for inconsistent public purposes without regard to Aboriginal claims’.

18.

J M Bennet and A C Castles, A Source Book of Australian Legal History, Law Book Co, Sydney, 1979, pp 253–4 (emphasis added).

19.

For further information on the impact of Cook’s conduct and social memory, see C Healy, From Ruins of Colonialism, Cambridge University Press, Cambridge, 1997, particularly Ch 2.

20.

H McRae, G Nettheim, L Beacroft and L McNamara, Indigenous Legal Issues: Commentary and Materials, 4th ed, Thomson Reuters/Lawbook Co, Sydney, 2009, p 18. Note that New South Wales comprised about half of the Australian continent in 1770: H Reynolds, ‘Racial Thought in Early Colonial Australia’ (1974) 20(1) Australian Journal of Politics and History 45. Flannery notes that the explorer Mitchell ‘was also virtually alone in his time in recognising and wishing to perpetuate a sense of prior Aboriginal ownership of Australia’: T Flannery, The Explorers, Text Publishing, Melbourne, 1998, p 13.

21.

G Nettheim, ‘Native Title: Facts, Fallacies and the Future’, University Symposium Papers, University of New South Wales, Sydney, 1998, p 15. Nettheim cites H Reynolds, The Law of the Land, Penguin, Ringwood, 1992.

22.

According to Blackstone, land could be acquired by virtue of settlement, conquest or cession: W Blackstone, Commentaries on the Laws of England, 9th ed, Vol 1, W Strahan and T Caddell, London, 1783. Depending on the method of acquisition, different consequences flowed. On one analysis, a new category was created after Mabo (No 2): the category of settled land with continuing native title. Such a category involves a rejection of Blackstone’s scheme. Terra nullius means ‘land of noone’; in the Australian context, the doctrine is now recognised as a legal fiction. For recent comment on the concept in response to claims that it was illegitimately referred to in the Mabo decision, see K Williams, ‘Critique: A Historian Said Terra Nullius Was an Invention …’ (2006– 2008) 10 Newcastle Law Review 37–48; U Secher, ‘The High Court and Recognition of Native Title: Distinguishing Between the Doctrines of Terra Nullius and “Desert and Uncultivated”’ (2007) 11 University of Western Sydney Law Review 1–39.

23.

A policy initiated by the government of former Prime Minister Keating, when he gave his Redfern address. See the website of Reconciliation Australia: . One focus of current debate is whether there ought to be formal Constitutional recognition of the pre-existing rights of Indigenous Australians — see a discussion paper on the topic issued by an expert panel in May 2011 (accessed 5 August 2011), . See also Recognise, Why Recognition (accessed 1 April 2017), , for continuing arguments in favour of Constitutional recognition.

24.

These statutes are discussed later in this chapter. See 4.63–4.81.

25.

McRae et al, Indigenous Legal Issues: Commentary and Materials, note 20 above, p 18.

26.

McRae et al, Indigenous Legal Issues: Commentary and Materials, note 20 above, p 18.

27.

Mabo v Queensland (No 2) (1992) 175 CLR 1 at 105; 107 ALR 1 at 79.

28.

Mabo v Queensland (No 2) (1992) 175 CLR 1 at 106; 107 ALR 1 at 80.

29.

Mabo v Queensland (No 2) (1992) 175 CLR 1 at 109; 107 ALR 1 at 82.

30.

Mabo v Queensland (No 2) (1992) 175 CLR 1 at 145; 107 ALR 1 at 111.

31.

See ‘Gipps to Glenelg, 19 December 1838’ in Historical Records of Australia, Series 1, Library Committee of the Commonwealth Parliament, Sydney, 1914–1925, Vol 19. See also H Goodall, Invasion to Embassy, Allen & Unwin, Sydney, 1996, p 27, for a discussion of resistance by the Dharuk and Gandangara landowners to the penetration of white farmers. For a more journalistic account of resistance, see B Elder, Blood on the Wattle, New Holland Publishers, Sydney, 2000.

32.

McRae et al, Indigenous Legal Issues: Commentary and Materials, note 20 above. See also H Goodall, Invasion to Embassy, Allen & Unwin, Sydney, 1996, p 1, where, in discussing the significance of land to Indigenous people, Goodall points out that while the spiritual and religious dimensions are important, the role ‘land plays in social relations, political relations, and in the cultural construction and transmission of knowledge’ should not be overlooked. See Goodall, p 23, for a discussion of the difference between Indigenous and European concepts of land. Note that outrage at dispossession was expressed by many Indigenous people. On occasions the issue of dispossession also claimed the attention of white officials, such as the New South Wales Crown Land Commissioner in the Murrumbidgee area, C C L Bingham (Goodall, p 35).

33.

R v Murrell and Bummaree [1836] NSWSupC 35.

34.

Miscellaneous correspondence relating to Aborigines, in the possession of the Archives Office of New South Wales, 5/1161, pp 239–40; cited in B Kercher, Decisions of the Superior Courts of New South Wales, 1788–1899, Division of Law, Macquarie University at: . For the full decision, see R v Murrell and Bummaree [1836] NSWSupC 35, available on the AustLII database (). See also J Hookey, ‘Settlement and Sovereignty’ in P Hanks and B Keon-Cohen (eds), Aborigines and the Law: Essays in Memory of Elizabeth Eggleston, Allen & Unwin, Sydney, 1984.

35.

See R v Ballard [1829] NSWSupC 26; R v Bonjon [1841] NSWSC 92. Dowling and Forbes JJ were the first two holders of the office of Chief Justice of New South Wales.

36.

R v Ballard [1829] NSWSupC 26 at 107–8 (emphasis added).

37.

R v Ballard or Barrett, reported in Kercher, Decisions of the Superior Courts of New South Wales, 1788– 1899, note 34 above. See also B Kercher, ‘The Recognition of Aboriginal Status and Laws in the Supreme Court of New South Wales under Forbes CJ, 1824–1836’ in A Buck, J McLaren and N E Wright (eds), Land and Freedom: Law, Property Rights and the British Diaspora, Ashgate, Aldershot, 2001, pp 83–102.

38.

Attorney-General v Brown (1847) 1 Legge 312.

39.

Attorney-General v Brown (1847) 1 Legge 312 at 316.

40.

Attorney-General v Brown (1847) 1 Legge 312 at 324. See also A R Buck, ‘Attorney-General v Brown and the Development of Property Law in Australia’ (1994) 2 APLJ 128; A R Buck, The Making of Australian Property Law, The Federation Press, 2006; R Bartlett, Native Title in Australia, 3rd ed, LexisNexis Butterworths, Australia, 2015, p 5. The authors acknowledge the assistance of the latter work in writing this chapter.

41.

Mabo v Queensland (No 2) (1992) 175 CLR 1 at 106–8; 107 ALR 1 at 80–2 per Deane and Gaudron JJ.

42.

Quoted in Mabo v Queensland (No 2) 175 CLR 1 at 106–8; 107 ALR 1 at 80–2 per Deane and Gaudron JJ.

43.

Mabo v Queensland (No 2) (1992) 175 CLR 1 at 106–8; 107 ALR 1 at 80–2 per Deane and Gaudron JJ. Dr Stephen Lushington was a leader of the English Bar and a judge of the London consistory court. Subsequently, he was an eminent Admiralty judge and a member of the Judicial Committee of the Privy Council. For the concept of ‘radical title’, see 4.16 below.

44.

Some doubt has recently been cast on the view that terra nullius as a doctrine was actually invoked by early courts considering these matters: see D Ritter, ‘The “Rejection of Terra Nullius” in Mabo: A Critical Analysis’ (1996) 18 Syd LR 5; U Secher, ‘The Mabo Decision — Preserving the Distinction between “Settled” and “Conquered or Ceded” Territories’ (2005) 24 UQLJ 35. But something like this view lay behind the decisions, and calling it ‘terra nullius’ in an extended sense does not seem to cause any real misunderstanding. Secher, ‘The High Court and Recognition of Native Title: Distinguishing Between the Doctrines of Terra Nullius and “desert and uncultivated”’, note 22 above, p 6, suggests that the doctrine may be seen to have a ‘common law’ sense now as well as its traditional international law meaning.

45.

This doctrine is explained in Chapter 3.

46.

Re Southern Rhodesia [1919] AC 211 at 233.

47.

Mabo v Queensland (No 2) (1992) 175 CLR 1 at 45; 107 ALR 1 at 31 per Brennan J.

48.

Mabo v Queensland (No 2) (1992) 175 CLR 1 at 45; 107 ALR 1 at 31 per Brennan J. Murphy J in Coe v Commonwealth (1979) 53 ALJR 403 at 412 described the doctrine of terra nullius as a ‘convenient falsehood to justify the taking of Aboriginal land’ when he was discussing the doctrine as set out in Cooper v Stuart (1889) 14 App Cas 286. Cooper v Stuart enlarged the notion of a ‘settled colony’ to include those ‘practically unoccupied, without settled inhabitants or settled law’.

49.

Indeed, Hepburn has argued that the logical implication of the doctrine of native title as spelled out in Mabo (No 2) is that the doctrine of tenure should be abolished: see S Hepburn, ‘Disinterested Truth: Legitimation of the Doctrine of Tenure Post-Mabo’ (2005) 29 MULR 1; ‘Feudal Tenure and Native Title: Revising an Enduring Fiction’ (2005) 27 Syd LR 49. But so far, the courts have not taken this step. For further discussion of these issues, see 3.33–3.38.

50.

This legislation is distinct from the native title legislation (the Native Title Act 1993 (Cth) and the Native Title Amendment Act 1998 (Cth)) that was spawned largely in response to Mabo v Queensland (No 2) (1992) 175 CLR 1; 107 ALR 1 and Wik Peoples v Queensland (1996) 187 CLR 1; 141 ALR 129.

51.

Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141.

52.

Eg, the Black Panther movement in the United States of America.

53.

For a more detailed account of this, see J Gray, ‘The Mabo Case: A Radical Decision?’ (1997) 17(1) Canadian Journal of Native Studies 33 at 43. See also Sir William Deane, Some Signposts from Dagaragu, inaugural Vincent Lingiari Memorial Lecture, AGPS, Canberra, 1996.

54.

Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141. The land in question became part of Arnhem Land in the 1930s, but mining on it was nevertheless approved in following decades.

55.

This proposition was rejected in Mabo (No 2).

56.

The Whitlam Government commissioned Woodward J to write the two reports, known as the Aboriginal and Land Rights Commission First Report (1973) and Second Report (1974). When still at the bar, Woodward J had been senior counsel for the Yirrkala people in Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141.

57.

The word ‘Aboriginal’ rather than ‘Indigenous’ is preserved in this context because it is the

language of the legislation. 58.

Nettheim, ‘Native Title: Facts, Fallacies and the Future’, note 21 above, p 18. Nettheim claims that the court in Mabo (No 2) found the so-called jurisprudence of these claims very influential. See also comments to this effect by French CJ writing extra-judicially in ‘The Role of the High Court in the Recognition of Native Title’ in L Strelein (ed), Dialogue about Land Justice — Papers from the National Native Title Conference, Aboriginal Studies Press, 2010, pp 86–7.

59.

M Wilkie, Aboriginal Land Rights in New South Wales, Alternative Publishing Co-Operative, Sydney, 1985.

60.

To some, however, the legislation remains primarily a compensation-style Act rather than a land rights Act. It is worth noting that the Queensland legislation relies on a different approach, where the claim process provides a hierarchy of bases for entitlement to claimable land: first traditional affiliation, then historical association and, lastly, needs.

61.

Johnson v McIntosh 8 Wheat 543 (1823). Although the Indians lost this case, the court clearly acknowledged that they were the rightful occupants of the land and that they had a valid legal claim to retain possession of it. However, the court found that their rights to complete sovereignty had been diminished and burdened.

62.

Calder v Attorney-General of British Columbia (1973) 34 DLR (3rd) 145 at 218–19 (SC Canada).

63.

R v Symonds [1847] NZPCC 387 at 390.

64.

Administration of Papua and New Guinea v Daera Guba (1973) 130 CLR 353 at 397.

65.

Coe v Commonwealth (1979) 53 ALJR 403.

66.

Coe v Commonwealth (1979) 53 ALJR 403 at 408 per Gibbs J; at 411 per Jacobs J; at 412 per Murphy J.

67.

Northern Land Council v Commonwealth (No 2) (1987) 61 ALJR 616 at 620.

68.

Gerhardy v Brown (1985) 159 CLR 70 at 149. See Nettheim, ‘Native Title: Facts, Fallacies and the Future’, note 21 above, p 18.

69.

This litigation led to the decision reported as Mabo v Queensland (No 1) (1988) 166 CLR 186; 83 ALR 14.

70.

Queensland Coast Islands Declaratory Act 1985 (Qld) s 3.

71.

Mabo v Queensland (No 1) (1988) 166 CLR 186; 83 ALR 14 at 96.

72.

Moynihan J of the Supreme Court of Queensland (to whom the matter had been remitted for a finding of fact) delivered his determination on 16 November 1990: Mabo v Queensland [1992] 1 Qd R 78. The law (as opposed to the facts of the matter) was decided by the High Court in the next stage of the litigation, reported as Mabo v Queensland (No 2) (1992) 175 CLR 1; 107 ALR 1.

73.

Mabo v Queensland (No 2) (1992) 175 CLR 1; 107 ALR 1 (Mabo (No 2)).

74.

Mabo v Queensland (No 2) (1992) 175 CLR 1 at 57; 107 ALR 1 at 41 per Brennan J. Similar expressions are to be found at CLR 81–2; ALR 60–1 per Deane and Gaudron JJ; at CLR 182–4; ALR 142–3 per Toohey J.

75.

Mabo v Queensland (No 2) (1992) 175 CLR 1 at 69; 107 ALR 1 at 51 per Brennan J.

76.

Mabo v Queensland (No 2) (1992) 175 CLR 1 at 29 per Brennan J, referring to ‘the skeleton of principle which gives the body of our law its shape and internal consistency’.

77.

Mabo v Queensland (No 2) (1992) 175 CLR 1 at 58; 107 ALR 1 at 42.

78.

Mabo v Queensland (No 2) (1992) 175 CLR 1 at 58; 107 ALR 1 at 42 per Brennan J. This view was supported in Wik Peoples v Queensland (1996) 187 CLR 1 at 169 per Gummow J.

79.

In an effort to bridge the cultural gap, some courts have been willing to hold hearings in situ — in the bush or the desert, for example — rather than in the courtroom. In Members of the Yorta Yorta Aboriginal Community v Victoria [1998] FCA 1606 (Yorta Yorta Aboriginal Community v Victoria), Olney J began taking oral evidence at a temporary shelter at Rumbalara Community near Mooroopna, Victoria. He later took evidence at another 65 locations.

80.

Mabo v Queensland (No 2) (1992) 175 CLR 1 at 109–11; 107 ALR 1 at 83 per Deane and Gaudron JJ.

81.

Ward v Western Australia (1998) 159 ALR 483 at 550–2.

82.

Mabo v Queensland (No 2) (1992) 175 CLR 1 at 70; 107 ALR 1 at 51 per Brennan J. Note that the issue of who is Indigenous and who is not is very contentious. While in the 1970s there was a movement away from the ‘bloodline definitions’ embodied in terms such as ‘half caste’ and ‘quadroon’, there has been a call by Michael Mansell, Indigenous lawyer and activist, as well as others, including members of the former Aboriginal and Torres Strait Islander Commission (ATSIC), to return to a biological descent test. They hope that a stricter test will lead Indigenous resources to be less taxed by an increasing number of people who identify as Indigenous. See ‘Land is Not Enough — Mabo Ten Years On’ and ‘It’s Still Disputed Territory — Mabo: Land is Not Enough’, The Weekend Australian, Features, 1 June 2002, pp 19 and 24. Disputes over the appropriate criteria for identification of persons as Indigenous or not still cause controversy, as can be seen in litigation involving remarks by the commentator Andrew Bolt on the issue in the Federal Court: see Eatock v Bolt (2011) 197 FCR 261.

83.

Mabo v Queensland (No 2) (1992) 175 CLR 1 at 70; 107 ALR 1 at 51 per Brennan J; at CLR 110; ALR 83 per Deane and Gaudron JJ. The possibility that native title might be transferred from one traditional group to another was discussed, though held not to be applicable on the facts of that case, in Dale v Moses [2007] FCAFC 82 at [120]. See also D Yarrow, ‘The Inalienability of Native Title in Australia: A Conclusion in Search of a Rationale’ in S Brennan et al (eds), Native Title from Mabo to Akiba: A Vehicle for Change and Empowerment?, The Federation Press, 2015, pp 60–74, for the view that the doctrine needs more substantial justification than has so far been provided.

84.

Mabo v Queensland (No 2) (1992) 175 CLR 1 at 61; 107 ALR 1 at 44 per Brennan J.

85.

Mabo v Queensland (No 2) (1992) 175 CLR 1 at 61; 107 ALR 1 at 44 per Brennan J; at CLR 110; ALR 83 per Deane and Gaudron JJ.

86.

Mabo v Queensland (No 2) (1992) 175 CLR 1 at 61; 107 ALR 1 at 44 per Brennan J.

87.

Mabo v Queensland (No 2) (1992) 175 CLR 1 at 88–9; 107 ALR 1 at 66–7 per Deane and Gaudron JJ; at CLR 132–3; ALR 101–2 per Dawson J.

88.

Mabo v Queensland (No 2) (1992) 175 CLR 1 at 132–3; 107 ALR 1 at 101–2 per Dawson J.

89.

Mabo v Queensland (No 2) (1992) 175 CLR 1 at 214; 107 ALR 1 at 167 per Toohey J.

90.

Mabo v Queensland (No 2) (1992) 175 CLR 1 at 59–60; 107 ALR 1 at 43.

91.

Mabo v Queensland (No 2) (1992) 175 CLR 1 at 110; 107 ALR 1 at 83 per Deane and Gaudron JJ.

92.

Mabo v Queensland (No 2) (1992) 175 CLR 1 at 110; 107 ALR 1 at 83.

93.

Mabo v Queensland (No 2) (1992) 175 CLR 1 at 59; 107 ALR 1 at 43.

94.

Mabo v Queensland (No 2) (1992) 175 CLR 1 at 110; 107 ALR 1 at 83.

95.

Mabo v Queensland (No 2) (1992) 175 CLR 1 at 188; 107 ALR 1 at 147.

96.

Mabo v Queensland (No 2) (1992) 175 CLR 1 at 188; 107 ALR 1 at 147. For a comprehensive discussion of the requirements for connection and ultimately proof of native title, see Bartlett, Native Title in Australia, note 40 above, Ch 7, discussing the position in light of the decision of the High Court in Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422; 194 ALR 538 (Yorta Yorta Aboriginal Community v Victoria).

97.

Mabo v Queensland (No 2) (1992) 175 CLR 1 at 69; 107 ALR 1 at 51.

98.

See Water Management Act 2000 (NSW) s 55, which recognises the right of native title holders in many circumstances to ‘take and use water in the exercise of native title rights’ without complying with licensing requirements.

99.

Mabo v Queensland (No 2) (1992) 175 CLR 1 at 64; 107 ALR 1 at 46 per Brennan J; at CLR 111; ALR 84 per Deane and Gaudron JJ; at CLR 196; ALR 153 per Toohey J.

100. Adeyinka Oyekan v Musendiku Adele [1957] 1 WLR 876 at 880. 101. Mabo v Queensland (No 2) (1992) 175 CLR 1 at 57; 107 ALR 1 at 41 per Brennan J; at CLR 82; ALR 60 per Deane and Gaudron JJ; at CLR 184; ALR 144 per Toohey J. 102. Mabo v Queensland (No 2) (1992) 175 CLR 1 at 64; 107 ALR 1 at 46 per Brennan J; at CLR 111; ALR 84 per Deane and Gaudron JJ. 103. Mabo v Queensland (No 2) (1992) 175 CLR 1 at 196; 107 ALR 1 at 152–3 per Toohey J. 104. Mabo v Queensland (No 2) (1992) 175 CLR 1 at 70; 107 ALR 1 at 51 per Brennan J; see also CLR 111; ALR 84 per Deane and Gaudron JJ; CLR 196; ALR 153 per Toohey J. Note that the circumstances outlined above may be subject to the operation of s 211 of the Native Title Act 1993 (Cth). 105. Mabo v Queensland (No 2) (1992) 175 CLR 1 at 65–6; 107 ALR 1 at 48 per Brennan J. 106. Mabo v Queensland (No 2) (1992) 175 CLR 1 at 46; 107 ALR 1 at 32 per Brennan J. This was explored further in Wik Peoples v Queensland (1996) 187 CLR 1 at 85 per Brennan CJ; Western Australia v Ward (2000) 99 FCR 316; 170 ALR 159 at 180–1. 107. Mabo v Queensland (No 2) (1992) 175 CLR 1 at 69; 107 ALR 1 at 51. 108. See 4.57–4.62. 109. Mabo v Queensland (No 2) (1992) 175 CLR 1 at 69; 107 ALR 1 at 51. 110. Mabo v Queensland (No 2) (1992) 175 CLR 1 at 70; 107 ALR 1 at 52. 111. Mabo v Queensland (No 2) (1992) 175 CLR 1 at 70; 107 ALR 1 at 51–2. 112. Mabo v Queensland (No 2) (1992) 175 CLR 1 at 68; 107 ALR 1 at 50. 113. Western Australia v Ward (2002) 213 CLR 1; 191 ALR 1. 114. Western Australia v Ward (2002) 213 CLR 1; 191 ALR 1 at [215]–[216], [234]. 115. De Rose v South Australia (No 2) [2005] FCAFC 110 at [157]. See the comment by R Bartlett, ‘Outstanding Matters of Proof and Extinguishment Left Over from Ward and Yorta Yorta: De Rose in the Full Federal Court’ (2005) 24 AMPLJ 219. Special leave to appeal the decision to the High Court was refused: see Fuller v De Rose [2006] HCA Trans 49. 116. Western Australia v Brown (2014) 253 CLR 507. See further discussion below at 4.58. 117. The negotiated agreement made at Crescent Head between the New South Wales Government

and the Dunghutti people involved recognition of native title and payment for impairment of it, because a subdivision of the land had taken place. The payment was reportedly 150% of the freehold value of the land. The agreement did not result in extinguishment of native title. See B Horrigan and S Young (eds), Commercial Implications of Native Title, The Federation Press, Sydney, 1997, pp 19–20. See also the agreement between Boral and the Nyungah claimants of the Swan River and Swan Coastal Plains, signed on 16 January 2003. 118. Mabo v Queensland (No 1) (1988) 166 CLR 186; 83 ALR 14; Western Australia v Commonwealth (1995) 183 CLR 373. 119. Mabo v Queensland (No 2) (1992) 175 CLR 1 at 199–205; 107 ALR 1 at 156–60. 120. The Canadian jurisdiction (where a fiduciary duty is known to exist regarding Aboriginal rights) offers guidance on the payment of damages. See Guerin v R (1984) 13 DLR (4th) 321. 121. Mabo v Queensland (No 2) (1992) 175 CLR 1 at 60; 107 ALR 1 at 43. 122. Mabo v Queensland (No 2) (1992) 175 CLR 1 at 113; 107 ALR 1 at 85–6. 123. Mabo v Queensland (No 2) (1992) 175 CLR 1 at 15; 107 ALR 1 at 7. 124. Mabo v Queensland (No 2) (1992) 175 CLR 1 at 15; 107 ALR 1 at 7. 125. Commonwealth v Yarmirr (2001) 208 CLR 1; 184 ALR 113 at [242]. 126. See Mabo v Queensland (No 2) (1992) 175 CLR 1 at 70; 107 ALR 1 at 51–2. 127. Pareroultja v Tickner (1993) 42 FCR 32 at 39. 128. Mason v Tritton (1994) 34 NSWLR 572. 129. Western Australia v Ward (2002) 213 CLR 1; 191 ALR 1 at [64]. 130. Members of the Yorta Yorta Aboriginal Community v Victoria (2001) 110 FCR 244; 180 ALR 655 at [122]–[129]. 131. Commonwealth v Yarmirr (2001) 208 CLR 1; 184 ALR 113 at [304]. Note that Gleeson CJ, Gaudron, Gummow and Hayne JJ delivered a joint judgment. McHugh, Kirby and Callinan JJ were in dissent on some issues. 132. Commonwealth v Yarmirr (2001) 208 CLR 1; 184 ALR 113 at [304]. 133. Commonwealth v Yarmirr (2001) 208 CLR 1; 184 ALR 113 at [304]; Yanner v Eaton (1999) 201 CLR 351 at 372–3. 134. De Rose v South Australia (No 2) [2005] FCAFC 110 at [101]. 135. See also the decision of the Full Court of the Federal Court in Worimi (aka Gary Dates) v Worimi Local Aboriginal Land Council (2010) 181 FCR 320 at [87] confirming that ‘connection may be mainly spiritual rather than physical; it may have evolved over time to a less specific use of all or many parts of that land; it may not involve physical access to each and every part of the land’. 136. J Gray, ‘O Canada! Van Der Peet as Guidance on the Construction of Native Title Rights: The Gladstone Decision’ (1997) 2(1) AILR 18; [1997] AUIndigLawRpr 10. 137. Brennan J in Mabo v Queensland (No 2) (1992) 175 CLR 1 at 61; 107 ALR 1 at 44 pointed out that ‘in time the laws and customs of any people will change’, but as long as the people remained an identifiable community ‘living under its laws and customs’ ‘the communal native title survives’. 138. The strongest manifestation of a ‘frozen rights’ approach requires an adherence to customs and traditions in the same state as before European contact.

139. Yorta Yorta Aboriginal Community v Victoria [1998] FCA 1606 at [109]–[121], [129]. See J Cockayne, ‘Members of Yorta Yorta Aboriginal Community v Victoria; Indigenous and Colonial Traditions in Native Title’ (2001) 25 MULR 786. 140. Yorta Yorta Aboriginal Community v Victoria [1998] FCA 1606 at [118]–[119]. 141. Mabo v Queensland (No 2) (1992) 175 CLR 1 at 60; 107 ALR 1 at 43. 142. Yorta Yorta Aboriginal Community v Victoria [1998] FCA 1606 at [129]. 143. R v Van der Peet (1996) 137 DLR (4th) 289; Van der Peet v R [1996] 2 SCR 507. 144. R v NTC Smokehouse Ltd [1996] 2 SCR 672; (1996) 137 DLR (4th) 528. 145. R v Pamajewon [1996] 2 SCR 821. 146. J Gray, ‘O Canada! Van der Peet as Guidance’, note 132 above. See also Hamlet of Baker Lake v Minister of Indian Affairs and Northern Development (1979) 107 DLR (3rd) 513 at 526–9. 147. Hayes v Northern Territory (1999) 97 FCR 32 at [30]. 148. Yanner v Eaton (1999) 201 CLR 351 at [68]. 149. Stevenson v Yasso [2006] 2 Qd R 150; by a 2:1 majority, McMurdo P and Fryberg J (McPherson JA dissenting). The case involved a specific provision of s 14 of the Fisheries Act 1994 (Qld), but reference was made to native title cases in coming to the decision. 150. Stevenson v Yasso [2006] 2 Qd R 150 at [49]. 151. At first instance, per Olney J, Yorta Yorta Aboriginal Community v Victoria [1998] FCA 1606. On appeal to the Full Federal Court, Yorta Yorta Aboriginal Community v Victoria (2001) 110 FCR 244; 180 ALR 655. 152. The Act is discussed below at 4.63–4.74. 153. Yorta Yorta Aboriginal Community v Victoria (2001) 110 FCR 244; 180 ALR 655 at [122]. 154. Yorta Yorta Aboriginal Community v Victoria (2001) 110 FCR 244; 180 ALR 655 at [122]. 155. Yorta Yorta Aboriginal Community v Victoria (2001) 110 FCR 244; 180 ALR 655 at [127]. 156. Commonwealth v Yarmirr (2001) 208 CLR 1; 184 ALR 113 at [307] (emphasis in original). Note that Kirby J was in dissent from the majority in regard to several aspects of the decision. 157. Cockayne, ‘Members of Yorta Yorta Aboriginal Community v Victoria; Indigenous and Colonial Traditions in Native Title’, note 139 above. 158. Cockayne makes this argument: Cockayne, ‘Members of Yorta Yorta Aboriginal Community v Victoria; Indigenous and Colonial Traditions in Native Title’, note 139 above. See also A Reilly, ‘Land Rights — From Past to Present to Absent’ (2001) 26(3) Alt LJ 143. 159. Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422; 194 ALR 538. For discussion and critique, see J Gray, ‘The Lost Promise of Mabo: An Update on the Legal Struggle for Land Rights in Australia with Particular Reference to the Ward and Yorta Yorta decisions’ (2003) 23 Canadian Journal of Native Studies 305–48; R Bartlett, ‘An Obsession with Traditional Laws and Customs Creates Difficulty Establishing Native Title Claims in the South: Yorta Yorta’ (2003) 31 WALR 35– 46; R Bartlett, ‘Humpies not Houses, or The Denial of Native Title: A Comparative Assessment of Australia’s Museum Mentality’ (2003) 10 APLJ 83. Gray and Bartlett both refer to the devastating critique of the High Court decisions in Yorta Yorta and Ward by Noel Pearson: see N Pearson, ‘The High Court’s Abandonment of “The Time-Honoured Methodology of the Common Law” in its Interpretation of Native Title in Mirriuwung Gajerrong and Yorta Yorta’ (2003) 7 Newcastle Law

Review 1. 160. Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422; 194 ALR 538 at [40]. 161. Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422; 194 ALR 538 at [31]. 162. Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422; 194 ALR 538 at [36]. 163. Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422; 194 ALR 538 at [33]. 164. Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422; 194 ALR 538 at [34]. 165. Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422; 194 ALR 538 at [35]. 166. See Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422; 194 ALR 538 at [33]. 167. See Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422; 194 ALR 538 at [35] (emphasis in original). 168. Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422; 194 ALR 538 at [79]. 169. Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422; 194 ALR 538 at [80]. 170. Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422; 194 ALR 538 at [82]. 171. Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422; 194 ALR 538 at [83] (emphasis in original). 172. S Young, The Trouble with Tradition: Native Title and Cultural Change, The Federation Press, 2008 provides a detailed critique of what he calls the ‘over-particularity’ of the High Court’s view of tradition in Yorta Yorta. 173. ‘High Court Dismisses Yorta Yorta Appeal’, National Native Title Tribunal media release, 12 December 2002, available at: (enter title of media release in search box to locate). 174. For a general overview of matters to be considered in establishing ‘connection’ with land, see V Hughston SC, ‘Native Title Connection: An Overview’ (2013) 118 Precedent 8–12. 175. Risk v Northern Territory of Australia [2006] FCA 404; see the conclusion expressed after a lengthy review of the evidence (at [834]). The trial decision was upheld on appeal in Risk v Northern Territory of Australia (2007) 240 ALR 74, and special leave to appeal was refused by the High Court: Risk v Northern Territory of Australia [2007] HCATrans 472. 176. Jango v Northern Territory of Australia (2006) 152 FCR 150, summarised in [499]–[507]. This case and the Risk decision, note 175 above, are discussed in R Webb and G Kennedy, ‘The Application of Yorta Yorta to Native Title Claims in the Northern Territory — The City and the Outback’ (2006) 25 AMPLJ 201–13. The trial decision was upheld on appeal in Jango v Northern Territory of Australia (2007) 159 FCR 531. 177. Rubibi Community v Western Australia (No 7) [2006] FCA 459. The decision was upheld on appeal in Western Australia v Sebastian (2008) 173 FCR 1. 178. Sampi v Western Australia (2010) 266 ALR 537. 179. For comment, see M Burns, ‘Challenging the Assumptions of Positivism: An Analysis of the Concept of Society in Sampi on Behalf of the Bardi and Jawi People v Western Australia [2010] and Bodney v Bennell [2008]’ (2011) 4(7) Land, Rights, Laws: Issues of Native Title 1–15. 180. Bennell v Western Australia (2006) 153 FCR 120. His Honour was careful to point out that native title claims could not be made against freehold land in the region, and that people’s ‘back yards’ would not be affected (see the summary of the judgment accompanying the formal report, at p 10).

181. Bodney v Bennell (2008) 167 FCR 84. 182. For comment on the Full Court judgment, see S Young, ‘One Step Forward and One Step Back: The Noongar South-West Native Title Claim’ (2008) 23 Aust Prop Law Bull 14–17; L Strelein, ‘Continuity and Change’ in Compromised Jurisprudence: Native Title Cases Since Mabo, 2nd ed, AIATSIS, 2009, Ch 10; Burns, ‘Challenging the Assumptions of Positivism: An Analysis of the Concept of Society in Sampi on behalf of the Bardi and Jawi People v Western Australia [2010] and Bodney v Bennell [2008]’, note 179 above. 183. Bodney v Bennell (2008) 167 FCR 84 at [72]–[73]. For discussion of ‘connection’ issues arising in Canada, see the decision in Tsilhqot’in Nation v British Columbia 2014 SCC 44, holding that connection can be established over a large area used for hunting and fishing even if close settlement had only taken place in a smaller area. 184. For background, see M Mccagh, ‘Native Title in the Southwest: the Noongar Recognition Bill’ (2015) 8(18) Indigenous Law Bulletin 26–9; G Kelly and S Bradfield, ‘Negotiating a Noongar Native Title Settlement’ in Brennan et al (eds), Native Title from Mabo to Akiba: A Vehicle for Change and Empowerment?, note 83 above, pp 249–56. 185. McGlade v Native Title Registrar [2017] FCAFC 10. 186. See the Native Title Amendment (Indigenous Land Use Agreements) Bill 2017 (Cth), approved by the House of Representatives on 16 February 2017, and introduced into the Senate on that day. 187. Bodney v Bennell (2008) 167 FCR 84. 188. See Australian Law Reform Commission, Connection to Country: Review of the Native Title Act 1993 (Cth), ALRC Report 126, Commonwealth of Australia, April 2015. 189. See above at 4.25. 190. Mabo v Queensland (No 2) (1992) 175 CLR 1; 107 ALR 1. 191. Western Australia v Commonwealth (1995) 183 CLR 373 at 453. 192. Native Title Act 1993 (Cth) s 24MD. 193. Commonwealth Constitution s 51(xxxi). 194. See 4.70. 195. The Australian Government did not assert sovereignty beyond this point until 1990, when it asserted sovereignty as far as the 12-nautical mile limit. 196. Commonwealth v Yarmirr (2001) 208 CLR 1; 184 ALR 113 at [49]. See comment by D J Cremean, ‘The Common Law of the Realm (Commonwealth of Australia v Yarmirr)’ (2002) 2 OUCLJ 257. 197. Commonwealth v Yarmirr (2001) 208 CLR 1; 184 ALR 113 at [87]. 198. Lardil Peoples v Queensland [2004] FCA 298. See comment by S Huber, ‘The Wellesley Island Decision: Offshore Native Title Post Yarmirr and Ward’ (2004) 23 UQLJ 242; J Behrendt, ‘Lardil Peoples v State of Queensland [2004] FCA 298’ (2004) 6 ILB 14. 199. Gumana v Northern Territory (2005) 141 FCR 457. See comment by G Hiley, ‘Native Title for Blue Mud Bay and the Inter-tidal Zone’ (2005) 7 Native Title News 2. On appeal in Gumana v Northern Territory of Australia [2007] FCAFC 23, the Full Court upheld the finding that native title rights over the seabed did not give exclusive possession, while finding that a grant under specific Land Rights legislation of fee simple over certain parts of the ‘intertidal waters’ did give the right to exclude others from those areas.

200. Akiba on behalf of the Torres Strait Islanders of the Regional Seas Claim Group v State of Queensland (No 2) [2010] FCA 643. For comment, see S Hepburn, ‘Native Title Rights in the Territorial Sea and Beyond: Exclusivity and Commerce in the Akiba Decision’ (2011) 34 UNSWLJ 159–81. 201. The question of the extent of a native title claim over waters was also considered recently in the Canadian decision of Lax Kw’alaams Indian Band v Canada (Attorney General), 2011 SCC 56 (10 November 2011). The Supreme Court of Canada held that an indigenous custom of trading in the grease produced by one species of fish, did not entitle the indigenous group to claim the right to control all commercial fishing within the area covered by the tribal claim. 202. Commonwealth v Akiba (2012) 204 FCR 260. 203. Akiba v Commonwealth (2013) 250 CLR 209. For comment see G Lauder and L Strelein, ‘Native Title and Commonwealth Fisheries: the Torres Strait sea claim’ (2013) 118 Precedent 13–19. 204. Karpany v Dietman (2013) 252 CLR 507. See L Butterly, ‘“For the reasons given in Akiba”: Karpany v Dietman [2013] HCA 47’ (2014) 8(10) Indigenous Law Bulletin 23–6. 205. For detailed comment on ‘interpretative choices’ available to courts in determining whether native title has been extinguished where activity is regulated, including discussion of Akiba and Karpany, see S Hepburn, ‘Statutory Interpretation and Native Title Extinguishment: Expanding Constructional Choices’ (2015) 38 UNSWLJ 587–617. 206. Re Wadi Wadi People’s Native Title Application (1995) 129 ALR 167 at 178–87. 207. Coe v Commonwealth (1993) 68 ALJR 110. 208. Thorpe v Commonwealth (1997) 71 ALJR 767 at 776. Argument for a broad fiduciary duty owed by the Commonwealth to Indigenous peoples was defeated in Kruger v Commonwealth (1997) 190 CLR 1. 209. C Hughes, ‘The Fiduciary Obligations of the Crown to Aborigines: Lessons from the United States and Canada’ (1993) 16(1) UNSWLJ 70; L Behrendt, ‘Bargaining on More than Good Will: Recognising a Fiduciary Obligation in Native Title’ in Land, Rights, Laws: Issues of Native Title, Vol 2, Australian Institute of Aboriginal and Torres Strait Islander Studies, Canberra, 1994; L Behrendt, ‘Responsibility in Governance: Implied Rights, Fiduciary Obligations and Indigenous Peoples’ (2002) 61(2) Aust J Pub Admin 106; Bartlett, Native Title in Australia, note 40 above, Ch 29. 210. Limitation Act 1969 (NSW); Williams v Minister, Aboriginal Land Rights Act (1994) 35 NSWLR 497. 211. 1975 marks the commencement of the Racial Discrimination Act 1975 (Cth). 212. D Heydon and P Loughlin, Cases and Materials on Equity and Trusts, 6th ed, LexisNexis Butterworths, Australia, 2002, p 211. 213. Sir Anthony Mason, ‘Themes and Prospects’ in P D Finn (ed), Essays in Equity, Law Book Co, Sydney, 1985, p 246. 214. In the Canadian decision of Lax Kw’alaams Indian Band v Canada (Attorney-General) 2011 SCC 56, a claim for recognition of a fiduciary duty by the Crown was rejected on the basis that no treaty or promise made by the Crown existed that would create such a duty. 215. Mabo v Queensland (No 2) (1992) 175 CLR 1; 107 ALR 1. See above 4.17. 216. S Motha, ‘Mabo, Encountering the Epistemic Limit of the Recognition of “Difference”’ (1998) 7(1) Griffith Law Review 79 at 83. 217. Section 223(1) of the Native Title Act recognises individual and group rights in relation to land or waters that are recognised by the common law.

218. Mabo v Queensland (No 2) (1992) 175 CLR 1 at 89; 107 ALR 1 at 67. 219. Mabo v Queensland (No 2) (1992) 175 CLR 1 at 51; 107 ALR 1 at 36. 220. United States v Alcea Band of Tillamooks 329 US 40 (1946). 221. Delgamuukw v British Columbia [1998] 1 CNLR 14 at 113. 222. See the discussion in R Bartlett, Native Title in Australia, note 40 above, pp 353–5. 223. Contrast this with the general principle of contract law, which upholds privity of contract, so that a right is enforceable only against the parties to the contract. 224. Mabo v Queensland (No 2) (1992) 175 CLR 1 at 187; 107 ALR 1 at 6. 225. Mabo v Queensland (No 2) (1992) 175 CLR 1 at 196; 107 ALR 1 at 153. According to Toohey J, if extinguishment took place, compensation would flow. Wrongful extinguishment could not occur. However, in Wik Peoples v Queensland (1996) 187 CLR 1; 141 ALR 129, Toohey J concluded that native title could be extinguished without compensation if there is a clear and plain intention for that to occur. See the discussion in Bartlett, Native Title in Australia, note 40 above, pp 346–50. 226. Mabo v Queensland (No 2) (1992) 175 CLR 1 at 213; 107 ALR 1 at 167. 227. Mabo v Queensland (No 2) (1992) 175 CLR 1 at 206; 107 ALR 1 at 161. See also Chapter 3. 228. Mabo v Queensland (No 2) (1992) 175 CLR 1 at 187; 107 ALR 1 at 146. 229. Mabo v Queensland (No 2) (1992) 175 CLR 1 at 51; 107 ALR 1 at 36. 230. Mabo v Queensland (No 2) (1992) 175 CLR 1 at 60; 107 ALR 1 at 43 231. Mabo v Queensland (No 2) (1992) 175 CLR 1 at 61; 107 ALR 1 at 44. 232. N Pearson, ‘Principles of Communal Native Title’ (2000) 5(3) Indigenous Law Bulletin 4. 233. Mabo v Queensland (No 2) (1992) 175 CLR 1 at 60; 107 ALR 1 at 43. 234. See above at 4.38. 235. See the discussion of the need to think creatively at 4.47. See also Webber, ‘Beyond Regret: Mabo’s Implications for Australian Constitutionalism’, note 1 above, p 61. 236. Wik Peoples v Queensland (1996) 187 CLR 1 at 126–7; 141 ALR 129 at 185. 237. Wik Peoples v Queensland (1996) 187 CLR 1 at 169; 141 ALR 129 at 220. 238. Bartlett, Native Title in Australia, note 40 above, p 347. This point was taken up in a slightly different fashion in Western Australia v Ward (2002) 213 CLR 1; 191 ALR 1 at [122], where the court rejected the ‘argument that native title can be treated differently from other forms of title because native title has different characteristics from those other forms of title and derives from a different source’. 239. Commonwealth v Yarmirr (2001) 208 CLR 1; 184 ALR 113 at [11]. 240. See Chapter 1 for a more detailed discussion. 241. Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141. 242. Mabo v Queensland (No 2) (1992) 175 CLR 1 at 59; 107 ALR 1 at 42 per Brennan J; at CLR 88, 110; ALR 66 and 83 per Deane and Gaudron JJ. See also, on this issue, the discussion by Yarrow, ‘The Inalienability of Native Title in Australia: A Conclusion in Search of a Rationale’, note 83 above. 243. It is acknowledged that, technically, a lease has historically been classified as personalty, but today it

is treated as proprietary in nature. 244. This view is supported by R Bartlett, The Mabo Decision — Commentary and Full Text of the Decision in Mabo and Others v State of Queensland, Butterworths, Sydney, 1993, p xv. Further, cases such as Commonwealth v Yarmirr (2001) 208 CLR 1; 184 ALR 113 have spelled out the various ways in which native title rights may be used and enjoyed: see Yarmirr at [70]. 245. Calder v Attorney-General of British Columbia (1973) 34 DLR (3rd) 145 (SC Canada). 246. St Catherine’s Milling and Lumber Co v R (1888) 14 App Cas 46. 247. Ward v Western Australia (1998) 159 ALR 483 (Lee J), known as the Miriuwung Gajerrong determination. 248. Hayes v Northern Territory (1999) 97 FCR 32, known as the Arrernte determination. 249. See L Strelein, ‘Conceptualising Native Title’ (2001) 23(1) Syd LR 95 at 99. See also Lee J’s Minute of Order in the Miriuwung Gajgerrong determination; Olney J’s Draft Minute of Proposed Determination of Native Title in the Arrernte determination. 250. Western Australia v Ward (2002) 213 CLR 1; 191 ALR 1 at [51]. 251. Commonwealth v Yarmirr (2001) 208 CLR 1; 184 ALR 113 at [87]. 252. The question of inconsistency is discussed later in this chapter in regard to Wik Peoples v Queensland (1996) 187 CLR 1; 141 ALR 129. See 4.73. 253. See Chapter 10. 254. Mabo v Queensland (No 2) (1992) 175 CLR 1 at 89; 107 ALR 1 at 66. 255. Mabo v Queensland (No 2) (1992) 175 CLR 1 at 89; 107 ALR 1 at 66–7. 256. Attorney-General (Quebec) v Attorney-General (Canada) [1921] 1 AC 401 at 408. 257. Delgamuukw v British Columbia [1998] 1 CNLR 14 at 113. 258. Mabo v Queensland (No 2) (1992) 175 CLR 1 at 51; 107 ALR 1 at 36. 259. Mabo v Queensland (No 2) (1992) 175 CLR 1 at 51; 107 ALR 1 at 36 per Brennan J. 260. Palmer, ‘Aboriginal Land Ownership Among the Southern Pitjantjatjara of the Great Victorian Desert’ in McRae et al, Indigenous Legal Issues: Commentary and Materials, note 20 above, p 90. 261. Mabo v Queensland (No 2) (1992) 175 CLR 51; 107 ALR 1 at 36 per Brennan J. 262. Commonwealth v Yarmirr (2001) 208 CLR 1; 184 ALR 113 at [301]. 263. Western Australia v Ward (2002) 213 CLR 1; 191 ALR 1. 264. Wik Peoples v Queensland (1996) 187 CLR 1; 141 ALR 129. 265. Western Australia v Ward (2002) 213 CLR 1; 191 ALR 1 at [477]. 266. Another example of an interest that can be alienated in limited circumstances only (eg, pur autre vie), but still remains a property interest, is a life estate. See B Edgeworth, C Rossiter, P O’Connor and A Goodwin, Sackville and Neave Australian Property Law, 10th ed, LexisNexis Butterworths, Australia, 2016, p 171. 267. Western Australia v Ward (2002) 213 CLR 1; 191 ALR 1 at [89]. 268. Western Australia v Ward (2002) 213 CLR 1; 191 ALR 1 at [89]. 269. One of these benefits is that compensation would flow on its loss. This issue is discussed later: see 4.50.

270. Western Australia v Ward (2002) 213 CLR 1; 191 ALR 1 at [82]. 271. Bartlett seems to favour a proprietary analysis of native title: Bartlett, Native Title in Australia, note 40 above, Ch 17. Note also the view of Brennan J in Mabo v Queensland (No 2) (1992) 175 CLR 1 at 58–62; 107 ALR 1 at 42–5. 272. Western Australia v Ward (2002) 213 CLR 1; 191 ALR 1 at [90]. 273. See Commonwealth v Yarmirr (2001) 208 CLR 1; 184 ALR 113. 274. This is the approach adopted in Brennan J’s judgment in Mabo v Queensland (No 2) (1992) 175 CLR 1; 107 ALR 1, and implicitly followed by the great majority of subsequent commentators and judgments. See, especially, his discussion of the recognition and enforcement of native title by the ordinary courts at CLR 58–62; ALR 42–5 of that decision. 275. Webber, ‘Beyond Regret: Mabo’s Implications for Australian Constitutionalism’, note 1 above, p 61. 276. Webber, ‘Beyond Regret: Mabo’s Implications for Australian Constitutionalism’, note 1 above, p 61. 277. D Sweeney, ‘Fishing, Hunting and Gathering Rights of Aboriginal Peoples in Australia’ (1993) 16(1) UNSWLJ 97 at 104. 278. M Harris, Native Title in Australia — the Frustration of Indigenous Aspirations, paper presented to the Law and Society Conference, Central European University, Budapest, Hungary, 4–7 July 2001. 279. For a discussion of incommensurability, a concept related to the process of interpretation of Indigenous traditions and customs, see P Fitzpatrick, ‘Passions Out of Place, Incommensurability and Resistance’ (1995) 1(1) Law and Critique 96. 280. Strelein, ‘Conceptualising Native Title’, note 249, at 97. 281. Bartlett, Native Title in Australia, note 40 above, Ch 17; R Bartlett, ‘The Proprietary Nature of Native Title’ (1993) 6 APLJ 1; K McNeil, Common Law Aboriginal Title, Oxford University Press, Oxford, 1989; D Rose, ‘The 10 Point Plan — Its Constitutional Validity’ (1998) 17 AMPLJ 216 at 225; K Gray and S Gray, ‘The Idea of Property in Land’ in S Bright and J Dewar (eds), Land Law: Themes and Perspectives, Oxford University Press, Oxford, 1998. 282. N Pearson, ‘Concept of Native Title at Common Law’, Land Rights Past Present and Future, Proceedings of the Conference on 20 Years of Land Rights, Northern and Central Land Councils, Canberra, 1991, p 118. 283. With the exception of Kirby J. 284. Western Australia v Ward (2002) 213 CLR 1; 191 ALR 1 at [14]. 285. Clunies-Ross v Commonwealth (1984) 155 CLR 193 at 202; 55 ALR 609 at 612. 286. Minister of State for the Army v Dalziel (1944) 68 CLR 261 at 285. 287. Bank of New South Wales v Commonwealth (1948) 76 CLR 1 at 349. 288. For a more detailed analysis of this and other points concerning compensation, see Bartlett, Native Title in Australia, note 40 above, Ch 28. 289. See Georgiadis v Australia and Overseas Telecommunications Corp (1994) 179 CLR 297 at 314 and 319– 20; 119 ALR 629 at 633–5 and 639; Bartlett, Native Title in Australia, note 40 above, p 351. 290. S Brennan, ‘Native Title and the “Acquisition of Property” under the Australian Constitution’ (2004) 28 MULR 28. See also C Winnett, ‘“Just Terms” or “Just Money”: Section 51(xxxi),

Native Title and Non-Monetary Terms of Acquisition’ (2010) 33 UNSWLJ 776–807. It should be noted that this view is not affected by the decision in Wurridjal v The Commonwealth of Australia (2009) 237 CLR 309, dealing with the question as to whether leasehold interests had been compulsorily acquired under legislation implementing the 2007 ‘Northern Territory intervention’. The interests that were held by the majority to have been acquired under the legislation (and which another majority held had been compensated for on just terms) were explicitly said not to be ‘native title’ interests, but interests held under other specific land rights legislation. For comment on this decision, see M T Stubbs, ‘The Acquisition of Indigenous Property on Just Terms: Wurridjal v Commonwealth’ (2011) 33 Syd LR 119. 291. Commonwealth v Yarmirr (2001) 208 CLR 1; 184 ALR 113 at [11]. 292. Quoting Tucker v US Department of Commerce 958 F 2d 1411 at 1413 (7th Cir 1992) per Posner J. 293. Commonwealth v Yarmirr (2001) 208 CLR 1; 184 ALR 113 at [236] per McHugh J, quoting himself and Gaudron J in Breen v Williams (1996) 186 CLR 71 at 115. 294. Perhaps the respect should arise from a desire to preserve doctrinal purity. 295. If the instances where native title was extinguished were reduced, the need for compensation for its loss would be reduced. 296. Webber, ‘Beyond Regret: Mabo’s Implications for Australian Constitutionalism’, note 1 above, p 82. 297. Pearson, ‘Principles of Communal Native Title’, note 232 above. 298. Strelein, ‘Conceptualising Native Title’, note 249 above, p 98. 299. Western Australia v Ward (2000) 99 FCR 316; 170 ALR 159 at 178. 300. Western Australia v Ward (2000) 99 FCR 316; 170 ALR 159 at 178. See the discussion in Strelein, ‘Conceptualising Native Title’, note 249 above, p 102. 301. Fejo v Northern Territory (1998) 195 CLR 96 at 151. 302. Commonwealth v Yarmirr (2001) 208 CLR 1; 184 ALR 113 at [12]. 303. Commonwealth v Yarmirr (2001) 208 CLR 1; 184 ALR 113 at [12]. 304. Western Australia v Ward (2002) 213 CLR 1; 191 ALR 1 at [95]. 305. Western Australia v Ward (2002) 213 CLR 1; 191 ALR 1 at [95]. Note that Kirby J was in the majority but he expressed his views in a separate judgment. 306. Western Australia v Ward (2002) 213 CLR 1; 191 ALR 1 at [95]. 307. Strelein, ‘Conceptualising Native Title’, note 249 above, p 103. 308. See the influential article by J E Penner, ‘The Bundle of Rights Picture of Property’ (1996) 43 UCLA L Rev 711; T W Merrill and H E Smith, ‘What Happened to Property in Law and Economics?’ (2001) 111 Yale LJ 357; the detailed symposium on the issue in (2011) 8(3) Econ Journal Watch: Scholarly Comments on Academic Economics, available online at . 309. Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ referred to the existence of the intersection in Fejo v Northern Territory (1998) CLR 96 at 128, and in Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422; 194 ALR 538 at [31], [39]–[42]. 310. Western Australia v Ward (2002) 213 CLR 1; 191 ALR 1 at [85]. 311. Webber, ‘Beyond Regret: Mabo’s Implications for Australian Constitutionalism’, note 1 above, p

61. 312. Western Australia v Ward (2002) 213 CLR 1; 191 ALR 1 at [580]. 313. Western Australia v Ward (2002) 213 CLR 1; 191 ALR 1 at [580]. 314. Western Australia v Ward (2002) 213 CLR 1; 191 ALR 1 at [582]. 315. Western Australia v Ward (2002) 213 CLR 1; 191 ALR 1 at [578]. 316. Griffiths v Northern Territory of Australia (No 3) [2016] FCA 900. 317. Mabo v Queensland (No 2) (1992) 175 CLR 1; 107 ALR 1. 318. See Brown (on behalf of the Ngarla People) v State of Western Australia (No 2) [2010] FCA 498 at [66] per Bennett J: ‘There is no dispute that extinguishment can occur at common law and that common law extinguishment is not contrary to the [Native Title Act]’. 319. Wik Peoples v Queensland (1996) 187 CLR 1; 141 ALR 129. 320. Yanner v Eaton (1999) 201 CLR 351; 166 ALR 258. 321. Wik Peoples v Queensland (1996) 187 CLR 1; 141 ALR 129. 322. Western Australia v Ward (2000) 99 FCR 316; 170 ALR 159. 323. Western Australia v Ward (2000) 99 FCR 316; 170 ALR 159 at 189. 324. Akiba v Commonwealth (2013) 250 CLR 209; Karpany v Dietman (2013) 252 CLR 507. 325. Wik Peoples v Queensland (1996) 187 CLR 1; 141 ALR 129; Fejo v Northern Territory (1998) 195 CLR 96; Yanner v Eaton (1999) 201 CLR 351; 166 ALR 258. 326. Western Australia v Ward (2002) 213 CLR 1; 191 ALR 1 at [2]. For comment, see K Stoeckel, ‘Western Australia v Ward & Ors’ (2003) 25 Syd LR 255. 327. For more information about the claim, see the National Native Title Tribunal website at , and search for Ward. 328. Delgamuukw v British Columbia (1993) 104 DLR (4th) 470 at 670–2. 329. Ward v Western Australia (1998) 159 ALR 483 at 508. 330. Western Australia v Ward (2000) 99 FCR 316; 170 ALR 159 at [71]. 331. See also comments in Western Australia v Ward (2000) 99 FCR 316; 170 ALR 159 at [81]. 332. Western Australia v Ward (2000) 99 FCR 316; 170 ALR 159 at [684] point (7). 333. Western Australia v Ward (2002) 213 CLR 1; 191 ALR 1 at [82]. 334. Western Australia v Ward (2002) 213 CLR 1; 191 ALR 1 at [194]. 335. Western Australia v Brown (2014) 253 CLR 507. 336. Brown (on behalf of the Ngarla People) v State of Western Australia (No 2) [2010] FCA 498. See the conclusion that native title had not been extinguished on ‘non-developed’ areas: at [208]. 337. Western Australia v Brown (2014) 253 CLR 507 at [64]. 338. De Rose v South Australia (No 2) (2005) 145 FCR 290. 339. Western Australia v Brown (2014) 253 CLR 507 at [37] and [60]–[62]. 340. Queensland v Congoo (2015) 256 CLR 239. 341. Congoo (on behalf of Bar-Barrum People) (No 4) v Queensland (2014) 218 FCR 358.

342. This is the effect of s 23 of the Judiciary Act 1903 (Cth) in an appeal from a superior court of record. 343. For comment on the decision, see M Stephenson, ‘The Doctrine of Extinguishment: And Then There was Congoo’ (2016) 6 Property Law Review 3–26; Z Bush, ‘Queensland v Congoo: The confused reemergence of a rationale of equality?’ (2015) 39 UWALR 451–68. 344. Hayes v Northern Territory (1999) 97 FCR 32. 345. Western Australia v Ward (2002) 213 CLR 1; 191 ALR 1. 346. Western Australia v Ward (2002) 213 CLR 1; 191 ALR 1 at [215]. 347. Western Australia v Ward (2002) 213 CLR 1; 191 ALR 1 at [215]. 348. Western Australia v Ward (2002) 213 CLR 1; 191 ALR 1 at [221]. 349. Fejo v Northern Territory (1998) 195 CLR 96. 350. Yanner v Eaton (1999) 201 CLR 351; 166 ALR 258 at 288; Fejo v Northern Territory (1998) 195 CLR 96 at 151 per Kirby J. 351. Mabo v Queensland (No 2) (1992) 175 CLR 1 at 69–70; 107 ALR 1 at 51 per Brennan J; at CLR 110; ALR 83 per Deane and Gaudron JJ; at CLR 158; ALR 123 per Dawson J. 352. Wik Peoples v Queensland (1996) 187 CLR 1; 141 ALR 129. 353. For a detailed discussion of the Wik case, see 4.73–4.74. 354. Western Australia v Ward (2002) 213 CLR 1; 191 ALR 1 at [366]. 355. Western Australia v Ward (2002) 213 CLR 1; 191 ALR 1 at [368], [369]. 356. Wilson v Anderson (2002) 213 CLR 401; 190 ALR 313. 357. Western Australia v Brown (2014) 253 CLR 507. 358. Western Australia v Brown (2014) 253 CLR 507 at [45]; see also [52], [53], [55], [57] and [63]. 359. Mabo v Queensland (No 2) (1992) 175 CLR 1; 107 ALR 1. 360. Following the decision, the Commonwealth Government announced that a consultative process would take place between the Commonwealth, the states and territories, Aboriginal and Torres Strait Islander organisations, and industry. The group would be chaired by the then Prime Minister and would work with an interdepartmental committee of officials. The committee came to be known as the IDC (Inter-Departmental Committee). One of the options for discussion was a statutory framework. 361. Western Australia v Commonwealth (1995) 183 CLR 373 at 470 found that it was only post-1975 titles that were at risk. 362. N Pearson, ‘The Law Must Dig Deeper to Find Land Rights’, The Australian, 8 June 1993, p 11, explored these competing approaches. 363. North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595 at 613. 364. Bartlett, Native Title in Australia, note 40 above, Ch 14; P Butt, Land Law, 6th ed, Lawbook Co, Sydney, 2010, pp 986–1028; M Perry and S Lloyd, Australian Native Title Law, Lawbook Co, Sydney, 2003. 365. Special measures are defined under s 8 of the Racial Discrimination Act in terms of Art 1, para 4 of the International Convention on the Elimination of All Forms of Racial Discrimination. 366. Bartlett, Native Title in Australia, note 40 above, p 47.

367. See Native Title Act 1993 (Cth) s 228, which defines ‘past act’ for the purposes of validation. 368. Native Title Act 1993 (Cth) s 7(2). 369. Commonwealth of Australia, Hansard, Senate, 16 December 1993, p 5455 (Senator Gareth Evans); quoted in Bartlett, Native Title in Australia, note 40 above, p 811. 370. Mabo v Queensland (No 2) (1992) 175 CLR 1 at 58; 107 ALR 1 at 42. 371. Saibai People v Queensland [1999] FCA 158; Mualgal People v Queensland [1999] FCA 157; Hayes v Northern Territory (1999) 97 FCR 32. 372. Commonwealth v Yarmirr (2001) 208 CLR 1; 184 ALR 113 at [94]. 373. Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422; 194 ALR 538 at [76]–[77] per Gleeson CJ, Gummow and Hayne JJ. 374. McHugh J expressed some personal doubt that this was in fact what Parliament had intended, but felt bound by the court’s previous decisions to accept this limited view of s 223(1)(c): see Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422; 194 ALR 538 at [133]–[134]. For a detailed critique, see Pearson, ‘The High Court’s Abandonment of “The Time-Honoured Methodology of the Common Law” in its Interpretation of Native Title in Mirriuwung Gajerrong and Yorta Yorta’, note 159 above. 375. This did not occur seamlessly. For example, the Western Australian Land (Titles and Traditional Usage) Act 1993 (WA), which purported to extinguish any surviving native title in that state and replace it with statutory rights for the traditional use of land, was found to be unconstitutional in Western Australia v Commonwealth (1995) 183 CLR 373. Eventually, the Titles Validation Act 1995 (WA) was enacted, which validated past dealings inconsistent with native title. 376. See also Pt 8A of the Native Title Act, which sets up the Register of ILUAs. 377. For an overview of ILUAs and their operation, see Butt, Land Law, note 364 above, [25164]– [25168]; K Mackie, E Histed and J Page, Australian Land Law in Context, Oxford University Press, Melbourne 2011, pp 119–20. 378. See NNTT, Statistics: Current Applications (accessed 5 May 2017), . 379. Native Title Act 1993 (Cth) s 19ff. 380. Section 19 of the Native Title Act applies the provisions of ss 15–16 of the Act, dealing with Commonwealth Acts, to analogous state Acts. 381. Native Title Act 1993 (Cth) s 229. 382. Native Title Act 1993 (Cth) s 230. 383. Native Title Act 1993 (Cth) s 231. 384. Native Title Act 1993 (Cth) ss 15(1)(d), 232. For the ‘non-extinguishment’ principle, see s 238 of the Act. 385. For an overview of the validation provisions, see G J Neate (ed), Native Title Service, LexisNexis Butterworths, Australia, looseleaf, [1680.30]ff. 386. Mabo v Queensland (No 2) (1992) 175 CLR 1; 107 ALR 1. 387. Wik Peoples v Queensland (1996) 187 CLR 1; 141 ALR 129. 388. See the Native Title Amendment Act 1998 (Cth).

389. See G Griffith, The Native Title Debate: Background and Current Issues, New South Wales Parliamentary Library Research Service, Briefing Paper No 15/98, p 12. 390. Native Title Act 1993 (Cth) s 18(1). 391. Native Title Act 1993 (Cth) s 51(1). 392. Native Title Act 1993 (Cth) ss 17(2), 20 and 51(3). See also the ‘similar compensable interest test’ in s 240 of the Act. 393. Pearson, ‘The Law Must Dig Deeper to Find Land Rights’, note 362 above, p 11, explored these competing approaches. 394. Mabo v Queensland (No 2) (1992) 175 CLR 1 at 101; 107 ALR 1 at 76. Arguments have been raised that the solatium aspect of compensation (by which, in some cases, a payment may be made for wounded feelings) may be relevant. 395. Griffiths v Northern Territory of Australia (No 3) [2016] FCA 900. 396. Native Title Act 1993 (Cth) ss 17(2)(a), 17(3), 20 and 51(1). 397. See 4.75–4.81. 398. This serves as a contrast to compensation in the context of future acts, where it is envisaged that compensation may be paid by third parties. 399. Native Title Act 1993 (Cth) s 51(6). See Butt, Land Law, note 364 above, p 1007, [2599]. 400. Jango v Northern Territory of Australia (2006) 152 FCR 150; upheld on appeal in Jango v Northern Territory of Australia (2007) 159 FCR 531 with no real discussion of the compensation issues. Compensation is discussed in a paper by T Jowett and K Williams, ‘Jango: Payment of Compensation for the Extinguishment of Native Title’, presented to the AIATSIS Conference, Darwin, 23 May 2006; and in T Nau, ‘Looking Abroad: Models of Just Compensation Under the Native Title Act’ (2009) 93 Reform 18. 401. Jango v Northern Territory of Australia (2006) 152 FCR 150 at [39]. 402. Jango v Northern Territory of Australia (2006) 152 FCR 150 at [774]. 403. De Rose v South Australia [2013] FCA 988. For comment, see W Song, ‘What’s Next for Native Title Compensation: the De Rose decision and the assessment of native title rights and interests’ (2014) 8(10) Indigenous Law Bulletin 11–14. 404. Griffiths v Northern Territory of Australia (No 3) [2016] FCA 900. 405. For commentary, see F Martin, ‘Native Title Compensation Awarded to Timber Creek Claimants in First Judgement of its Kind’ (Dec 2016) Native Title Newsletter 16–18; F Martin, ‘Compensation for Extinguishment of Native Title: Griffiths v Northern Territory Represents a Major Step Forward for Native Title Holders’ (2016) 8/27 Indigenous Law Bulletin 8–11. 406. Confusingly, of course, many of these ‘future’ acts are now in the past from the perspective of those who are dealing with the Act after the relevant provisions have commenced. 407. Discussed in more detail below at 4.75ff. 408. For a summary, see Perry and Lloyd, Australian Native Title Law, note 364 above, pp 32–3. 409. For more information see Perry and Lloyd, Australian Native Title Law, note 364 above, pp 169– 379; Butt, Land Law, note 364 above, pp 1014–26. 410. Note that this is s 24 ‘OA’, where O is the letter ‘O’, not the number ‘0’. It is to be found in Subdiv ‘O’ of Div 3 of Pt 2.

411. For a more detailed summary see Perry and Lloyd, Australian Native Title Law, note 364 above, p 34; and pp 172–5, Table 2.1, which contains a full list of the Subdivisions and their effects. 412. See Native Title Act 1993 (Cth) s 24AB. 413. Eg, future acts under Subdiv E, dealing with ILUAs (see s 24EB(3)), and future acts under s 24GB dealing with primary production activities (see s 24GB(6)). 414. Eg, where public works are erected under Native Title Act 1993 (Cth) s 24JB(2). 415. See Native Title Act 1993 (Cth) ss 43, 43A. 416. A counter-view claims that, after the introduction of the Native Title Act, there were many contested opinions, and the cases Re Waanyi People’s Native Title Application (1994) 129 ALR 100 (brought in the National Native Title Tribunal) and Wik Peoples v Queensland (1996) 63 FCR 450; 134 ALR 637 (in the Federal Court) contested the issue of exclusivity and pastoral leases. Hence, the Wik outcome, while contested, was not unexpected, and all parties should have been on notice of this possibility. 417. Mabo v Queensland (No 2) (1992) 175 CLR 1 at 69; 107 ALR 1 at 51. 418. Wik Peoples v Queensland (1996) 187 CLR 1 at 2 (headnote). This was a 4:3 split decision. 419. Wik Peoples v Queensland (1996) 187 CLR 1 at 155, 166; 141 ALR 129 at 208, 218 per Gaudron J; at CLR 123–4, 130; ALR 182–3, 188 per Toohey J; at CLR 168–9, 185–6; ALR 220, 233 per Gummow J; at CLR 243, 241 and 249; ALR 279, 283 and 284 per Kirby J. 420. Wik Peoples v Queensland (1996) 187 CLR 1 at 125–7; 141 ALR 129 at 184–5 per Toohey J; at CLR 185–6; ALR 233 per Gummow J; at CLR 249; ALR 284 per Kirby J. 421. Wik Peoples v Queensland (1996) 187 CLR 1 at 110; 141 ALR 129 at 172 per Toohey J; at CLR 149; ALR 204 per Gaudron J; at CLR 173–4; ALR 224 per Gummow J; at CLR 226; ALR 266 per Kirby J. Western Australia v Ward (2002) 213 CLR 1; 191 ALR 1 at [78] confirms the position taken in the Wik case by stating that ‘the question is whether rights are inconsistent with the alleged native title rights and interests’. 422. For a more detailed account, see Bartlett, Native Title in Australia, note 40 above, Ch 4; and especially p 57, for a summary of the holding in the case. 423. Wik Peoples v Queensland (1996) 187 CLR 1; 141 ALR 129. In Western Australia v Ward (2002) 213 CLR 1; 191 ALR 1 at [474], McHugh J offers a strong criticism of the majority judgment in the Wik case, as does G Del Villar, ‘Pastoral Leases and Native Title: A Critique of Ward and Wik’ (2004) 16 Bond LR 29. 424. G Nettheim, ‘The Search for Certainty and the Native Title Amendment Act 1998 (Cth)’ (1999) 22(2) UNSWLJ 564 at 566. Nettheim discusses how concerns about the operation of the Native Title Act 1993 (Cth), from both sides of the political fence, had been aired before the Wik decision was handed down; however, the post-Wik era provided an ideal time for these to be dealt with legislatively. The government had also released an outline paper entitled ‘Towards a More Workable Native Title Act’ in May 1996, and followed up with an outline of proposed amendments to the Native Title Act in October 1996. 425. Bartlett makes this point in Native Title in Australia, note 40 above, p 65. 426. Senator Harradine held the balance of power in the Senate. The Act came into effect on 30 September 1998. 427. For a more detailed analysis of the Native Title Amendment Act specifically, see Bartlett, Native

Title in Australia, note 40 above, Ch 5. 428. Fejo v Northern Territory (1998) 195 CLR 96; 156 ALR 721. 429. Bartlett, Native Title in Australia, note 40 above, pp 65–6. 430. See s 249C of the Native Title Act for the definition of this term. 431. According to the common law, past acts were those that involved rights that were already in existence. 432. A non-claimant is usually a government or a mining or pastoral company that has an interest in knowing whether native title exists over certain land. There is a certain irony, however, in the fact that some recent non-claimant applications have been made by groups acting on behalf of Aboriginal people who need to establish a firmer title under state law by ruling out the existence of native title: see, eg, Hillig v NSW Native Title Services Ltd [2006] FCA 1184. 433. Or a state native title tribunal, or the Federal Court. 434. See J Litchfield, ‘Compensation for Loss or Impairment of Native Title Rights and Interests: An Analysis of Suggested Approaches’ (1999) 18(3) AMPLJ 253 (Pt 1), (2000) 19(1) AMPLJ 44 (Pt 2); J Sheehan, ‘Indigenous Property Rights: Towards a Valuation Methodology’ in Compensation for Native Title: Issues and Challenges, National Native Title Tribunal, 1999. 435. Griffiths v Northern Territory of Australia (No 3) [2016] FCA 900. 436. Negotiation was also a duty in respect of the compulsory acquisition of land for the purpose of grants to third parties. 437. Native Title Act 1993 (Cth) s 26(1)(c)(iii). Section 24MD(6B) sets out the negotiation rights of native title holders. 438. Native Title Act 1993 (Cth) ss 26A–26C. Low-impact exploration, prospecting, fossicking, smallscale opal and gem mining in existing opal and gem mining areas, as well as alluvial mining for gold and tin, are included. 439. Nulyarimma v Thompson; Buzzacott v Minister for the Environment (1999) 96 FCR 153; 165 ALR 621 (two cases, ‘different in nature and derivation’, were heard together) included argument that the Prime Minister, John Howard; Pauline Hanson, leader of the One Nation Party; and independent Senator, Brian Harradine, were responsible for Indigenous genocide through their support of the native title amendment. Buzzacott v Minister for the Environment argued that, in not declaring greater areas of Australia as world-heritage listed sites, the Minister for the Environment was responsible for Indigenous genocide. 440. See Bartlett, Native Title in Australia, note 40 above, Ch 5, for a more comprehensive treatment. The process of making a claim now entails the adducing of evidence concerning the pre-contact relationship of Indigenous people to the land, as well as consideration of the history of post-contact development and disposition of the land. 441. For an overview of recent legislative changes, see Mackie, Histed and Page, Australian Land Law in Context, note 377 above, pp 120–7. See also Bartlett, Native Title in Australia, note 40 above, Ch 10, where the author describes the theme of legislative amendments enacted between 2007 and 2014 as directed to ‘efficiency not equality’, attempting to make the current scheme more workable but not necessarily making it more equitable. 442. See Native Title Act 1993 (Cth) s 24JAA, introduced by the Native Title Amendment Act (No 1) 2010 (Cth) with effect from 16 December 2010. See comment on the views of various stakeholders in Mackie, Histed and Page, Australian Land Law in Context, note 377 above, pp 124–7.

443. The Report of the Committee was handed down on 9 November 2011. 444. Mabo v Queensland (No 2) (1992) 175 CLR 1; 107 ALR 1. 445. Pearson, ‘Concept of Native Title at Common Law’, note 282 above, p 118. 446. Djaigween v Douglas (1994) 48 FCR 535 at 541. 447. Commonwealth v Yarmirr (2001) 208 CLR 1; 184 ALR 113 at [11]. 448. For comment on the need to allow a broader role for the common law in development of native title, see L Strelein, ‘A Captive of Statute’ (2009) 93 Reform 16. 449. Australian Law Reform Commission, ALRC Report 126, note 188 above. 450. See L Strelein, N Duff and T Bauman, Commonwealth Native Title Connection Policy: Final Report, Native Title Research Unit, AIATSIS, Canberra, 2014 (accessed 30 May 2017), . 451. Western Australia v Ward (2000) 99 FCR 316; 170 ALR 159 found that the common law could only recognise native title rights and interests that involve physical use of the land. On appeal to the High Court, artworks on rock, for example, were said, to some degree, to answer the connection with land requirement. See Western Australia v Ward (2002) 213 CLR 1; 191 ALR 1 at [59]. 452. Western Australia v Ward (2002) 213 CLR 1; 191 ALR 1 at [579] per Kirby J. 453. Western Australia v Ward (2002) 213 CLR 1; 191 ALR 1 at [59] per Gleeson CJ, Gaudron, Gummow and Hayne JJ. 454. Western Australia v Ward (2002) 213 CLR 1; 191 ALR 1 at [59] per Gleeson CJ, Gaudron, Gummow and Hayne JJ. 455. This is the view of Kirby J in Western Australia v Ward (2002) 213 CLR 1; 191 ALR 1 at [580]. 456. Western Australia v Ward (2002) 213 CLR 1; 191 ALR 1 at [580]. 457. Such as the International Covenant on Civil and Political Rights, New York, 19 December 1966, ATS 1980, No 23; International Covenant on Economic, Social and Cultural Rights, New York, 19 December 1966, ATS 1976, No 5. See also K Howden, ‘Indigenous Traditional Knowledge and Native Title’ (2001) 24 UNSWLJ 60; Western Australia v Ward (2002) 213 CLR 1; 191 ALR 1 at [586] per Kirby J. 458. Western Australia v Ward (2002) 213 CLR 1; 191 ALR 1 at [586]. The impact of s 116 was discussed in the decision in Cheedy on behalf of the Yindjibarndi People v Western Australia [2011] FCAFC 100, although a very narrow view of the provision was articulated by the court there. 459. See Western Australia v Thomas (1996) 133 FLR 124 at 195. 460. M Lavarch, ‘Compensation for Ancient Rights’ in L Strelein, Working with the Native Title Act, Native Title Research Unit, AIATSIS, Canberra, 1998, p 96. 461. Note that there is a view that a solatium component in any valuation could deal with the issue of spiritual loss: see J Sheehan, Towards Compensation for the Compulsory Acquisition on Native Title Rights and Interests in Australia, paper presented to the Foundation South Pacific Land Tenure Conflict Symposium, University of the South Pacific, Suva, Fiji, 10–12 April 2002. 462. See Bartlett, Native Title in Australia, note 40 above, p 794. 463. Although s 51A is to be read subject to the ‘just terms’ standard, as noted above, it is suggested that it should still be repealed. It is an unnecessary inclusion.

[page 199]

Chapter 5

Possession and Adverse Possession Introduction 5.1 As discussed in Chapter 2, trespass to land is a legal wrong and, in some cases, will amount to dispossession of the owner. Nonetheless, although wrongful, the law recognises such dispossession as a title to land and calls it ‘possessory title’. As this title may be in conflict with that of the documentary title holder, it is also sometimes called ‘adverse possession’. Possessory title is not simply a parallel alternative to either old system title or Torrens title, which are dealt with in Chapter 7 and Chapter 8 respectively. Indeed, in the correct circumstances, a party may claim possessory title over either old system or Torrens title land. Possessory title is an alternative to documentary title and, as such, bears some similarity to native title, which also arises independently of documentation. Both possessory title and native title are forms of title characteristic of pre-literate societies that rely on custom and oral tradition. 5.2

As outlined in Chapter 3, land in Australia may be held by:

virtue of native title;1 the Crown; or private persons, who have received grants directly from the Crown, or who

can trace title to a Crown grant. Privately held land is held under either old system or Torrens title.2 If land is held under old system title, the true owner is ascertained by reference to a chain of title with a good root of title ultimately traceable, at least in theory, to the original Crown grant. [page 200] Where the land in question is held under Torrens title, ownership is established by virtue of a recording in the Torrens Register.3 By contrast, as noted above, possessory title arises without documentation and by virtue of possession. It is a type of title that, after satisfaction of the limitation period, may bar the documentary owner’s title.4 5.3 The significance of the concept of ‘possession’ was captured in stirring language by William Pitt the Elder (Lord Chatham) as recorded in Brougham’s Statesmen in the Time of George III in 1839, and quoted in Harrow London Borough Council v Qazi.5 Lord Chatham commented: 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!6

5.4

As Lord Millett went on to observe in this case:

Although not unrelated to his rights of property, the poor man’s defiance of the King was not based on his title. The common law protects possession as well as title. A person who is in actual possession of land is entitled to remain in peaceful enjoyment of the property without disturbance by anyone except a person with a better right to possession. It does not matter that he has no title. A squatter can maintain a claim of trespass. His want of title does not justify the authorities in searching his premises without a search warrant. He cannot be evicted save at the suit of someone with a better right to possession, and even then that person must rely on the strength of his own title and not the weakness of the squatter’s.7

5.5 Accordingly, rights in land may be based on (a) ownership or (b) possession. In many cases, a party may be in possession and simultaneously enjoy rights by way of his or her ownership. Where this occurs, the law of possession and the law of ownership will effectively merge.8 In other cases, however, a person may be in possession without also being the owner. His or

her rights will be solely possessory in nature. Alternatively still, a person may own property but not be in possession of it, as is the case when an owner leases property to a tenant who goes into possession.

Historical Development of the Concept of Possession 5.6 In order to understand more fully why the law has been, and is still, willing to acknowledge (and at times favour) a title based on possession rather than documentation, it is necessary to examine the significance and historical development of the concept [page 201] of possession more generally.9 It is also helpful to acknowledge the interrelationship between the co-existing but often competing concepts of possession, ownership, property, estate and title.10 It has been observed that ‘[t]he subtlety of these linkages reflects a deep historic ambivalence as to whether “property” in land is constituted by the empirical reality of behavioural fact or by the official recognition of abstract rights’.11 The situation is probably best explained as a case of shifting sands in that the preeminence of possession (behavioural fact) over ownership (recognition of abstract rights) and vice versa, is constantly being played out and positions are susceptible to change and readjustment over time. Some of the contestation and disputation as to dominance may be linked to the historic availability of proprietary and possessory actions. Harpum et al conclude that the ‘essentially possessory character of land is a product of historical evolution and in particular the old forms of action’, and go on to comment that ‘[f]or some time after the middle of the twelfth century there were (at least in name) both proprietary and possessory actions, the former asserting title and the latter asserting possessory rights’; yet despite the competition between the two concepts (proprietary and possessory), those authors also observe that ‘[e]ven the proprietary (“droitural”) actions had a strong possessory flavour’.12

5.7 More recently, it has been observed that, in England at least, there has been a move away from reliance on interests which are based on the fact of possession, in favour of a ‘more modern view of property’ that creates entitlements of ownership under a state-administered computerised land registration system.13 To date, Australian law has largely resisted the recent English trend (although it does rely on a state-administered land registration scheme in the form of Torrens title).14 However, the modern Australian law on prescriptive easements perhaps suggests a judicial willingness to diminish the significance of possession as the basis of a right capable of over-riding a right based on registration.15 [page 202] At this stage, it is difficult to predict the future course of Australian law in relation to the pre-eminence of one concept over the other. However, for the present, possession remains a significant property law concept albeit that possession that is adverse to the documentary title holder, on one reading at least, undermines a key tenet of the Torrens system — that is, the sanctity of the Torrens Register. It is also worth noting that, beyond the possessory title context, the concept of possession continues to remain fundamental to many spheres of property law. For example, in the sphere of leases, it remains particularly relevant.16 It is for these reasons, among others, that it is helpful to explore the concept of possession in more detail.

Concept of possession 5.8 Although possession is a fundamental tenet of Anglo-Australian property law, it is not a term that has been neatly and succinctly judicially defined. Toohey J in Mabo v Queensland (No 2)17 described it as ‘a conclusion of law defining the nature and status of a particular relationship of control by a person over land’. Kevin Gray and Susan Gray put it similarly when they stated that ‘possession is simply a state of overall territorial control’.18 The High Court in Western Australia v Ward19 noted that the commonly

used term ‘exclusive possession’ involved an element of redundancy, stating: … possession that is not exclusive is a contradiction in terms, for the right of general control and exclusion is central to the concept of legal possession. … It is a pity that the term “exclusive possession” was ever used …20

5.9 The term ‘possession’ is sometimes confused with the term ‘occupation’. Although often related in practice, they are not synonymous. Occupation describes a physical presence and accordingly it is a question of fact. Possession, on the other hand, goes beyond mere physical occupation and emphasises the control a person has over land [page 203] (or a chattel).21 The relevant control is not accidental. It arises by virtue of application of a mental element (sometimes known as ‘animus’). Possession, therefore, involves a serious and deliberate attempt to bring the land or object under control, and that is why a friend who stays at one’s house overnight may be said to be in occupation but will not usually be in possession. Possession, then, is a conclusion of law, not fact. By parity of reasoning, a person may be in possession without actually occupying (ie, setting foot on) the relevant land. It has been observed: … [t]he fact that a lessee continues to pay the rent to the landlord is a fact which suggests that the lessee has not parted with possession. The fact that an occupant other than the lessee holds the keys to the premises, ie exercises physical control over the premises, is an indication to the contrary.22

Property, possession, ownership, title and seisin 5.10 The distinction between (a) property; (b) possession; (c) ownership; (d) title; and (e) seisin is complex. For example, an estate in land (an estate, as explained in Chapter 3, refers to the duration of a landowner’s right) indicates a type of property right.23 It has also been found historically to be derivative of one’s possession of land24 but, as Gray and Gray explain, a person who is in possession of land is not (except in one highly technical sense) in possession of a proprietary right. Possession and property are distinct

concepts.25 Those authors suggest that the difference between possession and property may be observed by recognising that: The animus which underlies “possession” of land is subjective to the occupier, whereas “property” in land is ultimately validated by some social or collective judgement about the legitimacy of the claim involved.26

[page 204] 5.11 Perhaps another way of considering the issue is to inquire whether title to land arises from the physical or behavioural reality of actually going into possession and exercising the requisite level of control over land; or, alternatively, by way of a set of socially accepted conventions and relations that become recognised as law and which include the concept of ownership. The debate has been said to be about whether ‘the character of property [is] ultimately physical or cerebral.’27 5.12 Seen in this light, possession is a ‘behavioural reality’,28 while ownership is a concept that only has meaning if it is supported by law.29 Hence, Elizabeth will be said to be in possession of a bicycle if we see her riding it, but we would have to know more about how she came to be riding it to know whether she also owns it. She may have borrowed the bicycle (bailment). She may have hired it (lease) or may have stolen it (theft). Hence, ownership is determined by the conditions and acts leading to possession and depends on whether the law sanctions those conditions and acts as giving rise to ownership. Clearly, what will constitute ownership is dependent on what the law specifies at any given time. Clearly the law relating to ownership (and possession), therefore, is subject to change. That is why, at least to some extent, there was so much public outcry after the Mabo v Queensland (No 2) decision was handed down in 1992.30 As a result of that decision, many ‘owners’ of Torrens title land, for example, feared (wrongly) that the law granting them ‘ownership’ had changed, with the result that ownership vested in Indigenous claimants rather than in themselves. 5.13

The term ‘title’ is commonly used alongside the terms ‘possession’ and

‘ownership’. Title refers to the entitlement of an owner to assert his or her estate in land against all the world. Title to an estate such as a fee simple or life estate therefore affords the title holder the opportunity to exercise the range of rights associated with owning property. In relation to a fee simple or life estate, those rights include the right to: control; exploit, use or enjoy; and alienate. (As native title does not afford the title holder the opportunity to assert the incidents of ownership per se, ‘title’ is arguably not the correct term to describe the common law’s recognition of the relationship between Indigenous Australians and land/water.)31 5.14 Meanwhile, ownership in its ‘fullest sense’ has been said to ‘mean that the owner holds the land in tenure for an estate in fee absolute’.32 As explained in Chapter 3, tenure means the conditions and terms on, or ‘services’ by which, land is held; such as having to supply grain, holding the King’s head while he was seasick or paying money.) [page 205] Linking the concept of possession to title, Lord Millett noted that ‘possession’ may be upheld by a person who does not have (documentary) ‘title’.33 Further, protection of possession in more recent times has been enshrined in Art 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights) (while protection of property is enshrined in the First Protocol to the European Convention on Human Rights, not by Art 8).34 5.15 Another related concept is that of ‘seisin’, which is discussed in more detail below.35 In its simplest form, seisin means ‘possession’ and in early law the terms ‘possession’ and ‘seisin’ were applicable to both chattels and realty, such that it was acceptable to use them interchangeably and speak of the seisin of chattels and the possession of freehold land.36 5.16 Over time, the term ‘seisin’ became reserved for realty only and, in particular, for freehold land.37 Seisin, therefore, came to mean possession of freehold title. Pollock and Maitland noted that a man was ‘in seisin’ of land when he was ‘enjoying it or in a position to enjoy it’.38 Seisin existed

independently of ‘right’ and, hence, even a thief could have seisin.39 Seisin, therefore, reflected fact but the existence of seisin was presumptive evidence of entitlement (title) to land. From the 15th century onwards, seisin was necessary to pass freehold land and a conveyance of freehold (a feoffment) required livery of seisin.40 It has been noted that ‘[s]eisin was … the root of all titles’.41 Against this background, it is perhaps not surprising that Salmond observed that ‘[i]n the whole range of legal theory … [there is] no conception more difficult than that of possession’.42 [page 206]

Possessory actions Development of the writ system 5.17 In English law, the roots of possessory title lie in circumstances, where proprietary and possessory actions for the recovery of land have historically existed alongside each other.43 ‘Real actions’, as they were known, were proprietary in nature and available only to freeholders. Pursuing them was a very time-consuming process. The drawbacks associated with real actions included: the plaintiff needed to establish ownership by virtue of inheritance; tenants in chief were the only class of people able to use the actions; and adjudication was most commonly determined by ‘trial by battle’.44 5.18 The real actions available in the feudal or seigneurial (local) courts were usually commenced by way of verbal complaint. That system worked effectively enough in small local communities, but, to support the operation of the King’s national courts, a new system for commencing an action needed to be developed.45 The writ system served this purpose. It involved the sheriff acting as the local agent of the King, by informing the defendant that his or her presence was required in order for the matter to be heard in the King’s court. The instructions that the sheriff received were in the form of a writ;

hence, the writ came to mark the commencement of an action. Writs had to be purchased and there was not one general writ for all complaints but, instead, a series of individual writs, which had their own procedures and remedies. As newer, more efficient writs were developed, litigants sought to bring their claims under those writs, but this was not always easy to do, because each writ required the facts of the plaintiff’s case to comply exactly with the rigid requirements of the writ itself.46 Without complete compliance, the writ simply could not be used. 5.19 For example, the main writ used in regard to recovery of land was the praecipe in capite writ.47 This writ fell into the broad category of ‘writs of right’ and was used to commence litigation in the royal court. Initially, it could be used only by a tenant in chief who had been disseised of his or her land.48 It operated by requiring the disseised party to claim ownership of the land as his or her ‘right and inheritance’. Trial was by battle so, naturally, this form of resolution had its drawbacks for the faint-hearted. However, later the dispossessed could seek to have the dispute with the defendant resolved through either [page 207] the traditional means of trial by battle or, alternatively, by a group of 12 local knights who were summoned by the sheriff to decide the matter.49 5.20 The alternative method (known as the Grand Assize), took place in the King’s court and represented an important aspect of the King’s attempts to establish the supremacy of the royal courts.50 The King’s determination to establish the supremacy of his courts rather than that of the seigneurial courts was also seen in his attempt to expand, beyond tenants in chief, the class of people eligible to use the praecipe in capite writ. The wider the net of people who could use the King’s courts, the more central to justice those courts would become. Although, initially, attempts at extension of the writ were thwarted,51 it became established that proceedings relating to land had to be commenced by the issuance of a royal writ. This, in turn, had the effect of

sending a firm message to all subjects that justice began with the King even though the seigneurial courts retained their decision-making powers.

Assizes 5.21 Over time, the focus of the questions associated with actions relating to the recovery of land began to change and, in the process, the emphasis shifted from a concern about who was the owner, and therefore had a better right, to whether a person in possession had been dispossessed.52 5.22 This shift away from ownership was reflected in the introduction of the remedy known as the ‘possessory’ assize;53 a remedy that was notable in a doctrinal sense for the emphasis it placed on possession.54 The possessory assize was commenced in the King’s courts but its use was not limited to tenants in chief. The key question was whether the defendant unjustly disseised55 the plaintiff. The answer to the question was decided by a group of witnesses and, without the need to establish ownership, the remedy could operate efficiently and provide results quickly. Accordingly, it assumed great popularity. 5.23 The assize of mort d’ancestor is an example of the possessory assize.56 Pursuant to that action, the relevant question was whether the defendant had taken possession before [page 208] the heir of the freeholder, who had died in possession of the land. The procedure necessary to answer this question did not require any inquiry of whether the ancestor was the owner. Instead, what was at issue was whether the defendant had dispossessed the plaintiff of a freehold estate unjustly and without judgment from a court.57

Better possession 5.24 From the above discussion, it can be seen that what lay at the core of resolution of these disputes was which party had the better possession or, put another way, whose possessory title was superior. As a result, both the importance of possession and the relativity of titles became embedded in land

law. Initially, the concepts were woven into the law in the language of seisin.58 Where the plaintiff lost seisin, he or she gained a right of entry, which in turn permitted the plaintiff to recover possession if the plaintiff could demonstrate that he or she did, in fact, have a better right to seisin. Broadly speaking, a better right to seisin was established by earlier seisin.59 5.25 The attack on the seigneurial court’s jurisdiction in regard to dispossession of land (an attack which was assisted greatly by the possessory assizes) continued with the introduction of the writs of entry.60 These writs married aspects of the writs of right to the concept of possession, alleging that the tenant had a flawed title on which his or her entry was based.61

Seisin 5.26 Another important development in the history of possessory actions was the introduction of the writ de ejectione firmae or ejectment, which was really a personal action based on the writ of trespass. It was an action available for the recovery of possession, as opposed to seisin. The possession/seisin concept mentioned earlier (at 5.16) may be elaborated on thus. Possession can be enjoyed by someone using the land and exercising control over it, as, for example, a leaseholder. Seisin, although originally synonymous with possession,62 came [page 209] to represent a more complex concept than mere possession63 and eventually amounted to the possession of a freeholder.64 The distinction between seisin and possession, which emerged by the late 15th century,65 is grounded in the different incidents that attached to seisin, on one hand, and possession, on the other. The incidents of seisin (and especially the conditions under which seisin could be recovered) were protected by the real actions, whereas the incidents of possession were protected by personal actions.66 Seisin could be acquired by: taking possession of land by virtue of a Crown grant;

taking possession through inheritance from a person who was seised of the land at the time of his or her death; disseising another; or later by receiving a conveyance according to the requirements of livery of seisin.67 5.27 A leaseholder in possession did not have seisin and, if dispossessed of land, he or she was unable to access the real actions, the possessory assizes and the writs of entry. His or her interest was regarded as personalty (compare with realty) and, consequently, he or she could not recover possession.68 However, in the 15th century, the common law attempted to redress the unfairness suffered by dispossessed leaseholders through the development of [page 210] the action of ejectment.69 As a result, a lessee (who had no seisin) became able to recover possession. 5.28 Freeholders also came to see the benefits of this action and, eventually, by a complicated system of pleading involving the fictitious characters John Doe and Richard Roe, the action of ejectment, with its emphasis on possession, came to be the preserve of freeholders as well.70 (Although the pleadings were complicated, the action itself operated to provide a fairly simple means of recovering land.) Ejectment did not, however, develop into a complete replacement for the real actions before their abolition in 1833, because ejectment was dependent on a right of entry and some freeholders had only a right of action.71 Later still, the Common Law Procedure Act 1852 (UK) replaced the action of ejectment with the ‘action to recover possession of land’, which permitted a pleading in ordinary English. Nowadays, in New South Wales, actions for the possession of land may be brought by way of s 20 of the Civil Procedure Act 2005 (NSW) in conjunction with the Uniform Civil Procedure Rules 2005 (NSW).72 Despite statutory modifications, a form of right and remedy, which had possession at its core, became embedded in our legal system.

5.29 This was acknowledged by Toohey J many years later in Mabo v Queensland (No 2) (Mabo (No 2)), when he said: 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. A defendant in possession acquires seisin even if possession

[page 211] 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. A possessor acquires a fee simple estate because the fullest estate known to the law is presumed until a lesser estate is proved.73

Mabo (No 2) also arguably assisted in broadening what might amount to possession74 because since that case, entry onto land in order to perform an Indigenous ceremony, or to hunt or fish, may potentially be interpreted as amounting to possession. These acts go beyond what were traditionally thought to be evidence of possession.75 5.30 Seisin may still technically form the basis of old system title in Australia but it does not form the basis of Torrens title, where registration (pursuant to statute) lies behind the formation of title.76 Under old system title, vendors of land do not have to demonstrate that they are the absolute owners of land.77 Instead, purchasers take a title on the basis that there have been no challenges to the title which is offered by the vendor, within a reasonable period of time. In New South Wales, that period of time is now set by statute at 30 years.78 Hence, both under old system title and Torrens title, the relativity of titles is important, rather than any notion of absolute title.

Ejectment and Possession 5.31 Having discussed the background to the action of ejectment above, it is helpful to return to that action in order to understand better the concept of possession. This is so even though the action of ejectment is no longer in use.

Need to establish ownership? 5.32

Historically, controversy has surrounded the basis on which an action

of ejectment could be brought. Although the action was developed to assist the dispossessed leaseholder, one influential view was that a plaintiff wishing to bring an action to recover land had to establish the probability that he or she was the owner.79 This view was favoured by [page 212] Professor Holdsworth, and Doe d Carter v Barnard is authority for the proposition.80 In that case, Robert Carter’s son, John, entered into adverse possession of his father’s land in 1816.81 By 1836, John had statute-barred his father, and hence Robert had no title to pass to Barnard. When John died, his widow, Mary, took an action for recovery of the land against Barnard, who evicted her. Her action was lost because, to sue in ejectment, Mary had to prove that she had the best right to possession in all the world. As she was merely a widow, her right to possession (of what had been John’s land) was defeated by John’s (male) heir. Accordingly, this case is relied on by supporters of the jus tertii plea. See 5.47.

Need to establish a better right to possession? 5.33 An alternative, and more convincing, view suggests that the plaintiff in an action for ejectment need only establish that he or she had a right to immediate possession that was better than that of the defendant.82 Accordingly, this superior right to immediate possession could be established by demonstrating that at some earlier point the plaintiff, or someone through whom the plaintiff claimed, had been in possession, and that the rights which arose by virtue of previous possession had not been voluntarily surrendered on terms that would result in the plaintiff having lost his or her right to immediate possession. 5.34 Asher v Whitlock83 is authority for the latter view; that is, that to sue in ejectment a plaintiff does not have to establish ownership (through a documentary title) but rather need only establish a better right to possession than the defendant. The decision, therefore, reinforces the concept of the relativity of title.

5.35 The effect of that judgment was to uphold the principle of hereditary squatters. As a result, Williamson, who was in possession adverse to the lord of the manor (the documentary title holder), was able to pass his interest, via his will, first to his widow, Lucy, and later to his daughter, Mary Ann. Mary Ann, in turn, was able to pass her interest to her own heir, Mrs Asher.84 The dispute was between Lucy’s second husband, Whitlock, who had come into possession of the land after Williamson’s death, and Asher, both of whom sought possession of the land. The plaintiff, Asher, was successful. [page 213] 5.36 The main ground for Cockburn CJ’s decision was that Williamson’s possession for any period would have been protected against all but someone who could prove a better right stemming from earlier possession or documentary title. According to Cockburn CJ, Williamson’s possession entitled him to bring an action in ejectment. As observed, the court also held that the rights generated by Williamson’s possession were transferable by will or inter vivos. Inherent in Cockburn CJ’s judgment is his view that, by 1865, possession had become equivalent to seisin. Mellor J’s view is almost the same as that of Cockburn CJ, except that he believed that in 1865 the plaintiff still needed to establish earlier unabandoned seisin (rather than possession) to bring an action in ejectment. Mellor J thought that earlier possession was prima facie evidence of earlier seisin. It is noteworthy that he did not say that earlier possession was prima facie evidence of ownership. 5.37 Despite the fact that Asher v Whitlock85 did not actually raise the jus tertii,86 the case is commonly referred to as support for the proposition that the jus tertii is not applicable to land. The reasoning behind this view is that, although the lord of the manor (the documentary title holder) had the best title to the land in 1865 when the action was brought,87 (because he was not statute-barred until 1870) the court still found in favour of the plaintiff, Mrs Asher, and did not find against her although a third party (the lord of the manor) had the best title. 5.38

Allen v Roughley88 is another significant case on the issue of possession

and ejectment although, technically, the court’s words on this issue remain obiter because the case was ultimately decided on the trust point.89 In this case, Plunketts’ land, as it was known, was granted by the Crown to Turner in 1823, but there was a break in the chain of title until another dealing, a mortgage between the Plunketts and Hyland, was recorded in 1877. In 1880, the land was jointly conveyed by the Plunketts and Hyland to Cusbert. Although Cusbert could not demonstrate that he had good title to the land because of the breaks in the chain, he nevertheless sought to pass his interest by way of testamentary disposition. In 1950, Roughley, a co-trustee under the will, sought a declaration that the land in question was part of the land held on trust under Cusbert’s estate. If it were, it should pass according to that will. [page 214] 5.39 Cusbert’s will devised Plunketts’ land and the homestead block to the use of his son, William, for life, and then to his issue; but, in the words of the court, ‘William died a bachelor’, which the court interpreted as also meaning that he died childless.90 In this event, the will required that the land be sold and the proceeds divided among all the testator’s children. The original trustees appointed under the will died and two new ones were appointed. One was Allen (who was married to Cusbert’s daughter, a beneficiary under the will). The other was Roughley. 5.40 Allen had gone into possession of the land in 1898; that is, well prior to Cusbert’s death in 1942. William had also lived with Allen (and Allen’s wife, his sister) from about 1898 to 1900 on the homestead block. Indeed, William lived on and off at the homestead for some years before he moved more permanently to a hut on Plunketts’ land, and finally back to the homestead in 1923. William died in 1942 and Allen stayed on in possession of Plunketts’ land, despite the fact that this was contrary to the will. 5.41 A dispute emerged between Allen and the beneficiaries in remainder under Cusbert’s will (who for ease of explanation may be regarded as William’s siblings). The matter was ultimately litigated as far as the High Court. Basically, the beneficiaries argued that they had a prior possessory

interest emanating from the will and that it defeated any later interest claimed by Allen. They claimed that, even if Allen were in adverse possession of the land, they were able to bring an action against him for recovery of possession because they had a period of 20 years from the date of William’s death in 1942, in which to do this and that period had not yet elapsed. Meanwhile, Allen argued that, as Cusbert’s interest had not arisen by virtue of either a documentary title or a period of adverse possession long enough in duration to statute-bar the true owner, it could not prevail against his own possessory interest.91 5.42 In the High Court, Allen’s own adverse possession claim was not pursued. Instead, Allen focused on the duration of Cusbert’s possession. He argued that, although Cusbert’s possession was sufficient for him to recover personally should a trespasser oust him, his possession was not sufficient to give him a proprietary interest that could be passed on by will. Possession would be sufficient to achieve this only if the possession had been for longer than the relevant statutory limitation period. This argument was largely based on the Holdsworthian proposition that mere possession for less than the statutory period would not permit the possessor to bring ejectment, subject to two exceptions.92 The first exception was that the immediate victim of a trespassory ouster could bring an action against the immediate perpetrator still in possession; the second was that a party permitted to take possession by another’s consent is estopped from denying that other’s title to recover the land, when the permission ceases.93 [page 215] The court found that even if Cusbert had a mere possessory title (ie, neither a documentary title nor a title gained by a period of adverse possession that was sufficient to bar the true owner), he was able to pass his possessory title to his trustees. It was more equivocal on what was required to establish a possessory title. 5.43 The judgments differed on the issue of the significance of possession. For example, Dixon CJ, Taylor and Williams JJ all saw possession as being

prima facie evidence of title, an approach that seemingly left it open to the defendant to demonstrate that best title lay in a third person (who was neither the plaintiff nor the defendant).94 Yet, Perry v Clissold had held that: 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 limitation period prescribed by the provisions of the Statute of Limitations applicable to the case, his right is forever extinguished, and the possessory owner acquires an absolute title.95

Applying this logic, the court found in favour of the possessor despite the fact that a tertius existed. 5.44 By comparison, Fullagar J’s judgment in Allen v Roughley is based on the view that possession is prima facie evidence of seisin.96 With this in mind, he went on to reject the Holdsworthian view (and uphold the Hargreavian view)97 by finding that the plaintiff need only prove that he or she has a right to possession that is superior to that of the defendant in order to bring an action in ejectment. In Fullagar J’s view, it is not necessary for the plaintiff to establish that he or she has a title that is good against all the world. Hence, his judgment is consistent with the position taken by Mellor J in Asher v Whitlock.98 It follows, then, that the plaintiff could succeed in ejectment by establishing that he or she, or someone whose rights he or she acquired, enjoyed unabandoned possession of any duration prior to that of the defendant or the person through whom the defendant claims. Such an approach permits an adherence to the concept of relativity of title and avoids [page 216] leaning too heavily towards absolute title.99 It also sits comfortably with the proposition put forward in Perry v Clissold, and referred to at 5.43, 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.100

5.45 Following Allen v Roughley, cases such as Spark v Whale Three Minute Car Wash (Cremorne Junction) Pty Ltd101 and Mulcahy v Curramore102 proceeded on the basis that the jus tertii plea was not a good defence. In so doing, they

(wisely) ignored the possibility left open by some of the judgments in Allen v Roughley that the defence may still operate in similar sorts of cases.103 5.46 Although, as noted above, the action of ejectment was abolished in New South Wales by virtue of the Supreme Court Act, cases dealing with the action have been discussed in order to explain and reinforce the importance of the concept of possession.104

Jus Tertii 5.47 The jus tertii (referred to above) is a defence that permits the defendant to argue that although the plaintiff’s right to possession may be better than that of the defendant, a better right still exists in a third party, the tertius. The existence of this better right will be fatal to the plaintiff’s case.105 The defence may arise in relation to actions concerning the recovery of chattels or interference with their possession, but it did not apply to an action concerning the recovery of land in New South Wales in Perry v Clissold.106 In that case, Clissold was in possession of land for 10 years. When the land was compulsorily acquired by the Minister of Public Instruction in New South Wales, Clissold’s executors sought a writ of mandamus compelling a valuation of the land so that compensation could be calculated. Perry, the defendant and the Minister, argued that Clissold’s executors could not succeed because [page 217] superior title to the land existed in a third party, the documentary title holder. The court rejected this argument and held that possession is title. It found that it could not have been the intention of the compulsory acquisition legislation to shake titles. The fact that a documentary title holder did exist (albeit an unknown one) and that the defendant had 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’ did not preclude the plaintiff from seeking compensation.107 5.48

Lord MacNaghten (in Perry’s case) went out of his way to distinguish

Doe d Carter v Barnard,108 commenting that the conclusion in Carter’s case was: … 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 as Professor Maitland and Holmes J of the Supreme Court of the United States.109

Adverse Possession Definition 5.49 The possession-based title, which we have observed above, operates on the basis that earlier possession is afforded priority over later possession.110 Such an approach helps reduce the likelihood of ‘free-for-alls’ or mêlées whereby one party dispossesses another and is rewarded for that act by being privileged. The authorities that we have considered above also reveal how possession came to be treated as something that, of itself, was worthy of protection against all the world except for the true (documentary) owner. The doctrine of ‘adverse possession’ deals with the protection of possession even against the true (documentary) owner.111 5.50 Adverse possession is the principle that permits the documentary title holder’s interest to be statute-barred, in favour of the possessory interest, after the effluxion of a specified period of time.112 The doctrine of adverse possession, therefore, operates to block the title of the documentary owner. Hence, the effect of a successful adverse possession claim is to liberate the adverse possessor from the superior title of the documentary [page 218] owner.113 In this way the concept of relativity of titles, which is at the heart of common law property, remains intact because the extinguishment of the documentary owner’s cause of action has the effect of enhancing the adverse possessor’s title relative to that of the documentary title holder. It is worth reinforcing at this point that the dispossessed documentary title holder does not lose his or her interest immediately another person goes into adverse possession. The documentary title holder has a relatively long period

of time in which to bring a claim to recover possession. As discussed in the section on limitations, he or she has the relevant statutory period in which to bring a claim. 5.51 It is also worth noting that, in many of the older cases, the term ‘adverse possession’ had a more technical meaning than it bears today.114 Today, the term simply means that a person is in actual possession, without the consent of the documentary owner, and that the relevant statutory limitation period has begun to run against the documentary owner.115 It is used that way throughout this chapter.

Rationale 5.52 Why extinguishment of the documentary title holder’s interest should occur at all, and simply as a result of the duration and style of possession, is a contentious issue.116 To some commentators, allowing documentary title to be lost by way of the application of limitations statutes represents a form of legalised theft.117 To others, it raises human rights concerns in relation to the loss of property.118 To others still, it is a useful doctrine that: (a) represents an efficient mechanism for identifying who can deal with land; (b) encourages alienability; and (c) supports an alternative set of human rights concerns embedded in [page 219] land-use sharing.119 A range of policy considerations have lain behind the upholding of the doctrine.120 Some of these are examined in more detail below.

Sleeping on rights 5.53 It has been suggested that one reason to permit adverse possession claims is to discourage documentary owners from ‘sleeping on their rights’.121 An active use of rights is seen as encouraging the land’s potential through exploitation of it. However, as the documentary owner is able to sleep on his or her rights while the limitation period of 12 years is satisfied, it is arguable

that the doctrine of adverse possession does not actually serve to encourage greatly the owner’s use of his or her rights. Admittedly, beyond the 12-year period the consequences for the documentary owner are dire, but up until that point there is little active encouragement to avoid sleeping on rights.122 5.54 Furthermore, it is arguable that the view in favour of exploiting land is losing some of its potency in a political and social climate that is increasingly sympathetic towards sustainability principles. As society recognises the value of ‘living lightly on the land’, development is more likely to be closely scrutinised and less exploitation, rather than more, may increasingly be regarded as a favourable outcome.

The law’s acknowledgment of the actual situation 5.55 Another reason in support of the adverse possession doctrine is that the law has greater credibility when it reflects the truth. If an adverse possessor is in possession, rather than the documentary owner, there is a strong argument that the law should acknowledge this fact. If the reality of adverse possession is acknowledged, it also allows purchasers to be informed as to the quality of the title they take. The effect is to encourage stability.123 [page 220] This may be a powerful argument in regard to old system title where documents are often lost, yet it is arguable that the opposite is true in relation to Torrens land.124 Interests that exist outside the Register, such as adverse possession interests, could be said to undermine stability.125 5.56 However, in New South Wales this proposition may perhaps carry less force than in some jurisdictions. In New South Wales, an adverse possessor who accrues the requisite period of time necessary to satisfy the limitation period and bar the true owner’s title will not be held to have barred that owner’s title until the Register has been altered pursuant to s 45C of the Real Property Act 1900 (NSW). On this basis, it is perhaps arguable that in New South Wales, in relation to Torrens land, the law operates in a manner

that permits the Register to maintain its integrity while simultaneously allowing the adverse possessor to have his or her possession recognised.

Hardship 5.57 The hardship argument suggests that if an adverse possessor has been in possession for many years, paying the rates and taxes and improving the land, it would be unfair to deny him or her remedies for interference with that property indefinitely. Indeed, to deny rights and benefits would be to discourage exploitation of the land. However, the converse of this argument is that the documentary title holder suffers hardship on the eventual barring of his or her rights, and the very possibility of being statute-barred encourages the ‘acquisition’ of property by a means which involves going outside the market.126 For this reason, it has been suggested by some that separate rules should apply to inadvertent squatting and deliberate squatting; that is, ‘good faith’ squatting and ‘bad faith’ squatting.127 However, such dichotomisation represents a very blunt approach to the issue and, as the Indigenous experience demonstrates, the issue is quite challenging. To explain, on one analysis at least, European ‘settlement’ and the development of Australia could be said to have been founded on ‘bad faith’ squatting on Indigenous land. 5.58 These diverse policy considerations demonstrate that the rationale for adverse possession is complex, disparate and inconsistent. It is based on divergent policy [page 221] considerations that presently seem to favour ease of conveyancing and the reduction of hardship.128 McHugh J summarised many of the relevant considerations, in relation to a statutory limitation, when he stated: The effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions. But it is not the only one. Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost. Second, it is oppressive, even “cruel”, to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them …

The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible.129

5.59 Nevertheless, judges such as Neuberger J in JA Pye (Oxford) Ltd v Graham130 have colourfully expressed distaste for the concept of adverse possession (a concept that is dependent on the operation of a limitation period), describing it as ‘draconian to the owner, and a windfall to the squatter’.131 Yet, the appellate court in Pye’s case upheld the doctrine and went on to find in favour of the adverse possessor.132 More recently in New South Wales, Tamberlin JA in Bridges v Bridges reminded us that doctrine is based on an attempt to serve the welfare of society. His Honour stated: A limitation period should not be seen … as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature’s judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated.133

Adverse possession and human rights 5.60 As observed above in recent years, human rights law has been found to intersect with the doctrine of adverse possession.134 Such an intersection has permitted the preservation of human rights to be used as a rationale for the dismantling, or at least cutting back, of the doctrine of adverse possession in relation to registered land. When [page 222] J A Pye (Oxford) Ltd took its claim to the European Court of Human Rights, the intersection of human rights and adverse possession was raised directly.135 5.61 The European case followed JA Pye (Oxford) Ltd v Graham136 (discussed in more detail at 5.94), an English case that applied the English domestic law of adverse possession to a situation where a licensee for a term stayed on in possession after the expiration of his licence. The relevant domestic law (which has since changed)137 did not require the person continuing in possession after the expiration of the licence to inform the documentary owner that time was accumulating towards satisfaction of the

relevant limitation period; time that would consequently cause the documentary title holder’s interest to be barred. 5.62 Domestically, JA Pye (Oxford) Ltd v Graham went on appeal to the House of Lords.138 That court found in favour of the adverse possessor;139 a decision that caused the documentary owner (Pye) to lose its land without compensation. In response to the House of Lords’ decision, the documentary owner mounted a case against the United Kingdom Government, in the European Court of Human Rights (ECtHR), claiming that the result in the House of Lords’ decision was in contravention of Art 1 of Protocol 1 to the European Convention on Human Rights (1950), because the decision deprived the company of its property. It sought compensation from the government for its loss. The ECtHR case, which was also appealed (in this case, to the Grand Chamber), is known as JA Pye (Oxford) Ltd v United Kingdom.140 5.63 In the 2005 decision of JA Pye (Oxford) Ltd v United Kingdom,141 the majority of the ECtHR found that the ‘domestic rules on adverse possession … [were] incompatible with Article 1 of Protocol No 1’ of the Convention for the Protection of Human Rights and Fundamental Freedoms (the European Convention on Human Rights) and that the loss of Pye’s land was not in the public interest because it was registered land.142 Had that position not been overturned by the Grand Chamber of the ECtHR, any future English adverse possession claims that related to registered land would need to have been limited to: [page 223] claims that were ‘in the public interest and subject to the conditions provided for by law and by the general principles of international law’;143 and claims that demonstrated a legitimate ‘control [of] the use of property in accordance with the general interest’, if they were to comply with the European Convention on Human Rights.144 The 2005 ECtHR decision left the United Kingdom Government in a

vulnerable position, potentially being liable for future adverse possession claims brought under the Law of Property Act 1925 (UK). Decisions of the ECtHR do not have a direct effect on English courts but ss 2 and 3 of the Human Rights Act 1998 (UK) require courts to take into account decisions from the ECtHR when determining a case in which a Convention right145 has been raised. There is also an obligation to interpret domestic legislation consistently with the European Convention on Human Rights (ECHR). A common approach is for the ECtHR to hold that there has been a violation of a Convention right, and then create an obligation on the state to make just satisfaction for that violation: satisfaction that is usually made in terms of compensation under Art 41 of the ECHR. The ECtHR does not operate by requiring that the state change its legislation, although in practical terms, legislative change is commonly the result of its decisions because states wish to avoid future claims for satisfaction. (In JA Pye (Oxford) Ltd v United Kingdom,146 the ECtHR reserved a decision on just satisfaction.) However, there was actually no need for the state (United Kingdom) to amend its domestic law on the basis that it would continue to accrue liability for violations under the ECHR in this instance, because the state had already amended its legislation and introduced the Land Registration Act 2002 (UK) (LRA (UK)). That Act introduced a new scheme in respect of registered land and adverse possession claims that substantially curtailed the ability of the adverse possessor to make a claim and so, on one analysis at least, better balanced competing interests. 5.64 In Pye’s case, the amendments outlined above in the form of the LRA (UK) proved technically unnecessary because, in 2007, the Grand Chamber of the ECtHR overturned the lower court’s 2005 decision and, hence, no just satisfaction was necessary. In a narrow majority of ten to seven, the Grand Chamber found that, although the documentary owner’s title was barred under the English domestic law, that law did not operate by way of a ‘depriv[ation of] possessions’ but instead by a ‘control of use’ of property in accordance with the public interest. If it did not operate by way of a ‘depriv[ation of] possessions’, then it did not come under Art 1 of Protocol No 1 to the ECHR, which states: Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one

shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding

[page 224] provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interests or to secure the payment of taxes or other contributions or penalties.147

5.65 The above discussion raises the question of how relevant the Grand Chamber decision in the ECtHR is to Australia. Australia is not a party to the European Convention on Human Rights148 but human rights law may still impact on Australian domestic law. Although international treaties, including those on human rights, are not part of Australian law, unless and except to the extent that their provisions are given effect in Australian law by legislation, Australian courts have been willing, for a number of purposes, to consider the provisions of such treaties and the case law applying to them.149 In other words, the provisions and the case law have had some persuasive value. It may also be the case that treaty-monitoring bodies will seek to raise issues about the applicability of ECtHR decisions in respect of treaties to which Australia is a signatory.150 It may also be the case that human rights charters, such as those in Victoria and the Australian Capital Territory,151 serve to stimulate interest in the further development of charters that go further to protect property. 5.66 However, JA Pye (Oxford) Ltd v United Kingdom is not only useful because it serves to raise the connection between the law of adverse possession and human rights at a doctrinal level, but the case is also useful because it serves to highlight how human rights, which are imbued with policy considerations, may be deployed to undermine the very [page 225] basis or rationale for certain laws in the first place; in this case, to deny the basis for the law of adverse possession.152 5.67

Yet, reliance on human rights as a basis to deny the validity of adverse

possession law may be somewhat double-edged. As we know, ultimately in Pye’s case the United Kingdom was not in contravention of Art 1 of Protocol No 1 of the ECHR under its old, domestic (English) legislation, and nor would it have been in contravention under its new, reformed domestic law, but reliance on human rights to undermine the doctrine of adverse possession may be problematic for other reasons, too. This is because there is a broad spectrum of human rights and while some human rights may be used to attack the rationale for adverse possession law, others may perhaps be used to support or uphold it. Accordingly, it may be possible that, in some circumstances at least, a human right to family and private life under Art 8 of the ECHR could be relied on as the basis for the continuation (as opposed to the denial or diminution) of adverse possession law. 5.68 Alternatively, perhaps Art 11 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), to which Australia is a party, could be relied on to uphold the continuation of the doctrine of adverse possession rather than wind it back. That article affirms that all people have a right to adequate housing. It recognises ‘the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing’ and states that ‘States Parties will take appropriate steps to ensure the realisation’ of that right. 5.69 Irrespective of which position we hold in relation to the rationale for, and reasonableness of, the doctrine of adverse possession, what the foregoing discussion demonstrates is that rights to property are not absolute rights and that their protection is limited by other concerns; a point which was made clearly in JA Pye (Oxford) Ltd v United Kingdom where the interests of society were considered. Whether or not adverse possession will be inconsistent with human rights will depend on the circumstances of the legislation and the policy arguments supporting the deprivation.153

Source of adverse possession rights 5.70 The source of adverse possession rights is established by the conjunction of common law and statute. The common law establishes the principle of possessory title itself and what amounts to adverse possession,

while statute determines the limitation period154 after which the title of the documentary owner is barred.155 The common law, [page 226] through Asher v Whitlock,156 demonstrated that more than one party may have a legal fee simple interest in the same property and that a legal fee simple interest may be created as a result of possession.157 Another line of authority has established what amounts to factual possession.158 5.71 Meanwhile, s 27(2) of the Limitation Act 1969 (NSW), which came into effect in 1971,159 sets the limitation period at 12 years in New South Wales, while s 27(1) states that the title of the Crown cannot be barred until 30 years of adverse possession have elapsed.

Adverse possession and the Crown 5.72 Although s 27(1) of the Limitation Act sets a 30-year limitation period in relation to the Crown, s 170 of the Crown Lands Act 1989 (NSW) provides that title to Crown land cannot be asserted on the basis of an adverse possession claim in a number of specified circumstances.160 The same section also prohibits the acquisition of title, by adverse possession, of certain ‘land of the Crown’. The legislation does not define this term and reference to the general concepts of ownership needs to be made to give it meaning, but ‘land of the Crown’ includes Crown land dedicated or reserved for a public purpose.161 5.73 The potency of s 170 of the Crown Lands Act can be seen in Townsend v Waverley Council.162 In that case, a man with the requisite animus possidendi (intention to possess) went into possession of land that formed part of Bronte Park (in Sydney). The land was adjacent to the house over which the man held documentary title. No certificate of title had been issued for the relevant park land after the land had been resumed to form part of the park.163 This meant that the land reverted to the Crown and, in so doing, was held ‘on behalf of Her Majesty’. Those words in turn brought the land within the expression ‘land of the Crown’, a term used in s 170(1) and (2) of the Crown

Lands Act. More particularly, it was land of the Crown that had been dedicated for a public purpose, pursuant to s 170(1)(c) of that Act. So, while the court recognised that there was possession ‘back to about 1920 — and certainly since October 1933’, and that it was ‘open, notorious, [page 227] exclusive and without acquiescence of the true owner, the defendant’, the plaintiff was unsuccessful in his claim because the relevant land, being ‘land of the Crown’ that had been dedicated for a public purpose, could not be the subject of an adverse possession claim.164 5.74 Claiming adverse possession against the Crown is generally regarded as being different from claiming adverse possession against a private citizen or company. One rationale for the difference lies in the fact that Crown land holdings are vast and an undue burden would be placed on the Crown if it had to be constantly vigilant about checking its holdings for evidence of adverse possession. This may be particularly so, where land has never been alienated or used by the Crown. However, as much Crown land is actually in use by government departments, for example, it may be the case that the task of checking is not as onerous as first anticipated. If so, that would suggest that a blanket rule against adverse possession claims against the Crown on the basis of overly burdensome checking responsibilities may not be well grounded. However, it cannot be denied that there are also powerful policy reasons against ever permitting Crown land to be the subject of adverse possession. These policies are based on the view that enough of the state’s land is already held privately and that no more should be permitted to pass out of the public domain, and so constitute a diminution of a valuable public asset.165 Weber v Ankin166 raised some of these concerns in relation to an adverse possession claim over a public lane. 5.75 But what of the reverse situation, that is, where the Crown possesses adversely against one of its citizens? Should the law uphold such possession and allow the true owner’s title to be extinguished by the Crown? Roberts v Swangrove Estates Ltd167 considered that issue in relation to a documentary title

holder who held land on the Welsh side of the Severn River. In that case, the court rejected the appellant’s argument that the Crown cannot commit a wrong against one of its subjects: a wrong that formed the basis of an adverse possession claim. Instead, the court found that there was no principle preventing the Crown from disseising a subject of his or her land. [page 228] Accordingly, if the statutory period had fully run against the documentary owner, the Crown may bar the documentary owner from asserting his or her title. It has been noted that there does not appear to be any Australian case dealing with this issue and nor do any of the Australian limitations statutes directly address the possibility of it.168

When does the limitation period start? 5.76 It is useful to conceive of the limitation period as rather like a clock ticking. In the case of adverse possession, the clock starts to tick from the time the documentary owner’s cause of action begins to accrue;169 that is, from when another person takes possession of the land adversely to the documentary owner. As noted above, in New South Wales, time runs for 12 years, after which the documentary owner is statute-barred and cannot bring an action for the recovery of his or her land.

What needs to occur for the cause of action to accrue? 5.77

The cause of action will accrue:170

when there is: –

dispossession, which involves the adverse possessor driving another off the land,171 and therefore involves ouster; or



discontinuance, which refers to the person in possession going out of possession and another coming into possession,172 and effectively means

abandonment by the documentary owner; and when some other person takes adverse possession.173 Hence, the land must be vacated and another person must enter into possession. In practical terms, many cases of barring by statute arise as a result of discontinuance because, where there is dispossession of the documentary title holder, the documentary title holder will usually institute proceedings within the limitation period to avoid being statute-barred.174 5.78 If a documentary owner who has been dispossessed, or who has discontinued possession, assigns his or her interest before the statutory period has expired, the assignee will take subject to the adverse possessor’s interest, because the assignee cannot be propelled [page 229] into a better position than that which the assignor was in.175 In the case of land subject to an interest in remainder, the cause of action will not accrue until the remainder falls into possession.176 So, although a possessor may hold adversely against a life tenant for 12 years and defeat the interest of the life tenant, the adverse possessor will not be able to defeat the tenant in remainder until the expiration of another 12 years of adverse possession (ie, until the full statutory period has run again) against the tenant in remainder. When the statute is running against the tenant in remainder, the tenant may bring an action for recovery of possession at any time. This scenario demonstrates how it is possible for an adverse possessor to be in possession for well in excess of 12 years without statute-barring the ultimate documentary title holder. 5.79 To take an example: If, by 2012, A had adversely possessed as against B (a life tenant under T’s will) for 12 years or more, then B’s life estate would have been extinguished. If, however, B died in 2017, C, who was entitled to a fee simple estate in remainder under T’s will, would have been entitled to possession in 2017. This is because C’s cause of action to recover the land from the adverse possessor, A, only began to accrue in 2017 when C became entitled to his or her interest under the will, on the death of B. A cannot

defeat C until 2029 (ie, 12 years after 2017). To reiterate: although an adverse possessor may hold adversely against a life tenant for as long as 12 years, the adverse possessor will not be able to defeat the tenant in remainder until the expiry of another 12 years of adverse possession against that tenant in remainder. Periods of adverse possession against the tenant in remainder cannot simply be added to prior periods of adverse possession against the life tenant so as to statute-bar the tenant in remainder. The clock must re-start against the tenant in remainder on the death of the life tenant. At any point during the statutory period, the tenant in remainder may bring an action for recovery of possession. 5.80 The situation is similar in regard to leases. A tenant under a lease may bring a claim for recovery of land against an adverse possessor in the 12-year period after the cause of action has accrued. The clock does not begin ticking against the lessor until the lease has expired and the lessor is able to go into possession again.177 Further, if an adverse possessor goes into possession against a tenant, but before the 12-year period has elapsed, and the landlord grants a new lease, the tenant under the new lease has another 12 years from the commencement of that new lease to assert his or her rights against the adverse possessor.178 [page 230]

What are the criteria for adverse possession? Introduction 5.81 In this section, we return to the concept of possession discussed at the beginning of this chapter. An adverse possessor must be able to demonstrate that he or she is in possession. Here, possession is comprised of: factual possession (demonstrating the requisite level of physical control); and the requisite animus possidendi. Further, a person cannot be in adverse possession if he or she has the permission or consent of the documentary owner to be in possession.179

The meaning of these requirements has proved rather difficult to pin down. There is no simple tick-list of behaviours or actions that will automatically lead to satisfaction of the requirements. Instead, courts have dealt with these elements on a case-by-case basis and been very influenced by context.

Factual possession 5.82 Factual possession requires ‘possession in the ordinary sense of the word’.180 Hence, a squatter181 must simply go ‘into ordinary possession of the land for the requisite period without the consent of the owner’.182 An adverse possessor must be able to demonstrate that he or she has taken factual possession and has not merely engaged in conduct which constitutes something less than or different from possession.183 [page 231] 5.83 There is no requirement that the possession be confrontational. As Lord Hope of Craighead observed: [The term, “adverse”] suggests that an element of aggression, hostility or subterfuge is required … But … this is not so. It is used as a convenient label only, in recognition simply of the fact that the possession is adverse to the interests of the paper owner or, in the case of registered land, of the registered proprietor.184

5.84 Meanwhile, Bowen CJ in Mulcahy v Curramore Pty Ltd185 stated that possession must be ‘open, not secret; peaceful, not by force; and adverse, not by the consent of the true owner’.186 Hence, possession should occur in such a manner whereby a documentary owner who ‘was reasonably careful about his or interest’ would notice it.187 5.85 Open Yet, despite these statements, factual possession has been established where the documentary title holder did not know of the adverse possession. In Rains v Buxton,188 for example, A occupied a cellar under the ground of B for 60 years. B had no knowledge of the occupation, but Fry J found that the requisite possession existed and that the relevant limitation period had been satisfied. Consequently, adverse possession was effective to block the title of the documentary owner. Similarly, in the United States, a party exploited the tourism potential of a cave under the ground of another’s

land for a period of 12 years. Although the documentary owner of the land where the cave existed continued to use the surface land, the court found that there had been sufficient possession of the underground space and satisfaction of other criteria to amount to adverse possession.189 Nevertheless, as has been observed ‘openness may strengthen a claim of adverse possession’.190 5.86 Peaceful Further, despite the requirement in Mulcahy v Curramore Pty Ltd that possession be ‘peaceful’,191 some cases have also found factual possession established where force has been used.192 According to some scholars, s 28 of the Limitation Act implicitly recognises that force may be part of factual possession because that section recognises that the clock will start ticking against the documentary owner when the owner ‘discontinues’ or is ‘dispossessed’. ‘Dispossession’, in turn, is based on the documentary owner being driven out; an act that includes some degree of force.193 If time starts on the basis of [page 232] forceful acts, surely force may also be used to maintain the ticking of the adverse possession clock. However, if, for example, a documentary owner is so intimidated by the force used that he or she is unable to enforce his or her rights through the courts, it may be the case that the possession will not be regarded as peaceable.194 5.87 Permission If the documentary title holder grants permission for the possession, the possession cannot be adverse. At times it may be difficult to establish whether the possession is inconsistent with the documentary owner’s title or whether it is possession by way of a lease or a licence, for example, and therefore is possession with permission.195 This is particularly the case in family situations where arrangements that are oral and unclear often emerge over time.196 In Richardson v Greentree,197 the court specifically examined how an agreement or arrangement between family members can negative the ‘adverse’ aspect of possession, because permission is taken to have been granted.198 In that case, Einstein J found that the defendant did not hold adversely but as the result of:

… an agreement or arrangement … which broadly provided that [the defendant] was given a licence to reside in the property until his death, on condition that he pay the rates in lieu of the rent and maintain the property in a reasonable condition.199

Einstein J went on to say that ‘the allegation of adverse possession is clearly negatived by the family relationship in the course of which the agreement or arrangement was entered into’ and the defendants failed to establish an intention ‘to exclude the whole world from the land or an intention to take possession from the documentary title holder’.200 5.88 In considering Richardson’s case, the court referred to Hughes v 201 Griffin, a case in which a plaintiff went to live with her husband in a house which the husband held under freehold title. Although the husband told his wife (the plaintiff), that the property was to be hers on his death, he executed a conveyance inter vivos in favour of his nephew. The wife knew nothing of the conveyance and, initially, nor did the nephew. Later, the husband went as far as offering to vacate the house in favour of the nephew. This offer was not accepted but, on the husband’s death, the nephew sought possession and the widow refused to vacate the premises. One of her arguments was that she took the property pursuant to her late husband’s will and that he was able to pass an interest to her via the will because he held adversely to his nephew. As we observed earlier in Asher v Whitlock,202 [page 233] possessory interests are devisable, but here the question hinged on whether the husband held adversely to the nephew. (He needed to do so in order to have an interest to devise.) The Court of Appeal held that the continued occupation by the husband was by virtue of a licence and not as a result of adverse possession. Einstein J, paraphrasing Hannan LJ in Hughes v Griffin, stated that: … the facts negatived an intention on the part of the husband to obtain a statutory title before his death and that it would be contrary to common sense to suppose that a man can become the owner under the Limitation Act 1939, when his whole intention was not to become such an owner.203

5.89

Although a contrary view was taken in Roy v Lagona,204 where a

foster daughter was found not to be in possession under any legal right, nor any right in equity, the more commonly held position is that possession by a person in a family relationship with the documentary owner will be regarded as in possession ‘with permission’. However, each case will turn on its facts. 5.90 In some cases, permission to possess might be given at the outset, but the permission may be revoked during the course of possession.205 This scenario has been known to arise when a party is in possession pursuant to a contract for sale but stays on in possession after the contract ceases to bind the parties.206 In such circumstances, Lakshmijit v Faiz Sherani207 found that the possession could only be adverse after the parties’ rights were no longer affected by the contract. 5.91 Sandhu v Farooqui208 dealt with a similar issue. There, the court demonstrated that a potential purchaser may acquire a possessory title even when permission is initially granted to take possession. This case involved a potential purchaser going into possession with the vendor’s permission but staying on in possession after it was clear that the sale of the property was never going to proceed. Key to the Court of Appeal’s decision was the issue of when the licence, under which the purchaser went into possession, ended. The court noted that if a purchaser goes into possession with permission, the purchaser must prove withdrawal of that permission before the adverse possession clock can begin to tick. Communication of an intention not to proceed to completion must be communicated between the parties although that communication may be implied from conduct and need not be express. 5.92 BP Properties v Buckler209 also considered the issue of permission. It found that it is possible for the documentary owner to grant permission of adversely possessed land at any [page 234] time before the expiration of the statutory period. This is the case even where the grant of permission is unilateral and unsolicited. The effect is not only to stop time accruing against the documentary owner, but also to bring about the loss of all benefit from previously accrued time. Concern has been expressed as

to whether this case represents good law.210 Given that the prevention of time running is often achieved by quite formal mechanisms, such as by way of institution of an action, the mere granting of permission may seem a somewhat lax method to achieve the same effect.211 Yet scholars such as Butt argue that halting the adverse possession clock from ticking merely by granting permission for possession is both logical and consistent with the law that prevents rights being acquired by way of prescription, once permission is granted.212 Nevertheless, a more conclusive method of stopping time would seem to be where the adverse possessor makes a written offer to lease, licence or buy the land, for example. Such an offer would act as a clearer affirmation by the adverse possessor of the documentary owner’s title.213 However, there may be cases where not even an offer to purchase will act as an acknowledgment of the documentary owner’s title, with the effect that time stops running. The English case of Ofulue v Bossert214 considered the question of whether a ‘without prejudice’ offer to purchase the relevant property, made by an adverse possessor to the documentary owner, amounted to confirmation of title. The court did not doubt that ordinarily an offer to purchase would affirm the title of the documentary owner and so stop the accrual of time against that owner. However, given that the offer to purchase in this case was made ‘without prejudice’, in the course of earlier legal proceedings, and could not, therefore, be admitted into evidence, the court held that the offer had no operative effect in affirming the documentary owner’s title. Hence, the adverse possessor had accumulated the requisite amount of time to bar the title of the documentary owner. 5.93 Range of variables, particular circumstances and physical control In commenting on what amounted to possession, the court referred to a range of variables, stating that it was necessary to take into account: … the character and value of the property, the suitable and natural mode of using it [and] the course of conduct, which a proprietor might be expected reasonably to follow with regard to his [or her] own interests …215

In a similar vein, Slade J in Powell v McFarlane216 commented that, in considering what amounts to physical control — an appropriate degree of physical control being an indication of factual possession — the court needed to have regard to a range of factors. It needed to consider ‘the nature and manner of the land and the manner in which land

[page 235] of that nature is commonly used and enjoyed’.217 In Powell’s case, neighbouring animals strayed on to land and grazed on it. To establish the requisite level of possession, the court found that the number of straying animals must be great enough to displace the original animals and it noted that the same degree of possession that is required to sue in trespass is needed to establish adverse possession.218 Slade J stated: Everything must depend on the particular circumstances, but broadly speaking … 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 noone else has done so.219

Hence, carrying out improvements or erecting buildings on the land would be strong evidence that the Slade J test had been satisfied.220 5.94 According to Lord Browne-Wilkinson, in JA Pye (Oxford) Pty Ltd v Graham, the factual possession aspect of adverse possession is established by ‘a sufficient degree of physical custody and control’.221 In that case, the Grahams held a grazing licence over Pye’s land. When the licence expired, the Grahams sought to extend it but Pye refused the request and the Grahams remained in possession. The Grahams used the land, not paying rent for it and not receiving a request from Pye to vacate. Had they been requested to pay rent, they said that they would have obliged. The Grahams requested another grazing licence but received no reply to their letter or any subsequent letter. They remained in possession for the statutory period and physically excluded Pye from the land by hedges and a lack of key to the road gate. They spread dung on the land, harrowed it and rolled it. They also overwintered dry cattle and yearlings in a shed on the land, which went beyond what they were permitted to do under the initial grazing agreement. These acts constituted factual possession for the purposes of establishing adverse possession. 5.95 Examples of adverse possession It is well established that what will amount to possession may vary from one situation to the next. Indeed, the court in Guggenheimer v Registrar of Titles observed that: The courts have not formulated specific rules or definitions that can be applied to any given fact

situation such that it is possible to say that the presence or absence of particular factors demonstrate the existence or absence of possession.222

5.96 As what amounts to adverse possession is so heavily dependent on the circumstances, the case law at times can seem somewhat disparate and unpredictable. In order to elucidate what may amount to adverse possession, some further examples of decisions are discussed below. [page 236] 5.97 In relation to some unoccupied marshy land, which was too overgrown to be easily used for agriculture and which, in fact, was a vacant building block, the court found that entering the land and engaging in recreational shooting evidenced factual possession.223 By contrast, it was held in Harnett v Green224 that walking over unfenced bushland near Sydney once a week and warning off anyone who tried to enter the land, as well as sporadically collecting payment from those who removed timber, did not amount to evidence of factual possession. 5.98 In Tecbild Ltd v Chamberlain,225 children playing on land and tethering ponies on the land amounted to acts insufficient to establish adverse possession. Similarly, in Riley v Penttila,226 enclosing land and using it first as a tennis court and later as a garden were not considered acts that amounted to adverse possession. 5.99 Further, if the land in question is a large area, adverse possession of some sections might well be enough for the whole parcel of land to be adversely possessed.227 This is more particularly so if the land in question is farming land and different paddocks are used each year.228 Possession of one or some paddocks could be sufficient to claim adverse possession over all the land. 5.100 However, on other occasions the reverse has been held. Some and not all the land has been the subject of a successful adverse possession claim. In Quach v Marrickville Municipal Council,229 the plaintiffs owned land, a small section of which was acquired by the local council for use as a drainage reserve (pursuant to s 398 of the Local Government Act 1919 (NSW)). The

plaintiffs continued to use the land for 34 years without the council claiming it. Young J ultimately found that the drainage reserve land had been adversely possessed by the plaintiffs and that, where there is a retained use of a specifically defined part of the premises, the adverse possessor need not prove that his or her acts are directly inconsistent with the acts of the true owner. He also found that the council retained a right similar to an easement that allowed it to keep its pipes in the ground. The facts of this case also demonstrate how an adverse possessor and a documentary owner cannot both be in possession of the land at the same time.230 Possession must be single and exclusive231 and, where neither the adverse possessor nor the documentary title holder can prove this, the documentary title holder will be assumed to be the single and exclusive possessor.232 [page 237] 5.101 The issue of how much land must be adversely possessed was discussed again by Tamberlin JA in South Maitland Railways Pty Ltd v Satellite Centres Australia Pty Ltd.233 His Honour stated that: … [it] is not necessary for an owner to show that physical use has been made of every section of the land and acts of possession done on parts of a parcel of land may be evidence of possession of the whole: see Higgs v Nassauvian Ltd [1975] AC 464 at 474. It is sometimes difficult to arrive at a single description adequate to cover all aspects of the use of land. Often there may exist a dominant use with other subsidiary uses which are less intensive or equivocal.234

5.102 Bearing in mind the contextual variables discussed in Lord Advocate v Lord Lovat,235 and other cases, the following situations and acts may (but will not necessarily) amount to evidence of possession: building on the property;236 occupying the property by residing on it;237 paying rates and taxes;238 fencing the property;239 maintaining trees and gardens;240 blocking access so others cannot use the land;241 and allowing cattle to agist (graze for a fee) on the land.242

5.103 In all the cases where the possessor is seeking to establish that his or her possession is adverse, the onus lies on the possessor, and the standard of proof is the civil onus;243 that is, the possessor must demonstrate that on the balance of probabilities his or her possession was adverse.244 5.104 Use inconsistent with the documentary owner’s use of land On the basis of older cases such as Leigh v Jack,245 the law (at least for a time) required that, in order to establish an [page 238] adverse possession claim, the possession had to be inconsistent with the purpose for which the documentary title holder intended to use the land. Where no inconsistency could be established, the documentary title holder was deemed to have granted an implied licence to the squatter whereby possession was permitted. The effect of permission or consent was to prevent the possession being characterised as adverse to the documentary title holder. 5.105 In cases where the documentary title holder had no present use for the property, but was merely keeping it for later use, it was difficult to establish an ‘adverse’ or inconsistent element.246 In response, a trend developed whereby the courts found that no adverse possession could be established in those cases, on the ground that, as there was no present use for the land, there was no use to which the possession could be judged as being adverse. Hence, conduct that in other circumstances may have been evidence of possession capable of establishing an adverse possession claim, such as cutting down timber and removing it or grazing cattle on a fenced-off, unused section of a golf course, was not found to establish adverse possession.247 Those acts were not regarded as being inconsistent with the present non-use of the land. 5.106 Rejection of implied licence doctrine English courts have now rejected application of the implied licence doctrine in the context of adverse possession.248 Evidence that the implied licence doctrine is no longer favoured may be observed in Buckinghamshire County Council v Moran,249 where one of

the main issues to be decided was whether the fencing of property, planting of bulbs and the installation of a locked gate (for the statutory period) [page 239] amounted to adverse possession even though there was no present use for the land but a future use (as a road) had been planned. The court found that the relevant acts were sufficient to amount to the dispossession of the documentary title holder. Moran’s case followed Stamp LJ in dissent in the Wallis’ Cayton Bay Holiday Camp Ltd v Shell Mex and BP Ltd250 case and, accordingly, rejected the implied licence doctrine, demanding instead that the issue of intention be determined by reference to the facts.251 If the facts demonstrated an intention to possess, that intention would not be negatived simply because the true owner was undecided about the future or present use of the property. 5.107 In the more recent case of JA Pye (Oxford) Ltd v Graham,252 the House of Lords discussed whether the possession of the squatter needed to be inconsistent with the documentary owner’s intended use for the land. Lord Browne-Wilkinson stated that to claim that ‘the sufficiency of possession can depend on the intention not of the squatter but of the true owner’ was ‘heretical and wrong’, and to do so reflected an attempt to recast the law in its pre-1833 position where ‘inconsistent user’ was a partial requirement of adverse possession.253 He observed that the Wallis’ Cayton Bay Holiday Camp Ltd v Shell Mex and BP Ltd254 line of cases was wrong. 5.108 On the facts of Pye’s case, the House of Lords found for the Grahams, the adverse possessors, even though Pye had no present use for the land. The court went on to acknowledge that, in some remote circumstances, it may be possible for the documentary title holder to establish that the squatter did not have the requisite level of intention to possess. Such a case would be where the stranger is aware of a special purpose for which the documentary holder uses or intends to use the land and the stranger’s use of the land is not in conflict with that use. The court stated that at best it ‘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’.255 Lord Browne-Wilkinson added that he thought there would be ‘very few occasions’ where this was the case but observed it was a possibility, albeit quite an improbable one.256 [page 240] 5.109 In England, the rejection of a blanket implied licence doctrine was ultimately enshrined in statute.257 Although in New South Wales there is no provision comparable to the English one, the blanket implied licence approach seems to be judicially unpopular. Australian courts largely seem to have rejected the inconsistent use doctrine and, presumably, the related implied licence doctrine. Cases such as Monash City Council v Melville258 and Whittlesea City Council v Abbatangelo259 demonstrate this. Indeed, Underwood J in Woodward v Wesley Hazell Pty Ltd260 noted, at an earlier point, that ‘even if the Shell-Mex case and Gray v Wykeham-Martin [cases that applied the implied licence doctrine] were binding upon me, they should no longer be regarded as good law’. However, South Maitland Railways Pty Ltd v Satellite Centres Australia Pty Ltd261 offers a contrary position.

Animus possidendi or intention to possess 5.110 The party seeking to establish adverse possession must also demonstrate an intention to possess as well as factual possession.262 This is more difficult where the acts of possession are equivocal.263 In those circumstances, consideration of the subjective intention of the adverse possessor may become relevant.264 If the intention remains equivocal by being open to more than one interpretation, it generally will not be sufficient to satisfy the requisite animus possidendi.265 5.111 Although statements by the adverse possessor, as to intention, have been regarded as problematic particularly because they could be self-serving, the case of Whittlesea City Council v Abbatangelo affirmed that the adverse possessor’s statements of intention may, in concert with other considerations,

be used to help establish the requisite level of intention. In that case, the court stated: [page 241] … while a statement by a person that he or she intended to possess 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.266

Courts relying on statements by the adverse possessor about his or her intention would need to exercise caution, evaluating the adverse possessor’s statements carefully and bearing in mind the possibility of their self-serving nature. If, after a contextual evaluation of the statements, the court still found them to be helpful, it would not be precluded from relying on them. 5.112 The intention that is relevant is always the intention of the squatter, not the documentary owner.267 According to Powell v McFarlane,268 what must be demonstrated is an intention to use the land as though it were the possessor’s own.269 Slade J in Powell v McFarlane put it thus: … the animus possidendi 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.270

5.113 At trial, in Moran’s case the requirement was framed as ‘not an intention to own or even an intention to acquire ownership but an intention to possess’.271 This position was affirmed on appeal, where the court held that ‘an intention for the time being to possess’ was sufficient.272 Intention was also considered, in the Victorian context, in Kierford Ridge Pty Ltd v Ward.273 There, the court affirmed Slade J’s requirement in Powell v McFarlane that the squatter needs to demonstrate an intention to possess and that the intention needs to be conveyed to the world. The Victorian Court elaborated on this requirement by quoting Bayport v Watson274 in the following terms: 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 CJ said in Seddon v Smith (1877) 36 LT 168, 169:

[page 242] “Enclosure is the strongest possible evidence of adverse possession.” Russell LJ 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”.275

Generally speaking, Australian cases have tended to follow the test set out by Slade J in Powell v McFarlane,276 but they have not explored further the proposition that the intention to possess must be conveyed to all the world. Some commentators suggest that such a manifestation of intention is, nevertheless, required.277 5.114 The ‘intention to possess’ (rather than own) test was affirmed again in the later case of JA Pye (Oxford) Ltd v Graham. In that case Lord BrowneWilkinson endorsed it, commenting that it was ‘manifestly correct’,278 and Lord Hope of Craighead explained that it was not necessary ‘to show that there was a deliberate intention to exclude the paper owner or the registered proprietor’ but rather what needed to be demonstrated was ‘an intention to occupy and use the land as one’s own’.279 5.115 In Whittlesea City Council v Abbatangelo, the court affirmed yet again that an adverse possessor must prove an intention to possess exclusively which is different from proving an intention to own.280 The court also highlighted the difference between an intention to possess exclusively and the mere deprivation of special benefits from land. The latter will be insufficient to meet the test for establishment of the requisite animus possidendi. However, if deprivation of special benefits accompanies an intention to possess, the requisite level of intention may still be established.281 Abbatangelo’s case is also significant because it affirmed that actions or words that acknowledge the existence of ownership in another party will not, of themselves, preclude the establishment of the requisite level of intention to possession by the adverse possessor.282 Hence, Mrs Abbatangelo’s statements that she did not own the land were not inconsistent with her intention to possess the land exclusively. Applying the same logic, the payment of rates by a party who is not the adverse possessor will not of itself be regarded as evidencing a failed intention to possess. Put another way, the payment of rates will not necessarily destroy the adverse possessor’s claim.283

[page 243] 5.116 Cervi v Letcher284 applied Abbatangelo’s case285 in relation to the question of the animus possidendi. The court in Cervi’s case summarised what is required to prove an intention to possess in the following terms: 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.286

5.117 What will amount to the requisite animus possidendi or intention will, like factual possession, vary according to circumstance. Further, the intention may be, and frequently is, deduced from the physical acts of possession themselves.287 Hence, at times, the acts which go towards demonstrating factual possession will be the same acts as those which go towards demonstrating an intention to possess. Nevertheless, the two requirements have been regarded as distinct, albeit that in England a ‘downgrading of the requisite animus’ has been observed while, somewhat paradoxically, the operation of the Land Registration Act may well reduce the number of successful adverse possession claims.288 5.118 To recapitulate, thus far, the following observations may be made. First, enclosure is an important act in helping to establish adverse possession and has, by itself, on a number of occasions been said to demonstrate the requisite intention to possess.289 Yet this will not always be the case.290 Significantly, Buckinghamshire County Council v Moran291 affirmed the importance of examining the issue of intention with reference to the particular circumstances at hand, thereby reinforcing the need for the contextualisation of enclosure or other acts. [page 244]

5.119 Second, the intention to possess may also be demonstrated by the payment of rates and taxes,292 yet such payment is not necessarily evidence of the requisite animus possidendi.293 It would seem that the payment of rates and taxes needs to be supported by other acts evincing an intention to possess. Other acts may include enclosing/fencing, cultivating or living on the land.294 In cases where there has been no payment of rates, the court has, on some occasions, found in favour of the adverse possession claimant.295 Hence, the payment of rates and taxes is not necessary to the success of an adverse possession claim. Nevertheless, refusing to pay rates has been found to run counter to a claim of the requisite animus possidendi.296 5.120 Possession may also be adverse to predecessors in title of the registered proprietor, not just the present registered proprietor. Barrett v McGuiness297 answered the following related question: Against whom exactly does the intention to possess for the statutory period need to be demonstrated? That case concerned two parties, McGuiness and the Barretts, who were each in possession of land to which the other party was the registered proprietor. The predecessors of each party had been in possession of the other’s land long enough to satisfy the statutory period. The Barretts wished the Torrens Register to be rectified and the correct lot numbers recorded, but McGuiness did not wish such an action to proceed, because the lot for which he was registered was more valuable than the lot for which he should have been registered. One of the arguments for McGuiness in resisting the transposition of the lot numbers on the Torrens Register was that, in order for s 45D(1)(b) of the Real Property Act to be satisfied, the relevant period of adverse possession must be demonstrated to be against the actual registered proprietor whose cause of action the possessor sought to extinguish (ie, against McGuiness himself, and not his predecessors in title). Hodgson CJ rejected this reasoning, finding that the period of adverse possession could include periods as against the successors in title of the present registered proprietor against whom the claim was being made. He said, with reference to s 45D(1)(b): In my opinion, the reference there to “the registered proprietor of an estate or interest” does not mean that the extinguishment must first have occurred as against the particular person who is the registered proprietor at the time of the application, much less that the whole period of adverse possession must have run against that person. In my opinion those words have to be given an ambulatory application, and the paragraph applies wherever the title of any registered proprietor

of an estate or interest in the particular land would, at or before the time of the application, have been extinguished.

[page 245] In my opinion, the interpretation contended for by [counsel] is inconsistent with s 45D(4), which protects registered proprietors who have become so registered without fraud and for valuable consideration.298

Summary of requirements for factual possession and the animus possidendi 5.121 A crisp judicial summary of the law on both factual possession and the animus possidendi was offered by Tamberlin AJ in Bridges v Bridges.299 He summarised the law as follows (emphasis added): (i)

For a person to acquire possessory title he or she must be shown to have had both factual possession and a requisite intention to possess the land.

(ii) Factual possession signifies an appropriate degree of physical control and it must be single and exclusive possession and this is a question of fact dependent on particular circumstances such as the nature of the land and the manner in which such land is commonly used or enjoyed. There is no universally applicable principle to resolve this question. (iii) The intent to possess is that of the claimant to title by possession and involves an intention in relation to the whole world, including the owner with the paper title. (iv) There must be clear and affirmative evidence that the claimant has acquired possession. Equivocal acts will normally not suffice. (v) The acts must be indicative of the requisite intention to possess. (vi) The concept of adverse possession in 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 whether the claimant adverse possessor has dispossessed the paper owner by having possession without the consent of the owner. (vii) The intention required by the law is not an intention to own or even an intention to acquire ownership of the land, but an intention to possess it. The claimant, although in adverse possession, need not subjectively believe that he or she is the owner of the land. (viii) A statement of intention by a claimant adverse possessor must be treated cautiously as it may be self-serving, but it may be relevant with other evidence to support the inference of an intention to possess. (ix) Use falling short of possession will not suffice. For example, a use of land may amount to enjoyment of a special benefit of the land by casual, cursory or occasional acts of trespass and this may not suffice to establish factual possession nor demonstrate the requisite intention.

(x) There is no requirement that the use to which the land is put by the claimant adverse possessor must be inconsistent with the paper owner’s present or future use of the land.

[page 246]

Adverse possession and mortgages 5.122 If a mortgagee remains in possession of land, the mortgagor will lose his or her right to redeem300 after the expiration of the limitation period if the mortgagee does not give written acknowledgment of the mortgagee’s title or equity of redemption and does not receive any payment from the mortgagor in respect of interest or principal.301 5.123 Meanwhile, a mortgagee has a right to foreclose, claim possession or sue for the principal when the mortgagor makes the repayment due.302 That right is lost if it is not exercised within the limitation period. 5.124 Hence, if a mortgagee does not bring a claim for possession within the statutory period, an adverse possessor may succeed in barring that claim, thereby effectively extinguishing the mortgage. The English case of Ashe v Westminster plc303 demonstrated how this may occur. In that case, the parties entered into an ‘all monies’ legal charge, one effect of which was to give the mortgagee bank an immediate right to possession of the mortgagor’s house on execution of the instrument. The mortgagee did not go into possession at that time. The mortgagor defaulted on the loan and ultimately went bankrupt, but still the mortgagee did not take possession of the house. Accordingly, the mortgagor successfully argued that as the bank’s right of action had accrued more than 12 years before the action was brought, the right was extinguished under the Limitation Act. (Execution took place 17 years before the action was brought.) Importantly, by application of the principles as to what constitutes adverse possession set out in JA Pye (Oxford) Ltd v Graham,304 the mortgagor was also able to demonstrate that he was in adverse possession of his own land and not there with the permission of the mortgagee.305 Young J has commented ex-judicially that this case should serve as a warning ‘to mortgagees who allow the mortgagor to keep in possession while waiting for a more propitious time to sell’.306

Co-ownership and adverse possession 5.125 Where a property is co-owned, the question may arise as to whether one co-owner may succeed in an adverse possession claim against another coowner or owners. Given that, at common law, all co-owners have the right to use and possess the whole of the [page 247] property, the starting point is that it is not possible to bring a successful adverse possession claim against other co-owners. 5.126 However, s 38(5) of the Limitation Act overturns that presumption, deeming the possession of a co-owner who takes possession of more than his or her own share (not for the benefit of the other co-owners) as possession that is adverse to the other co-owner(s). In such circumstances, the co-owners who are out of possession must bring their action for recovery of possession within the limitation period if they are not to have their rights extinguished. Much turns on whether possession by a tenant of ‘more than his or her share’ is regarded as being for the benefit of the co-owners or not.307 5.127 Re Franklin, a Victorian case, considered the issue of adverse possession in the context of co-ownership.308 In that case, a man transferred property to himself and his sister as joint tenants. Although the two were registered as joint tenants, the man dealt with the property as though he were the only registered proprietor. He paid the outgoings and mortgaged the property for the purposes of his business. His sister did not ever enter possession either as a resident or a visitor. After the man died, his son brought an application for a declaration that he, the son, as administrator of the estate, had acquired title to the joint tenancy by way of adverse possession. Hence, the court was charged with deciding whether a donor of a co-ownership interest in land could regain title to the donated land, by way of an adverse possession claim against his or her co-owner. Kaye J found that the sister’s interest had been extinguished by her brother, exercising sole rights of possession for the relevant period. This decision was largely based on the application of s 14(1) of the Limitations of Actions Act 1958 (Vic), which,

although considerably lengthier than the equivalent New South Wales provision, consistently deems a co-owner who is in possession or receipt of more than his or her share to be an adverse possessor. Although some commentators have questioned whether there was sufficient evidence of the animus possidendi to accompany factual possession in this case, the court did not exhibit any concerns in this regard.309

Property held on trust 5.128 Section 36 of the Limitation Act states that that Act applies to both legal and equitable interests, and s 11 of the same Act defines ‘land’ as including an equitable interest in land. Hence, property that is held on trust is subject to the Act. A beneficiary under a trust may be affected by adverse possession in circumstances where the trustee is the adverse possessor. At other times, the adverse possessor could be a stranger to the trust, giving rise to a right of action by the beneficiary or trustee. These different situations are examined below. [page 248]

Trustee as adverse possessor 5.129 In New South Wales, s 47(1) of the Limitation Act provides that a trustee who is in breach of a trust and in adverse possession is able to bar the beneficiary if he or she continues to hold adversely beyond the limitation period. Put another way, the beneficiary has 12 years from the time when he or she discovered, or could with reasonable diligence have discovered, that he or she had a cause of action in which to bring a claim against the adversely possessing trustee. After that, the beneficiary is statute-barred. This legislation reflects the view of the New South Wales Law Reform Commission.310

Stranger as adverse possessor of trust property 5.130

If a stranger goes into adverse possession of land held on trust, he or

she will need to be in adverse possession for 12 years in New South Wales in order to satisfy the statutory period and bar the documentary title holder (the trustee).311 However, this period can be extended by application of s 37 of the Limitation Act, with the result that the trustee’s title will not be barred until all the interests of the beneficiaries have been extinguished. For example, where there is a life estate followed by an estate in remainder, both of which are held on trust, the adverse possessor will statute-bar the lifeestate holder after 12 years, but the trustee’s legal estate will not be extinguished until the tenant in remainder is also statute-barred. The tenant in remainder does not acquire a right of action against the adversely possessing stranger until the life estate has expired. If the adverse possessor possesses as against the life-estate holder for a period in excess of 12 years, it is as though the adverse possessor holds an estate pur autre vie.312 This is so, because the adverse possessor’s interest is still constrained by the duration of the life-estate holder’s life. On the death of the life-estate holder, the tenant in remainder has an interest vested in possession and, from that time onwards, the tenant in remainder accrues a cause of action. That right to bring an action reasserting title will be exhausted after 12 years of adverse possession against the tenant in remainder. Only after the expiration of that period will the trustee’s legal title to the property be barred.313

Beneficiary as adverse possessor of trust property 5.131 Where the property is held on trust for a beneficiary, it is possible that, in limited circumstances, the beneficiary may seek to bar the title of the trustee by virtue of an adverse possession claim.314 In practical terms, this situation may arise where a purchaser has paid purchase moneys for a property but the contract for sale has not been completed.315 If the purchaser goes into possession and is not under licence, it can be argued that he or she is in [page 249] possession as a beneficiary under a constructive trust and is possessing adversely as against a vendor who holds the property as trustee.316

Suspending the statutory period 5.132 If the documentary owner is under a disability, the statutory period will be suspended.317 In New South Wales, a person who is under 18 years of age is regarded as being under a disability.318 A person may also be under a disability if, ‘for a continuous period of 28 days’, he or she ‘is incapable of’, or ‘impeded in’, the ‘management of his or her affairs’ by reason of: ‘any disease’ or ‘impairment’ of ‘his or her physical or mental condition’;319 ‘war or warlike operations’;320 or imprisonment.321 By providing a suspension, the legislature has, in part, sought to ensure that a party who has a valid cause of action, but who has not known about it or is unable to respond adequately to it, is not unfairly denied the opportunity to rely on that cause of action. New South Wales’ provisions are more liberal than those of some other states in this regard. For example, in New South Wales, the disability may either have existed at the time the adverse possessor went into possession, or may have developed during the limitation period. In either case, the limitation period will be suspended during the period of the disability. There is, however, an upper limit. No claim may be brought more than 30 years from the date the cause of action accrued.322 5.133 Finally, should the statutory period be destined to expire within three years of the documentary title holder ceasing to be under the disability, the statutory period will be prolonged so that the documentary title holder has three full years after the disability ceases in which to reassert his or her title.323 In this same three-year period, if the adverse possessor acknowledges or confirms the documentary owner’s title, it will bring the period of adverse possession to an end. 5.134 A circumstance where the commencement of the limitation period may be delayed is where there has been fraud or fraudulent concealment of either the cause of action or the adverse possessor’s identity. In such cases, the limitation period will not begin to run until the documentary title holder has discovered the fraud or should have discovered it, had reasonable diligence been applied.324 Seymour v Seymour325 found that, [page 250]

although the relevant fraud in these circumstances was not as narrow as common law fraud, ‘a consciousness’ of the wrongfulness was still required.326

Adding consecutive periods of adverse possession together 5.135 Separate consecutive periods of adverse possession that are independently less than the statutory period may be added together in order to satisfy the statutory period.327 If each adverse possessor takes through the previous adverse possessor in the chain, then the party in adverse possession at the date that the limitation period is satisfied will be able to bar the title of the documentary owner. This is because the initial adverse possessor acquired a title through his or her possession, and that title, which is good against all the world,328 may be devised or conveyed.329 In these circumstances, there is no need for each adverse possessor to effect a conveyance to the next possessor.330 5.136 If the successive adverse possessors do not hold through each other, but rather against each other, the situation is a little different. Clearly, the first adverse possessor is in possession wrongfully as against the documentary titleholder but, in addition, all the other adverse possessors are in possession wrongfully as against each other. Pursuant to Shaw v Garbutt and Mulcahy v Curramore,331 the general position is if the total of the several periods of adverse possession exceeds the statutory period, the documentary title holder’s title will be barred.332 However, it will not be the last in the chain of adverse possessors who bars the fee simple title, but the first. For example, if A, B, C, D and E comprise the chain of adverse possessors, each taking his or her interest independently of one another, then it is A who bars the title of the documentary owner at the expiration of the statutory period. E, who is in possession at the time the statutory period expires, will have a title by virtue of his or her possession, and that title will be good against all the world — except someone with better title. In these circumstances, D, C, B and A all have better title. 5.137 Of course, it is essential for the adverse possessors to maintain the chain of adverse possession continuously. There must be no breaks between

the periods of adverse possession whether by abandonment or reassertion of title, for example. If the land is at any time no longer held adversely, the clock will stop ticking and the benefit of all [page 251] accumulated time will be lost.333 Time will begin to accrue again from the point where the land is once again possessed, without the documentary owner’s consent, by someone in whose favour the limitation statute can run.334 The situation regarding abandonment may alter in the context of a series of successive independent adverse possessors holding against each other. For example, if a prior adverse possessor abandoned his or her rights and possession were immediately taken by a successive adverse possessor, the clock would not stop ticking as against the documentary owner because the land would continue to be held adversely to the documentary owner. There would be abandonment but not in the regular sense. This type of abandonment is known as qualified or modified abandonment. It permits periods of continuous, independent adverse possession to be accumulated so as to satisfy the limitation period. Qualified or modified abandonment by one or more adverse possessors in a chain may also have an effect on who will be entitled to possession when the limitation period is satisfied. Taking the example above, if A, the original adverse possessor, abandoned and B moved into (adverse) possession, at the expiration of the statutory period A’s claim for recovery of possession from E would be subject to defeat by E. E may also be able to defeat claims by B, C and D if they too had taken land abandoned by a preceding adverse possessor. Accordingly, it is important to ascertain the circumstances under which each adverse possessor took possession. To summarise, if the succeeding adverse possessor took wrongfully against the preceding adverse possessor, the preceding adverse possessor would have a better right but if the succeeding adverse possessor took immediately after a

qualified or modified abandonment by the preceding adverse possessor, the succeeding adverse possessor’s right would be better.

Stopping time running 5.138 As noted above, the true owner’s title cannot be barred unless an uninterrupted period of adverse possession equal to the statutory period has been established.335 Some acts will cause adverse possession to cease altogether and, consequently, the statutory requirement to bar the title will not be met by a continuous period of adverse possession.336 As we have observed (at 5.135–5.137), there is, however, no need for the limitation period to be satisfied by one adverse possessor alone. Successive periods of adverse possession that are accumulated so as to give rise to a continuous block of adverse possession equalling the statutory period may be relied on. What will matter in terms of accumulating time is whether or not there is an uninterrupted, continuous period of adverse possession. 5.139 Broadly speaking, acts by which the true owner asserts his or her own title, or where the adverse possessor acknowledges the superior title of the true owner, will cause time to stop running. These issues are considered below. [page 252] 5.140 Time will cease to accrue if the true owner asserts his or her right to possession. This may be achieved in several ways. It may be achieved if the true owner of the land brings an action to recover the land. Alternatively, the true owner may make a peaceable but effective physical entry onto the land. This is often achieved by turning out the possessor,337 but acts such as removing fences have been held to be sufficient in some circumstances.338 A mere formal entry will not be treated as the assertion of a better right.339 The aim of any assertion of rights is to demonstrate a retaking of possession,340 and this cannot be achieved by mere paper dealings such as the granting of a lease341 or a mortgage over the land.342 Nor can it be achieved by mere oral protests.343 Practitioners often resort to the aphorism ‘litigate first, negotiate

later’ when speaking of effective means to assert title.344 As the commencement of proceedings is unequivocal evidence of an assertion of rights, such advice helps overcome the problem that what amounts to a reassertion of rights varies from case to case.345 In Australia, the issue and service of a summons for possession, along with an intention to obtain an order for possession, would appear to be sufficient to amount to the retaking of possession by court proceedings.346 It will not matter how little time the assertion of rights is maintained. As long as it took place at all, it will be sufficient to prevent time accumulating in satisfaction of the limitation period.347 5.141 If the adverse possessor acknowledges348 the title (or the right of possession) of the true owner, time will also stop running against the documentary owner.349 Such an acknowledgment of title must be made in writing and signed by the maker.350 In these [page 253] circumstances, an email is regarded as writing.351 At times the acknowledgment may be given inadvertently; for example, in the form of a letter about a related subject.352 5.142 Merely realising that someone else owns the land, and consequently cancelling a licence, has not amounted to an acknowledgment of the rights of the owner.353 Yet the seeking of an exemption to pay rent has been held to confirm or acknowledge the true owner’s title.354 Admitting the documentary owner’s title in proceedings for possession of land also has been found to be an acknowledgment of title that stops time running;355 as has requesting a contribution towards the payment of rates.356 However, offering to purchase the relevant land is more problematic. It may,357 but will not necessarily,358 be treated as an acknowledgment of title.359 If title is acknowledged, that acknowledgment is binding on any successor in title to the adverse possessor or any person who might dispossess the adverse possessor and time will run from the date of acknowledgment.

Abandonment 5.143 Modified or qualified abandonment in relation to a series of adverse possessors was discussed above. This section focuses on ‘ordinary’ abandonment. If an adverse possessor abandons the land, time ceases to run against the documentary owner.360 Vacation of the land must be complete. Simply not using the land does not automatically equate to abandonment. Instead, each case must be considered on its facts. In regard to farmland, for example, lack of use will not amount to abandonment if the land was rendered unusable because of seasonal change, such as drought.361 Where land is not occupied because some tenants of the adverse possessor have left and others have not yet entered, there will be no abandonment.362 5.144 In cases of abandonment, the true owner is free to recover the land as though there had never been any adverse possession. In Mulcahy v Curramore, the court stated that abandonment leaves ‘no cloud on the true owner’s title’.363 If there is an intervening period of abandonment between two periods of adverse possession, the two periods of adverse possession cannot be added together, because the first period has ceased to count for all adverse possession purposes.364 If another party takes adverse possession after the [page 254] first adverse possessor’s abandonment, the earlier adverse possessor has no right of action (against the second) based on his or her earlier possessory title, because he or she forfeited his or her inchoate possessory title.365 5.145 If the adverse possessor abandons after the statutory period has been satisfied, it would seem the adverse possessor does not simply lose his or her rights according to the law of abandonment.366 Indeed, pursuant to the reasoning in Allen v Roughley and Asher v Whitlock,367 the adverse possessor by then has best title to the land and that title is enforceable against all the world whether or not his or her possession continues. The adverse possessor does not

acquire the rights of the documentary title holder; rather he or she merely bars the latter’s title. Such a view, discussed earlier,368 is expressed in Fairweather v St Marylebone Property Co Ltd,369 where it is said that the adverse possessor: … comes in and remains in always by right of possession, which in due course becomes incapable of disturbance as time exhausts the one or more periods allowed by statute for successful intervention. His title, therefore, is never derived through but arises always in spite of the dispossessed owner.

This seeming anomaly can occur because the principle of relativity of titles is based on the idea that there can be more than one fee simple estate in the same land.370

To what rights does adverse possession give rise? 5.146 While the land is adversely possessed, but before the statutory period has elapsed, the adverse possessor does not hold best title. The adverse possessor’s interest is, at this point, a possessory one and as such is enforceable against all the world except the true owner. After the statutory period has expired and the true owner is unable to assert his or her title, the adverse possessor still retains a possessory title, but it takes on the characteristics of a proprietary title, being enforceable against the whole world including the true owner. On the expiration of the statutory period, the adverse possessor acquires a fee simple estate or a life estate, for example, of his or her own. Further, on satisfaction of the statutory period, the documentary owner’s title may be extinguished by way of s 65(1) of the Limitation Act. 5.147 By characterising adverse possession as an act that extinguishes rather than creates rights, it becomes easier to understand the enforceability of the rights of third parties over the land.371 For example, if a third party holds an easement over land, and that land [page 255] is subject to a successful adverse possession claim, the easement will remain unaffected by the success of the adverse possession claim.372 This is so because

only the right of the true owner to bring an action in regard to land has been barred, and the definition of ‘land’ in the Limitation Act does not extend to incorporeal hereditaments.373

Possessory title and Torrens land 5.148 The Torrens system of land titles has at its heart the paramountcy of the Register. Hence, the recognition of rights in land that are not recorded in the Register runs counter to the objectives of the scheme. It is, of course, the case, as discussed in Chapter 8, that some unregistered interests are recognised by the Torrens system, but it was perhaps the desire to maintain the Register as an accurate account of interests held that precluded the holding of Torrens land by virtue of adverse possession until 1979 when the Real Property Act was amended.374 After those amendments were passed, it became possible to make a possessory application of Torrens land under Pt 6A of the Real Property Act. 5.149 The statutory amendments allow a party who has held Torrens land by virtue of possession for a period of time equal to or greater than the statutory period contained in the Limitation Act to lodge a possessory application.375 A possessory application pursuant to s 45D(1) of the Real Property Act is a request for the Registrar-General to record the adverse possessor, as the proprietor, in the Register. Although the provisions under Pt 6A of the Act are designed to provide an administrative mechanism for recognising title by adverse possession, it would seem that the court could still play a role where there was a real dispute between the adverse possessor and the documentary owner.376 5.150 Unlike land under old system title, the general position in relation to Torrens land is that it can only be the subject of an adverse possession claim (through a possessory application under Pt 6A of the Real Property Act) if the claim relates to a ‘whole parcel of land’.377 This position was confirmed in Seyffer v Adamson.378 Hence, small areas that do not amount to whole parcels of land cannot be the subject of such applications. However, there are exceptions. Section 45D(6) of the Real Property Act permits applications where

[page 256] the adverse possessor has occupied up to an ‘occupational boundary’,379 but that boundary is still within the true boundary. In those cases, the adverse possessor is able to claim the area of land up to the true boundary, even though he or she has not actually occupied it.380 Where the adverse possessor occupies land to an occupational boundary that is beyond the true boundary, his or her claim will be limited to the true boundary. Section 14(2) of the Real Property Act also provides an exception. It enables a primary application to be made by a person claiming an estate in possession in the land to which the application relates. Whereas applications under Pt 6A require applications be made in respect of whole parcels of land, s 14(2) permits applications in respect of either a whole or part of a parcel. 5.151 Another exception to ‘whole parcels’ of land being necessary for an adverse possession claim under the Torrens system relates to ‘residue lots’ and, in particular, to ‘night soil’ or ‘service’ lanes — lanes originally designed for the collection of human bodily waste.381 The amendments to s 45D of the Real Property Act that cover service lanes were designed to make claims of adverse possession over land comprising these lanes easier.382 The rationale for the amendments was that they permitted the better exploitation of the land, by assisting the land to be used for more socially beneficial purposes.383 In reality, many of the lanes were too narrow for vehicular access and, if they had not been possessed by adjoining owners, they had reportedly ‘fallen into disrepair’ or had