Sackville & Neave Australian property law [Tenth edition.] 9780409343786, 0409343781

Table of contents :
Full Title
Copyright
Preface
Preface to the First Edition
Acknowledgments
Table of Cases
Table of Statutes
Abbreviations
Table of Contents
Chapter 1 The Concept of Property
Introduction
What is property?
The right to use or enjoy
The right to alienate
The right to exclude
Property rights and contractual rights
Licences: bare, contractual or coupled with an interest
Licences and original parties
Licences and third parties
Property rights and the rights of persons
Are persons property?
Property and body parts
Property rights and privacy
Property and the right to work
Property rights and civil rights
Property rights and human rights
The traditional classification and terminology
Land, or realty
Boundaries of land
Air space rights
Chattels, or personalty
Boundaries between different types of property
The boundary between land and chattels: fixtures
The doctrine of fixtures
Tenant’s fixtures
Right to remove
Agricultural and residential tenancies
Chattels annexed without permission
The boundary between adjoining landowners
The doctrine of accretion
Encroachments
Land bounded by water
When chattels merge: the doctrine of accession
Chapter 2 Possession and Title
Introduction
Why protect ‘possession’?
Possession of goods
Remedies
The plea of jus tertii
Possession by a bailee
Claims by bailee against a third party
Claims by a bailor against a bailee
The rights of finders
Finder and occupier of land
Finder and employer
Abandonment of goods
Land
Title in actions to recover possession of land
Relativity of titles under the Torrens system
Assignment of the interest of a person dispossessed by a squatter
The self-help remedy
Forcible re-entry
Limitation of actions
How possessory title extinguishes documentary title with the passage of time
Justifications for the rule of adverse possession
Adverse possession and good faith
Adverse possession and human rights
The length of the limitation period
Commencement of the limitation period
General principles
Persons presently entitled to possession
The elements of adverse possession
Possession amounting to a criminal offence not relevant
Adverse possession claims to part parcels adjacent to boundaries
Does possession of part of a lot amount to possession of the whole?
Future interests
Equitable estates
Adverse possession by a co-owner
Successive adverse possessors
Stopping time running
Extension of time
The effect of effluxion of time
Tenancies
Chapter 3 The Fragmentation of Proprietary Interests in Land
Introduction
Fragmentation in a spatial dimension: the doctrine of tenure
No services
No incidents
Fragmentation in a temporal dimension: the doctrine of estates
Introduction
The estates — general
Fee simple
Fee tail
Life estate
Leasehold estates
Creation of freehold estates — words of limitation
Fee simple
Fee tail
Life estate
Statutory modifications to the common law
Determinable and conditional interests
General
Effect of void contingencies
When will a condition be void?
The doctrine of waste
Legal future interests
Reversions and remainders
Vested and contingent remainders
Fragmentation between legal and beneficial ownership: equitable interests in land
The development of the use
Substitute for wills
Avoidance of feudal burdens
Providing for grantor’s wife
Avoidance of the Statutes of Mortmain
Creation of new future interests
Enforcement of uses
The Statute of Uses 1535
The Statute of Wills 1540
The development of the trust
Equitable estates and wills
Reform of future interests
Systemic fragmentation of interests in land: the common law, tenure and native title
Introduction
The doctrine of tenure after Mabo
Is native title a proprietary interest?
The Native Title Act 1993 (Cth)
The nature and incidents of native title
What rights does the native title ‘bundle of rights’ contain?
Connection with the land
The extinguishment of native title
Grant of a freehold estate
Pastoral leases and extinguishment
Leases conferring rights of exclusive possession
Leases containing reservations in favour of Indigenous inhabitants
Statute
Chapter 4 The Acquisition of Property Rights and Equitable Property
Introduction
Acquisition through taking possession
Land and goods
Chattels — wild animals
Manufacture or creation of objects
Patents, copyright and trademarks
Consensual transactions with proprietary interests — legal and equitable
Sale
Goods
Formal requirements for the contract for sale of goods
Land — legal and equitable interests
The sale transaction — real property
Formal requirements for the passing of a legal interest in land
Formal requirements for contracts for the sale of land
The equitable doctrine of part performance
Equitable interests arising out of enforceable contracts
Gifts
Land
Express trusts
Formal requirements
Equitable doctrines: resulting trusts, constructive trusts and estoppel
Resulting trusts
Constructive trusts
Common intention constructive trusts
Constructive trusts based on unconscionable use of legal title
Legislative reform
State and Territory legislation
Acquisition of an interest in property by estoppel
Proprietary estoppel
Equitable estoppel
Remedies in cases of estoppel — proprietary or compensatory; expectation-based or detriment-based?
The problem of minimal detriment
Equitable priority rules
Introduction
Enforceability of legal interests in old system land
Earlier legal interest against later legal interest
Equitable interests against legal interests
Earlier legal interest against a later equitable interest
Prior equitable interest against a later legal interest
The principle
The statutory definition of notice
Enforceability of equitable interests
Prior equitable interest against a later equitable interest
Enforceability of equities
Earlier equity and later equitable interest
Chapter 5 Title to Land: The Torrens System
Introduction
‘General law’ or ‘old system’ land
The deeds registration system
Registrable instruments and the effect of registration
The Torrens system
Bringing land under the Torrens system
Compulsory extension of the Torrens system
The principle of indefeasibility
The indefeasibility provisions
Deferred vs immediate indefeasibility
The adoption of immediate indefeasibility
The policy debate over deferred and immediate indefeasibility
Immediate indefeasibility in the states and territories
Instruments void for defects other than forgery
Indefeasibility of the terms in a registered instrument
What is indefeasible in a void mortgage?
Indefeasibility and the all moneys mortgage
Relief for the ‘statutory mortgagor’ under the Consumer Credit Code
Volunteers
Exceptions to indefeasibility
The fraud exception
Fraud distinguished from carelessness
Statutory provisions to impose a duty on mortgagees
Fraud and agency
False attestation of instruments
Fraud against the holder of a prior unregistered interest
Supervening fraud
Rights in personam (the ‘personal equities exception’)
The types of causes of action that can be asserted against a registered proprietor
The requirement of an element of unconscionability
Special equity cases
Personal equity and breach of trust
Personal equities and mistake
Personal equity and unlawful action by public authorities
Personal equity and easements
Conclusions on the scope of the personal equities exception
The register
Registrar’s powers of correction
Other exceptions to indefeasibility
Reservations and exceptions in Crown grant
Short-term tenancies
Easements
Adverse possession
Rates and taxes
Overriding statutes
Insuring the risk of unrecorded statutory charges
Recording of statutory charges etc
Equitable interests and unregistered instruments
The caveat provisions
Caveatable interest
Does a registered proprietor have a caveatable interest?
Requirements for caveats
Application for removal of caveat
Caveats lodged without reasonable cause
Competing equitable interests
The significance of notice in equitable priorities
Statutory protection for the purchaser between settlement and registration
Compensation for loss
Last resort or first resort
Circumstances giving rise to claim
Loss resulting from error or omission
Loss resulting from fraud
Loss resulting from registration of another person
Restrictions on claims
Limitation period
Measure of damages
Strata titles legislation
Leasehold scheme
Tenancy in common
Home unit companies
Chapter 6 Co-ownership
Introduction
Joint tenancy — essential features
Tenancy in common — essential features
Creation of co-ownership — joint tenancy or tenancy in common?
At law
In equity
Business partners
Money advanced on mortgage
Unequal contributions to the purchase price
Statutory reform
Co-ownership and the Torrens system
Rights of enjoyment inter se of co-owners of land
Rights of occupation
Occupation rent
Ouster
The quantum of occupation rent
Accounting for rents and profits
The Statute of Anne
Statute of Anne not applicable
Compensation for repairs and improvements to land by one co-owner
Liability for waste
Disposition of interests by co-owners
Severance of joint tenancy
Modes of severance
Severance by unilateral act
Severance by transfer to a stranger
Declaration of trust
Does grant of a mortgage or a lease sever a joint tenancy?
Severance by agreement
Severance following a course of dealing
Severance following homicide
Severance by court order
Severance upon bankruptcy
Termination of co-ownership
Land
The Partition Acts
Statutory trusts
Chattels
Legislative reform
Chapter 7 The Alienability of Proprietary Interests
Introduction
Judicial doctrines — restraints on alienability
The rule against perpetuities
Background
The rule
Statement of the rule
Vesting of interests
Presumption in favour of vesting
The commencement of the perpetuity period
Lives in being
Certainty of vesting: unborn widows, fertile octogenarians and others
The statutory wait-and-see rule
Reduction of age contingencies
Application of saving provisions
The class-closing rules
Reform of the all-or-nothing rule
Subsequent interests
Legal contingent remainders
Possibilities of reverter and rights of re-entry
Accumulations
The Perpetuities and Accumulations Act 1985 (ACT) and the Perpetuities Act 1984 (NSW)
Chapter 8 Leases
Introduction
Residential tenancies
Retail tenancies
Agricultural tenancies
Leases under the Crown Lands Act
Other tenancies
The general law of landlord and tenant
Terminology
Creation of leases
Substantive requirements
Certainty of duration
Exclusive possession
Exclusive possession — further exceptions
Formal requirements
Torrens title
Old system
Agreement for a lease
Implied tenancies at law
Yearly periodic leases
Other implied periodic leases
Tenancy by estoppel
Concurrent leases
Reversionary leases
The doctrine of interesse termini
Covenants
Introduction
Covenants implied by law
Quiet enjoyment
Remedies
Obligation not to derogate from grant
Liability for acts of others
Implied condition of fitness for habitation
The obligation to repair
Duty to take reasonable care for the safety of occupants
Tenant’s obligation to use the premises in a tenant-like manner
Tenant’s obligation to yield up possession
Covenants implied by statute
Statutory implied obligation on tenant to repair
Statutory implied right of landlord to inspect premises
Statutory implied right of re-entry
Covenants by necessary implication
Express covenants
Covenant to repair
Exception
Inherent defects
Measure of damages
The covenant against assignment or subletting
Covenant as to user
Covenant to pay rent
Option to renew
The enforceability of covenants after assignment
Privity of contract
Assignment of the lease — privity of estate
Assignment of the reversion
Remedies
Forfeiture of lease by landlord
Enforcement of the right of re-entry
No right to forfeit if breach waived
Forfeiture must be effective
Relief against forfeiture
Self-help
Remedies of landlord and tenant in contract
Repudiation, notice and relief against forfeiture
The plea of set-off
Bonds
Statutory remedies
Residential tenancies
Introduction
What is a residential tenancy?
Creating residential tenancies
Types of tenancies
Parties’ obligations
Quiet enjoyment
Repairs
Urgent repairs
Rent
Introduction
Bonds
Termination
Termination by notice: without any ground
Termination by notice: following breach
Order for termination and possession
Tribunal
Chapter 9 Planning Land Use by Private Agreement: Freehold Covenants
Introduction
Privity of contract
The running of covenants at common law
The burden
The benefit
The running of covenants in equity
The burden
Covenant must benefit the land
Covenant must be negative in substance
Covenant must be intended to run with the land
Covenant as an equitable interest
The benefit
Annexation of the benefit of the covenant to the land
Express annexation
Statutory annexation
Identification of the land
The covenant must ‘touch and concern’ the land
Express assignment of the benefit of the covenant
Creation of a building scheme
Common vendor
Benefit to all purchasers
Purchase on footing that restrictions would enure to benefit all lots
Planning instruments
Construction of covenants
Discharge of restrictive covenants
By operation of law
By agreement
By statute
Restrictive covenants and the Torrens system
Chapter 10 Easements and Profits à Prendre
The characteristics of easements
Dominant and servient tenements
Formal requirements for creation of easements
Easements in gross
Accommodation of dominant tenement
The dominant and servient tenements must not be owned and occupied by the same person
The easement must be capable of forming the subject matter of a grant
Types of easements
Rights of way
Rights to light and air
Rights of support
Party walls
Fencing easements
Other examples of easements
Protection from the weather?
Creation of easements
Express and implied grants
Easements expressly created
Easements created by implication — implied grants
Easements created by implication — implied reservation
Acquisition by long user
Rights of support
Creation of easements by court order
Remedies
Extinguishment of easements
Abandonment
Express release
Alteration to the dominant tenement
Unity of dominant and servient tenement
Statutory extinguishment
Easements and the Torrens system
General exemption of unregistered easements to indefeasibility — Victoria, Western Australia and Tasmania
Partial exemption to indefeasibility in favour of ‘omitted and misdescribed easements’ — other jurisdictions
Enforceability of easements that do not come within the statutory exception
Unregistered express easements
Unregistered implied easements
Prescriptive easements
Profits à prendre
Introduction — general
Creation of profits à prendre
Old system
Torrens title
Reform
Chapter 11 Mortgages
Introduction
The secured loan transaction
When is a mortgage granted?
How is a secured loan agreement structured?
How does the law achieve a balance between the mortgagor and the mortgagee?
How does a mortgage support the purchase of property?
The nature of mortgages
Introduction
The general law mortgage
The Torrens system mortgage
Priorities, mortgages and tacking
General law
Torrens land
Tacking and priorities between Torrens system mortgagees
Covenants in mortgages
Remedies of the mortgagor
Equitable doctrines protecting the mortgagor
Clogs on the equity of redemption
Penal provisions in mortgages
Penal provisions in mortgages under the National Credit Code
Remedies of the mortgagee
Power of sale
Statutory duty: notice to the mortgagor
Equitable duty — conduct of sale
Sale to an associate or a related party
Auction sales
Does the equitable duty amount to a negligence test?
Timing of sale
Statutory duties in the exercise of the power of sale
Court-ordered sale
Protection of purchaser from mortgagee in cases of breach of statutory and equitable duties
Application of proceeds of sale
Application by mortgagor for injunctive relief to restrain exercise of power of sale
Exceptions to the requirement of payment into court
Foreclosure
General law
Torrens
Right to sue on personal covenants
Power to appoint a receiver
Remedies of the mortgagee — equitable mortgages
The mortgagor and mortgagee inter se
Mortgagor’s right to redeem
Mortgagee’s right to possession of land
Torrens
General law
Power to lease
Torrens
General law
Rights of mortgagor and mortgagee against third parties
General law
Torrens
Index

Citation preview

SACKVILLE & NEAVE

Australian Property Law Tenth Edition

Brendan Edgeworth LLB (Hons), MA (Sheff) Professor of Law, University of New South Wales

Christopher Rossiter BA, LLB (Syd), PhD (NSW) Formerly Professor of Law, University of New South Wales

Pamela O’Connor BA, LLB, MBA (Mon), LLM (Melb), PhD (Mon) Professor, USC Law School, University of the Sunshine Coast

Andrew Godwin BA (Hons), LLB (Hons), LLM (Melb)

Associate Professor, Melbourne Law School, The University of Melbourne

LexisNexis Butterworths Australia 2016

AUSTRALIA

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LexisNexis, TAIWAN LexisNexis UK, LONDON, EDINBURGH LexisNexis Group, New York, NEW YORK LexisNexis, Miamisburg, OHIO

National Library of Australia Cataloguing-in-Publication entry Author: Title: Edition: ISBN: Notes: Subjects: Other Creators/Contributors: Dewey Number:

Edgeworth, Brendan. Sackville and Neave Australian Property Law. 10th ed. 9780409343786 (pbk). 9780409343793 (ebk). Includes index. Property — Australia. Rossiter, Christopher. O’Connor, Pamela. Godwin, Andrew. 346.9404.

© 2016 Reed International Books Australia Pty Limited trading as LexisNexis. First edition, 1971; second edition, 1975; third edition, 1981; fourth edition, 1988; fifth edition, 1994; sixth edition, 1999; seventh edition, 2004; eighth edition, 2008 (reprinted 2011 and 2012); ninth edition (2013). 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 Adobe Caslon Pro and Trade Gothic. Printed in China. Visit LexisNexis Butterworths at www.lexisnexis.com.au

Preface

As in previous editions, this book is designed to serve two purposes. First, it provides a coherent set of materials and commentary for use in the teaching of property law in all Australian jurisdictions. Although its emphasis is on real property law, it also contains material on the creation, transfer and enforceability of interests in personal property. Second, it is designed as an up-to-date and comprehensive resource book on property law for legal practitioners. The book retains the structure adopted in the ninth edition and incorporates various innovations, including an increased focus on the transactional context within which the substantive law operates. Chapter 1 deals with conceptual issues that underpin and define the ambit of property law. Later chapters examine four broad issues with which the law of property is concerned: the fragmentation of proprietary interests, which enables several persons to hold interests in the same object of property at the same time (Chapters 2, 3 and 6); the acquisition and transfer of proprietary interests, primarily by means of equitable doctrines (Chapter 4); and the enforceability

of proprietary interests and related priority issues (Chapters 4 and 5). The book goes on to examine the rules regulating the creation and enforcement of particular interests in land, including leases, easements, restrictive covenants and mortgages. This edition is accompanied by a dedicated LexisNexis-run Campus website which contains a range of supplementary study materials such as well as model answers both to the questions posed in each chapter, and to problem questions on key topics. We hope that this will greatly assist students in grasping the basic concepts as well as exploring some of the more complex issues in Australian property law. The book brings the law up-to-date to 31 August 2016. In this edition, Brendan Edgeworth was responsible for Chapters 2, 3, 5 and 8; Chris Rossiter for Chapters 7, 9 and 10 and Chapter 6 jointly with Brendan Edgeworth; Pam O’Connor for Chapter 1, and Andrew Godwin for Chapters 4 and 11. We wish to thank Andrew Lynch, Thomas Monotti and Wee An Tan for their invaluable research assistance.

Brendan Edgeworth Christopher Rossiter Pamela O’Connor Andrew Godwin 20 October 2016

Preface to the First Edition

This book is designed to provide a coherent set of materials for the teaching of a course in the law of property in Australian law schools. However, since it contains many of the leading cases of property law, as well as an up-to-date treatment of Australian legislation, it is hoped that it will also provide a useful reference work for practitioners. The structure and contents of the book are based on four assumptions: (i)

Analysis of the nature of proprietary interests and the purposes served by the law of property facilitates a critical understanding of the rules and principles that comprise the modern law. Consequently, although the book deals with the traditional classifications and, from time to time, outlines historical material, its organisation follows the framework established in the first chapter.

(ii) The law of property should be as responsive as any other branch of the law to social change. Moreover, despite an appearance of rigidity caused by the existence of a traditional framework, the rules can often be flexibly applied. Because of the amorphous character of apparently stable

concepts, the courts often contrive to arrive at decisions which are desirable in terms of social policy. A study of property law must not only canvass legislative reform, but also the part played by the courts in effecting change, especially since they do not always openly acknowledge their role. (iii) While recognising that the aims and techniques of a legal education remain the subject of controversy, a basic course in property law can be taught through class discussion of source material at least as effectively as other subjects in a law course. (iv) Australian law students suffer from the lack of an Australia-wide textbook in property law, particularly when they are concerned with detailed legislative provisions. Consequently, the book endeavours to cover material already dealt with in standard texts but with a specifically Australian bias. In other words the book endeavours to be reasonably inclusive and in many cases is designed to be used as a textbook as well as a casebook. Of course, in areas where the substantive law is very detailed, want of space has made it necessary to refer students to other textbooks. It is to be acknowledged at once that many concessions have been made to the demands of practicality. These concessions have often produced omissions and inconsistencies that cannot be explained on theoretical grounds. Thus, although the distinction between real and personal property is rejected as a basis for organisation, the main focus of the book is on subjects within the realm of real property. The reason is simply that the curricula of

most Australian law schools devote detailed attention in later years of the course to transactions involving personal property. Any reader with a knowledge of property law will realise immediately the debt we owe to thinkers more original than ourselves. We have attempted to acknowledge our indebtedness at appropriate places in the text. However, we have been influenced especially (though not necessarily in ways of which they would approve) by Professor Lawson’s little book, Introduction to the Law of Property (1958) and by McDougal and Haber’s Property, Wealth and Land: Allocation, Planning and Development (1948). But while ideas have been borrowed, we have tried to keep in mind constantly that the book is primarily for Australian law students, whose capabilities, experience and expectations are rather different from their American counterparts. In this regard, of course, Australian students should be encouraged to evaluate critically the rules and concepts they study. By the same token, we accept the view, perhaps sometimes overlooked in the United States, that a complete restructuring of an area of law first requires a sound grasp of orthodox principle. This book began life as a collection of mimeographed materials used in the Principles of Property and Conveyancing course at the University of Melbourne in 1968. The task of developing the materials as a coherent whole has been shared jointly, and no definable portion of the book has been the sole responsibility of either author.

Ronald Sackville

Faculty of Law University of Melbourne

Marcia Neave Faculty of Law University of Melbourne March 1971

Acknowledgments

The authors and publishers are grateful to the holders of copyright in material from which extracts appear in this work, particularly to the following: The Legal Service Bulletin Co-operative Ltd for permission to publish Should Australian Bills of Rights Protect Property Rights? (2006) by Simon Evans; Kevin Gray and the Cambridge Law Journal for permission to reproduce material from Kevin Gray, ‘Property in Thin Air’ [1991] Cambridge Law Journal 252; New South Wales Law Reform Commission for permission to reproduce material from the Commission’s Report No 73 (1994): ‘Unilateral Severance of Joint Tenancy’; West Publishing Company for permission to reproduce material from Moore v Regents of the University of California (1990), West’s Pacific Reporter, Second Series; While every care has been taken to establish and acknowledge copyright, the publishers tender their apologies for any accidental infringement. The

publishers would be pleased to come to a suitable arrangement with the rightful owners in each case. The publisher, authors, contributors and endorsers of this publication each excludes liability for loss suffered by any person resulting in any way from the use of, or reliance on this publication.

Table of Cases References are to paragraphs Bold numbers indicate extracts

117 York Street Pty Ltd v Proprietors Strata Plan 16123 (1998) 43 NSWLR 504 …. 10.98, 10.102C 400 George Street (Qld) Pty Ltd v BG International Ltd [2012] 2 Qd R 302 …. 4.29

A A Legudi and Sons (Vic) Pty Ltd v VL Finance Pty Ltd (unreported, Supreme Court of Victoria, Hansen J, 30 April 1997) …. 11.87C Abbatangelo v Whittlesea City Council [2007] VSC 529 …. 2.82 A’Beckett v Warburton (1888) 14 VLR 308 …. 10.46 Abela v Public Trustee [1983] 1 NSWLR 308 …. 6.64, 6.66, 6.68 Abidogun v Frolan Health Care Ltd [2001] EWCA Civ 1821 …. 8.197C Abigail v Lapin (1934) 51 CLR 58 [1934] AC 491; [1934] All ER Rep 720 …. 5.48C, 5.180C, 5.181, 5.184, 5.185C, 5.187, 5.188, 5.191, 5.201, 11.99C

Abjornsen v Urban Newspapers Pty Ltd (1986) 4 SR (WA) 225 …. 8.54 Abjornson v Urban Newspapers Pty Ltd [1989] WAR 191 …. 4.104C, 8.32 Aboody v Ryan (2012) 17 BPR 32,359 …. 5.104 Abrahams v Flynn (1996) ANZ Conv R 149 …. 10.76 — v Shaw (1969) 72 SR (NSW) 225 …. 8.101 Accordent Pty Ltd v Bresimark Nominees Pty Ltd (2008) 101 SASR 286 …. 8.148 ACES v Sogutlu Holdings Pty Ltd (in liq) v Commonwealth Bank of Australia (2014) 89 NSWLR 209; [2014] NSWCA 402 …. 11.94 Achatz v De Reuver [1971] SASR 240 …. 5.96 Achterberg, Ex parte [1984] 1 Qd R 160 …. 1.106 Acorn Computers v MCS Microcomputer Systems Pty Ltd (1984) 6 FCR 277; 57 ALR 389 …. 4.55 Adams v Bank of NSW [1984] 1 NSWLR 285 …. 11.107 Adamson v Hayes (1973) 130 CLR 276; [1972–73] ALR 1224; (1973) 47 ALJR 201 …. 4.98, 4.101, 4.104C, 4.105, 4.106, 9.52C Adderley v Dixon (1824) 1 Sim & St 607 …. 4.77 Addiscombe Garden Estates Ltd v Crabbe [1958] 1 QB 513; [1957] 3 All ER 563 …. 8.23, 8.28 Addison v Billion [1983] 1 NSWLR 586 …. 5.146 Adelaide Congregation Jehovah’s Witnesses Inc v Pegasus Leasing Ltd (SC(SA), Olsson J, 1996, No SCGRG of 1993, unreported) …. 5.74 Adler v Blackman [1953] 1 QB 146; [1952] 2 All ER 945 …. 8.46

Adorna Properties Sdn Bhd v Boonsom Boonyanit @ Sun Yok Eng [2001] 1 MLJ 241; 2 CLJ 133 …. 5.46 AF Textile Printers Pty Ltd v Thalut Nominees Pty Ltd [2007] VSC 73 …. 8.60, 8.74 AG (CQ) Pty Ltd v A&T Promotions Ltd [2011] 1 Qd R 306; [2010] QCA 83 …. 4.198, 5.190 AG Securities v Vaughan [1990] 1 AC 417 …. 8.23 AGC (Advances) Ltd v Tweed Canal Estates Pty Ltd (1988) 4 BPR 9404 …. 11.65 Agripower Barraba Pty Ltd v Blomfield (2015) 317 ALR 202 …. 1.81 Ahluwalia v Robinson [2003] NSWCA 175 …. 8.85 Akiba obh of Torres Strait Regional Seas Claim Group v Commonwealth of Australia (2013) 250 CLR 209 …. 3.93, 3.101, 3.121C, 3.123, 3.126C Akiba obh of the Torres Strait Islanders of the Regional Seas Claim Group v Queensland (No 2) (2010) 270 ALR 564 …. 3.91, 3.93, 3.101, 3.108 Akron Tyre Co Pty Ltd v Kittson (1951) 82 CLR 477 …. 1.110C Alamdo Holdings Pty Ltd v Australian Window Furnishings (NSW) Pty Ltd (2007) NSW ConvR ¶56-167 …. 8.100 Albazero [1977] AC 774; [1976] 3 All ER 129 …. 2.23 Albion Insurance Co Ltd v Government Insurance Office of NSW (1969) 121 CLR 342; [1969] HCA 55 …. 6.36C Albon v Dremsall (1610) 1 Brownlow 216; 123 ER 763 …. 10.40

Alcatel Australia Ltd v Scarcella (1998) 44 NSWLR 349 …. 8.80 Aldin v Latimer, Clark, Muirhead [1894] 2 Ch 437 …. 8.64, 8.65, 10.51 Aldred’s Case (1610) Co Rep 57b; 77 ER 816 …. 10.49 Aldridge v Wright [1929] 2 KB 117 …. 10.63, 10.80, 10.137C Alierzai v ANZ [2004] Q ConvR 54-601; [2004] QCA 6 …. 5.111 Allen v Anthony (1816) 1 Mer 282; 35 ER 679 …. 4.188C — v Greenwood [1980] Ch 119; [1979] 1 All ER 819; [1979] 2 WLR 187 …. 10.84 — v Jackson (1875) 1 Ch D 399 …. 3.35 — v Lawson [1926] VLR 1 …. 9.69 — v Roughley (1955) 94 CLR 98 …. 2.108 — v Snyder [1977] 2 NSWLR 685 …. 4.118, 4.122, 4.123C, 4.128C, 4.133, 4.140 Allen (dec’d), Re [1953] Ch 810 …. 3.34 Allen Taylor and Co Pty Ltd t/as Boral Timber v Harrison (2010) 15 BPR 28,505; [2010] NSWSC 1021 …. 6.50 Allen’s Asphalt Pty Ltd v SPM Group Pty Ltd [2010] 1 Qd R 202 …. 5.169 Allfox Building Pty Ltd v Bank of Melbourne Ltd (1992) NSW ConvR ¶55-634 …. 10.110, 11.108, 11.109C Altarama v Camp (1983) 5 ACLR 511 …. 11.101 Alyawarr v Northern Territory (2004) 207 ALR 539 …. 3.119 Amad v Grant (1947) 74 CLR 327 …. 8.18 Amalgamated Property Co v Texas Bank [1982] QB 84 …. 4.151C, 4.158

Amatek Ltd v Googoorewan Pty Ltd (1993) 176 CLR 471; 112 ALR 1; 67 ALJR 339 …. 1.106 Amble Inn Pty Ltd v Ryan [2001] NSWSC 875 …. 7.11 AMEV Finance Ltd v Artes Studios Thoroughbreds Pty Ltd (1989) 15 NSWLR 564 …. 8.189, 8.190C — v Canagon Engineering Pty Ltd (1987) 6 BPR 13,899 …. 11.135 Amory Pty Ltd, Application of (1984) NSW Conv R ¶55-180 …. 9.77, 9.117 Anderson v Bowles (1951) 84 CLR 310 …. 3.20 — v Mackellar County Council [1968] 2 NSWR 217; (1968) 14 LGRA 352 …. 10.97 Anderson Group Pty Ltd v Tynan Motors Pty Ltd (2006) 65 NSWLR 400; [2006] NSWCA 22 …. 2.27, 2.30 Andrew Garrett Wine Resorts Pty Ltd v National Australia Bank Ltd (2004) 206 ALR 69; [2004] SASC 60 …. 11.112 Andrews v Australia and New Zealand Banking Group Ltd (2012) 247 CLR 205 …. 11.58 — v Parker [1973] Qd R 93 …. 3.33, 3.35, 3.36 — v Partington (1791) 3 Bro CC 401; 29 ER 610 …. 7.55 — v Taylor (1869) 6 WW & A’B (L) 223 …. 5.12 — v Television NZ [2009] 1 NZLR 220 …. 1.53 Angelopoulos v Sabatino (1995) 65 SASR 1 …. 1.98 Angus & Co v Dalton (1877) 3 QBD 85 …. 10.92, 10.94

Ankerson v Connelly [1906] 2 Ch 544 …. 10.111 Annen v Rattee (1985) 273 EG 503; [1985] 1 EGLR 136 …. 6.51 Anning v Anning (1907) 4 CLR 1049 …. 4.83, 4.84, 4.85C Anstruther-Gough-Calthorpe v McOscar …. 8.104C Anthony v Commonwealth [1972–73] ALR 769; (1973) 47 ALJR 83 …. 1.84, 1.88, 10.84, 10.140C Apple Fields Ltd v Damesh Holdings Ltd [2004] 1 NZLR 721 …. 11.91 Appleby v Myers (1867) LR 2 CP 651 …. 1.80C Application by Franklin, Re [2009] VSC 496 …. 2.106, 2.107 Application by Haupiri Courts Ltd (No 2), Re [1969] NZLR 353 …. 5.171 Application of Sutherland and Arnautovic, Re [2014] NSWSC 821 …. 11.30 Apriaden Pty Ltd v Seacrest Pty Ltd (2005) 12 VR 319; [2005] V ConvR 54-704 …. 8.195, 8.199 Arambasic v Veza (No 4) (2014) 17 BPR 33,101; [2014] NSWSC 1109 …. 4.46, 5.74 Arcade Hotel, Re [1962] VR 274 …. 9.61, 9.62C, 9.63 Ardrey v Bartlett [2004] WASCA 256 …. 5.110 Argyle Art Centre Pty Ltd v Bond & Freestores Co Pty Ltd [1976] 1 NSWLR 377 …. 8.182 Armory v Delamirie (1722) 1 Strange 506; 93 ER 664 …. 2.14, 2.18, 2.21C, 2.32C, 2.34C Armstrong v Commissioner of Stamp Duties (1967) 69 SR (NSW) 38 ….

6.36C Arnold v Mann (1957) 99 CLR 462 …. 3.111C Arthur v The Public Trustee (1988) 90 FLR 203 …. 4.118 Artistic Builders Pty Ltd v Elliot & Tuthill (Mortgages) Pty Ltd (2002) 10 BPR 19,565 …. 11.75, 11.93 Ashburn Anstalt v Arnold [1988] 2 WLR 706 …. 1.31 Ashe v Hogan [1920] 1 IR 159 …. 8.134 Asher v Whitlock (1865) LR 1 QB 1 …. 2.48C, 2.52C, 2.57, 2.73, 2.108 Ashgrove Pty Ltd v Deputy Commissioner of Taxation (1994) 53 FCR 452; 124 ALR 315 …. 4.37, 10.146 Ashmore Developments Pty Ltd v Eaton [1992] 2 Qd R 1 …. 8.142C, 8.143, 8.144 Ashworth Frazer Ltd v Gloucester City Council [2001] 1 WLR 2180 …. 8.112, 8.114C Aslan v Murphy [1990] 1 WLR 766 …. 8.23 Assets Co Ltd v Mere Roihi [1905] AC 176 …. 5.38, 5.39, 5.41C, 5.48C, 5.80, 5.86, 5.101C Atkins’s Will Trusts, Re [1974] 2 All ER 1 …. 7.45 Attenborough v London and St Katharine’s Dock Co (1873) 3 CPD 450 …. 2.15 Attorney-General v Brown (1847) 1 Legge 312 …. 3.77C, 3.80 — v Chambers (1854) 4 De GM & G 206 …. 1.107 — v Horner (No 2) [1913] 2 Ch 140 …. 10.33C

Attorney-General (Cth) v RT Co Pty Ltd (No 2) (1957) 97 CLR 146 …. 1.84 Attorney-General (NZ) v Codner [1973] 1 NZLR 545 …. 4.151C Attorney General of Hong Kong v Humphreys Estate (Queen’s Gardens) Ltd [1987] AC 114 …. 4.151C, 4.166C Attorney-General of Southern Nigeria v John Holt & Co (Liverpool) Ltd [1915] AC 599 …. 1.104C, 10.25 Attwater v Attwater (1853) 18 Beav 330; 52 ER 131 …. 7.2C, 7.4 Atwood v Maude (1868) LR 3 Ch App 369 …. 4.123C Auerbach v Beck (1985) 6 NSWLR 424 …. 10.61C, 10.76, 10.121 Aussie Traveller Pty Ltd v Marklea Pty Ltd [1998] 1 Qd R 1 …. 8.69C, 8.70, 8.71, 8.72, 8.73 Austerberry v Corporation of Oldham (1885) 29 Ch D 750 …. 9.16C, 9.22, 9.23C, 9.41 Austin v Keele (1987) 10 NSWLR 283 …. 4.118 Austotel Pty Ltd v Franklins Self-Serve Pty Ltd (1989) 16 NSWLR 582 …. 4.153C, 4.155 Australia & New Zealand Bank Ltd v Sinclair [1968] 2 NSWR 26 …. 11.135 Australia & New Zealand Banking Group Ltd v Barns (1994) 13 ACSR 592 …. 5.39 — v Widin (1990) 26 FCR 21; 102 ALR 289 …. 4.39, 4.44 Australian and New Zealand Banking Group Ltd v Bangadilly Pastoral Co

Pty Ltd (1978) 139 CLR 195; 19 ALR 519; 52 ALJR 529 …. 11.70, 11.71C, 11.72, 11.74C — v Scott (1993) 6 BPR 13,217 …. 6.81 Australian Broadcasting Corp v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; 185 ALR 1; [2001] HCA 63 …. 1.50C, 1.52, 1.53, 1.54, 11.45C — v O’Neill (2006) 227 CLR 57 …. 5.176 Australian Competition and Consumer Commission v C G Berbatis Holdings Pty Ltd (No 2) (2000) 96 FCR 491; [2002] FCA 2 …. 11.45C Australian Convention & Exhibition Services Pty Ltd v Sydney City Council (1998) 9 BPR 16,753 …. 8.27 Australian Guarantee Corp Ltd v De Jager [1984] VR 483 …. 5.90, 5.91C, 5.93 Australian Guarantee Corporation (NZ) Ltd v CFC Commercial Finance Ltd [1995] 1 NZLR 129 …. 4.198, 5.187 Australian Hi-Fi Publications Pty Ltd v Gehl [1979] 2 NSWLR 618 …. 10.121, 10.122, 10.123, 10.124C, 10.125, 10.128, 10.137C, 10.140C Australian Mortgage & Properties Pty Ltd v Baclon Pty Ltd (2001) 10 BPR 19,227 …. 9.7C Australian Mutual Provident Society v 400 St Kilda Rd Pty Ltd [1990] VR 646 …. 8.175 Australian Provincial Assurance Co Ltd v Coroneo (1938) 38 SR (NSW) 700 …. 1.80C, 1.85C, 1.86 — v Rogers (1943) 43 SR (NSW) 202 …. 8.47C

Australian Regional Credit v Mula [2009] NSWSC 325 …. 5.111 Australian Softwood Forests Pty Ltd v Attorney-General (NSW) (1981) 148 CLR 121; 36 ALR 257 …. 1.16, 10.147C Avco Financial Services v White [1977] VR 561 …. 5.169, 5.183

B Baden Delvaux & Lecuit v Societe Generale pour Favoriser le Development du Commerce [1992] 4 All ER 161 …. 5.113 Bahr v Nicolay (No 2) (1988) 164 CLR 604; 78 ALR 1 …. 5.72C, 5.77, 5.91C, 5.96, 5.99, 5.101C, 5.102, 5.104, 5.113, 5.118, 5.169, 7.2C, 10.135, 10.137C, 10.140C Bailey v Barnes [1894] 1 Ch 25 …. 4.192C, 11.29 — v J Paynter (Mayfield) Pty Ltd [1966] 1 NSWR 596 …. 8.103, 8.106, 8.137 Bain v Brand (1876) 1 App Cas 762 …. 1.90 Baker v Australia and New Zealand Banking Group (SC(NSW), Cohen J, 5 May 1995, unreported) …. 5.90 — v Biddle (1923) 33 CLR 188; [1923] HCA 26 …. 11.45C, 11.50C, 11.53C — v Merckel [1960] 1 QB 657; [1960] 1 All ER 668 …. 8.125 Bakewell Management Ltd v Brandwood [2004] 2 WLR 955 …. 10.83 Balanced Securities Ltd v Bianco [2010] VSC 201 …. 5.133 Balani Pty Ltd v Gunns Ltd [2011] FCAFC 153 …. 5.104 Ballard’s Conveyance, Re [1937] Ch 473; [1937] 2 All ER 691 …. 9.60,

9.61, 9.63, 9.65 Ball-Guymer v Livantes (1990) 102 FLR 327 …. 1.81, 1.85C Baloglow v Konstantinidis (2001) 11 BPR 20,721 …. 4.101, 4.104C, 4.105 Bamford v Turnley (1862) 3 B & S 66; 122 ER 27; [1861–73] All ER Rep 706 …. 1.46C Bank of Ireland Home Mortgages v South Lodge Developments [1996] 1 EGLR 91 …. 8.177 Bank of New Zealand v Development Finance Corp of New Zealand [1988] 1 NZLR 495 …. 11.37 Bank of South Australia v Ferguson (1998) 151 ALR 729 …. 5.81 Bank of Victoria v M’Hutchison (1881) 7 VLR (L) 452 …. 8.46 Bankes v Jarvis [1903] 1 KB 549 …. 8.201C Banks v Ferrari [2000] NSWSC 874 …. 2.43 Bankstown Community Child Care Inc, Re [2008] NSWSC 173 …. 5.59 Bannerman, Brydone, Foster & Co v Murray [1972] NZLR 411 …. 11.21 Bannister v Bannister [1948] 2 All ER 133 …. 4.117C, 4.118, 5.101C Baramon Sales Pty Ltd v Goodman Fielder Mills Ltd (2002) V ConvR 54654; [2001] FCA 1672 …. 9.36, 9.52C, 9.57 Barba v Gas & Fuel Corp of Victoria (1976) 136 CLR 120; 12 ALR 649; 51 ALJR 219 …. 5.132C, 5.135, 10.4, 10.5, 10.56 Barbour, Re [1967] Qd R 10 …. 6.10 Barclays Bank plc v Boulter [1997] 2 All ER 1002; [1998] 1 WLR 1 …. 4.195, 5.132C, 5.194C

Barina Properties Pty Ltd v Bernard Hastie (Aust) Pty Ltd [1979] 1 NSWLR 480 …. 8.112, 8.118 Barlin Investments Pty Ltd v Westpac Banking Corp (2012) 16 BPR 30,671; [2012] NSWSC 699 …. 5.205, 11.30 Barnardiston v Chapman (1715) cited 4 East 121 …. 6.12 Barnes v Addy (1874) LR 9 Ch App 244 …. 5.74, 5.113 — v Barratt [1970] 2 QB 657; [1970] 2 All ER 483 …. 8.28 — v Queensland National Bank (1906) 3 CLR 924 …. 11.109C Barnhart v Greenshields (1853) 9 Moo PCC 18; 14 ER 204 …. 4.188C, 4.189, 4.190, 5.194C Baron Bernstein of Leigh v Skyviews & General Ltd [1978] QB 479; [1977] 2 All ER 902 …. 1.70 Barrett v Barrett (1918) 18 SR (NSW) 637 …. 3.64, 7.27, 7.54 — v Lounova (1982) Ltd [1990] 1 QB 348; [1989] 1 All ER 351 …. 8.80, 8.81 Barrington v Tristram (1801) 6 Ves 345; 31 ER 1085 …. 7.55 Barrows v Isaacs [1891] 1 QB 417 …. 8.111 Barry v Hasseldine [1952] Ch 835; [1952] 2 All ER 317 …. 10.73 — v Heider (1914) 19 CLR 197; 21 ALR 93 …. 4.53, 4.85C, 5.48C, 5.101C, 5.109, 5.134, 5.163C, 5.164, 5.165, 5.180C, 10.140C, 10.142C, 11.27 Barry and the Conveyancing Act, Re (1962) 79 WN (NSW) 759 …. 9.73 Bartlett v Ryan (2000) 10 BPR 18,007 …. 5.146

Barton v Morris [1985] 2 All ER 1032; [1985] 1 WLR 1257 …. 6.69 Barton v Upton [2000] TASSC 20 …. 5.54 Basham, Re [1986] 1 WLR 1498 …. 4.164C Batchelor v Marlow [2003] 1 WLR 764 …. 10.26, 10.29 Bates v Donaldson [1896] 2 QB 241 …. 8.114C Bathurst City Council v PWC Properties Pty Ltd (1998) 157 ALR 414; 72 ALJR 1470 …. 4.162C — v Saban (1985) 2 NSWLR 704 …. 1.52 Batiste v Lenin (2002) 10 BPR 19,441; [2002] NSWSC 233 …. 8.207 — v — (2002) 11 BPR 20,403; [2002] NSWCA 316 …. 8.197C, 8.199, 8.203, 8.207 Battenberg v Union Club (2005) 215 ALR 696; [2005] NSWSC 242 …. 5.110 Baulkham Hills Shire Council v Pascoe [1999] NSWCA 431 …. 8.85 Baumgartner v Baumgartner (1987) 164 CLR 137; 76 ALR 75; 62 ALJR 29 …. 4.112, 4.122, 4.123C, 4.124, 4.125, 4.129, 4.130, 4.131, 4.132, 4.133, 4.136, 4.139, 4.140, 6.54 Bawofi Pty Ltd v Comrealty Ltd (1992) NSW ConvR ¶55-646 …. 8.79 Baxendale v Instow PC [1981] 2 All ER 620 …. 1.103 Baxter v Four Oaks Properties Ltd [1965] Ch 816; [1965] 1 All ER 906 …. 9.73, 9.74 Baypoint Pty Ltd v Baker (1994) 6 BPR 13,687 …. 11.120 Bayport Industries Pty Ltd v Watson (2006) V ConvR 54-709; [2002] VSC

206 …. 2.92C, 2.94, 2.95 Bayside Developments Pty Ltd v Copperart Pty Ltd (1974) 11 SR (WA) 316 …. 4.47 BBB Constructions Pty Ltd v Aldi Foods Pty Ltd [2012] NSWCA 224 …. 8.52 Beamer Pty Ltd v Star Lodge Supported Residential Services Pty Ltd [2005] VSC 236 …. 8.175 Beardsley v Registrar of Titles [1993] 2 Qd R 117 …. 5.222 Beatty v ANZ Banking Group Ltd [1995] 2 VR 301;[1995] ANZ ConvR 478; (1995) V ConvR 54-517 …. 5.90 Beavis, Re; Beavis v Beavis (1906) 7 SR (NSW) 66 …. 3.63C, 3.64 Beca Developments Pty Ltd v Idameneo (1989) 4 BPR 9575 …. 8.168 — v — (No 92) Pty Ltd (1990) 21 NSWLR 459 …. 5.172 Beck v Auerbach (1986) 6 NSWLR 454 …. 10.49, 10.121, 10.130 Bedford Properties Pty Ltd v Surgo Pty Ltd [1981] 1 NSWLR 106 …. 5.177, 5.178 Beever v Spaceline Engineering Pty Ltd (1993) NSW ConvR ¶55-678 …. 2.60 Belgrave Nominees Pty Ltd v Barlin-Scott Airconditioning (Aust) Pty Ltd [1984] VR 947 …. 1.80C, 1.81, 1.83, 1.88 Belgravia Ins Co Ltd v Beah [1964] 1 QB 436 …. 8.166C Bell v Bell (1995) 19 Fam LR 690 …. 4.118 Bellevue Crescent Pty Ltd v Marland Holdings Pty Ltd (1998) 43 NSWLR

364 …. 10.144 Belmont Park Investments Pty Ltd v BNY Corporate Trustee Services Ltd [2012] 1 AC 383 …. 3.32 Bendal Pty Ltd v Mirvac Projects Pty Ltd (1991) 23 NSWLR 464; 74 LGRA 407 …. 1.71 Beneficial Finance Corporation Ltd v Collings (SC (NSW), Newman J, 15 September 1989, unreported) …. 11.128 Beneficial Finance Corporation Ltd v Multiplex Constructions Pty Ltd (1995) 36 NSWLR 510 …. 7.4 Benger v Quartermain [1934] NZLR s 13 …. 1.80C Bennell v Western Australia (2006) 153 FCR 120 …. 3.107, 3.108 Bentley v Chang Holdings Pty Ltd [2012] QSC 366 …. 8.100 Benwell Tower, The (1895) 72 LT 664 …. 11.31C Benzlaw & Associates Pty Ltd v Medi-Aid Centre Foundation Ltd [2007] QSC 233 …. 11.72, 11.91 Berdal v Burns [1990] WAR 140 …. 6.67 Berger Bros Trading Co Pty Ltd v Bursill Enterprises Pty Ltd [1970] 1 NSWR 137 …. 10.121 — v — (1971) 124 CLR 73; 45 ALJR 20 …. 10.121 Bergougnan v British Motors Ltd (1929) 30 SR (NSW) 61 …. 1.110C Bernard v Josephs [1982] Ch 391 …. 6.36C Berrisford v Mexfield Housing Co-operative Ltd [2012] 1 All ER 1393; [2012] 1 AC 955; [2011] 3 WLR 1091 …. 8.15C, 8.16, 8.17, 8.18

Beswick v Beswick [1966] Ch 538; [1966] 3 All ER 1 …. 9.6 — v — [1968] AC 58; [1967] 2 All ER 1197 …. 9.6, 9.7C, 9.10, 9.52C Bevham Investments Pty Ltd v Belgot Pty Ltd (1982) 149 CLR 494; 42 ALR 353; [1982] HCA 45 …. 11.45C, 11.61 Bickel v Duke of Westminster [1977] QB 517 …. 8.112, 8.114C Biddle v Bond (1865) 6 B&S 225; 122 ER 1179 …. 2.25 Big Top Hereford Pty Ltd v Gavin Thomas as Trustee of the Bankrupt Estate of Douglas Keith Tyler [2006] NSWSC 1159 …. 2.10C Biggs v McEllister (1880) 14 SALR 86 …. 5.69 — v — (1883) 8 AC 314 …. 5.69 Billson v Residential Apartments Ltd [1992] 1 AC 494; [1992] 1 All ER 141 …. 8.156, 8.162, 8.163 Binions v Evans [1972] Ch 359; [1972] 2 All ER 70 …. 4.117C, 4.118, 4.119, 5.101C Bird v Trustees Executors and Agency Co Ltd [1957] VR 619 …. 9.7C, 9.10, 9.14 Birkett, Re [1950] 1 Ch 330 …. 7.54 Birmingham v Renfrew (1937) 57 CLR 661; [1937] HCA 52 …. 4.166C Birmingham and District Land Co v London and North Western Railway Co (1888) 40 Ch D 268 …. 4.147C Birmingham and District Land Co and Allday, Re [1893] 1 Ch 342 …. 9.72 Birmingham Citizens Permanent Building Society v Caunt [1962] Ch 883 …. 11.132

BIS Cleanaway t/a CHEP v Tatale [2007] NSWSC 378 …. 2.20 Bishop v Taylor (1968) 118 CLR 518 …. 8.14 Biviano v Natoli (1998) 43 NSWLR 695 …. 6.33C, 6.34, 6.36C Black v Black (1991) 15 Fam LR 109 …. 4.139 — v Garnock (2007) 230 CLR 438; 237 ALR 1; [2007] HCA 31 …. 5.50, 5.186, 5.201, 10.35C, 11.30 — v Poole (1895) 16 ALT 155 …. 5.132C Blackett v Olanoff 358 NE 2d 817 (1997) …. 8.69C Blacks Ltd v Rix [1962] SASR 161 …. 9.34C, 9.39, 9.52C, 9.112 Blacktown Municipal Council v Doneo (1971) 1 NSWLR 157 …. 7.2C Blades v Higgs (1861) 10 CBNS 713; 142 ER 634 …. 2.24 Blair v Blair [1956] Tas SR 146 …. 4.114 — v Curran (1939) 62 CLR 464 …. 7.74 Bland v Ingram Estates Ltd [2002] 1 All ER 244; [2002] 2 WLR 361 …. 8.178 — v Levi [2000] NSWSC 161; (2000) 9 BPR 17,517 …. 10.42C Blankstein, Fages and Fages v Walsh [1989] 1 WWR 277 …. 10.17C Blathwayt v Baron Cawley [1976] AC 397; [1975] 3 All ER 625 …. 3.35, 3.36, 7.12 Bligh v Martin [1968] 1 WLR 804 …. 2.92C, 2.100 Bloch v Bloch (1981) 180 CLR 390; 37 ALR 55; 55 ALJR 701 …. 4.108 Bluebird Investments Pty Ltd v Graf (1994) 13 ALJR 271 …. 4.86 Blundell v Associated Securities (1971) 19 FLR 17 …. 11.78

— v Catterall (1821) 5 B & Ald 268; 106 ER 1190 …. 1.11 Blunt v Blunt [1943] AC 517 …. 8.166C Bocardo SA v S & M Hotels Ltd [1979] 3 All ER 797; [1980] 1 WLR 17 …. 8.110 Bocchini v Gorn Management Co 515 A2d 1179 (1986) …. 8.69C Bodney v Bennell (2008) 249 ALR 300; [2008] FCAFC 63 …. 3.108 Bofinger v Kingsway Group Pty Ltd (2008) 73 NSWLR 437; [2008] NSWCA 332 …. 11.41 Bogdanovic v Koteff (1988) 12 NSWLR 472 …. 5.69, 5.70C, 5.71, 5.72C, 5.74 Bohn v Miller Brothers Pty Ltd [1953] VLR 355 …. 9.7C Bolton v Clutterbuck [1955] SASR 253 …. 10.73 — v Tomlin (1836) 5 Ad & E 856; 111 ER 391 …. 8.32 Bond v Rosling (1861) 1 B & S 371; 121 ER 753 …. 8.47C Bondi Beach Astra Retirement Village Pty Ltd v Gora (2011) 16 BPR 30,111; [2011] NSWCA 396 …. 6.51, 7.2C, 7.4, 7.8, 7.9 Bonvale Enterprises Pty Ltd v Halfpenny Investments Pty Ltd (2005) 62 NSWLR 698 …. 10.25, 10.98 Booker v Palmer [1942] 2 All ER 674 …. 8.22C Booker Industries Pty Ltd v Wilson Parking (Qld) Pty Ltd (1982) 149 CLR 600; 43 ALR 68 …. 8.119 Borambil Pty Ltd v O’Carroll [1972] 2 NSWLR 302 …. 8.17 Borden (UK) Ltd v Scottish Timber Products Ltd [1981] Ch 25; [1979] 3

All ER 961 …. 1.112 Borg v Howlett [1996] NSWSC 153; (1996) 8 BPR 15,535 …. 2.10C Borman v Griffith [1930] 1 Ch 493 …. 4.76, 8.37C, 10.20, 10.62 Boulter v Boulter (1898) 19 LR (NSW) Eq 135 …. 6.46, 6.47 Bourke (No 2), In the Marriage of (1994) 18 Fam LR 1; [1994] FLC 92-479 …. 6.67 Bourseguin v Stannard Bros Holdings Pty Ltd [1994] 1 Qd R 231 …. 5.102 Bouvia v Superior Court of California (1986) 179 Cal App 3d 1127; 225 Cal Rptr 297 …. 1.36C Bowser v Colby [1841] 1 Hare 109; 66 ER 969 …. 8.166C, 8.197C Box v Attfield (1886) 12 VLR (L) 574 …. 8.46 Boyce v Beckman (1890) 11 LR (NSW) (L) 139 …. 5.12 Boyd v Mayor of Wellington [1924] NZLR 1174 …. 5.39, 5.41C, 5.48C, 5.49, 5.54, 5.115 Boyer v Warbey [1953] 1 QB 234; [1952] 2 All ER 976 …. 8.135, 8.146C BP Properties Ltd v Buckler (1988) 55 P & CR 337 …. 2.110 Bracewell v Appleby [1975] Ch 408; [1975] 1 All ER 993 …. 10.38 Bradford Banking Co Ltd v Henry Briggs Son and Co Ltd (1886) 12 AC 29 …. 11.31C Bradford House Pty Ltd v Leroy Fashion Group Ltd (1983) 68 FLR 1 …. 8.79 Bradley v Carritt [1903] AC 253 …. 11.46 — v Heslin [2015] EWHC 3267 …. 10.31

Brambles v Commissioner of State Revenue [2004] VCAT 1755 …. 8.23 Branca v Cobarro [1947] KB 854; [1947] 2 All ER 101 …. 8.34 Branchett v Beaney [1992] 3 All ER 910 …. 8.63 Brand v Chris Building Society Pty Ltd [1957] VR 625 …. 1.96, 1.98, 1.102 Branwood Park Pastoral Co Pty Ltd v Willing & Sons Pty Ltd [1976] 2 NSWLR 149 …. 11.124 Bray v Bray (1926) 38 CLR 542 …. 3.31C Break Fast Investments Pty Ltd v PCH Melbourne Pty Ltd (2007) 20 VR 311 …. 1.74 Breams Property Investment Co Ltd v Strougler [1948] 2 KB 1; [1948] 1 All ER 758 …. 8.15C, 8.126 Breheney, In the Will of [1915] VLR 242 …. 7.54, 7.56 Breskvar v Wall (1971) 126 CLR 376; [1972] ALR 205; [1971] HCA 70 …. 5.48C, 5.49, 5.51, 5.62C, 5.70C, 5.71, 5.72C, 5.96, 5.101C, 5.107, 5.108C, 5.113, 5.154C, 5.155, 5.187, 9.92C, 10.35C, 11.99C Brickwood v Young (1905) 2 CLR 387; 11 ALR 154 …. 6.41, 6.43, 6.44, 6.45 Bride v Shire of Katanning [2013] WASCA 154 …. 2.18 Bridges v Bridges [2010] NSWSC 1287 …. 2.93 — v Hawkesworth (1851) 21 LJQB 75; 15 Jur 1079 …. 2.34C, 2.35 — v Mees [1957] Ch 475 …. 2.105 Bridgewater v Leahy (1998) 194 CLR 457 …. 11.45C Bridle v Ruby [1989] QB 169; [1988] 3 All ER 64; [1988] 3 WLR 191 ….

10.83 Bright v Walker (1834) 1 CM & R 211; 149 ER 1057 …. 10.91 Brighten Pty Ltd v Nine Network Australia Pty Ltd [2009] NSWSC 319 …. 1.49 Britain v Rossiter (1879) 11 QBD 123 …. 4.49 British Anzani (Felixstowe) Ltd v International Marine Management (UK) Ltd [1979] 2 All ER 1063; [1979] 3 WLR 451 …. 8.200, 8.201C, 8.202, 8.205C British Equitable Assurance Co Ltd v Bailey [1906] AC 35 …. 11.74C British Telecommunications plc v Sun Life Assurance [1996] Ch 69; [1995] 4 All ER 44 …. 8.102 Broadlands International Finance v Sly (1987) 4 BPR 9420 …. 5.53 Brock v Hillsdale Bowling & Recreation Club Ltd [2007] NSWCA 46 …. 8.85 Brocklesby v Temperance Permanent Building Society [1895] AC 173 …. 4.180 Brogue Tableau Pty Ltd v Binningup Nominees Pty Ltd [2007] WASCA 179 …. 5.174 Brooks’ Caveat, Re [2014] QSC 76 …. 5.178 Broomfield v Williams [1897] 1 Ch 602 …. 10.71 Bropho v Western Australia [2007] FCA 519 …. 1.31 Brown v Heffer (1996) 116 CLR 344 …. 4.104C — v Superior Court (1988) 44 Cal 3d 1049; 245 Cal Rptr 412; 751 P 2d 470

…. 1.36C Brown (on behalf of the Ngarla People) v State of Western Australia (No 2) (2010) 268 ALR 149; [2010] FCA 498 …. 3.116 Brown, Re; District Bank Ltd v Brown [1954] Ch 39 …. 7.2C, 7.4 Browne v Dawson (1840) 12 Ad & El 624; 113 ER 950 …. 2.61C — v Flower [1911] 1 Ch 219 …. 8.59, 8.69C, 10.49 Brunker v Perpetual Trustee Co (Ltd) (1937) 57 CLR 555; [1937] ALR 349 …. 4.85C, 4.86, 5.167 Brunner v Greenslade [1971] Ch 993; [1970] 3 All ER 833 …. 9.76, 9.92C, 9.94 Brutan Investments Pty Ltd v Underwriting and Insurance Ltd (1980) 39 ACTR 47; 58 FLR 289 …. 11.77, 11.113 Bruton v London and Quadrant Housing Trust [2000] 1 AC 406 …. 8.51 Brydall Pty Ltd v Owners of Strata Plan 66794 [2009] NSWSC 819 …. 10.27C Brynowen Estates Ltd v Bourne (1981) 131 NLJ 1212 …. 4.146 Bryson v Bryant (1992) 29 NSWLR 188 …. 4.129, 4.131, 4.136 Buchan v Nash [1983] 2 NSWLR 575 …. 6.16, 6.20 Buchanan v Byrnes (1906) 3 CLR 704 …. 8.183C Buchholz v Kempsey Shire Council [2005] NSWSC 235 …. 10.26 Buckley v Buckley, Administratrix of the Estate of Henry A Buckley (dec’d) 12 Nev 423; 1877 WL 4371 …. 2.10C Buckley v Timbury (2013) 17 BPR 32,187; [2013] NSWSC 1009 …. 10.41,

10.42C Bucknell v Mann (1862) 2 SCR (NSW) 1 …. 8.51 Buckworth v Simpson (1835) 1 C M & R 832; 149 ER 1317 …. 8.135 Buffrey v Buffrey (2007) 12 BPR 23,619 …. 4.110 Buildev Development Pty Ltd v Pic Sales Pty Ltd (2004) 11 BPR 21,445 …. 8.120 Bull v Bull [1955] 1 QB 234; [1955] 1 All ER 253 …. 6.16 Bulli Coal Mining Co v Osborne [1899] AC 351 …. 1.74 Bulun Bulun v R & T Textiles Pty Ltd (1998) 86 FCR 244 …. 3.94 Bunny Industries v FSW Enterprises Pty Ltd [1982] Qd R 712 …. 4.50, 4.51, 4.52C, 4.53, 4.54, 4.59, 4.135 Bunyip Buildings Pty Ltd v Gestetner Pty Ltd [1969] SASR 87 …. 8.99 — v — [1969] SASR 94 …. 8.99 Burgess v Rawnsley [1975] Ch 429 …. 4.85C, 6.53C Burke v Dawes (1938) 59 CLR 1; [1938] ALR 135 …. 5.131, 5.132C, 5.133, 5.135 — v Frasers Lorne Pty Ltd (2008) 14 BPR 26,111; NSWSC 988 …. 10.42C — v LFOT Pty Ltd (2002) 209 CLR 282; [2002] HCA 17 …. 6.36C — v Yurilla SA Pty Ltd (1991) 56 SASR 382 …. 9.39, 9.119C, 9.120 Burkinshaw v Nicholls (1878) 3 App Cas 1004 …. 10.142C Burnham v Carroll Musgrove Theatres Ltd (1927) 28 SR (NSW) 169 …. 8.37C — v — (1928) 41 CLR 540 …. 8.37C, 8.46

Burns v Burns [1984] Ch 317; [1984] 1 All ER 244 …. 4.116 — v Dennis (1948) 48 SR (NSW) 266 …. 8.119 Burnes v Trade Credits Ltd [1981] 2 All ER 122 …. 11.34 Burrowes v Lock [1805] EngR 89; (1805) 10 Ves Jr 470; 32 ER 927 …. 4.166C Burrows and Burrows v Sharp [1991] Fam Law 67 …. 4.148 Bursill Enterprises Pty Ltd v Berger Bros Trading Co Pty Ltd (1971) 124 CLR 73; [1971] ALR 551 …. 5.119C, 5.120, 5.121, 5.226, 9.34C, 9.52C, 9.119C, 9.120 Burton v Arcus [2006] WASCA 71 …. 5.153 — v Winters [1993] 1 WLR 1077 …. 10.104 Butler v Attorney General (Vic) (1961) 106 CLR 268 …. 5.154C, 5.155 — v Craine [1986] VR 274 …. 4.45, 4.118 — v Egg and Egg Pulp Marketing Board (1966) 114 CLR 185 …. 2.29 — v Fairclough (1917) 23 CLR 78; 23 ALR 62 …. 5.48C, 5.77, 5.101C, 5.180C, 5.181, 5.185C, 5.187, 5.188, 5.194C, 5.201 — v Muddle (1995) 6 BPR 13,984 …. 10.42C — v — (1995) 6 BPR 97-532 …. 10.39 Butts v O’Dwyer (1952) 87 CLR 267 …. 8.47C Byers v Dorotea (1986) 69 ALR 715 …. 4.18 Byrne v Hoare [1965] Qd R 135 …. 2.42

C C&P Syndicate Pty Ltd v Reddy (2013) 16 BPR 31,771 …. 8.120

Cable v Bryant [1908] 1 Ch 259; [1904–07] All ER Rep 937 …. 8.65, 10.49 Caboche & Bond v Ramsay (1993) 119 ALR 215 …. 3.32 Cachalot Nominees Pty Ltd v Prime Nominees Pty Ltd [1984] WAR 380 …. 11.74C, 11.77 Cadell v Palmer (1833) 1 Cl & F 372; 6 ER 956 …. 7.15 Cadorange Pty Ltd (in liq) v Tanga Holdings Pty Ltd (1990) 20 NSWLR 26 …. 4.162C Calabar Properties Ltd v Seagull Autos Ltd [1969] 1 Ch 451; [1968] 1 All ER 1 …. 8.163 Calabrese v Miuccio (No 2) [1985] 1 Qd R 17 …. 6.65 Calabro v Bayside City Council [1999] 3 VR 688 …. 5.153 Calder v Attorney-General of British Columbia [1973] SCR 313; (1973) 34 DLR (3d) 145 …. 2.52C Caldwell v Rural Bank of New South Wales (1951) 53 SR (NSW) 415 …. 5.40, 5.48C Caledonian Railway Co v Sprot (1856) 2 Macq 449; [1843–60] All ER Rep 109 …. 10.85C Callaghan v Merivale CBD Pty Ltd [2006] ANZ ConvR 114; (2006) NSW ConvR ¶56-155 …. 8.97, 8.119, 8.122 Callanan, Re [1970] 2 NSWR 127 …. 9.108 Callow v Rupchev (2009) 14 BPR 27,533; [2009] NSWCA 148 …. 6.34, 6.36C, 6.37, 6.38, 6.39, 6.41 Calverley v Green (1984) 155 CLR 242; 56 ALR 483; 59 ALJR 111 ….

4.108, 4.109C, 4.110, 4.112, 4.119, 4.128C, 5.109, 6.16, 6.26, 6.45 Campbell v Commercial Banking Co of Sydney (1881) 2 LR (NSW) 375 …. 11.63C — v Holyland (1877) 7 Ch D 166 …. 11.114C — v MGN Ltd [2004] 2 WLR 1232 …. 1.53 Campion, Re [1908] SALR 1 …. 3.73C Canas Property Co Ltd v K L Television Services Ltd [1970] 2 QB 433; [1970] 2 All ER 795 …. 8.165, 8.183C Capital Finance Australia Ltd v Bayblu Holdings Pty Ltd & JNW Investments Pty Ltd [2011] NSWSC 24 …. 5.171, 11.106 — v Struthers [2008] NSWSC 440 …. 11.30 Carberry v Gardiner (1936) 36 SR (NSW) 559 …. 8.47C Cardinaels-Hooper v Tierney (1995) 7 BPR 14,435; (1996) NSW ConvR ¶55,887 …. 6.32, 6.45 Cardwell v Walker [2004] 2 P & CR 9 …. 10.20 Cargill v Gotts [1981] 1 All ER 682; [1981] 1 WLR 441 …. 10.92 Carkeek v Tate-Jones [1971] VR 691 …. 3.33 Carmody v Delehunt (1988) 11 Syd I 611 …. 4.108 Carne’s Settled Estates, Re [1899] 1 Ch 324 …. 8.15C Caroline Chisholm Village Pty Ltd, Re (1980) 1 BPR 9507 …. 9.7C, 9.10 Carpet Fashion Pty Ltd v Forma Holdings Pty Ltd [2003] NSWSC 460 …. 8.65 — v — (2005) NSW ConvR ¶56-116 …. 8.65, 8.71

Carrathool Hotel Pty Ltd v Scutti [2005] NSWSC 401 …. 8.81 Carretta Stud Nominees Pty Ltd v White and Finniss River Pty Ltd and the National Bank of Australasia Ltd (1982) 29 SASR 597 …. 11.61 Carroll v Azolia Pty Ltd [2000] WASC 95 …. 5.178 Carr-Saunders v Dick McNeil Associates Ltd [1986] 2 All ER 888; [1986] 1 WLR 922 …. 10.104 Cartwright, Re (1889) 41 Ch D 532 …. 3.38 Case of the Royal Fishery of the Banne (1610) Dav 55; 80 ER 540 …. 1.11 Cash Resources Australia Pty Ltd v BT Securities Ltd [1990] VR 576 …. 5.183 Cassegrain v Gerard Cassegrain & Co Pty Ltd (2015) 316 ALR 111 …. 5.88, 6.25 Castle Constructions Pty Ltd v Sahab Holdings Pty Ltd (2013) 247 CLR 149; [2013] HCA 11 …. 10.131, 10.132C Catanzariti v Whitehouse (1981) 55 FLR 426 …. 6.49 Catlin v National Australia Bank Ltd [2004] WASC 135 …. 11.75 Caunce v Caunce [1969] 1 All ER 722; [1969] 1 WLR 286 …. 4.192, 5.194C Cavalier v Cavalier (1971) 19 FLR 199 …. 3.33 Cave v Cave (1880) 15 Ch D 639 …. 4.197, 4.203C Celermajer Holdings Pty Ltd v Kopas (2011) 16 BPR 30,735 …. 8.17 Celsteel Ltd v Alton House Holdings Ltd [1985] 1 WLR 204 …. 10.40 Centaploy Ltd v Matlodge Ltd [1974] Ch 1; [1973] 2 All ER 720 …. 8.18

Central Estates (Belgravia) Ltd v Woolgar (No 2) [1972] 3 All ER 610; [1972] 1 WLR 1048 …. 8.172 Central London Property Trust Ltd v High Trees House Ltd [1947] KB 130 …. 4.147C, 4.151C Central Mortgage Registry of Australia Ltd v Donemore Pty Ltd [1984] 2 NSWLR 128 …. 11.31C, 11.33 Central Trust and Safe Deposit Company v Snider [1916] 1 AC 266 …. 4.52C Centrovincial Estates PLC v Bulk Storage Ltd (1983) P & CR 394 …. 8.125 Cervi v Letcher [2011] VSC 156 …. 2.89 Chabbra Corporation Pty Ltd v Jag Shakti (Owners) [1986] AC 337 …. 2.22 Chairman, National Crime Authority v Flack (1998) 86 FCR 16; 156 ALR 501 …. 2.38 Chaka Holdings Pty Ltd v Sunsim Pty Ltd (1987) NSW ConvR ¶55-367 …. 8.24 Challenger Managed Investments Ltd v Direct Money Corp Pty Ltd (2003) 59 NSWLR 452; [2003] NSWSC 1072 …. 5.57, 5.212 Chalmers v Pardoe [1963] 3 All ER 552; [1963] 1 WLR 677 …. 4.162C, 4.166C Chamberlain and the Conveyancing Act, Re (1969) 90 WN (NSW) (Pt 1) 585 …. 9.80 Chambers v Randall [1923] 1 Ch 149; [1922] All ER Rep 565 …. 9.67C Champion Homes Sales Pty Ltd v JKAM Investments Pty Ltd [2014]

NSWSC 952 …. 5.183 Chan v Cresdon Pty Ltd (1989) 168 CLR 242; 89 ALR 522; 64 ALJR 111 …. 3.111C, 4.70, 4.85C, 8.136 Chandler v Thompson (1811) 3 Camp 80; 170 ER 1312 …. 1.46C Chandless-Chandless v Nicholson [1942] 2 KB 321 …. 8.174 Chandos Developments Pty Ltd v Mulkearns [2008] NSWCA 62 …. 8.96 Chandra v Perpetual Trustees Victoria Ltd (2007) 13 BPR 24,675; ANZ ConvR 481; [2007] NSWSC 694 …. 5.57, 5.59, 5.64, 5.219 Chang v Registrar of Titles (1976) 137 CLR 177 …. 4.52C, 4.55, 4.57C, 4.61 Chaplin v Smith [1926] 1 KB 198 …. 8.109 Chapman v Chapman (2014) 17 BPR 33,093; [2014] NSWSC 1140 …. 6.67 — v Honig [1963] 2 QB 502; [1964] 2 All ER 513 …. 8.63 — v Strawbridge [1910] SALR 118 …. 3.38 Chapman’s Settlement Trusts, Re [1978] 1 All ER 1122; [1977] 1 WLR 1163 …. 7.55 Chardon, Re [1928] Ch 464 …. 7.64 Charles Rickards Ltd v Oppenhaim [1950] 1 KB 616 …. 4.147C Charmelyn Enterprises Pty Ltd v Klonis (1981) 2 BPR 9,527 …. 11.45C, 11.48, 11.50C Chartered Trust Plc v Davies (1997) 76 P & CR 396 …. 8.71 Chase Corporation (Australia) Pty Ltd v North Sydney Brick and Tile Co

Ltd (1994) 35 NSWLR 1 …. 11.37 Chasfild Pty Ltd v Taranto [1991] 1 VR 225 …. 5.52 Chateau Douglas Hunter Valley Vineyards Ltd v Chateau Douglas Hunter Valley Winery and Cellars Ltd (Receivers Appointed) [1978] ACLD 258 …. 1.96 Chatsworth Estates Company v Fewell [1931] Ch 224 …. 9.90 Chatsworth Properties Ltd v Effiom [1971] 1 All ER 604; [1971] 1 WLR 144 …. 8.51, 11.136 Chelfield Pty Ltd v Goldsea Pty Ltd [2003] 2 Qd R 243 …. 8.155 Chelsea Yacht and Boat Co Ltd v Pope [2000] 1 WLR 1941 …. 1.87 CHEP Australia Ltd v Bunnings Group Ltd [2010] NSWSC 301 …. 2.10C Chhokar v Chhokar [1984] FLR 313; 14 Fam Law 269 …. 6.32 Chick v Dockray (2011) 20 Tas R 167; [2011] TASFC 1 …. 10.36 Chieco v Evans (1990) 5 BPR 11,297 …. 6.32, 6.33C Chief Commissioner of State Revenue v Centro (CPL) Ltd (2011) 81 NSWLR 462 …. 8.53 Child v Douglas (1854) Kay 560; 69 ER 237 …. 9.49C China and South Sea Bank Ltd v Tan Soon Gin (alias George Tan) [1990] 1 AC 536 …. 11.81C, 11.109C Chiodo v Murphy (1995) V Conv R 54-531 …. 5.170 Choi v Kim [2013] NSWSC 1774 …. 5.174 Chomley v Firebrace (1879) 5 VLR (Eq) 57 …. 5.69 Christie v Dalco Holdings Pty Ltd [1964] Tas SR 34 …. 9.89, 9.110

Chronopoulos v Caltex Oil (Australia) Pty Ltd (1982) 45 ALR 481 …. 8.136 Chung Ping Kwan v Lam Island Development Co Ltd [1997] AC 38 …. 2.116 Cini v Pets Paradise Franchising (SA) Pty Ltd [2009] SASC 7 …. 5.176 Circuit Finance Australia Ltd v Panella (2012) 16 BPR 30,347 …. 4.59 Cirino v Registrar General (1993) 6 BPR 13,260 …. 5.212, 5.214 Citibank Pty Ltd v Simon Fredericks Pty Ltd [1993] 2 VR 168 …. 8.208 Citicorp Australia Ltd v McLoughney and Registrar-General of Deeds (1984) 35 SASR 375 …. 11.77 Citicorp Investment Bank (Singapore) Ltd v Wee Ah Kee [1997] 2 SLR 759 …. 11.45C City Developments v Registrar General of the Northern Territory (2000) 135 NTR 1 …. 10.17C City Motors (1933) Pty Ltd v Southern Aerial Super Service Pty Ltd (1961) 106 CLR 477; [1962] ALR 184 …. 2.28 City Mutual Life Assurance Society Ltd v Lance Creek Meat Works Pty Ltd [1976] VR 1 …. 11.130 City of Canada Bay City Council v Bonaccorso (2007) 156 LGERA 294; [2007] NSWCA 351 …. 5.156, 5.157 City of Subiaco v Heytesbury Properties Pty Ltd (2001) 24 WAR 146 …. 8.79, 8.187 Cityland and Property (Holdings) Ltd v Dabrah [1968] 1 Ch 167 …. 11.48 Civil Service Co-operative Society Ltd v McGrigor’s Trustee [1923] 2 QB 79

…. 8.156 Clairview Developments Pty Ltd v Law Mortgages Gold Coast Pty Ltd [2007] QCA 141 …. 5.57 Clambake Pty Ltd v Tipperary Projects Pty Ltd (No 4) [2008] WASC 293 …. 2.27, 2.30 Clancy v Salienta Pty Ltd (2000) 11 BPR 20,425 …. 1.99 Clapman v Edwards [1938] 2 All ER 507 …. 10.14C Clare Morris Ltd v Hunter BNZ Finance Ltd (1988) 4 BPR 9609 …. 11.65 Claremont 24-7 Pty Ltd v Invox Pty Ltd (No 2) [2015] WASC 220 …. 4.198 Claridge v South Staffordsmith Tramway Co [1892] 1 QB 422 …. 2.21C Clark v Raymor [1982] Qd R 790 …. 4.198 Clarke v Japan Machines (Australia) Pty Ltd (No 2) (1984) 1 Qd R 421 …. 11.113 — v Palmer (1882) 21 Ch D 124 …. 4.181 — v Ramuz [1891] 2 QB 456; [1891–94] All ER Rep 502 …. 4.65 Classic Heights Pty Ltd v Black Hole Enterprises Pty Ltd (1994) V Conv R 54-506 …. 5.170 Claude Neon Ltd v Melbourne and Metropolitan Board of Works (1969) 43 ALJR 69 …. 1.25, 8.28, 8.29, 10.12 Clayton v Corby (1843) 5 QB 415 …. 10.147C — v Ramsden [1943] AC 321; [1943] 1 All ER 16 …. 3.34, 3.36 Clem Smith Nominees Pty Ltd v Farrelly & Farrelly (1978) 20 SASR 227

…. 9.34C, 9.39, 9.52C, 9.56, 9.69, 9.109, 9.111, 9.112, 9.119C Clements v Ellis (1934) 51 CLR 217; 23 ALR 62 …. 5.40, 5.42, 5.48C, 5.49, 5.71, 5.108C Cleret v Rago [2014] QCA 158 …. 2.89 Cleveland v Roberts [1993] 2 NZLR 17 …. 10.63, 10.80 Clifford v Dove [2003] NSWSC 938 …. 9.17 — v — (2004) 11 BPR 21,149 …. 10.52, 10.104 Clifford’s Settlement Trusts, Re [1981] Ch 63 …. 7.55 Clifton Securities Ltd v Huntley [1948] 2 All ER 283 …. 8.165 Clos Farming Estates Pty Ltd v Easton (2001) 10 BPR 18,845; [2001] NSWSC 525 …. 10.27C — v — (2002) 11 BPR 20,605; [2002] NSWCA 389 …. 10.14C, 10.15, 10.25, 10.26, 10.30, 10.147C Clowes v Bentley [1970] WAR 24 …. 8.100, 8.105 Clyne v Lowe (1968) 69 SR (NSW) 433; [1968] 2 NSWR 292 …. 5.140 CMA Recycling Victoria Pty Ltd v Doubt Free Investments Pty Ltd [2011] TASSC 71 …. 8.192, 8.198 Coatsworth v Johnson (1886) 54 LT 520 …. 8.37C Cobb v Lane [1952] 1 All ER 1199 …. 8.26, 8.27, 8.28 Cobbe v Yeoman’s Row Management Ltd [2008] UKHL 55; [2008] 1 WLR 1752 …. 4.154, 4.155, 4.160, 4.161, 4.164C, 4.165, 4.166C Cockerill, Re; Mackaness v Percival [1929] 2 Ch 131 …. 7.2C, 7.4 Codelfa Constructions Pty Ltd v State Rail Authority (NSW) (1987) 149

CLR 337 …. 8.80, 10.33C, 10.35C, 10.137C Cohen v Cohen (1929) 42 CLR 91 …. 2.105 — v Popular Restaurants Ltd [1917] 1 KB 480 …. 8.127 Cole v Kelly [1920] 2 KB 106 …. 8.37C Coles Myer NSW Ltd v Dymocks Book Arcade Ltd (1996) 9 BPR 16,939 …. 9.60 Colledge v H C Curlett Construction Co Ltd [1932] NZLR 1060 …. 1.80C Colin D Young Pty Ltd v Commercial and General Acceptance Ltd (Court of Appeal, 24 August 1982, unreported) …. 11.81C, 11.113 Collins v Castle (1887) 36 Ch D 243 …. 9.77 Combe v Combe [1951] 2 KB 215 …. 4.151C Commercial & General Acceptance Corporation Ltd v Nixon (1981) 152 CLR 491; 38 ALR 225 …. 11.77, 11.90, 11.93 Commercial Bank of Australasia Ltd v Schierholter [1981] VR 292 …. 5.174 Commercial Bank of Australia v Amadio (1983) 151 CLR 447 …. 5.112 Commercial Bank of Australia Ltd v McCaskill (1897) 23 VLR 10; 3 ALR 97 …. 5.132C Commissioner for Main Roads v BP Australia Ltd (1964) 82 WN (NSW) (Pt 2) …. 9.37 — v North Shore Gas Co Ltd (1967) 120 CLR 118; [1968] ALR 111 …. 10.3C Commissioner of Fair Trading v Voulon [2005] WASC 229 …. 8.213 Commissioner of Taxation v R & D Holdings Pty Ltd (2007) 240 ALR 653

…. 11.127 Commonwealth v Clark [1994] 2 VR 333 …. 4.159 — v Orr (1981) 58 FLR 219 …. 11.135 — v Registrar of Titles (Vic) (1918) 24 CLR 348; 24 ALR 106; [1918] HCA 17 …. 10.27C, 10.44 — v Verwayen (1990) 170 CLR 394; 95 ALR 321; 64 ALJR 540; [1990] HCA 39 …. 4.45, 4.156, 4.159, 4.162C, 4.166C, 4.171C, 4.206, 11.45C — v Yarmirr (2001) 208 CLR 1; 184 ALR 113 …. 1.11, 3.89, 3.91, 3.114C, 3.121C Commonwealth Bank of Australia, Re (2009) 14 BPR 26,819; [2009] NSWSC 81 …. 6.62 Commonwealth Bank of Australia v Baranyay [1993] 1 VR 589 …. 5.177, 8.52 — v Hadfield (2001) 53 NSWLR 614 …. 11.73 — v Lee (1996) 22 ACSR 574 …. 11.82 — v MacDonald (2000) 10 BPR 18,111 …. 6.81, 6.85 — v Muirhead [1997] 1 Qd R 567 …. 11.90 — v Platzer [1997] 1 Qd R 266 …. 4.193, 5.193 — v Psevdos [2015] SASC 66 …. 5.193 — v Shannon [2013] NSWSC 1076 …. 11.87C — v Thompson [2013] NSWSC 149 …. 11.96 Commonwealth Development Bank of Australia v Eagle Hotels (1990) NSW ConvR ¶55-506 …. 8.178

Commonwealth Life (Amalgamated) Assurance Ltd v Anderson (1945) 46 SR (NSW) 47 …. 3.18, 8.11, 8.109, 8.119 Commonwealth of Australia v Akiba on behalf of the Torres Strait Islanders of the Regional Seas Claim Group (2012) 289 ALR 400; [2012] FCAFC 25 …. 3.100 Compagnia Sud Americana de Vapores v Shipmair (The Teno) [1977] 2 Lloyd’s Rep 289 …. 8.201C Competitive Funerals Pty Limited v Gurmit Singh Rai trading as Blacktown City Funerals [2005] NSWSC 1171 …. 8.34 Composite Buyers Ltd v Soong (1995) 38 NSWLR 286 …. 5.170 Comptroller of Stamps v Howard-Smith (1936) 54 CLR 614 …. 4.80, 4.97 Concepts Property Ltd v McKay [1984] 1 NZLR 560 …. 1.91 Congleton Corp v Pattison (1808) 10 East 130; 103 ER 725 …. 9.23C Conlan v Registrar of Titles (2001) 24 WAR 299; [2001] WASC 201 …. 5.50, 5.57, 5.74, 5.106 Conn v Martusevicus (1991) 14 Fam LR 751 …. 4.139 Connaught Restaurants Ltd v Indoor Leisure Ltd [1994] ANZ ConvR 463; [1994] 4 All ER 834; [1994] 1 WLR 501 …. 8.206, 8.207 Connors v United Kingdom [2004] EHRR 189 …. 1.63 Consolidated Development Pty Ltd v Holt (1986) 6 NSWLR 607 …. 7.67 Conquest v Ebbetts [1896] AC 490; [1895] All ER Rep 622 …. 8.107 Consolidated Development Pty Ltd v Holt (1986) 6 NSWLR 607 …. 5.53, 8.162

Cook, Re [1964] VR 808 …. 9.92C Cook v Saroukos (1989) 97 FLR 33 …. 2.8, 2.43 Cooke v Cooke [1987] VR 625 …. 4.118, 4.133 — v Head [1972] 2 All ER 38; [1972] 1 WLR 518 …. 4.116, 4.117C Cooma Clothing Pty Ltd v Create Invest Develop Pty Ltd (2013) 46 VR 447; [2013] V ConvR 54-834; [2013] VSCA 106 …. 8.135, 8.146C, 8.148 Cooney v Burns (1922) 30 CLR 216 …. 4.44, 4.45 Cooper, Re (1881) 20 Ch D 611 …. 5.11 Cooper v Corporation of Sydney (1853) Legge 765 …. 10.84 Co-operative Property Developments of Australia Limited (in liq) v Commonwealth Bank of Australia [1992] 1 Tas R 308 …. 5.53 Copeland v Greenhalf [1952] Ch 488; [1952] 1 All ER 809 …. 10.5, 10.24, 10.27C, 10.29 Coras v Webb [1942] QSR 66 …. 5.40 Cordingley, Re (1948) 48 SR (NSW) 248 …. 6.83 Corin v Patton (1990) 169 CLR 540; 92 ALR 1; 64 ALJR 256 …. 4.83, 4.84, 4.85C, 4.86, 4.87, 4.89, 4.109C, 6.53C, 6.54, 6.55, 6.57 Cornillie v Saha (1996) 28 HLR 561 …. 8.159 Cornish v Brook Green Laundry Ltd [1959] 1 QB 394; [1959] 1 All ER 373 …. 4.71, 4.76 Coroneo v Australia Provincial Assurance Association Ltd (1935) 35 SR 391 …. 11.113

Corporate Affairs Commission v ASC Timber Pty Ltd (1989) 18 NSWLR 577 …. 4.36, 5.140, 10.145, 10.146, 10.150 — v Australian Softwood Forest Pty Ltd [1978] 1 NSWLR 150 …. 10.147C Cory v Davies [1923] 2 Ch 95 …. 10.77 Coshott v Ludwig (1997) NSW ConvR ¶55-810 …. 9.82 Costello v Chief Constable of Derbyshire Constabulary [2001] 3 All ER 150; [2001] 1 WLR 1437 …. 2.18 Costin v Costin (1997) 7 BPR 15,167 …. 6.55, 6.57 — v — (1997) NSW ConvR ¶55-811 …. 4.87 Council for the Municipality of Lane Cove v Hand and Hurdis Pty Ltd (1955) 72 WN (NSW) 284 …. 9.60 Council of the Municipality of Randwick v Rutledge (1959) 102 CLR 54 …. 3.5 Cousin v Grant (1991) 103 FLR 236 …. 9.15, 9.77, 9.121 Coventry v Smith (2004) 31 Fam LR 608; [2004] FamCA 249 …. 3.45 Cowell v Rosehill Racecourse Co Ltd (1937) 56 CLR 605; [1937] ALR 273 …. 1.18C, 1.19, 1.20 Cox v Bath (1893) 14 LR (NSW) 263 …. 2.24 Crabb v Arun District Council [1976] Ch 179; [1975] 3 All ER 865 …. 4.140, 4.147C, 4.148, 4.151C, 4.157, 4.164C, 4.166C, 10.56, 10.143 Cracknell v Cracknell [1971] P 356 (EWCA Civ) …. 6.36C Cram v Bellambi Coal Co Ltd [1964–65] NSWR 897 …. 8.43 Cram Foundation v Corbett-Jones [2006] NSWSC 495 …. 3.32, 7.64, 7.65,

7.76 Crampton v French (1995) V ConvR 54-529 …. 5.170 Crane v Crane (1949) 80 CLR 327 …. 7.55, 7.56 Crawley Borough Council v Ure [1996] QB 13; [1996] 1 All ER 724; [1995] 3 WLR 95 …. 6.51 Credit Connect Pty Ltd v Carney; Credit Connect Pty Ltd v Smit [2010] NSWSC 910 …. 5.67, 5.95 Credit Suisse v Beegas Nominees Ltd [1994] 4 All ER 803 …. 8.101 Creelman v Hudson’s Bay Insurance Co Ltd [1920] AC 194 …. 5.39 Creer v P & O Lines of Australia (1971) 125 CLR 84; [1972] ALR 226 …. 8.110 Crest Nicholson Residential (South) Ltd v McAllister [2004] EWCA Civ 410 …. 9.54, 9.56 Cricklewood Property and Investment Trust Ltd v Leighton’s Investment Trust Ltd [1945] AC 221 …. 8.183C Crocombe v Pine Forests of Australia Pty Ltd (2005) 219 ALR 692 …. 3.38 Croft v Lumley (1858) 6 HLC 672; 10 ER 1459 …. 8.158 Crofts v Beamish (1905) 2 IR 349 …. 7.2C Cross & National Australia Bank Ltd, Re [1992] ANZ ConvR 28; (1992) Q ConvR 54-433 …. 5.171, 11.106 Crow v Campbell (1884) 10 VLR (Eq) 86 …. 5.69 — v Wood [1971] 1 QB 77; [1970] 3 All ER 425 …. 10.48, 1.70 Cruse v Mount [1933] Ch 278; [1932] All ER Rep 781 …. 8.76

Cuckmere Brick Co Ltd v Mutual Finance Co Ltd [1971] Ch 949; [1971] 2 All ER 633 …. 11.76, 11.77, 11.78, 11.79, 11.80, 11.81C, 11.83, 11.87C, 11.109C Cudgegong v Transport for NSW (No 3) [2015] NSWLEC 185 …. 11.93 Cugg Pty Ltd v Gibo Pty Ltd (2001) 10 BPR 18,641 …. 8.105 Cuming, Re; Nicholls v Public Trustee (SA) (1945) 72 CLR 86; [1945] ALR 456 …. 7.12 Cummins v Cummins (2006) 227 CLR 278 …. 6.75 Currey v Federal Building Society (1929) 42 CLR 421; [1929] ALR 320 …. 5.180C Currie v Hamilton [1984] 1 NSWLR 687 …. 6.16 Currumbin Investments Pty Ltd v Body Corporate Mitchell Park Parkwood CTS [2012] 2 Qd R 511; [2012] QCA 9 …. 10.36 Cussons, Re (1904) 73 LJ Ch 296 …. 2.105 Cuthbert v Hardie (1989) 17 NSWLR 321 …. 1.106 Cuthbertson v Swan (1877) 11 SALR 102 …. 5.163C, 5.167 Cuvet v Davis (1883) 9 VLR (L) 390 …. 9.92C Cuzeno Pty Ltd v Owners — Strata Plan 65870 [2013] NSWSC 1385 …. 10.64

D D R Fullerton and Co Pty Ltd v Minjar Holdings Pty Ltd (SC (NSW), Lusher AJ, 27 February 1990, unreported) …. 11.128 Dabbs v Seaman (1925) 36 CLR 538 …. 10.78, 10.117, 10.123, 10.142C,

10.143, 10.144 Dale v Haggerty [1979] Qd R 83 …. 4.118 — v Moses [2007] FCAFC 82 …. 3.98 Dalegrove Pty Ltd v Isles Parking Station Pty Ltd (1988) 12 NSWLR 546 …. 8.143, 8.144 Dalla Costa v Beydoun (1990) 5 BPR 11,379; (1991) NSW ConvR ¶55-559 …. 8.169, 8.197C Dalton v Angus & Co (1881) 6 App Cas 740; (1881–5) All ER Rep 1 …. 10.46, 10.85C, 10.87, 10.93, 10.97 — v Christofis [1978] WAR 42 …. 2.104, 4.119 — v Ellis; Estate of Bristow (2005) 65 NSWLR 134; [2005] NSWSC 1252 …. 9.7C Daniel v Gracie (1844) 6 QB 145; 115 ER 56 …. 8.119 — v Western Australia [2003] FCA 666 …. 3.104 Daniels v Davison (1809) 16 Ves 249; 33 ER 978 …. 4.188C Daniher v Fitzgerald (1919) 12 SR (NSW) 260 …. 11.135 Darbyshire v Darbyshire (1905) 2 CLR 787; 11 ALR 417 …. 5.9 D’Arcy v Burelli Investments Pty Ltd (1989) 8 NSWLR 317 …. 1.90, 1.91 Darrington v Caldbeck (1990) 20 NSWLR 212 …. 6.81 David Jones Ltd v Leventhal (1927) 40 CLR 357 …. 8.59 Davidson v Elkington [2011] WASC 29 …. 2.111 Davies v Johnston [2014] VCAT 512 …. 6.39 — v Otty (1865) 35 Beav 208; 55 ER 875 …. 4.101

— v Ryan [1951] VLR 283 …. 5.40, 5.48C — v Sear (1869) LR 7 Eq 427 …. 10.79C — v Williams (1851) 16 QB 546 …. 10.104 Davis v Commonwealth (1988) 166 CLR 79; 82 ALR 633 …. 1.59C, 1.61 — v Johnson [1979] AC 264 …. 6.33C, 6.34 — v Johnson [1979] AC 317 …. 6.33C — v Town Properties Investment Corp Ltd [1903] 1 Ch 797; [1900–3] All ER Rep 558 …. 8.140 — v Whitby [1974] Ch 186; [1974] 1 All ER 806 …. 10.91 — v Williams (2003) 11 BPR 21,313; [2003] NSWCA 371 …. 5.94, 5.95 Davjoyda Estates Pty Ltd v National Insurance Co of New Zealand Ltd [1965] NSWR 1257; (1965) 69 SR (NSW) 381 …. 4.53 Dawson v Stevenson [1920] VLR 564 …. 1.93 Dayeian v Davidson [2010] NSWCA 42 …. 8.17 De Mattos v Gibson (1858) 4 De G & J 276; 45 ER 108 …. 9.34C De Rose v South Australia (2003) 133 FCR 325 …. 3.87, 3.99, 3.106C — v — (No 2) (2005) 145 FCR 290 …. 3.89, 3.99, 3.100, 3.106C, 3.116, 3.124C, 3.125 Deanshaw and Deanshaw v Marshall (1978) 20 SASR 146 …. 5.169, 10.38, 10.56 Dee Trading Co Pty Ltd v Baldwin [1938] VLR 173 …. 2.31 Deeks v Deeks [1988] 1 NZLR 664 …. 6.44 Deeley v Lloyds Bank Ltd [1912] AC 756 …. 11.31C, 11.33

Delaforce v Simpson-Cook (2010) 78 NSWLR 483 …. 4.166C, 4.167, 4.168 Delehunt v Carmody (1986) 161 CLR 464; 68 ALR 253; 61 ALJR 54 …. 4.108, 6.13, 6.18, 6.23 Delohery v Permanent Trustee Co of New South Wales (1904) 1 CLR 283 …. 10.83, 10.93, 10.96 Demertjis v Chauhan (Rld) [2008] NSWADTAP 43 …. 8.72 Denham Bros Ltd v Freestone Leasing Pty Ltd [2003] QCA 376 …. 8.127 Denison v Denison [2000] NSWSC 1205 …. 7.56 Dennerstein, Re [1963] VR 688 …. 9.34C, 9.78, 9.109, 9.110, 9.112, 9.113C, 9.114, 9.119C Dennis v Dennis (1971) 124 CLR 317; [1972] ALR 599; (1971) 45 ALJR 605 …. 6.11 — v McDonald [1982] 1 All ER 590; [1982] 2 WLR 275; [1982] Fam 63 …. 6.33C, 6.36C, 6.34 Densham, Re [1975] 3 All ER 726; [1975] 1 WLR 1519 …. 4.118 Denton v Phillpot (1990) NSW ConvR 55-543 …. 10.42C Department of the Environment v James [1972] 3 All ER 629; [1972] 1 WLR 1279 …. 2.61C Depsun Pty Ltd v Tahore Holdings Pty Ltd (1990) 5 BPR 97,352; NSW ConvR ¶55-523 …. 1.75 Deutsch v Rodkin [2012] VSC 450 …. 5.178 Dewar v Goodman [1908] 1 KB 94; [1908–10] All ER Rep 188 …. 8.141C

Dewhirst v Edwards [1983] 1 NSWLR 34 …. 10.123, 10.139 D’Eyncourt v Gregory (1866) Law Rep 3 Eq 382 …. 1.80C DHJPM Pty Ltd v Blackthorn Resources Ltd (2011) 83 NSWLR 728 …. 8.52 DHK Retailers Pty Ltd v Leda Commercial Properties Pty Ltd [1993] ANZ ConvR 635 …. 8.189 Di Palma v Victoria Square Property Co Ltd (1983) 48 P & CR 140 …. 8.174 Diamond v Chakrabarty 447 US 303 (1980); 100 S Ct 2204; 65 L Ed 2d 144 …. 1.36C Dickinson v Burrell (1866) LR 1 Eq 337 …. 4.203C Diemasters Pty Ltd v Meadowcorp Pty Ltd (2001) 52 NSWLR 572; 10 BPR 18,769 …. 5.207, 5.211, 5.212, 5.225C Dikstein v Kanevsky [1947] VLR 216 …. 8.94 Dillon v Nash [1950] VLR 293 …. 8.94, 10.77 Dillwyn v Llewelyn (1862) 4 De GF & J 517; 45 ER 1285; [1861–73] All ER Rep 384 …. 4.141C, 4.143, 4.144, 4.145, 4.162C Diment v N H Foot Ltd [1974] 2 All ER 785; [1974] 1 WLR 1427 …. 10.90 Dimmick v Pearce Investments Pty Ltd (1980) 43 FLR 235 …. 11.83 Direct Factory Outlets Pty Ltd v Westfield Management Ltd (No 2) (2005) 144 FCR 23 …. 8.118 Direct Food Supplies (Victoria) Pty Ltd v DLV Pty Ltd [1975] VR 358 ….

8.167 Director of Public Prosecution v Ali (No 2) [2010] VSC 503 …. 4.118 Diwell v Farnes [1959] 2 All ER 379; [1959] 1 WLR 624 …. 6.16 Dobbie v Davidson (1991) 23 NSWLR 625; 73 LGRA 402 …. 10.117, 10.123, 10.124C, 10.125, 10.126, 10.130, 10.131, 10.132C Dobson v North Tyneside Health Authority [1996] 4 All ER 474 …. 1.40 Dockrill v Cavanagh (1944) 45 SR (NSW) 78 …. 8.37C, 8.39, 8.40, 8.43 Doe v Bird (1809) 11 East 49; 103 ER 922 …. 6.33C — v Browne (1807) 8 East 165 …. 8.15C Doe d Carter v Barnard (1849) 13 QB 945; 116 ER 1524 …. 2.48C Doe d Clarke v Clarke (1794) 2 H Black 399; 126 ER 617 …. 9.7C Doe d Hughes v Dyeball (1829) Mood & M 346; 173 ER 1184 …. 2.48C Doe d Lloyd v Passingham (1827) 6 B & C 305; 108 ER 465 …. 3.58, 3.61C, 3.62 Doe d Pitt v Hogg (1824) 4 Dow & Ry 226; 171 ER 1144 …. 8.109 Doe dem Davenish v Moffatt (1850) 15 QB 257; 117 ER 455 …. 8.37C Doe dem Rigge v Bell (1793) 5 TR 471; 101 ER 265 …. 8.37C Doe dem Shore v Porter (1789) 3 TR 13; 100 ER 428 …. 8.37C Doe dem Thompson v Amey (1840) 12 A & E 476; 113 ER 892 …. 8.37C Doe dem Tilt v Stratton (1828) 4 Bing 446; 130 ER 839 …. 8.37C Dogrow Pty Ltd v Teakdale Pty Ltd [2013] NSWSC 1380 …. 8.65, 8.94 Doherty v Allman (1878) 3 App Cas 709 …. 3.38 Dollars & Sense Finance Ltd v Nathan [2007] NZCA 177 …. 5.57, 5.109

— v — [2008] NZSC 20 …. 5.87 Dolphin’s Conveyance, Re [1970] Ch 654; [1970] 2 All ER 664 …. 9.74 Dolroy Pty Ltd v Civilco Constructions Pty Ltd [2007] NSWSC 1263 …. 5.169 Donaldson v Donaldson (1854) Kay 711; 69 ER 303 …. 4.85C Donis v Donis (2007) 19 VR 577 …. 4.171C Donnelly v Amalgamated Television Services Pty Ltd (1998) 45 NSWLR 590 …. 1.50C Donoghue v Stevenson [1932] AC 562; [1932] All ER Rep 1 …. 1.46C, 8.83C, 11.79 Doodeward v Spence (1908) 6 CLR 406; 15 ALR 105 …. 1.40, 1.41, 1.42, 4.6 Doohan v Nelson [1973] 2 NSWLR 320 …. 4.117C, 4.118, 4.136 Dorman v Rogers (1982) 148 CLR 365 …. 1.56C Double Bay Newspapers Pty Ltd v AW Holdings Pty Ltd (1996) 42 NSWLR 409 …. 4.205, 5.196 Dougan v Ley (1946) 71 CLR 142; 20 ALJ 37 …. 1.21, 4.77 Douglas v Cicirello [2006] WASCA 226 …. 8.196 — v Hello! Ltd [2001] QB 967 …. 1.52 Downie v Lockwood [1965] VR 257 …. 4.209, 5.131, 5.133, 5.135, 5.194C Downsview Nominees Ltd v First City Corp Ltd [1993] AC 295; [1993] 3 All ER 626 …. 11.80 Dowse v Wynyard Holdings Ltd [1962] NSWR 252 …. 8.60, 8.81

Dowsett v Reid (1912) 15 CLR 695 …. 1.21 Dowty Bolton Paul Ltd v Wolverhampton Corporation (No 2) [1976] Ch 13 …. 10.49 Doyle v Phillips (No 1) (1997) 8 BPR 15,523 …. 9.7C, 9.10, 9.58, 9.65, 9.83 Dr Bronte Douglass v Lawton Pty Ltd [2007] NSWCA 89 …. 1.89 Drake v Gray [1936] 1 Ch 451 …. 9.62C, 9.92C Drane v Evangelou [1978] 2 All ER 437; [1978] 1 WLR 455 …. 8.63 Draper v Official Trustee in Bankruptcy (2006) 156 FCR 53; [2006] FCAFC 157 …. 6.36C Driscoll v Church Commissioners for England [1957] 1 QB 330 …. 9.92C Drive Yourself Hire Co (London) Ltd v Strutt [1954] 1 QB 250; [1953] 2 All ER 1475 …. 9.6 Drummond’s Settlement, Re [1986] 3 All ER 45 …. 7.54 DS Queen Street Mall Pty Ltd v Texrose Pty Ltd [2006] QCA 429 …. 8.143 D’Silva v Lister House Development Ltd [1971] 1 Ch 17; [1970] 1 All ER 858 …. 8.34, 8.45 Dudley and District Benefit Building Society Ltd v Emerson [1949] 1 Ch 707; 1 All ER 691 …. 11.136 Duggan v Kelly (1847) 10 Ir Eq R 295 …. 3.35 — v Thomas [2002] FCA 830 …. 11.92, 11.107 Dukart v District of Surrey et al (1978) 86 DLR 609 …. 10.17C, 10.23 Duke of Norfolk’s Case (1682) 3 Ch Cas 1; 22 ER 931 …. 7.15

Duke of Norfolk’s Case (1685) 3 Ch Cas 54; 22 ER 963 …. 7.15 Duke of Sutherland v Heathcote [1892] 1 Ch 475 …. 10.145 Dullow v Dullow (1985) 3 NSWLR 531 …. 4.108 Dumpor’s case (1603) 4 Co Rep 119(b); 76 ER 1110 …. 8.109 Duncan v Big Country Developments Pty Ltd [2016] NSWCA 163 …. 8.188, 8.196 — v Louch (1845) 6 QB 904; 115 ER 341 …. 10.17C, 10.22, 10.23 — v McDonald (1997) 3 NZLR 669 …. 5.56, 5.57 Dunlop Olympic Ltd v Ellis [1986] WAR 8 …. 4.75 Duran (Holdings) Pty Ltd v Cavacourt Pty Ltd (2000) 10 BPR 18,099 …. 10.108 Durham Fancy Goods Ltd v Michael Jackson (Fancy Goods) Ltd [1968] 2 QB 839 …. 4.151C Dutton v Taylor (1700) Lutw 1487; 125 ER 819 …. 10.79C Dwyer v Kaljo (1992) 15 Fam LR 645 …. 4.139 Dyce v Lady James Hay (1852) 1 Macq 305 …. 10.14C, 10.27C Dykstra v Dykstra (1991) 22 NSWLR 556 …. 5.178

E Eade v Vagiozopoulos [1993] V ConvR 54-458 …. 5.52 Eagling v Gardner [1970] 2 All ER 838 …. 9.76 Earl of Egmont v Smith (1877) 6 Ch D 469 …. 4.65 Eastdoro Pty Ltd (No 2), Re [1990] 1 Qd R 424 …. 5.56 Ecclesiastical Commrs for England’s Conveyance, Re [1936] Ch 430; [1934]

All ER Rep 118 …. 9.9 Economy Shipping Pty Ltd v ADC Buildings Pty Ltd [1969] 2 NSWR 97 …. 10.97 Eddowes, Re [1991] 2 Qd R 381 …. 10.116 Edmund Barton Chambers (Level 44) Co-operative Ltd v Mutual Life and Citizens Assurance Co Ltd (1985) 6 NSWLR 312 …. 8.119 Edwards; Re the Estate of Edwards [2011] NSWSC 478 …. 1.42 Effeney v Millar Investments Pty Ltd and Others (2011) 16 BPR 30,275 …. 10.108 Efstratiou v Glantschnig [1972] NZLR 594 …. 5.98 Elderly Citizens Homes of SA Inc v Balnaves (1998) 72 SASR 210 …. 5.190 Eliezer v Residential Tribunal (2001) 53 NSWLR 657 …. 8.218 Elite Promotions & Management Pty Ltd v 5A Investments Pty Ltd (2011) 80 NSWLR 686 …. 8.208 Elitestone Ltd v Morris [1997] 1 WLR 687 …. 1.85C Ellaway v Lawson [2006] QSC 170 …. 3.34 Ellco Farm Supplies Pty Ltd v Healy (1986) 3 BPR 9596 …. 10.38 Ellenborough Park, Re [1956] Ch 131; [1955] 3 All ER 667; [1955] 3 WLR 892 …. 10.2, 10.13C, 10.14C, 10.15, 10.17C, 10.21C, 10.22, 10.23, 10.24, 10.25, 10.27C, 10.31, 10.55 Eller v Grovecrest Investments Ltd [1994] 4 All ER 845 …. 8.208 Elliot, Re [1896] 2 Ch 353 …. 7.2C Elliott v Boynton [1924] 1 Ch 236; [1923] All ER Rep 174 …. 8.165

Ellison v O’Neill (1968) 88 WN (NSW) (Pt 1) 213; [1968] 2 NSWR 246 …. 9.61 — v Vukicevic (1986) 7 NSWLR 104 …. 10.145, 10.149 Elliston v Reacher [1908] 2 Ch 374 …. 9.73, 9.74, 9.76, 9.92C, 9.118 — v — [1908] 2 Ch 665 …. 9.34C Elton v Cavill (No 2) (1994) 34 NSWLR 289 …. 6.51, 7.2C, 7.9, 7.10 Elwes v Brigg Gas Co (1886) 33 Ch D 562 …. 2.34C, 2.38 — v Maw (1802) 3 East 38; 102 ER 510 …. 1.94 Emcorp Pty Ltd v ABC [1988] 2 Qd R 169 …. 1.49 Emerald Securities Pty Ltd v Tee Zed Enterprises Pty Ltd (1981) 28 SASR 214 …. 11.100 Emerald Quarry Industry Pty Ltd v Commissioner of Highways (1976) 14 SASR 486 …. 10.146 Emerson, Ex parte (1898) 15 WN (NSW) 101 …. 4.5 Emerson v Custom Credit Corporation Ltd [1994] 1 Qd R 516 …. 11.90 Emile Elias & Co Ltd v Pine Groves Ltd [1993] 1 WLR 305 …. 9.77 Eng Mee Yong v Letchumanan [1980] AC 331 …. 5.175, 5.176 English, Scottish and Australian Bank v Phillips (1937) 57 CLR 302 …. 11.25 ENT Pty Ltd v McVeigh (1996) 6 Tas R 202 …. 11.82 Eon Metals NL v Commissioner for State Taxation (WA) (1991) 22 ATR 601 …. 1.85C, 1.87 Epic Feast Pty Ltd v Mawson KLM Holdings Pty Ltd (1998) 71 SASR 161

…. 11.45C Epworth Group v Permanent Custodians [2011] SASCFC 32 …. 5.157 Equitiloan Securities Pty Ltd v Registrar of Titles [1997] 2 Qd R 597 …. 5.122 Equititrust Ltd v Franks (2009) 258 ALR 388 …. 6.25 Equity One Mortgage Fund Ltd v Thompson [2009] VSC 408 …. 11.110 Equity Trustees Executors and Agency Co Ltd v Epstein [1984] VR 577 …. 7.74 ER Ives Investment Ltd v High [1967] 2 QB 379; [1967] 1 All ER 504 …. 4.142, 9.19, 9.20, 10.56 Errington v Errington and Woods [1952] 1 All ER 149; [1952] 1 KB 290 …. 1.31, 4.141C, 8.22C, 8.26, 8.27 Esanda Finance Corporation Ltd v Gibbons [1999] NSWSC 1094 …. 2.26 Estate of Virgona v Lautour (2007) Aust Torts Reports 81-918; [2007] NSWCA 282 …. 8.85 Estates Gazette Ltd v Benjamin Restaurants Ltd [1995] 1 All ER 129 …. 8.125 Esther Investments Pty Ltd v Cherrywood Park Pty Ltd [1986] WAR 279 …. 8.127, 8.198 Evanel Pty Ltd v Nelson (1995) 39 NSWLR 209; 7 BPR 14,388 …. 10.27C Evans v Balog [1976] 1 NSWLR 36 …. 10.97 — v Braddock [2015] NSWSC 249 …. 4.172 — v Marmont (1997) 21 Fam LR 760 …. 4.139

Eves v Eves [1975] 3 All ER 768; [1975] 1 WLR 1338 …. 4.116, 4.117C Executive Seminars Pty Ltd v Peck [2001] WASC 229 …. 2.99, 5.104 Expert Clothing Service v Hillgate House [1986] 1 Ch 340; [1985] 2 All ER 998 …. 8.155 Expo International Pty Ltd v Chant [1979] 2 NSWLR 820 …. 11.74C, 11.77

F F & F Holdings Pty Ltd v Ridge Lane Pty Ltd [1998] VSCA 72 …. 5.91C Facchini v Bryson [1952] 1 TLR 1386 …. 8.22C FAI Insurances Ltd v Pioneer Concrete Services Ltd (1987) 15 NSWLR 552 …. 4.200 Fairclough v Swan Brewery Co Ltd [1912] AC 565 …. 11.45C, 11.53C Fairless v Registrar of Title [1997] 1 VR 404 …. 5.216, 5.220 Fairweather v St Marylebone Property Co Ltd [1963] AC 510; [1962] 2 All ER 288 …. 2.116, 2.117 Famous Army Stores v Meehan [1993] 1 EGLR 73 …. 8.206 Famous Makers Confectionery Pty Ltd v Sengos (1993) 6 BPR 13,222 …. 1.82 — v — (1993) NSW ConvR ¶55-672 …. 8.62 Fanigun Pty Ltd v Woolworths Ltd [2006] QSC 28 …. 8.72 Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; 236 ALR 209; 81 ALJR 1107; [2007] HCA 22 …. 5.74, 5.98, 5.113, 10.35C, 11.45C

Farquharson Brothers & Co v King & Co [1902] AC 325; [1900-3] All ER Rep 120 …. 10.142C Farrand v Yorkshire Banking Co (1888) 40 Ch D 182 …. 4.200 Farrar v Farrars Ltd (1888) 40 Ch D 395 …. 11.68, 11.70, 11.73 Federal Airports Corporation v Makucha Developments Pty Ltd (1993) 115 ALR 679 …. 1.23, 8.24, 8.181 Federal Commerce and Navigation Co Ltd v Molena Alpha Ltd [1978] QB 427; [1978] 3 All ER 1066 …. 8.201C Federated Homes Ltd v Mill Lodge Properties Ltd [1980] 1 All ER 371; [1980] 1 WLR 594 …. 9.26E, 9.52C, 9.53, 9.54, 9.56, 9.57, 9.62C, 9.92C — v — (1995) 133 ALR 465 …. 9.52C Fejo v Northern Territory (1998) 195 CLR 96 …. 3.88C, 3.110, 3.114C, 3.121C, 3.124C, 3.126C Fels v Knowles (1906) 26 NZLR 604 …. 5.56 Fenn v Smart (1810) 12 East 444; 104 ER 173 …. 8.161C Fennings v Lord Grenville (1808) 1 Taunt 241; 127 ER 825 …. 2.4 Fensom v Cootamundra Racecourse Reserve Trust [2000] NSWSC 1072 …. 1.99 Fenwick v Wambo Coal Pty Ltd (No 3) (2011) 15 BPR 29,559 …. 10.6 Ferguson v Miller [1978] 1 NZLR 819 …. 6.32, 6.33C, 6.48 Fermora Pty Ltd v Kelvedon Pty Ltd [2011] WASC 281 …. 10.36 Ferrari v Beccaris [1979] 2 NSWLR 181 …. 6.86

Figgins Holdings Pty Ltd v SEAA Enterprises Pty Ltd (1999) 196 CLR 245 …. 11.24 Fink v Robertson (1907) 4 CLR 864 …. 11.23C Finlay v R & I Bank of Western Australia Ltd (1993) 6 BPR 13,232 …. 5.190, 5.201 First National Securities Ltd v Jones [1978] Ch 109; [1978] 2 All ER 221 …. 4.29 Fischer v Easthaven Ltd (1963) 80 WN (NSW) 1155 …. 5.229 Fisher v Westpac Banking Corporation (1993) 43 FCR 385 …. 4.29 Fistar v Riverwood Legion and Community Club Ltd [2016] NSWCA 81 …. 2.18 Fitt v Luxury Developments [2000] VSC 258 …. 9.65, 9.113C, 9.114 Fitzgerald v Firbank [1877] 2 Ch 96; [1895–99] All ER Rep 445 …. 1.28C, 4.5 Flavelle, Re; Moore v Flavelle [1969] 1 NSWR 361 …. 2.104 Flexman v Corbett [1930] 1 Ch 672; All ER Rep 420 …. 8.34 Flight v Bentley (1835) 7 Lim 149; 58 ER 793 …. 8.142C Flinn v Flinn [1999] VSCA 109; [1999] 3 VR 712 …. 4.166C Foley v Interactive Data Corp (1988) 47 Cal 3d 654; 254 Cal Rptr 211; 765 P 2d 373 …. 1.36C Foley (Deceased), Re; Public Trustee v Foley [1955] NZLR 702 …. 6.26 Forbes v New South Wales Trotting Club (1979) 25 ALR 1 …. 1.57 Ford v Heathwood [1949] QWN 11 …. 10.51

— v Perpetual Trustees Victoria Ltd [2009] NSWCA 186 …. 5.67 Forder v Cemcorp Pty Ltd (2001) 10 BPR 18,615 …. 5.169 Forestview Nominees Pty Ltd v Perpetual Trustees WA Ltd (1998) 193 CLR 154; 152 ALR 149 …. 9.51, 9.52C, 9.60 Forgeard v Shanahan (1994) 35 NSWLR 206; 18 Fam LR 281 …. 6.35, 6.36C, 6.38, 6.41, 6.46 Formby v Barker [1903] 2 Ch 539; [1900–3] All ER Rep 445 …. 9.34C, 9.48, 9.67C Forrest Trust, Re; Trustees, Executors and Agency Co Ltd v Anson [1953] VLR 246 …. 11.23C, 11.123 Forsyth v Blundell (1973) 129 CLR 477; 1 ALR 68 …. 4.208, 5.171, 11.77, 11.78, 11.81C, 11.87C, 11.91, 11.99C, 11.100, 11.101, 11.102 — v Blackstone (1883) 1 My & K 298; 39 ER 694 …. 4.196C — v Mountford (1976) 14 ALR 71 …. 3.96 — v Reeves [1892] 2 QB 255 …. 4.71, 8.37C — v Wright (1878) 4 CPD 438 …. 1.105 Four Maids Ltd v Dudley Marshall (Properties) Ltd [1957] 1 Ch 317 …. 11.132 Four Oaks Enterprises Pty Ltd v Clark [2002] TASSC 39 …. 5.173 Fox v Jolly [1916] 1 AC 1 …. 8.154 Frame v Dawson (1807) 14 Ves Jun 386; 33 ER 569 …. 4.42C Francis Longmore & Co Ltd v Stedman [1948] VLR 322 …. 8.119 Francis, Re; Ex Parte Official Trustee in Bankruptcy (1988) 82 ALR 335 ….

6.75 Frater v Finlay (1968) 91 WN (NSW) 730 …. 10.14C, 10.52 Frazer v Walker [1967] 1 AC 569; [1967] 1 All ER 649 …. 5.25, 5.37, 5.40, 5.41C, 5.42, 5.43, 5.44, 5.45, 5.48C, 5.49, 5.55C, 5.59, 5.70C, 5.72C, 5.75, 5.77, 5.100, 5.101C, 5.108C, 5.110, 5.113, 5.122, 5.123, 5.154C, 5.214 Frederick Betts Ltd v Pickfords Ltd [1906] 2 Ch 87 …. 8.65 Freed v Taffel (1984) 2 NSWLR 322 …. 4.85C, 6.54, 6.58 Freemasons Hospital v Attorney-General for the State of Victoria [2010] VSC 373 …. 7.64, 7.65 Fremantle Trades Hall Industrial Association v Victor Motor Co Ltd [1963] WAR 201 …. 8.162 French v Queensland Premier Mines Pty Ltd [2006] VSCA 287 …. 5.57, 11.118 Friedman v Barrett; Ex parte Friedman [1962] Qd R 498 …. 5.96, 5.101C, 5.103 Frieze v Unger [1960] VR 230 …. 6.49, 6.63 Fuentes v Bondi Beachside Pty Ltd [2016] NSWSC 531 …. 4.60 Fulham Partners LLC v National Australia Bank Ltd (2013) 17 BPR 32,709; [2013] NSWCA 296 …. 7.10 Fulton v 523 Nominees Pty Ltd [1984] VR 200 …. 6.50, 6.80 Funds in Court; Application of Mango Credit Pty Ltd, Re [2016] NSWSC 199 …. 11.57, 11.58

Fyfe v Smith [1975] 2 NSWLR 408 …. 11.127 Fysh v Page (1956) 96 CLR 233 …. 11.73 Fyvie v Anand (1994) 6 BPR 13,743 …. 10.97

G G & A Lanteri Nominees Pty Ltd v Fishers Stores Consolidated Pty Ltd (2005) V ConvR 54-708 …. 8.144 G & C Kreglinger v New Patagonia Meat and Cold Storage Co Ltd [1914] AC 25 …. 11.44, 11.45C, 11.46, 11.48, 11.49, 11.50C, 11.53C, 11.55 Gallagher v Rainbow (1994) 179 CLR 624; 121 ALR 129; 68 ALJR 512 …. 9.20, 10.18, 10.32, 10.33C, 10.35C, 10.37 Galvasteel Pty Ltd v Monterey Building Pty Ltd (1974) 10 SASR 176 …. 5.168 Ganga Dhar v Shankar Lal (1958) 45 AIR 770 …. 11.45C Gangemi v Watson (1994) 11 WAR 505 …. 10.88 Gapes v Fish [1927] VLR 88; [1927] ALR 111 …. 10.3C, 10.5, 10.12 Garafano v Reliance Finance Corp Pty Ltd (1992) NSW ConvR ¶55-640 …. 5.106 Garcia v National Australia Bank Ltd [1998] HCA 48 …. 5.111, 5.112, 5.118 Gardner v Hodgson’s Kingston Brewery Co Ltd [1903] AC 229 …. 10.89 — v Moore [1984] AC 584 …. 6.72 Garofano v Reliance Finance Corp Pty Ltd (1992) 5 BPR 11,941; NSW ConvR ¶55-640 …. 5.39

Gas & Fuel Corporation of Victoria v Barba [1976] VR 755 …. 10.3C Gateway Developments Pty Ltd v Grech (1970) 71 SR (NSW) 161 …. 5.8 Geftakis v Maritime Services Board of New South Wales (Court of Appeal, 20 November 1987, unreported) …. 4.153C George v Biztole Corp Pty Ltd (1995) V ConvR 54-519 …. 5.172 — v Commercial Union Assurance Company of Australia Ltd (1977) 1 BPR 9649 …. 11.109C George Wimpey & Co Ltd v Sohn [1967] Ch 487 …. 2.92C, 2.93 Georgeski v Owners Corporation Strata Plan 49833 (2004) 62 NSWLR 534; 12 BPR 22,573 …. 1.28C, 1.31, 1.32, 8.23 Gerard Cassegrain & Co Pty Ltd v Cassegrain [2011] NSWSC 1156 …. 5.88 — v — (2013) 305 ALR 612 …. 5.88, 6.25 Gerraty v McGavin (1914) 18 CLR 152 …. 8.154 Gesmando v Anastasiou (1975) 1 BPR 9297 …. 1.106 Ghey and Galton’s Application, Re [1957] 2 QB 650 …. 9.92C Giacomi v Nashvying Pty Ltd (2008) Q ConvR ¶54-684; [2007] QCA 454 …. 8.156 Gibbons v Wright (1954) 91 CLR 423 …. 6.59 Gibbs v Messer [1891] AC 248 …. 5.37, 5.38, 5.39, 5.41C, 5.48C, 5.71, 5.72C, 5.101C Gibbs & Houlder Brothers & Co Ltd’s Lease, Re; Houdler Brothers & Co Ltd v Gibbs [1925] Ch 575; [1925] All ER Rep 128 …. 8.112, 8.114C

Gibson v Co-ordinated Building Services Pty Ltd (1989) 4 BPR 9630 …. 5.169 — v Dickie (1815) 3 M&S 463; 105 ER 684 …. 3.31C — v Gibson (1698) 2 Freeman 223; 22 ER 1173 …. 9.7C — v Kirk (1841) 1 QB 850; 113 ER 1357 …. 8.119 Gifford v Lord Yarborough (1828) 5 Bing 163; 130 ER 1023 …. 1.103 Gigi Entertainment Pty Ltd v Schmidt (2013) 17 BPR 32,611; [2013] NSWCA 287 …. 8.185 Gilbert-Ash (Northern) Ltd v Modern Engineering (Bristol) Ltd [1974] AC 689; [1973] 3 All ER 195 …. 8.207 Gilbert J McCaul (Aust) Pty Ltd v Pitt Club Ltd (1957) 59 SR (NSW) 122 …. 8.120 Giles and McConachy’s Lease, Re [1953] VLR 273 …. 8.110 Gill v Bucholtz (2009) 90 BCLR (4th) 276; [2009] BCCA 137 …. 5.46 — v Lewis [1956] 2 QB 1; [1956] 1 All ER 844 …. 8.166C, 8.173, 8.177, 8.197C Gillett v Holt [2001] Ch 210 …. 4.164C, 4.166C Ginelle Finance Pty Ltd v Diakakis [2002] NSWSC 1032 …. 5.105 Gissing v Gissing [1971] AC 886; [1970] 2 All ER 780 …. 4.111, 4.114, 4.116, 4.118, 4.128C Giumelli v Giumelli (1999) 196 CLR 101; 161 ALR 473; [1999] HCA 10 …. 4.134, 4.161, 4.162C, 4.163, 4.166C, 4.167, 4.171C Glandore Pty Ltd v Elders Finance and Investment Co Ltd (1984) 4 FCR

130 …. 11.111 Glasshouse Investments Pty Ltd v MPJ Holdings Pty Ltd [2005] NSWSC 456 …. 8.68, 8.81 Gledhill v Hunter (1880) 14 Ch D 492 …. 2.61C Glenwood Lumber Co v Phillips [1904] AC 405; [1904–07] All ER Rep 203 …. 8.23 Global Minerals Australia Pty Ltd v Valerica Pty Ltd (2000) 10 BPR 18,463 …. 5.169, 5.170 Glouftsis v Glouftsis (1987) 44 SASR 298 …. 4.133 Gnych v Polish Club Limited [2015] HCA 23 …. 8.39 Gobblers Inc Pty Ltd v Stevens (1993) 6 BPR 13,591 …. 4.70 Godecke v Kirwan (1973) 129 CLR 628; 1 ALR 457 …. 8.34 Goff v Albury Sailors, Soldiers and Airmen’s Club Ltd (1996) ANZ Conv R 166 …. 10.135 Gohl v Hender [1930] SAStRp 36; [1930] SASR 158 …. 10.42C Goldberg v Edwards [1950] Ch 247 …. 10.70 Goldcel Nominees Pty Ltd v Network Finance Ltd [1983] 2 VR 257 …. 11.87C Golden Mile Property Investments Pty Ltd (in liq) v Cudgegong Australia Pty Ltd [2015] NSWCA 100 …. 4.61 Golding v Tanner (1991) 56 SASR 482 …. 5.117, 10.84, 10.128, 10.129, 10.139, 10.140C, 10.141 Goldsworthy Mining Ltd v Commissioner of Taxation (Cth) (1973) 128

CLR 199; 47 ALJR 175 …. 8.23 Goodchild, Re [1996] 1 WLR 694 …. 4.166C Goodman v Gallant [1986] 1 All ER 311 …. 6.16 Gordon v Lidcombe Investments …. 8.69C Gorman (A Bankrupt), Re [1990] 1 WLR 616 …. 6.36C Government Insurance Office (NSW) v KA Reed Services Pty Ltd [1988] VR 829 …. 9.20 Government of the Islamic Republic of Iran v The Barakat Galleries Ltd [2009] QB 22; [2007] EWCA Civ 1374 …. 2.1 Goyal v Chandra (2006) 12 BPR 23,553; [2006] NSWSC 239 …. 7.5 Grafton v Griffin (1830) 1 Russ & M 336; 29 ER 130 …. 2.61C Graham v Aluma-Lite Products Pty Ltd (2006) NSW ConvR 56-156; [2006] NSWSC 476 …. 11.65 — v Commonwealth Bank of Australia (1988) ATPR ¶40-908 …. 11.111 — v Markets Hotel Pty Ltd (1943) 67 CLR 567 …. 8.104C, 8.107 — v Philcox [1984] QB 747; [1984] 2 All ER 621 …. 10.70, 10.111 Graham H Roberts Pty Ltd v Maurbeth Investments Pty Ltd [1974] 1 NSWLR 93 …. 1.22 Grainger v Williams [2005] WASC 286 …. 8.89 Granada Theatres Ltd v Freehold Investment (Leytonstone) Ltd [1959] Ch 592; [1959] 2 All ER 176 …. 8.137 Grant v Edwards [1986] Ch 638; [1986] 2 All ER 426; [1986] 3 WLR 114 …. 4.118, 4.140

— v Macdonald [1992] 5 WWR 577 …. 10.17C — v NZMC Ltd [1989] 1 NZLR 8 …. 8.206 —v YYH Holdings Pty Ltd [2012] NSWCA 360 …. 2.10C Gration v C Gillan Investments Pty Ltd [2005] 2 Qd R 267 …. 8.102 Great West Permanent Loan Co v Friesen [1925] AC 208 …. 5.48C, 5.165 Greco v Swinburne Ltd [1991] 1 VR 304 …. 5.132C Greek Macedonian Club Ltd v Pan Macedonian Greek Brotherhood NSW Ltd [2007] NSWSC 92 …. 8.168 Green v Ashco Horticulturist Ltd [1966] 2 All ER 232; [1966] 1 WLR 889 …. 10.70 — v Green (1989) 17 NSWLR 343; 13 Fam LR 336 …. 4.118, 4.133 — v Robinson (1995) 36 NSWLR 96 …. 4.139 — v Russell; McCarthy (Third Party) [1959] 2 QB 226 …. 5.101C — v Smith (1738) 1 Atk 573; 26 ER 360 …. 4.52C Greenfield v Greenfield (1979) 38 P & C R 570 …. 6.69 Greenwood v Bennett [1973] QB 195; [1972] 3 All ER 586 …. 2.24 Greenwood Village Pty Ltd v Tom the Cheap (WA) Pty Ltd [1976] WAR 49 …. 8.167 Greetings Oxford Koala Hotel Pty Ltd v Oxford Square Investments Pty Ltd (1989) 18 NSWLR 33 …. 8.80 Greig v Watson (1881) 7 VLR (Eq) 79 …. 11.23C Gregor v M’Gregor (1859) 1 De G F & J 63; 45 ER 282 …. 6.2E Gresley v Mousley (1859) 4 De G & J 78; 45 ER 31 …. 4.203C

Greville v Parker [1910] AC 335 …. 8.197C Grey v Inland Revenue Commissioners [1958] Ch 375 …. 4.101 — v — [1958] Ch 690 …. 4.101 — v — [1960] AC 1; [1959] 3 All ER 603 …. 4.100, 4.101, 4.102 Grgic v Australian and New Zealand Banking Group Ltd (1994) 33 NSWLR 202 …. 5.57, 5.62C, 5.82, 5.90, 5.100, 5.106, 5.107, 5.109 Griffith v Pelton [1958] Ch 205; [1957] 3 All ER 75 …. 8.127, 10.3C Griffiths v Northern Territory (2006) 165 FCR 300; [2006] FCA 903 …. 3.118 Grigsby v Melville [1972] 1 WLR 1355 …. 10.27C Grill v Hockey (1991) 5 BPR 11,421 …. 10.116 Groongal Pastoral Co Ltd (in liq) v Falkiner (1924) 35 CLR 157 …. 5.58, 11.118 Gross and the Conveyancing Act, Re [1965] NSWR 887 …. 9.108 Grose v St George Commercial Credit Corporation Ltd ((1991) NSW ConvR ¶55-586 …. 11.109C, 11.110 Grosse v Purvis [2003] QDC 151 …. 1.52, 1.54 Grundt v Great Boulder Pty Gold Mines Ltd (1937) 59 CLR 641; [1937] HCA 58 …. 4.151C, 4.166C Grundy v Ley [1984] 2 NSWLR 467 …. 5.58, 11.118 GS Fashions Ltd v B & Q plc [1995] 4 All ER 899 …. 8.162, 8.163 Guardian Mortgages Pty Ltd v Miller (2004) 12 BPR 22,833; [2004] NSWSC 1236 …. 11.97

Gumana v Northern Territory of Australia (2007) 158 FCR 349 …. 3.12, 3.91, 3.92, 3.100 Gumland Property Holdings Pty Ltd v Duffy Bros Fruit Market (Campbelltown) Pty Ltd (2008) 234 CLR 237; 244 ALR 1 …. 5.57, 8.148, 8.189, 8.190C, 8.191 Gunnion v Ardex Acceptance Corp Pty Ltd [1968] VR 547 …. 11.130 Guss v Geelong Building Society (in liq) [2001] VSC 37 …. 11.87C Guthrie v ANZ Banking Group Ltd (1991) 23 NSWLR 672 …. 6.61, 6.50, 6.62, 6.74 Gyarfas v Bray (1989) 4 BPR 9736 …. 9.61, 9.62C, 9.92C

H H, AE (No 2), Re [2012] SASC 177 …. 1.42 H H Halls Ltd v Lepouris (1964) 82 WN (NSW) (Pt 2) 87 …. 5.229 HA Warner Pty Ltd v Williams (1945) 73 CLR 421 …. 8.27 Hace Corp Pty Ltd v F Hannan (Properties) Pty Ltd (1995) 7 BPR 14,326 …. 8.157, 8.174 Haddersley v Adams (1856) 22 Beav 266; 52 ER 1110 …. 6.6E Hadley v London Bank of Scotland (1865) 3 De GJ & S 63; 46 ER 562 …. 4.52C Haig v Chesney [1925] SASR 82 …. 8.69C Hagan v Waterhouse (1991) 34 NSWLR 308 …. 4.104C Hale v Dobbie (1996) ANZ Conv R 152 …. 10.107 Hall v Busst (1960) 104 CLR 206; [1961] ALR 508; [1960] HCA 84 ….

7.2C, 7.3, 7.4, 7.5, 7.6, 7.7, 7.8, 7.10, 7.11, 7.12 Halsall v Brizell [1957] Ch 169; [1957] 1 All ER 371 …. 9.19, 9.20, 9.21 Hamble Parish Council v Haggard [1992] 4 All ER 147; [1992] 1 WLR 122 …. 10.5 Hamilton v Geraghty (1901) 1 SR (NSW) Eq 81 …. 4.158 — v Joyce [1984] 3 NSWLR 279 …. 10.82, 10.87, 10.91 — v Porta [1958] VR 247; [1958] 65 ALR 620 …. 1.10 Hamilton Ice Arena Ltd v Perry Developments Ltd [2002] 1 NZLR 309 …. 205C Hamilton Island Enterprises v Boss [2010] 2 Qd R 115; [2009] QCA 229 …. 8.114C Hamilton-Snowball’s Conveyance, Re [1959] Ch 308; [1958] 2 All ER 319 …. 4.65 Hammond, Re [2015] VSC 608 …. 9.88, 9.89 Hamps v Derby [1948] 2 KB 311; [1948] 2 All ER 474 …. 4.5 Hampshire v Wickens (1878) 7 Ch D 555 …. 8.34 Hamwood v Murdoch [2010] NTSC 62 …. 11.64 Hanak v Green [1958] 2 QB 9 …. 8.201C Hanbury v Jenkins [1901] 2 Ch 401 …. 10.5 Handberg v MIG Property Services Pty Ltd [2010] VSC 388 …. 5.188 Hannah v Peel [1945] KB 509 …. 2.34C Hansford v Jago [1921] Ch 322; [1920] All ER Rep 580 …. 10.63 Hanson Construction Materials Pty Ltd v Roberts [2016] NSWCA 240 ….

5.174 Haque v Haque (No 2) (1965) 114 CLR 98 …. 4.52C Harada v Registrar of Titles [1981] VR 743 …. 10.5, 10.27C Hardebol v Perpetual Trustee Co Ltd [1975] 1 NSWLR 221 …. 7.30 Harding v National Insurance Co (1871) 2 AJR 67 …. 1.89 Hargrave v Goldman (1963) 110 CLR 40 …. 8.69C Harmer v Jumbil (Nigeria) Tin Areas Ltd [1921] 1 Ch 200 …. 8.64, 8.69C — v Pearson [1993] ACL Rep 430 Qld 1 …. 4.133 Harrigan v Brown [1967] 1 NSWR 342 …. 1.21 Harrington-Smith on behalf of the Wongatha People v Western Australia (No 9) [2007] FCA 31 …. 3.101, 3.108 Harris v Commissioner for Social Housing (2013) 8 ACTLR 98 …. 8.71 — v De Pinna (1886) 33 Ch D 238 …. 10.44 — v Goddard [1983] 3 All ER 242; [1983] 1 WLR 1203 …. 6.67 — v King (1936) 56 CLR 177 …. 7.35, 7.39 — v Smith [2008] NSWSC 545 …. 5.110, 5.114 — v Walker (1969) 14 FLR 167 …. 6.74 — v Western Australian Exim Corporation (1995) 129 ALR 387 …. 11.111 Harrison, Ainslie & Co v Muncaster [1891] 2 QB 680 …. 8.69C, 8.72 Harrow London Borough Council v Johnstone [1997] 1 All ER 929; [1997] 1 WLR 459 …. 6.51 Hart, Re [1954] SASR 1 …. 3.38 Hart v Windsor (1843) 12 M & W 68; 152 ER 1114; [1843–60] All ER Rep

68 …. 8.76 Harvey v McWatters (1948) 49 SR (NSW) 173 …. 11.109C, 11.113 Haselhurst v Elliott [1945] VLR 153 …. 8.32 Haskell v Marlow [1928] 2 KB 45 …. 8.99, 8.100 Haslam v Money for Living (Aust) Pty Ltd (2008) 172 FCR 301 …. 8.17 Hassell, Re Will of (1940) 43 WALR 36 …. 7.56 Hawkesbury Nominees Pty Ltd v Battik Pty Ltd [2000] FCA 185 …. 8.68 Hawkesbury Valley Developments Pty Limited v Custom Credit Corporation Ltd (Supreme Court of New South Wales, 7 February 1990 unreported) …. 11.109C, 11.113 Hayes v Adamson [1972] WAR 116 …. 4.98 — v Gunbola Pty Ltd (1986) 4 BPR 97,263 …. 8.168, 8.169, 8.176, 8.197C — v O’Sullivan (2001) 24 WAR 40; [2001] WASC 55 …. 5.169 — v Seymour-Johns (1981) 2 BPR 9366 …. 5.140, 8.119 Haynes Case (1614) 12 Co Rep 113 …. 1.40 Hayward v Challoner [1968] 1 QB 107; [1967] 3 All ER 122 …. 2.119 — v Skinner [1981] 1 NSWLR 590 …. 6.82, 6.83, 6.84 Haywood v Brunswick Permanent Benefit Building Society (1881) 8 QBD 403 …. 9.16C, 9.40 Headland Developments Pty Ltd v Bullen [1975] 2 NSWLR 309 …. 7.66 — v — [1976] ACLD 805 …. 7.66 Healey v Hawkins [1968] 3 All ER 836; [1968] 1 WLR 1967 …. 10.89 Heath, Re [1936] Ch 259 …. 7.27

Hedley v Roberts [1977] VR 282 …. 6.50, 10.27C, 10.49 Heid v Connell Investments Pty Ltd (1987) 9 NSWLR 628 …. 5.225C — v Reliance Finance Corp Pty Ltd (1983) 154 CLR 326; 49 ALR 229 …. 4.198, 4.200, 5.184, 5.187, 5.188, 5.192C, 5.193, 5.194C, 5.201 Heidke v Sydney City Council (1952) 52 SR (NSW) 143 …. 1.20, 1.22 Hemmes Hermitage Pty Ltd v Abdurahman (1991) 22 NSWLR 343 …. 10.123 Hemmings v Stoke Poges Golf Club Ltd [1920] 1 KB 720; [1918–19] All ER Rep 798 …. 2.61C, 2.64, 2.65 Hender v Gohl [1928] SAStRp 63; [1928] SASR 325 …. 10.42C Henderson v Eason (1851) 17 QB 701; 117 ER 1451 …. 6.42, 6.44 Henry v Henry [2010] 1 All ER 988 …. 4.165, 4.166C, 4.167 Henry, Ex parte; Commissioner of Stamp Duties, Re [1963] NSWR 1079; (1963) 63 SR (NSW) 298 …. 10.146 Henry Roach (Petroleum) Pty Ltd v Credit House (Vic) Pty Ltd [1976] VR 309 …. 11.87C, 11.101, 11.113 Hepworth v Hepworth (1963) 110 CLR 309 …. 4.118, 4.123C Heseltine v Heseltine [1971] All ER 752; [1971] 1 WLR 342 …. 4.116 Heslop v Burns [1974] 3 All ER 406; [1974] 1 WLR 1241 …. 8.27, 8.28 Heyman v Darwins Ltd [1942] AC 356 …. 8.47C Hibbert v McKiernan [1948] 2 KB 142 …. 2.34C Highwater Nominees Pty Ltd v Mead [2006] WASC 17 …. 8.206 Higgins v Wingfield [1987] VR 689 …. 4.120

Higgs v Nassauvian Ltd [1975] AC 464 …. 2.102 Highmist Pty Ltd v Tricare Australia Ltd [2005] QCA 357 …. 10.144 Highway Properties Ltd v Kelly (1971) 17 DLR (3d) 710 …. 8.183C Higton Enterprises Pty Ltd v BFC Finance Ltd [1997] 1 Qd R 168 …. 11.91 Hilderbrandt v Stephen [1964] NSWR 740 …. 9.89 Hill v C A Parsons & Co Ltd [1972] Ch 305; [1971] 3 All ER 1345 …. 1.22 — v Harris [1965] 2 QB 601; [1965] 2 All ER 358 …. 8.78, 8.79 — v Lyne (1893) 14 LR (NSW) 449 …. 1.103, 1.107 Hillpalm Pty Ltd v Heaven’s Door Pty Ltd (2004) 220 CLR 472; 211 ALR 588; [2004] HCA 59 …. 5.157 Hilton v Gray [2007] QSC 401 …. 5.57, 5.82, 5.83 Hinds v Uellendahl (No 2) (1992) 112 FLR 222 …. 5.102 Hine v Hine [1962] 3 All ER 345 …. 4.113 Hinton v Fawcett [1957] SASR 213 …. 8.158 Hircock v Windsor Homes (Development No 3) Pty Ltd [1979] 1 NSWLR 501 …. 6.25 Hirst v New Zealand Insurance Co Ltd [1981] VR 571 …. 4.64 Hobson v Gorringe [1897] 1 Ch 182; [1895–9] All ER Rep 1231 …. 1.80C, 1.83, 1.84, 11.2 Hocking v Western Australia Bank (1909) 9 CLR 738 …. 8.212 Hockley v Rendell (1909) 11 WALR 170 …. 3.38 Hodgson v Marks [1971] Ch 892; [1971] 2 All ER 684 …. 4.191

Hogarth v Jackson (1827) 2 C & P 595; Mood & M 58; 173 ER 1080 …. 2.4, 4.5 Hohol v Hohol [1981] VR 221; [1980] FLC 90-824 …. 4.118 Holden v Blaiklock [1974] 2 NSWLR 262 …. 8.157 Holding & Management Ltd v Property Holding & Investment Trust plc [1990] 1 All ER 938; [1990] 1 EGLR 65 …. 8.96 Holland v Hodgson (1872) LR 7 CP 328; [1861–73] All ER Rep 237 …. 1.80C, 1.88 Hollins v Verney (1884) 13 QBD 304 …. 10.90 Holt v Heatherfield Trust Ltd [1942] 2 KB 1 …. 8.142C Holus Bolus Pty Ltd v Wicko Pty Ltd [2012] NSWSC 497 …. 8.101 Homebush Abattoir Corporation v Bermria Pty Ltd (1991) 22 NSWLR 605 …. 8.80 Honeybone v National Bank of New Zealand (1890) 9 NZLR 102 …. 5.180C Hong Kong and Shanghai Banking Corp v Kloeckner & Co AG [1990] 2 QB 514; [1989] All ER 513 …. 8.206 Honner v Ashton (1979) 1 BPR 9478 …. 8.183C Honywood v Honywood (1874) LR 18 Eq 306 …. 3.38 Hooke v Holland [1984] WAR 16 …. 5.177, 5.178, 5.179 Hooper v Australia & New Zealand Banking Group Ltd (1996) 5 Tas R 398 …. 5.173 Hopkinson v Rolt (1861) 9 HL Cas 514; 11 ER 829 …. 11.31C, 11.32,

11.34, 11.36, 11.37 Hopper v Corp of Liverpool (1944) 88 Sol J 213 …. 7.64 Horn v Cole 51 NH 287; 12 Am Rep 111 (1868) …. 4.166C Hornsby Council v Roads and Traffic Authority (1997) 41 NSWLR 151 …. 10.147C Horrocks v Forray [1976] 1 All ER 737; [1976] 1 WLR 230 …. 4.117C Horsey Estate Ltd v Steiger [1899] 2 QB 79; [1895–99] All ER Rep 515 …. 8.154 Horsley v Phillips Fine Art Auctioneers Pty Ltd (1995) 7 BPR 14,360 …. 2.8 Horton v Public Trustee [1977] 1 NSWLR 182 …. 4.119 Horvath v Commonwealth Bank of Australia [1999] 1 VR 643 …. 5.53, 5.154C, 5.155 Hosking v Haas (No 2) [2009] NSWSC 1328 …. 9.117, 9.118 — v Runting [2005] NZLR 1 …. 1.53, 1.54 Houghton v Immer (No 155) Pty Ltd (1997) 44 NSWLR 46 …. 6.47 Houison v Metropolitan Mutual Permanent Building and Investment Association Ltd (1899) 20 LR (NSW) 316 …. 8.32 Houlder Bros & Co v Gibbs [1925] Ch 198 …. 8.112 House v Caffyn [1922] VLR 711 …. 4.111 Household Realty Corp Ltd v Liu (2005) 261 DLR (4th) 679 …. 5.46 Howard v Fanshawe [1895] 2 Ch 581; [1895–99] All ER Rep 855 …. 8.167 — v Miller [1915] AC 318 …. 4.52C

— v Pickford Tool Co Ltd [1951] 1 KB 417 …. 8.188 Howard E Perry and Co v British Railway Board [1980] 1 WLR 1375 …. 2.9 Howell v Bradford 570 So 2d 643 (1990) …. 6.33C Hoyt’s Pty Ltd v Spencer (1919) 27 CLR 133 …. 8.47C Hudson v Cripps [1896] 1 Ch 265 …. 8.59 — v Viney [1921] 1 Ch 98 …. 4.181 Hughes v Metropolitan Railway Co (1877) 2 App Cas 439 …. 4.147C, 4.151C — v NLS Pty Ltd [1966] WAR 100 …. 8.183C Humphries v Southern Cross Ski Club [2012] VSC 232 …. 1.22 Hunt v Luck [1902] 1 Ch 428; [1900–3] All ER Rep 275 …. 4.70, 4.142, 4.188C, 4.190, 5.194C — v Luengo [1991] ACL Rep 395 Vic 7 …. 4.118 Hunter v Canary Wharf Ltd [1997] AC 655 …. 10.49 Hunter’s Lease, Re; Giles v Hutchings [1942] Ch 124; [1942] 1 All ER 27 …. 8.127, 8.141C Hurst v Picture Theatres Ltd [1915] 1 KB 1; [1914–15] All ER Rep 836 …. 1.18C Hutton v Watling [1948] Ch 26 …. 7.66 Hyde v Holland [2003] NSWSC 733 …. 3.32 — v Pearce [1982] 1 All ER 1029 …. 2.105 Hyman v Rose [1911] 2 KB 234; [1912] AC 623; [1911–13] All ER Rep

238 …. 8.172, 8.175, 8.176

I IAC (Finance) Pty Ltd v Courtenay (1963) 110 CLR 550; [1964] ALR 971 …. 5.69, 5.138C, 5.139, 5.181, 5.200C, 5.201, 5.203 ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248 …. 11.112 IGA Distribution Pty Ltd v King & Taylor Pty Ltd [2002] VSC 440 …. 5.193 Imray v Oakshette [1897] 2 QB 218 …. 8.179 In Roma Pty Ltd v Adams [2012] QCA 347 …. 4.29 India v Florlim Pty Ltd [2003] SASC 161 …. 8.184 Indigenous Business Australia v Kani [2012] NTSC 24 …. 11.64 Industrial Acceptance Corp Ltd v Tarulli [1974] WAR 125 …. 11.118 Industrial Properties (Barton Hill) Ltd v Associated Electrical Industries Ltd [1977] QB 580; [1977] 2 All ER 293 …. 8.33, 8.51 Inglewood Investments Co Ltd v Baker [2003] 2 P & CR 319 …. 2.94 Inglis v Commonwealth Trading Bank of Australia (1972) 126 CLR 121 …. 11.101, 11.109C, 11.113 Ingram v Ingram [1941] VLR 95 …. 4.112, 6.16 Inland Revenue Commissioners v Derby [1914] 3 KB 1186 …. 8.37C International Drilling Fluids Ltd v Louisville Investments (Uxbridge) Ltd [1986] Ch 513; [1986] 1 All ER 321 …. 8.113, 8.114C International Factors Ltd v Rodriguez [1979] QB 351 …. 2.16

International News Services v Associated Press 248 US 215 (1918); 63 L Ed 211 …. 1.46C, 1.47 International Tea Stores Co v Hobbs [1903] 2 Ch 165; [1900–3] All ER Rep 303 …. 10.70 Investec Bank (Australia) Ltd v Glodale Pty Ltd (2009) 256 ALR 104; [2009] VSCA 97 …. 11.93 Inwards v Baker [1965] 2 QB 29; [1965] 1 All ER 446 …. 4.140, 4.141C, 4.144, 4.145, 4.146, 4.151C, 4.157 Irani v St George Bank Ltd (No 2) [2005] VSC 403 …. 11.82 Isaac v Hotel de Paris Ltd [1960] 1 All ER 348 …. 8.26, 8.28

J J A McBeath Nominees Pty Ltd v Jenkins Development Corporation [1992] 2 Qd R 121 …. 8.112, 8.113, 8.114C J & C Reid Pty Ltd v Abau Holdings Pty Ltd [1988] NSW ConvR ¶55-416 …. 8.189 J & H Just (Holdings) Pty Ltd v Bank of New South Wales (1970) 92 WN (NSW) 803 …. 5.185C — v — (1971) 125 CLR 546; [1972] ALR 323 …. 4.198, 5.48C, 5.181, 5.185C, 5.186, 5.187, 5.188, 5.191, 5.194C, 5.201, 11.30 J Lyons & Sons v Wilkins [1899] 1 Ch 255 …. 1.46C J & S Chan Pty Ltd v McKenzie [1994] ANZ ConvR 610 …. 8.188 J Sainsbury plc v Enfield London B C [1989] 2 All ER 817 …. 9.54, 9.57 J Wright Enterprises Ltd (in liq) v Port Ballidu Pty Ltd [2010] QSC 213 ….

5.95 JA Pye (Oxford) Ltd v Graham [2003] AC 419 …. 2.76, 2.81, 2.92C, 2.93 — v United Kingdom [2005] ECHR 921 …. 1.63, 2.81 JA Pye (Oxford) Ltd and JA Pye (Oxford) Land Ltd v United Kingdom [2007] ECHR 700 …. 1.63 Jackson, Re (1887) 34 Ch D 732 …. 6.15 Jackson v Crosby (No 2) (1979) 21 SASR 280 …. 4.148 — v Horizon Holidays Ltd [1975] 3 All ER 92 …. 1.16 Jacobs v Greig [1956] VLR 597 …. 9.89 — v Platt Nominees Pty Ltd [1990] VR 146 …. 5.169, 5.188, 5.189 — v Seward (1872) LR 5 HL 464 …. 6.36C Jaffe v Premier Motors Ltd [1960] NZLR 146 …. 11.63C Jager v Jager 136 NJ Eq 379; 42 A 2d 201 (1945) …. 6.33C Jaggard v Sawyer [1995] 1 WLR 269 …. 1.73 James v Hutton and J Cook and Sons Ltd [1950] 1 KB 9 …. 8.108 — v Plant (1826) 4 Ad & E 749 …. 9.92C — v Registrar-General (1967) 69 SR (NSW) 361; [1968] 1 NSWR 310 …. 10.117, 10.121, 10.130 — v Stevenson [1893] AC 162 …. 10.107, 10.118 Jancso v Vuong (1988) 12 Fam LR 615 …. 4.131 Jango v Northern Territory (2006) 152 FCR 150 …. 3.107, 3.118 Janos v Chama Motors Pty Ltd [2011] NSWCA 238 …. 8.185 Jarvis v Duke (1681) 1 Vern 19; 23 ER 274 …. 3.35

— v Swan Tours [1973] QB 233 …. 1.16 — v Williams [1955] 1 All ER 108 …. 2.16 Jaswil Properties Pty Ltd (atf Jaswil Units Trust) v Barrak Corporation Pt Ltd [2015] NSWSC 391 …. 4.58 JC Berndt Pty Ltd v Walsh [1969] SASR 34 …. 8.60, 8.69C JC Williamson Pty Ltd v Lukey and Mulholland (1931) 45 CLR 282; [1931] ALR 157 …. 1.21, 1.22, 4.42C Jeans West Corporation Pty Ltd v JWD Pty Ltd (in liq) (1991) 4 ACSR 689 …. 11.110 Jee v Audley (1787) 1 Cox Eq Cas 324; 29 ER 1186 …. 7.40 Jeffries v Great Western Railway Co (1856) 5 El & Bl 802; 119 ER 680 …. 2.13C, 2.14, 2.15, 2.17, 2.18, 2.21C, 2.22 Jelbert v Davis [1968] 1 All ER 1182; [1968] 1 WLR 589 …. 10.38, 10.111 Jelley v Buckman [1974] QB 488; [1973] 3 All ER 853 …. 8.149 Jenkins v Levinson (1929) 29 SR (NSW) 151 …. 8.94 — v Wynen [1992] 1 Qd R 40 …. 4.131 Jenner v Turner (1880–81) 16 Ch D 188 …. 3.35 Jennings v Rice [2003] 1 P & CR 100 …. 4.166C — v Ward (1705) 2 Vern 520; 23 ER 935 …. 11.45C Jeogla Pty Ltd v ANZ Banking Group Ltd (1999) 150 FLR 359 …. 11.92 Jessica Holdings Pty Ltd v Anglican Property Trust Diocese of Sydney (1992) 27 NSWLR 140 …. 5.169 Jigrose Pty Ltd, Re [1994] 1 Qd R 382 …. 2.43, 2.44

JNM Pty Ltd v Adelaide Banner Pty Ltd [2009] VSC 237 …. 2.102 Jobson v Nankervis (1943) 44 SR (NSW) 277 …. 10.121, 10.140C, 10.143, 10.144 John F Goulding Pty Ltd v Victorian Railways Commissioners (1932) 48 CLR 157; [1932] HCA 37 …. 2.10C John Nitschke Nominees Pty Ltd v Hahndorf Golf Club Inc (2004) 88 SASR 334; [2004] SASC 128 …. 7.2C, 8.85 Johnson v Wyatt (1863) 2 De G J & S 18; 46 ER 281 …. 1.46C Johnson, Re [2000] 2 Qd R 502 …. 2.89 Johnston v O’Neill [1911] AC 552 …. 2.52C Johnston & Halliday v Halliday [1984] ANZ ConvR 652 …. 7.6 Johnstone v Holdway [1963] 1 QB 601; [1963] 1 All ER 432 …. 10.3C Johnstone’s Estate, Re [1973] Qd R 347; (1973) 22 FLR 291 …. 6.67, 6.74 Jones v Bartlett (2000) 205 CLR 166 …. 8.80, 8.82, 8.83C, 8.84, 8.85, 8.86C — v Carter (1846) 15 M & W 718; 153 ER 1040 …. 8.161C, 8.163, 8.164, 8.183C — v De Marchant (1916) 28 DLR 561 …. 2.10C — v Jones [1977] 1 WLR 438 …. 6.30 — v Lavington [1903] 1 KB 253 …. 8.75 — v Lock (1865) 1 Ch App 25 …. 4.79 — v Maynard [1951] Ch 572; [1951] 1 All ER 802 …. 4.113 — v Morgan [2001] EWCA Civ 995 …. 11.45C, 11.55

— v Price [1965] 2 QB 618; [1965] 2 All ER 625; [1965] 3 WLR 296 …. 10.48 — v Pritchard [1908] 1 Ch 630 …. 10.28, 10.49 — v Sherwood Hills Pty Ltd (SC Waddell J, 8 July 1975, unreported) …. 9.59, 9.95 Jonns v Tan (1999) 9 BPR 17,113 …. 7.4 Jonray (Sydney) Pty Ltd v Partridge Bros Pty Ltd (1969) 89 WN (NSW) (Pt 1) 568; [1969] 1 NSWR 621 …. 5.181, 5.201, 5.202, 5.204, 5.206 Jonton Pty Ltd, Re [1992] 2 Qd R 105 …. 4.129, 4.205 Jordan v Holkham (1753) Amb 209; 27 ER 139 …. 3.35 Jorden v Money (1854) 5 HLC 185; 10 ER 868 …. 4.151C Joseph Abraham Pty Ltd v Emelin [1960] NSWR 362 …. 8.29 Josephson v Mason (1912) 12 SR (NSW) 249 …. 5.134, 5.138C Jourdain v Wilson [1821] 4 B & Ald 266 …. 8.127 Jovanovic v Commonwealth Bank of Australia (2004) 87 SASR 570 …. 11.92, 11.93 Joyner v Weeks [1891] 2 QB 31 …. 8.107, 8.108 JS and GP, Re (2006) 35 Fam LR 88 …. 4.103 Junghenn v Wood [1958] SR (NSW) 327 …. 5.56

K Kara v Kara and Holman [1948] P 287 …. 8.166C Karacominakis v Big Country Developments Pty Ltd (2000) 10 BPR 18,235; [2000] NSWCA 313 …. 5.54, 5.56, 8.129, 8.131, 8.135

Karaggianis v Malltown Pty Ltd (1979) 21 SASR 381 …. 8.94 Kardynal v Dodek [1980] FLC 90-823 …. 4.119 Karpany v Dietman (2013) 252 CLR 507 …. 3.123 Katakouzinas v Roufir Pty Ltd (1999) 9 BPR 17,303 …. 10.98 Kater v Kater (No 3) [1964] NSWR 987 …. 8.214 Katsaitis v Commonwealth Bank of Australia (1987) 5 BPR 12,049 …. 5.62C Kavanaugh v Cohoes Power & Light Corp 187 NYS 216 (1921) …. 3.111C Kay, Re [1969] SASR 1 …. 5.148 Kay v Lambeth London Borough Council [2004] 3 WLR 1396 …. 8.51 — v South Eastern Sydney Area Health Service [2003] NSWSC 292 …. 3.35 Kay’s Leasing Corp Pty Ltd v CSR Provident Fund Nominees Pty Ltd [1962] VR 429 …. 1.80C, 1.83, 4.197 Kearry v Pattinson [1939] 1 KB 471; [1939] 1 All ER 65 …. 4.5 Kebewar Pty Ltd v Harkin (1987) 9 NSWLR 738; 63 LGRA 412 …. 10.97 Keddell v Regarose Pty Ltd [1995] 1 Qd R 172 …. 5.223 Keene v Carter (1994) 12 WAR 20 …. 2.43 Keitley, Re [1992] 1 VR 583 …. 6.72 Kelly v Battershell [1949] 2 All ER 830 …. 8.69C Kemp v Lumeah Investments Pty Ltd (1983) 3 BPR 97,175; (1984) NSW ConvR ¶155-162 …. 8.39, 8.42, 8.157 Kennedy v De Trafford [1896] 1 Ch 762; [1897] AC 180 …. 11.76, 11.78,

11.89 — v — [1897] AC 180; [1895–9] All ER Rep 408 …. 4.203C — v General Credits Ltd (1982) 2 BPR 9456 …. 11.109C, 11.127, 11.131 Kenny v Preen [1963] 1 QB 499 …. 8.59 Keppell v Bailey (1834) 2 M & K 517; 39 ER 1042 …. 1.30E, 9.30C, 9.31 Kerabee Park Pty Ltd v Daley [1978] 2 NSWLR 222 …. 5.172, 5.174, 5.175, 11.35 Kerridge v Foley [1964–65] NSWR 1958; (1964) 82 WN (NSW) (Pt 293 …. 9.66, 9.91, 9.92C, 9.122 Khoury v Khouri (2006) 66 NSWLR 241; [2006] NSWCA 184 …. 4.46, 4.105 Kiao v West (1985) 159 CLR 550 …. 1.62 Kidner v Department of Social Security (1993) 18 AAR 545 …. 4.53 Kierford Ridge Pty Ltd v Ward [2005] VSC 215 …. 2.108, 2.111 King v David Allen & Sons, Billposting Ltd [1916] 2 AC 54; [1916–17] All ER Rep 268 …. 1.24C, 1.29, 1.31, 8.28, 10.29, 10.51 — v Northern Territory [2007] FCA 944 …. 3.116 — v Smail [1958] VR 273 …. 5.69, 5.70C, 5.71, 5.72C, 5.74 King dec’d, Re [1963] Ch 459 …. 8.142C, 8.144 King Investment Solutions Pty Ltd v Hussain (2005) 64 NSWLR 441; [2005] NSWSC 1076 …. 11.97 Kingsnorth Trust Ltd v Tizard [1986] 2 All ER 54 …. 4.192 Kingswood Estate Co Ltd v Anderson [1963] 2 QB 169; [1962] 3 All ER

593 …. 4.43, 4.44, 4.71, 4.75 Kinjella Pty Ltd v Jay (1996) ATPR ¶42-433 …. 11.111 Kintominas v Secretary, Department of Social Security (1991) 103 ALR 82 …. 4.145 Kirby v Cowderoy [1912] AC 599 …. 2.52C KLDE Pty Ltd v Commissioner of Stamp Duties (1984) 155 CLR 288; 56 ALR 337 …. 4.53 Knight v Gould (1833) 2 My & K 295; 39 ER 956 …. 6.21C Knightsbridge Estates Trust Ltd v Byrne [1939] 1 Ch 441; [1938] 2 All ER 444 …. 11.44 Knockholt Pty Ltd v Graff [1975] Qd R 88 …. 8.202 Kogarah Municipal Council v Golden Paradise Corporation (2005) 12 BPR 23,651 …. 1.10, 5.157 Kohua Pty Ltd v Tai Ping Trading Pty Ltd (1986) 3 BPR 9705 …. 8.61 Koompahtoo Local Aboriginal Land Council v KLALC Property & Investment Pty Ltd [2008] NSWCA 6 …. 5.156 Kort Pty Ltd v Shaw [1983] WAR 113 …. 9.104 Kostis v Devitt (1979) 1 BPR 9231 …. 1.106, 10.139, 10.140C Kranz v National Australia Bank Ltd (2003) 8 VR 310 …. 5.111 KT and T Developments Pty Ltd v Tay (1995) 13 WAR 363 …. 4.129, 4.131 Kuckucka v Kuckucka (1980) 48 FLR 282 …. 4.205 Kumar v Dunning [1989] QB 193; [1987] 2 All ER 801 …. 8.148

Kusel v Watson (1879) 11 Ch D 129 …. 8.15C Kushner v Law Society [1952] 1 KB 264; [1952] 1 All ER 404 …. 8.32 Kuwait Airways Corp v Iraqi Airways Co [2002] UKHL 19; [2002] 2 AC 883 …. 2.8 KY Enterprises Pty Ltd v Darby [2013] VSC 484 …. 2.95 Kyren Pty Ltd v Cinema Place Pty Ltd (2006) 244 LSJS 142; [2006] SASC 93 …. 10.40

L Lac Minerals Ltd v International Corona Resources (1989) 61 DLR (4th) 14 …. 4.134 Lace v Chantler [1944] KB 368; [1944] 1 All ER 305 …. 5.132C, 8.14, 8.15C Ladies’ Hosiery and Underwear Ltd v Parker [1930] 1 Ch 304 …. 8.37C Ladies Sanctuary v Parramatta (1997) 7 BPR 15,156 …. 8.176 Lake v Bayliss [1974] 1 WLR 1073 …. 4.52C — v Craddock (1732) 3 P Wms 158; 24 ER 1011 …. 6.14, 6.15 Lakhani and Weinstein, Re (1980) 118 DLR (3d) 61 …. 9.74 Lamshed v Lamshed (1963) 109 CLR 453 …. 1.21 — v Plakakis (1988) 47 SASR 316 …. 11.66, 11.128 Lancaster v Lloyd (1927) 27 SR (NSW) 379 …. 10.63 Land Tax Act, Re; Ex parte Finlay (1884) 10 VLR (E) 68 …. 5.69 Landale v Menzies (1909) 9 CLR 89 …. 3.19, 8.19 Lane Cove Municipal Council v Hurdis Pty Ltd (1955) 55 SR (NSW) 434

…. 9.37 Lang v Asemo Pty Ltd [1989] VR 747 …. 8.148 Lang Parade Pty Ltd v Peluso [2006] 1 Qd R 42 …. 1.71 Langdale Pty Ltd v Sollas [1959] VR 634 …. 9.61 Langley v Foster (1909) 10 SR (NSW) 54 …. 8.197C Lansen v The Honourable Justice Olney (acting as Aboriginal Land Commissioner) (1999) 169 ALR 49 …. 5.51 Lanyon Pty Ltd v Canberra Washed Sand Pty Ltd (1966) 115 CLR 342 …. 1.108 Lapin v Abigail (1930) 44 CLR 166; [1930] ALR 178 …. 4.198, 4.201, 5.48C, 5.180C, 5.181, 5.185C, 5.194C Lardil Peoples v Queensland [2004] FCA 298 …. 3.91, 3.100 Larke Hoskins & Co Ltd v Icher (1929) 29 SR (NSW) 142 …. 8.37C, 8.43 Last v Rosenfeld [1972] 2 NSWLR 923 …. 4.95C, 4.117C, 4.118 Latec Investments Ltd v Hotel Terrigal Pty Ltd (in liq) (1965) 113 CLR 265; [1966] ALR 775 …. 4.203C, 4.204, 4.205, 4.206, 4.208, 4.209, 4.210C, 4.211, 4.212, 4.213, 5.48C, 5.98, 5.101C, 5.171, 5.196, 11.2, 11.73, 11.99C, 11.101, 11.104, 11.105 Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 623; 85 ALR 183; 63 ALJR 372 …. 8.196 Lavender v Betts [1942] 2 All ER 72 …. 8.59, 8.63 Lawrence v Maple Trust Co and Wright (2007) 51 RPR (4th) 1; 84 OR (3d) 94; 220 OAC 19 …. 5.46, 5.49

Lawton v SHEV Pty Ltd (1969) 89 WN (NSW) (Pt 1) 635 …. 9.89 Laybutt v Amoco Australia Pty Ltd (1974) 132 CLR 57 …. 4.210C Layton v Martin [1986] 2 FLR 227 …. 4.164C Le Compte v Public Trustee [1983] 2 NSWLR 109 …. 4.122 Leake v Bruzzi [1974] 1 WLR 1528 …. 6.36C Leaver, Re [1997] 1 Qd R 55 …. 6.10 Leda Commercial Properties v DHK Retailers Pty Ltd (1992) 111 FLR 81 …. 8.189 Lee v Ferno Holdings Pty Ltd (1992) 33 NSWLR 404 …. 8.50 — v K Carter Ltd [1949] 1 KB 85; [1948] 2 All ER 690 …. 8.112 — v Ross (No 2) (2003) 11 BPR 20,991; [2003] NSWSC 507 …. 5.178 Lee-Parker v Izzet [1971] 3 All ER 1099; [1971] 1 WLR 1688 …. 8.201C, 8.203 Legione v Hateley (1983) 152 CLR 406; 46 ALR 1 …. 4.57C, 4.151C, 8.178, 8.198 Leicester, Earl of v Wells-Next-The-Sea Urban District Council [1973] Ch 110; [1972] 3 All ER 77 …. 9.89 Leichhardt Municipal Council v Montgomery (2007) 233 ALR 200 …. 8.85 Leigh v Dickeson (1884) 15 QBD 60 …. 6.31, 6.44 — v Taylor [1902] AC 157 …. 1.81, 1.82 Leitz Leeholme Stud Pty Ltd v Robinson (1977) 2 NSWLR 544 …. 8.39, 8.47C, 8.48, 8.49, 8.183C Lemon and Davies’ Contract, Re [1919] VLR 481 …. 5.8

Lend Lease Development Pty Ltd v Zemlicka (1985) 3 NSWLR 207 …. 8.58, 8.66 Lennard v Jessica Estates Pty Ltd (2008) 71 NSWLR 306; [2008] NSWCA 121 …. 9.81C, 9.82 Lep Air Services v Rolloswin Ltd [1973] AC 331 …. 8.183C Leros Pty Ltd v Terara Pty Ltd (1992) 174 CLR 407 …. 5.96, 5.130 Leverhulme, Re [1943] 2 All ER 274 …. 7.30 Lewenberg and Pryles v Direct Acceptance Corp Ltd [1981] VR 344 …. 5.174 Lewis v Andrews and Rowley Pty Ltd (1956) 73 WN (NSW) 670 …. 1.110C — v Bell [1985] 1 NSWLR 731 …. 8.29 — v Frank Love Ltd [1961] 1 All ER 446 …. 11.47 Ley v Scarff (1981) 146 CLR 56; 33 ALR 653 …. 11.125 LHK Nominees Pty Ltd v Kenworthy (2002) 26 WAR 517; [2002] WASCA 291 …. 5.109, 5.113 Liddy v Kennedy (1871) LR 5 HL 134 …. 8.183C Lidsdale Nominees Pty Ltd v Elkharadly [1979] VR 84 …. 8.158 Lift Capital Partners Pty Ltd v Merrill Lynch International (2009) 73 NSWLR 400; [2009] NSWSC 7 …. 11.44, 11.45C, 11.46, 11.52 Lile v Reeve [1902] 1 Ch 53 …. 11.50C Lincoln Hunt Australia Pty Ltd v Willesee (1986) 4 NSWLR 457 …. 1.49, 1.50C

Linden Gardens Trust Ltd v Lenesta Sludge Disposals Ltd [1994] 1 AC 85 …. 7.9, 7.10, 7.11 Linich v Garland (1992) 15 Fam LR 596 …. 4.139 Liristis Holdings Pty Ltd v Walville Pty Ltd (2001) 10 BPR 18,801 …. 8.198 Lister v Lane & Nesham [1893] 2 QB 212 …. 8.96, 8.104C Little v Dardier (1891) 12 NSWLR (Eq) 319 …. 10.142C — v Little (1988) 15 NSWLR 42 …. 4.108 Littledale v Scaith (1788) 1 Taunt 243; 127 ER 826 …. 2.4, 4.5 Litz v National Australia Bank [1986] Q ConvR 54-229 …. 1.87 Liubinas v Vicport Fisheries Pty Ltd [2016] VCAT 927 …. 1.93 Liverpool City Council v Irwin [1977] AC 239; [1976] 2 All ER 39 …. 8.77, 8.80, 8.81 LJP Investments Pty Ltd v Howard Chia Investments Pty Ltd (1989) 24 NSWLR 490 …. 1.71, 1.74 Lloyd v Osborne (1899) 20 LR (NSW) 190 …. 2.10C Lloyds Bank Ltd v Dalton [1942] Ch 466 …. 10.88 Lloyds Bank plc v Carrick [1996] 4 All ER 630 …. 4.55 — v Rossett [1988] 3 WLR 1301 …. 4.192 Lockhart v Hardy (1846) 9 Beav 349; 50 ER 378 …. 11.119 Loclot Pty Ltd v Pullen (2003) 56 NSWLR 592 …. 10.40 Logue v Shoalhaven Shire Council [1978] 1 NSWLR 710 …. 5.102 — v — [1979] 1 NSWLR 537 …. 5.101C, 5.102, 5.115

Loke Yew v Port Swettenham Rubber Co Ltd [1913] AC 491 …. 5.78C, 5.96, 5.99, 5.101C London & Blenheim Estates Ltd v Ladbroke Retail Parks Ltd [1993] 4 All ER 157; [1994] 1 WLR 31 …. 10.19, 10.27C, 10.49 London & County Ltd v W. Sportsman Ltd [1971] 1 Ch 764 …. 8.142C London and South Western Railway Co v Gomm (1882) 20 Ch D 562 …. 9.16C, 9.34C, 9.49C London Borough of Southwark v Williams [1971] Ch 734; [1971] 2 All ER 175 …. 2.61C London County Council v Allen [1914] 3 KB 642; [1914–15] All ER Rep 1008 …. 9.34C, 9.37, 9.38, 9.52C Long v Blackall (1797) 7 TR 100; 101 ER 875 …. 9.7C — v Gowlett [1923] 2 Ch 177; [1923] All ER Rep 335 …. 10.68C, 10.71 — v Michie [2003] NSWSC 233 …. 10.108, 10.116 Lonsdale Pty Ltd v Carra [1974] VR 887 …. 8.10 Loose Fit Pty Ltd v Marshbaum [2011] NSWCA 372 …. 8.86C, 8.87 Lord v Commissioners for the City of Sydney (1859) 12 Moo PC 473; 14 ER 991 …. 1.108 Lord Abergavenny’s Case (1607) 6 Co Rep 78b; 77 ER 373 …. 6.74 Lord Advocate v Lord Blandyre (1879) 4 App Cas 770 …. 2.102 — v Lord Lovat (1880) 5 App Cas 273 …. 2.52C Lord Chesterfield v Harris [1908] 2 Ch 397 …. 10.147C Lord Fitzhardinge v Purcell [1908] 2 Ch 139 …. 3.91

Lord Strathcona Steamship Co, Ltd v Dominion Coal Co Ltd [1926] AC 108 …. 11.50C Louis and the Conveyancing Act, Re [1971] 1 NSWLR 164 …. 9.59, 9.72, 9.77, 9.79, 9.92C, 9.115C, 9.117, 9.119C, 9.120, 9.122 Love v Gemma Nominees Pty Ltd (1983) ANZ ConvR 68 …. 8.175 Lowe v Adams [1901] 2 Ch 598 …. 1.18C Lowe (Inspector of Taxes) v J W Ashmore Ltd [1971] 1 Ch 545 …. 10.147C Lucas v McNaughton (1990) 14 Fam LR 347 …. 6.80 Lukacs v Wood (1978) 19 SASR 520 …. 5.114 Lukass Investments Pty Ltd v Makaroff (1964) 82 WN (NSW) (Pt 1) 226 …. 11.102 Luke v Luke (1936) 36 SR (NSW) 310 …. 6.29, 6.33C, 6.36C Lukies v Ripley (1994) 6 BPR 13,471 …. 4.63 Lurcott v Wakely & Wheeler [1911] 1 KB 905 …. 8.96, 8.97, 8.101, 8.104C, 8.105 Lyme Valley Squash Club Ltd v Newcastle Under Lyme Borough Council [1985] 2 All ER 405 …. 10.70, 10.71, 10.104 Lynch v O’Keefe [1930] St R Qd 74 …. 5.201 Lyon v Tweddell (1881) 17 Ch D 529 …. 4.123C Lyons v Lyons [1967] VR 169 …. 4.85C, 5.62C, 6.61, 6.64 Lysaght v Edwards (1876) 2 Ch D 499 …. 4.52C, 4.53, 4.56, 4.57C, 4.62, 4.65, 4.101 Lyus v Prowsa Developments Ltd [1982] 2 All ER 953; [1982] 1 WLR 1044

…. 5.101C

M Mabo v Queensland (No 2) (1992) 175 CLR 1; 107 ALR 1 …. 1.3, 1.62, 2.51, 2.52C, 3.2, 3.3, 3.4, 3.6, 3.8, 3.76, 3.77C, 3.79, 3.82, 3.83, 3.85, 3.87, 3.88C, 3.89, 3.93, 3.98, 3.99, 3.101, 3.102, 3.109, 3.111C, 3.120, 3.121C, 3.126C Macedo v Stroud [1922] 2 AC 30 …. 4.80 Macedonian Society of Western Australia (Inc) (recs and mgrs apptd) v St George Bank Ltd; Cvetkoski v St George Bank Ltd [2003] WASC 17 …. 11.110 Machu, Re (1882) 21 Ch D 838 …. 3.34 Macintosh v Lobel (1993) 30 NSWLR 441 …. 2.65 Mack and the Conveyancing Act, Re [1975] 2 NSWLR 623 …. 9.75, 9.117, 9.122 Mackay v Wilson (1947) 47 SR (NSW) 315 …. 7.68 Mackreth v Symmons (1808) 15 Ves 329; 33 ER 778 …. 4.196C Macquarie Bank Ltd v Sixty-Fourth Throne Pty Ltd [1998] 3 VR 133 …. 5.91C, 5.106, 5.109, 5.113 Macquarie Bank Limited v Clarke (Giles J, 22 March 1990 unreported) …. 11.81C, 11.113 Macquarie International Health Clinic Pty Ltd v Sydney South West Area Health Service [2010] NSWCA 268 …. 8.195, 8.198 Maddison v Alderson (1883) 8 App Cas 467 …. 4.41, 4.42C, 4.44, 4.45,

4.95C, 4.151C Magill v Magill (1993) NSW ConvR ¶55-663 …. 6.68 Magneta Time Co Ltd, Re Molden v The Company (1915) 84 LJ Ch 814 …. 11.125 Mahoney (who sues both personally and as executor of the estate of Mahoney (dec’d)) v Mahoney (who is sued both personally and as executor of the estate of Mahoney (dec’d)) [2015] VSC 600 …. 4.172 Maio v Sacco (2009) 14 BPR 27,591 …. 6.45 Maiorana and the Conveyancing Act, Re (1970) 92 WN (NSW) 365 …. 10.5 Maisons Pty Ltd, Re [1991] 2 Qd R 61 …. 5.56 Majala Pty Ltd v Ellas [1949] VLR 104 …. 8.158 Majestic Homes Pty Ltd v Wise [1978] Qd R 225 …. 5.114 Malayan Credit Ltd v Jack Chia-MPH Ltd [1986] AC 549; [1986] 1 All ER 711; [1986] 1 WLR 590 …. 6.17C, 6.69 Malcomson v O’Dea (1863) 11 ER 1155 …. 3.91 Malin, In the Will of [1912] VLR 259 …. 3.64 Malsbury v Malsbury [1982] 1 NSWLR 226 …. 4.120 Malter v Procopets [2000] VSCA 11 …. 2.100 Malzy v Eichholz [1916] 2 KB 308 …. 8.58, 8.69C, 8.70, 8.71, 8.74 Manchester Airport plc v Dutton [2000] 1 QB 133 …. 1.28C, 1.31, 1.32 Manchester Brewery Co v Coombs [1901] 2 Ch 608 …. 8.135 Manchester City Council v Pinnock (No 1) [2010] UKSC 45; [2010] 3

WLR 1441 …. 1.63 Manchester Corp v Connolly [1970] Ch 420; [1970] 1 All ER 961 …. 2.61C Mangiola v Costanzo (1980) ANZ Conv R 331 …. 8.14 Manjang v Drammeh (1990) 61 P & CR 194 …. 10.74 Manly Properties Pty Ltd v Castrisos [1973] 2 NSWLR 420 …. 10.116 Manners, Re [1955] 1 WLR 1096 …. 7.56 Mantec Thoroughbreds Pty Ltd v Batur [2009] VSC 351 …. 10.42C Manton v Parabolic Pty Ltd [1985] 2 NSWLR 361 …. 4.29, 11.116 Maori Trustee v Prentice [1992] 3 NZLR 344 …. 1.84, 8.187 Maralinga Pty Ltd v Major Enterprises Pty Ltd (1973) 128 CLR 336 …. 10.137C Marek v Australasian Conference Association Pty Ltd [1993] 2 Qd R 521 …. 4.153C Margil Pty Ltd v Stegul Pastoral Pty Ltd [1984] 1 NSWLR 1 …. 9.58, 9.92C, 10.7, 10.112, 10.130 Marist Bros Community Inc v Shire of Harvey (1995) 14 WAR 69 …. 4.103 Markham v Paget [1908] 1 Ch 697 …. 8.59, 8.75 Markin, Re [1966] VR 494 …. 9.108 Marquis Cholmondeley v Lord Clinton (1820) 2 Jac & W 1; 37 ER 527 …. 2.75 Marriott v Franklin (1993) 60 SASR 457 …. 6.32 Marshall v Allsop [1946] ALR 378 …. 11.45C — v Council of the Shire of Snowy River (1994) 7 BPR 14,447 …. 8.191,

8.193C, 8.194, 8.195, 8.199 — v Green (1875) 1 CPD 35 …. 4.37 — v Snowy River Council (1994) 6 BPR 13,548 …. 4.76 — v Snowy River Shire Council (1994) NSW ConvR ¶55-713 …. 8.33, 8.199 Marston v Charles H Griffith & Co Pty Ltd [1982] 3 NSWLR 294 …. 5.62C Marten v Flight Refuelling Ltd [1962] Ch 115; [1961] 2 All ER 696 …. 9.34C, 9.36, 9.47, 9.52C, 9.56, 9.69 Martin v Martin (1959) 110 CLR 297; 33 ALJR 362 …. 4.108 Martins Camera Corner Pty Ltd v Hotel Mayfair Ltd [1976] 2 NSWLR 15 …. 8.61, 8.74 Martyn and the Conveyancing Act, Re (1965) 65 SR (NSW) 387; [1965] NSWR 80 …. 9.92C, 9.109, 9.112, 9.115C, 9.117 Mason v Clarke [1955] AC 778; [1955] 1 All ER 914 …. 4.39C, 10.149 Massart v Blight (1951) 82 CLR 423; [1951] ALR 401 …. 8.111, 8.164 Masters v Cameron (1954) 91 CLR 353 …. 8.34 Matsen v Matsen [2008] NSWSC 135 …. 6.84 Matzner v Clyde Securities Ltd [1975] 2 NSWLR 293 …. 11.31C, 11.36, 11.107 Maurice Toltz Pty Ltd v Macy’s Emporium Pty Ltd [1970] 1 NSWR 474; (1969) 91 WN (NSW) 598 …. 10.20, 10.40 Mavromates, Re [1964] VR 612 …. 7.2C, 7.4

May v Ceedive Pty Ltd (2006) 13 BPR 24,147 …. 1.81, 1.85C, 1.86 Mayer v Coe (1968) 88 WN (Pt 1) (NSW) 549; [1968] 2 NSWR 747 …. 5.70C, 5.214, 10.35C Mayer v Murray (1878) 8 Ch D 424 …. 11.73 Mayfair Trading Co Pty Ltd v Dreyer (1958) 101 CLR 428 …. 11.109C Mayhew v Suttle (1854) 119 ER 133 …. 8.27 Mayho v Buckhurst (1617) Cro Jac 438 …. 8.127 Maynegrain Pty Ltd v Compafina Bank [1984] 1 NSWLR 258 …. 2.8, 2.22 Mayo v Mayo [1966] NZLR 849 …. 6.32 MBF Investments Pty Ltd v Nolan (2011) 37 VR 116; [2011] VSCA 114 …. 11.88 MCA Camilleri Building and Constructions Pty Ltd v HR Walters Pty Ltd (1981) 2 BPR 9277 …. 10.123 McBride v Sandland (1918) 25 CLR 69 …. 4.41, 4.42C, 4.44, 4.45, 4.47 McCall v Abelesz [1976] QB 585; [1976] 1 All ER 727 …. 8.63 McCourt v National Australia Bank Ltd [2010] WASC 121 …. 5.172, 5.174 McCoy v Caelli (2010) 15 BPR 28,735 …. 6.54 McDonald v Dennys Lascelles Ltd (1933) 48 CLR 457 …. 8.183C McEacharn v Colton [1902] AC 104 …. 8.111 McGellin & Fuchsbichler v Button [1973] WAR 22 …. 2.86 McGrath v Campbell (2006) 68 NSWLR 229; [2006] NSWCA 180 …. 5.109, 10.137C, 10.138, 10.141 McGuigan Investments Pty Ltd v Dalwood Vineyards Pty Ltd [1970] 1

NSWR 686 …. 9.36, 9.52C McIntyre v Potter [1983] 2 VR 439 …. 10.107 McKay v McKay [2008] NSWSC 177 …. 6.33C, 6.34 McKean v Maloney [1988] 1 Qd R 628 …. 11.90, 11.91 McKean’s Caveat, Re [1988] 1 Qd R 524 …. 4.208, 5.171, 11.106 McKenzie v McAllum [1956] VLR 208; [1956] ALR 576 …. 8.112 — v Storer [2007] ACTSC 88 …. 4.128C, 4.129 McKeown v Cavalier Yachts Pty Ltd (1988) 13 NSWLR 303; Aust Torts Reports ¶80-172 …. 1.112, 2.9 McKinlay v Dodds [1984] ANZ ConvR 617 …. 4.29 McKinnon v Portelli (1960) 60 SR (NSW) 343 …. 8.162 McMahon v A F Wade Pty Ltd [1983] WAR 152 …. 6.80 — v Ambrose [1987] VR 817 …. 4.45, 4.78 — v McMahon [1979] VR 239 …. 4.118 — v Public Curator (Qld) [1952] St R Qd 197 …. 6.44, 6.45 — v Swan [1924] VLR 397 …. 5.131 McManus v Cooke (1887) 35 Ch D 681 …. 10.56 McNab v Earle [1981] 2 NSWLR 673 …. 4.85C, 6.54 McNamara and the Conveyancing Act, Re (1961) 78 WN (NSW) 1068 …. 6.84 MCP Muswellbrook Pty Limited v Deutsche Bank (Asia) AG (1988) 12 NSWLR 16 …. 11.109C, 11.113 McPhail v Persons Unknown [1973] Ch 447; [1973] 3 All ER 393 ….

2.61C, 2.71, 2.96 McPherson v Minister for Natural Resources (1990) 22 NSWLR 671 …. 8.178 MDN Mortgages Pty Ltd v Caradonna (2010) 15 BPR 29,145 …. 5.82 M’Dowell v Ulster Bank (1899) 33 Ir L To 223 …. 2.41 Meadow Springs Fairway Resort Ltd (in liq) v Balanced Securities Ltd (No 2) [2008] FCA 471 …. 4.201 Mears v London and South Western Railway Co (1862) 11 CBNS 850; 142 ER 1029 …. 2.8 Measures v McFadyen (1910) 11 CLR 723 …. 8.131, 8.147 Medforth v Blake [2000] Ch 86 …. 11.78, 11.80 Medical Benefits Fund of Australia Ltd v Fisher [1984] 1 Qd R 606 …. 5.114, 5.123, 5.125 Melksham v Archerfield Airport Corp [2004] QSC 164 …. 8.175 Mellor v Walmesley [1905] 2 Ch 164 …. 10.78 Melvin, Ex parte [1980] Qd R 391 …. 9.103 Mercantile Credits Ltd v Australia and New Zealand Banking Group Ltd (1988) 48 SASR 407 …. 11.31C, 11.35, 11.36, 11.39 — v Shell Co of Australia Ltd (1976) 136 CLR 326; 9 ALR 39; [1976] HCA 9 …. 5.55C, 5.56, 5.57, 5.62C, 9.119C, 9.120, 11.31C Mercantile Mutual Life Insurance Co Ltd v Gosper (1991) 25 NSWLR 32 …. 5.105, 5.106C, 5.118 Mercer v Liverpool, St Helen’s & South Lancashire Railway Company

[1904] AC 461 …. 1.79 Meriton Apartments Pty Ltd v McLaurin & Tait Developments Pty Ltd (1976) 133 CLR 671 …. 5.201, 5.203 Merrell Associates Ltd v HL (Qld) Nominees Pty Ltd [2010] SASC 155 …. 5.114 Mestaer v Gillespie (1805) 11 Ves 231; 32 ER 1230 …. 5.62C Meux v Cobley [1892] 2 Ch 253 …. 3.38 Meye v Electric Transmission Ltd [1942] Ch 290 …. 8.37C Michael v Onisiforou (1977) 1 BPR 9356 …. 5.126 Midland Brick Co Pty Ltd v Welsh (2006) 32 WAR 287; [2006] WASC 122 …. 5.169, 9.52C, 11.30, 11.35 Midland Railway Co’s Agreement, Re; Charles Clay & Sons Ltd v British Railways Board [1971] Ch 725; [1971] 1 All ER 1007 …. 5.132C, 8.15C, 8.18 Mijac Investments Pty Ltd (ACN 084 820 280) v Graham (No 2) (2009) 72 ACSR 684; [2009] FCA 773 …. 11.73 Milbourn v Lyons [1914] 1 Ch 34 …. 9.34C Milenkovic v Belleli [2015] VSC 349 …. 5.190 Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141; [1971] ALR 65 …. 1.8, 3.77C, 3.81 Miller v Dell [1891] 1 QB 468 …. 2.10C — v Emcer Products [1956] Ch 304; [1956] 1 All ER 237 …. 8.81, 10.21C — v Jackson [1977] QB 966 …. 10.49

— v Minister of Mines and the Attorney General of New Zealand [1963] AC 484 …. 5.152, 5.170 — v Sutherland (1990) 14 Fam LR 416 …. 4.131 Millett v Regent [1975] 1 NSWLR 62 …. 4.44, 4.48, 4.117C Milling v Hardie [2014] NSWCA 163 …. 4.168, 4.172 Mills v Renwick (1901) 1 SR (NSW) Eq 173 …. 11.39 Mills v Silver [1991] Ch 271; [1991] 1 All ER 449; [1991] 2 WLR 324 …. 10.83 — v Stokman (1967) 116 CLR 61; 41 ALJR 16 …. 4.35, 5.98, 5.101C, 10.147C Milmo v Carreras [1946] KB 306; [1946] 1 All ER 288 …. 8.10 Milne v Jones (1910) 13 CLR 168 …. 10.88 Milroy v Lord (1862) 4 De GF & J 264; 45 ER 1185 …. 4.81, 4.82, 4.83, 4.85C, 4.91 Mimi v Millennium Developments Pty Ltd [2003] VSC 260 …. 5.189 Mineaplenty Pty Ltd v Trek 31 Pty Ltd (2006) 17 BPR 32,645; [2006] NSWSC 1203 …. 8.168, 8.169 Minister, Aboriginal Land Rights Act 1983 v Aboriginal Corporation of the National Aboriginal Conference [1992] ACL Rep 355; [1992] NSWSC 34 …. 4.87 Minister for Education and Training v Canham [2004] NSWSC 274 …. 5.114 Minister for Interiors v Brisbane Amateur Turf Club (1949) 80 CLR 123 ….

8.53 Mint v Good [1951] 1 KB 517; [1950] 2 All ER 1159 …. 8.80 Minter v Eacott (1952) 69 WN (NSW) 93 …. 10.46 — v Minter (2000) 10 BPR 18,133 …. 6.20 Mir Bros Projects Pty Ltd v 1924 Pty Ltd [1980] 2 NSWLR 907 …. 5.174, 11.63C — v Lyons [1978] 2 NSWLR 505 …. 11.35 Miscamble’s Application, Re [1966] VR 596 …. 9.65 Mischel Holdings Pty Ltd (in liq) v Mischel [2013] VSCA 375 …. 6.66, 6.68 Missouri v Holland 252 US 416 (1920) …. 2.1 Mitcham City Council v Clothier (1994) 62 SASR 394; 83 LGERA 431 …. 9.76, 10.5 Mitchell v Arblaster [1964-65] NSWR 119 …. 6.21C — v Wieriks; Ex parte Wieriks [1975] Qd R 100 …. 8.11 Mitrovic v Koren [1971] VR 479 …. 6.74 M’Mahon v Burchell (1846) 2 Ph 127 …. 6.33C Moat v Martin [1950] 1 KB 175; [1949] 2 All ER 646 …. 8.115, 8.116 Modular Design Group Pty Ltd, Re (1994) 35 NSWLR 96 …. 11.45C, 11.51, 11.53C Moffatt v Kazana [1969] 2 QB 152; [1968] 3 All ER 271 …. 2.43 Moffett v Dillon (1999) 2 VR 480 …. 4.198, 4.201, 5.191, 5.192C, 5.193, 5.195, 5.201

Mohammadzadeh v Joseph [2006] EWHC 1040 …. 9.54, 9.56, 9.57 Mole v Ross (1950) 1 BPR 9101 …. 6.22 Monarch Petroleum NL v Citco Australia Petroleum Ltd [1986] WAR 310 …. 4.29 Monash City Council v Melville (2000) V ConvR 54-621; [2000] VSC 55 …. 2.78, 2.92C, 2.93 Moncrieff v Jamieson [2007] UKHL 42; [2008] 4 All ER 752; [2007] 1 WLR 2620 …. 10.17C, 10.27C, 10.28, 10.29, 10.30 Mondel v Steel (1841) 8 M & W 858; 151 ER 1288 …. 8.201C Monte v Buongiorno [1978] WAR 49 …. 4.103 Moody v Steggles (1879) 12 Ch D 261 …. 10.14C Moorcock, The (1889) 14 PD 64 …. 10.61C Moore, Re [1901] 1 Ch 936 …. 7.30 Moore v Clench (1875) 1 Ch D 447 …. 10.3C — v Dimond (1929) 43 CLR 105; 3 ALJR 354 …. 4.71, 8.37C, 8.44, 8.45, 8.49 — v — [1929] SASR 274 …. 4.71 — v Regents of the University of California (1990) 793 P 2d 479 …. 1.2, 1.33, 1.36C, 1.37, 1.39, 1.41, 1.44 — v Ullcoats Mining Co Ltd [1908] 1 Ch 575 …. 8.161C, 8.162, 8.164, 8.165 Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2012] NSWCA 445; 16 BPR 31,257 …. 10.102C

Moorhouse v Angus & Robinson (No 1) Pty Ltd [1981] 1 NSWLR 700 …. 2.43 Moraitis v Fresh Packaging (NSW) Pty Ltd v Fresh Express (Australia) Pty Ltd [2008] NSWCA 327 …. 7.2C Moreland Timber Co Pty Ltd v Reid [1946] VLR 237 …. 1.28C, 4.40 Morley v Bird (1798) 3 Ves Jun 629; 30 ER 1192 …. 6.2E Morrells of Oxford Ltd v Oxford United Football Club Ltd [2001] Ch 459; [2001] 2 WLR 128 …. 9.45 Morris v Morris [1982] 1 NSWLR 61 …. 4.120, 4.162C Morrissey v Bright (3 August 1978, Powell J, unreported) …. 11.109C Morton v Black (1986) 4 BPR 9164 …. 5.53 Mostyn v Mostyn (1989) 16 NSWLR 635 …. 4.29 Moule v Garrett (1872) LR 7 Ex 101; (1861–73) All ER Rep 135 …. 8.132C, 8.133 Mounsey v Ismay (1865) 3 H & C 486 …. 10.17C Mount Carmel Investments v Peter Thurlow Ltd [1988] 3 All ER 129 …. 2.108, 2.109 Mulcahy v Curramore Pty Ltd [1974] 2 NSWLR 464 …. 2.57, 2.60, 2.93, 2.108 Multiservice Bookbinding Ltd v Marden [1979] 1 Ch 84 …. 11.48 Munro v Stuart (1924) 41 SR (NSW) 203 …. 5.96, 5.101C, 5.134, 5.138C Murnane v Findlay [1926] VLR 80 …. 2.93 Murray, Bull & Co Ltd v Murray [1953] 1 QB 211; [1952] 2 All ER 1079

…. 8.28 Muschinski v Dodds (1985) 160 CLR 583; 62 ALR 429; 60 ALJR 52; [1985] HCA 78 …. 4.122, 4.123C, 4.124, 4.129, 4.134, 4.205, 6.45, 11.45C Myers v Smith (1992) 5 BPR 11,494 …. 5.225C

N N H Dunn Pty Ltd v L M Ericsson Pty Ltd (1979) 2 BPR 9241 …. 1.85C NAB v Blacker (2000) 104 FCR 288 …. 1.85C Naish and the Conveyancing Act, Re [1960] 77 WN (NSW) 892 …. 9.77, 9.78, 9.92C, 9.108 Napper v Miller (2003) 11 BPR 21,175; [2003] NSWSC 376 …. 7.55 National Australia Bank v Blacker (2000) 179 ALR 97 …. 1.87 — v Clowes [2013] NSWCA 179 …. 11.18 — v Pasupati [2011] NSWSC 540 …. 6.76 — v State of New South Wales (2009) 260 ALR 115; [2009] FCA 1066 …. 11.25 — v Zollo (1992) 59 SASR 76 …. 11.66, 11.128 National Bank of Australasia v The United Hand-in-Hand and Band of Hope Co (1879) 4 App Cas 391 …. 11.131 National Carriers Ltd v Panalpina (Northern) Ltd [1981] AC 675; [1981] 1 All ER 161 …. 8.183C, 8.187 National Commercial Banking Corp of Australia Ltd v Hedley (1984) 3 BPR 9477 …. 5.90

National Mutual Life Nominees Ltd v Travellers (NSW) Pty Ltd (1993) NSW ConvR ¶55-688 …. 8.119 National Outdoor Advertising Ltd v Wavon Pty Ltd (1988) 4 BPR 9732 …. 8.24 National Provincial Bank Ltd v Ainsworth [1965] AC 1175; [1965] 2 All ER 472 …. 1.10, 1.31, 3.77C, 4.192, 10.147C National Trustees, Executors and Agency Co v Hassett [1907] VLR 404 …. 5.28 — v Long [1939] VLR 33 …. 10.72, 10.118 Natwest Markets Australia Ltd v Mannix (1995) 7 BPR 14,668 …. 11.128 Naxatu Pty Ltd v Perpetual Trustee Co Ltd (2012) 295 ALR 9; [2012] FCAFC 163 …. 11.33 Naylor v Canterbury Park Racecourse Co Ltd (1935) 35 SR (NSW) 281 …. 1.18C Naziridis v Rimis (1985) 9 BPR 16,201 …. 6.86 Neale v Mackenzie (1836) 1 M & W 747; 150 ER 635 …. 8.53 Neeta (Epping) Pty Ltd v Phillips (1974) 131 CLR 286 …. 5.206 Neighbourhood Association DP No 285220 v Moffatt (2008) NSW ConvR ¶56-208; [2008] NSWSC 54 …. 10.36 Nelson v Hughes [1947] VLR 227 …. 10.118 — v Nelson (1995) 184 CLR 53 …. 4.108 — v Walker (1910) 10 CLR 560 …. 10.61C Nemesis Australia Pty Ltd v Commissioner of Taxation (2005) 150 FCR 152

…. 7.49 Nemeth v Reachcord Pty Ltd (1998) 9 BPR 16,557 …. 11.66 Neowarra v State of Western Australia [2003] FCA 1402 …. 3.100 Nepean District Tennis Association v Penrith City Council (1988) 4 BPR 9645 …. 1.98 Network Finance Ltd v Deposit and Investment Co Ltd [1972] QWN 19 …. 11.31C Neville v Wilson (1997) Ch 144 …. 4.104C New Beach Apartments Pty Ltd v Epic Hotels Pty Ltd (2007) 14 BPR 26,317; [2007] NSWSC 474 …. 11.97 New Hart Builders Ltd v Brindley [1975] Ch 342 …. 4.49 New South Wales Aged Pensioners’ Hostel and the Conveyancing Act, Re [1967] 1 NSWR 332 …. 9.77, 9.115C New South Wales Department of Housing v Hume (2007) Aust Torts Reports ¶81-879 …. 8.85 New South Wales Rifle Association Inc v Commonwealth (2012) 293 ALR 158 …. 1.22 New Zealand Factors Ltd v Farmers Trading Co Ltd [1992] 3 NZLR 703 …. 8.206 New Zealand Government Property Corp v H M & S Ltd [1982] QB 1145; [1982] 1 All ER 624 …. 1.90, 1.91 Newington v Windeyer (1985) 3 NSWLR 555 …. 2.57, 4.176 Newman v Real Estate Debenture Corporation Ltd [1940] 1 All ER 131 ….

8.69C Newton Abbot Co-operative Society Ltd v Williamson & Treadgold Ltd [1952] Ch 286; [1952] 1 All ER 279 …. 9.34C, 9.36, 9.52C, 9.68, 9.69 Ngalakan People v Northern Territory (2001) 112 FCR 148 …. 3.99 Ngatoa v Ford (1990) 19 NSWLR 72 …. 6.84, 7.8 NGL Properties Pty Ltd v Harlington Pty Ltd [1979] VR 92 …. 8.111, 8.158 Nickerson v Barraclough [1981] 2 All ER 369; [1981] 2 WLR 773 …. 10.76 Nicholas v Andrew (1920) 20 SR (NSW) 178 …. 2.108 Nield v Whittem (1993) 67 ALJR 514 …. 5.51 Nilrem Nominees Pty Ltd v Karaley Pty Ltd [2000] WASC 82 …. 11.75 Nisbet and Potts’ Contract, Re [1905] 1 Ch 391 …. 5.69 Nisbet and Potts’ Contract, Re [1906] 1 Ch 386; [1904–7] All ER Rep 865 …. 4.186, 9.34C, 9.46 Nixon v Commercial and General Acceptance Corporation [1980] Qd R 153 …. 11.90 NLS Pty Ltd v Hughes (1966) 120 CLR 583 …. 8.183C, 8.209 Noakes & Co Ltd v Rice [1902] AC 24 …. 11.23C Noblett and Mansfield v Manley [1952] SASR 155 …. 8.213 Nolan v Nolan [2014] QSC 218 …. 4.172 — v — [2015] QCA 199 …. 4.125, 4.126 Noonan v Martin (1987) 10 NSWLR 402 …. 4.84 Nordern v Blueport Enterprises Ltd [1996] 3 NZLR 450 …. 8.71

Norman v FC of T (1963) 109 CLR 9; 37 ALJR 49 …. 4.84, 4.85C Norman; Re Forest Enterprises Ltd v FEA Plantation Ltd (2011) 280 ALR 470 …. 8.205C, 8.207 North Sydney Council v Plater [2002] NSWCA 225 …. 8.85 North Sydney Printing Pty Ltd v Sabemo Investment Corp Pty Ltd [1971] 2 NSWLR 150 …. 10.75 Northern Counties of England Fire Insurance Co v Whipp (1884) 26 Ch D 482 …. 4.179, 4.180, 4.181, 11.21 Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313; 146 ALR 572 …. 8.80, 8.82, 8.83C, 8.84, 8.85, 8.221, 9.14 Northern Territory v Arnhem Land Aboriginal Land Trust (2008) 236 CLR 24 …. 3.100 Northern Territory of Australia v Alyawarr (2005) 145 FCR 442 …. 3.99, 3.100, 3.107, 3.116, 3.119 Northshore Gas Co Ltd v Commissioner of Stamp Duties (NSW) (1939– 1940) 63 CLR 52 …. 1.90 Northside Developments Pty Ltd v Registrar-General (1990) 170 CLR 146; 93 ALR 385 …. 5.214 Norton v Dashwood [1896] 2 Ch 497 …. 1.82 — v Kilduff [1974] Qd R 47 …. 9.110 Notaras v Sly and Weigall (2007) 12 BPR 23,765 …. 11.65 Noyes v Klein (1985) 3 BPR 9216 …. 8.51 NRMA Insurance Ltd v Individual Homes Pty Ltd (1988) 92 FLR 1 ….

11.67 Nullagine Investments Pty Ltd v Western Australian Club Inc (1993) 177 CLR 635; 116 ALR 26; 67 ALJR 739 …. 6.84

O Oakley v Boston [1976] QB 270; [1975] 3 All ER 405 …. 10.95 Obadia v Morris (1974) 232 EG 333 …. 10.108 Oboohoff v Melnicke [1990] ACLD 35 …. 4.86, 6.54 O’Brien v Robinson [1973] AC 912; [1973] 1 All ER 583 …. 8.102 Ocean Estates Ltd v Pinder [1969] 2 AC 19 …. 2.55, 2.92C, 2.95 Octapon Pty Ltd v Esanda Finance Corp Ltd (SC(NSW), 3 February 1989, Cole J, unreported) …. 5.89 O’Dea v Allstates Leasing System (WA) Pty Ltd (1983) 152 CLR 359; 45 ALR 632 …. 11.58 Oertel v Hordern (1902) 2 SR (NSW) (Eq) 37 …. 5.101C, 5.102 Official Receiver v Klau; Ex parte Stephenson Nominees Pty Ltd (1987) 74 ALR 67 …. 5.74 Ofulue v Bossert [2009] 1 AC 990; [2009] 2 WLR 749 …. 2.111 Ogilvie v Ryan [1976] 2 NSWLR 504 …. 4.44, 4.48, 4.116, 4.117C, 4.118, 4.119, 4.123C, 4.129, 4.133, 4.136, 4.140, 4.142 O’Keefe v Williams (1910) 11 CLR 171 …. 8.69C Old Grovebury Manor Farm Ltd v W Seymour Plant Sales & Hire Ltd (No 2) [1979] 2 All ER 504 …. 8.111, 8.155 Olivieri v Olivieri (1993) 38 NSWLR 665 …. 4.108

Olsson v Dyson (1969) 120 CLR 365; [1969] ALR 443; (1969) 43 ALJR 77 …. 4.85C, 4.145, 4.151C Olympic Holdings Pty Ltd v Windslow Corporation Pty Ltd (in liq) (2008) 36 WAR 342; [2008] WASCA 80 …. 11.29 Ooh! Media Roadside Pty Ltd v Diamond Wheels Pty Ltd [2011] VSCA 116 …. 8.187 Organ v Sandwell [1921] VLR 622 …. 4.95C Orr Ewing v Colquhoun (1877) 2 AC 839 …. 1.108 Osborn, Re (1989) 91 ALR 135 …. 4.134 Osmanoski v Rose [1974] VR 523 …. 5.188 O’Sullivan v Williams [1992] 3 All ER 385 …. 2.8, 2.30 Oswal v Carson [2013] VSC 615 …. 11.104 Otter v Lord Vaux (1856) 6 De G M & G 638; 43 ER 1381 …. 11.40, 11.41 Outram v Maude (1881) 17 Ch D 391 …. 10.89, 35C Oversea-Chinese Banking Corp Ltd (OCBC) v Malaysian Kuwaiti Investment Co (MKIC) [2003] VSC 495 …. 11.32, 11.34, 11.39 Ovidio Carrideo Nominees Pty Ltd v The Dog Depot Pty Ltd [2006] VSCA 6 …. 8.19 Owners of Corinne Court v Shean Pty Ltd (2000) 23 WAR 1 …. 10.33C, 10.40 Owners of East Fremantle Shopping Centre West Strata Plan 8618 v Action Supermarkets Pty Ltd [2008] WASCA 180 …. 10.27C Owners of Strata Plan 48754 v PD Anderson Holdings Pty Ltd [1999]

NSWSC 580 …. 10.42C Owners Strata Plan 30889 v Perrine [2002] NSWCA 324 …. 8.85 Oxford Meat Co Pty Ltd v McDonald [1963] SR (NSW) 423 …. 2.53 Oxley v James (1844) 13 M & W 209; 153 ER 87 …. 8.10

P P & A Swift Investments (a firm) v Combined English Stores Group plc [1988] 2 All ER 885 …. 8.148, 8.190C Pacer v Westpac Banking Corporation (SC(NSW), No 3615 of 1995, Santow J, unreported) …. 5.114 Paine & Co v St Neot’s Gas & Coke Co [1939] 3 All ER 812 …. 10.104 Palais Parking Station Pty Ltd v Shea (1980) 24 SASR 425 …. 5.116 Palermo Seafoods Pty Ltd v Lunapas Pty Ltd (2014) 17 BPR 33,047 …. 8.208 Palethorpe v Public Trustee of Queensland [2011] QSC 335 …. 6.79 Palk v Mortgage Services Funding plc [1993] Ch 330; [1993] 2 All ER 481 …. 11.95, 11.96, 11.97 Palm Gardens Consolidated Pty Ltd v PG Properties Pty Ltd [2009] SASC 311 …. 5.169 Palmdale Insurance Limited v Sprenger [1988] 1 Qd R 414 …. 8.36 Palmer v Bank of New South Wales (1975) 7 ALR 671; 50 ALJR 320 …. 4.84 — v Hendrie (1859) 27 Beav 349; 54 ER 136 …. 11.119 — v Wiley (1906) 23 WN (NSW) 90 …. 5.172

Palumberi v Palumberi (1986) NSW ConvR ¶55-287 …. 1.81 Pampris v Thanos [1968] 1 NSWR 56 …. 8.76 Pan Australian Credits (SA) Pty Ltd v Kolim Pty Ltd (1981) 27 SASR 353 …. 1.83 Pannizutti v Trask (1987) 10 NSWR 531 …. 6.84 Papadopoulos v Goodwin [1982] 1 NSWLR 413 …. 9.58, 10.7 — v — [1983] 2 NSWLR 113 …. 10.7, 10.121, 10.130 Paradise Beach and Transportation Co Ltd v Price-Robinson [1968] AC 1072; [1968] 1 All ER 530 …. 2.106 Paradise Constructors & Co Pty Ltd v Poyser (2007) 20 VR 294 …. 5.54, 5.105 Parish v Kelly (1980) 1 BPR 9394 …. 10.74 Parker v British Airways Board [1982] QB 1004; [1982] 1 All ER 834 …. 2.34C, 2.37, 2.38 — v Glenninda Pty Ltd (1998) Q ConvR 54-499 …. 5.169 — v Housing Trust (1986) 41 SASR 493 …. 8.83C — v Mortgage Advance Securities [2003] QCA 275 …. 5.57 — v Registrar-General [1977] 1 NSWLR 22 …. 5.213, 5.216 — v Webb (1693) 3 Salk 5; 91 ER 656 …. 8.127 Parker-Tweedale v Dunbar Bank plc [1991] Ch 12; [1990] 2 All ER 577 …. 11.79, 11.80, 11.109C Parkin v Thorold (1851) 2 Sim NS 1; 61 ER 239 …. 8.47C Parkinson v Braham (1961) 62 SR (NSW) 663 …. 5.129, 5.138C

Parramore v Duggan (1994–95) 4 Tas SR 64 …. 10.119 Parsons and Parsons v McBain (2001) 109 FCR 120; 192 ALR 772 …. 4.135 Partnership Pacific Securities Ltd, Re [1994] 1 Qd R 410 …. 8.207 Pascoe v Turner [1978] EWCA Civ 2; [1979] 2 All ER 945; [1979] 1 WLR 431 …. 4.142, 4.166C Patmore v Upton (2004) 13 Tas R 95; [2004] TASSC 77 …. 4.208, 4.212, 5.171, 11.106 Patterson v Mortgage Finance Australia (18 September 1990, Court of Appeal, unreported) …. 11.109C Patzak v Lytton [1984] WAR 353 …. 4.85C, 6.54, 6.67 Paul v Paul (1882) 20 Ch D 742 …. 9.7C Pavey & Matthews v Paul (1986) 162 CLR 221 …. 1.98 Pavlou (A Bankrupt), Re [1993] 3 All ER 955; [1993] 1 WLR 1046 …. 6.32, 6.36C Pearce v Brain [1929] 2 KB 310 …. 5.154C — v Lord Mayor, Alderman and Citizens of the City of Hobart [1981] Tas R 334 …. 10.109, 10.119 — v Pearce [1977] 1 NSWLR 170 …. 4.119 Pearne v Lisle (1749) Amb 75; (1749) EngR 142; 27 ER 47 …. 2.10C Pearks v Moseley (1880) 5 App Cas 714 …. 7.54 Pearson v Aotea District Maori Land Board [1945] NZLR 542 …. 5.55C, 5.56

Pecar v National Australia Trustees Ltd [1996] NSWSC 2518 …. 1.41 Peck v Peck [2010] SASC 258 …. 5.74 Peden Pty Ltd v Bortolazzo [2006] QCA 350 …. 8.73 Pejovic v Malinic (1959) 60 SR (NSW) 184; 76 WN (NSW) 744 …. 4.49 Pekel v Humich (1999) 21 WAR 24 …. 10.96 Peldan v Anderson (2006) 229 ALR 432 …. 6.75 Pendlebury v Colonial Mutual Life Assurance Society (1912) 13 CLR 676 …. 11.74C, 11.77, 11.78, 11.81C, 11.87C, 11.109C Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204 …. 2.8 Penny Nominees Pty Ltd v Fountain (No 3) (1990) 5 BPR 11,284 …. 4.86, 6.54 — v — [1991] ACL Rep 355 NSW 1 …. 6.74 Penton v Barnett [1898] 1 QB 276 …. 8.156 — v Robart (1801) 2 East 88; 102 ER 302 …. 1.89 Percy v Youngman [1941] VLR 275 …. 5.40 Perera v Vandiyar [1953] 1 All ER 1109 …. 8.63 Performing Right Society Ltd v London Theatre of Varieties Ltd [1924] AC 1 …. 8.142C Permanent Custodians Ltd v Yazgi [2007] NSWSC 279 …. 5.67, 5.88, 5.89 Permanent Mortgages Pty Ltd v Vandenberg [2010] WASC 10 …. 5.111 Permanent Trustee Australia Ltd v Esanda Corporation Ltd (1991) 6 BPR 13,420 …. 1.81 — v Shand (1992) 27 NSWLR 426 …. 5.169, 10.146, 10.147C, 10.150

Permanent Trustee Co Ltd v Frazis [1999] NSWSC 319 …. 5.67 — v Freedom from Hunger Campaign (1991) 25 NSWLR 140 …. 6.72 — v Gillett (2004) 145 A Crim R 220; [2004] NSWSC 278 …. 6.73 — v O’Donnell [2009] NSWSC 902 …. 5.89 Permanent Trustee Co of New South Wales Ltd v D’Apice (1968) 118 CLR 105; [1968] ALR 437 …. 3.45 Permanent Trustee Nominees (Canberra) Ltd, Re [1989] 1 Qd R 314 …. 7.8 Perpetual Ltd v Barghachoun [2010] NSWSC 108 …. 5.50 Perpetual Nominees Ltd v Karamakis [2010] NSWSC 10 …. 5.169 Perpetual Trustee Co Ltd v English [2011] NSWSC 264 …. 5.174 — v Khoshaba [2006] NSWCA 41 …. 5.89 — v Smith (2010) 186 FCR 566; 273 ALR 469; [2010] V ConvR 54-779 …. 5.132C, 5.142, 5.194C — v Westfield Management Ltd (2007) 12 BPR 23,793 …. 10.33C Perpetual Trustees Victoria Ltd v Cipri [2008] NSWSC 1128 …. 5.67 — v English (2010) 14 BPR 27,339; [2010] NSWCA 32 …. 5.57, 5.61, 5.62C, 5.63 — v Ford [2008] NSWSC 29 …. 5.89 — v Tsai (2004) 12 BPR 22,281; [2004] NSWSC 745 …. 5.57, 5.59, 5.60, 5.64 — v Van Den Heuvel [2009] NSWSC 57 …. 5.67 Perrin v Lyon (1807) 9 East 170; 103 ER 538 …. 3.35 Perry v Clissold (1906) 4 CLR 374; [1907] AC 73 …. 2.50C, 2.52C, 2.53,

2.54, 2.57, 2.108 — v Rolfe [1948] VLR 297 …. 11.23C — v Woodfarm Homes Ltd [1975] IR 104 …. 2.116 Perry-Herrick v Attwood (1857) 2 De G & J 21; 44 ER 895 …. 4.180, 5.180C Person-to-Person Financial Services v Sharari (1984) NSW ConvR ¶55-187 …. 5.190 Pertsoulis, In the marriage of (1979) 4 Fam LR 613; FLC 90-613 …. 4.85C, 6.67 Petkov v Lucerne Nominees Pty Ltd (1992) 7 WAR 163 …. 2.95 Petrie, Re [1962] Ch 355; [1961] 3 All ER 1067 …. 7.45 Pettey v Parsons [1914] 2 Ch 653 …. 10.42C Pettitt v Pettitt [1970] AC 777; [1969] 2 All ER 385 …. 4.109C, 4.114, 4.117C, 4.118 Peulen v Agius [2015] QSC 137 …. 10.99, 10.100C Philip v JPM Developments Pty Ltd (2015) 17 BPR 33,887; [2015] NSWSC 145 …. 10.43 Phillips v McCabe [2016] SASC 27 …. 7.16 — v Phillips (1861) 4 De GF & J 208; 45 ER 1164 …. 4.203C, 4.210C Philos Pty Ltd v National Bank of Australasia Ltd [1976] ACLD 800 …. 11.31C Philpott v Kelley (1835) 3 Ad & El 106; (1835) 111 ER 353 …. 2.10C Phipps v Ackers (1842) 9 Cl & Fin 583; 8 ER 539 …. 7.27

— v Pears [1965] 1 QB 76; [1964] 2 All ER 35 …. 10.45, 10.50, 10.51, 10.71 Photo Art and Sound (Cremorne) Pty Ltd v Cremorne Centre Pty Ltd (in liq) (1987) 4 BPR 9436 …. 8.52, 8.120 Pico Holdings Inc v Wave Vistas Pty Ltd (2005) 214 ALR 392; (2005) 79 ALJR 825; [2005] HCA 13 …. 4.70, 11.18 Picton-Warlow v Allendale Holdings Pty Ltd [1988] WAR 107 …. 8.125 Pieper v Edwards [1982] 1 NSWLR 336 …. 9.92C, 10.116 Pierson v Post (1805) 3 Caines 175 …. 4.5 Piggott v Williams (1821) 6 Madd 95; 56 ER 1027 …. 8.201C Pigot’s Case (1614) 11 Co 26b; 77 ER 1177 …. 5.54, 5.56 Pilcher v Rawlins (1872) 7 Ch App 259 …. 4.183C, 4.173, 5.69 Pile’s Caveats, Re [1981] Qd R 81 …. 5.169 Pimms Ltd v Tallow Chandlers Co [1964] 2 QB 547; [1964] 2 All ER 145 …. 8.112, 8.114C Pinewood Estate, Farnborough, Re [1958] 1 Ch 280; [1957] 2 All ER 517 …. 9.74 Pinnington v Galland (1853) 9 Ex 1; 156 ER 1 …. 10.79C Pioneer Quarries (Sydney) Pty Ltd v Permanent Trustee Co of NSW Ltd (1970) 2 BPR 97,145 …. 8.173, 8.197C Pirie v Registrar General (1962) 109 CLR 619 …. 9.52C Pirie and the Real Property Act, Re (1961) 79 WN (NSW) 701 …. 9.115C Pirie and the Real Property Act, Re [1962] NSWR 1004 …. 9.56, 9.115C

Piro v Foster (1943) 68 CLR 313 …. 9.62C Piromalli, In the Application of [1977] 1 NSWLR 39 …. 11.126 Piromalli v Di Masi [1980] WAR 173 …. 10.91 Piroshenko v Grojsman [2010] VSC 240 …. 5.176 Pitt v Baxter [2007] WASCA 104 …. 6.51 Platt v Ong [1972] VR 197 …. 8.166C, 8.167 Plimmer v Wellington Corp (1884) 9 App Cas 699 …. 4.141C, 4.147C, 4.166C, 4.166C Plumb v Breen [1991] ACL Rep 185 NSW 6 …. 4.129 Plymouth Corp v Harvey [1971] 1 All ER 623; [1971] 1 WLR 549 …. 8.157 Pola v Australian and New Zealand Banking Group Ltd (2015) 17 BPR 33,989; [2015] NSWCA 146 …. 11.94 Pollard v Pollard (1975) 25 FLR 125; 6 ALR 256 …. 6.74 Pollard v Registrar of Titles [2013] VSC 286 …. 9.57 Poltava Pty Ltd, Application of, Re [1982] 2 NSWLR 161 …. 9.77 Pomal Kanji Govindji v Vrajlal Karsandas Purohit (1989) 76 AIR 436 …. 11.45C Ponsford v HMS Aerosols Ltd [1978] 2 All ER 837 …. 8.121 Popular Homes Ltd v Circuit Developments Ltd [1979] 2 NZLR 642 …. 8.205C Port v Griffith [1938] 1 All ER 295 …. 8.69C Porter v Associated Securities Ltd unreported, 2 July 1976 …. 11.74C Post Investments Pty Ltd v Wilson (1990) 26 NSWLR 598 …. 9.91,

9.92C, 9.93 Post Office v Aquarius Properties Ltd [1987] 1 All ER 1055 …. 8.101, 8.105 Potter (decd), Re [1970] VR 352 …. 1.10 Pourzand v Telstra Corp Ltd [2012] WASC 210 …. 8.65 Powell v Langdon (1944) 45 SR (NSW) 136 …. 10.35C, 10.104 — v McFarlane (1977) 38 P & CR 452 …. 2.92C, 2.93, 2.102 — v Whyte [1968] Qd R 255 …. 10.56 Pozzi, Re [1982] Qd R 499 …. 6.65 Pratten v Warringah Shire Council (1969) 90 WN (NSW) (Pt 1) 134; [1969] 2 NSWR 161 …. 5.152, 5.153, 9.123 Premier Group Ltd v Lidgard [1970] NZLR 280; (1971) 4 NZULR 290 …. 5.165 Prentice v Cummins (No 6) (2003) 134 FCR 449 …. 4.109C Price v Murray [1970] VR 782 …. 8.127 Primary RE Ltd v Great Southern Property Holdings Ltd [2011] VSC 242 …. 8.154 Pritchard v Briggs [1980] Ch 338; [1980] 1 All ER 294; [1979] 3 WLR 868 …. 7.4, 7.68 Proctor v Milton [1987] ANZ Conv R 14 …. 4.146 — v — (1989) NSW ConvR ¶55-450 …. 8.180 Progressive Mailing House Pty Ltd v Tabali Pty Ltd (1985) 157 CLR 17; 57 ALR 609 …. 8.1, 8.48, 8.49, 8.183C, 8.184, 8.190C, 8.192, 8.193C, 8.196, 8.197C

Property Unit Nominees (No 2) Pty Ltd, Ex parte [1981] Qd R 178 …. 5.120 Proprietors of Averil Court Building Units Plan No 2001, Ex parte [1983] 1 Qd R 66 …. 10.116 Proprietors Strata Plan No 9,968 v Proprietors Strata Plan No 11,173 [1979] 2 NSWLR 605 …. 10.108 Prospect County Council v Cross (1990) 21 NSWLR 601 …. 10.10, 10.104 Proudfoot v Hart (1890) 25 QBD 42 …. 8.98C, 8.101, 8.103 Provident Capital Ltd v Printy (2007) 13 BPR 24,603; NSW ConvR ¶56810; [2008] NSWCA 131 …. 5.59 — v — (2008) 13 BPR 25,199; [2008] NSWCA 131 …. 5.57, 5.62C, 5.64 Prowse v Johnstone [2012] VSC 4 …. 9.88, 9.89, 9.107 — v — [2015] VSC 621 …. 9.45 Prudential Assurance Co Ltd v London Residuary Body [1992] 2 AC 386; [1992] 3 All ER 504 …. 8.14, 8.15C, 8.16, 8.41 Pryce and Irving v McGuinness [1966] Qd R 591 …. 10.127 PT Ltd v Maradona Pty Ltd (1992) 25 NSWLR 643 …. 5.57, 5.62C PT Thiess Contractors Indonesia v PT Arutmin Indonesia [2015] QSC 123 …. 11.58 Public Trustee v Evans (1985) 2 NSWLR 188 …. 6.72 — v Fraser (1987) 9 NSWLR 433 …. 6.72 — v Gray-Masters [1977] VR 154 …. 4.84 — v Grivas [1974] 2 NSWLR 316 …. 6.67

— v Hermann [1968] 2 NSWR 94 …. 10.97 — v Paradiso (1995) 64 SASR 387 …. 5.51, 5.57 — v Pfeiffle [1991] 1 VR 19 …. 6.66 Public Trustee (NSW) v Fitter [2005] NSWSC 1188 …. 6.73 Public Trustee (Qld) (as Litigation Guardian for ADF) v Ban (No 2) [2012] QSC 97 …. 4.86 Pugh v Savage [1970] 2 QB 373; [1970] 2 All ER 353 …. 10.91 Pukuweka Sawmills Ltd v Winger [1917] NZLR 81 …. 1.80C Purcell, Ex parte [1982] Qd R 613; (1982) 47 LGRA433 …. 10.38, 10.104C Purefoy v Rogers (1671) 2 Wms Saund 380; 85 ER 1181 …. 7.13 Pwllbach Colliery Co Ltd v Woodman [1915] AC 634 …. 10.49, 10.77 Pyer v Carter (1857) 1 H & N 916; 156 ER 1472 …. 10.79C Pyramid Building Society (in liq) v Scorpion Hotels Pty Ltd [1998] 1 VR 188 …. 5.52, 5.57, 5.62C, 5.64, 5.82, 5.91C, 5.107, 5.109, 5.118

Q Quach v Marrickville Municipal Council (No 2) (1990) 22 NSWLR 55 …. 5.122, 5.152 Quadramain Pty Ltd v Sevastopol Investments Pty Ltd (1976) 8 ALR 555; 50 ALJR 475 …. 9.36 Quarm v Quarm [1892] 1 QB 184 …. 3.47 Quarmby v Keating [2008] TASSC 71 …. 5.145 Queanbeyan Leagues Club Ltd v Poldune Pty Ltd [1996] NSWSC 86; (1996) 7 BPR 15,078 …. 10.27C

Queensland Premier Mines Pty Ltd v French (2007) 235 CLR 81; [2007] HCA 53 …. 5.57, 5.65, 8.147 Queensland Trustee Ltd v Registrar of Titles (1893) 5 QLJ 46 …. 11.31C Quennell v Maltby [1979] 1 WLR 318 …. 11.132 Quick v Taff-Ely BC [1986] 1 QB 809; [1985] 3 All ER 321 …. 8.105

R R v Bathurst (1755) Say 225; 96 ER 860 …. 2.61C — v Child (1846) 2 Cox CC 102 …. 2.61C — v Dormy (1700) 1 Ld Raym 610; 91 ER 1308 …. 2.61C — v Gadd [1911] QWN 31 …. 4.5 — v Kelly [1998] 3 All ER 741 …. 1.40 — v Pierce (1852) 6 Cox CC 117 …. 2.41 — v Shorrock [1994] QB 279 …. 8.69C — v Sparrow [1990] 1 SCR 1075; (1990) 70 DLR (4th) 385 …. 3.77C — v Tang (2008) 237 CLR 1; [2008] HCA 39 …. 2.10C — v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327 …. 1.2, 1.10 — v Yarborough (1824) 3 B and C 91 …. 1.104C R (Beresford) v Sunderland City Council [2003] 3 WLR 1306 …. 10.87 R J Finlayson Ltd v Elder, Smith & Co [1936] SASR 209 …. 10.77 R M Hosking Properties Pty Ltd v Barnes [1971] SASR 100 …. 5.96, 5.97, 5.102, 5.103, 5.134 R (on the application of Best) v Chief Land Registrar and the Secretary of

State for Justice [2015] EWCA Civ 17 …. 2.96 Race v Ward (1855) 4 Ellis & Blackburn 702; 119 ER 259 …. 10.147C Radaich v Smith (1959) 101 CLR 209; ALR 1253 …. 1.28C, 8.22C, 8.23, 8.26, 8.27, 8.28, 8.29, 8.213 Raffaele v Raffaele [1962] WAR 29 …. 4.145 Rainbowforce Pty Ltd v Skyton Holdings Ltd (2010) 171 LGERA 286; [2010] NSWLEC 2; …. 10.102C Rains v Buxton (1880) 14 Ch D 537 …. 2.102 Rakus v Energy Australia (2004) 138 LGERA 373 …. 8.23 Ramnarace v Lutchman [2001] 1 WLR 1651 …. 2.89 Ramsay v Trustees Executors & Agency Co Ltd (1948) 77 CLR 321; [1949] ALR 105 …. 3.34, 7.12 Ramsden v Dyson (1866) LR 1 HL 129 …. 4.141C, 4.147C, 4.151C, 4.164C, 4.166C Rance v Elvin (1985) 50 P & CR 9 …. 10.52 Randazzo v Goulding [1968] Qd R 433 …. 8.119 Rasch Nominees Pty Ltd v Bartholomaeus (2013) 115 SASR 473 …. 5.88, 5.113 Rasmanis v Jurewitsch [1968] 2 NSWR 166 …. 6.70 — v — [1970] 1 NSWR 650; (1969) 70 SR (NSW) 407; 90 WN (NSW) Pt 2 154 …. 6.70 Rasmussen v Rasmussen [1995] 1 VR 613 …. 4.118, 4.121, 5.71, 5.72C, 5.74

Ratcliffe v Watters (1969) 89 WN (Pt 1) (NSW) 497; [1969] 2 NSWR 146 …. 5.70C Rawcliffe v Custom Credit Corporation (1994) ATPR ¶41-292 …. 11.111 Rawlinson v Ames [1925] Ch 96 …. 4.49 Rawson v Samuel (1841) Cr & Ph 161; 41 ER 451 …. 8.201C Ray v Fairway Motors (Barnstaple) Ltd (1968) 20 P & CR 261 …. 10.111 — v Hazeldine [1904] 2 Ch 17 …. 10.76 Rayburn v Wolf (1985) 50 P & CR 463 …. 8.113 RDN Developments Pty Ltd v Shtrambrandt [2011] VSC 130 …. 5.178 Rede v Farr (1817) 6 M & S 121; 105 ER 1188 …. 8.164 Redland Bricks Ltd v Morris [1970] AC 652; [1969] 2 All ER 576 …. 10.97 Rees v Rees [1931] SASR 78 …. 6.42 Reeve v Lisle [1902] AC 461 …. 11.47 Refina Pty Ltd v Binnie [2010] NSWCA 192 …. 5.149 Regal Castings Ltd v GM and GN Lightbody [2009] 2 NZLR 433 …. 5.74 Regency Villas Title Ltd v Diamond Resorts (Europe) Ltd [2015] EWHC 3564 …. 10.16, 10.17C, 10.21C, 10.24 Regent v Millett (1976) 133 CLR 679; 10 ALR 496 …. 4.44, 4.46, 4.49 Regent Oil Co Ltd v J A Gregory (Hatch End) Ltd [1966] Ch 402; [1965] 3 All ER 673 …. 8.51, 9.34C, 9.38, 11.134 Regis Property Co Ltd v Dudley [1959] AC 370; [1958] 3 All ER 491 …. 8.88, 8.99 Registrar-General v Behn [1980] 1 NSWLR 589 …. 5.223

— v Cleaver (1996) 41 NSWLR 713; 7 BPR 15,040 …. 5.214 — v Harris (1998) 45 NSWLR 404 …. 5.212 Registrar-General (NSW) v Cihan (2012) 16 BPR 30,845 …. 5.120 — v JEA Holdings (Aust) Pty Ltd (2015) 17 BPR 33,845; [2015] NSWCA 74 …. 10.30, 10.133 Registrar of Titles v Spencer (1909) 9 CLR 641 …. 5.223 Registrar of Titles (Q) v Crowle (1947) 75 CLR 191 …. 5.223 Registrar of Titles (WA) v Franzon (1975) 132 CLR 611 …. 5.122, 5.214, 5.215 Reid v Bickerstaff [1909] 2 Ch 305; [1908–10] All ER Rep 298 …. 9.73, 9.77 — v Earle (1914) 18 CLR 493 …. 7.56 — v Shaw (1906) 3 CLR 656 …. 1.80C — v Smith (1905) 3 CLR 656 …. 1.84, 1.85C Reilly v Booth (1890) 44 Ch D 12 …. 10.27C — v Liangis (2000) 9 BPR 17,509 …. 8.88 Reitsema v Reitsema (1991) 15 Fam LR 706 …. 4.139 Renaghan v Breen [2000] NIJB 174 …. 2.108 Renals v Cowlishaw (1878) 9 Ch D 125; [1874–80] All ER Rep 359 …. 9.49C, 9.50, 9.52C, 9.62C, 9.67C, 9.73 Renals v Cowlishaw (1879) 11 Ch D 866 …. 9.50, 9.52C, 9.73 Rendell v Associated Finance Pty Ltd [1957] VR 604 …. 1.110C, 1.112 Reuthlinger v MacDonald [1976] 1 NSWLR 88 …. 7.2C, 7.4, 7.5, 7.11

Reynolds v Ashby & Son [1904] AC 466 …. 1.80C Rhone v Stephens [1994] 2 WLR 429 …. 9.20, 9.40 R&I Bank of Western Australia Ltd v Lavery (SC (WA), 25 October 1993, unreported) …. 11.106 Rice v Rice (1854) 2 Drew 73; 61 ER 646 …. 4.196C, 4.198, 4.199, 4.200, 4.201, 5.48C, 5.180C, 5.184, 5.185C, 5.191, 5.194C Richards v Rose (1853) 9 Ex 218; 156 ER 93; [1843–60] All ER Rep 827 …. 10.47, 10.79C, 10.80 Richardson v Graham [1908] 1 KB 39 …. 9.92C, 10.20 — v Landecker (1950) 50 SR (NSW) 250 …. 8.53 — v Somas [1967] WAR 109 …. 8.116 Riches v Hogben [1985] 2 Qd R 292 …. 4.162C, 4.166C — v — [1986] 1 Qd R 315 …. 4.142, 4.148 Ricketts v Enfield Churchwardens [1909] 1 Ch 544 …. 8.127 Ridgeway and Smith’s Contract, Re [1930] VLR 111 …. 10.7 Ridis v Proprietors of Strata Plan 10308 (2005) 63 NSWLR 449 …. 8.81 Ridley, Re; Buckton v Hay (1879) 11 Ch D 645 …. 7.2C Riley v Nelson (1965) 119 CLR 131; [1966] ALR 663 …. 5.18 — v Osborne [1986] VR 193 …. 4.44 — v Pentilla [1974] VR 547; (1974) 30 LGRA 79 …. 2.94, 5.142, 9.92C, 10.17C, 10.23, 10.35C, 10.107, 10.108 Rimmer v Pearson (2000) 79 P & CR D21 …. 2.101 — v Rimmer [1953] 1 QB 63; [1952] 1 All ER 863 …. 4.113

— v Webster [1902] 2 Ch 163 …. 5.180C Rising Developments Pty Ltd v Hoskins (1996) 39 NSWLR 157 …. 5.169 Risk v Northern Territory of Australia [2006] FCA 404 …. 3.107 — v — [2007] FCAFC 46 …. 3.107 RJ Finlayson Ltd v Elder Smith & Co Ltd [1936] SASR 209 …. 9.52C Roake v Chadha [1983] 3 All ER 503; [1984] 1 WLR 40 …. 9.54 Roberts v District Land Registrar of Gisborne (1909) 28 NZLR 616 …. 5.55C — v Karr (1809) 1 Taunt 495; 127 ER 926 …. 10.142C — v Rose (1865) LR 1 Ex 82 …. 10.104 — v Waverley Municipal Council (1988) 14 NSWLR 423 …. 8.213 Roberston v Fraser (1871) 6 Ch App 696 …. 6.8, 6.10 — v Keith (1870) 1 VLR (E) 11 …. 5.131 — v Preston (1858) 4 K & J 505; 70 ER 211 …. 6.16 — v Registrar-General [1983] NSW ConvR ¶55-128 …. 5.225C — v Western Australian Museum (1977) 138 CLR 283 …. 2.43 Robson, Re [1916] 1 Ch 116 …. 3.64 Roche v Douglas [2000] WASC 146 …. 1.41 Roche and Murdoch’s Contract, Re [1921] VLR 296 …. 10.63 Rochefoucauld v Boustead [1897] 1 Ch 196 …. 4.95C, 4.118 Rochester Investments Pty Ltd v Couchman (1969) 90 WN (NSW) (Pt 1) 371 …. 5.231 Rock v Todeschino [1983] 1 Qd R 356 …. 10.121

Rodrigues v Bethlehem Steel Corp (1974) 12 Cal 3d 382; 115 Cal Rptr 765; 525 P 2d 669 …. 1.36C Rodwell v G R Evans & Co Pty Ltd [1978] 1 NSWLR 448 …. 10.7, 10.51, 10.91 Rogers v Hosegood [1900] 2 Ch 388; [1900–3] All ER Rep 915 …. 8.190C, 9.23C, 9.49C, 9.52C, 9.57 — v Resi-Statewide Corp Ltd (1991) 101 ALR 377 …. 5.51 — v Rice [1892] 2 Ch 170 …. 8.172 — v Spence (1844) 13 M&W 571; 153 ER 239 …. 2.4 Ron Medich Properties Pty Ltd v Mcgurk (2010) 15 BPR 28,399 …. 5.174 Rosa Investments Pty Ltd v Spencer Shier Pty Ltd [1965] VR 97 …. 8.162, 8.183C Rose, Re [1952] Ch 499; [1952] 1 All ER 1217 …. 4.82, 4.83, 4.85C Rose v Commissioner of Stamps (1979) 22 SASR 84 …. 4.29 — v Rose (1986) 7 NSWLR 679 …. 4.29 — v Watson (1864) 10 HLC 672 …. 4.52C Rose Bay Bowling and Recreation Club Ltd, Re (1935) 52 WN (NSW) 77 …. 9.92C Rosher, Re (1884) 26 Ch D 801 …. 7.2C Ross v Bank of Commerce (Saint Kitts Nevis) Trust and Savings Assn Ltd [2012] UKPC 3 …. 11.18 Rowe v Wood (1822) 2 Jac & W 553; 37 ER 740 …. 11.127 Roy v Lagona [2010] VSC 250 …. 2.108

Royalene Pty Ltd v Registrar of Titles (2008) Q ConvR ¶54-689; [2008] QSC 64 …. 5.59, 5.82, 5.83 Rudd v Cinderella Rockerfellas Ltd [2003] 1 WLR 2423 …. 1.87 Rufa Pty Ltd v Cross [1981] Qd R 365 …. 10.52 Rugby School (Governors) v Tannahill [1934] 1 KB 695 …. 8.154 — v — [1935] 1 KB 87 …. 8.154 Rushton v Smith [1975] 2 All ER 906 …. 4.71 Russel v Russel (1783) 1 Bro CC 269 …. 4.49, 11.18 Russell v Scott (1936) 55 CLR 440; [1936] ALR 375; 10 ALJ 211 …. 4.84 — v Wilson (1923) 33 CLR 538 …. 2.8 Russo v Bendigo Bank Ltd (1993) 3 VR 376 …. 5.82, 5.91C, 5.95, 5.98 Ruthol Pty Ltd v Mills (2003) 11 BPR 20,793; [2003] NSWCA 56 …. 4.210C, 4.213, 5.196 Ryan v Brain [1994] 1 Qd R 681 …. 9.112 — v Dries (2002) 10 BPR 19,497; [2003] ANZ ConvR 47; [2002] NSWCA 3 …. 6.36C, 6.41, 6.44, 6.45 — v Kalocsay [2009] NSWSC 1009 …. 5.169 — v King [1932] QWN 1 …. 6.86 — v Nothelfer (1983) NSW ConvR ¶55-119 …. 5.190 — v Sutherland (2011) 16 BPR 30,101 …. 10.27C Ryde Joinery Pty Ltd v Zisti (1997) 7 BPR 97 638 …. 8.148 Ryder v Taylor (1935) 36 SR (NSW) 31 …. 9.7C

S

S & D International Pty Ltd, Re (in liq) (recs and mgrs apptd) [2009] VSC 225 …. 11.25 S & E Promotions Pty Ltd v Tobin Brothers Pty Ltd (1994) 122 ALR 637 …. 4.155 S & M Ceramics Pty Ltd v Kin [1996] 2 Qd R 540 …. 10.39 Saade v Registrar-General (1993) 118 ALR 219 …. 5.214 Sacher Investments Pty Ltd v Forma Stereo Consultants Pty Ltd [1976] 1 NSWLR 5 …. 8.148, 9.7C Sahade v Owners Corporation SP 62022 [2013] NSWSC 1791 …. 5.123 Sakoua v Williams (2005) 64 NSWLR 588 …. 8.85 Saleeba v Wilke [2007] QSC 298 …. 6.64 Salter v Clarke (1904) 4 SR (NSW) 280; 21 WN (NSW) 71 …. 2.108 Salvin’s Indenture, Re [1938] 2 All ER 498 …. 10.3C, 10.5 Sampi v Western Australia [2005] FCA 777 …. 3.100 Samuel v Jarrah Timber and Wood Paving Corp Ltd [1904] AC 323 …. 11.45C, 11.47, 11.50C, 11.53C, 11.56 Samuel Allen & Sons Ltd, Re [1907] 1 Ch 575; [1904–7] All ER Rep 785 …. 4.197 Sandbank Holdings Pty Ltd v Durkan [2010] WASCA 122 …. 8.207 Sanders v Cooper [1974] WAR 129 …. 8.214 Sanderson v Berwick-upon-Tweed Corporation (1884) 13 QBD 547 …. 8.74 Sandgate Corporation Pty Ltd v Ionnou Nominees Pty Ltd (2000) 22 WAR

172 …. 11.96 Sandhurst Mutual Permanent Investment Building Society v Gissing (1889) 15 VLR 329 …. 5.133 Sandhurst Trustees Ltd v Australian Country Cinemas Pty Ltd [2006] QSC 165 …. 8.128 Sanma Australia Leasing Ltd v National Westminster Finance Australia (1988) 4 BPR 97,294 …. 1.83 Santley v Wilde [1899] 2 Ch 474 …. 11.46 Saraswati v R (1991) 172 CLR 1 …. 5.154C Sarson v Roberts [1895] 2 QB 395 …. 8.76 Saunders v Vautier (1841) Cr & Ph 240; 49 ER 282; 4 Beav 115; 41 ER 482 …. 7.27, 7.74 Savill v Chase Holdings (Wellington) Ltd [1989] 1 NZLR 257 …. 5.178 Savva v Houssein [1996] NPC 64 …. 8.155 Say v Smith and Fuller (1530) 1 Plow 269; 75 ER 410 …. 8.14, 8.15C Scala House and District Ltd v Forbes [1974] QB 575; [1973] 3 All ER 308 …. 8.155 Scandinavian Pacific Ltd v Burke (1991) 5 BPR 97,413; NSW ConvR 55575 …. 11.81C, 11.113 Scapinello v Scapinello [1968] SASR 316 …. 6.41 Scarcella v Linknarf Management Services Pty Ltd (in liq) (2005) NSW ConvR 56-106; [2004] NSWSC 360 …. 8.116, 8.196 Schebsman, Re [1944] Ch 83 …. 9.7C

Schmeling v Stankovic (1984) 3 BPR 9325 …. 6.23 Schibaia v Elias [2013] NSWSC 1485 …. 5.174 Shrivdev Singh v Sucha Singh [2000] AIR (1st Supp) 1935 …. 11.45C Schmidt v 28 Myola Street Pty Ltd (2006) 14 VR 447 …. 5.170, 5.171 Schultz v Corwill Properties Pty Ltd [1969] 2 NSWR 576; (1969) 90 WN (NSW) (Pt 1) 529 …. 5.86, 5.87, 5.89 Schwann v Cotton [1916] 2 Ch 120; [1916–17] All ER Rep 368 …. 10.63 — v — [1916] 2 Ch 459 …. 10.61C Scott v Davis (2000) 204 CLR 333 …. 10.140C — v Scott [2009] NSWSC 567 …. 6.67 — v Southern Pacific Mortgages Ltd [2015] AC 385; [2015] 1 All ER 277; [2014] UKSC 52 …. 4.60 Seaforth Land Sales Pty Ltd’s Land, Re (No 2) [1977] Qd R 317 …. 10.98, 10.100C Seawell v Webster (1859) 29 LJ Ch 71 …. 4.52C Seay v Bacon (1856) 4 Sneed (TN) 99; 36 Tenn 99; 1856 WL 2500 …. 2.10C Secretary, Department of Social Security v James (1990) 85 ALR 615 …. 4.103, 4.104C Seddon v Smith (1877) 36 LT 168 …. 2.92C, 2.93, 2.94 Sedleigh-Denfield v O’Callaghan [1940] AC 880 …. 8.69C Sefton v Tophams Ltd [1967] 1 AC 60; [1966] 1 All ER 1039 …. 9.52C, 9.89

Segal v Barel (2013) 16 BPR 31,457; [2013] NSWCA 92 …. 6.82, 6.83 Selby v Alston (1797) 3 Ves 339; 30 ER 1042 …. 6.27 Selous, Re [1901] 1 Ch 921 …. 6.27 Selous Street Properties v Oronel Fabrics (1984) 270 EG 643 …. 8.125 Selwyn Bibby v Suintra Partap [1991] 1 WLR 931 …. 2.62 Serjeant v Nash, Field & Co [1903] 2 KB 304; [1900–3] All ER Rep 252 …. 8.158 Sertari Pty Ltd v Nirimba Developments Pty Ltd [2007] NSWCA 324 …. 10.36, 10.42C Shanahan v Fitzgerald [1982] 2 NSWLR 513 …. 4.66 Shannon Ltd v Venner Ltd [1965] Ch 682; [1965] 1 All ER 590 …. 10.3C, 10.33C Shannon’s Transfer, Re [1967] Tas SR 245 …. 6.61, 6.63 Sharp v Anderson (1994) 6 BPR 13,801 …. 4.142 Sharpe, Re [1980] 1 All ER 198 …. 4.142 Shaw v Appleyard [1978] 1 All ER 123; [1977] 1 WLR 970 …. 9.47, 9.90 — v Garbutt (1996) 7 BPR 14,816; (1997) NSW ConvR ¶55-801 …. 2.108, 2.109 — v Foster (1872) LR 5 HL 321 …. 4.52C Shaw Excavations Pty Ltd v Portfolio Investments Pty Ltd (2000) 9 Tas R 444 …. 5.171 Shawyer v Amberday (2001) 10 BPR 18,869 …. 4.205 Shebsman, Re; Official Receiver v Cargo Superintendents (London) Ltd

[1944] Ch 83 …. 5.101C Sheehy v Hobbs [2012] QSC 333 …. 8.85, 8.87 Shelfer v City of London Electric Lighting Co [1895] 1 Ch 287 …. 1.72, 1.73, 1.74 Shelmerdine v Ringen Pty Ltd [1993] 1 VR 315 …. 10.107, 10.108 Shell-Mex and BP Ltd v Manchester Garages Ltd [1971] 1 All ER 841; [1971] 1 WLR 612 …. 8.28 Shelmerdine v Ringen Pty Ltd [1993] 1 VR 315 …. 2.108 Shephard v Cartwright [1955] AC 431 …. 4.110 — v Corindi Blueberry Growers Pty Ltd (1994) 6 BPR 13,672 …. 4.65 Shepherd v FC of T (1965) 113 CLR 385; 39 ALJR 351 …. 4.84 Shepherd Homes v Sandham (No 2) [1971] 2 All ER 1267; [1971] 1 WLR 1062 …. 9.40 Shevill v Builders Licensing Board (1982) 149 CLR 620; 42 ALR 305 …. 8.48, 8.183C, 8.189, 8.190C Shi v Abi-K Pty Ltd (2014) 87 NSWLR 568; [2014] NSWCA 293 …. 10.101, 10.102C Shiloh Spinners Ltd v Harding [1973] AC 691; [1973] 1 All ER 90; [1973] 2 WLR 28 …. 4.57C, 8.160, 8.166C, 8.175, 8.176, 8.197C, 9.21 Shire Council v Picton Power Lines Pty Ltd (1994) 33 NSWLR 551 …. 7.10 Short v Patrial Holdings Pty Ltd (1994) 6 BPR 13,996 …. 10.18 Shrimpton v Shrimpton (1862) 31 Beav 425; 54 ER 1203 …. 7.27

Shropshire Union Railways & Canal Co v R (1875) LR 7 HL 496 …. 4.199, 4.200, 5.48C, 5.180C, 5.185C, 5.191 Sibbles v Highfern Pty Ltd (1987) 164 CLR 214; 76 ALR 13; 62 ALJR 55 …. 11.33 Sidhu v Van Dyke (2014) 308 ALR 232 …. 4.170, 4.171C, 4.172 Siemenowski v Sellers [2009] NSWCA 245 …. 4.112 Siemenski v Brooks Nominees [1990] Tas R 236 …. 9.111 Sigma Constructions (Vic) Pty Ltd v Maryvell Investments Pty Ltd [2004] VSCA 242 …. 1.22 Silkdale Pty Ltd v Long Leys Co Pty Ltd (1995) 7 BPR 14,414 …. 11.128 Silktone Pty Ltd v Devreal Capital Pty Ltd (1990) 21 NSWLR 317 …. 4.208 Silovi Pty Ltd v Barbaro (1988) 13 NSWLR 466 …. 4.149, 8.180 Silven Properties Ltd v Royal Bank of Scotland plc [2004] 1 WLR 997 …. 11.80 Simons v David Benge Motors Pty Ltd [1974] VR 585 …. 5.169 Simpson v Forrester (1973) 132 CLR 499; 47 ALR 149 …. 11.119 — v Weber (1925) 133 LT 46 …. 10.77 Sims v SPM Business Consultants Pty Ltd [2002] FCA 1588 …. 2.43 Sinclair v Hope Investments Pty Ltd [1982] 2 NSWLR 870 …. 4.205, 4.208, 5.171, 11.106 Singh v Kaur Bal (No 2) [2014] WASCA 88 …. 6.62 Siple v Blow (1904) 8 OLR 547 …. 10.42C

Sistrom v Urh (1992) 40 FCR 550; 117 ALR 528 …. 4.86 Skelton (William) & Son Ltd v Harrison & Pinder Ltd [1975] QB 361; [1975] 1 All ER 182 …. 8.10 Skinner v Chapman (1827) Mood & M 59; 173 ER 1081 …. 2.4 Skiwing Pty Ltd v Trust Company of Australia [2006] NSWCA 276 …. 8.106 Slater v Slater (1987) 12 Fam LR 1 …. 6.66 Sleafer v Lambeth Borough Council [1960] 1 QB 43; [1959] 3 All ER 378 …. 8.94 Sledmore v Dalby [1996] EWCA Civ 1305; (1996) 72 P & CR 196 …. 4.166C Small v Gray [2004] NSWSC 97 …. 5.57 — v Jones [1954] 2 All ER 823; [1954] 1 WLR 1089 …. 4.188C, 4.209, 4.211 — v Lloyd (1854) 9 Exch 562; 156 ER 240 …. 2.89 — v Marrable (1843) 11 M & W 6; 152 ER 693 …. 8.76 — v Scott [1973] Ch 314; [1972] 3 All ER 645 …. 8.73 Smith and Snipes Hall Farm Ltd v River Douglas Catchment Board [1949] 2 KB 500; [1949] 2 All ER 179 …. 9.6, 9.23C, 9.29, 9.47, 9.52C Snowlong Pty Ltd v Choe (1991) 23 NSWLR 198 …. 5.102 Solak v Bank of Western Australia Ltd [2009] VSC 82 …. 5.64, 5.65 — v Registrar of Titles (2011) 33 VR 40; [2011] VSCA 279 …. 5.50, 5.68, 5.156, 5.212

Solling v Broughton [1893] AC 556; (1893) 14 LR (NSW) 412 …. 2.108 Solomon v Bray (1873) 8 SALR 128 …. 8.45 Somerset v Stewart (Somerset’s Case) (1772) Lofft 1; 20 State Tr 1; 98 ER 499 …. 1.34E, 2.10C Somma v Hazlehurst [1978] 2 All ER 1011; [1978] 1 WLR 1014 …. 8.23 South Australian Co v City of Port Adelaide [1914] SALR 16 …. 2.86 South Eastern Sydney Area Health Service v Wallace (2003) 59 NSWLR 259 …. 7.27 South Maitland Railways Pty Ltd v Satellite Centres Aust Pty Ltd [2009] NSWSC 716 …. 2.93 South Staffordshire Water Co v Sharman [1896] 2 QB 44; [1895–9] All ER Rep 259 …. 2.34C, 2.36, 2.41 South Sydney Council v Royal Botanic Gardens [1999] NSWCA 478 …. 7.11 South-Eastern Drainage Board (SA) v Savings Bank of South Australia (1939) 62 CLR 603; [1940] ALR 1 …. 5.150, 5.151, 5.158 Southern Centre of Theosophy Inc v South Australia [1982] AC 706; (1981) 38 ALR 587; [1981] 1 All ER 283 …. 1.104C, 1.108 Southern Goldfields Ltd v General Credits Ltd (1991) 4 WAR 138 …. 11.74C, 11.75, 11.78 Southern Depot Company v British Railways Board [1990] 2 EGLR 39 …. 8.176 Southwark London Borough Council v Tanner [2001] 1 AC 1 …. 8.71

Southwell v Roberts (1940) 63 CLR 581; [1940] HCA 23 …. 11.45C Sovmonts Ltd v Enviroment Secretary [1977] QB 411 …. 10.61C Sovmots Investments Ltd v Secretary of State for the Environment [1979] AC 144; [1977] 2 All ER 385; [1977] 2 WLR 951 …. 10.61C, 10.64, 10.71 Spark v Meers [1971] 2 NSWLR 1 …. 2.57, 5.149 — v Whale Three Minute Car Wash (Cremorne Junction) Pty Ltd (1970) 92 WN (NSW) 1087 …. 2.57, 4.176, 5.149 Sparta Nominees Pty Ltd v Orchard Holdings Pty Ltd [2002] WASC 54 …. 8.105 Specialist Diagnostic Services Pty Ltd v Healthscope Ltd (2012) 305 ALR 569 …. 8.65 Spencer’s case (1583) 5 Co Rep 16a; 77 ER 72 …. 8.126, 8.138, 9.23C Spicer v Martin (1888) 14 App Cas 12; [1886–90] All ER Rep 461 …. 9.73, 9.119C Spina v Conran Associates Pty Ltd (2008) NSW ConvR ¶56-218; [2008] NSWSC 326 …. 5.53, 5.112 Sports and General Press Agency Ltd v ‘Our Dogs’ Publishing Co Ltd [1916] 2 KB 880 …. 1.46C Spyer v Phillipson [1931] 2 Ch 183 …. 1.80C, 1.89 Squarey v Harris-Smith (1981) 42 P & CR 118 …. 10.71 Squire v Rogers (1979) 27 ALR 330 …. 6.46, 6.79 St Edmundsbury and Ipswich Diocesan Board of Finance v Clark (No 2)

[1975] 1 All ER 772; [1975] 1 WLR 468 …. 10.38 St George Bank v Wright (2015) 17 BPR 34,055; [2015] NSWSC 255 …. 6.62 St George Bank Ltd v McTaggart [2007] WASC 150 …. 11.33 Standard Chartered Bank Ltd v Walker [1982] 3 All ER 938; [1982] 1 WLR 1410 …. 11.79, 11.81C Standard Electronic Apparatus Laboratories Pty Ltd v Stenner [1960] NSWR 447 …. 2.28, 2.29 Standing v Bowring (1885) 31 Ch D 282 …. 9.7C Stanford v Hurlstone (1873) LR 9 Ch App 116 …. 2.52C Stanwell Park Hotel Co Ltd v Leslie (1952) 85 CLR 189 …. 11.48 Stapleford Colliery Co, Re (1880) 14 Ch D 432 …. 4.185 Starceavich v Swart & Associates Pty Ltd [2006] NSWSC 960 …. 11.127 State Bank of New South Wales v Berowra Waters Holdings Pty Ltd (1986) 4 NSWLR 398; NSW ConvR ¶55-281 …. 5.114, 5.122 State Bank of New South Wales v Yee (1994) 33 NSWLR 618 …. 5.90 State Electricity Commission of Victoria and Joshua’s Contract, Re [1940] VLR 121 …. 10.49, 10.77 State of New South Wales v Banabelle (2002) 54 NSWLR 503 …. 8.119 — v Koumdjiev (2005) 63 NSWLR 353 …. 6.51 State of Queensland v Congoo (2015) 320 ALR 1 …. 3.126C State of Western Australia v Ward (2000) 99 FCR 316 …. 3.99 State Rail Authority of New South Wales v Heath Outdoor Pty Ltd (1986) 7

NSWLR 170 …. 4.153C State Transit Authority v Australian Jockey Club (2003) 11 BPR 21,107 …. 10.40 Steadman v Steadman [1976] AC 536 …. 4.44, 4.45 Stedman v Smith (1857) 8 E1 & B1 1; 120 ER 1 …. 6.28 Steel-Smith v Liberty Financial Pty Ltd [2005] NSWSC 398 …. 5.89 Stehar Knitting Mills Pty Ltd v Southern Textile Converters Pty Ltd [1980] NSWLR 514 …. 8.204 Steindlberger v Mistroni (1992) 29 NSWLR 351; 5 BPR 11,529 …. 11.124 Stephens v Debney (1960) 60 SR (NSW) 468 …. 6.84 Stern v McArthur (1988) 165 CLR 489; [1988] HCA 51 …. 4.57C, 11.45C Sterns Trading Pty Ltd v Steinman (1988) NSW ConvR 55–414 …. 7.68 Stevens v Allan (1955) 58 WALR 1 …. 10.118 Stevenson v Yasso [2006] QCA 40 …. 3.101 Stewart v Cooper [1986] TASSC 3; [1986] ANZ ConvR 631 …. 10.42C Stieper v Deviot Pty Ltd (1977) 2 BPR 9602 …. 8.166C, 8.176 Stilwell v Blackman [1968] Ch 508; [1967] 3 All ER 514 …. 9.70 Stockl v Rigura Pty Ltd (2004) 12 BPR 23,151 …. 11.87C, 11.94 Stone, Re (1936) 36 SR (NSW) 308 …. 3.6 Stone, Re [1989] 1 Qd R 351 …. 6.72 Stone v Leonardis (2011) 110 SASR 503; [2011] SASC 153 …. 5.171, 5.176, 11.106 — v Registrar of Titles [2012] WASC 21 …. 6.55

— v Stone (2014) 17 BPR 33,443 …. 6.85 Story v Advance Australia Bank Ltd (1993) 31 NSWLR 722 …. 5.53, 5.109 Stow v Mineral Holdings (Australia) Pty Ltd (1977) 180 CLR 295; 14 ALR 397 …. 1.12C, 1.60 Stowe and Devereaux Holdings Pty Ltd v Stowe (1995) 19 Fam LR 409 …. 4.118 Strand and Savoy Properties Ltd, Re [1960] Ch 582; [1960] 2 All ER 327 …. 8.54 Strang v Gray (1952) 55 WALR 9 …. 8.107 Stratulatos v Stratulatos [1988] 1 NZLR 424 …. 4.162C Streatfield v Winchcombe Carson Trustee Co (Canberra) Ltd [1981] 1 NSWLR 519 …. 8.30 Street v Mountford [1985] AC 809; [1985] 2 All ER 289; [1985] 2 WLR 877 …. 1.28C, 8.27, 8.29 Strelly v Winson (1685) 1 Vern 297; 23 ER 480 …. 6.41 Stromdale and Ball Ltd v Burden [1952] Ch 223; [1952] 1 All ER 59 …. 9.10, 9.11 Strong v Bird (1874) LR 18 Eq 315; [1874–80] All ER Rep 230 …. 4.85C, 4.86 Stroyan v Knowles (1861) 6 H & N 454 …. 10.97 Stuart v Kingston (1923) 32 CLR 309 …. 5.101C Stump v Gaby (1852) 2 De GM & G 623; 42 ER 1015 …. 4.203C Stuy v BC Ronalds Pty Ltd [1984] 2 Qd R 578 …. 10.126

Suffield v Brown (1864) 4 De GJ & s 185; 46 ER 888 …. 10.79C Suhr v Michelmore [2013] VSC 284 …. 9.88, 9.89 Sullivan v McMahon [1999] WASC 84 …. 5.172 Sun North Investments Pty Ltd (as Trustee of the Sun Development Trust) v Dale [2014] 1 Qd R 369; [2013] QSC 44 …. 11.53C, 11.54, 11.58 Sunny Corporation Pty Ltd v Elkayess Nominees Pty Ltd [2006] VSC 314 …. 2.100 Sunstar Fruit Pty Ltd v Cosmo [1995] 2 Qd R 214 …. 1.99 Sussman v AGC (Advances) Ltd (1991) 5 BPR 11,822 …. 11.40 Suttill v Graham [1977] 1 WLR 819 …. 6.36C Sutton v Sutton (1882) 22 Ch D 511 …. 11.118 Suttons Motors (Temora) Pty Ltd v Hollywood Motors Pty Ltd [1971] VR 684 …. 2.24 Swain v Ayres (1888) 21 QBD 289 …. 4.76 — v Law Society [1983] 1 AC 598 …. 9.7C Swan v Secureland Mortgage Investment Nominees Ltd (1992) 2 NZLR 144 …. 5.187 — v Sinclair [1924] 1 Ch 254 …. 10.107 — v — [1925] AC 227; [1924] All ER Rep 277 …. 10.107 — v Uecker [2016] VSC 313 …. 8.25C, 8.28, 8.109 Swans, Re Case of [1592] EngR 403; (1592) 7 Co Rep 15b; 77 ER 435 …. 2.10C

Swansborough v Coventry (1832) 9 Bing 305; 131 ER 629 …. 10.63, 10.80 Swanson v Forton [1949] Ch 143; [1949] 1 All ER 135 …. 8.112 Swanston Mortgage Pty Ltd v Trepan Investments Pty Ltd [1994] 1 VR 672; [1994] ANZ ConvR 176 …. 4.202, 4.208, 4.212, 5.171, 11.105, 11.106 Swanville Investment Pty Ltd v Riana Pty Ltd [2003] WASCA 121 …. 8.44 Sweet v Sommer [2004] EWHC 1504 …. 10.76 Swerus v Central Mortgage Registry of Australia Pty Ltd [1989] ANZ ConvR 169 …. 11.87C Swift v Westpac Banking Corporation (1995) ATPR ¶40-426 …. 11.111 Symes v Pitt [1952] VLR 412 …. 2.109 Symson v Turner (1700) 1 Eq Cas Abr 383; 21 ER 1119 …. 3.58, 3.60 Szew To Chun Keung v Jung Kwok Wai David [1997] 1 WLR 1232 …. 2.109

T Tabcorp Holdings Ltd v Bowen Investments Pty Ltd (2009) 236 CLR 272 …. 8.107 Taddeo v Catalano (1975) 11 SASR 492 …. 5.201 Taleb v National Australia Bank Ltd (2011) 82 NSWLR 489; [2011] NSWSC 1562 …. 5.190, 5.201, 5.205 Talga Investments Pty Ltd v Tweed Canal Estates Pty Ltd [1974] 1 BPR 9675 …. 10.56 Tall-Bennett & Co Pty Ltd v Sadot Holdings Pty Ltd (1988) 4 BPR 9522

…. 8.188 Tallon v The Proprietors of Metropolitan Towers Building Units Plan No 5157 [1997] 1 Qd R 102 …. 1.106 Tamsco Ltd v Franklins Ltd [(2001) 10 BPR 19,077 …. 8.114C Tan Ying Hong v Tan Sian San [2010] 2 CLJ 269 …. 5.46 Tancred v Allgood (1859) 4 H & N 438; 157 ER 910 …. 2.31 Tanner v Stocks and Realty (Premises) Pty Ltd [1972] 2 NSWLR 722 …. 8.119 — v Tanner [1975] 3 All ER 776; [1975] 1 WLR 1346 …. 4.117C Tannous v Cipolla Bros Holdings Pty Ltd [2001] NSWSC 236 …. 8.167 Tanwar Enterprises Pty Ltd v Cauchi (2003) 217 CLR 315; 201 ALR 359; [2003] HCA 57 …. 4.23, 4.57C, 4.58, 4.59, 4.60, 4.61, 11.45C Tanzone Pty Ltd v Westpac (1999) 9 BPR 17,287; [1999] NSW ConvR ¶55-908; [1999] NSWSC 478 …. 5.114 Tapling v Jones (1865) 11 HLC 290; 11 ER 1344 …. 1.46C Tara Shire Council v Garner [2002] QCA 232 …. 5.113 Tarrant v Zandstra (1973) 1 BPR 9381 …. 10.63 Tasevska v Tasevski [2011] NSWSC 174 …. 4.134 Tataurangi Tairuakena v Mua Carr [1927] NZLR 688 …. 5.41C, 5.113 Tattersall’s Hotel Penrith Pty Ltd v Permanent Trustee Co of New South Wales (1942) 42 SR (NSW) 104 …. 8.162 Taylor v Beal (1591) Cro Eliz 222; 78 ER 478 …. 8.201C, 8.203 — v Browning (1885) 11 VLR 158 …. 10.63, 10.118

— v Stibbert (1794) 2 Ves 437; 30 ER 713 …. 4.188C Taylors Fashions Ltd v Liverpool Victoria Trustees Co Ltd [1981] 1 All ER 897; [1981] 2 WLR 576 …. 4.148, 8.52 Tecbild Ltd v Chamberlain (1969) 20 P & Cr 633 …. 2.92C Tehidy Minerals Ltd v Norman [1971] 2 QB 528; [1971] 2 All ER 475 …. 10.94, 10.149 Telex (Australasia) Pty Ltd v Thomas Cook & Son (Australasia) Pty Ltd [1970] 2 NSWR 257 …. 8.60, 8.67 Telstra Corporation Ltd v Capetan Pty Ltd (1996) 7 BPR 14,744 …. 8.94 Templeton v Leviathan Pty Ltd (1921) 30 CLR 34; 28 ALR 95 …. 5.32, 5.181 Tendiris Pty Ltd v Ogle [2004] QSC 355 …. 11.101 Tenstat Pty Ltd v Permanent Trustee Aust (1992) 28 NSWLR 625 …. 5.56 Teparyl Pty Ltd v Willis (2010) 30 VR 485; [2010] VSCA 318 …. 8.133 Tepper’s Will Trusts, Re [1987] 1 Ch 358 …. 3.34 Texaco Antilles Ltd v Kernochan [1973] AC 609; [1973] 2 All ER 118 …. 9.77, 9.87, 9.92C, 9.94 Thamesmead Town Ltd v Allotey (2000) 79 P & CR 557 …. 9.21 The Winkfield [1902] P 42; [1900–3] All ER Rep 346 …. 2.15, 2.21C, 2.22, 2.23, 2.25, 2.29, 2.30 Thelluson v Woodford (1799) 4 Ves 227; 31 ER 117 …. 7.71 — v — (1805) 11 Ves 112; 32 ER 1030 …. 7.71 Theodore v Mistford (2005) 221 CLR 612; 219 ALR 296; [2005] HCA 45

…. 4.49, 11.18 Theodoropoulos v Theodosiou (1995) 19 Fam LR 632 …. 4.139 Thomas v Hayward (1869) LR 4 Ex 311; [1861–73] All ER Rep 290 …. 8.141C — v Sorrell (1673) Vaughn 330; 124 ER 1098 …. 1.16, 1.18C, 8.22C — v Thomas [1956] NZLR 785 …. 4.145 Thomas Cook Pty Ltd v Commonwealth Banking Corp (1986) NSW ConvR ¶155-286; 4 BPR 9185 …. 8.119 Thomopoulos v Faulks [2006] VSC 262 …. 10.90 Thompson v Palmer (1933) 49 CLR 507 …. 4.151C Thomson v Golden Destiny Investments Pty Ltd [2015] NSWSC 1176 …. 5.178 Thorner v Major [2009] All ER (D) 257; [2009] 1 WLR 776 …. 4.161, 4.164C, 4.165, 4.166C Thorpe v Brumfitt (1873) LR 8 Ch 650 …. 10.3C Thrift v Thrift (1975) 10 ALR 332 …. 6.28 Thwaites v Brahe (1895) 21 VLR 192 …. 10.95, 10.96 — v Ryan [1984] VR 65 …. 4.44 Thynne v Petrie [1975] Qd R 260 …. 10.97 Tichborne v Weir (1892) 67 LT 735; [1891–94] All ER Rep 448 …. 2.117, 8.134 Tidex v Trustees Executors and Agency Co Ltd [1971] 2 NSWLR 453 …. 7.40, 7.56, 7.60

Tietyens v Cox (1916) 17 SR (NSW) 48 …. 9.92C Tillack v Tillack [1941] VLR 151 …. 6.86 Tiller v Hawes [2005] NSWSC 1232 …. 10.25, 10.26 Tiltwood, Sussex, Re [1978] 1 Ch 269; [1978] 2 All ER 1091 …. 9.91, 9.92C Timber Top Realty Pty Ltd v Mullens [1974] VR 312 …. 4.145 Tipler v Fraser [1976] Qd R 272 …. 10.98 Titchmarsh v Royston Water Co Ltd (1899) 81 LT 673 …. 10.74 Tito v Waddell (No 2) [1977] Ch 106; [1977] 3 All ER 129 …. 9.19, 9.20 Todovoric v McWatt [1972] Tas SR 9 …. 10.97 Todrick v Western National Omnibus Co Limited [1934] 1 Ch 561 …. 10.33C Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; [2004] HCA 52 …. 2.10C Tolman’s Estate, Re (1928) 23 Tas LR 29 …. 6.41 Tomara Holdings v Pongrass (2002) 10 BPR 19,531 …. 10.116 Tomlin v Luce (1889) 43 Ch D 191 …. 11.76 Toohey v Gunther (1928) 41 CLR 181; [1928] HCA 19 …. 11.45C, 11.50C, 11.53C Toomes v Conset (1745) 3 Atk 261; 26 ER 952 …. 11.45C Torrisi v Magame Pty Ltd [1984] 1 NSWLR 14 …. 10.74, 10.123 — v Oliver [1951] VLR 380 …. 8.213 Tory v Tory [2007] NSWSC 1078 …. 6.83

Total Oil v Thompson Garages [1972] 1 QB 318 …. 8.183C Town and Country Sport Resorts (Holdings) Pty Ltd v Partnership Pacific Ltd (1988) 20 FCR 540; ATPR ¶40-911 …. 11.110, 11.111, 11.112 Toyota Finance Australia Ltd v Dennis (2002) 58 NSWLR 101 …. 2.24 Travinto Nominees Pty Ltd v Vlattas (1973) 129 CLR 1; [1972–73] ALR 1153; [1973] HCA 14 …. 5.55C, 5.56, 5.62C Tregoyd Gardens Pty Ltd v Jervis (1997) 8 BPR 15,845 …. 10.98 Treloar v Bigge (1874) LR 9 Exch 151 …. 8.117 Treweeke v 36 Wolseley Road Pty Ltd (1972) 128 CLR 274; 1 ALR 104 …. 9.92C, 10.42C, 10.106C, 10.107, 10.108, 10.116 Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107 …. 9.7C, 9.15 Trieste Investments Pty Ltd v Watson (1963) 64 SR (NSW) 98 …. 5.212 Trifid Pty Ltd v Ratto [1985] WAR 19 …. 4.45 Troja v Troja (1994) 33 NSWLR 269 …. 6.72, 6.73 Trustees Executors and Agency Co Ltd v Short (1888) 13 App Cas 793 …. 2.108 Trustees of Church Property of the Diocese of Newcastle v Ebbeck (1960) 104 CLR 394; [1961] ALR 339 …. 3.34, 3.35, 3.36, 7.12 Trustees of the Property of Cummins (a bankrupt) v Cummins (2006) 227 CLR 278 …. 4.109C Tse Kwong Lam v Wong Chit Sen [1983] 3 All ER 54; [1983] 1 WLR 1349 …. 11.70, 11.73, 11.73

Tsirikolias v Oakes (1993) 169 LSJS 249 …. 5.51 Tubantia, The [1924] P 78 …. 2.6 Tucker v Farm and General Investment Trust Ltd [1966] 2 QB 421; [1966] 2 All ER 508 …. 1.111 Tuckett v Brice [1917] VLR 36 …. 10.95 Tuck’s Settlement Trusts, Re [1978] Ch 49; [1978] 1 All ER 1047 …. 3.34, 7.12 Tujilo Pty Ltd v Watts [2005] NSWSC 209 …. 10.25 Tulk v Moxhay (1848) 1 H & Tw 105; 2 Ph 774; 41 ER 1143; 47 ER 1345; [1843-60] All ER Rep 9 …. 4.202, 9.16C, 9.22, 9.30C, 9.31, 9.32, 9.34C, 9.35, 9.40, 9.44, 9.51, 9.52C, 9.67C, 9.92C, 9.115C Turner v York Motors Pty Ltd (1951) 85 CLR 55; [1951] ALR 1055 …. 8.45 Tutita Pty Ltd v Ryleaco Pty Ltd (1989) 4 BPR 97,311 …. 8.197C Tutt v Doyle (1997) 42 NSWLR 10 …. 5.114 Tweddle v Atkinson (1861) 1 B & S 393; 121 ER 762 …. 9.7C Twentieth Century Banking Corp Ltd v Wilkinson [1977] Ch 99; [1976] 3 All ER 361 …. 11.117 Tyrrel’s case (1557) 2 Dyer 155a; 73 ER 336 …. 3.58, 3.60

U Ultimate Property Group Pty Ltd v Lord (2004) 60 NSWLR 646; [2004] NSWSC 114 …. 11.73, 11.77, 11.92 Ultra Marine Pty Ltd v Misson (1981) ANZ ConvR 229 …. 5.172

Union Bank of Scotland v National Bank of Scotland (1886) 12 AC 53 …. 11.31C Union Lighterage Co v London Graving Dock Co [1902] 2 Ch 557; [1900– 3] All ER Rep 234 …. 10.88 Union of London and Smith’s Bank’s Conveyance, Re; Miles v Easter [1933] Ch 611; [1933] All ER Rep 355 …. 9.62C, 9.67C, 9.68, 9.69 United Bank of Kuwait plc v Sahib [1995] 2 All ER 973; [1995] 2 WLR 94 …. 6.61 — v — [1997] Ch 107; [1996] 3 All ER 215 …. 11.18 United Scientific Holdings Ltd v Burnley Borough Council [1978] AC 904; [1977] 2 All ER 62 …. 8.121, 8.122 United Starr-Bowkett Co-operative Building Society (No 11) Ltd v Clyne (1967) 68 SR (NSW) 331; [1968] 1 NSWR 134 …. 5.137, 5.138C United States v Santa Fe Pacific Railroad Co 314 US 339 (1941) …. 3.77C Uniting Church in Australia Property Trust (NSW) v Immer (No 145) Pty Ltd (1991) 24 NSWLR 510; 74 LGRA 255 …. 1.75 Upton v Baron (2000) 9 Tas R 178 …. 11.66 — v Tasmanian Perpetual Trustees Ltd (2007) 158 FCR 118; 242 ALR 422 …. 11.77, 11.89

V V and W Corry, In the Marriage of (1983) 9 Fam LR 201 …. 6.67 Valbirn Pty Ltd v Powprop Pty Ltd [1991] 1 Qd R 295 …. 5.104 Valerica v Global Minerals Australia Pty Ltd (2001) NSW ConvR ¶55-963;

[2000] NSWSC 1144 …. 5.169, 5.170 Valoutin v Furst (1998) 154 ALR 119 …. 5.74 Van Brugge v Hare (2011) 16 BPR 30,217 …. 10.36 Van den Bosch v Australian Provincial Assurance Assoc Ltd (1968) 88 WN (NSW) (Pt 1) 357; [1968] 2 NSWR 550 …. 5.149 Van Den Heuvel v Perpetual Trustees Victoria Ltd (2010) 15 BPR 28,647; [2010] NSWCA 171 …. 5.57, 5.62C, 5.63, 5.65, 5.66, 5.67 Van der Peet v R [1996] 2 SCR 507 …. 3.101 Van Reesema v Giameos (1978) 17 SASR 390 …. 5.168 Vandepitte v Preferred Accident Insurance Corporation of New York [1933] AC 70 …. 9.7C Vandervell v Inland Revenue Commissioners [1967] 2 AC 291; [1967] 1 All ER 1 …. 4.100, 4.102 Vane v Lord Barnard (1716) 2 Vern 738; 23 ER 1082 …. 3.39 Vaneris v Kemeny (1977) 1 BPR 9655 …. 10.72 Vangale Pty Ltd (in liq) v Kumagai Gumi Co Ltd [2002] QSC 137 …. 7.10 Vanstone v Malura Pty Ltd (1988) 50 SASR 110 …. 10.146 Vasilikopoulos v New South Wales Land and Housing Corporation [2010] NSWCA 91 …. 8.85 Vasiliou v Westpac Banking Corporation (2007) 19 VR 229; [2007] VSCA 113 …. 4.212, 5.171, 11.87C, 11.105 Vassos v State Bank of South Australia [1993] 2 VR 316 …. 5.52, 5.108C, 5.109, 5.118, 5.216

Vaudeville Electric Cinema Ltd v Muriset [1923] 2 Ch 74 …. 1.80C, 1.86 Vella v Permanent Mortgages Pty Ltd (2008) 13 BPR 25,343; (2008) NSW ConvR ¶56-221; [2008] NSWSC 505 …. 5.60, 5.64, 5.82, 5.105 Verebes v Verebes (1995) 6 BPR 14,408 …. 5.169 Vernon v Bethell (1762) 2 Eden 110; 28 ER 838 …. 11.45C, 11.50C — v Smith (1821) 5 B & Ald 1; 106 ER 1094 …. 8.127 Verrall v Great Yarmouth Borough Council [1980] 1 All ER 839 …. 1.20 — v Nott (1939) 39 SR (NSW) 89 …. 1.105, 1.107 Vickers v Stichtenoth (1989) 52 SASR 90 …. 8.188 Vickery v Municipality of Strathfield (1911) 11 SR (NSW) 354 …. 5.161 Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479; 43 ALR 597 …. 1.45, 1.46C, 1.47, 1.49, 1.50C, 1.52, 1.54, 4.6 Villar, Re [1929] 1 Ch 243 …. 7.30 Vinden v Vinden [1982] 1 NSWLR 618 …. 4.140, 4.142 Viro v R (1978) 141 CLR 88; [1978] HCA 9 …. 11.45C Voli v Inglewood Shire Council (1963) 110 CLR 74 …. 8.83C Volley Investments Pty Ltd v Coles Myer Ltd [2005] WASCA 52 …. 8.72 Vopak Terminals Australia Pty Ltd v Commissioner of State Revenue (2004) 12 VR 351 …. 1.93 Voudouris v Registrar General (1993) NSWLR 195 …. 5.212 Vrakas v Mills (2007) V ConvR 54-733; [2006] VSC 463 …. 9.65, 9.113C, 9.114

— v Registrar of Titles [2008] VSC 281 …. 9.105, 9.106C Vukicevic v Alliance Acceptance Co Ltd (1987) 9 NSWLR 13 …. 11.26 Vyvyan v Arthur (1823) 1 B & C 410; [1814–23] All ER Rep 349 …. 8.148

W W v D (2012) 115 SASR 61; [2012] SASCFC 142 …. 6.38 — v G (1996) 20 Fam LR 49 …. 4.133 WA Club Inc v Nullagine Investments Pty Ltd (1992) 6 WAR 441 …. 8.24, 8.119 Wade v New South Wales Rutile Mining Co Pty Ltd (1969) 121 CLR 177 …. 9.83 Wade Sawmill Pty Ltd v Colenden Pty Ltd [2007] QCA 455 …. 2.9 Waimiha Sawmilling Co Ltd (in liq) v Waione Timber Co Ltd [1923] NZLR 1137 …. 5.91C, 5.93, 5.98 — v — [1926] AC 101 …. 5.98, 5.101C Wakeham v MacKenzie [1968] 1 WAR 1175 …. 4.44 Walker v Linom [1907] 2 Ch 104 …. 4.181, 4.199 Walker Corporation Pty Ltd v W R Pateman Pty Ltd (1990) 20 NSWLR 624 …. 7.4, 7.68 Wall v Australian Real Estate Investment Co Ltd [1978] WAR 187 …. 9.108 — v Bright (1820) 1 Jac & W 494; 37 ER 456 …. 4.52C Wallis v Moreton (1932) 32 SR (NSW) 659 …. 4.33 Walsh v Elson [1955] VLR 276 …. 10.47

— v Lonsdale (1882) 21 Ch D 9 …. 3.111C, 4.43, 4.53, 4.67, 4.68C, 4.69, 4.70, 4.71, 4.75, 4.76, 4.77, 4.79, 4.115, 8.33, 8.34, 8.37C, 8.119, 8.136, 8.182, 8.193C, 10.55, 10.135, 10.149, 11.18 Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387; 76 ALR 513; 62 ALJR 110 …. 4.45, 4.150, 4.151C, 4.152, 4.153C, 4.155, 4.156, 4.158, 4.163, 4.166C, 4.171C, 4.206, 8.52 Wanner v Caruana [1974] 2 NSWLR 301 …. 11.58 Wantagong Farms Pty Ltd (as trustee for Bulle Family Trust) v Bulle [2015] NSWSC 1603 …. 4.168, 4.172 Ward v Kirkland [1967] Ch 194; [1966] 1 All ER 609 …. 10.49, 10.68C — v Trustees, Executors and Agency Co Ltd (1893) 14 ALT 274 …. 6.80 — v Van der Loeff [1924] AC 653 …. 7.40 — v Western Australia (1998) 159 ALR 483 …. 3.100, 3.105, 3.115 Ward, Re; Gillet v Ward [1968] WAR 33 …. 4.87 Ward Locke & Co (Ltd) v Operative Printers’ Assistants’ Society (1906) 22 TLR 327 …. 1.46C Warmington v Miller [1973] QB 877; [1973] 2 All ER 372 …. 4.76, 8.33 Warnborough Ltd v Garmite Ltd [2003] EWCA Civ 1544 …. 11.45C Warner v Sampson [1959] 1 QB 297 …. 6.36C Warnford Investments v Duckworth [1979] 1 Ch 127; [1978] 2 All ER 517 …. 8.125 Warren v Keen [1954] 1 QB 15; [1953] 2 All ER 1118 …. 8.88, 8.91 Washington Constructions Co Pty Ltd v Ashcroft [1982] Qd R 776 …. 5.73

Waterlow v Bacon (1866) LR 2 Eq 514 …. 10.109 Waterways Authority of New South Wales v Coal and Allied Operations Pty Ltd [2005] NSWSC 1285 …. 8.108 Watson v George [1953] SASR 219 …. 8.83C Waverley Borough Council v Fletcher [1996] QB 334 …. 2.37 Webb v Bird (1862) 13 CBNS 841; 143 ER 332 …. 10.50 — v Chief Constable of Merseyside Police [2000] QB 427 …. 2.18 — v Fox (1797) 7 TR 391; 101 ER 1037 …. 2.4 — v Russell (1789) 3 TR 393; 100 ER 639 …. 9.49C Websdale v S & JD Investments Pty Ltd (1991) 24 NSWLR 573 …. 11.62, 11.63C, 11.64, 11.65 Webster v Bradac (1993) 5 BPR 12,032 …. 9.108 — v Strong [1926] VLR 509 …. 9.92C Weg Motors Ltd v Hales [1961] Ch 176 …. 8.127 — v — [1962] Ch 49; [1961] 3 All ER 181 …. 8.54 Weigall v Toman [2006] QSC 349; [2008] 1 Qd R 192 …. 10.27C — v Waters (1795) 6 Term 488; 101 ER 663 …. 8.201C Weller v Williams [2010] NSWSC 716 …. 5.201 Wellsmore v Ratford (1973) 23 FLR 295 …. 1.84 Wenham v General Credits Ltd(McClelland J, 16 December 1988 unreported) …. 11.113 West v Mead (2013) 13 BPR 24,431 …. 4.125 — v Williams [1899] 1 Ch 132 …. 11.31C, 11.34

West Bank Estates Ltd v Arthur [1967] 1 AC 665 …. 2.101 West Lakes v Makris (1993) ANZ ConvR 193-150 …. 9.40 West Layton Ltd v Ford [1979] QB 593; [1979] 2 All ER 657 …. 8.112 Westdeutsche Landesbank v Islington LBC [1996] AC 669 …. 4.51 Westfield Management Pty Ltd v Perpetual Trustee Pty Ltd (2007) 233 CLR 528 …. 10.34, 10.35C, 10.36, 10.37 Western v MacDermott (1866) LR 1 Eq 499; 2 Ch App 72; [1861–73] All ER Rep 671 …. 9.16C Western Australia v Brown (2014) 306 ALR 168 …. 3.124C — v Ward (2000) 99 FCR 316; 170 ALR 159 …. 3.7, 3.100 — v — (2002) 191 ALR 1; 76 ALJR 1098 …. 1.28C, 3.88C, 3.89, 3.94, 3.96, 3.97, 3.104, 3.114C, 3.116, 3.118, 3.121C, 3.124C, 3.125, 3.126C, 8.1 Western Bank Ltd v Schindler [1977] Ch 1 …. 11.133 Western Fish Products Ltd v Penwith District Council [1981] 2 All ER 204 …. 4.148 Westfield Holdings Ltd v Australian Capital Television Pty Ltd (1992) 32 NSWLR 194; 5 BPR 97,386 …. 11.45C, 11.49, 11.50C, 11.52, 11.53C, 11.54 Westfield Management Ltd v Perpetual Trustee Co Ltd (2007) 233 CLR 528 …. 9.88 Westpac Banking Corp v Kingsland (1991) 26 NSWLR 700; 5 BPR 11,412 …. 11.77, 11.80, 11.81C, 11.82, 11.96 Westpac Banking Corporation v Adelaide Bank Ltd [2005] NSW ConvR

¶56-133 …. 11.33, 11.34, 11.36 — v Sansom (1995) NSW ConvR ¶55-733 …. 5.90 Westpac New Zealand Ltd v Clark [2009] NZSC 73 …. 5.62C, 5.65 Whaley, Re [1908] 2 Ch 497 …. 1.82 Wheaton v Maple & Co [1893] 3 Ch 48 …. 10.91 Wheeldon v Burrows (1879) 12 Ch D 31; [1874–80] All ER Rep 669 …. 10.59, 10.60, 10.61C, 10.62, 10.63, 10.64, 10.68C, 10.69, 10.70, 10.71, 10.79C, 10.80, 10.97, 10.117, 10.118, 10.122, 10.125, 10.126, 10.136, 10.137C, 10.138 Wheeler v Baldwin (1955) 94 CLR 98 …. 2.108 — v JJ Saunders Ltd [1996] Ch 19; [1995] 2 All ER 697; [1995] 3 WLR 466 …. 10.61C, 10.69 Whelan, Ex parte [1986] 1 Qd R 500 …. 8.162 Whild v GE Mortgage Solutions Ltd [2012] VSC 212 …. 11.64 Whitby v Mitchell (1889) 42 Ch D 494 …. 7.14 — v Von Luedecke [1906] 1 Ch 783 …. 3.47 White v Betalli [2007] NSWCA 243 …. 10.26 — v Bijou Mansions Ltd [1937] Ch 610 …. 9.7C, 9.8 — v — [1938] Ch 351; [1938] 1 All ER 546 …. 9.8, 9.77 — v McLean (1890) 24 SALR 97 …. 10.84 — v Tomasel [2004] 2 Qd R 438 …. 5.103, 5.110 Whitehead, Re; Whitehead v Whitehead [1948] NZLR 1066 …. 4.162C Whittem v Acardi (1992) 59 SASR 57 …. 5.51

Whittle v Parnell Mogas Pty Ltd (2006) 96 SASR 421; [2006] SASC 129 …. 8.52 Whittlesea City Council v Abbatangelo (2009) 259 ALR 56; [2009] VSCA 188 …. 2.82, 2.92C, 2.93, 2.94, 2.95 Wickham v Hawker (1840) 7 M & W 68; 151 ER 679 …. 10.57 Wicklow Enterprises Pty Ltd v Doysal Pty Ltd (1986) 45 SASR 247 …. 5.51 Wicks v Bennett (1921) 30 CLR 80 …. 5.98 Wigan v Edwards (1973) 47 ALJR 586: 1 ALR 497 …. 8.183C Wik Peoples v Queensland (1996) 187 CLR 1 …. 1.3, 3.12, 3.87, 3.109, 3.111C, 3.112, 3.113, 3.117, 3.120, 3.121C, 3.124C, 8.1, 8.7 Wilbraham v Snow (1699) 2 Wms Saund 47; 85 ER 624 …. 2.13C, 2.21C Wilcox v Richardson (1997) 43 NSWLR 4 …. 10.49, 10.60, 10.61C, 10.77, 10.136 Wildshut v Borg Warner Acceptance Corp (Aust) Ltd (1987) 4 BPR 9453 …. 5.178 Wilkes v Spooner [1911] 2 KB 473 …. 4.185, 4.186, 5.69, 5.204 Wilkinson v Hall (1837) 3 Bing NC 508; 132 ER 506 …. 11.133 — v Joyceman [1985] 1 Qd R 567 …. 8.69C — v Kerdene Ltd [2013] EWCA Civ 44 …. 9.21 — v Rogers (1864) 2 De GJ & S 62; 46 ER 298 …. 8.127 — v S & S Gikas Pty Ltd (2006) 12 BPR 23,685 …. 8.167 — v Spooner [1957] Tas SR 121 …. 10.119 Willey v Synan (1937) 57 CLR 200 …. 2.40, 2.42

William Brandt’s Sons & Co v Dunlop Rubber Co [1905] AC 454 …. 4.85C Williams v Booth (1910) 10 CLR 341 …. 1.104C — v Earle (1868) LR 3 QB 739 …. 8.127 — v Frayne (1937) 58 CLR 710 …. 11.81C — v Hensman (1861) 1 J & H 546; 70 ER 862 …. 4.85C, 6.2E, 6.53C, 6.64, 6.68 — v Legg (1993) 29 NSWLR 687 …. 6.84 — v Sinclair Refining Co Inc 39 NM 388, 47 P 2d 910 (1935) …. 6.33C — v Staite [1979] 1 Ch 291; [1978] 2 All ER 928 …. 4.146 — v State Transit Authority of NSW (2004) 60 NSWLR 286 …. 5.117, 10.96, 10.140C, 10.141 — v Underwood (1981) 45 P & CR 235 …. 2.101 — v Williams [1979] 1 NSWLR 376 …. 6.76 Williams and Glyn’s Bank Ltd v Boland [1981] AC 487; [1980] 2 All ER 408; [1980] 3 WLR 138 …. 4.192, 5.194C Willis v Earl Howe [1893] 2 Ch 545 …. 2.108 — v The State of Western Australia (No 3) [2010] WASCA 56 …. 4.132 Wills v Wills [2004] 1 P & CR 37 …. 2.107 Wilson v Anderson (2002) 190 ALR 313 …. 3.113 — v Holland [1915] VLR 46 …. 11.31C — v Meudon Pty Ltd [2005] NSWCA 448 …. 8.14 — v Tavener [1901] 1 Ch 578 …. 1.24C Wilson Parking New Zealand Ltd v Fanshawe 136 Ltd [2014] 3 NZLR 567

…. 4.169 Wiltshear v Cottrell (1853) 1 EL & BL 674; 118 ER 589 …. 1.80C Wily v Endeavour Health Care Services Pty Ltd (2003) 12 BPR 22,447; [2003] NSWCA 321 …. 11.45C, 11.55 — v — (No 5) (2003) 11 BPR 21,081; [2003] NSWSC 61 …. 11.45C — v St George Partnership Banking Ltd (1999) 84 FCR 423 …. 1.9 Wirth v Wirth (1956) 98 CLR 228 …. 4.108, 4.109C, 4.113, 4.114 Wolfe v Freijahs Holding Pty Ltd [1988] VR 1017 …. 10.107 Wollondilly Shire Council v Picton Power Lines Pty Ltd (1994) 33 NSWLR 551 …. 7.2C, 7.5, 7.7, 7.8, 7.10 Wolverhampton & Walsall Railway Co v London and North & Western Railway Co (1873) LR 16 Eq 433 …. 1.21 Wong v Beaumont Trust Ltd [1965] 1 QB 173 …. 10.74 Wongala Holdings Pty Ltd v Mulingelbar Pty Ltd (1994) 6 BPR 13,527 …. 11.65 Wood, Re [1894] 3 Ch 381 …. 7.44, 7.45 Wood v Browne [1984] 2 Qd R 593 …. 4.142 — v Leadbitter [1843-60] All ER Rep 190; (1845) 13 M & W 838; 153 ER 351 …. 1.16, 1.18C — v Wood [1956] VLR 478 …. 4.114 Wood Factory Pty Ltd v Kiritos Pty Ltd (1985) 2 NSWLR 105 …. 8.48, 8.186, 8.194, 8.199 Woodall v Clifton [1905] 2 Ch 257 …. 5.55C, 7.66, 8.127, 8.128

— v — [1905] 2 Ch 259; [1904–7] All ER Rep 268 …. 8.141C Woodberry v Gilbert (1907) 3 Tas LR 7 …. 9.52C Woodhouse v Walker (1880) 5 QBD 404 …. 3.38 Woodland v Manly Municipal Council [2003] NSWSC 392 …. 10.98 Woodroffe v Box (1954) 92 CLR 245; [1954] HCA 22 …. 7.2C Woods v Commonwealth Bank of Australia (30 January 1990, Needham AJ, unreported) …. 11.109C Woodson (Sales) Pty Ltd v Woodson (Australia) Pty Ltd (1996) 7 BPR 14,685 …. 6.83, 6.85 Woolf v Associated Finance Pty Ltd [1956] VLR 51 …. 5.154C Worimi (aka Gary Dates) v Worimi Local Aboriginal Land Council (2010) 181 FCR 320; [2010] FCAFC 3 …. 3.108 World Best Holdings Ltd v Sarker [2010] NSWCA 24 …. 8.195, 8.198 Worthing Corp v Heather [1906] 2 Ch 532 …. 7.66 Worthington v Morgan (1849) 16 Sim 547 …. 4.181 Wragg v Denham (1836) 2 Y&C Ex 117; 160 ER 335 …. 11.127 Wratten v Hunter [1978] 2 NSWLR 367 …. 4.95C, 4.119 Wrey, Re (1885) 30 Ch D 507 …. 7.27 Wright v Gibbons (1949) 78 CLR 313 …. 4.85C, 6.53C, 6.59, 6.74 — v Macadam [1949] 2 KB 744; [1949] 2 All ER 565 …. 10.27C, 10.68C, 10.70 — v Madden [1992] 1 Qd R 343 …. 4.34 Wrightson v McArthur and Hutchinsons (1919) Ltd [1921] 2 KB 807 ….

11.2 Wrotham Park Estate Co Ltd v Parkside Homes Ltd [1974] 2 All ER 32; [1974] 1 WLR 7981 …. 9.47 Wykeham Terrace, Brighton, Sussex, Re; Ex parte Territorial Auxiliary and Volunteer Reserve Association for the South East [1971] Ch 204 …. 2.61C Wynsix Hotels (Oxford St) Pty Ltd v Toomey (2004) 17 BPR 32,633; [2004] NSWSC 236 …. 8.168

X Xenos v Wickham (1867) LR 2 HL 296 …. 4.29

Y Yahl v Bridgport Customs Pty Ltd [1984] ACLD 630 …. 4.75 Yanner v Eaton (1999) 201 CLR 351; 166 ALR 258; [1999] HCA 53 …. 1.9, 1.27, 2.10C, 3.2, 3.92, 3.101, 3.114C, 3.120, 3.121C, 3.123, 3.126C Yared v Spier [1979] 2 NSWLR 291 …. 8.111, 8.117 Yarrangah Pty Ltd v National Australia Bank Ltd (1999) 9 BPR 17,061 …. 11.96, 11.97 Yaxley v Gotts [2000] Ch 162 …. 4.166C Yazgi v Permanent Custodians (2007) 13 BPR 24,567; ANZ ConvR 566; NSW ConvR ¶56-195; [2007] NSWCA 240 …. 5.57, 5.60, 5.62C, 5.64, 5.67, 5.159 Yearworth v North Bristol NHS Trust [2009] 3 WLR 118 …. 1.42 Yeo v Brassil [2010] VSC 344 …. 6.78

Yerkey v Jones (1940) 63 CLR 649 …. 5.111, 5.112 Yip v Frolich (2003) 86 SASR 162 …. 10.116 Yorkshire Bank plc v Hall [1999] 1 WLR 1713 …. 11.80 Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422; 194 ALR 538; 77 ALJR 356 …. 3.89, 3.98, 3.103C, 3.104, 3.106C, 3.108 Young v Hichens (1844) 6 QB 606; 115 ER 228 …. 2.6, 4.5 — v Hoger [2002] ANZ ConvR 237; [2001] QCA 453 …. 5.82 — v Rydalmere Credits Pty Ltd (1963) 80 WN (NSW) 1463; [1964–65] NSWR 1001 …. 5.178, 5.179 — v Young [2011] VSC 188 …. 5.169 YYH Holdings Pty Ltd v Grant (District Court of New South Wales, Rolfe DCJ, unreported, 23 March 2012) …. 2.10C

Z Zafiropoulos v Recchi, Williamson & Arbormont Nominees (1978) 18 SASR 5 …. 11.25, 11.31C Zahel, Re; Nicoll v Queensland Trustees Ltd [1931] St R Qd 1 …. 7.56 Zanee Pty Ltd v CG Maloney [1995] 1 Qd R 105 …. 5.174 Zanzoul v Westpac Banking Corporation (1995) 6 BPR 14,142 …. 11.127, 11.128 Zapletal v Wright [1957] Tas SR 211 …. 3.3.1C, 3.33, 3.34, 3.36 Zegir v Woop [1955] VLR 394 …. 8.19 Zetland v Driver [1939] Ch 1; [1938] 29 All ER 158 …. 9.60 Ziel Nominees Pty Ltd v VACC Insurance Co Ltd (1975) 180 CLR 173; 7

ALR 667; 50 ALJR 106 …. 4.62, 4.64 Zimbler v Abrahams [1903] 1 KB 577 …. 8.15C, 8.17 Zis, Re; O’Donnell v Keogh [1961] WAR 120 …. 8.107, 8.108

Table of Statutes References are to paragraphs

COMMONWEALTH Aboriginal Land Rights (Northern Territory) Act 1976 …. 3.92, 3.100 Australian Bicentennial Authority Act 1980 …. 1.59C s 22 …. 1.59C s 22(1) …. 1.59C s 22(1)(a) …. 1.59C s 22(1)(b) …. 1.59C s 22(1)(c) …. 1.59C s 22(1)(d) …. 1.59C s 22(6)(d) …. 1.59C s 22(6)(d)(i) …. 1.59C s 22(6)(d)(ii) …. 1.59C s 23 …. 1.59C s 24 …. 1.59C Australian Consumer Law see Competition and Consumer Act 2010; Sch 2

Bankruptcy Act 1966 s 58(2) …. 6.75 s 121 …. 4.107C Commonwealth of Australia Constitution Act 1901 s 51(i) …. 1.59C s 51(xviii) …. 1.59C, 4.7 s 51(xx) …. 1.59C s 51(xxxi) …. 1.4, 1.9, 1.65E, 3.77C, 3.89 s 51(xxxix) …. 1.59C s 122 …. 1.59C Competition and Consumer Act 2010 …. 8.5, 8.210 Sch 2 …. 8.210 Sch 2, s 4 …. 8.210 Sch 2, s 18 …. 4.18, 8.210, 11.110 Sch 2, s 20 …. 8.210 Copyright Act 1968 …. 4.7 Corporations Act 2001 s 111A …. 11.94 s 420A …. 11.69, 11.92, 11.93, 11.94 s 601FA …. 8.205C Crimes Act 1914 …. 2.38 Criminal Code Act 1995 s 270.3(1)(a) …. 2.10C

Designs Act 1906 …. 4.7 Family Law Act 1975 …. 4.134, 4.137, 5.169, 6.36C, 6.66, 6.76 s 75(2) …. 4.134 s 78 …. 4.111 s 79 …. 1.4, 4.134, 6.67, 6.74 s 79(4)(a) …. 4.134 s 79(4)(b) …. 4.134 s 79(4)(c) …. 4.134 s 79(4)(d) …. 4.134 s 79(8) …. 4.134 s 86 …. 6.65 s 87 …. 6.65, 6.66 Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 …. 4.135 Fisheries Management Act 1991 …. 3.121C Income Tax Assessment Act 1936 s 26BC …. 11.45C Insurance Contracts Act 1984 s 50 …. 4.62 Judiciary Act 1903 s 23(2) …. 3.127 s 35 …. 1.56C s 35(3)(b) …. 1.56C

s 40 …. 3.111C Land Rights Act (Northern Territory) 1976 …. 3.76 Lands Acquisition Act 1906 …. 1.84 Lands Acquisition Act 1920 …. 10.44 Matrimonial Causes Act 1959 …. 6.67 National Consumer Credit Protection Act 2009 Sch 1 …. 11.4, 11.19 Sch 1, Pt 3, Div 1 …. 11.7 Sch 1, Pt 4, Div 3 …. 11.8 Sch 1, Pt 13 …. 11.6 Sch 1, s 5(1) …. 11.6 Sch 1, s 7(1) …. 11.6, 11.59 Sch 1, s 10 …. 11.6 Sch 1, s 11 …. 5.66 Sch 1, s 14 …. 11.7 Sch 1, s 16 …. 11.7 Sch 1, s 17 …. 11.7 Sch 1, s 20 …. 11.7 Sch 1, s 30(1) …. 11.7, 11.59 Sch 1, s 30(2) …. 11.59 Sch 1, s 42 …. 5.68, 11.19 Sch 1, s 42(2) …. 11.19 Sch 1, s 42(4) …. 11.19

Sch 1, s 44(1) …. 11.7 Sch 1, s 44(2) …. 11.7 Sch 1, s 48 …. 11.7 Sch 1, s 70 …. 5.66, 5.67 Sch 1, s 72 …. 11.8 Sch 1, s 74 …. 11.8 Sch 1, s 76 …. 5.66, 11.8 Sch 1, s 76(1) …. 11.8 Sch 1, s 76(2) …. 11.8 Sch 1, s 77(d) …. 5.66 Sch 1, s 82 …. 11.7 Sch 1, s 88 …. 11.7, 11.59 Sch 1, s 92 …. 11.59 Sch 1, s 93 …. 11.7 Sch 1, s 230(2) …. 11.7 National Credit Code see National Consumer Credit Protection Act 2009; Sch 1 National Security Act 1939 …. 3.126C s 5 …. 3.126C National Security (General) Regulations reg 54 …. 3.126C, 3.127 Native Title Act 1993 …. 1.60, 3.83, 3.84E, 3.88C, 3.89, 3.98, 3.103C, 3.111C, 3.112, 3.114C, 3.121C

Pt 2, Div 2, Subdiv B …. 3.86 Pt 2, Div 2B …. 3.114C, 3.121C Pt 2, Div 3 …. 3.86 Pt 2, Div 3, Subdiv P …. 3.86 Pt 4, Div 1C …. 3.85 Pt 8 …. 3.85 s 10 …. 3.83, 3.88C s 11 …. 3.83 s 11(1) …. 3.88C s 12 …. 3.89 s 13(1) …. 3.88C s 20 …. 3.86 s 23A(1) …. 3.115, 3.121C s 23G(1)(b)(ii) …. 3.114C s 36 …. 3.86 s 38 …. 3.86 s 61 …. 3.85, 3.88C s 81 …. 3.85 s 86B …. 3.85 s 169 …. 3.85 s 211 …. 3.121C s 223 …. 3.83, 3.84E, 3.88C, 3.89 s 223(1) …. 3.87, 3.88C, 3.89, 3.94, 3.99, 3.100, 3.104, 3.106C s 223(1)(a) …. 3.88C, 3.103C, 3.106C s 223(1)(b) …. 3.88C, 3.92, 3.94, 3.104, 3.106C

s 223(1)(c) …. 3.87, 3.88C, 3.89, 3.94, 3.103C, 3.114C s 223(2) …. 3.90 s 225 …. 3.100 s 225(a) …. 3.100 s 225(c) …. 3.114C s 225(e) …. 3.88C s 226 …. 3.121C s 227 …. 3.121C s 229(3) …. 3.112 s 248 …. 3.112 s 253 …. 3.114C Patents Act 1990 …. 4.7 Racial Discrimination Act 1975 …. 3.77C, 3.78, 3.82, 3.85, 3.112 s 8(2) …. 3.35 Seas and Submerged Lands Act 1973 …. 3.91 Sex Discrimination Act 1984 s 55 …. 3.35 Trade Marks Act 1995 …. 4.7 Trade Practices Act 1974 …. 11.7, 11.111, 11.112 s 52 …. 8.79, 8.210, 11.110, 11.111 s 52(aa) …. 8.79 s 53A …. 8.79 Wireless Telegraphy Act 1905–1936 …. 1.46C

AUSTRALIAN CAPITAL TERRITORY Administration and Probate Act 1929 s 39 …. 3.64 s 45 …. 3.12 s 49 …. 3.6 s 49Q …. 6.4 s 52 …. 3.64 Sch 6 …. 3.6 Charter of Human Rights 2005 …. 1.14 Civil Law (Property) Act 2006 …. 3.1, 4.27, 11.3 Pt 2.5 …. 6.81 s 3 …. 3.28 s 201 …. 4.91, 6.60, 8.32 s 202 …. 8.32 s 203 …. 8.32 s 204 …. 4.32E s 207 …. 3.39 s 208 …. 6.58 s 209 …. 6.3 s 210 …. 6.20 s 211 …. 6.27 s 223 …. 3.67 s 226 …. 2.58

ss 243–244 …. 6.82 s 244(3) …. 6.81, 6.82 s 301 …. 11.61 s 305 …. 11.107 s 305(d) …. 11.107 s 425(1) …. 8.154 s 426(1) …. 8.153E, 8.156 s 426(5) …. 8.154 Common Boundaries Act 1981 …. 10.48 Conveyancing Act 1951 …. 5.8 Domestic Relationships Act 1994 …. 4.126C s 3 …. 4.137 s 12(1) …. 4.137 s 15 …. 4.136 Forfeiture Act 1991 s 3 …. 6.73 s 4 …. 6.73 Human Rights Act 2004 …. 1.64, 1.65E s 12 …. 2.82 s 30 …. 2.82 s 31 …. 2.82 Imperial Act Application Act 1986 …. 6.41 Imperial Acts (Repeal) Act 1988

s 3(2) …. 6.41 Land Titles Act 1925 …. 5.129, 10.6, 10.117, 11.24 s 12 …. 9.29 s 14(1)(e) …. 5.122 s 17 …. 5.17 s 38 …. 4.29 s 47 …. 5.121 s 48(6) …. 11.35 s 49 …. 5.121 s 52 …. 5.28 s 54(1) …. 6.24, 6.76 s 54(2) …. 6.24 s 55 …. 6.76 s 58 …. 5.29E s 58(1) …. 5.161 s 58(l)(a) …. 5.161 s 58(1)(b) …. 5.141, 5.161, 10.120 s 58(1)(c) …. 5.126, 5.161 s 58(1)(d) …. 5.130 s 58(1)(e) …. 5.130, 5.161 s 58(l)(f) …. 5.150, 5.161 s 58(2) …. 5.161 s 59 …. 5.161 s 69 …. 2.57, 2.98, 5.149, 5.161, 10.139

s 77 …. 8.147 s 77(1) …. 10.72 s 79 …. 3.74 s 81 …. 10.39 s 82 …. 5.129 s 83 …. 5.56, 10.120 s 84 …. 11.135 s 85 …. 5.130, 10.120 ss 88–91 …. 5.129 s 92A …. 11.35 s 93 …. 11.24, 11.61 s 94 …. 11.61 s 94(4) …. 11.35 s 94(5) …. 11.101 s 96 …. 11.127, 11.142 s 97 …. 11.95, 11.117 s 98 …. 11.117 s 99 …. 11.142 s 103B …. 10.6, 10.117 s 103C …. 10.10 s 103D …. 10.20 s 103E …. 10.110 s 103E(4) …. 10.115 ss 104–108 …. 5.168 s 104(2) …. 5.172

s 105(2) …. 5.174 s 105(3) …. 5.174 s 108 …. 5.177 s 109 …. 9.26E s 118 …. 11.43 s 119(a) …. 8.119 s 124 …. 5.162 s 143 …. 5.209 s 145 …. 5.209 s 146 …. 5.209 s 147 …. 5.217 s 152 …. 5.33 s 154 …. 5.208, 5.209 s 155 …. 5.208, 5.209, 5.215 s 159 …. 5.33, 5.45 s 160 …. 5.122 s 162 …. 5.79 s 194(1) …. 5.209 Sch 1 …. 10.39 Land Titles (Unit Titles) Act 1970 …. 9.121 s 27 …. 10.97 Law Reform (Abolitions and Repeals) Act 1996 …. 3.3 s 5 …. 8.182 Leases (Commercial and Retail) Act 2001 …. 8.5

Limitation Act 1985 …. 2.72 s 43 …. 2.74 Married Person’s Property Act 1986 s 13 …. 4.111 Perpetuities and Accumulations Act 1985 …. 7.15, 7.20 s 3 …. 7.76 s 8 …. 7.24, 7.75 s 9 …. 7.47E, 7.75, 7.80, 7.81 s 10 …. 7.17, 7.52, 7.75, 7.82 s 10(1) …. 7.79 s 10(3) …. 7.58E, 7.77 s 14 …. 7.17 s 15 …. 7.64 s 16(1)(b) …. 7.17, 7.69 s 16(2) …. 7.70 s 17 …. 7.16 s 18 …. 7.62 s 19 …. 7.17, 7.74 Personal Property Securities Act 2009 …. 11.4 s 8(1)(f)(i) …. 11.4 s 8(1)(f)(j) …. 11.4 s 117 …. 11.4 s 118 …. 11.4 s 119 …. 11.4

Real Property Act 1925 s 93 …. 11.99C s 93(1) …. 11.99C s 94(1) …. 11.99C s 94(2) …. 11.99C, 11.100 s 94(3) …. 11.99C s 94(5) …. 11.99C, 11.100 s 95 …. 11.104 s 120(1)(a) …. 8.92 Registration of Deeds Act 1957 …. 5.10 Residential Tenancies Act 1997 …. 8.213 Pts 6–7 …. 8.231 s 6A …. 8.213 ss 6C–6F …. 8.214 s 8 …. 8.218, 8.222E, 8.224, 8.228 s 9 …. 8.215 s 20 …. 8.226 s 37 …. 2.67, 8.230 ss 43–55 …. 8.227 s 49 …. 8.229 s 65 …. 8.225 s 71 …. 8.225 s 71(2) …. 8.218 s 125 …. 8.231

Sch 1, cl 34 …. 8.225 Sch 1, cl 52 …. 8.218 Sch 1, cl 54(1)(d) …. 8.224 Sch 1, cll 59–62 …. 8.224 Sch 1, cll 63–64 …. 8.222E Sch 1, cl 88 …. 8.228 Sch 1, cl 94 …. 8.228 Sale of Goods Act 1954 …. 4.10 s 23 …. 4.10 Statute Law Amendment Act 2001 No 2 Sch 3, Pt 3.9 …. 3.28 Supreme Court Act 1933 s 33 …. 4.70 Transplantation and Anatomy Act 1978 s 44 …. 1.38 Trustee Act 1957 s 12(1) …. 7.17 Unit Titles Act 2001 …. 5.233, 6.1 Wills Act 1968 s 7(2) …. 3.12, 3.46 s 27 …. 3.28 s 255 …. 3.46

NEW SOUTH WALES Aboriginal Land Rights Act 1983 …. 3.76, 5.156 s 40(2) …. 5.156 Agricultural Tenancies Act 1990 …. 8.6 ss 5–7 …. 1.94 ss 6–8 …. 1.94 s 14 …. 1.94 Civil Procedure Act 2005 s 20 …. 2.56 Companies Act 1961 …. 10.147C Consumer, Trader and Tenancy Tribunal Act 2001 Pt 5A …. 8.231 s 27(2) …. 8.231 s 27(3) …. 8.231 s 27(6) …. 8.231 s 31(1) …. 8.231 s 49(1) …. 8.231 s 49(2) …. 8.231 s 61 …. 8.231 Contracts Review Act 1980 …. 5.112, 8.211 Pt 2 …. 5.67 s 6(2) …. 8.211 s 7 …. 8.211

s 7(1)(a) …. 8.211 s 7(1)(b) …. 8.211 s 7(1)(c) …. 8.211 s 7(1)(d) …. 8.211 s 8 …. 8.211 s 19 …. 8.211 Conveyancing Act 1919 …. 3.1, 3.66E, 4.27, 5.8, 8.32, 8.97, 9.5, 9.37, 9.89, 9.92C, 9.115C, 11.3 Pt 1, item 5 …. 9.81C Pt 2 …. 9.37, 9.81C Pt IV, Div 6 …. 6.81, 6.83 Pt V …. 10.49 Pt XXIII …. 5.15 s 2(4) …. 5.165 s 3 …. 5.39, 5.121 s 6(1) …. 5.165 s 7 …. 4.93C, 6.20, 8.193C s 7(1) …. 10.67 s 9 …. 3.39 s 11 …. 11.138, 11.139E s 12 …. 8.148, 9.29 s 14 …. 4.27 s 16(1) …. 3.66E s 16(2) …. 3.65 s 19 …. 3.14

s 19(1) …. 3.28 s 23A …. 7.14 s 23B …. 4.27, 8.37C, 8.43, 8.135 s 23B(1) …. 8.32, 10.109, 10.149 s 23B(2) …. 8.32 s 23B(3) …. 4.27, 8.32 s 23C …. 4.91, 4.102C, 4.103, 8.37C s 23C(1) …. 4.102C, 8.32 s 23C(1)(a) …. 4.93C, 4.101, 4.102C s 23C(1)(b) …. 4.93C, 4.101, 4.102C, 6.60 s 23C(1)(c) …. 4.102C s 23C(2) …. 4.93C, 4.102C s 23D …. 8.37C s 23D(1) …. 4.91, 8.32 s 23D(2) …. 4.27, 8.32, 8.43 s 23E …. 4.91, 8.32, 8.37C s 24 …. 6.58 s 25 …. 6.3 s 26 …. 6.18, 6.19E, 6.22, 6.23, 6.25 s 26(1) …. 6.20, 6.25 s 26(2) …. 6.20, 6.21C s 27 …. 6.27 s 35 …. 6.4 s 35(3) …. 6.20 s 36A …. 6.86

s 36C …. 9.5, 9.7C s 38 …. 4.26 s 44(2) …. 6.58 s 45 …. 5.33, 5.45 s 45(1) …. 10.58 s 45A …. 10.57 s 46 …. 10.150 s 47 …. 3.28 s 47(1) …. 3.28 s 47(2) …. 3.28 s 47(6) …. 10.110 s 47(6A) …. 10.110 s 50(2) …. 2.58, 2.60 s 51 …. 8.129, 8.130E, 8.131, 8.147 s 52 …. 8.221 s 53(1) …. 5.8, 5.129 s 53(3) …. 5.9, 5.56 s 54(1) …. 5.8 s 54(10) …. 5.9 s 54A …. 4.32E, 4.102C, 4.103, 4.115C, 4.149C, 8.37C s 54A(1) …. 10.149 s 54A(3) …. 4.33 s 66F …. 6.81 s 66F(2) …. 6.82 s 66G …. 6.33C, 6.35, 6.40, 6.41, 6.81, 6.85, 6.86

s 66G(1) …. 6.81, 6.83 s 66G(4) …. 6.82, 6.83 s 66H …. 6.82 ss 66J–66O …. 4.61 s 67 …. 10.67, 10.72, 10.142C s 67(5) …. 10.72 s 69 …. 10.20 s 70 …. 9.26E, 9.62C s 70(1) …. 9.52C s 70A …. 8.125, 9.45 s 70A(1) …. 9.52C s 73 …. 10.108 s 74 …. 8.90 s 75 …. 11.124 s 84 …. 8.90 s 84(1)(a) …. 8.119 s 84(1)(b) …. 8.91 s 85 …. 8.90 s 85(1)(a) …. 8.92 s 85(1)(d) …. 8.151 s 85(2) …. 8.151 s 86 …. 8.90 s 87A …. 10.146 s 87A(1) …. 5.85 s 87A(2) …. 5.85

s 87A(3) …. 5.85 s 87B(1) …. 5.85 s 87B(3) …. 5.85 s 88 …. 9.58, 9.59E, 9.79, 9.92C, 9.115C, 9.122, 10.58, 10.117 s 88(1) …. 9.52C, 9.58, 9.79, 9.92C, 9.115C, 9.122, 9.123, 10.7, 10.37 s 88(1)(c) …. 9.59E s 88(1A) …. 10.7 s 88(2A) …. 10.10 s 88(3) …. 9.52C, 9.92C, 9.109, 9.114, 9.115C s 88(3)(a) …. 9.92C s 88(3)(b) …. 9.92C, 9.93, 9.115C s 88(3)(c) …. 9.92C, 9.115C s 88(4) …. 10.7 s 88AA …. 10.146, 10.150 s 88AB …. 10.146 s 88AC(1) …. 10.5 s 88A …. 10.8, 10.9E, 10.10 s 88A(1) …. 10.7 s 88A(2) …. 10.10, 10.39 s 88A(2A) …. 10.10 s 88BA …. 9.42, 9.96 s 88BA(1) …. 10.53 s 88BA(2) …. 10.53 s 88BA(3) …. 10.53 s 88BB …. 10.39

s 88B …. 9.81C, 9.92C, 9.115C, 9.123, 10.6, 10.7, 10.14C, 10.27C, 10.117, 10.150 s 88B(2) …. 9.123 s 88B(2)(c1) …. 10.110 s 88B(3) …. 9.123 s 88B(3)(a) …. 10.10 s 88B(3)(b) …. 10.10 s 88B(3)(c)(ii) …. 9.92C, 10.20, 10.56 s 88B(3)(c)(iii) …. 9.91, 9.92C, 10.115 s 88B(3A) …. 10.56, 10.110 s 88C …. 9.89 s 88D …. 9.37, 9.42 s 88D(2) …. 9.42, 9.96 s 88E …. 9.37, 9.42 s 88E(2) …. 9.42, 9.96 s 88EA …. 10.146 s 88F …. 9.42 s 88F(2)(a) …. 9.42 s 88H …. 9.42 s 88I …. 9.42 s 88K …. 1.71, 10.98, 10.101 s 88K(1) …. 10.102C s 89 …. 9.59E, 9.62C, 9.92C, 9.96, 9.115C, 10.35C, 10.116 s 89(1) …. 9.92C, 10.106C, 10.108 s 89(1)(a) …. 9.115C, 10.116

s 89(1)(b) …. 9.96, 10.106C, 10.108 s 89(1)(c) …. 9.108 s 89(1A) …. 9.98, 10.108 s 89(3) …. 9.92C, 10.106C s 89(5) …. 9.96 s 93 …. 11.124 s 94 …. 11.125 s 95 …. 11.125 s 96A …. 6.15 s 98 …. 11.126 s 99 …. 6.15 s 100 …. 11.115, 11.119 s 102 …. 11.119 s 103 …. 11.95 s 103(2) …. 11.116 s 104 …. 11.107 s 106 …. 11.136 s 107 …. 11.136 s 106A …. 5.85 s 109 …. 4.203C s 109(1)(a) …. 11.61 s 109(1)(c) …. 11.121 s 109(5) …. 11.61, 11.121 s 110 …. 4.203C s 111 …. 4.203C, 11.61

s 111A …. 11.94 s 111A(1)(a) …. 11.90 s 112(3)(a) …. 4.203C s 112(3)(b) …. 11.99C s 115(3) …. 11.121 s 115(8) …. 11.121 s 115A …. 11.121 s 116 …. 8.147, 8.149, 8.226 s 117 …. 8.139E, 8.143, 8.190C s 118 …. 8.139E s 119 …. 8.149 s 120 …. 8.109 s 120A(1) …. 8.55 s 120A(3) …. 8.54 s 120A(5) …. 8.53 s 123 …. 8.109 s 127 …. 5.211, 8.37C, 8.39, 8.45, 8.47C, 8.49, 8.193C s 127(1) …. 8.36, 8.40, 8.43 s 128 …. 8.193C s 129 …. 5.225C, 8.154, 8.157, 8.166C, 8.169, 8.183C, 8.193C, 8.194, 8.197C s 129(1) …. 8.153E, 8.154, 8.156, 8.197C s 129(2) …. 5.217, 8.171E, 8.176 s 129(6)(a) …. 8.154 s 129(6)(e) …. 8.154

s 129(8) …. 8.154, 8.193C, 8.197C s 129(10) …. 8.154 s 130 …. 8.179 s 133A(1) …. 8.107 s 133A(2) …. 8.107 s 133B …. 8.110, 8.113 s 133B(1) …. 8.110, 8.196 s 133B(2) …. 8.106 s 133B(3) …. 8.118 ss 133C–133G …. 8.121 s 164 …. 4.189, 5.119C s 177 …. 10.97 s 177(4) …. 10.97 s 178 …. 10.96 s 179 …. 10.96 s 181A …. 10.43, 10.49 s 181A(1)–(3) …. 10.39 s 181B(1) …. 10.47 s 184 …. 5.54 s 184G …. 5.11 s 195D …. 10.110 s 196A …. 5.152 s 201 …. 5.214 s 282 …. 5.162 Sch 4 …. 8.90, 8.97, 8.115

Sch 4A …. 10.39 Sch 8 …. 10.39, 10.43, 10.49 Conveyancing (Amendment) Act 1930 …. 5.138C, 9.79, 9.92C s 19 …. 9.109 Conveyancing (Strata Titles) Act 1961 …. 5.119C, 5.231 s 4 …. 5.232 ss 5–8 …. 5.232 s 9 …. 5.231 s 9(2) …. 5.231 s 9(3) …. 5.231 s 11 …. 5.232 s 13(3) …. 5.232 s 14 …. 5.231 s 15 …. 5.231 s 18 …. 5.231, 5.232 s 19 …. 5.232 Sch 1 …. 5.232 Sch 2 …. 5.232 Crimes Act 1900 Pt 15A …. 6.33C s 562D …. 6.33C Crown Lands Act 1989 s 170(3) …. 2.86

s 172 …. 1.108 Dividing Fences Act 1991 …. 10.48 Encroachment of Buildings Act 1922 …. 1.106, 2.99 Environmental Planning and Assessment Act 1979 …. 9.81C s 4(1) …. 9.81C s 4B(1) …. 9.81C s 28 …. 9.80, 9.81C, 9.82, 9.86 s 28(6) …. 9.80 s 123 …. 5.157 Equity Act 1901 s 6 …. 9.115C Family Provision Act 1982 …. 9.7C Forestry Act 1916 s 25F …. 10.150 Forfeiture Act 1995 …. 6.73 s 4 …. 6.73 s 5(2) …. 6.73 s 5(3) …. 6.73 Holiday Parks (Long-term Casual Occupation Act 2002 …. 8.214 Human Tissue Act 1983 s 32 …. 1.38

Imperial Acts Application Act 1969 s 8 …. 3.14, 3.62, 3.68, 6.41 s 18 …. 2.65, 2.66E, 2.67 ss 18–20 …. 2.63 s 19 …. 2.68 s 36 …. 3.3 Inclosed Lands Protection Act 1901 …. 2.68 s 3 …. 2.70 s 4(1) …. 2.63, 2.68, 2.69E Inflammable Liquid Act 1915 …. 8.166C Land Sales Act 1964 …. 11.3 Landlord and Tenant Act 1899 s 2AA …. 2.67 s 8 …. 8.151 ss 8–10 …. 8.167 Landlord and Tenant (Amendment) Act 1948 …. 1.85C, 3.111C, 5.138C, 8.22C, 8.212, 8.214, 8.225 s 5A …. 1.85C s 8(1) …. 5.138C s 62 …. 5.138C Landlord and Tenant Amendment (Distress Abolition) Act 1930 …. 8.182 Landlord and Tenant (Rental Bonds) Act 1977 …. 8.226

s 67 …. 8.226 Law Reform (Law and Equity) Act 1972 …. 4.70 s 5 …. 4.70, 4.71E s 6 …. 4.70, 4.72E, 4.73 Law Reform (Miscellaneous Provisions) Act 1946 s 5(2) …. 8.86C Limitation Act 1969 …. 2.10C, 2.11, 2.72 s 14(1)(b) …. 2.10C s 21 …. 2.10C s 23 …. 2.105 s 27(1) …. 2.86 s 27(2) …. 2.74, 2.85 s 27(4) …. 2.86 s 28 …. 2.91 s 29 …. 2.91 s 30 …. 2.91 s 31 …. 2.103, 2.114 s 32 …. 2.114 s 33 …. 2.115 s 34 …. 2.108 s 34(2) …. 2.118 s 36 …. 2.104 s 37 …. 2.105 s 38(2) …. 2.108

s 38(3) …. 2.89, 2.108 s 38(5) …. 2.106 s 39 …. 2.109 s 47 …. 2.104 s 51 …. 2. 112 s 52 …. 2.112 s 53 …. 2. 112 s 54 …. 2.109 s 55 …. 2. 112 s 56 …. 2. 112 ss 63–68A …. 2.74 s 65(1) …. 2.10C Liquor Act 2007 …. 8.39 Local Government Act 1919 s 45 …. 5.156 s 45(1) …. 5.156, 5.157 s 327AA …. 4.147 Local Government Act 1993 s 45 …. 1.10 Local Government and Conveyancing (Amendment) Act 1964 …. 9.92C Local Government (Covenants) Amendment Act 1986 …. 9.42 Married Persons (Property and Torts) Act 1901 s 22 …. 4.111

Medical Practitioners Act 1938 …. 1.56C s 29 …. 1.56C Moneylenders and Infants Loan Act 1905 …. 5.180C National Parks and Wildlife Act 1974 s 69C(2) …. 9.43 s 69E …. 9.43 s 97 …. 4.5 Neighbouring Land Act 2000 …. 10.103 s 8 …. 10.103 s 12 …. 10.103 s 21 …. 10.103 Partnership Act 1892 s 22(1) …. 6.85 Perpetuities Act 1984 …. 7.15, 7.20 s 4 …. 7.76 s 7 …. 7.24, 7.75 s 8 …. 7.47E, 7.75 s 9 …. 7.17, 7.24, 7.52, 7.75, 7.78 s 9(1)(b) …. 7.78 s 9(4) …. 7.58E, 7.77, 7.82 s 10 …. 7.53 s 13 …. 7.17 s 14 …. 7.64

s 14(3) …. 7.64 s 15 …. 7.70 s 15(b) …. 7.17 s 15(c) …. 7.68 s 16 …. 7.16 s 17 …. 7.62 s 18 …. 7.74 s 19 …. 7.17 Prevention of Cruelty to Animals Act 1979 …. 2.10C Probate and Administration Act 1898 s 29 …. 6.21C s 44 …. 3.64 s 96 …. 3.72 Property Legislation Amendment (Easements) Act 1995 s 42(1)(a1) …. 10.130, 10.131, 10.132C, 10.133, 10.137C, 10.140C, 10.150 Property Relationships Act 1984 …. 6.35, 6.36C s 4 …. 4.137 s 17(1) …. 4.137 s 20 …. 4.136 Public Works Act 1900 …. 2.50C Real Property Act 1862 s 13 …. 5.15

Real Property Act 1900 …. 4.83C, 5.70C, 5.129, 5.138C, 5.152, 5.163C, 5.172, 5.180C, 5.183, 5.201, 5.231, 7.67, 8.37C, 8.47C, 8.48, 8.129, 8.135, 8.143, 8.183C, 9.92C, 9.115C, 10.6, 10.35C, 10.53, 10.117, 10.122, 10.132C, 10.137C, 10.140C, 10.147C, 11.24, 11.26, 11.36, 11.50C, 11.96 Pt 3 …. 5.17 Pt 4B …. 5.21 Pt 6A …. 5.146, 5.161 Pt 7A …. 10.139 Pt 14A …. 1.106, 2.99 Pt 15 …. 10.35C s 2 …. 5.163C s 2(4) …. 5.163C s 3 …. 1.67, 5.163C, 10.10, 10.142C s 4 …. 8.211 s 12(1)(d) …. 5.122 s 12(1)(f) …. 5.185C s 12(3)(d) …. 5.122 s 14(2) …. 5.18 s 14(3) …. 5.18 s 17(2) …. 5.19 s 23(2) …. 5.19 s 28B …. 5.20 ss 28B–28E …. 5.20 s 28D …. 5.22

s 28EA …. 5.22 s 28M(2) …. 5.20 s 28M(3) …. 5.20 s 28T(4) …. 5.21 s 28U …. 5.21 s 28V …. 5.21 s 31A(3) …. 5.152 s 31A(4) …. 5.152 s 31B …. 5.121 s 33A(5)(b) …. 5.201 s 36 …. 5.201 s 36(6)(a) …. 5.201 s 36(6)(b) …. 5.201 s 36(6A) …. 10.133 s 36(9) …. 11.35 s 39 …. 5.28 s 39(2) …. 5.201 s 39(3) …. 5.201 s 40 …. 4.125, 5.25, 5.28, 5.29E, 10.142C s 40(1) …. 5.121 s 40(1)(d) …. 5.130 s 40(1A) …. 5.28 s 40(1B) …. 5.28, 5.120 s 40(3)(e) …. 5.141 s 40(3)(g) …. 5.150

s 41 …. 4.83C, 5.31E, 5.163C, 7.2C, 8.47C s 41(1) …. 5.62C s 42 …. 5.29E, 5.33, 5.39, 5.45, 5.56, 5.86, 5.90, 5.102, 5.114, 5.117, 5.119C, 5.121, 5.156, 5.158, 5.161, 5.203, 5.204, 9.80, 9.92C, 10.124C, 10.137C, 10.140C, 10.142C s 42(1) …. 5.91C, 5.92, 10.137C s 42(l)(a) …. 5.161, 10.140C s 42(1)(a1) …. 5.141, 5.161, 10.30 s 42(1)(b) …. 5.119C, 5.141, 10.123, 10.124C, 10.130, 10.137C s 42(1)(c) …. 5.70C, 5.126, 5.161 s 42(1)(d) …. 5.130, 5.137, 5.138C, 5.161, 5.200C s 42(3) …. 5.158 s 43 …. 5.31E, 5.39, 5.71, 5.119C, 5.161, 5.163C, 5.198, 5.200C, 5.203 s 43(2) …. 5.185C s 43A …. 5.31E, 5.137, 5.138C, 5.139, 5.185C, 5.198, 5.199E, 5.200C, 5.201, 5.202, 5.203, 5.204, 5.205, 5.207, 11.103 s 43A(a) …. 5.200C s 43A(1) …. 5.200C s 43B(1) …. 5.160 s 43B(2) …. 5.160 s 44 …. 5.163C s 45 …. 2.57 s 45C …. 2.98, 5.146, 10.139 s 45D(1) …. 2.98, 5.146 s 45D(2) …. 2.98

s 45D(2A) …. 2.98 s 45D(2B) …. 2.98 s 45D(4) …. 5.146 s 45D(6) …. 2.98 s 45E(2) …. 5.146 s 45F …. 5.146 s 45H …. 5.146 s 45I …. 5.146 s 46 …. 10.6, 10.56, 10.117, 10.130, 10.137C, 10.140C, 10.142C s 46A …. 10.20 s 47 …. 9.92C, 10.56, 10.137C, 10.142C ss 47(1)–6(A) …. 10.6, 10.117 s 47(5) …. 10.10 s 47(7) …. 9.92C, 9.93, 10.20, 10.112, 10.115 s 49 …. 10.110 s 51 …. 10.72 s 53(1) …. 8.31 s 53(4) …. 11.135 s 55A …. 11.128 s 56 …. 11.26, 10.6, 10.117 s 56A …. 11.35 s 56C …. 5.85, 5.221 s 56C(1) …. 5.85 s 56C(2) …. 5.85 s 56C(6) …. 5.85

s 56C(8) …. 5.85 s 57 …. 11.26, 11.61, 11.63C, 11.65, 11.103, 11.127 s 57(1) …. 5.62C, 11.24 s 57(2) …. 11.102 s 57(2)(b) …. 11.65 s 57(3) …. 11.63C, 11.66 s 57(5) …. 11.63C s 58 …. 4.203C, 11.26, 11.61, 11.63C s 58(2) …. 11.102, 11.103 s 58(3) …. 11.35, 11.107 s 59 …. 4.203C, 11.26, 11.103, 11.104 s 60 …. 5.138C, 11.26, 11.127, 11.128, 11.142 s 61 …. 11.117 s 62 …. 11.117 s 63(2) …. 11.127 s 72 …. 5.163C ss 74F–74R …. 5.168 s 74F(2) …. 5.171 s 74F(5) …. 5.172 s 74L …. 5.172 s 74MA …. 5.174 s 74P …. 5.177 s 75 …. 11.43 s 78(1)(c) …. 11.43 s 80 …. 11.43

s 80A …. 5.60, 5.62C s 81 …. 11.43 s 82 …. 5.163C s 83 …. 5.185C s 86 …. 5.163C s 96D …. 5.28 s 97 …. 4.87, 6.56, 6.57 s 97(2)(b) …. 6.56 s 97(5) …. 6.56 s 100 …. 6.24, 6.76 s 100(1) …. 6.25 s 100(2) …. 3.74 s 101 …. 6.76 s 103(2) …. 11.96 s 106 …. 11.136 s 107 …. 11.136 s 112(3) …. 11.102 s 120(2) …. 5.209 s 121 …. 5.18 s 124 …. 5.39, 5.70C, 5.114 s 124(d) …. 5.70C s 124(e) …. 5.70C, 5.126 s 126 …. 5.225C s 126(1)(a) …. 5.213 s 126(2)(c) …. 5.213

s 127 …. 5.152 s 129 …. 5.168, 5.176, 5.211, 5.225C s 129(1)(b) …. 5.215 s 129(1)(e) …. 5.225C s 129(2)(a) …. 5.219 s 129(2)(b) …. 5.219 s 129(2)(c) …. 5.219 s 129(2)(j) …. 5.85, 5.221 s 129(2)(l) …. 5.217 s 129A …. 5.223, 5.224 s 129B …. 5.223 s 131 …. 5.210 s 131(2) …. 5.222 s 132 …. 5.162 s 132(1) …. 5.222 s 132(2) …. 5.225C s 132(2)(a) …. 5.222 s 132(2)(b) …. 5.222 s 133 …. 5.209 ss 133–138 …. 5.168 s 133(1) …. 5.159, 5.172 s 134 …. 9.20 s 134(2) …. 5.208 s 134(2)(b) …. 5.209 s 134(5) …. 5.208

s 135 …. 5.44, 5.70C, 5.173, 5.174, 5.210 s 135(3) …. 5.210 s 136 …. 5.123, 5.173 ss 136–138 …. 10.35C s 137 …. 5.123 s 138 …. 5.79, 5.177 Sch 16 …. 5.185C Real Property Act 1938 s 8(1)(a) …. 5.185C Real Property (Amendment) Act 1970 …. 9.92C s 17(f) …. 5.45 Real Property Amendment (Compensation) Act 2000 Pt 14 …. 5.225C Real Property (Covenants) Amendment Act 1986 …. 9.42 Real Property (Possessory Titles) Amendment Act 1979 Pt 6A …. 2.57 Registration of Deeds Act 1825 …. 5.10 Registration of Deeds Act 1843 …. 5.10 Residential Tenancies Act 1987 s 27 …. 1.95 s 58 …. 8.228 s 59 …. 8.228

Residential Tenancies Act 2010 s 3 …. 8.213 s 7 …. 8.214 s 8(1) …. 8.214 s 8(1)(c) …. 8.213 s 8(1)(f) …. 8.214 s 8(1)(g) …. 8.214 s 8(1)(h) …. 8.214 s 8(1)(i) …. 8.214 s 8(2) …. 8.214 s 13 …. 8.213, 8.214, 8.215 s 15 …. 8.215 s 15(4) …. 8.215 s 21 …. 8.215 s 41(1) …. 8.225 s 43(1) …. 8.225 s 44(1) …. 8.225 s 44(5) …. 8.225 s 50 …. 8.218 s 51(2)(a) …. 8.222E s 64 …. 8.224 s 81 …. 8.227 s 83 …. 8.230 s 84 …. 8.216 s 86 …. 8.216

s 87(1) …. 8.229 s 96 …. 8.216 s 97 …. 8.216 s 98(1) …. 8.229 s 219 …. 8.215 Residential Tenancies Regulation 2010 cl 19 …. 8.17 Retail Leases Act 1994 …. 8.5 Retirement Villages Act 1999 …. 8.214 Sale of Goods Act 1923 …. 4.10 s 23 …. 4.10 Statute of Uses 1971 …. 10.58 Strata Schemes Development Act 2015 …. 6.1 Pt 5 …. 5.234 s 76 …. 5.234 s 77 …. 5.234 s 81 …. 5.234 s 84 …. 5.234 Strata Schemes (Freehold Development) Act 1973 s 8AA …. 10.97 Strata Schemes (Leasehold Development) Act 1986 s 8 …. 10.97

Strata Schemes Management Act 1996 …. 5.233 Strata Titles Act 1973 …. 5.231 Succession Act 2006 Ch 4 …. 3.12 s 3 …. 3.12, 3.46 s 4 …. 3.12, 3.46 s 16(1) …. 3.65 s 38 …. 3.28 s 44(2) …. 3.67, 3.68 s 50(1) …. 3.46 s 136 …. 3.6 Supreme Court Act 1970 …. 4.70, 8.167 s 63 …. 11.113 s 64 …. 4.70 s 78 …. 11.113 Supreme Court Rules 1970 Pt 25, r 8(4) …. 1.41 Trustee Act 1925 s 11(2) …. 7.17 s 87 …. 6.86 s 100 …. 3.6 Uniform Civil Procedure Rules 2005 …. 2.56 r 1.12 …. 2.71

r 10.15 …. 2.56 r 14.15 …. 2.56 r 16.4 …. 2.56 r 36.5 …. 2.71 Western Lands Act 1901 …. 3.113

NORTHERN TERRITORY Administration and Probate Act s 62 …. 3.12 Business Tenancies (Fair Dealings) Act …. 8.5 Commercial Tenancies Act 1979 …. 8.5 Crown Lands Act s 19(2) …. 10.11 De Facto Relationships Act 1991 s 3A(3)(a) …. 4.137 s 16(1) …. 4.137 s 18 …. 4.136 Encroachment of Buildings Act …. 1.106, 2.99 s 13 …. 1.101 Fences Act 1972 …. 10.48 Human Tissue Transplant Act s 24 …. 1.38

Land Title Act 1994 …. 4.27, 8.32, 10.6, 10.117 s 9 …. 8.32 ss 9–11 …. 4.91 s 9(1) …. 4.27 s 10 …. 8.32 s 11 …. 8.32 s 62 …. 4.32E, 8.147 Land Title Act 2000 s 17(1)(b) …. 5.124 s 17(5) …. 5.124 ss 20–26 …. 5.124 s 39 …. 5.25 s 47 …. 5.28, 5.121 s 48 …. 5.17 s 57 …. 6.24 s 57(2) …. 6.20 s 63 …. 11.43 s 67 …. 11.135 s 69(IV) …. 10.120 s 76 …. 11.24 s 77 …. 4.49 s 79 …. 11.35 s 80 …. 11.61 s 81 …. 10.6, 10.117

s 83 …. 10.120 s 85 …. 10.120, 11.117 s 88 …. 11.35 s 90 …. 10.56 s 90(1) …. 11.85 s 96 …. 10.6, 10.117 s 111 …. 3.74 s 115(7) …. 8.53 ss 125–126 …. 5.162 s 136 …. 5.218 s 137 …. 5.172 ss 137–147 …. 5.168 s 138(1)(c) …. 5.171 s 142 …. 5.168 s 143 …. 5.174 s 144 …. 8.36 s 146 …. 5.177 s 183 …. 5.73 s 188 …. 5.29E s 188(2)(a) …. 5.31E s 188(2)(c) …. 5.33 s 188(3)(a) …. 5.161 s 188(3)(b) …. 5.161 s 189(1)(a) …. 5.103 s 189(l)(b) …. 5.161

s 189(1)(c) …. 5.141, 5.161 s 189(2)(b) …. 5.161 s 189(3) …. 5.161 s 189(3)(d) …. 5.161 s 189(3)(e) …. 5.161 s 189(3)(f) …. 5.161 s 191 …. 5.79 ss 192–196 …. 5.208 s 192(1)(b) …. 5.215 s 194 …. 5.209 s 195 …. 5.217 s 196 …. 5.209 s 198 …. 2.98, 5.149, 5.161 s 251 …. 10.139 Law of Property Act 2000 …. 10.11, 11.3 Pt 5, Div 2 …. 6.81 Pt 11 …. 7.15, 7.20, 7.64 s 4 …. 6.20, 10.11 ss 9–11 …. 6.60 s 12 …. 9.14 s 13(4) …. 6.58 s 19 …. 7.17 s 21 …. 3.3 s 22 …. 3.28 s 29 …. 3.28

s 30 …. 3.69 s 31 …. 3.46 s 34 …. 6.3 s 35 …. 6.20 s 35(2)(c) …. 6.20 s 36 …. 6.27 s 37 …. 6.82 s 37(1) …. 6.81 s 40 …. 6.81 s 40(7) …. 6.82 s 41 …. 6.82 s 43 …. 6.86 s 45 …. 6.41 s 56 …. 9.14 s 62 …. 3.12, 10.72 s 86 …. 11.142 s 86(e) …. 11.127 s 89(1)(a) …. 11.64 s 89(2) …. 11.64 s 92 …. 11.102 s 93 …. 11.35, 11.107 s 103 …. 6.15 s 104 …. 11.125 s 109 …. 11.95 s 117 …. 8.91

s 117(1) …. 8.119 s 118 …. 8.91 s 119(1)(a) …. 8.92 s 137 …. 8.154 ss 137–138 …. 8.153E, 8.156 s 137(1) …. 2.67 s 138(6)(b) …. 8.154 s 155 …. 10.11 s 156 …. 10.11 s 158(2) …. 10.11 s 159 …. 10.11 s 162 …. 10.97 ss 163–164 …. 10.98 s 187 …. 7.23 s 187(1) …. 7.23 s 187(2) …. 7.23 s 188 …. 7.38E s 189 …. 7.42E s 190 …. 7.47E, 7.48, 7.64 s 191 …. 7.17, 7.52 s 191(4) …. 7.58E s 192 …. 7.53 s 195 …. 7.17 s 196(4) …. 7.64 s 197(b) …. 7.17, 7.68, 7.69

s 198 …. 7.16 s 199 …. 7.62 s 201 …. 7.14 s 202 …. 7.74 s 216(2)(d) …. 6.4 s 221 …. 3.14, 7.64 Sch 4 …. 3.14 Pastoral Land Act …. 8.6 Perpetuities Act 1994 …. 7.20, 7.64 Residential Tenancies Act 1999 …. 8.213 s 4 …. 8.214, 8.215 s 29 …. 8.226 s 41 …. 8.225 s 42 …. 8.225 s 49 …. 8.224 s 51 …. 8.222E s 60 …. 8.224 s 63 …. 8.224 s 66 …. 8.218 s 82 …. 8.227 s 87 …. 8.229 s 89 …. 8.228 s 95 …. 8.228 s 104 …. 8.230

ss 137–38 …. 8.213 Sale of Goods Act 1972 …. 4.10 s 9 …. 4.25 s 23 …. 4.10 Supreme Court Act 1979 s 68 …. 4.70 Territory Parks and Wildlife Conservation Act s 62 …. 4.5 Trustees Act s 29 …. 7.17 s 193(2) …. 7.17 Unit Titles Act 1975 …. 5.233, 6.1 s 25 …. 10.97 Validation (Native Title) Act Pt 3C …. 3.114C Wills Act s 6 …. 3.12, 3.46, 3.62 s 37 …. 3.28

QUEENSLAND Body Corporate and Community Management Act 1997 …. 5.233, 6.1 Building Units and Group Titles Act 1980 …. 5.233

Consumer Credit (Queensland) Act 1994 …. 4.11, 11.5 s 15 …. 4.11 s 66 …. 4.11 s 68 …. 4.11 s 70 …. 4.11 Criminal Code Act 1899 s 70 …. 2.63 s 71 …. 2.63, 2.68 s 278 …. 2.63 s 359B(c) …. 1.52 Dividing Fences Act 1953 …. 10.48 Fauna Conservation Act 1952 …. 1.9, 3.120 s 7(1) …. 1.9 Fisheries Act 1887 …. 3.121C Land Act 1910 …. 3.111C s 204 …. 3.111C Land Act 1962 …. 3.111C s 6(1) …. 3.111C s 14 …. 3.111C s 14(1) …. 3.111C s 64(3) …. 3.111C s 295 …. 3.111C s 297(2) …. 3.111C

s 299(1) …. 3.111C s 299(2) …. 3.111C Land Act 1994 s 13A …. 1.108 Land Title Act 1994 …. 5.73, 5.129, 5.233, 10.6, 11.24 Pt 6, Div 2 …. 5.129 Pt 6, Div 4, Subdiv B …. 10.56 Pt 6, Div 4A …. 9.112 Pt 7A …. 5.197 s 44 …. 10.126, 10.127 s 47 …. 5.17 s 55 …. 3.74 s 56 …. 6.24 s 56(2) …. 6.20 s 59 …. 6.56 ss 64–71 …. 5.129 s 66 …. 11.135 s 74 …. 11.24 s 75 …. 4.49, 11.27 s 78 …. 11.43, 11.61, 11.127, 11.142 s 78(2) …. 11.117 s 79 …. 11.104 s 81 …. 11.139E s 82 …. 11.29, 10.6, 10.117

s 82(2) …. 11.39 s 82(3) …. 11.39 s 83 …. 10.6, 10.117 s 85 …. 10.6, 10.117 ss 86–88 …. 10.20 s 87 …. 11.101, 11.102 s 88 …. 10.115 s 89 …. 10.10 s 90 …. 10.110 s 93 …. 10.7 s 95 …. 10.7 s 97A …. 9.109 s 97A(2) …. 9.39 s 98 …. 2.98 s 99 …. 11.95, 11.116, 11.126 ss 121–131 …. 5.168 s 122(1)(c) …. 5.171 s 126(1)(a) …. 5.171 s 127 …. 5.174 s 130 …. 5.177 s 167 …. 11.43 s 178 …. 11.35 s 180 …. 5.73 s 183 …. 4.77 s 184(3)(a) …. 5.161

s 184(3)(b) …. 5.161 s 185(l)(b) …. 5.161 s 185(l)(c) …. 5.161, 10.120 s 185(l)(d) …. 5.161 s 185(l)(e) …. 5.161 s 185(l)(f) …. 5.161 s 185(l)(g) …. 5.161 s 185(2) …. 5.161 s 185(3) …. 5.161 s 191 …. 4.54 Limitation of Actions Act 1974 …. 2.72, 5.147 s 6(4) …. 2.86 s 10(6)(b) …. 2.105 s 12(2) …. 2.74 s 13 …. 2.74, 2.85 s 14(1) …. 2.91 s 14(2) …. 2.91 s 14(3) …. 2.91 s 15(1) …. 2.103, 2.114 s 15(2) …. 2.103 s 15(3) …. 2.103 s 16 …. 2.104, 2.105 s 17 …. 2.114 s 18 …. 2.118 s 18(3) …. 2.115

s 19(1) …. 2.89 s 19(2) …. 2.108 s 21 …. 2.109 s 22 …. 2.106 s 24 …. 2.74 s 27 …. 2.104 s 29 …. 2.112 s 29(2)(b) …. 2.112 ss 35–37 …. 2.109 s 38 …. 2.112 Married Women’s Property Act 1890 s 21 …. 4.111 Mixed Use Development Act 1993 …. 5.233 Nature Conservation Act 1992 s 83 …. 4.5 Perpetuities and Accumulations Act 1972 …. 7.20 Property Law Act 1974 …. 3.1, 4.27, 5.8, 8.32, 9.5, 10.98, 11.3 Pt 5, Div 2 …. 6.81 Pt 6, Div 4 …. 11.3 Pt 8, Div 6 …. 1.94 Pt 11 …. 1.106 Pt 11, Div 1 …. 2.99 Pt 14 …. 7.15, 7.20

Div 4 …. 5.124 s 3 …. 10.67 s 4 …. 5.130 s 8 …. 4.27 s 9 …. 10.57 s 10 …. 4.27 s 10(1) …. 8.32 s 10(2)(b) …. 8.32 s 10(2)(c) …. 8.32 s 11 …. 4.91 ss 11–12 …. 6.60 s 11(1)(a) …. 8.32 s 11A(1)–(3) …. 5.84 s 11B(1)–(3) …. 5.84 s 12 …. 4.91, 8.32 s 13 …. 9.14 s 14(3) …. 6.58 s 15 …. 5.122 s 15(1) …. 5.124 s 15(1)(b) …. 5.124 s 15(2) …. 5.124 s 15(3)(a) …. 5.124 s 15(8) …. 5.124 s 19 …. 7.17 s 21 …. 3.3

s 28 …. 5.160 s 29 …. 5.160 ss 31–36 …. 8.214 s 34 …. 6.3, 5.160 s 35 …. 6.20, 6.25 s 35(2)(c) …. 6.20 s 36 …. 6.27 s 37 …. 6.81 ss 37–41 …. 5.25 s 37A …. 6.82 s 38 …. 6.81 s 38(4) …. 6.82 s 39 …. 6.82 ss 41–42 …. 6.86 s 41(1) …. 6.86 s 43 …. 6.41 s 45 …. 4.29 s 46 …. 5.28, 5.121 s 47 …. 4.29 s 51 …. 8.147 s 52 …. 5.197 s 52(4) …. 5.197 s 52(5A) …. 5.197 s 53(1) …. 9.26E s 53(2) …. 9.45, 8.125

s 55 …. 9.14 s 58 …. 4.62 s 59 …. 4.31 s 62 …. 5.57, 8.147, 10.72 s 63 …. 4.62 s 64 …. 4.62, 5.129 s 77 …. 11.35, 11.61, 11.121 s 78 …. 11.118 s 82 …. 11.38E s 83(1)(a) …. 11.61 s 83(1)(c) …. 11.121 s 84 …. 11.61 s 84(3) …. 11.38E s 85 …. 11.90, 11.91 s 85(1) …. 11.77, 11.90, 11.91 s 85(1A) …. 11.90 s 85(3) …. 11.91 s 88 …. 11.35, 11.107 s 92 …. 8.225 s 92(1) …. 11.121 s 92(2) …. 11.121 s 92(8) …. 11.121 s 93 …. 6.15 s 94 …. 11.125 s 97 …. 11.119

s 98 …. 5.147 s 99 …. 5.147, 11.95, 11.116, 11.126 s 102(1) …. 8.55 s 102(3) …. 8.54 s 102(5) …. 8.53 s 103 …. 5.147 s 104 …. 4.147 s 105 …. 5.147 s 105(1)(b) …. 8.91 s 106 …. 8.91 s 107(a) …. 8.92 s 108 …. 5.147 s 108A …. 5.147 ss 109–110 …. 5.162 s 112(1) …. 8.107 s 112(2) …. 8.107 s 117 …. 8.139E, 8.142C, 8.143, 8.147 s 118 …. 8.139E, 8.143 s 119 …. 8.109 s 121 …. 5.172, 8.110, 8.118 s 121(2) …. 8.106 ss 123–128 …. 8.167 s 124 …. 8.168 s 124(1) …. 8.153E, 8.156 s 124(6)(a) …. 8.154

s 124(6)(c) …. 8.154 s 124(7) …. 8.154 s 124(9) …. 8.154 s 125 …. 8.179 s 126 …. 5.168 s 128 …. 8.121 s 129(1) …. 4.68, 8.36 s 130 …. 5.177 s 138 …. 5.197 s 141(1) …. 5.197 s 141(2) …. 5.197 s 142(2) …. 8.171E s 149(5) …. 8.53 s 150 …. 5.197 ss 153–167 …. 8.6 s 155 …. 1.94 s 177(1) …. 5.197 s 178 …. 10.96 s 179 …. 10.97 s 180 …. 1.71, 5.69, 10.98, 10.99, 10.100C, 10.127 s 181 …. 9.96, 10.116 s 181(1)(b) …. 9.101, 9.102E, 9.103 s 181(4) …. 9.103 s 183 …. 5.69 s 184 …. 5.29E, 5.45

s 184(2)(a) …. 5.31E s 184(2)(b) …. 5.33 s 185(1)(a) …. 5.103, 5.110 s 185(1)(b) …. 5.130 s 185(1)(c) …. 5.141, 8.124 s 185(1)(d) …. 5.147 s 185(1A) …. 5.84 s 185(2) …. 5.130 s 185(3) …. 5.141 s 185(4) …. 5.141 s 185(5) …. 5.84 s 187 …. 5.45, 5.79, 5.124 ss 188–190 …. 5.208 s 188(1)(a) …. 5.216 s 188(1)(b) …. 5.215 s 188(2) …. 5.209 s 188C …. 5.222 s 188D …. 5.159 s 189 …. 5.217 s 189(1)(a) …. 5.217 s 189(1)(ab) …. 5.84, 5.221 s 189(1)(b) …. 5.218 s 189(1)(j) …. 5.217 s 189(1)(k) …. 5.217 s 189(1)(l) …. 5.152

s 189(2) …. 5.218 s 189A …. 5.223 s 190 …. 5.209 ss 195–198 …. 1.101 s 196 …. 1.99, 1.100E s 198A …. 10.96 s 199 …. 9.29 s 200 …. 4.81, 4.82, 4.87, 6.55 s 209(1) …. 7.23 s 209(3) …. 7.23 s 210 …. 7.53 s 210(1) …. 7.47E s 210(4)–(5) …. 7.33E s 212 …. 7.42E s 213 …. 7.17, 7.52, 7.53 s 213(3) …. 7.58E s 213(4) …. 7.58E s 214 …. 7.38E s 215 …. 7.62 s 216 …. 7.14 s 218 …. 7.17, 7.68 s 218(1) …. 7.69 s 219 …. 7.64 s 220 …. 7.17 s 221 …. 7.16

s 222 …. 7.74 s 234A …. 10.72 s 237(1) …. 5.8 s 237(6) …. 5.9 s 238 …. 5.8 s 238(12) …. 5.9 s 239 …. 10.67, 10.72 s 241 …. 5.11 ss 241–249 …. 5.15 s 246 …. 5.11 s 256 …. 4.189 s 260 …. 4.137 s 286 …. 4.136 s 287(a) …. 4.137 Sch 2 …. 5.147 Real Property Act 1861 …. 4.68, 5.48C s 44 …. 5.48C s 123 …. 5.48C s 124 …. 5.48C s 124(d) …. 5.48C Real Property Act 1877 …. 5.70C Real Property Acts Amendment Act of 1952 Pt III …. 5.48C Residential Tenancies Act 1994

s 53 …. 8.229 Residential Tenancies and Rooming Accommodation Act 2008 …. 8.213 Ch 5, Pt 1 …. 8.227 s 12(2) …. 8.213 s 55 …. 8.182 s 91 …. 8.225 s 103(2)(c) …. 8.102 s 124(1) …. 8.215 s 183 …. 8.218 s 184 …. 8.222E s 188 …. 8.222E ss 210–11 …. 8.224 ss 216–221 …. 8.224 s 277 …. 2.67 ss 293–300 …. 8.230 s 326 …. 8.228 ss 397–433A …. 8.231 Retail Shop Leases Act 1994 …. 8.5 Sale of Goods Act 1896 …. 4.10 s 8 …. 4.27 s 21 …. 4.10 s 25 …. 2.17 Stamp Act 1894 …. 5.48C

s 53(5) …. 5.48C Succession Act 1981 …. 3.12 Pt I …. 3.62 Pt III …. 3.12 s 3 …. 3.14, 3.62, 3.69 s 7 …. 3.62, 3.69 s 8 …. 3.46 s 22 …. 3.28 s 25 …. 3.39 s 29(1) …. 3.28 s 30 …. 3.69 s 31 …. 3.46 s 33K …. 3.28 s 45 …. 3.64 s 65 …. 6.4 Sch 2 …. 3.6 Sch 6 …. 3.14, 3.62 Supreme Court Act 1995 s 242 …. 4.70 s 249 …. 4.70 Sustainable Planning Act 2009 …. 9.112 s 87 …. 9.112 Transplantation and Anatomy Act 1979

ss 40–42 …. 1.38 Trustee Act 1973 s 98 …. 5.178

SOUTH AUSTRALIA Administration and Probate Act 1919 Pt IIIA …. 3.12 s 6 …. 11.61, 11.121 s 7 …. 3.46 s 10(a) …. 3.46 s 12 …. 3.39 s 25 …. 3.65 s 44(2) …. 11.116 s 45 …. 3.64, 11.125 s 46 …. 3.12, 3.64 s 47(1)(a) …. 11.61 s 47(1)(c) …. 11.121 s 48 …. 11.61 s 49 …. 3.12 s 50 …. 11.107 s 53(1) …. 11.121 s 53(2) …. 11.121 s 53(8) …. 11.121 s 55A …. 11.66

s 55A(2) …. 11.66 s 55B(2) …. 11.56 s 72C …. 3.12 s 72G(e) …. 3.6 s 75 …. 3.74 Agricultural Holdings Act 1891 ss 6–22 …. 1.94 Community Titles Act 1996 …. 5.233, 6.1 De Facto Relationships Act 1996 s 3(1) …. 4.137 s 9(2) …. 4.137 ss 10–11 …. 4.136 Encroachments Act 1944 …. 1.106, 2.99 Estates Tail Act 1881 …. 3.14 Fences Act 1975 …. 10.48 Fisheries Act 1971 …. 3.123 s 29 …. 3.123 Landlord and Tenant Act 1936 s 4 …. 8.151, 8.167 s 5 …. 8.167 s 7 …. 8.167 s 9 …. 8.167

s 10 …. 8.153E, 8.156, 8.215 s 11 …. 8.171E s 12 …. 8.179 s 12(5) …. 8.154 s 12(6) …. 8.154 s 47 …. 8.109 s 50 …. 8.149 Law of Property Act 1936 …. 3.1, 4.27, 5.8, 8.32, 9.5, 11.3 Pt VIII …. 6.77 s 6 …. 5.165 s 7 …. 10.67 s 8 …. 4.27 s 15 …. 9.29 s 22 …. 10.96 s 24C …. 6.3 s 26 …. 4.32E s 27 …. 5.18 s 28 …. 4.27 s 28(1) …. 8.32 s 28(2)(c) …. 8.32 s 28(2)(d) …. 8.32 s 29 …. 4.91 ss 29–31 …. 6.60 s 29(1)(a) …. 8.32 s 30 …. 8.32

s 30(1) …. 4.91 s 30(2) …. 4.27 s 31 …. 4.91 s 31(c) …. 8.32 ss 32–34 …. 5.19 s 34 …. 9.5 s 36 …. 5.19, 10.67 s 40(3) …. 6.58 s 41 …. 4.29, 4.74C s 41(2) …. 4.29 s 41A …. 10.10 s 41AA …. 4.29 s 44 …. 5.177 s 50 …. 5.121, 11.107 s 51 …. 5.121 s 54 …. 6.15 s 55 …. 6.15 s 57 …. 5.121 ss 60–63 …. 5.123 s 61 …. 7.15 s 61(1)(b) …. 7.14 s 61(1)(c) …. 7.74 s 62 …. 7.74 s 69 …. 5.25, 5.29E, 5.51, 5.73 s 69(1) …. 6.86

s 69(b) …. 5.51, 5.123 s 69(c) …. 5.126 s 69(d) …. 5.141 s 69(h) …. 5.96, 5.130 s 69(i) …. 5.150 s 71 …. 5.103 s 72 …. 5.31E, 5.96 s 80 …. 5.28 ss 90A–90E …. 10.116 s 105 …. 4.111 ss 116–117 …. 5.129 s 117 …. 4.189, 5.56 s 124 …. 8.119 s 124(b) …. 8.91 s 125(b) …. 8.92 s 162 …. 5.162 s 186 …. 5.31E, 5.96 s 187 …. 5.31E, 5.96 s 191 …. 5.168 s 191(a) …. 5.172 s 191(d) …. 5.174 s 201(4)(a) …. 5.208 s 203 …. 5.209 s 205 …. 5.209 s 207 …. 5.33, 5.45

s 208 …. 5.209, 5.215 s 209 …. 5.223 s 210 …. 5.210 s 211 …. 5.217 s 212 …. 5.217 s 213(h) …. 5.208 s 214 …. 5.217 s 215 …. 5.222 s 216 …. 5.218 ss 217–219 …. 5.209 s 220(f) …. 5.122 s 220(g) …. 5.171 s 220(4) …. 5.79 s 221 …. 5.18, 5.79 s 246 …. 8.55 s 249(1) …. 5.103 Law of Property (Perpetuities and Accumulations) Amendment Act 1996 …. 7.15 Limitation of Actions Act 1936 …. 2.72 s 4 …. 2.74, 2.85 s 6 …. 2.91 s 7 …. 2.91 s 8 …. 2.91 s 9 …. 2.103, 2.114

s 10 …. 2.114 s 11 …. 2.114 s 15 …. 2.118 s 16 …. 2.118 s 17 …. 2.115 s 18 …. 2.109 s 19 …. 2.109 s 20 …. 2.106 s 21 …. 2.109 s 25 …. 2.112 s 28 …. 2.74 s 31 …. 2.104 s 32 …. 2.104 s 42 …. 2.109 s 45 …. 2.112 s 45(3) …. 2.112 Real Property Act 1858 …. 5.14 Real Property Act 1886 …. 5.55C, 5.129, 5.151, 8.85, 9.34C, 9.119C, 10.6, 10.117, 10.140C, 11.24, 11.31C Pt VIIA …. 5.148, 5.161, 10.139 s 3 …. 3.73C, 11.31C s 6 …. 5.158, 11.61, 11.121 s 14 …. 11.139E s 26 …. 5.17

s 42(1)(c) …. 11.43 s 44 …. 11.95 s 49(2) …. 11.102 s 56 …. 5.55C, 11.31C, 11.35 s 69 …. 5.55C, 11.31C s 69(a) …. 5.161 s 69(b) …. 5.51 s 69(c) …. 5.161 s 69(d) …. 5.161, 10.120 s 69(e) …. 5.161 s 69(f) …. 5.161 s 69(h) …. 5.161 s 69II …. 5.51 s 74 …. 6.24, 6.76 s 77 …. 11.31C s 80A …. 5.148 s 80C …. 5.148 s 80F …. 2.98, 5.148 s 81 …. 10.6, 10.11, 10.117 s 83 …. 10.129 s 84 …. 10.129, 10.140C s 86 …. 5.161 s 88 …. 5.117, 10.140C s 89 …. 10.39 s 89A …. 10.39

s 90 …. 10.56 s 90B(1) …. 10.110 s 90B(3)–(4) …. 10.110 s 90C …. 10.20 s 90C(2) …. 10.115 s 96 …. 10.6, 10.117 s 97 …. 9.34C s 111 …. 3.74 s 117 …. 5.55C s 118 …. 11.135 s 119 …. 5.55C s 128 …. 9.34C s 130 …. 11.43 s 132 …. 11.24, 11.61 s 133 …. 11.61 s 134 …. 11.100, 11.102 s 135 …. 11.31C, 11.35, 11.107 s 136 …. 11.104 s 137 …. 11.127, 11.136, 11.142 s 140 …. 11.117 s 141 …. 11.117 s 152 …. 8.137 s 175 …. 3.73C s 180 …. 3.73C s 188 …. 6.76

s 246 …. 4.85, 4.86E s 249 …. 9.34C s 251 …. 5.148, 5.161, 10.139 s 261 …. 11.43 Sch 6 …. 10.39 Real Property (Registration of Titles) Act 1945 …. 5.24 s 3 …. 5.23 Registration of Deeds Act 1935 …. 5.15, 5.24 s 10(2) …. 5.11 Registration of Deeds, Wills, Judgments, Conveyances and Other Instruments Act 1841 …. 5.10 Residential Tenancies Act 1995 …. 8.213 Pt 8 …. 8.231 s 3(1) …. 8.213, 8.223 s 5 …. 8.214 s 41 …. 8.231 s 55 …. 8.225 s 56(1) …. 8.225 s 56(2) …. 8.225 s 60 …. 8.182 s 61 …. 8.226 s 62 …. 8.224 s 65 …. 8.218

s 66 …. 8.224 s 68(3) …. 8.224 s 69 …. 8.221, 8.222E s 70 …. 1.94, 8.224 s 79 …. 8.227 s 80 …. 8.229 s 83 …. 8.228 s 86(2) …. 8.228 s 93 …. 8.230 s 95 …. 2.67 s 97 …. 2.45 Retail and Commercial Leases Act 1995 …. 8.5 s 20B …. 5.157 Sale of Goods Act 1895 …. 4.10 s 18 …. 4.10 Statute Law Revision Act 2003 s 2(2) …. 7.48, 7.64 s 9 …. 7.48, 7.64 Strata Title Act 1988 s 9 …. 10.56, 10.97 Summary Offences Act 1953 s 17D …. 2.63 s 17D(2) …. 2.68 Supreme Court Act 1935

s 28 …. 4.70 Transplantation and Anatomy Act 1983 s 35 …. 1.38 Wills Act 1936 s 4 …. 3.12, 3.46 s 31 …. 3.28

TASMANIA Administration and Probate Act 1935 Pt V …. 3.12 s 4 …. 3.64 s 33(6) …. 3.74 s 33(8) …. 3.74 s 44 …. 3.12 s 45 …. 3.6 s 61(2) …. 3.28 s 65 …. 3.28 s 80(1) …. 3.46 s 80(2) …. 3.65 s 81 …. 3.65 Boundary Fences Act 1908 …. 10.48 Consumer Credit Code …. 4.11 Conveyancing and Law of Property Act 1884 …. 3.1, 4.27, 5.8, 8.32, 9.5,

11.3 Pt XIA …. 5.233 Pt XVA …. 10.116 s 2 …. 10.67 s 3(2) …. 5.8 s 4 …. 4.137 s 5 …. 4.189 s 6 …. 10.67, 10.72 s 7(1)(c) …. 11.43 s 9 …. 5.11 s 9A …. 9.91, 10.113, 10.114E s 10 …. 8.139E, 8.143 s 11 …. 5.18, 8.139E, 8.143 s 12 …. 8.149 s 12(1) …. 5.19 s 12(2) …. 5.19 s 15 …. 8.168 s 15(1) …. 8.153E, 8.156, 8.192 s 15(2) …. 8.171E s 15(3) …. 8.179 s 15(6) …. 8.154 s 15(7) …. 8.154 s 15(8) …. 8.154 s 16 …. 8.109 s 17 …. 5.24, 11.125

s 18 …. 5.22 ss 19–20 …. 5.24 s 21 …. 5.20 s 21(1)(a) …. 11.61 s 21(1)(c) …. 11.121 s 21(2) …. 5.20 s 22 …. 11.61 s 23(3) …. 11.107 s 25 …. 5.20 s 26(1) …. 11.121 s 26(2) …. 11.121 s 26(8) …. 11.121 s 27 …. 11.95 s 27(2) …. 11.116 s 28(2) …. 11.118 s 30 …. 6.15 s 33(1) …. 5.121 s 33(4) …. 5.121 s 34A …. 10.39 s 34B …. 10.39, 10.47 s 34C …. 10.57 s 35(1) …. 5.8 s 35(5) …. 5.9 s 35(6) …. 5.9 s 35A …. 4.189, 9.46

s 36 …. 4.32E s 37(1) …. 4.137 s 38 …. 11.29, 11.38E s 58 …. 10.72 s 59 …. 4.27 s 60 …. 6.60, 8.147 s 60(1) …. 4.27, 8.32 s 60(2) …. 4.91 s 60(2)(a) …. 8.32 s 60(3) …. 4.91, 8.32 s 60(4) …. 4.27, 8.32 s 60(5) …. 4.91 s 60(5)(c) …. 8.32 s 61 …. 9.5 s 62 …. 3.74 s 62(2) …. 6.58 s 62(4)–(6) …. 6.3 s 64(1) …. 5.129 s 64(2) …. 5.129 s 66 …. 8.119 s 66(b) …. 8.91 s 67(a) …. 8.92 s 69(1) …. 5.129 s 71 …. 9.26E s 71A …. 8.125, 9.45

s 73 …. 6.15 s 74 …. 10.58 s 75G …. 10.97 s 80 …. 3.74 s 83 …. 9.20 s 84A …. 9.96 s 84C(1)(c) …. 9.103 s 84C(6) …. 9.103 s 84C(7) …. 9.103 s 84F …. 9.96 s 84G …. 9.96 s 84J …. 1.71, 10.98, 10.116 s 84L …. 6.86 s 84L(1) …. 6.86 s 86 …. 9.29 s 90A …. 10.10 s 90B …. 10.56 s 90E …. 4.62 s 91 …. 10.72, 11.121 s 109 …. 10.112 Criminal Code Act 1924 s 42 …. 2.63 s 79 …. 2.63 s 79(2) …. 2.68

Fair Trading (Code of Practice for Retail Tenancies) Regulations 1998 …. 8.5 Human Tissue Act 1985 s 27 …. 1.38 Land Titles Act 1980 …. 5.129, 5.132C, 5.145, 10.6, 10.117, 11.24 Pt I …. 11.43 s 9 …. 5.17 s 19 …. 11.136 s 20 …. 11.136 s 23(2) …. 11.102 s 28 …. 11.43 s 40 …. 5.161 s 40(3)(a) …. 5.161 s 40(3)(b) …. 5.161, 10.119 s 40(3)(c) …. 5.161 s 40(3)(c)(ii) …. 10.119 s 40(3)(d) …. 5.161 s 40(3)(e) …. 5.161, 10.118 s 40(3)(f) …. 5.161 s 40(3)(g) …. 5.161 s 40(3)(h) …. 5.145, 5.161 s 41 …. 5.161 s 44 …. 6.20, 6.24, 6.76 s 48(5) …. 11.35 s 52 …. 11.35

s 63 …. 6.56 s 64(3) …. 11.135 s 70 …. 11.43 s 73 …. 11.24 s 74 …. 11.43 s 76 …. 11.35 ss 77–79 …. 11.61 s 77(3) …. 11.102 s 78 …. 11.35, 11.89, 11.107 s 78(1) …. 11.86 s 78(5) …. 11.102 s 81 …. 11.104 s 82 …. 11.127, 11.142 s 85 …. 11.117 s 86 …. 11.117 s 90 …. 11.43 s 100 …. 6.76 s 102 …. 9.109, 9.114 s 102(2)(a) …. 9.111 s 103(1) …. 9.91 ss 105–106 …. 10.6, 10.117 s 106(2) …. 9.96 s 107 …. 10.150 s 108(1) …. 10.110 s 108(2) …. 10.110

s 109 …. 10.20, 10.115 s 110(2)(b) …. 9.124 s 110(4)–(12) …. 10.98 s 113 …. 3.14 s 138U …. 5.145 s 138V …. 5.145 s 138W(1) …. 5.145 s 138W(2) …. 5.145 s 138W(4) …. 5.145 s 138W(6) …. 5.145 s 138X …. 5.145 s 138Y …. 2.98, 5.145 s 139 …. 5.122 s 141 …. 5.79 s 144 …. 5.18 s 146 …. 11.127, 11.142 s 151 …. 5.217 s 152(2)(b) …. 5.209 s 152(8)(b) …. 5.209 s 152(8)(c) …. 5.209 s 153(1)(b) …. 5.209, 5.215 s 153(2) …. 5.223 s 155 …. 5.210 s 157(3) …. 5.208 s 158 …. 5.222

s 159 …. 5.209 s 160(3) …. 5.171 s 163 …. 5.123 s 164 …. 5.123 Sch 1, Pt I …. 11.43 Sch 2 …. 5.233, 11.43 Landlord and Tenant Act 1935 s 26 …. 1.94 Limitation Act 1974 …. 2.72, 5.145 s 6 …. 2.74 s 6(1) …. 2.46 s 6(2) …. 2.46 s 9 …. 2.105 s 10(1) …. 2.86 s 10(2) …. 2.74, 2.85 s 10(4) …. 2.86 s 10(5) …. 2.86 s 11(1) …. 2.791 s 11(2) …. 2.91 s 11(3) …. 2.91 s 12(1) …. 2.103, 2.114 s 12(2) …. 2.103 s 12(5) …. 2.103 s 13(1) …. 2.104

s 13(3) …. 2.105 s 13(4) …. 2.105 s 14 …. 2.114 s 15 …. 2.118 s 15(3) …. 2.115 s 16(1) …. 2.89 s 16(2) …. 2.108 s 16(4) …. 2.106 s 16A …. 2.74, 2.104, 2.108 s 19 …. 2.109 s 24 …. 2.74, 2.104 ss 26–28 …. 2.112 s 26(4) …. 2.112 ss 29–31 …. 2.109 s 32 …. 2.112 Local Government (Building and Miscellaneous Provisions) Act 1993 s 113 …. 5.22 Married Women’s Property Act 1935 s 8 …. 4.111 Mining Act 1929 …. 1.12C National Parks and Wildlife Act 1970 …. 1.12C Neighbouring Land Act 1992 …. 10.103 Partition Act 1869 …. 6.77

Perpetuities and Accumulations Act 1992 …. 7.15, 7.20 s 6 …. 7.23 s 6(3) …. 7.23 s 7 …. 7.38E s 9 …. 7.47E, 7.53 s 9(6) …. 7.33E s 10 …. 7.42E s 11 …. 7.17, 7.52, 7.53 s 11(3) …. 7.58E s 12 …. 7.62 s 15 …. 7.17 s 15(1) …. 7.69 s 16 …. 7.64 s 17 …. 7.17 s 18 …. 7.16 s 19 …. 7.17 s 21 …. 7.14 s 22 …. 7.74 Prescription Act 1934 …. 10.84, 10.119 s 2 …. 10.85C s 9 …. 10.96 s 10 …. 10.96 Presumption of Survivorship Act 1921 s 2 …. 6.4

Real Property Act 1862 …. 6.59 Registration Act 1827 …. 5.10 Registration of Deeds Act 1935 …. 5.15 Relationships Act 2003 s 40 …. 4.136 Residential Tenancies Act 1997 …. 8.213 s 6 …. 8.214 s 15(1) …. 8.213, 8.215 s 20 …. 8.225 s 23 …. 8.225 s 25 …. 8.226 ss 33–34 …. 8.224 s 37 …. 8.227 s 39 …. 8.228 s 42 …. 8.229 s 43 …. 8.228 s 55 …. 8.218 s 57 …. 8.224 Sale of Goods Act 1896 …. 4.10 s 8 …. 4.11 s 23 …. 4.10 Strata Titles Act 1998 …. 5.233, 6.1 Supreme Court Civil Procedure Act 1932

s 11(5) …. 11.139E s 11(10) …. 4.70 s 11(14) …. 8.167 s 11(14A) …. 8.167 Trustee Act 1898 s 14 …. 7.17 Wills Act 2008 s 4 …. 3.12, 3.46 s 6 …. 3.12, 3.46 s 52(1) …. 3.28

VICTORIA Administration and Probate Act 1958 Pt I, Div 6 …. 3.12 s 4 …. 3.46 s 5 …. 3.12 s 13 …. 3.12, 3.64 s 19(1)(a) …. 3.46 s 38 …. 3.12 s 52 …. 3.12 s 55 …. 3.6 s 60(1) …. 3.28 s 60(6) …. 3.28 s 133 …. 3.39

s 191 …. 3.65 s 192 …. 3.65 s 249 …. 3.14, 3.28 s 250 …. 3.14 s 251 …. 3.14 Charter of Human Rights and Responsibilities Act 2006 …. 2.682 s 7(2) …. 2.82 s 13 …. 2.82 s 18 …. 2.82 s 20 …. 1.14, 1.64, 1.66, 2.82 s 32 …. 2.82 Companies Act 1958 …. 5.230 Consumer Credit (Victoria) Act 1995 s 38 …. 5.156 Crimes Act 1958 s 207 …. 2.63 s 207(2) …. 2.68 Electronic Conveyancing National Law …. 5.85 Fair Trading Act 1999 …. 1.67 s 3 …. 1.67 Fences Act 1968 …. 10.48 Goods Act 1958 …. 1.67, 4.10

s 23 …. 4.10 Human Tissue Act 1982 s 38(1) …. 1.38 s 39 …. 1.38 s 39(2) …. 1.38 Imperial Acts Application Act 1980 s 5 …. 3.3, 3.14, 3.62, 3.70 Imperial Law Re-Enactment Act 1980 …. 3.3 s 6 …. 3.70 Instruments Act 1958 s 126 …. 4.32E, 4.34 Interpretation of Legislation Act 1984 s 35(a) …. 5.155 Land Act 1958 ss 384–385 …. 1.108 Landlord and Tenant Act 1958 s 9 …. 8.165 s 12 …. 8.182 Limitation of Actions Act 1958 …. 2.72 s 5(1) …. 2.46 s 5(1)(d) …. 5.222 s 5(8) …. 2.105 s 6(1) …. 2.46

s 6(2) …. 2.46, 2.74 s 7 …. 2.86 s 7A …. 2.86 s 7AB …. 2.86 s 7B …. 2.86, 2.93 s 8 …. 2.74, 2.85, 2.87, 2.88E, 2.92C s 9(1) …. 2.91, 2.92C s 9(2) …. 2.91 s 9(3) …. 2.91 s 10(1) …. 2.103, 2.114 s 10(2) …. 2.103 s 10(3) …. 2.103 s 11 …. 2.104, 2.105 s 12 …. 2.114 s 13 …. 2.118 s 13(3) …. 2.115 s 14(1) …. 2.89, 2.92C s 14(2) …. 2.108 s 14(4) …. 2.106 s 16 …. 2.109 s 18 …. 2.74, 2.92C s 23 …. 2.112 s 23(1)(c) …. 112 s 24 …. 2.109 s 25 …. 2.109

s 27 …. 2.104, 112 s 32 …. 2.86 Local Government Act 1989 s 187A …. 10.10 s 203 …. 5.153 Marriage Act 1958 s 161 …. 4.111 Owners Corporations Act 2006 …. 5.233 Perpetuities and Accumulations Act 1968 …. 7.15, 7.20, 7.33E, 7.38E, 7.42E, 7.47E, 7.51E, 7.58E, 7.61E, 7.73E s 5(1) …. 7.23 s 5(3) …. 7.23 s 6 …. 7.33E, 7.47E, 7.53 s 6(1) …. 7.46 s 6(4) …. 7.32, 7.34 s 8 …. 7.41, 7.42E s 9 …. 7.19, 7.50, 7.51E, 7.53, 7.58E s 9(1)(b) …. 7.52 s 9(3) …. 7.57 s 9(4) …. 7.57 s 10 …. 7.37, 7.38E s 11 …. 7.60, 7.61E s 12 …. 7.14

s 15 …. 7.17, 7.68 s 15(1) …. 7.69 s 16 …. 7.64 s 17 …. 7.17 s 18 …. 7.16 s 19 …. 7.17, 7.73E, 7.74 s 19(1) …. 7.72 Planning and Environment Act 1987 …. 9.84, 9.85E, 9.86 s 60 …. 9.86 s 60(2) …. 9.86 s 60(5) …. 9.86 Property Law Act 1928 s 300 …. 11.23C Property Law Act 1958 …. 3.1, 4.27, 4.194, 5.8, 8.32, 9.5, 9.97E, 9.106C, 9.113C, 11.3 Pt I …. 5.15 Pt II, Div 2 …. 5.20 Pt IV …. 6.77 s 3(1) …. 5.165 s 4(1) …. 5.23 s 9 …. 5.23 s 10 …. 5.18 s 12 …. 5.20 s 18 …. 5.20

s 18(1) …. 10.67 s 18A …. 3.3 s 19A …. 3.70, 3.71E ss 22–24 …. 5.23 s 26E …. 5.23 s 26S …. 5.19 s 26W …. 5.23 s 27 …. 5.121 s 28 …. 6.3 s 28A …. 6.41 s 33 …. 5.121 s 37 …. 5.62 s 41 …. 5.28 s 42 …. 5.28, 5.29E, 5.70C, 5.154C, 5.194C s 42(1)(b) …. 5.28, 5.126 s 42(2) …. 5.127 s 42(2)(b) …. 5.142, 5.144 s 42(2)(d) …. 5.141 s 42(2)(e) …. 5.131, 5.142, 5.194C s 42(2)(f) …. 5.150 s 43 …. 5.31E, 5.32, 5.154C, 5.181 s 44 …. 5.154C s 44(1) …. 5.8, 5.52 s 44(2) …. 5.33, 5.45 s 44(6) …. 4.194, 5.9

s 45(1) …. 5.8 s 45(11) …. 5.9 s 47(2) …. 5.612 s 51 …. 4.27, 4.28E s 52 …. 4.27, 4.28E s 52(1) …. 4.104, 8.32 s 52(2)(c) …. 8.32 s 52(2)(d) …. 8.32 s 53 …. 4.96, 6.60 ss 53–55 …. 4.91, 4.92E s 53(1) …. 4.32E, 4.104 s 53(1)(a) …. 4.101, 4.104, 8.32 s 53(1)(b) …. 4.101 s 54 …. 4.27, 4.28E, 8.32 s 54(2) …. 8.147 s 55(c) …. 8.32 s 56 …. 5.152, 9.71 s 56(1) …. 9.5, 9.6 ss 60–62 …. 5.144 s 62 …. 9.55, 10.65, 10.66E, 10.72, 10.118 s 65 …. 10.57 s 66(1) …. 5.129 s 67 …. 8.218 s 67(1)(a) …. 8.119 s 67(1)(b) …. 8.91

s 67(1)(c) …. 8.92 s 68 …. 8.219, 8.220E s 71 …. 5.129 s 72 …. 5.142, 6.58 s 73 …. 4.29, 10.116 s 73A …. 4.29 s 73B …. 4.29 s 77(1)(c) …. 4.76, 8.137 s 78 …. 9.26E s 79 …. 9.45, 8.125 s 79A …. 9.63, 9.64E, 9.65, 9.71 s 84 …. 9.96, 9.97E, 9.106C, 9.107 s 84(1) …. 9.107, 9.113C s 84(1)(a) …. 9.103, 9.106C s 84(1)(c) …. 9.106C s 86 …. 11.61, 11.121 s 87 …. 11.115 s 87(1) …. 11.119 s 88 …. 9.114 s 88(2) …. 5.160 s 88(3) …. 5.160 s 89 …. 5.188 ss 89–91 …. 5.168 s 89(1) …. 5.172 s 89A …. 5.188

s 90(3) …. 5.174 s 91 …. 11.95 s 91(2) …. 11.116 s 91A …. 5.60 s 91B …. 5.60 s 94 …. 11.37, 11.38E, 11.39 s 94(1)(b) …. 11.39 s 94(2) …. 11.39 s 95 …. 11.125 s 96 …. 5.70C s 101(1)(a) …. 11.61 s 101(1)(c) …. 11.121 s 102 …. 11.61 s 103 …. 5.79, 11.61 s 103(2) …. 5.122 s 103(3) …. 5.122 s 106(1)(a)(iii) …. 5.171 s 108(3) …. 5.20 s 109(1) …. 11.121 s 109(2) …. 5.217, 11.121 s 109(3)(a) …. 5.209 s 109(4) …. 5.208, 5.209 s 110 …. 5.216, 11.121 s 110(1) …. 5.216 s 110(1)(b) …. 5.216

s 110(1)(c) …. 5.215, 5.216 s 110(2) …. 5.209 s 110(3) …. 5.220 s 110(4) …. 5.223, 5.224 s 111 …. 5.210 s 112 …. 6.15 s 113 …. 6.15 s 115 …. 11.125 s 116 …. 5.18 s 117(2) …. 11.118 s 118 …. 5.177 s 126 …. 5.216 s 134 …. 9.27, 9.28E s 135 …. 5.70C s 137 …. 8.111 s 140 …. 8.149 s 141 …. 8.138, 8.139E, 8.140, 8.143, 8.144, 8.145, 8.146C s 142 …. 8.138, 8.139E, 8.140, 8.143, s 146C s 143 …. 8.109 s 144(1) …. 8.110 s 146 …. 8.152, 8.153E, 8.154, 8.155, 8.168, 8.171E, 8.194 s 146(1) …. 8.154, 8.194 s 146(2) …. 8.170 s 146(4) …. 8.179 s 146(9) …. 8.154

s 146(12) …. 8.154 s 146(13) …. 8.154 s 147 …. 8.107 s 148 …. 8.107 s 149(1) …. 8.55 s 149(3) …. 8.54 s 153 …. 9.20 s 154(3) …. 1.93 s 154A …. 1.93 s 154A(1) …. 1.91, 1.92E, 1.94 s 184 …. 6.4 s 187 …. 6.86 s 194 …. 10.58 s 195 …. 10.96 s 196 …. 10.96 s 197 …. 10.12 s 199 …. 4.187E, 5.193 s 228(1) …. 6.39 s 233(1) …. 6.39 s 233(2) …. 6.39 s 233(3) …. 6.39 s 233(3)(c) …. 6.39 Property Law Amendment Act 1998 …. 6.41 Property (Relationships) Act 1984 …. 5.169

Real Property Act 1918 s 11 …. 7.19 Real Property Act 1900 Relationships Act 2008 s 39 …. 4.137 s 42(2) …. 4.137 s 45(1) …. 4.136 Residential Tenancies Act 1980 s 104 …. 1.95 Residential Tenancies Act 1997 …. 5.130, 8.213 Pt 11 …. 8.231 s 3 …. 8.213 s 6 …. 8.214 ss 6–14 …. 8.214 s 27 …. 8.215 s 44 …. 8.225 s 47 …. 8.225 s 61 …. 8.222E s 63 …. 8.222E s 70 …. 8.224 ss 72–73 …. 8.224 ss 216–228 …. 8.227 s 229 …. 2.67

s 235 …. 8.228 s 246 …. 8.229 s 263 …. 8.228 s 322 …. 8.230 s 406 …. 8.226 Retail Leases Act 2003 …. 8.5 Sale of Land Act 1962 …. 11.3 s 32 …. 4.15 s 32K …. 4.15 ss 34–36 …. 4.62 Settled Land Act 1958 …. 5.18, 5.85, 7.17 Statute of Uses 1980 …. 10.58 Subdivision Act 1988 …. 6.1, 9.84, 9.86 Pt 1 …. 5.233 Pt 5 …. 5.233 s 12 …. 10.56 s 12(2) …. 10.97 s 23 …. 9.86 s 23(1) …. 9.84, 9.85E Subdivision (Miscellaneous Amendments) Act 1991 …. 9.84 Summary Offences Act 1966 s 9(1)(e) …. 2.63 s 9(1)(f) …. 2.63

s 9(1)(g) …. 2.63 Supreme Court Act 1986 s 29(1) …. 4.70 s 49(a) …. 5.154C, 5.155 s 79 …. 8.151 s 85 …. 8.167 Supreme Court (General Civil Procedure) Rules 2005 r 53.03(2) …. 2.71 r 53.05(3) …. 2.71 r 53.08 …. 2.71 Transfer of Land Act 1928 …. 10.118, 11.23C s 72 …. 5.132C s 146 …. 11.23C, 11.24 Transfer of Land Act 1954 …. 5.70C s 42 …. 5.72C s 43 …. 5.72C s 44(2) …. 5.72C s 52(4) …. 5.72C s 68 …. 5.72C s 72 …. 9.109 s 110(3) …. 5.72C s 134 …. 5.72C Transfer of Land Act 1958 …. 5.10, 5.23, 5.29E, 5.31E, 5.48C, 5.72C,

5.129, 9.113C, 10.6, 10.117, 11.24 Pt I …. 11.43 s 8(1) …. 5.17 s 19 …. 3.74 s 30(2) …. 6.24 s 33(4) …. 6.20 s 34 …. 11.35 s 40(3)(d) …. 5.132C s 42 …. 5.153, 5.161 s 42(l)(a) …. 5.161 s 42(1)(b) …. 5.161 s 42(2)(a) …. 5.161 s 42(2)(b) …. 5.161 s 42(2)(c) …. 5.161 s 42(2)(d) …. 6.50, 5.161, 10.118 s 42(2)(e) …. 5.132C, 5.133, 5.135, 5.161, 10.3C s 42(2)(f) …. 5.161 s 43 …. 5.31E, 5.161 s 50 …. 6.76 s 60 …. 2.107 s 62 …. 2.78 s 66 …. 8.146C s 67(2) …. 8.137 s 72 …. 10.6, 10.117 s 72(3) …. 10.39

s 73 …. 10.110 s 73(1) …. 10.110 s 73A …. 10.110 s 74(2) …. 11.24 s 75 …. 11.43 s 75B …. 11.35 s 76 …. 11.61 s 76(1)(c) …. 11.43 s 77 …. 11.61, 11.86, 11.87C s 77(1) …. 11.87C, 11.88 s 77(3) …. 11.35, 11.107 s 77(4) …. 11.104 s 78 …. 11.127, 11.142 s 79 …. 11.117 s 81 …. 11.129, 11.130E s 88 …. 9.114 s 88(1) …. 9.109 s 89 …. 4.213 s 94 …. 11.29 s 96(2) …. 10.144 s 98 …. 5.230, 10.56, 11.139E s 98A(1)(b) …. 5.230 s 98C(3) …. 5.230 s 99 …. 2.97, 11.135 s 100 …. 11.135

s 104(2) …. 11.102 s 105 …. 11.107 s 117 …. 11.43 s 206 …. 11.43 Sch 7, Pt I …. 11.43 Sch 8 …. 11.43 Sch 12 …. 10.39 Transfer of Land (Stratum Estates) Act 1960 …. 5.230 Trustee Act 1958 s 14 …. 7.17 Wills Act 1958 s 4 …. 3.12 Wills Act 1997 s 42 …. 3.28

WESTERN AUSTRALIA Administration Act 1903 Pt II …. 3.12 s 3 …. 3.12 s 6 …. 3.46 s 8 …. 3.64 s 10 …. 3.12 s 13 …. 3.12

s 14(1) …. 3.6 s 17 …. 3.39 s 23 …. 3.14 s 23(1) …. 3.28 s 26(1) …. 3.65 s 26(2) …. 3.65 s 37(1) …. 3.28 s 37(2) …. 3.28 s 39 …. 3.67 Commercial Tenancy (Retail Shops) Agreements Act 1985 …. 8.5 Constitution Act 1889 s 3 …. 3.114C Criminal Code Compilation Act 1913 s 69 …. 2.63 s 70 …. 2.68 s 255 …. 2.63 Criminal Property Confiscation Act 2000 …. 4.130 Distress for Rent Abolition Act 1936 s 2 …. 8.182 Dividing Fences Act 1961 …. 10.48 Escheat (Procedure) Act 1940 …. 3.6 Family Court Act 1997

s 205V …. 4.137 s 205Z(1)(a) …. 4.137 s 205ZG …. 4.136 Human Tissue and Transplant Act 1982 s 29 …. 1.38 s 30 …. 1.38 Imperial Acts Adopting Act 1836 …. 10.84 Iron Ore (Mount Goldsworthy) Agreement Act 1964 s 4(1) …. 3.124C Land Act 1898 …. 3.114C Land Act 1933 …. 3.114C s 16(3) …. 1.105 s 32 …. 3.114C s 106(2) …. 3.114C s 109 …. 3.114C s 116 …. 3.114C Land Administration Act 1997 s 147 …. 10.11 s 195 …. 10.10 Land Regulations 1851–1887 …. 3.114C Law Reform (Property, Perpetuities and Succession) Act 1962 …. 7.20 Law Reform (Statute of Frauds) Act 1962 …. 4.33

Light and Air Act 1902 …. 10.96 Limitation Act 1935 s 3(6) …. 2.89 s 3(6)(d) …. 2.106 s 19 …. 2.74, 2.85 s 19(2) …. 2.86 s 27 …. 2.104, 2.105 ss 35–36 …. 2.112 s 38 …. 2.112 s 42 …. 2.112 s 42(1) …. 2.112 ss 46–51 …. 2.109 s 52 …. 2.112 s 61 …. 2.104 s 65 …. 2.89 s 65(2) …. 2.108 s 66 …. 2.91 s 67 …. 2.91 s 68(c) …. 2.91 s 69 …. 2.114 s 69(1) …. 2.103 s 70 …. 2.114 s 71 …. 2.115 s 72 …. 2.118 s 75 …. 2.74

s 76 …. 2.86 s 78 …. 2.105 s 80 …. 2.105 s 84 …. 2.109 Limitation Act 2005 …. 2.72, 2.104 Married Women’s Property Act 1892 s 17 …. 4.111 Mining Act 1904 …. 3.114C, 3.124C, 4.96 s 117 …. 3.114C s 273 …. 4.97 Mining Act 1978 …. 4.96 Petroleum Act 1936 s 9 …. 3.114C Property Law Act 1969 …. 3.1, 4.27, 4.96, 5.8, 8.32, 9.5, 9.52C, 11.3 Pt XI …. 7.15, 7.16, 7.20 Pt XIV …. 6.77 s 3 …. 5.11, 5.165 s 7 …. 4.97, 10.67 s 9 …. 4.29 s 9(1)(b) …. 4.2 s 11(1) …. 9.14, 9.52C s 11(2) …. 9.14 s 19 …. 7.17

s 20 …. 5.18, 9.29 ss 21–23 …. 5.19 s 25 …. 5.19 s 29 …. 6.3 s 32 …. 4.25 s 33 …. 4.25 s 33(1) …. 8.32 s 33(2)(c) …. 8.32 s 33(2)(d) …. 8.32 s 34 …. 4.91, 4.96, 4.97 ss 34–36 …. 6.60 s 34(1)(a) …. 4.97, 4.100, 4.101, 8.32 s 34(1)(b) …. 4.97, 4.101 s 34(1)(c) …. 4.97, 4.98 s 35 …. 8.32 s 35(1) …. 4.91 s 35(2) …. 4.25 s 36 …. 4.91 s 36(c) …. 8.32 s 39 …. 6.58 s 41 …. 10.67 s 43 …. 8.224 s 44 …. 6.58 s 47 …. 9.26E, 9.52C s 47(1) …. 9.52C

s 48 …. 5.121, 8.125, 9.45, 9.52C s 48(1) …. 9.52C s 49 …. 9.52C, 9.64E, 9.71 s 52 …. 5.121 s 53 …. 11.115, 11.119 s 55 …. 5.162, 11.95 s 55(2) …. 11.116 s 57(1)(a) …. 11.61 s 57(1)(c) …. 11.121 s 58 …. 11.121 s 59 …. 11.61 s 61 …. 11.107 s 63 …. 5.28 s 63A …. 5.142 s 64 …. 5.142 s 65 …. 5.142 s 65(1) …. 11.121 s 65(2) …. 11.121 s 66 …. 11.121 s 67 …. 6.15 s 68 …. 5.29E, 5.126, 6.15 s 68(1) …. 5.130 s 68(1A) …. 5.130, 5.141, 5.144, 5.150 s 69 …. 5.142 s 71 …. 8.36

s 73 …. 8.109 s 74(1) …. 8.55 s 74(3) …. 8.54 s 74(5) …. 8.53 s 76 …. 8.149 ss 76–77 …. 5.123 s 77 …. 8.139E, 8.143 s 78 …. 8.139E, 8.143 s 80(1) …. 8.110 s 81 …. 8.168 s 81(1) …. 8.153E, 8.156 s 81(2) …. 8.167, 8.171E, 8.175 s 81(4) …. 8.179 s 81(8)(b) …. 8.154 s 81(9) …. 8.154 s 81(10) …. 8.154 s 82 …. 10.72 ss 83A–83E …. 8.121 s 91 …. 5.129 s 92(i) …. 8.119 s 92(ii) …. 8.91 s 93(1) …. 8.92 s 95 …. 8.147 ss 99–102 …. 5.129 ss 99–115 …. 7.20

s 101 …. 7.23 s 102 …. 7.42E s 103 …. 7.53 s 103(1) …. 7.47E s 105 …. 7.17, 7.52, 7.53 s 106 …. 7.58E s 107 …. 7.53, 7.58E s 108 …. 7.38E s 109 …. 7.62 s 110 …. 7.17 s 110(1) …. 7.69 s 111 …. 7.64 s 113 …. 7.74 s 114 …. 7.14 s 115 …. 7.17 s 120(d) …. 6.4 s 121 …. 10.96 s 122 …. 2.99 s 123 …. 1.101, 1.106 s 129 …. 6.86 s 134 …. 5.31E Registration of Deeds Act 1856 …. 5.15 Registration of Deeds, Wills, Judgments and Conveyances Affecting Real Property Ordinance 1832 …. 5.10

Residential Tenancies Act 1987 …. 8.213 ss 5–6 …. 8.214 s 29 …. 8.226 s 30 …. 8.225 s 32(3) …. 8.225 s 42 …. 8.222E s 44 …. 8.218 s 45 …. 8.224 s 47 …. 1.95 s 60 …. 8.227 s 62 …. 8.229 s 64 …. 8.228 s 68 …. 8.228 s 71 …. 8.230 s 80 …. 2.67 s 81(1) …. 8.213, 8.215 Rights in Water and Irrigation Act 1914 s 15 …. 1.108 s 16 …. 1.108 Rules of the Supreme Court 1971 O 52, r 3(1)(a) …. 1.41 Sale of Goods Act 1895 …. 4.10 s 4 …. 4.11, 4.12E s 18 …. 4.10

Sale of Land Act 1970 …. 11.3 s 22 …. 5.8 Strata Titles Act 1985 …. 5.233, 6.1 s 11(1) …. 10.97 Supreme Court Act 1935 s 25(12) …. 4.70 s 32 …. 4.160C Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 Pt 2B …. 3.114C s 12M(1)(b)(ii) …. 3.114C Transfer of Land Act 1893 …. 5.129, 9.52C, 10.6, 10.117, 11.24 Pt IVA …. 9.124, 10.56 s 18 …. 5.17 s 19 …. 11.139E s 45(1)(c) …. 11.43 s 53 …. 11.35 s 60 …. 6.24, 6.76 s 60(2) …. 11.102 s 63A …. 10.6, 10.117 s 64 …. 10.6, 10.117 s 65 …. 10.6, 10.39, 10.117 s 68 …. 5.101C, 10.118 s 68(1) …. 5.161

s 68(1A) …. 5.161 s 84 …. 3.74 s 91 …. 11.135 s 95 …. 8.137 s 106 …. 11.24, 11.61 s 108 …. 11.61, 11.102 s 109 …. 11.35, 11.107 s 110 …. 11.104 s 111 …. 11.127, 11.142 s 113 …. 11.43 s 116 …. 11.130E s 121 …. 11.117 s 122 …. 11.117 s 129A …. 9.109, 9.114 s 129C …. 9.52C, 9.96, 10.116 s 134 …. 5.101C, 5.161 s 136C …. 10.7 s 136D(1) …. 9.124 s 136D(2) …. 9.124 s 136D(5) …. 9.124 s 136F(1)(b) …. 9.124 s 136H …. 9.124, 10.20 s 136I …. 9.124 s 136J …. 9.124 ss 136K–142 …. 5.168

s 137 …. 5.169, 5.172 s 138 …. 5.174 s 140 …. 5.177 ss 148–50 …. 5.197 s 170 …. 2.97 s 171 …. 2.97 s 177 …. 2.97 s 188(ii) …. 5.122 s 188(7) …. 5.171 ss 195–196 …. 5.209 s 196 …. 5.217 s 197A …. 10.56 s 199 …. 5.33 s 200 …. 5.79, 5.101C s 201 …. 5.209, 5.215, 5.223 s 202 …. 5.33, 5.45 s 203 …. 5.18 s 205 …. 5.209, 5.215 s 208 …. 5.210 s 210 …. 5.208 s 211 …. 5.222 ss 222–223A …. 5.144 s 227 …. 6.76 s 229A …. 10.110 Sch 9 …. 10.39

Sch 9A …. 10.39 Wildlife Conservation Act 1950 s 22 …. 4.5 Wills Act 1970 s 6 …. 3.12 s 26(e) …. 3.28

CANADA Charter of Rights and Freedom s 1 …. 1.65E Land Title Act 1996 (British Columbia) s 25.1 …. 5.46 s 26(1) …. 5.46 Land Titles Act (Ontario) s 78(4) …. 5.549 s 155 …. 5.49

IMPERIAL Australian Courts Act 1828 (9 Geo IV c 83) …. 10.93 Crown Suits Act 1769 (Nullum Tempus Act) …. 2.86

INTERNATIONAL Convention Relating to International Exhibitions 1928 …. 1.59C

art 9(3) …. 1.59C European Convention on Human Rights and Fundamental Freedoms …. 1.61, 1.63, 2.81 art 1 …. 1.61, 1.63, 1.64, 2.79, 2.80E, 2.81 art 8 …. 1.63 art 8(1) …. 1.53 art 10 …. 1.53 International Covenant on Civil and Political Rights …. 1.61, 1.62 art 2.1 …. 1.65E art 24.1 …. 1.65E art 26.1 …. 1.65E International Covenant on Economic, Social and Cultural Rights …. 1.61 Universal Declaration of Human Rights …. 1.61 art 17 …. 1.61, 1.64, 1.65E

MALAYSIA National Land Code s 327 …. 5.175 s 340 …. 5.46 Registration of Titles Regulations 1891 (Selangor) …. 5.78C s 4 …. 5.78C s 6 …. 5.78C s 7 …. 5.78C

s 28 …. 5.78C

NEW ZEALAND Grantees of Reversion Act 1540 …. 8.138 Land Transfer Act 1952 …. 5.41C s 2 …. 5.41C s 42 …. 5.41C s 62 …. 5.41C, 5.101C s 63 …. 5.41C, 5.101C s 75 …. 5.41C s 80 …. 5.41C s 81 …. 5.41C s 85 …. 5.41C, 5.48C s 100 …. 5.41C s 182 …. 5.41C s 183 …. 5.41C, 5.123 s 183(1) …. 5.45 Land Transfer Act 2010 …. 5.49 Perpetuities Act 1964 …. 7.20 Property Law Act 1952 s 103A …. 11.91

SINGAPORE

Land Titles Ordinance 1956 s 28(30) …. 5.69

UNITED KINGDOM Common Law Procedure Act 1852 …. 2.56 Contingent Remainders Act 1877 …. 3.65, 3.73C, 7.63 Contracts (Rights of Third Parties) Act 1999 …. 9.7C, 9.12 s 1 …. 9.12, 9.13E Conveyancing Act 1881 …. 8.141C s 11 …. 8.141C Conveyancing Act 1882 s 3 …. 4.188C Conveyancing and Law of Property Act 1881 s 58 …. 9.54 Country Court Rules O 26 …. 2.61C County Courts Act 1959 s 74 …. 4.69 Domestic Violence and Matrimonial Proceedings Act 1976 …. 6.33C s 1(1) …. 6.33C s 1(2) …. 6.33C Fines and Recoveries Act 1833 …. 3.14 Fires Prevention (Metropolis) Act 1774 (14 Geo III c 78)

s 83 …. 4.62 Forcible Entry Act 1381 (5 Ric 11 Stat 1, c 7) …. 2.61C, 2.63 Human Rights Act 1988 …. 2.81 Human Rights Act 1998 …. 1.63 Judicature Act 1873 …. 4.66C, 4.69, 4.173, 8.47C, 8.201C Land Registration Act 1925 …. 2.81, 4.191 s 70(1)(g) …. 4.191, 4.192, 5.194C Land Registration Act 2002 Sch 6, 1 …. 2.96 Sch 6, 1–5 …. 2.78 Landlord and Tenant Act 1927 s 19(1)(a) …. 8.115 Landlord and Tenant (Covenants) Act 1995 …. 8.125 Law of Property Act 1922 s 145 …. 8.15C s 382 …. 8.15C Law of Property Act 1925(15 Geo V Ch 20) …. 3.111C, 8.1, 8.141C, 9.52C, 9.53, 11.16, 11.17 s 36(2) …. 6.53C, 6.56 s 40 …. 4.39C, 4.74 s 52 …. 4.39C, 4.99 ss 52–54 …. 8.32 s 53(1)(a) …. 4.99, 4.100

s 53(1)(b) …. 4.99 s 53(1)(c) …. 4.98, 4.99, 4.100 s 55 …. 8.37C s 56 …. 9.7C, 9.11 s 56(1) …. 9.6, 9.8, 9.9, 9.10, 9.14, 9.23C s 62 …. 10.68C, 10.69, 10.70, 10.71 s 62(1) …. 10.68C s 62(2) …. 10.68C s 78 …. 9.23C, 9.25, 9.52C, 9.53, 9.54, 9.62C s 78(1) …. 9.52C s 79 …. 9.52C s 84 …. 9.96, 9.100 s 84(1) …. 9.106C s 84(1)(1A)–(1C) …. 9.100 s 87 …. 9.34C s 91(2) …. 11.95 s 141 …. 8.142C s 142 …. 8.141C s 146 …. 8.201C ss 164–166 …. 7.71 s 199(1) …. 4.188C s 199(1)(ii) …. 4.188C s 199(2) …. 4.188C s 199(3) …. 4.188C Law of Property Act 1969

s 23 …. 5.8 Law of Property (Miscellaneous Provisions) Act 1989 s 2 …. 4.42C, 4.49, 11.18 Legal Aid Sentencing and Punishment of Offenders Act 2012 s 144 …. 2.96 Limitation Act 1939 …. 2.117, 2.119, 8.26 s 9(2) …. 2.119 Lord Cairns’ Act 1858 …. 9.47 Married Women’s Property Act 1882 …. 6.36C s 17 …. 4.111, 4.112, 4.114 Merchant Shipping Act 1854 …. 11.31C Perpetuities and Accumulations Act 1964 …. 7.20 Perpetuities and Accumulations Act 2009 …. 7.20, 7.71 Prescription Act 1832 …. 10.84, 10.90, 10.91, 10.93 s 2 …. 10.85C, 10.90 Public Health Act …. 9.16C Real Property Act 1845 (8 & 9 Vict c 106) s 5 …. 9.6, 9.7C, 9.10 Real Property Limitation Act 1833 …. 2.74 s 12 …. 2.106 Rent Act 1965

s 30(2) …. 8.63 s 32 …. 2.61C Rules of the Supreme Court O 113 …. 2.61C Sale of Goods Act 1893 …. 4.10 Small Business, Employment and Enterprise Act 2015 …. 7.10 Statute of Anne 1705 …. 6.41 Statute of Forcible Entry 1391 (15 Rich 11, c 2) …. 2.63, 2.67 Statute of Frauds 1677 …. 8.32, 9.52C s 1 …. 8.37C s 2 …. 8.37C s 3 …. 4.91 s 4 …. 4.31, 4.33, 4.74, 4.96, 4.100, 4.101, 8.37C s 7 …. 4.91 s 8 …. 4.91 s 9 …. 4.91, 4.98 Statute of Limitations (21 Jac 1, c 16) …. 2.50C Statute of Set-Off (2 Geo II c 22) …. 8.204 Statute of Set-Off (8 Geo II c 24) …. 8.204 Statute of Uses 1535 …. 3.56, 3.57, 3.68, 3.69, 3.70 Statute of Westminster 1275 …. 10.82

Statute of Wills 1540 …. 3.59 Statutes of Mortmain 1279 …. 3.53 Statutes of Mortmain 1290 …. 3.53 Supreme Court of Judicature Act 1875 …. 2.61C Supreme Court of Judicature Act 1925 …. 6.17C s 202 …. 4.73 Theft Act 1968 s 4 …. 1.40 Validation of War Time Leases Act 1944 …. 8.14 Wills Act 1837 s 24 …. 4.162C s 28 …. 3.47

UNITED STATES OF AMERICA California Health and Safety Code s 7054.4 …. 1.36C Constitution Amendment V …. 1.8

Abbreviations

Note: Those books which are referred to frequently in this text are abbreviated as follows. Other texts referred to will include author, title, edition (if subsequent) and year of publication. Full publishing details for all books appear in the bibliography at the end of this book. Baalman

Baalman (Woodman and Grimes), The Torrens System in New South Wales, 2nd ed, Lawbook Co, Sydney, 1974

Bradbrook and Croft

Bradbrook, Croft and Hay, Commercial Tenancy Law in Australia, 3rd ed, LexisNexis Butterworths, Sydney, 2009

Bradbrook, MacCallum,

Bradbrook, MacCallum, Moore and

Moore and Grattan

Grattan, Australian Real Property Law, 5th ed, Lawbook Co, Sydney, 2011

Bradbrook and Neave

Bradbrook and Neave, Easements and

Restrictive Covenants in Australia, 2nd ed, Butterworths, Sydney, 2000 Butt

Butt, Land Law, 6th ed, Lawbook Co, Sydney, 2010

Carter and Harland

Carter and Harland, Contract Law in Australia, 4th ed, Butterworths, Sydney, 2002

Centennial Essays

Hinde (ed), The New Zealand Torrens System Centennial Essays, Butterworths, Wellington, 1971

Cheshire and Burns

Cheshire and Burns, Modern Law of Real Property, 15th ed, Butterworths, London, 1994

Cheshire and Fifoot

Seddon and Ellinghaus, Cheshire and Fifoot’s Law of Contract, 7th Australian ed, Butterworths, Sydney, 1997

Fisher and Lightwood

Tyler, Young and Croft, Fisher and Lightwood’s Law of Mortgage, 7th Aust ed, Butterworths, Sydney, 1995

Fleming

Fleming, The Law of Torts, 8th ed, Law

Book Co, Sydney, 1992 Ford and Lee

Ford and Lee, Principles of the Law of Trusts, 3rd ed, LBC Information Services, Sydney, 1996 (looseleaf)

Gray, Edgeworth, Foster and Gray, Edgeworth, Foster and Dorsett, Dorsett

Property Law in New South Wales, 3rd ed, LexisNexis Butterworths, Sydney, 2012

Gray and Gray

Gray and Gray, Elements of Land Law, 5th ed, OUP, 2009

Grinlinton

Grinlinton (ed), Torrens in the Twenty-first Century, LexisNexis, Wellington, 2003

Harrison

Harrison, Cases on Land Law, 2nd ed, Law Book Co, Sydney, 1965

Helmore

Helmore, The Law of Real Property in New South Wales, 2nd ed, Law Book Co, Sydney, 1966

Holdsworth

Holdsworth, A History of English Law, 4th ed, Sweet and Maxwell, London, 1936

Jackson

Jackson, Principles of Property Law, Law

Book Co, Sydney, 1967 Lawson

Lawson, Introduction to the Laws of Property, Clarendon Press, Oxford, 1958

McRae, Nettheim et al

McRae, Nettheim, Anthony, Beacroft, Brennan, Davis and Janke, Indigenous Legal Issues: Commentary and Materials, 4th ed Thomson Reuters, Australia, 2009

Meagher, Heydon and

Meagher, Heydon and Leeming, Meagher,

Leeming

Gummow and Lehane’s Equity: Doctrines and Remedies, 4th ed, Butterworths, Sydney, 2002

Morris and Leach

Morris and Leach, The Rule Against Perpetuities, 2nd ed, Stevens, London, 1962

Palmer

Palmer, Bailment, 2nd ed, Law Book Co, 1991

Robinson

Robinson, Transfer of Land in Victoria, Law Book Co, Sydney, 1979

Rossiter

Rossiter, Principles of Land Contracts and Options in Australia, LexisNexis Butterworths, Sydney, 2003

Ruoff

Ruoff, An Englishman Looks at the Torrens System, Law Book Co, Sydney, 1957

Sappideen and Butt

Sappideen and Butt, The Perpetuities Act 1984, Law Book Co, Sydney, 1986

Simpson

Simpson, History of the Land Law, 2nd ed, Clarendon Press, Oxford, 1986

Spry

Spry, The Principles of Equitable Remedies; Specific Performance, Injunctions, Rectification and Equitable Damages, 4th ed, Law Book Co, Sydney, 1990

Stein and Stone

Stein and Stone, Torrens Title, Butterworths, Sydney, 1991

Sykes and Walker

Sykes and Walker, The Law of Securities, 5th ed, Law Book Co, Sydney, 1993

Woodman

Woodman, The Law of Real Property in New South Wales, Law Book Co, Sydney, 1980

Content

Preface Preface to the First Edition Acknowledgments Table of Cases Table of Statutes Abbreviations

Chapter 1

The Concept of Property

Chapter 2

Possession and Title

Chapter 3

The Fragmentation of Proprietary Interests in Land

Chapter 4

The Acquisition of Property Rights and Equitable Property

Chapter 5

Title to Land: The Torrens System

Chapter 6

Co-ownership

Chapter 7

The Alienability of Proprietary Interests

Chapter 8

Leases

Chapter 9

Planning Land Use by Private Agreement: Freehold Covenants

Chapter 10

Easements and Profits à Prendre

Chapter 11

Mortgages

Index

A full bibliography and other student learning support is available on Campus at

Detailed Contents

Preface Preface to the First Edition Acknowledgments Table of Cases Table of Statutes Abbreviations

Chapter 1

The Concept of Property Introduction What is property? The right to use or enjoy The right to alienate The right to exclude Property rights and contractual rights Licences: bare, contractual or coupled with an interest Licences and original parties Licences and third parties

Property rights and the rights of persons Are persons property? Property and body parts Property rights and privacy Property and the right to work Property rights and civil rights Property rights and human rights The traditional classification and terminology Land, or realty Boundaries of land Air space rights Chattels, or personalty Boundaries between different types of property The boundary between land and chattels: fixtures The doctrine of fixtures Tenant’s fixtures Right to remove Agricultural and residential tenancies Chattels annexed without permission The boundary between adjoining landowners The doctrine of accretion Encroachments Land bounded by water When chattels merge: the doctrine of accession

Chapter 2

Possession and Title Introduction Why protect ‘possession’? Possession of goods Remedies The plea of jus tertii

Possession by a bailee Claims by bailee against a third party Claims by a bailor against a bailee The rights of finders Finder and occupier of land Finder and employer Abandonment of goods Land Title in actions to recover possession of land Relativity of titles under the Torrens system Assignment of the interest of a person dispossessed by a squatter The self-help remedy Forcible re-entry Limitation of actions How possessory title extinguishes documentary title with the passage of time Justifications for the rule of adverse possession Adverse possession and good faith Adverse possession and human rights The length of the limitation period Commencement of the limitation period General principles Persons presently entitled to possession The elements of adverse possession Possession amounting to a criminal offence not relevant Adverse possession claims to part parcels adjacent to boundaries Does possession of part of a lot amount to possession of the whole?

Future interests Equitable estates Adverse possession by a co-owner Successive adverse possessors Stopping time running Extension of time The effect of effluxion of time Tenancies

Chapter 3

The Fragmentation of Proprietary Interests in Land Introduction Fragmentation in a spatial dimension: the doctrine of tenure No services No incidents Fragmentation in a temporal dimension: the doctrine of estates Introduction The estates — general Fee simple Fee tail Life estate Leasehold estates Creation of freehold estates — words of limitation Fee simple Fee tail Life estate Statutory modifications to the common law Determinable and conditional interests General Effect of void contingencies

When will a condition be void? The doctrine of waste Legal future interests Reversions and remainders Vested and contingent remainders Fragmentation between legal and beneficial ownership: equitable interests in land The development of the use Substitute for wills Avoidance of feudal burdens Providing for grantor’s wife Avoidance of the Statutes of Mortmain Creation of new future interests Enforcement of uses The Statute of Uses 1535 The Statute of Wills 1540 The development of the trust Equitable estates and wills Reform of future interests Systemic fragmentation of interests in land: the common law, tenure and native title Introduction The doctrine of tenure after Mabo Is native title a proprietary interest? The Native Title Act 1993 (Cth) The nature and incidents of native title What rights does the native title ‘bundle of rights’ contain? Connection with the land The extinguishment of native title Grant of a freehold estate

Pastoral leases and extinguishment Leases conferring rights of exclusive possession Leases containing reservations in favour of Indigenous inhabitants Statute

Chapter 4

The Acquisition of Property Rights and Equitable Property Introduction Acquisition through taking possession Land and goods Chattels — wild animals Manufacture or creation of objects Patents, copyright and trademarks Consensual transactions with proprietary interests — legal and equitable Sale Goods Formal requirements for the contract for sale of goods Land — legal and equitable interests The sale transaction — real property Formal requirements for the passing of a legal interest in land Formal requirements for contracts for the sale of land The equitable doctrine of part performance Equitable interests arising out of enforceable contracts Gifts Land Express trusts

Formal requirements Equitable doctrines: resulting trusts, constructive trusts and estoppel Resulting trusts Constructive trusts Common intention constructive trusts Constructive trusts based on unconscionable use of legal title Legislative reform State and Territory legislation Acquisition of an interest in property by estoppel Proprietary estoppel Equitable estoppel Remedies in cases of estoppel — proprietary or compensatory; expectation-based or detriment-based? The problem of minimal detriment Equitable priority rules Introduction Enforceability of legal interests in old system land Earlier legal interest against later legal interest Equitable interests against legal interests Earlier legal interest against a later equitable interest Prior equitable interest against a later legal interest The principle The statutory definition of notice Enforceability of equitable interests Prior equitable interest against a later equitable interest Enforceability of equities

Earlier equity and later equitable interest

Chapter 5

Title to Land: The Torrens System Introduction ‘General law’ or ‘old system’ land The deeds registration system Registrable instruments and the effect of registration The Torrens system Bringing land under the Torrens system Compulsory extension of the Torrens system The principle of indefeasibility The indefeasibility provisions Deferred vs immediate indefeasibility The adoption of immediate indefeasibility The policy debate over deferred and immediate indefeasibility Immediate indefeasibility in the states and territories Instruments void for defects other than forgery Indefeasibility of the terms in a registered instrument What is indefeasible in a void mortgage? Indefeasibility and the all moneys mortgage Relief for the ‘statutory mortgagor’ under the Consumer Credit Code Volunteers Exceptions to indefeasibility The fraud exception Fraud distinguished from carelessness Statutory provisions to impose a duty on mortgagees

Fraud and agency False attestation of instruments Fraud against the holder of a prior unregistered interest Supervening fraud Rights in personam (the ‘personal equities exception’) The types of causes of action that can be asserted against a registered proprietor The requirement of an element of unconscionability Special equity cases Personal equity and breach of trust Personal equities and mistake Personal equity and unlawful action by public authorities Personal equity and easements Conclusions on the scope of the personal equities exception The register Registrar’s powers of correction Other exceptions to indefeasibility Reservations and exceptions in Crown grant Short-term tenancies Easements Adverse possession Rates and taxes Overriding statutes Insuring the risk of unrecorded statutory charges Recording of statutory charges etc Equitable interests and unregistered instruments

The caveat provisions Caveatable interest Does a registered proprietor have a caveatable interest? Requirements for caveats Application for removal of caveat Caveats lodged without reasonable cause Competing equitable interests The significance of notice in equitable priorities Statutory protection for the purchaser between settlement and registration Compensation for loss Last resort or first resort Circumstances giving rise to claim Loss resulting from error or omission Loss resulting from fraud Loss resulting from registration of another person Restrictions on claims Limitation period Measure of damages Strata titles legislation Leasehold scheme Tenancy in common Home unit companies

Chapter 6

Co-ownership Introduction Joint tenancy — essential features Tenancy in common — essential features Creation of co-ownership — joint tenancy or tenancy in common?

At law In equity Business partners Money advanced on mortgage Unequal contributions to the purchase price Statutory reform Co-ownership and the Torrens system Rights of enjoyment inter se of co-owners of land Rights of occupation Occupation rent Ouster The quantum of occupation rent Accounting for rents and profits The Statute of Anne Statute of Anne not applicable Compensation for repairs and improvements to land by one co-owner Liability for waste Disposition of interests by co-owners Severance of joint tenancy Modes of severance Severance by unilateral act Severance by transfer to a stranger Declaration of trust Does grant of a mortgage or a lease sever a joint tenancy? Severance by agreement Severance following a course of dealing Severance following homicide Severance by court order

Severance upon bankruptcy Termination of co-ownership Land The Partition Acts Statutory trusts Chattels Legislative reform

Chapter 7

The Alienability of Proprietary Interests Introduction Judicial doctrines — restraints on alienability The rule against perpetuities Background The rule Statement of the rule Vesting of interests Presumption in favour of vesting The commencement of the perpetuity period Lives in being Certainty of vesting: unborn widows, fertile octogenarians and others The statutory wait-and-see rule Reduction of age contingencies Application of saving provisions The class-closing rules Reform of the all-or-nothing rule Subsequent interests Legal contingent remainders Possibilities of reverter and rights of re-entry Accumulations The Perpetuities and Accumulations Act 1985

(ACT) and the Perpetuities Act 1984 (NSW)

Chapter 8

Leases Introduction Residential tenancies Retail tenancies Agricultural tenancies Leases under the Crown Lands Act Other tenancies The general law of landlord and tenant Terminology Creation of leases Substantive requirements Certainty of duration Exclusive possession Exclusive possession — further exceptions Formal requirements Torrens title Old system Agreement for a lease Implied tenancies at law Yearly periodic leases Other implied periodic leases Tenancy by estoppel Concurrent leases Reversionary leases The doctrine of interesse termini Covenants Introduction Covenants implied by law Quiet enjoyment

Remedies Obligation not to derogate from grant Liability for acts of others Implied condition of fitness for habitation The obligation to repair Duty to take reasonable care for the safety of occupants Tenant’s obligation to use the premises in a tenant-like manner Tenant’s obligation to yield up possession Covenants implied by statute Statutory implied obligation on tenant to repair Statutory implied right of landlord to inspect premises Statutory implied right of re-entry Covenants by necessary implication Express covenants Covenant to repair Exception Inherent defects Measure of damages The covenant against assignment or subletting Covenant as to user Covenant to pay rent Option to renew The enforceability of covenants after assignment Privity of contract Assignment of the lease — privity of estate Assignment of the reversion Remedies Forfeiture of lease by landlord

Enforcement of the right of re-entry No right to forfeit if breach waived Forfeiture must be effective Relief against forfeiture Self-help Remedies of landlord and tenant in contract Repudiation, notice and relief against forfeiture The plea of set-off Bonds Statutory remedies Residential tenancies Introduction What is a residential tenancy? Creating residential tenancies Types of tenancies Parties’ obligations Quiet enjoyment Repairs Urgent repairs Rent Introduction Bonds Termination Termination by notice: without any ground Termination by notice: following breach Order for termination and possession Tribunal

Chapter 9

Planning Land Use by Private Agreement: Freehold Covenants Introduction

Privity of contract The running of covenants at common law The burden The benefit The running of covenants in equity The burden Covenant must benefit the land Covenant must be negative in substance Covenant must be intended to run with the land Covenant as an equitable interest The benefit Annexation of the benefit of the covenant to the land Express annexation Statutory annexation Identification of the land The covenant must ‘touch and concern’ the land Express assignment of the benefit of the covenant Creation of a building scheme Common vendor Benefit to all purchasers Purchase on footing that restrictions would enure to benefit all lots Planning instruments Construction of covenants Discharge of restrictive covenants By operation of law By agreement By statute Restrictive covenants and the Torrens system

Chapter 10

Easements and Profits à Prendre The characteristics of easements Dominant and servient tenements Formal requirements for creation of easements Easements in gross Accommodation of dominant tenement The dominant and servient tenements must not be owned and occupied by the same person The easement must be capable of forming the subject matter of a grant Types of easements Rights of way Rights to light and air Rights of support Party walls Fencing easements Other examples of easements Protection from the weather? Creation of easements Express and implied grants Easements expressly created Easements created by implication — implied grants Easements created by implication — implied reservation Acquisition by long user Rights of support Creation of easements by court order Remedies Extinguishment of easements Abandonment

Express release Alteration to the dominant tenement Unity of dominant and servient tenement Statutory extinguishment Easements and the Torrens system General exemption of unregistered easements to indefeasibility — Victoria, Western Australia and Tasmania Partial exemption to indefeasibility in favour of ‘omitted and misdescribed easements’ — other jurisdictions Enforceability of easements that do not come within the statutory exception Unregistered express easements Unregistered implied easements Prescriptive easements Profits à prendre Introduction — general Creation of profits à prendre Old system Torrens title Reform

Chapter 11

Mortgages Introduction The secured loan transaction When is a mortgage granted? How is a secured loan agreement structured? How does the law achieve a balance between the mortgagor and the mortgagee? How does a mortgage support the purchase of property?

The nature of mortgages Introduction The general law mortgage The Torrens system mortgage Priorities, mortgages and tacking General law Torrens land Tacking and priorities between Torrens system mortgagees Covenants in mortgages Remedies of the mortgagor Equitable doctrines protecting the mortgagor Clogs on the equity of redemption Penal provisions in mortgages Penal provisions in mortgages under the National Credit Code Remedies of the mortgagee Power of sale Statutory duty: notice to the mortgagor Equitable duty — conduct of sale Sale to an associate or a related party Auction sales Does the equitable duty amount to a negligence test? Timing of sale Statutory duties in the exercise of the power of sale Court-ordered sale Protection of purchaser from mortgagee in cases of breach of statutory and equitable duties Application of proceeds of sale

Application by mortgagor for injunctive relief to restrain exercise of power of sale Exceptions to the requirement of payment into court Foreclosure General law Torrens Right to sue on personal covenants Power to appoint a receiver Remedies of the mortgagee — equitable mortgages The mortgagor and mortgagee inter se Mortgagor’s right to redeem Mortgagee’s right to possession of land Torrens General law Power to lease Torrens General law Rights of mortgagor and mortgagee against third parties General law Torrens Index

A full bibliography and other student learning support is available on Campus at

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The Concept of Property

CHAPTER

1

INTRODUCTION 1.1

Property is the institution by means of which societies regulate access

to material resources. As with all social institutions, property has a legal dimension. This book examines the legal principles and rules regulating the creation, transfer and enforceability of interests in things. Property rules vary greatly depending on time, place and historical circumstances. The rules governing property in traditional societies, for instance, differ greatly from those of contemporary societies. Moreover, the differences between the legal rules governing access to, and use of, things may differ greatly even between industrialised societies. Until recently, one of the major differences between capitalist and communist societies was the approach that these societies took to private property. Capitalist societies offer extensive protection to private property because of a belief that the ability to own private property is an essential incentive for wealth creation. By contrast, communist societies have traditionally favoured publicly-owned property, particularly in the sphere of

economic production, on the grounds that private property is the source of oppression and inequality. Today, most countries have mixed economies in which some resources are privately owned, some assets are owned by the State and free enterprise is subjected to some State regulation. Even Communist China now has private property enshrined in law. In the advanced Western democracies private property predominates, though certain resources (for example, beaches and public parks) are treated as common property that can be used by all members of the community. In Australia, the diversity of forms of property rules is reflected in the mix of traditional rules and practices alongside modern forms of property, as evidenced in Indigenous land rights. Private property in land was introduced at the time of colonisation, displacing, though not destroying, systems of Aboriginal law based on common ownership. The two highly divergent property regimes continue to co-exist today. 1.2

Property law is one of the constituent categories of private law. Private

law governs the relationships between private individuals and is to be contrasted with public law, which governs the relationships between individuals and the State, and between States. It is conventionally subdivided into property law, contract, tort and unjust enrichment. Property law defines the relationship between legal persons with respect to things. Because property is both a legal as well as a social institution, it is difficult, if not impossible, to understand property law in

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isolation from its historical, economic and social context. Political and economic conditions have also had an important influence on the development of property law. Because property ownership confers political and economic power, citizens with large amounts of property often have greater influence than those who have little in determining what the basic structure of the law of property should be. The important role played by these causal factors means that property law cannot be fully explained in purely doctrinal terms. The objects of property also change in response to changes in social conditions. For instance, the development of new technology has forced courts and legislatures to consider novel questions such as whether human cells or body parts should be treated as property: see Moore v Regents of the University of California (1990) 793 P2d 479 (1.36C), and whether novel types of statutory rights such as grazing licences are property: see R v Toohey: Ex parte Meneling Station (1982) 158 CLR 327 (1.10). This chapter will examine the dominant categories of property in law. It will also focus on the shifting boundary between property rights and other types of private law rights, such as contractual rights, and personal rights, and the boundary between public rights and private property rights. Finally, the chapter will examine the rules that determine when types of property change their classification, as in the case of fixtures. 1.3

The study of property law reveals concepts which are basic to the legal

system, including notions of possession and title, the fragmentation of proprietary interests, the distinction between legal and equitable interests and the different ways in which common law and statutory regimes reconcile

competing claims to property interests. Traditionally, Australian law has emphasised the extent to which property law has been shaped by its historical origins in the English common law. More recently, the extent to which specialised forms of land tenure evolved in response to Australian conditions has been given greater emphasis as the native title cases Mabo v Queensland (3.77C) and Wik Peoples v Queensland (3.111C) show. But this emphasis is, in itself, a reflection of the historical importance of land as a form of wealth in England in earlier times. While problems concerning the protection and recovery of property interests are sometimes most clearly exemplified in cases involving land, excessive emphasis on real property tends to obscure the increasing contemporary importance of other forms of wealth (intellectual property, for example) and the extent to which the same questions arise in relation to other forms of property. Thus, wherever possible, this book illustrates the legal issues by examples drawn from both land law and the law relating to personal property. 1.4

Any understanding of the central principles of property law must be

preceded by a critical examination of the concept of property itself. At one level, the concept is significant because it is formally embodied in a number of legal rules which differentiate between proprietary and other interests. One example

is

the

constitutional

requirement

(s

51(xxxi))

that

the

Commonwealth may only acquire ‘property’ compulsorily if it does so on just terms. Another is the ability of the Family Court, under s 79 of the Family Law Act 1975 (Cth), to redistribute the ‘property’ of the parties. This provision also imposes limitations on the court’s ability to make orders in relation to financial resources, such as prospective entitlements to

superannuation, which do not come within the traditional definition of property. More fundamentally, an understanding of the concept enables the rules and procedures comprising property law to be placed within an intelligible analytical framework. The remainder of this chapter discusses four broad questions: What do we mean when we say that a person has a property right, and how do property rights fit into the general schemes of private and public law?

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What are the major categories of property law? To what extent has property changed historically? What factors do courts and legislatures take into account in deciding whether or not to recognise new forms of property?

WHAT IS PROPERTY? 1.5

In his ‘Dialogue on Private Property’,1 Felix Cohen explores the nature

of property and provides a good introduction to analytical thinking concerning property by challenging assumptions often made about its meaning. He suggests a definition of the term ‘property’ which emphasises that to talk about property is to talk not about objects but about relations between human beings, or more accurately about relations between persons in relation to things (at 362–3). According to Cohen, the right to use and to

alienate (dispose of) the item is not always an essential attribute of private property, but the concept must at least involve the right of the owner to exclude others from doing something in respect of the object of ownership (at 369–70): C. … The criterion of use as a mark of ownership breaks down at both ends. We can have use without ownership [as in the case of a right to sing a song] and ownership without use [for instance, where a corporation owns copyright in a song]. What about the other half of your criterion, the possibility of charging others for the use of something? Suppose you secure a lease on an apartment with the condition that you can’t assign the lease, can’t sublease the apartment, can’t have pets or babies on the premises and can’t take in boarders. Might you not still have a property interest even though you couldn’t sell it? F. Yes, I suppose there is such as thing as non-saleable property … C. … I could charge you for walking across the Brooklyn Bridge if you were willing to pay for it and that would not be proof that I had a property right in Brooklyn Bridge, would it? F. No, but in that case I could walk across Brooklyn Bridge without paying you, and in the case of the song, if you owned the song, you could exclude me from the use of the song unless I made the payment … C. Well, then, we are really talking about a right of exclusion aren’t we? What you are really saying is that ownership is a particular kind of legal relation in which the owner has a right to exclude the non-owner from something or other … F. Yes, I think that is where [to] find a difference between property and other rights.

1.6

Cohen’s argument is heavily influenced by an earlier theorist, Wesley

Hohfeld, who concluded that the term ‘property’ tends to be used in three different senses: Sometimes it is employed to indicate the physical object to which various legal rights, privileges, etc., relate; then again — with far greater discrimination and accuracy — the word is used to denote the legal interest (or aggregate of legal relations) appertaining to

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such physical object. Frequently there is a rapid and fallacious shift from one meaning to the other. At times, however the term is used in such a blended sense as to convey no definite meaning whatever.2

This discussion about property is further elaborated in the following extract. 1.7E

The Idea of Property in Law K Gray and S F Gray in Bright and Dewar (eds), Land Law: Themes and Perspectives, Oxford University Press, 1998, 15–18

Few concepts are quite so fragile, so elusive and so often misused as the idea of property. Most everyday references to property are unreflective, naive and relatively meaningless. Frequently the lay person (and even the lawyer) falls into the trap of supposing the term ‘property’ to connote the thing which is the object of ‘ownership’. But the beginning of truth about property is the realization that property is not a thing but rather a relationship which one has with a thing. It is infinitely more accurate, therefore, to say that one has property in a thing than to declare that the thing is one’s property. To claim ‘property’ in a resource is, in effect, to assert a strategically important degree of control over that resource; and to conflate or confuse this relationship of control with the actual thing controlled may often prove to be an analytical error of some substance. ‘Property’ is, rather, the word used to describe particular concentrations of power over things and resources. The term ‘property’ is simply an abbreviated reference to a quantum of socially permissible power exercised in respect of a socially valued resource. Used in this way, the word ‘property’ reflects its semantically correct root by identifying the condition of a particular resource as being ‘proper’ to a particular person. In this deeper sense … the language of ‘property’ may have more in common with ‘propriety’ than with entitlement; and the notion of a ‘property right’ may ultimately have more to do with perceptions of ‘rightness’ than with any understanding of enforceable exclusory title. It may be noted, furthermore, that the power relationship implicit in property is not absolute but relative: there may well be gradations of ‘property’ in a resource. The amount of ‘property’ which a specified person may claim in any resource is capable of calibration — along some sort of sliding scale — from a maximum value to a minimum value. Of course, where this value tends towards zero it will become a misuse of language to say that this person has any ‘property’ at all in the resource in question. Apart from such cases, however, it remains feasible — and indeed important — to measure the quantum of ‘property’ which someone has in a particular resource at a particular time. Far from being a monolithic notion of standard content and invariable intensity, ‘property’

thus turns out to have an almost infinitely gradable quality. And it follows, moreover, that to have ‘property’ in a resource may often be entirely consistent with the acquisition or retention by others of ‘property’ in the same resource. It is, in fact, the complex interrelation of these myriad gradations of ‘property’ which comprises the stuff of modern land law. But let us explore some of these ideas in a less abstract context. Gradations of property … This apparently straightforward analysis of property in land is, of course, capable of permutation through several hypothetical changes of circumstance. Suppose that, instead of [page 5] inviting you to dinner in our home, we installed you as a lodger in one of the attic bedrooms. In return for a weekly rent, you now enjoy the use of this room together with a share of the kitchen and bathroom facilities in the house. Or suppose, alternatively, that we converted a complete floor of our house into a self-contained flat which we let to you for a period of two years. Or even imagine that during our dinner party we agreed to sell you the entire house and have since transferred the registered title to you … Ambivalent conceptual models of property The task of the present chapter is to outline the various ways in which English law and perhaps, more generally, common law jurisprudence handles the idea of property in land. It will be argued that our dominant models of property in land fluctuate inconsistently between three rather different perspectives. It will be suggested that this doctrinal uncertainty — this deep structural indeterminacy — explains the intractable nature of some of land law’s classic dilemmas, whilst simultaneously impeding constructive responses to the more immediately pressing challenges of twenty-first century land law. The common law world has never really resolved whether property in land is to be understood in terms of empirical facts, artificially defined rights, or duty-laden allocations of social utility. Although these three perspectives sometimes interact and overlap, it remains ultimately unclear whether the substance of property resides in the raw data of human conduct or in essentially positive claims of abstract entitlement or in the socially directed control of land use. In short, the idea of property in land oscillates ambivalently between the behavioural, the conceptual, and the obligational, between competing models of property as a fact, property as a right, and property as a responsibility …

1.8

In determining whether a person has ‘property’ in a thing within the

meaning of the 5th Amendment to the US Constitution, the US Supreme Court considers the person’s relation to the thing, emphasising the rights to use the thing, to dispose of it and to exclude others. In the Aboriginal land

rights case Milirrpum v Nabalco (1971) 17 FLR 141 at 171 Blackburn J applied this approach 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.

It follows that it is possible to say I have a full property right in my car because I have the right to use and enjoy it, to alienate it, that is, to transfer it to whomsoever I like, and the right to exclude others from it. But importantly, as Blackburn J emphasises in the above quote, though it is ‘generally’ the case that the meaning of property in legal discourse implies these elements, it is nonetheless possible for property to exist where one or other of these features is missing as the following examples demonstrate.

The right to use or enjoy 1.9

In Yanner v Eaton (1999) 201 CLR 351, Gleeson CJ, Gaudron, Kirby

and Hayne JJ concluded that the term ‘property’ does not necessarily mean full, exclusive or beneficial

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ownership. They interpreted the term ‘property’ in s 7(1) of the Fauna Conservation Act 1952 (Qld) as follows: In the Fauna Act, as elsewhere in the law, ‘property’ does not refer to a thing; it is a description of a legal relationship with a thing. The concept of ‘property’ may be elusive. Usually it is treated as a

bundle of rights. It refers to a degree of power that is recognised in law as power permissibly exercised over the thing … Much of our false thinking about property stems from the residual perception that ‘property’ is itself a thing or resource rather than a legally endorsed concentration of power over things and resources … [At [17]; emphasis added.]

In Wily v St George Partnership Banking Ltd (1999) 84 FCR 423 at 431, Finkelstein J referred to Hohfeld’s view that ‘property comprised legal relations not things’, and that it was not necessary that ‘the dominion of the owner be absolute or fixed’. In the same case Sackville J (at 426) emphasised that: From a lawyer’s perspective, the concept of property is inextricably interwoven with the content of legal rules and principles. As Jeremy Bentham observed (Theory of Legislation, Kegan Paul ed (1911), 113): ‘Property and law are born together; take away laws, and property ceases … Doubtless it is unwise to be dogmatic about the indicia of a proprietary interest … The test of whether there has been “an acquisition of property” for the purposes of s 51(xxxi) of the Constitution, for example, may not be the same as that for determining whether a floating charge constitutes a “security” for the purposes of legislation preserving priority among lenders or is subject to the Statute of Frauds …’

The right to alienate 1.10

As Mason J noted in R v Toohey; Ex parte Meneling Station Pty Ltd

(1982) 158 CLR 327 at 342–3: Assignability is not in all circumstances an essential characteristic of a right of property. By statute some forms of property are expressed to be inalienable. Nonetheless, it is generally correct to say, as Lord Wilberforce said [in National Provincial Bank Limited v Ainsworth [1965] AC 1175 at 1247–8] that a proprietary right must be ‘capable in its nature of assumption by third parties’ …

There are many examples of non-assignable rights treated as property

rights by courts and legislatures. In addition to the frequently encountered non-assignable lease referred to by Cohen in 1.5, in Re Potter (decd) [1970] VR 352, for example, a beneficiary under a will was held to have acquired a non-assignable right to reside in a certain house as long as he desired. This right was clearly regarded by Menhennitt J as proprietary in character. It has also been held that the so-called ‘statutory tenancy’ of a tenant whose lease has expired, but who remains in possession pursuant to legislation controlling rents and security of tenure, has a non-assignable interest in the land.3 Also, in New South Wales, ‘community land’ held by local councils for the community benefit is declared by statute to be inalienable.4

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The right to exclude 1.11

Because property typically entails a right to exclude others, it is an

essentially private right exercisable against the general public, including the State. It therefore makes little sense to talk about rights that all citizens, as citizens, jointly enjoy over things as property rights. These types of rights are public rights, because they are rights equally shared with other members of the public over land or goods. An example of such a right is the common law public right to fish and navigate in the open sea.5 This right extends to tidal waters.6 These rights were brought to Australia on settlement, and continue to apply, unless modified by statute.7 Public rights are to be distinguished from public ownership of utilities or industries, where the State owns assets

on behalf of the public so as to regulate their use for the public benefit. In this instance, the State ownership is of a similar nature to that of a large corporation. There are no ‘public rights’ exercisable in relation to such assets. Public rights are often conferred by statute. The following case provides a typical example. 1.12C

Stow v Mineral Holdings (Australia) Pty Ltd (1977) 180 CLR 295; 14 ALR 397 High Court of Australia

[The respondents were conducting mining activities on land adjacent to the South West National Park in Tasmania. The appellants lodged objections to mining with the warden on the grounds that prospecting or mining would damage the park. The warden concluded that the evidence suggesting that mining would have a deleterious effect was ‘overwhelming’, and refused to grant the respondents a prospector’s licence. The respondents were successful in appeals to the Supreme Court and to the Full Court.] Aickin J: The critical question under the [Mining] Act in its present form is the nature of the jurisdiction conferred upon the warden and the effect of an order made by him. It is in my opinion clear, as was held by the Supreme Court, that the warden has no power whatever to accept or reject an application; that is a power vested in the Minister who is to act upon the recommendation of the Director of Mines. It is for the Minister to determine whether as a matter of policy it is desirable that the licence should be granted or refused. It is for him to weigh up the relative merits of the economic advantages said to flow from the successful establishment of a mining operation and the other competing contentions as to what is, in the public interest, a suitable use to which the land may properly be put … Since the only permitted objectors are those claiming some estate or interest in the land, a possible implication is that the Act contemplates that objections will be based only on conflicting interests in the land or possible adverse effects upon the estate or interest of the objector. The first question to be considered is whether any of the objectors had an estate or interest in the land. In my opinion it is clear that none of them had an estate or interest in the land and indeed none of them claimed to do so … The expression ‘interest in land’ is not defined in [page 8]

any relevant Act, nor is the compound expression ‘estate or interest in land’. The word ‘right’ in that definition does not in its context mean a public right; it means an individual right of a proprietary nature and I do not think that the word ‘demand’ in this context has any more extended meaning. In my opinion the ordinary meaning of the compound expression ‘estate or interest in land’ is an estate or interest of a proprietary nature in the land. This would include legal and equitable estates and interests, eg, a freehold or a leasehold estate, or incorporeal interests such as easements, profits à prendre, all such interests being held by persons in their individual capacity. It does not embrace interests in which the person concerned has no greater claim than any other member of the public. All members of the public have a right to pass freely along or across public highways but none have in their capacity as members of the public any estate or interest in the land. Likewise members of the public generally may be entitled pursuant to particular statutes to use specified areas of Crown Land for the purpose of recreation. However, statutes such as the National Parks and Wildlife Act 1970 (Tas) were relied on to give rights to all members of the public as such. All members of the public may have the right to go upon such land in the sense that they may freely walk thereon or in defined portions thereof and may resist attempts by the Crown or anyone else to eject them from such land. The fact that some are more disposed than others, derive more benefit therefrom and use the statutory right more often than others, does not elevate that which is a public right enjoyed by all members of the public equally into a private right capable of being described as an estate or interest in the land. [Stephen and Mason JJ agreed; Barwick CJ and Murphy JJ dissented, but on a different point.]

1.13 Questions 1.

Why is a right to walk through a national park not a property right? What type of right is it? Is it a public right?

2.

How does one distinguish between a private right and a public right?

3.

Do you agree that private property must involve a right to exclude others from doing something?

4.

Consider the public rights to fish, and to navigate, referred to in 1.11. Why are they not property rights?

5.

Consider the case of a landlord who leases a building to a tenant

for a term of five years. Does the landlord have a right to ‘exclude others’ from the building during the term of the lease? Is it necessary to modify the concept of the ‘right to exclude’ in order to accommodate this kind of case? If so, how? Might there be cases in which a right to exclude exists without property?8 6.

Is it reasonable to argue that because the holder of a public right of access to a park can exclude others from infringing that right, it is appropriate to describe it as a proprietary right?

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1.14

The fundamental elements of property can be seen by examining the

boundaries that property rights share with other classes of rights within the scheme of private law. Private law can be subdivided into two distinct categories: (i) property rights; and (ii) obligations. The latter category refers to the rights of persons against other persons that arise from certain events. Another way of emphasising this contrast is by distinguishing between property rights on the one hand, and personal rights on the other. The rights differ to the extent that property rights are in rem (enforceable in respect of a thing), while personal rights are in personam (enforceable against a person). The categories of obligations, or personal rights, generally are contracts, torts and unjust enrichment. This broad spectrum of private rights is to be contrasted with the category of public law, which is sometimes referred to as civil rights, or political rights. Recently, the potential overlap between

property rights and a different category of rights originating in public law, namely human rights, arises in the Australian context in the appearance of human rights enactments in Victoria and the Australian Capital Territory.9 By examining the (sometimes blurred) boundary that property rights share with these other classes of legal rights, we will be in a better position to see the distinctiveness of property. The following material examines the boundary between property rights and some forms of personal rights.

PROPERTY RIGHTS AND CONTRACTUAL RIGHTS 1.15

As we have seen above, in general, property rights are rights over

things enforceable against other persons. Contractual rights, by contrast, are rights enforceable against particular persons. They do not necessarily give rise to rights over things. Property rights, however, may arise from a contract, so there is an overlap between the two systems of rights. Take the example of a contract to sell a car. If A offers to sell the car to B for a particular sum, and B agrees, but A later refuses to do so, B’s primary right is to sue A for damages. This right to get redress from A for the loss is a personal right. But if B can secure an order from a court that A perform his or her obligations under the contract — the remedy of specific performance — it is possible to say that B then has a proprietary right over the car: the seller is under an obligation to deliver up possession, and transfer title, of the car to the purchaser. In relation to land, as we shall see later in 4.50–4.61, contracts for the sale of an interest generally attract the remedy of specific performance. In these

examples of contracts, two sets of legal relationships exist alongside one another: the personal right to sue for damages on the contract, and the proprietary right exercisable over the thing. A separate distinction is evident where rights granted over a thing by its owner have been held by the courts to be insufficiently substantial to confer on the non-owner a definable interest right in the thing. The clearest example of these rights is the licence in land, as noted in 1.7E above. The licence is an example of a right which is an insufficiently substantial ‘concentration of power’ over the thing in question. In general, therefore, even if licences are created by means of a binding contract, they do not give rise to proprietary interests. It is

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helpful to examine the different types of licences to identify the boundary between property rights and other types of rights.

Licences: bare, contractual or coupled with an interest 1.16

A licence arises when permission is given by one person to another to

do an act on the licensor’s land which would otherwise constitute a trespass.10 For example, where a landowner permits a person to picnic on the land, or to camp on it, a licensor-licensee relationship is created. This kind of licence is known as a bare licence, since it is not associated with a contractual

relationship between licensor and licensee, nor with the grant of a proprietary interest in the land. It has always been accepted that a bare licence may be revoked at the will of the licensor, and for any reason whatever.11 The licensee becomes a trespasser if he or she does not leave the land within a reasonable time after revocation of the licence. A second type of licence arises where the licence is created by means of a contract, as for example, when a person purchases a ticket to see a film. If the ticket holder breaches the terms of the contract pursuant to which the licence is granted then the contract may be terminated on ordinary contractual principles. Where the licensee is not in breach the question of revocability becomes more difficult. At law, the position was taken that a licence could be revoked at the will of the licensor, though by such a revocation the licensor might become liable for breach of contract. The theatre or stadium proprietor is entitled at law to eject the patron at any time notwithstanding the purchase of the ticket and is not liable in assault provided no more than reasonable force is used.12 The proprietor’s contractual liability in general is limited to the price of the ticket, although the measure of damages may be greater if the contract can be interpreted as containing an express or implied promise to provide enjoyment or pleasure.13 A third example of a licence arises where the licence is coupled with the grant of a proprietary interest. In this case the licence cannot be revoked. So, if A grants B a profit à prendre (a right to remove a natural product from the land of another), permitting B to enter A’s land and quarry for gravel, the licence to enter the land cannot be revoked as long as the quarry is in operation.14 1.17

The cases appearing below deal with two separate problems. The first

problem concerns the revocability of a contractual licence as between the

original parties to the contract. At this point the question of the availability of the remedies of specific performance and injunction is crucial to determine whether it is possible to conclude that the licensee has some rights over the land. The second problem relates to the enforceability of the rights conferred by a contractual licence against a third party. If contractual licences are regarded as binding on third parties they come within the recognised concept of a proprietary interest and it is necessary to define their sphere of enforceability.

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Licences and original parties 1.18C

Cowell v Rosehill Racecourse Co Ltd (1937) 56 CLR 605; [1937] ALR 273 High Court of Australia

Latham CJ: The plaintiff sued the defendant respondent for damages for assault. The defence was that the plaintiff was trespassing on the defendant’s land and that the defendant’s servants and agents requested him to leave the land, which he refused to do, and the defendant’s servants and agents thereupon removed him, using no more force than was necessary for that purpose, and that the said removal of the plaintiff was the alleged assault. The plaintiff, for reply on equitable grounds, said that the defendant was conducting a race meeting on the said land and that in consideration of the plaintiff paying four shillings the defendant promised to allow him to remain on the racecourse and view the races, gave him leave and licence to enter and remain on the racecourse for that purpose and promised not to revoke the licence; that the plaintiff paid four shillings, but the defendant, in breach of the promise alleged, revoked the leave and licence and assaulted the plaintiff in ejecting him from the racecourse. The defendant demurred to this pleading and the Full Court of the Supreme Court of New South Wales upheld the demurrer, following Naylor v Canterbury Park Racecourse Co Ltd (1935) 35 SR (NSW) 281, and ordered that judgment be entered for the defendant. The plaintiff has appealed to this court. The question which arises in the appeal is whether this court should follow the decision

in Hurst v Picture Theatres Ltd [1915] 1 KB 1; [1914–15] All ER Rep 836. The Full Court of the Supreme Court of New South Wales in Naylor’s case refused to apply Hurst’s case in New South Wales. The facts pleaded in this case are indistinguishable from those in Hurst’s case. In Hurst’s case it was held that Wood v Leadbitter (1845) 13 M & W 838; 153 ER 351; [1843–60] All ER Rep 190, even if originally rightly decided, was no longer good law … The doctrine of Wood v Leadbitter is clear and coherent. If a man creates a proprietary right in another and gives him a licence to go upon certain land in order that he may use or enjoy that right, the grantor cannot divest the grantee of his proprietary right and revest it in the grantor, or simply determine it, by breaking the agreement under which the licence was given. The grantee owns the property to which the licence is incident, and this ownership, with its incidental licence, is unaffected by what purports to be a revocation of the licence. The revocation of the licence is ineffectual. Easements and profits à prendre supply examples of interests to which licences to enter and remain upon land may be incidental. The majority judgment in Hurst’s case modified, if it did not reject, the law of Wood v Leadbitter by holding that a ‘right to see’ a spectacle was an interest which could be granted so that a licence to go into a theatre or a racecourse to see a play or to witness races was, when given for value, irrevocable because it was a licence coupled with an interest … [T]he decision, in my opinion, ignores the distinction between a proprietary right and a contractual right. In Wood v Leadbitter there was obviously a contractual ‘interest’. The plaintiff had bought and paid for a contractual right to go upon land for the purpose of witnessing a spectacle. But this fact, which was treated as irrelevant in Wood v Leadbitter, is made the foundation of the first ground of the judgment in Hurst’s case. In that case Buckley LJ interpreted ‘interest’ in a sense quite different from that in which the word was used in Wood v Leadbitter. The learned judge said that there was a grant of a right to come to see a spectacle. The licence is described [page 12] as ‘only something granted to him for the purpose of enabling him to have that which had been granted to him, namely, the right to see’. The ‘right to see’ is treated as the ‘interest’ which has been ‘granted’. It is clear that the learned judge used the word ‘grant’ in a sense very different from that in which it was used in Wood v Leadbitter. It was there used in relation to interests in land which were, if they existed at all, clearly proprietary interests. The right to see a spectacle cannot, in the ordinary sense of legal language, be regarded as a proprietary interest. … There is, strictly, no grant of any interest. What is created is something quite different, namely, contractual rights and obligations … In my opinion, the first ground upon which Hurst’s case was decided (that there was in that case a licence coupled with an interest) cannot be supported … It is clear that equity would never have decreed the specific performance of a contract to provide an entertainment. Equity would never have granted an unconditional injunction restraining the proprietor of a place of entertainment from excluding from that place a person who had bought a ticket of admission. Any injunction granted would necessarily

have been subject at least to the condition that the plaintiff coming into equity should behave himself with due propriety during the entertainment … Consider further a case where a building devoted to entertainment becomes overcrowded by persons who have bought tickets … If, however, the legal position is as stated in Hurst’s case, it is impossible for anyone (except possibly a constable) to remove any of the persons, either for the safety of the audience as a whole or in order to secure the observance of the law, without subjecting himself to the possibility of numerous actions for assault. It is doubtful whether such consequences were realised in Hurst’s case … A much more realistic approach [to implying a right to invoke the licence in certain circumstances] is provided by the application of the simple principle of Wood v Leadbitter, namely, that no ‘grant’ of any proprietary right, that is, of any jus in rem, has been made to the plaintiff. He has simply obtained a contractual right which is enforceable in personam by an action for damages. … I am of opinion, for reasons which I have stated, that Hurst’s case is manifestly wrong, and it is not possible to extract from it any general principle which is consistent with well-recognised principles of law. Hard cases may be put on both sides. One cannot but sympathise with the position of a person who is asked to leave a place of entertainment without just cause. On the other hand, there are grave inconveniences involved in the adoption of Hurst’s case as sound law, and it may be added that, if the law is not correctly stated in Hurst’s case, such a person may successfully avoid indignity by recognising the law and going quietly … In my opinion Naylor’s case was rightly decided and the Full Court was right in this case in upholding the demurrer. The appeal should be dismissed. Evatt J: … But the question remains, was Hurst’s case correctly decided? There are several aspects from which the decision may be regarded. First, it is critical of the strictly legal position laid down in Wood v Leadbitter … The main part of the reasoning in Wood v Leadbitter was based on the well-known judgment of Vaughan CJ in Thomas v Sorrell (1673) Vaugh 330 at 351; 124 ER 1098 at 1109, distinguishing there between licences or ‘dispensations’ (eg to come into a man’s house), and licences coupled with a grant of property (eg a licence to hunt and carry away the deer). It must be conceded that the ‘grants’ intended to be referred to in Wood v Leadbitter (a licence ‘coupled with a grant’) was a grant of some ascertainable property which is capable of being granted: Holdsworth’s History of English Law, vol vii, p 328. It may therefore be admitted that [page 13] Lord Wrenbury went too far in assimilating the right to view an entertainment with the grant of a proprietary right in or over land or chattels. But, in my opinion, as an application of equitable principles to the complex relationship between entrepreneur and patron, Hurst’s case is a convincing decision. As early as 1901, Cozens-Hardy MR suggested that Wood v Leadbitter might be of ‘very

doubtful’ validity if equitable principles were to be applied to its facts: Lowe v Adams [1901] 2 Ch 598 at 600 … Buckley LJ’s view was (a) that a contract giving a licence to enter and remain on land solely for the purpose of viewing an entertainment should be regarded by a court of equity as not subject to arbitrary revocation during the entertainment by a party to the contract in his capacity as occupier of the land, and (b) that a court of equity should give efficacy to a contract not to exercise the legal right of revocation of the licence, by restraining the occupier either from exercising such legal right, or, at any rate, from subsequently setting up to his own advantage his own breach of contract and his own attempted revocation of the licence … But a broad and just principle of equity appears from the judgments of Buckley LJ and Kennedy LJ to the effect that, although a court of law will still treat the transaction between entertainment proprietor and patron as creating only a revocable licence, a court of equity should regard the licence as irrevocable in all proceedings in which equitable principles have to be recognised. A consequential rule is that a defence to an action of assault that the licence had been duly revoked by the proprietor, though good at law, would be contrary to the equitable principle of irrevocability of licence and the equitable principle should prevail so as to avoid the defence. I think the fallacy in the criticism of Hurst’s case lies in the continuous insistence upon discovering a proprietary right as a condition of equitable intervention … As a Canadian commentator has recently said, in relation to the theory that a strict ‘property’ interest must be the foundation of the intervention of equitable jurisdiction, ‘the danger in the application of the limitation lies in the circumstances that unenlightened courts are apt to apply it as a limitation of their jurisdiction, except in orthodox property interest cases, even though the situation is one to which the injunctive method is peculiarly appropriate’: 10 Can BR 175. In my opinion, the appeal should be allowed, and judgment entered for the plaintiff on the demurrer. [Dixon, Starke and McTiernan JJ delivered judgments to the same effect as Latham CJ.]

1.19 Questions 1.

If the High Court in Cowell’s case had ruled in favour of the plaintiff, would that effectively have created a proprietary interest in the plaintiff? Does Latham CJ assume that a decision in favour of the plaintiff would have had that result?

2.

As a matter of policy, what should have been the result in Cowell’s case? Latham CJ suggests that certain inconvenient results would

stem from a decision in favour of the plaintiff. Would such a decision necessarily produce these inconvenient results? 3.

Does Cowell’s case stand for the proposition that equity will never intervene to prevent the revocation of a licence in breach of contract, except in the case of a licence coupled with the grant of an interest? If not, what is the ratio decidendi of Cowell’s case?

[page 14]

4.

Why is Latham CJ so definite in asserting that a court of equity never specifically enforces a contract to provide entertainment? Or is the plaintiff asking for something less difficult?15 Refer to Gray and Gray’s analysis above. In their terms, the rights conferred by the licence are ‘land-based rights … at all times essentially personal …’ Does this argument offer some insight as to the rationale that underpins the majority judgments, and that of the case law generally on the enforceability of licences?

1.20

More recent case law has not followed Cowell’s case in every respect.

In certain circumstances courts have determined that equity may intervene to prevent a contractual licensor from pleading that the licence has been effectively revoked (although in breach of contract). In other words, equity may treat a contractual licence as irrevocable and determine the rights of the parties accordingly. In Heidke v Sydney City Council the council agreed to

allow a youth group to use an oval for sporting purposes on a number of agreed dates.16 The agreement was made for valuable consideration. The council repudiated the agreement and refused to allow members of the group to use the oval on the first of the agreed dates. Hardie AJ concluded (a) that the contract contained no express or implied term allowing revocation; and (b) that the award of damages to the plaintiff in this case would not be adequate compensation for their loss. He granted an injunction preventing the council from repudiating the agreement. Accordingly, the plaintiffs were able to exercise their rights to use the oval on the agreed dates. In Verrall v Great Yarmouth Borough Council,17 the English Court of Appeal upheld the grant of a decree of specific performance of a contractual licence (to use a hall for a two-day annual conference). The licensor, the council, had repudiated the agreement to allow the National Front (an extremist anti-immigration party) to use the hall, following a change in the political make-up of the council. The court held that the contract contained an implied stipulation that the licence would not be wrongfully revoked. One factor relied on by the Court of Appeal in deciding to exercise its discretion to order specific performance of the contract was the importance of allowing free political discussion. 1.21

The general principles governing the availability of specific

performance will be central to the grant of equitable relief. It is sometimes said that a decree of specific performance is available to a plaintiff in two situations. The first situation is where the contract between the parties is executory. The plaintiff seeks to have the transaction completed in order to put the parties in the position which was intended by the contract. The

parties’ rights are settled by the court ordering that a document be executed, or some other formal act be performed, which will thereafter define the parties’ rights and duties.18 A typical example is where parties enter into an agreement for a lease which the defendant repudiates, and the court orders the agreement

[page 15]

be specifically performed by the execution of a lease in proper form. The second situation arises where the parties have entered into a final and formally valid agreement, but a decree of specific performance is required to enforce a particular contractual obligation.19 The remedy in each case is discretionary and flexible. The court may refuse a decree on the basis of such discretionary considerations as hardship to the plaintiff or the defendant; lack of ‘clean hands’ by the plaintiff; or delay or acquiescence on the part of the plaintiff.20 1.22

Generally, equity will not intervene to compel the performance of

services or to compel the maintenance of a personal relationship, such as an employment relationship, between the parties.21 Nor will equity in general intervene where the granting of a decree for specific performance would involve the court in constant supervision.22 Hardie AJ in Heidke v Sydney City Council (1952) 52 SR (NSW) 143 (at 149) provided the following overview of the kinds of agreements for which equitable remedies will not be available to prevent breaches of contractual licences:

There is no doubt that in many cases, where a licence to go upon land is granted, equitable remedies are not available. In such case, the licence is part and parcel of an agreement which courts will not enforce directly or indirectly — agreements under which employees have rights to use and occupy premises of the employer; agreements under which building contractors have a right to go on land and build; agreements under which share-farmers have a right to use the land of the owner; and agreements under which boarders are entitled to use premises of the owner of the boarding establishment. In those cases, equitable remedies are not available, mainly for the reason that they are contracts which involve a substantial element of personal service and thus are not susceptible of direct or indirect enforcement by a court of equity.

A court will not grant an injunction to prevent wrongful revocation of a contractual licence in respect of contracts for which the decree of specific performance is not available. In Graham H Roberts Pty Ltd v Maurbeth Investments Pty Ltd [1974] 1 NSWLR 93 the plaintiff builder sought an injunction to prevent eviction from the building site until the work was completed. Helsham J refused to grant an injunction on the grounds that the licence was not coupled with an interest in the land; and as a building contract, it would not in general attract the remedy of specific performance. His Honour added that even if the contract contained an implied term that it would not be wrongfully revoked he would have not exercised his discretion to grant the builder an injunction. This was a case in which the licence was secondary to the object of the contract, which was to enable the licensee to build on the land. In a case where the licence itself is the subject matter of the contract, a court will more readily grant specific enforcement of an express or implied promise not to revoke it wrongfully.23

[page 16]

In New South Wales Rifle Association Inc v Commonwealth (2012) 293 ALR 158, the plaintiff Rifle Association occupied an area of Commonwealth land on the Malabar Headland pursuant to a contractual licence for use as a rifle range. The Commonwealth proposed to transfer the land to the State of New South Wales for use as a national park, which would be inconsistent with the plaintiff’s use of the land as a rifle range. The plaintiff sought an injunction to restrain an anticipatory breach of contract. White J granted an injunction to restrain the Commonwealth from transferring the land, unless the transfer were on terms that entitled the plaintiff to enforce against the transferee the rights it enjoyed under its licence granted by the Commonwealth. Is it possible to say, as a result of this decision, that the plaintiff licensee had a property right over the area of land? Consider this question in relation to the material in the next section. In order to determine whether a licence has the full characteristics of a property right, we need to examine whether it is enforceable against third parties: that is, whether it confers a full ‘right to exclude’.

Licences and third parties 1.23

If it is accepted that a contractual licence may be irrevocable by the

licensor, at least in certain circumstances, it follows that the licensee has some limited property right in the land. In Federal Airports Corporation v Makucha Developments Pty Ltd (1993) 115 ALR 679 Davies J (at 700) held that where equity will grant the decree of specific performance of a licence, the licensee acquires a ‘proprietary interest in the land, beyond a mere personal interest to

use the land in common with others’. But the measure of a full proprietary interest is generally considered to go beyond this: it is established not just by whether it is specifically enforceable against the grantor, but can also be enforceable independently against third parties. If the licence is so enforceable, it has assumed a more enduring proprietary character. It has been transformed from a right against an identifiable person (in personam) into a right over the thing (in rem), that is, the land itself. 1.24C

King v David Allen & Sons, Billposting Ltd [1916] 2 AC 54; [1916–17] All ER Rep 268 House of Lords

[The appellant held the fee simple estate in certain premises. By an agreement made in July 1913 the appellant (called in the agreement ‘the licensor’) agreed with the respondents (called ‘the licensees’) to give them permission to affix bills and posters to a wall on the side of a picture theatre to be erected on the premises. The ‘licence’ was to last for a term of four years from the date the theatre was erected and thereafter was terminable on six months’ notice by either party. The respondents agreed to pay a rental of £12 per annum. The appellant undertook that while the licence remained in force, he would not permit any other person to affix any bills or posters on the wall. In August 1913, the appellant agreed with the trustee for a company about to be formed to grant a lease to the company for 40 years and to assign his interest in the agreement the appellant had made with the respondents. The trustee agreed that when the new company was registered the company would execute the lease and ratify the agreement between the appellant and the respondents. In due course the company was incorporated and executed the lease, but the agreement made with the respondents was not referred to in the lease, and its benefit was not assigned

[page 17]

to the company. The theatre was completed in May 1914. In June 1914, the respondents attempted to post their bills on the theatre wall, but were forcibly prevented by the company’s

servants. The appellant, who was the director of the company, protested against the action of the company and his co-directors. He did his best to have the agreement of July 1913 honourably kept, but without success. Thereupon the respondents commenced the present action against the appellant, claiming damages for breach of the agreement. The appellant, while denying liability, applied to bring in the company as third party, but the application was refused. The Court of Appeal in Ireland affirmed a judgment in favour of the respondents for £80 damages.] Lord Buckmaster LC: My Lords, it is impossible to approach the consideration of this case without feeling and expressing great regret for the unfortunate position in which the appellant, Mr King, has found himself. He seems to me to have acted throughout the whole of these transactions with perfect straightforwardness and with a sincere and anxious desire to discharge the obligation which he undertook towards David Allen & Sons Ltd; but by circumstances which have passed beyond his control there has, in my view, been a breach of his obligation to the respondents, and for that breach he must be made responsible … [I]t is obviously a very undesirable thing to say any words by way of criticism of persons who are not represented before your Lordships’ House, and I will therefore pass by the temptation to comment upon this action of the company, an action which appears to have been insufficiently and indeed inaccurately explained in some of their letters. The matter then is left in this way. There is a contract between the appellant and the respondents which creates nothing but a personal obligation. It is a licence given for good and valuable consideration and to endure for certain time. But I fail to see … that there is any authority for saying that any such document creates rights other than those I have described. A case of Wilson v Tavener [1901] 1 Ch 578 was indeed referred to, but it really affords no assistance, for there the right conferred was to erect a hoarding upon the defendant’s ground, while in the present case the sole right is to fix bills against a flank wall, and it is unreasonable to attempt to construct the relationship of landlord and tenant or grantor and grantee of an easement out of such a transaction, and I find it difficult to see how it can be reasonably urged that anything beyond personal rights was ever contemplated by the parties. Those rights have undoubtedly been taken away by the action on the part of the company, who have been enabled to prevent the respondents from exercising their rights owing to the lease granted by Mr King, and he is accordingly liable in damages, although it was certainly not with his will, and indeed against his own express desire, that the company has declined to honour his agreement. My Lords, for these reasons I am of opinion that this appeal must be dismissed. Earl Loreburn: My Lords, I agree in the opinion expressed by the Lord Chancellor, and with him I greatly regret the position in which Mr King has been placed, which seems to be hard upon him. He has behaved perfectly honestly in the whole business, and one cannot help regretting the expense to which he has been put. I have very little to add to what has been said, but I look at the case in this way. The plaintiffs say that Mr King promised them for four years the use of a certain wall for advertising purposes by the agreement of 1 July 1913, and they say that after that Mr King demised [that is, leased] that land, and that Mr King’s lessees refused to make good

the promise in regard to [the] advertisement. Well, if the agreement of 1 July, which purports to be on the face of it a licence, was equivalent to creating an incorporeal hereditament [for example, an easement] or a sufficient interest in land, Mr King did not break his contract in making the lease, and would not be responsible for any trespasses that were committed by his licensees. But we [page 18] must look at the document itself, and it seems to me that it does not create any interest in land at all; it merely amounts to a promise on the part of Mr King that he would allow the other party to the contract to use the wall for advertising purposes, and there was an implied undertaking that he would not disable himself from carrying out his contract. Now Mr King has altered his legal position in respect of his control of this land. Those to whom he granted the lease have disregarded his wishes and refused to allow his bargain to be carried out, and they have been practically enabled to do so by the reason of the demise that he executed. In these circumstances it seems to me that there has been a breach in law of the contract of 1 July, and Mr King has disabled himself from giving effect to it as intended by parting with his right to present possession. That is enough to establish a case for damages against Mr King. There may be a remedy over against the lessees. I say nothing of that, because they are not here, and I do not wish either to encourage or to discourage any further proceedings; but this I think is clear: that the existence of such a remedy, if remedy there be, does not release Mr King from his liability to answer for breaking the contract which he made. Lord Atkinson: My Lords, I concur and I have nothing to add. Appeal dismissed.

1.25

It is clear from the court’s reasoning that the parties had failed to

create a proprietary interest in the building. It follows that a licence does not confer a sufficient plenitude of rights over the land to qualify as a proprietary right. And only proprietary rights are enforceable against third parties. Also, it is clear from the judgments that whether or not the licence was irrevocable against the licensor, and might attract the remedy of an injunction or specific performance, it would still not be enforceable against the third party. As Meagher et al conclude: ‘What is meant by denying that he [the licensee] has an interest in the land is to deny that he has an estate or interest recognised as

such by law or equity … It does not follow that he should necessarily be without curial remedies to remain on the land’.24 But the parties could have created a proprietary interest, as the court acknowledged, if the instrument clearly conferred a lease or easement over the land. In Claude Neon Ltd v Melbourne and Metropolitan Board of Works (1969) 43 ALJR 69 a majority of the High Court held that the parties intended to create a lease over the roof, parapets and part of the exterior walls by a grant to the appellant that conferred a right of exclusive possession over these parts of the building.

1.26 Questions 1.

If Mr King had acted ‘perfectly honestly’, why was he liable in damages to the billposting company?

2.

Earl Loreburn refers to the possibility of Mr King being able to sue the theatre company (the lessees) to recover the damages he was obliged to pay to the billposting company. On what principle might Mr King have been able to maintain such an action?

3.

Why was the billposting company unable to proceed against the theatre company directly?

[page 19]

4.

As a result of the agreement with Mr King, what rights did the billposting company obtain in the premises? Did the company acquire a proprietary interest?

5.

Against whom could the company enforce its rights?

6.

Against whom could a tenant of the land under a properly executed lease enforce his or her rights?

7.

Why does the House of Lords regard the billposting company as having only a licence over the premises?

8.

What is the difference between the rights of a ‘licensee’ and those of a tenant under a lease? See Chapter 8.

9.

What are the policy reasons in favour of withholding proprietary status from licensees? Why should licensees not be protected in the same way as lessees are?

1.27

It is important to note that an interest is not a proprietary interest

simply because it is enforceable against third parties. Such reasoning, as Kevin Gray and Susan Francis Gray emphasise,25 is viciously circular: If naively we ask which rights are proprietary, we are told that they are those rights which are assignable to and enforceable against third parties. When we then ask which rights these may be, we are told that they comprise, of course, the rights which are traditionally identified as ‘proprietary’. Property is property because it is property; property status and proprietary consequence confuse each other in a deadening embrace of cause and effect.

This point has been acknowledged by the High Court. In Yanner v Eaton (1999) 166 ALR 258 a majority of the court concluded that this ‘apparent circularity of reasoning … may illustrate some of the limits to the use of “property” as an analytical tool’ (per Gleeson CJ, Gaudron, Kirby and Hayne JJ at 264). A preferable approach is to see in property rights, as Blackstone

insisted, a distinctive measure of ‘despotic dominion which one man claims over the external things of the world, in total exclusion of the right of any other individual in the universe’.26 By this definition, despite its overstated and exaggerated tone, the licence does not qualify as a proprietary right because the licensee is given insufficient dominion over the land. In Gray and Gray’s terms, there is too little ‘legally endorsed concentration of power’ over the land.27 It is in consequence of this fact that the law does not allow this right, even where it is enforceable against the licensor, to bind third parties. This rule is no less applicable in cases where, as in King, third parties have notice of it.

[page 20]

1.28C

Georgeski v Owners Corporation Strata Plan 49833 (2004) 62 NSWLR 534; 12 BPR 22,573 Supreme Court of New South Wales

[The plaintiff held a licence from the Crown over a portion of riverbank and the abutting riverbed on the Georges River in Sydney. In accordance with the terms of the licence, the plaintiff built a jetty and a slipway on it. The defendants held an easement of way along the western edge of the plaintiff’s land down to the riverbank. The plaintiff sought an order declaring her rights over the jetty and slipway, and an injunction prohibiting the defendants from trespassing on them.] Barrett J: I have concluded that the plaintiff’s right of occupation rests in contract only (whether or not there is an interest in the nature of a profit à prendre to take away the jetty and the slipway after termination of the licence) and that she has no leasehold or other right of possession in respect of the relevant land, being land of which the jetty and the slipway, as fixtures, form part. The plaintiff’s claims against the second and third defendants must be considered in the light of that conclusion. The claims for injunctive relief … proceed on the footing that the second and third defendants are, as against the

plaintiff, capable of committing trespass by entering upon the jetty or the slipway; also that they are, as against her, legally precluded from ‘interfering with [her] enjoyment of’ the jetty and the slipway. The declarations the plaintiff seeks … are predicated on the existence of a legal right of the plaintiff that is inconsistent with (and excludes) an entitlement of the second and third defendants to ‘use’ the jetty and the slipway otherwise than for certain purposes … Resisting trespass to land Against that background, I return to the question of the position that a plaintiff must occupy in relation to land to support a claim based on trespass to that land. In Western Australia v Ward (above), McHugh J said (at [504]): In contrast to the lessee, a licensee, whose occupation is wrongly terminated or interfered with, must sue in contract or for some tort other than trespass to the land. If wrongly ejected from the land, the licensee cannot maintain an action in ejectment. If ejected by the grantor, the licensee may be able to obtain an injunction restraining the grantor from breaching the personal contract. If ejected by a stranger, the licensee may have an action in trespass to the person or some other tort. But in neither case is the action of ejectment or trespass to land available to the licensee … This result emerged because trespass to land entails interference with possession and is maintainable only by someone who has a right of possession. As between landlord and tenant, it is the tenant who may sue for trespass. As between licensor (freeholder) and licensee, where no right of possession is involved, it is the licensor who may sue for trespass. The latter proposition requires qualification where the licence is coupled with the grant of an interest, such as a profit à prendre. In such a case, the licensee may, because of the interest, sue in trespass for direct interference with the subject matter of the grant, although if the interest is equitable only the remedy may be confined to equitable relief. But the remedy, whether at law or in equity, is merely commensurate with the interest, as distinct from the contractual right with which it is associated: see Fitzgerald v Firbank [1897] 2 Ch 96; Moreland Timber Co Pty Ltd v Reid [1946] VLR 237. [page 21] It was submitted on behalf of the plaintiff that the traditional approach to which I have referred requires re-examination in the light of the decision of the English Court of Appeal in Manchester Airport plc v Dutton [2000] 1 QB 133. That case arose from plans by the owner of the airport at Manchester to build a second runway in such a position that its flight path would be over a wood owned by the National Trust. To make the new runway safe, some trees in the wood needed to be lopped or felled. The National Trust granted to the airport company a licence to enter and occupy the wood for the purpose of removing trees. Before grant of the licence, however, protesters had entered the wood and set up camps preventing the carrying out of such works. The airport company, having been granted the licence, brought summary possession proceedings against these occupiers and was successful. The Court of Appeal (Laws and Kennedy LJJ, Chadwick LJ

dissenting) dismissed an appeal and the House of Lords refused leave to appeal. Chadwick LJ in dissent took an approach consistent with traditional trespass jurisprudence: The question is whether a person who has a right to occupy under a licence but who does not have any right to exclusive possession can maintain an action to recover possession. But, in that context, the observations of Windeyer J in the High Court of Australia, in Radaich v Smith (1959) 101 CLR 209 at 222, adopted with approval by Lord Templeman in Street v Mountford [1985] 2 All ER 289 at 300; [1985] AC 809 at 827, are of relevance. Laws LJ, with whom Kennedy LJ agreed (adding observations of his own), expressly rejected this line of reasoning. Laws LJ said that in the older cases one could hear the ‘rattle of mediaeval chains’ resonating in the evolution of the modern writ of possession out of the peculiar law of ejectment. At pp 149–150 he said: But I think there is a logical mistake in the notion that because ejectment was only available to estate owners, possession cannot be available to licensees who do not enjoy de facto occupation. The mistake inheres in this: if the action for ejectment was by definition concerned only with the rights of estate owners, it is necessarily silent upon the question, what relief might be available to a licensee. The limited and specific nature of ejectment means only that it was not available to a licensee; it does not imply the further proposition, that no remedy by way of possession can now be granted to a licensee not in occupation. Nowadays there is no distinct remedy of ejectment; a plaintiff sues for an order of possession, whether he is himself in occupation or not. The proposition that a plaintiff not in occupation may only obtain the remedy if he is an estate owner assumes that he must bring himself within the old law of ejectment. I think it is a false assumption … In my judgment the true principle is that a licensee not in occupation may claim possession against a trespasser if that is a necessary remedy to vindicate and give effect to such rights of occupation as by the contract with his licensor he enjoys. There is no respectable distinction, in law or logic, between the two situations. An estate owner may seek an order whether he is in possession or not. So, in my judgment, may a licensee, if other things are equal. In both cases, the plaintiff’s remedy is strictly limited to what is required to make good his legal right. The principle applies although the licensee has no right to exclude the licensor himself. Elementarily he cannot exclude any occupier who, by contract or estate, has a claim to possession equal or superior to his own. Obviously, however, that will not avail a bare trespasser. [page 22] … That reasoning has, however, been criticised by several commentators: see … W Swadling, ‘Opening the numerus clausus’ (2000) 116 LQR 354 … Swadling’s main criticism of the majority position in Manchester Airport v Dutton appears from this passage:

The error into which, with respect, Laws LJ falls in failing to notice that a contractual licensee in occupation of land has rights derived from two separate sources, some from the contract, some from the fact of possession. Those derived from the contract prevent the licensor from denying him possession of the land. But those rights, because of the doctrine of privity, and notwithstanding the recent reform of that doctrine, bind the licensor alone. It is the rights derived from the second source, from the fact of possession, which bind third parties. But since the protesters were not party to the contract entered into by the plaintiff company and the National Trust, and since the plaintiff did not have any factual possession of the land, then, unless a contractual licence to occupy land has suddenly leapt the personal/property divide, it could not have bound the protesters. There is, therefore, a distinction which does still need to be drawn between a plaintiff whose right to occupy the land in question arises from title and one whose right arises from the contract alone. I must prefer the approach taken by Chadwick LJ in dissent. To do otherwise would be to fail to accept principles about the nature of trespass to land which are deeply rooted in Australian law and have been recognised by the High Court. The issue that the majority in Manchester Airport v Dutton had with the traditional approach to trespass was some perceived illogical distinction between a licensee in possession and a licensee out of possession. But focus on the licensee’s bare rights overlooks the nature of the wrong of trespass and its foundation in possession … Mere physical presence or physical use can never satisfy that test. Conclusions in relation to the plaintiff’s claims based on trespass The plaintiff has no legal right of possession in respect of the land the subject of the licence. Its effect is no more than to confer on her the landowner’s permission to occupy for a stated purpose. Nor, as a factual matter, is she in possession. The land is unfenced and open and, under the terms of the licence (clause 44), the plaintiff may not construct any fence or other barrier on the land without the Crown’s consent. The plaintiff does not reside on the land or conduct any sustained activity there that causes other persons to be excluded in a physical and factual sense as in Radaich v Smith (above) — indeed, her right to occupy is only for the limited purpose of ‘Jetty and Slipway (concrete with sliprails)’ and that is not a purpose that contemplates sustained activity of a kind that would be expected to entail ongoing physical exclusion of other persons. The plaintiff is, by the terms of the contract granting her licence, subject to an explicit requirement that she allow access by the public over the land. I have postulated above (paragraph [72]) the possibility that the provisions of the licence giving the plaintiff a right to remove the jetty and the slipway (which, as fixtures, are incorporated into the land) may have the effect of causing the plaintiff to have an equitable interest in the land in the nature of a profit à prendre. I have also referred to the possibility that the plaintiff may be entitled to bring proceedings based on trespass in the event of direct interference with the subject matter of the grant. If such an interest in the land in truth existed and a person took action towards dismantling the jetty or the slipway and taking them away, the plaintiff might, by reference to her interest, rely on trespass as a means of obtaining injunctive relief to restrain that action. But it would be in no sense inconsistent with or an invasion of the postulated interest in the land for any person

[page 23] merely to enter upon the jetty or the slipway. The possibility that such an interest therefore need not be considered further in these proceedings where there is no suggestion that the second defendant or the third defendant has any intention of dismantling and removing the jetty or the slipway and the plaintiff’s complaints are confined to their entering upon those structures in a normal way. Claim dismissed.

1.29

The rationale referred to by Barrett J that underpins the property law

of most modern legal systems, no less than Australian law, is commonly known as the numerus clausus principle. This is the principle implicitly evoked by the Law Lords in King v David Allen where they suggested that if an easement or lease had been created by the parties, either would have qualified as a fully-fledged proprietary interest and would then have bound the incoming tenant. A licence, by contrast, does not come within the class of recognised proprietary interests. The following extract describes the ambit of, and the reasons for, this principle. 1.30E The Numerus Clausus Principle in Australian Property Law B Edgeworth (2006) 32 Mon LR 387 at 387–8, 394–5 Conventionally described as ‘the numerus clausus principle’ — in English, the ‘closed list’ principle — it expresses the stringency of the common law’s approach to property rights, particularly over land. In essence, the principle holds that landowners are not at liberty to customise land rights, in the sense of re-working them in an entirely novel way to suit their particular individual needs and circumstances. Rather, any new rights must fit within firmly established pigeonholes, of which the law permits only a small and finite number. The principle applies regardless of the terms of any agreement that parties might reach for the purpose of creating such an interest, so it is irrelevant that a specific contractual arrangement to create a wholly novel interest might be free and fair. It is also

quite beside the point that the objectives expressed in that agreement might be mutually convenient, highly desirable or economically efficient. In this respect, property law is highly prescriptive: the system of rights in rem is a strictly circumscribed one, with a tight regulatory regime governing the range and form of available rights over land. By contrast, parties may agree to bind themselves contractually to any type of arrangement of rights and responsibilities. Contract law, with its inbuilt principle of free exchange, displays none of the restrictiveness of property law when confronted with new packages of rights. In only the most extreme circumstances, such as where the contract involves illegality, will contractual provisions be struck down. In the celebrated pronouncement of Lord Brougham LC in 1834, in the case of Keppell v Bailey [(1834) 2 M & K 517 at 536; 39 ER at 1049], contract law allows parties ‘the fullest latitude’ when formulating rights and obligations as between themselves over real and personal property. Property law adopts a very different approach; for it is concerned not so much with rights between parties to agreements, as with those rights that are capable of binding third parties. Accordingly, the numerus clausus principle prevents rights that do not fit neatly into the recognised categories of corporeal and incorporeal hereditaments from entering the pantheon of proprietary interests. A clear doctrinal gulf therefore separates property and contract: expansive freedom of contract allows [page 24] parties to fashion rights over land at will, while property narrowly limits the kinds of rights that may attach to the land so as to bind successors in title … According to Bernard Rudden, the term numerus clausus refers to ‘a restricted list of entitlements which [the law] will permit to count as property interests, or “real rights”’. In a lengthy comparative study, he found that virtually all modern, that is to say, postfeudal, legal systems operate with a closed list of recognised proprietary rights. Civil law jurisdictions are marked by this foundational arrangement no less than the common law systems. Rudden identified ‘less than a dozen’ categories of entitlement to land. They are those that confer possession, namely the estates: the fee simple, the life interest, and the leasehold. Then follow interests often referred to collectively as the ‘servitudes’, such as easements, profits, and restrictive covenants. Finally, come the security interests: mortgages and other charges. To rank as an interest in land, a right must come within one item on this menu of interests. If not, it will fail to be enforceable as property; and that means it will be impotent against successors in title, even if they have full knowledge of its existence at the time they acquire their interest. The same closed list is roughly applicable in Australian law. So, the fullest interests in land, conferring possession of the land for various periods of time, from the infinite all the way down to the short fixed-term, are the estates: fee simple, life estate and leasehold. Then follow the lesser interests: easements, freehold covenants and profits, and finally the security interests, such as mortgages. This finite list means that, for example, contractual licences cannot qualify as proprietary interests. Nor can such rights as a ius spatiandi (a right to wander over another’s land) assume the status of property, or a right to unobstructed television reception … Three separate mischiefs are targeted by this restrictive approach to the creation of

novel interests in land. The first of these is the concern to maximise the uses to which land can be used. This policy can be understood fully only by reference to the time and place it emerged. The context was the burgeoning market-oriented economic order in the middle of the 19th Century in England. If this new order were to evolve, it required breaking from the earlier overlapping networks of property rights, and the multiple layers of feudal obligations that impeded the efficient use of land. The fragmentation of property rights into smaller, discrete bundles capable of individual ownership was an essential element for the commodification of land, and, in consequence, for the introduction of economically efficient uses of land. If parties were free to restrict the usages of land by agreements capable of binding successors in title indefinitely, land could be shackled in ways that might revive all the impediments to economic reform that were endemic in feudal real property law. A second policy evident in dicta in these cases addresses the vice of adding to the already existing difficulties that confront third parties who purchase the land. Any proliferation of the number and range of rights will tend to make the conveyancing process more complex, time-consuming and hazardous. This policy may be better understood in economic terms. If the categories of property rights over land are too openended, enormous transaction costs may arise for persons planning to acquire an interest in the land. It follows that the numerus clausus principle can be justified as a balancing act by means of which the largest number of property rights is allowed consistent with the imposition of a reasonably efficient system of conveyancing. The third policy is that of protecting the integrity of what Lord Brougham refers to as ‘the science of the law’. This phrase refers to the process of systematisation and rationalisation of the common law that was a dominant concern in 19th Century English legal culture. If property owners were able to create at whim any kind of property right, the process of [page 25] measured categorisation of interests by judges, legislators and commentators — the foremost practitioners of ‘legal science’ — would be frustrated. In turn, the capacity for the legal system to develop would founder. No shared professional knowledge about property rights could be firmly established if particular rights could not be described as falling within well-defined categories, and conforming to settled understandings about core principles. The numerus clausus assists in this exercise.

1.31

Compare the reasoning in King v David Allen and Georgeski with the

much debated case of Errington v Errington [1952] 1 KB 290; [1952] 1 All ER 149. A father purchased a house as a residence for his son and daughterin-law. He promised that when the mortgage loan was repaid in full, he

would convey the house to the couple. He died before the loan was repaid. At this time the son and daughter-in-law were licensees. The father’s widow, to whom the house had been devised by will, commenced an action claiming possession of the house. Lord Denning considered that the relationship between the couple and the father was a contractual licence. He then went on to say that a contractual licence could not be revoked in breach of contract. This contract could not be disregarded by the licensor or anyone claiming through him, except a purchaser for value without notice. Thus, the contractual licence was enforceable against the father’s widow as his successor in title. Hodson and Sommerville LJJ delivered judgments to the same effect. This extension of the enforceability of contractual licences has been severely criticised.28 The latest example is the decision of the English Court of Appeal in Ashburn Anstalt v Arnold [1988] 2 WLR 706 which rejected the reasoning in Errington as being inconsistent with the long-standing authority of King v David Allen. It follows that King still represents the preferable position of licensees vis-à-vis third parties. Notwithstanding this return to orthodoxy in England, Manchester Airport plc v Dutton suggests that there is still a clear divergence between Australian and English law in the area of licences over land in relation to third parties. This was affirmed recently in Bropho v Western Australia [2007] FCA 519 where Nicholson J (at [474]) held that: ‘In my view the reliance which the applicant places on the majority reasoning in Manchester Airport [2000] 1 QB 133 finds no support in Australian law and should not be followed here’. However, despite the general unenforceability of the licence against third parties in Australia, it might in some exceptional

circumstances be protected against third parties by means of a constructive trust, as will be seen later at 4.115ff.

1.32 Questions 1.

Should property law recognise a licence as an interest in land?

2.

What reasons are in favour of the licence qualifying as a property right? What reasons are against it?

[page 26]

3.

Are there certain types of licences that more readily qualify for proprietary status than others? Is the reasoning of Barrett J in Georgeski convincing? Compare it with the English approach in Manchester Airport plc v Dutton. Which is the more defensible? Does Manchester Airport offer support to licensees such as Mr King?

4.

If a third party had trespassed on the part of the Malabar Headland occupied by the New South Wales Rifle Association, referred to above (1.22), would the association be able to sue in trespass? Would the Commonwealth? What rights would the association have against the Commonwealth if it failed to act?

5.

What is the basic difference between property law and contract law in the treatment of novel packages of rights?

What is the numerus clausus principle? What policy reasons support 6.

it? Are those reasons still valid today, over 150 years after it was first established?

7.

What are the basic categories of rights available over land in Australian law that the numerus clausus allows?

PROPERTY RIGHTS AND THE RIGHTS OF PERSONS 1.33

Fundamental to the discussion of the meaning of property above is

the idea that property rights are to be distinguished from personal rights within the general framework of private law: that is, the law that governs the interaction between private individuals. This reflects a basic ontological and ethical distinction drawn in contemporary societies between persons and things. As Mosk J argues in Moore’s case below (1.36C), this reflects the fact that ‘our society acknowledges a profound ethical imperative to respect the human body as the physical and temporal expression of the unique human persona’. Of course, such a distinction has not always been so. In the past, groups lacking political power have often been disqualified from the benefits of property ownership. In an extreme form this has meant that persons have become ‘objects’ of property rights, akin to ‘things’, or chattels, in law. Societies based on slavery are typically of this order. More commonly, marginalised groups have been denied rights to own property. Such groups have included Jews in England,29 slaves in parts of America30 and married

women in England and Australia31 until the enactment of married women’s property legislation in the late nineteenth century. Also, the structure of feudalism effectively denied property rights to all ‘unfree’ tenants, or ‘villeins’ who held their land at the whim of their lords, with no enforceable rights in the courts. Changes in community values embodied in legislation now preclude the treatment of human beings as slaves who can be freely sold, women as the property of their husbands, or certain citizens automatically denied access to courts to protect property rights. A linked historical development was the extension by legislation of the right to acquire and own property to all citizens, and a general right to enter into contracts. This extension of private law rights to all citizens was paralleled in the sphere of public law with the extension of rights to vote, and stand to all.

[page 27]

The definition of personal rights includes the rights that a person has over his or her own body. Among personal rights we normally include rights to protect and safeguard the body, most obviously protected by the torts of assault and battery. Furthermore, aspects of personality are protected, such as one’s reputation, by the tort of defamation, and more recently by legislation protecting the privacy of individuals. But the dividing line between personal rights and property rights is not always easy to draw. For instance, is one’s reputation property which can be commercially exploited by affording property rights to it? Is the right to pursue a profession, a right of

demonstrable economic and social value, a property right? The question of the proprietary character of personal rights is particularly relevant in the case of rights over human tissue, organs and other body parts. This section will examine aspects of property law and the body.

Are persons property? 1.34E

Are Persons Property? Legal Debates about Property and Personality M Davies and N Naffine Ashgate, United Kingdom, 2001, 1–3 (footnotes omitted)

The central question we pose in this book is ‘Are persons property?’. There is perhaps a deliberate provocation intended in this simple inquiry — a provocation to lawyers and also a provocation to the political sensibilities of the citizenry at large. For it may seem that we are asking whether persons in the ‘free’ common law world are in some way still to be regarded as slaves, when surely our law and our society have long condemned slavery. Indeed the idea that persons are now all free and equal is supposed to be fundamental to modern liberal legal systems — the free person is not only the basic legal unit, but also the very raison d’etre of our law. So were our question to have only this one meaning, were we only asking about the retention of explicit and legal forms of slavery, it would seem that there is necessarily only a brief reply to be given and hardly a book in it. For the short answer is that we do not recognise slavery; one person cannot own another. It is regarded as an abomination to commodify another human being in this manner. The Western democracies outlawed slavery in the nineteenth century, though as Russell Scott has observed, it has ‘not all disappeared from the Eastern world, nor from the African and South American continents’. Indeed it seems that English common law never openly countenanced slavery, even though England was home to a number of slavers who derived immense wealth from a traffic in persons (English slavers wisely conducted their trade in other parts of the world). As Rosemary Owens explains, ‘In the famous Sommersett’s Case [of 1772], English law decided against slavery, proclaiming its allegiance to the Enlightenment person and promising a protection for freedom’. In Sommersett’s Case, it was concluded that there was no ‘positive, or legislative, authorisation of slavery in England’. It could therefore be said with some confidence that Anglo-Australian law is in accord with the views of two of the leading philosophers of political and legal liberty, John Locke and Immanuel Kant, who, in different ways, both condemned the idea of treating other persons as property. According to Kant, ‘a person cannot be property and so cannot be a

thing which can be owned, for it is impossible to be a person and a thing, the proprietor and the property’. Locke, too, was adamant about the importance of freedom from possession by [page 28] others. In The Second Treatise on Government Locke begins his discourse on slavery by saying that ‘The Natural Liberty of Man is to be free from any Superior Power on Earth, and not to be under the Will of Man, not to be subject to the inconstant, uncertain, unknown, Arbitrary Will of another man’. He goes on to say that: This Freedom from Absolute, Arbitrary Power, is so necessary to, and closely joyned with a Man’s Preservation, that he cannot part with it, but by what forfeits his Preservation and Life together. For a Man, not having the Power of his own Life, cannot, by Compact or his own Consent, enslave himself to anyone. No body can give more Power than he has himself; and he that cannot take away his own Life, cannot give another power over it. According to modern legal orthodoxy, Locke, Kant and modern law are ad idem in that the categories of person and property are now meant to be utterly separate and distinct. To be a person, it is said, is precisely not to be property. Thus it might be argued that the one concept negatively defines the other …

1.35

Consider Davies’ and Naffine’s argument in relation to the cases and

statutory provisions considered below. After examining this material, and the subsequent case extracts, do you think that they provide a convincing overview of the law?

Property and body parts 1.36C

Moore v Regents of the University of California (1990) 793 P 2d 479 Supreme Court of California, In Bank

[In 1976, Moore was treated for leukaemia at the Medical Centre of the University of California at Los Angeles. In the course of diagnosing and treating Moore’s illness, samples were taken of

his blood, bone marrow, skin, semen and other body substances. On the advice of his physician, the defendant Golde, Moore’s spleen was removed. Prior to the operation Golde was aware that Moore’s body substances and spleen were likely to be valuable for research and commercial purposes. Moore signed a routine consent to the removal of his spleen, which was a necessary part of his treatment, but did not consent to its use for scientific purposes and was unaware of the potential commercial value of his cells. Between 1976 and 1983 Golde continued to treat Moore, who flew from his home in Seattle to Los Angeles to have samples of bodily substances taken from him. Some time before August 1979 Golde established a cell line from Moore’s cells. Because of Moore’s leukaemia his cells overproduced a kind of protein. The establishment of a cell line meant that these proteins would continue to be reproduced indefinitely. In 1981, the Regents of the University of California applied for a patent on the cell line, naming Golde and the defendant Quan, a researcher, as inventors. With the assistance of the Regents, Golde negotiated agreements for the commercial development of the cell line and products to be derived from it. Under these agreements Golde was to receive shares in a company involved in the development and payments amounting to at least $450,000. In 1983, when

[page 29]

Moore discovered that his cells had been used for this purpose, he brought action against Golde, Quan, the Regents and licensees of the patented cell line, claiming, inter alia, damages for conversion of his cells. The defendant demurred against many of his causes of action and the demurrers were upheld at first instance. The California Court of Appeal held, inter alia, that Moore had established a cause of action in conversion. The defendants appealed.] Panelli J: [After holding that Moore had a cause of action against Golde for breach of fiduciary duty or failure to obtain informed consent, Panelli J went on to consider his claim in conversion.]32 Moore also attempts to characterize the invasion of his rights as a conversion — a tort that protects against interference with possessory and ownership interests in personal property. He theorizes that he continued to own his cells following their removal from his body, at least for the purpose of directing their use, and that he never consented to their use in potentially lucrative medical research. Thus, to complete Moore’s argument, the defendants’ unauthorized use of his cells constitutes a conversion. As a result of the alleged conversion, Moore claims a proprietary interest in each of the products that any of the defendants might ever create from his cells or the patented cell line. No court,

however, has ever in a reported decision imposed conversion liability for the use of human cells in medical research … Invoking a tort theory originally used to determine whether the loser or the finder of a horse had the better title, Moore claims ownership of the results of socially important medical research, including the genetic code for chemicals that regulate the functions of every human being’s immune system. Moore’s claim under existing law To establish a conversion, plaintiff must establish an actual interference with his ownership or right of possession … [citations omitted] Since Moore clearly did not expect to retain possession of his cells following their removal, to sue for their conversion he must have retained an ownership interest in them … Neither the Court of Appeal’s opinion, the parties’ briefs, nor our research discloses a case holding that a person retains a sufficient interest in excised cells to support a cause of action for conversion. We do not find this surprising, since the law governing such things as human tissues, transplantable organs, blood, fetuses, pituitary glands, corneal tissue, and dead bodies deal with human biological materials as objects sui generis, regulating their disposition to achieve policy goals rather than abandoning them to the general law of personal property. [Here Panelli J referred to a number of statutory provisions regulating, inter alia, disposal of blood, foetuses and pituitary glands.] It is these specialised statutes, not the law of conversion, to which courts ordinarily should and do look for guidance on the disposition of human biological materials. Lacking direct authority for importing the law of conversion into this context, Moore relies, as did the Court of Appeal, primarily on decisions addressing privacy rights. One line of cases involves unwanted publicity … Not only are the wrongful-publicity cases irrelevant to the issue of conversion, but the analogy to them seriously misconceives the nature of the genetic materials and research involved in this case. Moore, adopting the analogy originally advanced by the Court of Appeal, argues that ‘[i]f the courts have found a sufficient proprietary interest in one’s persona, [page 30] how could one not have a right in one’s own genetic material, something far more profoundly the essence of one’s human uniqueness than a name or a face?’. However, as the defendants’ patent makes clear — and the complaint, too, if read with an understanding of the scientific terms which it has borrowed from the patent — the goal and result of the defendants’ efforts has been to manufacture lymphokines. Lymphokines, unlike a name or a face, have the same molecular structure in every human being and the same, important functions in every human being’s immune system. Moreover, the particular genetic material which is responsible for the natural production of lymphokines, and which the defendants use to manufacture lymphokines in the laboratory, is also the same in every person; it is no more unique to Moore than the number of vertebrae in the spine or the chemical formula hemoglobin. Another privacy case offered by analogy to support Moore’s claim establishes only that patients have a right to refuse medical treatment: Bouvia v Superior Court of California (1986) 179 Cal App 3d 1127; 225 Cal Rptr 297 … Yet one may earnestly wish to protect privacy and dignity without accepting the extremely problematic conclusion that interference with

those interests amounts to a conversion of personal property. Nor is it necessary to force the round pegs of ‘privacy’ and ‘dignity’ into the square hole of ‘property’ in order to protect the patient, since the fiduciary-duty and informed-consent theories protect these interests directly by requiring full disclosure. The next consideration that makes Moore’s claim of ownership problematic is California statutory law, which drastically limits a patient’s control over excised cells. Pursuant to Health and Safety Code s 7054.4, ‘[notwithstanding any other provision of law, recognizable anatomical parts, human tissues, anatomical human remains, or infectious waste following conclusion of scientific use shall be disposed of by interment, incineration, or any other method determined by the state department [of health services] to protect the public health and safety’. [Panelli J held that Moore’s spleen, and his virusinfected cells were included within this statutory provision.] A primary object of the statute is to ensure the safe handling of potentially hazardous biological waste materials. Yet one cannot escape the conclusion that the statute’s practical effect is to limit, drastically, a patient’s control over excised cells. By restricting how excised cells may be used and requiring their eventual destruction, the statute eliminates so many of the rights ordinarily attached to property that one cannot simply assume that what is left amounts to ‘property’ or ‘ownership’ for purposes of conversion law … Finally, the subject matter of the Regents’ patent — the patented cell line and the products derived from it — cannot be Moore’s property. This is because the patented cell line is both factually and legally distinct from the cells taken from Moore’s body. Federal law permits the patenting of organisms that represent the product of ‘human ingenuity’, but not naturally occurring organisms: Diamond v Chakrabarty (1980) 447 US 303 at 309–310; 100 S Ct 2204 at 2208; 65 L Ed 2d 144. Human cell lines are patentable because ‘[l]ong-term adaptation and growth of human tissues and cells in culture is difficult — often considered an art …’, and the probability of success is low: OTA Report, supra, p 33. It is this inventive effort that patent law rewards, not the discovery of naturally occurring raw materials. Thus, Moore’s allegations that he owns the cell line and the products derived from it are inconsistent with the patent, which constitutes an authoritative determination that the cell line is the product of invention … Should conversion liability be extended? … There are three reasons why it is inappropriate to impose liability for conversion based upon the allegations of Moore’s complaint. First, a fair balancing of the relevant policy considerations counsels against extending the tort. Second, problems in this area are better [page 31] suited to legislative resolution. Third, the tort of conversion is not necessary to protect patients’ rights. For these reasons, we conclude that the use of excised human cells in medical research does not amount to a conversion. Of the relevant policy considerations, two are of overriding importance. The first is protection of a competent patient’s right to make autonomous medical decisions. That right, as already discussed, is grounded in well-recognized and long-standing principles of

fiduciary duty and informed consent … This policy weighs in favour of providing a remedy to patients when physicians act with undisclosed motives that may affect their professional judgment. The second important policy consideration is that we not threaten with disabling civil liability innocent parties who are engaged in socially useful activities, such as researchers who have no reason to believe that their use of a particular cell sample is, or may be, against a donor’s wishes … We need not, however, make an arbitrary choice between liability and non liability. Instead, an examination of the relevant policy considerations suggests an appropriate balance: liability based upon existing disclosure obligations, rather than an unprecedented extension of the conversion theory, protects patients’ rights of privacy and autonomy without unnecessarily hindering research … Unfortunately, to extend the conversion theory would utterly sacrifice the other goal of protecting innocent parties. Since conversion is a strict liability tort, it would impose liability on all those into whose hands the cells come, whether or not the particular defendant participated in, or knew of, the inadequate disclosures that violated the patient’s right to make an informed decision. In contrast to the conversion theory, the fiduciary-duty and informed-consent theories protect the patient directly, without punishing innocent parties or creating disincentives to the conduct of socially beneficial research. Research on human cells plays a critical role in medical research. The extension of conversion law into this area will hinder research by restricting access to the necessary raw materials … At present, human cell lines are routinely copied and distributed to other researchers for experimental purposes, usually free of charge. This exchange of scientific materials, which still is relatively free and efficient, will surely be compromised if each cell sample becomes the potential subject matter of a lawsuit … Indeed, this is a far more compelling case for limiting the expansion of tort liability than Brown [Brown v Superior Court (1988) 44 Cal 3d 1049; 245 Cal Rptr 412; 751 P 2d 470]. In Brown, eliminating strict liability made it more difficult for plaintiffs to recover actual damages for serious physical injuries resulting from their mothers’ prenatal use of the drug diethylstilbestrol (DES) … In this case, by comparison, limiting the expansion of liability under a conversion theory will only make it more difficult for Moore to recover a highly theoretical windfall. Any injury to his right to make an informed decision remains actionable through the fiduciary-duty and informed-consent theories. If the scientific users of human cells are to be held liable for failing to investigate the consensual pedigree of their raw materials, we believe the Legislature should make this decision. Complex policy choices affecting all society are involved, and ‘[l]egislatures, in making such policy decisions, have the ability to gather empirical evidence, solicit the advice of experts, and hold hearings at which all interested parties present evidence and express their views …’: Foley v Interactive Data Corp (1988) 47 Cal 3d 654 at 694; 254 Cal Rptr 211; 765 P 2d 373 … Finally, there is no pressing need to impose a judicially created rule of strict liability, since enforcement of physicians’ disclosure obligations will protect patients against the very type of harm with which Moore was threatened. So long as a physician discloses research and economic interests that may affect his judgment, the patient is protected from conflicts [page 32]

of interest. Aware of any conflicts, the patient can make an informed decision to consent to treatment, or to withhold consent and look elsewhere for medical assistance. As already discussed, enforcement of physicians’ disclosure obligations protects patients directly, without hindering the socially useful activities of innocent researchers. For these reasons, we hold that the allegations of Moore’s third amended complaint state a cause of action for breach of fiduciary duty or lack of informed consent, but not conversion. [Lucas CJ, Eagleson and Kennard JJ concurred. Arabian J also concurred in a separate judgment. Broussard J dissented from the majority view on conversion. Broussard J held that on the facts of the instant case, where the defendants, but not Moore, were aware of the proposed use of the cells prior to their removal, an action in conversion was available to enable the plaintiff to recover the economic value of the right to control use of his body parts. This would not necessarily include the value of the patent and the derivative products. However, conversion would not be available where the doctor was unaware of the scientific or commercial value of cells when the patient consented to their removal, since in such a situation the patient would be treated as having abandoned the property. In the course of his judgment Broussard J commented:] In analysing the conversion issue, the majority properly begins with the established requirements of a common law conversion action, explaining that a plaintiff is required to demonstrate an actual interference with his ‘ownership or right of possession’ in the property in question. Although the majority opinion, at several points, appears to suggest that a removed body part, by its nature, may never constitute ‘property’ for purposes of a conversion action … there is no reason to think that the majority opinion actually intends to embrace such a broad or dubious proposition. If, for example, another medical center or drug company had stolen all of the cells in question from the UCLA Medical Center laboratory and had used them for its own benefit, there would be no question but that a cause of action for conversion would properly lie against the thief, and the majority opinion does not suggest otherwise. Thus, the majority’s analysis cannot rest on the broad proposition that a removed body part is not property, but rather rests on the proposition that a patient retains no ownership interest in a body part once the body part has been removed from his or her body … Justice Arabian’s concurring opinion suggests that the majority’s conclusion is informed by the precept that it is immoral to sell human body parts for profit. But the majority’s rejection of plaintiff’s conversion cause of action does not mean that body parts may not be bought or sold for research or commercial purposes or that no private individual or entity may benefit economically from the fortuitous value of plaintiff’s diseased cells. Far from elevating these biological materials above the marketplace, the majority’s holding simply bars plaintiff, the source of the cells, from obtaining the benefit of the cells’ value, but permits defendants, who allegedly obtained the cells from plaintiff by improper means, to retain and exploit the full economic value of their ill-gotten gains free of their ordinary common law liability for conversion …

Mosk J: [Mosk J referred to the need for Moore to show that he had property in his cells and the majority view that he had no such property. He then discussed the six premises on which the majority based its rejection of Moore’s conversion claim.] The majority’s first reason is that ‘no reported judicial decision supports Moore’s claim, either directly or by close analogy’ … Neither, however, is there any reported decision rejecting such a claim. The issue is as new as its source — the recent explosive growth in the commercialization of biotechnology. [page 33] The majority next cite several statutes regulating aspects of the commerce in or disposition of certain parts of the human body, and conclude in effect that in the present case we should also ‘look for guidance’ to the Legislature rather than to the law of conversion … Surely this argument is out of place in an opinion of the highest court of this State. As the majority acknowledge, the law of conversion is a creature of the common law … My point is that if the cause of action for conversion is otherwise an appropriate remedy on these facts, we should not refrain from fashioning it simply because another court has not yet so held or because the Legislature has not yet addressed the question. We need not wait on either event, because neither is a precondition to an exercise of our long-standing ‘power to insure the just and rational development of the common law in our State’: Rodrigues v Bethlehem Steel Corp (1974) 12 Cal 3d 382 at 394; 115 Cal Rptr 765; 525 P 2d 669. The majority’s second reason for doubting that Moore retained an ownership interest in his cells after their excision is that ‘California statutory law … drastically limits a patient’s control over excised cells’ … [Mosk J concluded that in authorising ‘scientific use’ of human tissue excised from patients, s 7054.4 of the California Health and Safety Code did not authorise its commercial exploitation.] … [However], even if [the legislation] does permit defendants’ commercial exploitation of Moore’s tissue under the guise of ‘scientific use’, it does not follow that — as the majority conclude — the statute ‘eliminates so many of the rights ordinarily attached to property’ that what remains does not amount to ‘property’ or ‘ownership’ for purposes of the law of conversion … The concepts of property and ownership in our law are extremely broad. A leading decision of this court approved the following definition: ‘The term “property” is sufficiently comprehensive to include every species of estate, real and personal, and everything which one person can own and transfer to another. It extends to every species of right and interest capable of being enjoyed as such upon which it is practicable to place a money value’ … Being broad, the concept of property is also abstract: rather than referring directly to a material object such as a parcel of land or the tractor that cultivates it, the concept of property is often said to refer to a ‘bundle of rights’ that may be exercised with respect to that object — principally the rights to possess the property, to use the property, to exclude others from the property, and to dispose of the property by sale or by gift.

‘Ownership is not a single concrete entity but a bundle of rights and privileges as well as of obligations’ … But the same bundle of rights does not attach to all forms of property. For a variety of policy reasons, the law limits or even forbids the exercise of certain rights over certain forms of property. For example, both law and contract may limit the right of an owner of real property to use his parcel as he sees fit. Owners of various forms of personal property may likewise be subject to restrictions on the time, place, and manner of their use. Limitations on the disposition of real property, while less common, may also be imposed. Finally, some types of personal property may be sold but not given away, while others may be given away but not sold, and still others may neither be given away nor sold. In each of the foregoing instances, the limitation or prohibition diminishes the bundle of rights that would otherwise attach to the property, yet what remains is still deemed in law to be a protectible property interest … The same rule applies to Moore’s interest in his own body tissue: even if we assume that s 7054.4 limited the use and disposition of his excised tissue in the manner claimed by the majority, Moore nevertheless retained valuable rights in that tissue. Above all, at the time of its excision he at least had the right to do with his own tissue whatever the defendants did with it: that is, he could have contracted with researchers and [page 34] pharmaceutical companies to develop and exploit the vast commercial potential of his tissue and its products. Defendants certainly believe that their right to do the foregoing is not barred by s 7054.4 and is a significant property right, as they have demonstrated by their deliberate concealment from Moore of the true value of his tissue, their efforts to obtain a patent on the Mo cell line, their contractual agreements to exploit this material, their exclusion of Moore from any participation in the profits, and their vigorous defence of this lawsuit. The Court of Appeal summed up the point by observing that ‘Defendants’ position that plaintiff cannot own his tissue, but that they can, is fraught with irony’. It is also legally untenable. As noted above, the majority cite no case holding that an individual’s right to develop and exploit the commercial potential of his own tissue is not a right of sufficient worth or dignity to be deemed a protectible property interest. In the absence of such authority — or of legislation to the same effect — the right falls within the traditionally broad concept of property in our law. The majority’s third and last reason for their conclusion that Moore has no cause of action for conversion under existing law is that ‘the subject matter of the Regents’ patent — the patented cell line and the products derived from it — cannot be Moore’s property’ … The majority then offer a dual explanation: ‘[t]his is because the patented cell line is factually and legally distinct from the cells taken from Moore’s body’. Neither branch of the explanation withstands analysis. [Mosk J held that patent law did not preclude Moore’s claim that he was entitled to compensation for unauthorised use of his body cells, prior to patenting of the Mo cell line.] The majority begin their analysis [of the ambit of the tort of conversion] by stressing the

obvious facts that research on human cells plays an increasingly important role in the progress of medicine, and that the manipulation of those cells by the methods of biotechnology has resulted in numerous beneficial products and treatments. Yet it does not necessarily follow that, as the majority claim, application of the law of conversion to this area ‘will hinder research by restricting access to the necessary raw materials’, that is, to cells, cell cultures, and cell lines. The majority observe that many researchers obtain their tissue samples, routinely and at little or no cost, from cell-culture repositories. The majority then speculate that ‘[t]his exchange of scientific materials, which still is relatively free and efficient, will surely be compromised if each cell sample becomes the potential subject matter of a lawsuit’ … There are two grounds to doubt that this prophecy will be fulfilled. To begin with, if the relevant exchange of scientific materials was ever ‘free and efficient’, it is much less so today. Since biological products of genetic engineering became patentable in 1980 (Diamond v Chakrabarty (1980) 447 US 303; 100 S Ct 2204; 65 L Ed 2d 144), human cell lines have been amenable to patent protection … With such patentability has come a drastic reduction in the formerly free access of researchers to new cell lines and their products: the ‘novelty’ requirement for patentability prohibits public disclosure of the invention at all times up to one year before the filing of the patent application … An even greater force for restricting the free exchange of new cell lines and their products has been the rise of the biotechnology industry and the increasing involvement of academic researchers in that industry. When scientists became entrepreneurs and negotiated with biotechnological and pharmaceutical companies to develop and exploit the commercial potential of their discoveries — as did defendants in the case at bar — layers of contractual restrictions were added to the protections of the patent law. In their turn, the biotechnological and pharmaceutical companies demanded and received exclusive rights in the scientists’ discoveries, and frequently placed those discoveries under [page 35] trade secret protection. Trade secret protection is popular among biotechnology companies because, among other reasons, the invention need not meet the strict standards of patentability and the protection is both quickly acquired and unlimited in duration … Secrecy as a normal business practice is also taking hold in university research laboratories, often because of industry pressure … Second, to the extent that cell cultures and cell lines may still be ‘freely exchanged’, for example, for purely research purposes, it does not follow that the researcher who obtains such material must necessarily remain ignorant of any limitations on its use: by means of appropriate record-keeping, the researcher can be assured that the source of the material has consented to his proposed use of it, and hence that such use is not a conversion. To achieve this end the originator of the tissue sample first determines the extent of the source’s informed consent to its use — for example, for research only, or for public but academic use, or for specific or general commercial purposes; he then enters

this information in the record of the tissue sample, and the record accompanies the sample into the hands of any researcher who thereafter undertakes to work with it … In any event, in my view whatever merit the majority’s single policy consideration may have is outweighed by two contrary considerations, that is, policies that are promoted by recognizing that every individual has a legally protectible property interest in his own body and its products. First, our society acknowledges a profound ethical imperative to respect the human body as the physical and temporal expression of the unique human persona. One manifestation of that respect is our prohibition against direct abuse of the body by torture or other forms of cruel or unusual punishment. Another is our prohibition against indirect abuse of the body by its economic exploitation for the sole benefit of another person. The most abhorrent form of such exploitation, of course, was the institution of slavery. Lesser forms, such as indentured servitude or even debtor’s prison, have also disappeared. Yet their spectre haunts the laboratories and boardrooms of today’s biotechnological research industrial complex. It arises wherever scientists or industrialists claim, as defendants claim here, the right to appropriate and exploit a patient’s tissue for their sole economic benefit — the right, in other words, to freely mine or harvest valuable physical properties of the patient’s body … A second policy consideration adds notions of equity to those of ethics. Our society values fundamental fairness in dealings between its members, and condemns the unjust enrichment of any member at the expense of another. This is particularly true when, as here, the parties are not in equal bargaining positions. In the case at bar, for example, the complaint alleges that the market for the kinds of proteins produced by the Mo cell line was predicted to exceed $3 billion by 1990. These profits are currently shared exclusively between the biotechnology industry and the universities that support that industry … There is, however, a third party to the biotechnology enterprise — the patient who is the source of the blood or tissue from which all these profits are derived. While he may be a silent partner, his contribution to the venture is absolutely crucial: as pointed out above, but for the cells of Moore’s body taken by defendants there would have been no Mo cell line at all. Yet defendants deny that Moore is entitled to any share whatever in the proceeds of this cell line. This is both inequitable and immoral. There will be such equitable sharing, if the courts recognize that the patient has a legally protected property interest in his own body and its products … [Mosk J then held that the existence of statutes permitting the sale of body parts and blood in certain circumstances, impliedly supported Moore’s view that he had property in

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his cells. Finally Mosk J referred to the actions for non-disclosure and breach of fiduciary duty and identified certain restrictions on the availability and usefulness of such action to plaintiffs in the position of Moore. In relation to the action for non-disclosure he concluded that ‘the nondisclosure cause of action (1) is unlikely to be successful in most cases, (2) fails to protect

patients’ rights to share in the proceeds of the commercial exploitation of their tissue, and (3) may allow the true exploiters to escape liability. It is thus not an adequate substitute, in my view, for the conversion cause of action’.]

1.37 Questions 1.

What is the relevance of Panelli J’s comment that ‘the particular genetic material which is responsible for the natural production of lymphokines … is no more unique to Moore than the number of vertebrae in the spine’?

2.

Do courts recognise proprietary interests only in ‘things’ which are unique?

3.

What policy issues did the majority emphasise in determining that Moore had failed to establish a cause of action in conversion? Did Mosk J consider similar policy issues? If so, why did he disagree with the majority?

4.

What adverse consequences did Panelli J suggest would result from a decision that Moore had property in his cells?

5.

Why did Panelli J suggest that a decision in favour of Moore on the ground of lack of informed consent or breach of fiduciary duty would not have adverse policy consequences?

6.

Does a person have property in his or her blood?33

7.

Suppose that X, a laboratory assistant, had removed Moore’s cells from Dr Golde’s laboratory. Would Golde have had a cause of

action in conversion against X? If so, does the case hold that no proprietary interest can exist in human cells? 8.

Panelli J suggested that questions relating to property in cells should be resolved by legislatures, rather than courts. By contrast, Mosk J argued that courts should be prepared to extend the common law to resolve the moral issues presented by the development of biotechnology. What are the advantages and disadvantages of relying on legislation to create new forms of property?

1.38

Improvements in technology have created an increasing capacity to

remove and preserve human body parts which can be used for the purposes of transplantation.34 Note also that under the Human Tissue Act 1982 (Vic) s 38(1) ‘… a person shall not sell, or agree to sell, tissue (including his own tissue) or the right to take tissue from his body’. Section 39

[page 37]

also makes it an offence to buy, agree to buy, offer to buy or hold himself or herself out as willing to buy tissue. In certain circumstances a permit may be granted to a person to purchase tissue: s 39(2).35 1.39

State legislation regulating the donation of human tissue generally

excludes foetal tissue, spermatozoa, ova and fertilised embryos. Couples whose gametes, or fertilised embryos, are stored for future use may later die,

divorce or disagree about the use of such material. A dispute arising on separation of the parties or after the death of one of them could give rise to a claim in conversion, which would require the court to decide whether a property right could exist in such material. Does the existence of a statutory provision prohibiting the sale or purchase of human tissue necessarily preclude a person whose tissue has been dealt with without his or her consent (as in Moore’s case) from bringing an action for conversion of the tissue? Consider the case of a person who cuts off their hair and sells it to a wig manufacturer. Does the manufacturer have a right to sue if the hair is stolen before the wig is made? Consider the following cases. 1.40

There is no right of property in a dead body (Haynes Case (1614) Co

Rep 113), unless it has undergone some process or application of human skill such as stuffing or embalming: Doodeward v Spence (1908) 6 CLR 406.36 In Doodeward, the appellant purchased for the purposes of public display the preserved foetus of a two-headed child, still-born some 40 years previously. Police confiscated the item, and the appellant brought an action in detinue (see 2.8) to recover it. A majority of the High Court held in favour of the appellant, Griffith CJ concluding (at 414) that ‘when a person has by the lawful exercise of work or skill so dealt with a human body or part of a human body in his lawful possession that it has acquired some attributes differentiating it from a mere human corpse awaiting burial, he acquires a right to possession of it …’. He added that this principle affords protection to ‘the many collections of anatomical and pathological specimens or preparations formed and maintained by scientific bodies’ (at 413). In Dobson v North Tyneside Health Authority [1996] 4 All ER 474 the English Court of

Appeal refused to extend this principle to the case where a brain was removed and preserved in paraffin following a post-mortem. In R v Kelly [1998] 3 All ER 741 the English Court of Appeal found that body parts unlawfully removed from the custody of the Royal College of Surgeons came within the meaning of ‘property’ in s 4 of the Theft Act 1968 (UK). The removal and preservation of these parts was achieved ‘by virtue of the application of skill, such as dissection or preservation techniques, for exhibition or teaching purposes’ (per Rose LJ at 749–50). Rose LJ added (at 750) that ‘the common law does not stand still. It may be that if, on some future occasion, the question arises the courts will hold that human body parts are capable of being property for the purposes of s 4, even without the acquisition of different attributes, if they have a use or significance beyond their mere existence. This may be so if, for example, they are intended for use in an organ transplant operation, for the extraction of DNA or, for that matter, as an exhibit in a trial’ (emphasis added).

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1.41

In Pecar v National Australia Trustees Ltd [1996] NSWSC 2518 the

plaintiff wished to establish that he was the natural child of Ivan Ulrich, who had died intestate. In order to do so, he sought an order from the Supreme Court authorising a medical expert to examine tissue of the deceased held by a pathology business. Bryson J considered the reference to ‘any property’ in rule 8(4) of Pt 25 of the Supreme Court Rules (NSW) which relates to the inspection of property for the purposes of gathering evidence. Relying on

Doodeward v Spence, he held that the retention of autopsy specimens in a paraffin block demonstrated the requisite standard of skill to give rise to property rights: ‘In my opinion the pathology specimen is property within the general meaning of that term which connotes that property has an owner’ (at 5). In Roche v Douglas [2000] WASC 146 the plaintiff sought an order to conduct tests on the tissue of Edward Rowan (deceased) whom she claimed was her father. The court’s rules (O 52 r 3(1)(a)) allow an order ‘for the purpose of enabling the proper determination of any cause or matter’ relating to ‘the taking of samples of any property’. Master Sanderson held that the human tissue was property, concluding that ‘[t]o deny that tissue samples are property, in contrast to the paraffin in which the samples are stored, would be in my view to create a legal fiction. There is no rational or logical justification for such a result’ (at 13). Can these decisions be reconciled with Moore’s case? Is Australian law different from the position in the United States? Consider the following argument. 1.42

In Edwards; Re the Estate of Edwards [2011] NSWSC 478, a woman

sought possession of her dead husband’s sperm which had been extracted from his body after his death by earlier order of the Supreme Court. The court in the later action considered the possession application. RA Hulme J held that the plaintiff, Mrs Edwards, was entitled to possession of the sperm as an object of property relying on Doodeward v Spence on the ground that removal and storage of the sperm required work and skill to preserve it (at [82]). Also, the plaintiff had the best right to it because it was removed, preserved and stored on her behalf ([86]–[91]). In Re H, AE (No 2) [2012] SASC 177, the Supreme Court of South Australia applied the reasoning of

RA Hulme J in declaring the applicant entitled to possession of her deceased husband’s sperm which had been extracted posthumously by order of the court. Compare the approach taken by the Court of Appeal of England and Wales in Yearworth v North Bristol NHS Trust [2009] 3 WLR 118, which held that sperm, stored by the trust on behalf of men undergoing chemotherapy, belonged to the men. The court relied on the Doodeward v Spence rationale that they had property rights by virtue of work and skill involved, but preferred the alternative, and broader, reason that it belonged to the men because they ‘had generated and ejaculated’ it (at [45]).37 1.43E

Proprietary Rights in Human Tissue R Magnusson in Interests in Goods, N Palmer and E McKendrick (eds), 2nd ed, 1998, Informa Publishing, 25–62 at 44

Proprietary actions such as theft and conversion are clearly appropriate to ensure that the terms of a tissue bailment are respected. In the Australian context, the terms of the bailment would limit the purposes to which donated tissue could be put to the purposes specified in human tissue legislation. Similar terms, it is submitted, would also be implied at common [page 39] law, where tissue is donated for transplantation or scientific research. In both Australia and the UK, proprietary remedies are necessary since no specific legislative offences exist for the maltreatment or destruction of validly donated tissue. To apply the ‘no property’ rule here would be to open up a cavernous regulatory vacuum which will rapidly widen as umbilical cords, frozen blood vessels, bones, joints and freeze-dried nerves (to name just a few) join blood and blood products as items of storage in tissue banks. The technology for the longer-term storage of body parts such as scalps, noses, ears, fingers and human eggs is improving steadily. Torts against the person provide no protection for the maltreatment of removed tissue, or for the use of tissue for unauthorised purposes. The tort of battery, for example, is inappropriate, since nothing which is done to removed tissue can constitute interference with the ‘person’ of the donor. Finally, although economic loss will often be negligible, this will not usually be a motivation for a person wishing to vindicate their rights.

1.44 Questions 1.

Do you agree that extending property rights is the best regulatory approach to the problem of rights over human tissue? Or is it a second-best approach in the absence of a more detailed statutory framework that specifically balances all the relevant interests?38

2.

Should human tissue, removed from patients during medical procedures, in the absence of a contrary agreement, be considered as donated to the medical institution where the procedure is performed? Would such a policy satisfactorily resolve the issues raised in Moore?

3.

Do the later Australian and British cases involve an extension or restriction of the ruling in Moore’s case?

Property rights and privacy 1.45

Courts and legislatures are often called upon to decide whether or not

people should have property rights in a novel ‘thing’ (which may be tangible or intangible). In most cases the courts refuse to create new property rights, deferring to the legislature as is consistent with the separation of powers doctrine. But in other cases they clearly have introduced property rights previously unknown to the law by incremental extension of existing principles to novel situations. The cases below illustrate the factors which may be taken into account in reaching such decisions. When reading Victoria Park Racing

and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479; 43 ALR 597 below, you should consider how judicial decisions to recognise or refuse recognition of novel proprietary interests are influenced by more general theories about the purposes and justifications for the existence of private property.

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1.46C Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479; 43 ALR 597 High Court of Australia Latham CJ: This is an appeal from a judgment for the defendants given by Nicholas J in an action by the Victoria Park Racing and Recreation Grounds Co Ltd against Taylor and others. The plaintiff company carries on the business of racing upon a racecourse known as Victoria Park. The defendant Taylor is the owner of the land near the racecourse. He has placed an elevated platform on his land from which it is possible to see what takes place on the racecourse and to read the information which appears on notice boards on the course as to the starters, scratchings, etc, and the winners of the races. The defendant Angles stands on the platform and through a telephone comments upon and describes the races in a particularly vivid manner and announces the names of the winning horse. The defendant, the Commonwealth Broadcasting Corporation, holds a broadcasting licence under the regulations made under the Wireless Telegraphy Act 1905–1936 and carries on the business of broadcasting from station 2UW. This station broadcasts the commentaries and descriptions given by Angles. The plaintiff wants to have the broadcasting stopped because it prevents people from going to the races and paying for admission. The evidence shows that some people prefer hearing about the races as seen by Angles to seeing the races for themselves. The plaintiff contends that the damage which it thus suffers gives, in all the circumstances, a cause of action … I am unable to see that any right of the plaintiff has been violated or any wrong done to him. Any person is entitled to look over the plaintiff’s fences and to see what goes on in the plaintiff’s land. If the plaintiff desires to prevent this, the plaintiff can erect a higher fence. Further, if the plaintiff desires to prevent its notice boards being seen by people from outside the enclosure, it can place them in such a position that they are not visible to such people. At sports grounds and other places of entertainment it is the lawful, natural and common practice to put up fences and other structures to prevent people who are not prepared to pay for admission from getting the benefit of the entertainment. In

my opinion, the law cannot by an injunction in effect erect fences which the plaintiff is not prepared to provide. The defendant does no wrong to the plaintiff by looking at what takes place on the plaintiff’s land. Further, he does no wrong to the plaintiff by describing to other persons, to as wide an audience as he can obtain, what takes place on the plaintiff’s ground. The court has not been referred to any principle of law which prevents any man from describing anything which he sees anywhere if he does not make defamatory statements, infringe the law as to offensive language etc, break a contract, or wrongfully reveal confidential information. The defendants did not infringe the law in any of these respects … It has been argued that by the expenditure of money the plaintiff has created a spectacle and that it therefore has what is described as a quasi-property in the spectacle which the law will protect. The vagueness of this proposition is apparent upon its face. What it really means is that there is some principle (apart from contract or confidential relationship) which prevents people in some circumstances from opening their eyes and seeing something and then describing what they see. The court has not been referred to any authority in English law which supports the general contention that if a person chooses to organise an entertainment or to do anything else which other persons are able to see, he has a right to obtain from a court an order that they shall not describe to anybody what they see. If the claim depends upon interference with a proprietary right it is difficult to see how it can be material to consider whether the interference is large or small — whether the description is communicated to many [page 41] persons by broadcasting or by a newspaper report, or only to a few persons in conversation or correspondence. Further, as I have already said, the mere fact that damage results to a plaintiff from such description cannot be relied upon as a cause of action. I find difficulty in attaching any precise meaning to the phrase ‘property in a spectacle’ … No authority has been cited to support such a proposition … Dixon J: The foundation of the plaintiff company’s case is no doubt the fact that persons who otherwise would attend race meetings stay away because they listen to the broadcast made by the defendant Angles from the tower overlooking the course. Beginning with the damage thus suffered and with the repetition that may be expected, the plaintiff company says that, unless a justification for causing it exists, the defendants or some of them must be liable, in as much as it is their unauthorised acts that inflict the loss. It is said that to look for a definite category or form of action into which to fit the plaintiff’s complaint is to reverse the proper order of thought in the present stage of the law’s development. In such a case it is for the defendants to point to the ground upon which the law allows them so to interfere with the normal course of the plaintiff’s business as to cause damage. There is, in my opinion, little to be gained by inquiring whether in English law the foundation of a delictual liability is unjustifiable damage or breach of specific duty. The law of tort has fallen into great confusion, but, in the main, what acts and omissions result in responsibility and what do not are matters defined by long-established rules of

law from which judges ought not wittingly to depart and no light is shed upon a given case by large generalisations about them. We know that, if upon such facts as the present the plaintiff could recover at common law, his cause of action must have its source in an action upon the case and that in such an action, speaking generally, damage was the gist of the action. There is perhaps, nothing wrong either historically or analytically in regarding an action for damage suffered by words, by deceit or by negligence as founded upon the damage and treating the unjustifiable conduct of the defendant who caused it as [a] matter of inducement. But, whether his conduct be so described or be called more simply a wrongful act or omission, it remains true that it must answer a known description, or, in other words, respond to the tests of criteria laid down by establishing principle. The plaintiff’s counsel relied in the first instance upon an action on the case in the nature of nuisance. The premises of the plaintiff are occupied by it for the purpose of a racecourse. They have the natural advantage of not being overlooked by any surrounding heights or raised ground … The feature in which the plaintiff finds the wrong of nuisance is the impairment or deprivation of the advantages possessed by the plaintiff’s land as a racecourse by means of a non-natural and unusual use of the defendants’ land. This treatment of the case will not, I think, hold water. It may be conceded that interferences of a physical nature, as by fumes, smell and noise, are not the only means of committing a private nuisance. But the essence of the wrong is the detraction from the occupier’s enjoyment of the natural rights belonging to, or in the case of easements, of the acquired rights annexed to, the occupation of land. The law fixes those rights. Diversion of custom from a business carried on upon the land may be brought about by noise, fumes, obstruction of the frontage or any other interference with the enjoyment of recognised rights arising from the occupation of property and, if so, it forms a legitimate head of damage recoverable for the wrong; but it is not the wrong itself. The existence or the use of a microphone upon neighbouring land, is, of course, no nuisance. If one, who could not see the spectacle, took upon himself to broadcast a fictitious account of the races he might conceivably render himself liable in a form of action in which his falsehood played a part, but he would commit no nuisance. It is the [page 42] obtaining a view of the premises which is the foundation of the allegation. But English law is, rightly or wrongly, clear that the natural rights of an occupier do not include freedom from the view and inspection of neighbouring occupiers and of other persons who enable themselves to overlook the premises. An occupier of land is at liberty to exclude his neighbour’s view by any physical means he can adopt. But while it is no wrongful act on his part to block the prospect from adjacent land, it is no wrongful act on the part of any person on such land to avail himself of what prospect exists or can be obtained. Not only is it lawful on the part of those occupying premises in the vicinity to overlook the land from any natural vantage point, but artificial erections may be made which destroy the privacy existing under natural conditions. In Chandler v Thompson (1811) 3 Camp 80 at 82; 170 ER 1312 at 1313, Le Blanc J said that, although an action for opening a window to disturb the plaintiff’s privacy was to be read of in the books, he had never known such an action maintained, and when he was in the common

pleas he had heard it laid down by Eyre LCJ that such an action did not lie and that the only remedy was to build on the adjoining land opposite to the offensive window. After that date there is, I think, no trace in the authorities of any doctrine to the contrary. In Johnson v Wyatt (1863) 2 De G J & S 18 at 27; 46 ER 281 at 284, Turner LJ said: ‘That the windows of the house may be overlooked, and its comparative privacy destroyed, and its value thus diminished by the proposed erection … are matters with which, as I apprehend, we have nothing to do’, that is, they afford no ground for an injunction … This principle formed one of the subsidiary reasons upon which the decision of the House of Lords was based in Tapling v Jones (1865) 11 HLC 290 at 317; 11 ER 1344 at 1355. Lord Chelmsford said: … the owner of a house has a right at all times … to open as many windows in his own house as he pleases. By the exercise of the right he may materially interfere with the comfort and enjoyment of his neighbour; but of this species of injury the law takes no cognisance. It leaves everyone to his self-defence against an annoyance of this description; and the only remedy in the power of adjoining owner is to build on his own ground, and so to shut out the offensive windows. When this principle is applied to the plaintiff’s case it means, I think, that the essential element upon which it depends is lacking. So far as freedom from view or inspection is a natural or acquired physical characteristic of the site, giving it value for the purpose of the business or pursuit which the plaintiff conducts, it is a characteristic which is not a legally protected interest. It is not a natural right for breach of which a legal remedy is given, either by an action in the nature of nuisance or otherwise. The fact is that the substance of the plaintiff’s complaint goes to interference, not with its enjoyment of the land, but with the profitable conduct of its business. If English law had followed the course of development that has recently taken place in the United States, the ‘broadcasting rights’ in respect of the races might have been protected as part of the quasi-property created by the enterprise, organisation and labour of the plaintiff in establishing and equipping a racecourse and doing all that is necessary to conduct race meetings. But courts of equity have not in British jurisdictions thrown the protection of an injunction around all the intangible elements of value, that is, value in exchange, which may flow from the exercise by an individual of his powers or resources whether in the organisation of a business or undertaking or the use of ingenuity, knowledge, skill or labour. This is sufficiently evidenced by the history of the law of copyright and by the fact that exclusive right to invention, trade marks, designs, trade name and reputation are dealt with in English law as special heads of protected interests and not under a wide generalisation. [page 43] In dissenting from a judgment of the Supreme Court of the United States by which the organised collection of news by a news service was held to give it in equity a quasiproperty protected against appropriation by rival news agencies, Brandeis J gave reasons which substantially represent the English view and he supported his opinion by a citation of much English authority: International News Services v Associated Press (1918) 248

US 215; 63 L Ed 211. His judgment appears to me to contain an adequate answer both upon principle and authority to the suggestion that the defendants are misappropriating or abstracting something which the plaintiff has created and alone is entitled to turn to value. Briefly, the answer is that it is not because the individual has by his efforts put himself in a position to obtain value for what he can give that 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 … In my opinion, the right to exclude the defendants from broadcasting a description of the occurrences they can see upon the plaintiff’s land is not given by law. It is not an interest falling within any category which is protected at law or in equity. I have had the advantage of reading the judgment of Rich J but I am unable to regard the considerations which are there set out as justifying what I consider amounts not simply to a new application of settled principle but to the introduction into the law of new doctrine. Evatt J [dissenting]: … Here the plaintiff contends that the defendants are guilty of the tort of nuisance. It cannot point at once to a decisive precedent in its favour, but the statements of general principle in Donoghue v Stevenson are equally applicable to the tort of nuisance. A definition of the tort of nuisance was attempted by Sir Frederick Pollock (Indian Civil Wrongs Bill, c VII s 55), who said: Private nuisance is the using or authorising the use of one’s property, or of anything under one’s control, so as to injuriously affect an owner or occupier of property — (a) by diminishing the value of that property; (b) by continuously interfering with his power of control or enjoyment of that property; (c) by causing material disturbance or annoyance to him in his use or occupation of that property. What amounts to material disturbance or annoyance is a question of fact to be decided with regard to the character of the neighbourhood, the ordinary habits of life and reasonable expectations of persons there dwelling, and other relevant circumstances. At an earlier date, Pollock CB had indicated the danger of too rigid a definition of nuisance. He said (Bamford v Turnley (1862) 3 B & S 66 at 79; 122 ER 27 at 31; [1861–73] All ER Rep 706 at 710): I do not think that the nuisance for which an action will lie is capable of any legal definition which will be applicable to all cases and useful in deciding them. The question so entirely depends on the surrounding circumstances — the place where, the time when, the alleged nuisance, what, the mode of committing it, how, and the duration of it, whether temporary or permanent. In the present case, the plaintiff relies upon all the surrounding circumstances. Its use and occupation of land is interfered with, its business profits are lessened, and the value of the land is diminished or jeopardised by the conduct of the defendants. The defendants’ operations are conducted to the plaintiff’s detriment, not casually but systematically, not temporarily

[page 44] but indefinitely; they use a suburban bungalow in an unreasonable and grotesque manner, and do so in the course of a gainful pursuit which strikes at the plaintiff’s profitable use of its land, precisely at the point where the profit must be earned, viz the entrance gates. Many analogies to the defendants’ operations have been suggested, but few of them are applicable. The newspaper which is published a considerable time after a race has been run competes only with other newspapers, and can have little or no effect upon the profitable employment of the plaintiff’s land. A photographer overlooking the course and subsequently publishing a photograph in a newspaper or elsewhere does not injure the plaintiff. Individuals who observe the racing from their own homes or those of their friends could not interfere with the plaintiff’s beneficial use of its course. On the other hand, the defendants’ operations are fairly comparable with those who, by the employment of moving picture films, television and broadcasting would convey to the public generally (i) from a point of vantage specially constructed; (ii) simultaneously with the actual running of the races; (iii) visual, verbal or audible representations of each and every portion of the races. If such a plan of campaign were pursued, it would result in what has been proved here, viz actual pecuniary loss to the occupier of the racecourse and a depreciation in the value of his land, at least so long as the conduct is continued. In principle, such a plan may be regarded as equivalent to the erection by a landowner of a special stand outside a cricket ground for the sole purpose of enabling the public to witness the cricket match at an admission price which is lower than that charged to the public bodies who own the ground, and, at great expense, organise the game. In concluding that, in such cases, no actionable nuisance would be created, the defendants insist that the law of England does not recognise any general right of privacy. That is true, but it carries the defendants no further, because it is not merely an interference with privacy which is here relied upon, and it is not the law that every interference with private property must be lawful. The defendants also say that the law of England does not forbid one person to overlook the property of another. That also is true in the sense that the fact that one individual possesses the means of watching, and sometimes watches what goes on on his neighbour’s land, does not make the former’s action unlawful. But it is equally erroneous to assume that under no circumstances can systematic watching amount to a civil wrong, for an analysis of the cases of J Lyons & Sons v Wilkins [1899] 1 Ch 255, and Ward Locke & Co (Ltd) v Operative Printers’ Assistants’ Society (1906) 22 TLR 327, indicates that under some circumstances, the common law regards ‘watching and besetting’ as a private nuisance, although no trespass to land has been committed … In the United States, in the case of International News Services v Associated Press (1918) 248 US 215 at 255; 63 L Ed 211, Brandeis J regarded the ‘Our Dogs’ case (Sports and General Press Agency Ltd v ‘Our Dogs’ Publishing Co Ltd [1916] 2 KB 880) as illustrating a principle that ‘news’ is not property in the strict sense, and that a person who creates an event or spectacle does not thereby entitle himself to the exclusive right of first publishing the ‘news’ or photograph of the event or spectacle. But it is an extreme application of the English cases to say that because some overlooking is permissible, all overlooking is necessarily lawful. In my opinion, the decision in the International News

Services case evidences an appreciation of the function of law under modern conditions, and I believe that the judgments of the majority and of Holmes J commend themselves as expositions of principles which are not alien to English law. If I may borrow some phrases from the majority decision, I would say that in the present case it is indisputable that the defendant broadcasting company had ‘endeavoured to reap where it has not sown’, and that it has enabled all its listeners to appropriate to themselves [page 45] ‘the harvest of those who have not sown’ … The fact that here, as in the International News Service case, the conduct of the defendants cannot be regarded as honest should not be overlooked if the statement of Lord Esher is still true that ‘any proposition the result of which would be to show that the common law of England is wholly unreasonable and unjust, cannot be part of the common law of England’ (quoted in Donoghue v Stevenson [1932] AC 562 at 608–9; [1932] All ER Rep 1 at 25). The fact that there is no previous English decision which is comparable to the present does not tell against the plaintiff because not only is simultaneous broadcasting or television quite new, but, so far as I know, no one has, as yet, constructed high grandstands outside recognised sports grounds for the purpose of viewing the sports and of enriching themselves at the expense of the occupier … [McTiernan J delivered a judgment agreeing with the Chief Justice and Dixon J. Rich J agreed with Evatt J.]

1.47 Questions 1.

Of what relevance is the Victoria Park case to a discussion of the nature of property?

2.

Can it be argued that the effect of a decision in favour of the plaintiff would have been to create a proprietary interest in a spectacle, notwithstanding that the dissenters chose to rely on the tort of nuisance?

3.

Do you find the same difficulty as Latham CJ ‘in attaching any

precise meaning to the phrase “property in a spectacle”’? 4.

Did Latham CJ have difficulty in finding that a spectacle could be owned because of the practical problems the plaintiff would have had in preventing all persons from overlooking the racecourse? The converse situation to that arising in the Victoria Park case is where a landowner seeks to protect obstruction of a view enjoyed from his or her property.39

5.

There seems to be a basic difference between the judicial techniques displayed in the judgments of Latham CJ and Dixon J and those utilised by Rich and Evatt JJ. How would you describe the difference? Was Dixon J precluded by authority from reaching a decision in favour of the plaintiff? (Compare the views of Evatt J.) If not, why did Dixon J decline to accept the American doctrine of ‘quasi-property’? Was he influenced by a particular view of the role of courts in making new law? In evaluating the approach of Dixon J it is important to note that even proponents of judicial caution concede that courts are often faced with the problem of deciding whether or not to ‘recognise’ novel proprietary interests.

[page 46]

6.

Evatt J characterises the defendants’ actions as ‘unreasonable’, ‘grotesque’ and ‘dishonest’. Do you agree with this description of the defendants’ conduct? Evatt J also relies on the fact that the

defendants had endeavoured to ‘reap where they had not sown’ and had appropriated the harvest of those who had sown. 7.

What principle would have supported a decision in favour of the plaintiff in Victoria Park? Is the following argument satisfactory? Any expenditure of mental or physical effort, as a result of which there is created an entity, whether tangible or intangible, vests in the person who brought the entity into being, a proprietary right to the commercial exploitation of that entity, which right is separate and independent from the ownership of that entity: Libling, ‘Property in Intangibles’ (1978) 94 LQR 103, 104.

1.48

Traditionally, the action for passing off protected goodwill and

business reputation by conferring a right of action where the defendant used a trade name or get-up in order to lead purchasers to believe the goods or services were those of the plaintiff. More recently, the action for passing off has expanded considerably. A remedy is now available where the defendant has not passed off goods or services as those of the plaintiff, but has represented that they have the qualities or attributes of the plaintiff’s product.40 Could the appellant, Victoria Park, have brought an action against Taylor for passing off the races arranged by the plaintiff as the defendant’s product? 1.49

The Victoria Park case is commonly cited as authority for the

proposition that English (and therefore Australian) law does not recognise a general right of privacy; although, as Evatt J pointed out, it is difficult to regard the plaintiff’s claim in that case as motivated by a desire to protect its ‘privacy’. Even if Australian law does not provide a general remedy for breach

of privacy, there are a number of causes of action which may provide some protection for those whose privacy has been invaded. Where the invasion of privacy takes the form of an unlawful intrusion on a person’s land, an action in trespass will be available. In Emcorp Pty Ltd v ABC [1988] 2 Qd R 169, Williams J in the Supreme Court of Queensland issued an interlocutory injunction restraining the Australian Broadcasting Corporation (ABC) from televising a film made by ABC employees working for ‘The Investigators’ who trespassed on the plaintiff’s business premises to obtain information. In Lincoln Hunt Australia Pty Ltd v Willesee (1986) 4 NSWLR 457, Young J in the Supreme Court of New South Wales held that an injunction may be granted to restrain the broadcast of film footage taken in circumstances of trespass, but only if the publication would be unconscionable and would cause irreparable damage to the plaintiff (at 463–4). In Brighten Pty Ltd v Nine Network Australia Pty Ltd [2009] NSWSC 319, Johnson J refused to grant an injunction to stop the broadcasting of photographs of a resort at which the film crew had stayed ‘under cover’ and complaints about the premises made by other guests. The authorities were reviewed in the following case.

[page 47]

1.50C

Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2002) 208 CLR 199; 185 ALR 1 High Court of Australia

[The respondent was a processor of brushtail possums. Members of an animal rights group

trespassed on land owned by the respondent for the purposes of filming activities conducted in the course of the respondent’s business. The video recording showed scenes of animals in distress, and caged in close confinement to each other. The recording was passed to the ABC who prepared to use excerpts from it in a ‘Four Corners’ documentary. The respondent sought to restrain the showing of the program by injunction. The ABC appealed to the High Court from a judgment in favour of the respondent.] Gleeson CJ: The respondent invited this court to depart from old authority; declare that Australian law now recognises a tort of invasion of privacy; hold that it is available to be relied upon by corporations as well as individuals; and conclude that this is the missing cause of action for which everyone in the case has so far been searching. If the activities were private, then the law of breach of confidence is adequate to cover the case. I would regard images and sounds of private activities, recorded by the methods employed in the present case, as confidential. There would be an obligation of confidence upon the persons who obtained them, and upon those into whose possession they came, if they knew, or ought to have known, the manner in which they were obtained … But the lack of precision of the concept of privacy is a reason for caution in declaring a new tort of the kind for which the respondent contends. Another reason is the tension that exists between interests in privacy and interests in free speech … Part of the price we pay for living in an organised society is that we are exposed to observation in a variety of ways by other people. There is no bright line which can be drawn between what is private and what is not. Use of the term ‘public’ is often a convenient method of contrast, but there is a large area in between what is necessarily public and what is necessarily private. An activity is not private simply because it is not done in public. It does not suffice to make an act private that, because it occurs on private property, it has such measure of protection from the public gaze as the characteristics of the property, the nature of the activity, the locality, and the disposition of the property owner combine to afford. Certain kinds of information about a person, such as information relating to health, personal relationships, or finances, may be easy to identify as private; as may certain kinds of activity, which a reasonable person, applying contemporary standards of morals and behaviour, would understand to be meant to be unobserved. The requirement that disclosure or observation of information or conduct which would be highly offensive to a reasonable person of ordinary sensibilities is in many circumstances a useful practical test of what is private … However, the foundation of much of what is protected, where rights of privacy, as distinct from rights of property, are acknowledged, is human dignity … The problem for the respondent is that the activities secretly observed and filmed were not relevantly private. Of course, the premises on which those activities took place were private in a proprietorial sense. And, by virtue of its proprietary right to exclusive possession of the premises, the respondent had the capacity (subject to the possibility of trespass or other surveillance) to grant or refuse permission to anyone who wanted to observe, and record, its operations. The same can be said of any landowner, but it does not make everything that the owner does on the land a private act. Nor does an act become private simply because the owner

of land would prefer that it were unobserved. The reasons for such preference might be personal, or financial. They might be [page 48] good or bad. An owner of land does not have to justify refusal of entry to a member of the public, or of the press. The right to choose who may enter, and who will be excluded, is an aspect of ownership. It may mean that a person who enters without permission is a trespasser. But that does not mean that every activity observed by the trespasser is private … If the appellant, without itself being complicit in impropriety or illegality, obtains information which it regards as newsworthy, informative, or entertaining, why should it not publish. It is, of course, subject to any relevant statute law, including criminal law, and to the law of defamation, breach of confidence, negligence, and any other potential liability in tort or contract. But we have arrived at this point in the argument because of the respondent’s inability to point to any specific legal inhibition on publication. The respondent must explain why the appellant is bound in conscience not to publish; and, bearing in mind the consequences of such a conclusion for the free flow of information, it is not good enough to say that any person who fails to see this dictate of conscience is merely displaying moral obtuseness … Next, reliance was placed upon the act of trespass. Again the difficulty is to bridge the gap between the trespasser’s tort and the appellant’s conscience. There is judicial support for the proposition that the trespassers, if caught in time, could have been restrained from publishing the film. [His Honour referred to dicta of Young J in Lincoln Hunt v Willessee.] If, in the present case, the appellant had been a party to the trespass, I would give an affirmative answer to the question [to grant an injunction restraining publication], based on breach of confidence, provided that the activities filmed were private … A film of a man in his underpants in his bedroom would ordinarily have the necessary quality of privacy to warrant the application of the law of breach of confidence. Indeed, the reference to the gratuitously humiliating nature of the film [as was considered in Donnelly v Amalgamated Television Services Pty Ltd (1998) 45 NSWLR 590] ties in with the first of the four categories of privacy adopted in United States law, and the requirement that the intrusion upon seclusion be highly offensive to a reasonable person. I regard the law of breach of confidence as providing a remedy, in a case such as the present, if the nature of the information obtained by the trespasser is such as to permit the information to be regarded as confidential. But, if that condition is not fulfilled, then the circumstance that the information was tortiously obtained in the first place is not sufficient to make it unconscientious of a person into whose hands that information later comes to use it or publish it. The consequences of a proposition are too large. [Gaudron, Gummow, Hayne, and Kirby JJ agreed that the appeal be allowed. Gummow and Hayne JJ (Gaudron J agreeing) rejected the suggestion that the High Court in Victoria Park held that the tort of invasion of privacy was unknown to Australian law: ‘Victoria Park does not stand

in the path of the development of such a cause of action (of invasion of privacy)’: CLR 248–9; ALR 31. Callinan J expressed a similar opinion, preferring the reasoning of Rich J in Victoria Park to that of the majority. He added that the case would be decided differently today: see CLR 320–3; ALR 89–91.]

1.51 Questions 1.

Would Gleeson CJ have reached a different conclusion in this case if the trespass had been committed by the ABC?

2.

Should a difference be drawn between the trespasser and the broadcaster? In what circumstances might it be appropriate to do so?

[page 49]

3.

Does the High Court’s decision fail to give appropriate protection to the respondent’s proprietary rights?

4.

Is breach of confidence, as Gleeson CJ suggests, the appropriate doctrine to protect privacy?41

1.52

In Grosse v Purvis [2003] QDC 151, Skoien DCJ held the defendant

liable in tort for invasion of privacy for recurrent acts of harassment of the plaintiff over a period of many years which amounted to stalking. His Honour reasoned as follows:

The starting point for an analysis of the relevant elements of a possible tort of invasion of privacy is the decision of the High Court in Australian Broadcasting Corporation v Lenah Game Meat Pty Ltd, (2002) 208 CLR 199 … [I]n my view within the individual judgments certain critical propositions can be identified with sufficient clarity to found the existence of a common law cause of action for invasion of privacy … The development by courts in other common law jurisdictions of a common law claim for invasion of privacy was considered useful in forming the development of this area of law in Australia by Gummow and Hayne JJ, (and thus Gaudron J) at paras 112–119 and Callinan J at paras 325–327. In particular each of those Justices referred to the judgment of the English Court of Appeal in Douglas v Hello! Ltd [2001] QB 967 in which each of the three Justices of Appeal strongly suggested that in England the right of an individual person to privacy was a right protected by the civil law. The Court made clear that the time was now right for consideration as to how and to what extent privacy should be protected at common law in Australia. See the judgments of Gleeson CJ at para 40 (‘the law should be more astute than in the past to identify and protect interests of a kind which fall within the concept of privacy’), of Gummow and Hayne JJ (and Gaudron J) at para 132, and of Callinan J at para 335. At para 332 Callinan J said ‘… principles for an Australian tort of privacy … need to be worked out on a case by case basis in a distinctly Australian context.’ See also Gummow and Hayne JJ at para 124. Finally, some members of the Court elucidated certain matters that would constitute an unacceptable invasion of privacy, which are useful to mould the formulation of this common law right. More than 15 years ago, Young J in Bathurst City Council v Saban (1985) 2 NSWLR 704 at 708 recognised conduct which would apply by analogy to the instant case as being actionable notwithstanding the decision in Victoria Park … It is a bold step to take, as it seems, the first step in this country to hold that there can be a civil action for damages based on the actionable right of an individual person to privacy. But I see it as a logical and desirable step. In my view there is such an actionable right. Mr Curran rightly pointed out the difficulties in taking the step. What are the essential elements of the cause of action? Are there any special defences which should be allowed? It is not my task nor my intent to state the limits of the cause of action nor any special defences other than is necessary for the purposes of this case. In my view the essential elements would be: a)

a willed act by the defendant,

b)

which intrudes upon the privacy or seclusion of the plaintiff,

[page 50]

c)

in a manner which would be considered highly offensive to a reasonable person of ordinary sensibilities,

d)

and which causes the plaintiff detriment in the form of mental psychological or emotional harm or distress or which prevents or hinders the plaintiff from doing an act which she is lawfully entitled to do. Clearly acts of the type specified in s 359B(c) of the Code [the Queensland Criminal Code]

would be actionable behaviour. I have found the defendant to have committed many of such acts, beginning in 1994. The suffering of embarrassment, hurt, distress and, a fortiori, PTSD would be actionable detriment as would enforced changes of lifestyle caused by the intrusion. I have found that the plaintiff has suffered such detriment … It seems to me that a defence of public interest should be available (see Lenah at para 34). No such concept was involved in this case.

1.53

In Hosking v Runting [2005] NZLR 1 the appellants, a celebrity

couple in New Zealand, brought an action on behalf of their 18-month-old daughter who was photographed in a public place without permission, claiming an unlawful invasion of privacy. The New Zealand Court of Appeal approved Gleeson CJ’s comments in Lenah Game Meats, extracted above, in favour of protecting against disclosures that have ‘the necessary quality of privacy to warrant the application of the law of breach of confidence’ and ‘that the intrusion upon seclusion be highly offensive to a reasonable person’. But they preferred to describe the cause of action as a tort of privacy rather than breach of confidence on the ground that the latter action was more appropriately confined to circumstances where information was confided in another person who later breached confidence. An action to protect privacy, by contrast, renders that particular requirement irrelevant. According to Gault P and Blanchard J (at [117]–[118]): The scope of a cause, or causes, of action protecting privacy should be left to incremental development by future courts. The elements of the tort as it relates to publicising private information set down by Nicholson J in P v D provide a starting point, and are a logical development of the attributes identified in the United States jurisprudence and adverted to in

judgments in the British cases. In this jurisdiction it can be said that there are two fundamental requirements for a successful claim for interference with privacy: 1.

The existence of facts in respect of which there is a reasonable expectation of privacy; and

2.

Publicity given to those private facts that would be considered highly offensive to an objective reasonable person. No court can prescribe all the boundaries of a cause of action in a single decision, nor would

such an approach be desirable. The cause of action will evolve through future decisions as courts assess the nature and impact of particular circumstances. However, some general comments may be useful. First, we emphasise that at this point we are concerned only with the third formulation of the privacy tort identified by Prosser and developed in the United States cases: wrongful publicity given to private lives. We need not decide at this time whether a tortious remedy should be available in New Zealand law for unreasonable intrusion into a person’s solitude or seclusion. In many instances this aspect of privacy will be protected by the torts of nuisance or trespass or by laws against harassment, but this may not always be the case. Trespass may be of limited value as an action to protect against information obtained surreptitiously. Long lens photography, audio surveillance and video surveillance now mean that intrusion is possible without a trespass being committed.

[page 51]

Tipping J concurred. Keith and Anderson JJ dissented on this point, concluding that the introduction of this new tort was unnecessary, and would have a chilling effect on freedom of expression. They argued that the existing law, including the law of trespass, provided sufficient protection of privacy. The court unanimously rejected the appellants’ claim that their privacy had been wrongfully invaded in this instance. The court held that the appellants could not have a reasonable expectation of privacy in public places. Moreover, the publication of the image of the appellants’ daughter could not reasonably

be held to have affected her welfare or to concern any aspect of her private life, if it is unaccompanied by any private details or material that might embarrass or inconvenience the child. The plaintiff also failed because of being unable to override the public interest in publication in Andrews v Television NZ [2009] 1 NZLR 220 where footage of car accident victims was later shown in a program on rescuers. The court held that the material was private but not sufficiently sensitive or humiliating to make publication offensive to the reasonable person. An important factor in the development of the United Kingdom jurisprudence in this area is the European Convention on Human Rights, art 8(1) of which imposes a ‘right to respect’ for one’s private and family life and one’s home, and art 10, concerning freedom of expression. In the absence of a common law tort of invasion of privacy, English courts have responded to the Convention by extending the action for breach of confidence. As Lord Hoffman said in Campbell v MGN Ltd [2004] 2 WLR 1232 at [14]–[16]: Now the law imposes a ‘duty of confidence’ whenever a person receives information he knows or ought to know is fairly and reasonably to be regarded as confidential … Information about an individual’s private life would not, in ordinary usage, be called ‘confidential’. The more natural description today is that such information is private. The essence of the tort is better encapsulated now as misuse of private information.

In 2014, the Australian Law Reform Commission (ALRC) recommended that victims of serious invasions of privacy should be able to obtain redress by the provision of a statutory tort of privacy.42 The ALRC observed that Australia was virtually alone among major common law jurisdictions in not recognising a cause of action for privacy. Although the ALRC’s proposal was

drafted largely to deal with privacy issues arising from new technologies, the proposal was strongly opposed by media organisations who saw it as a threat to press freedom.43

1.54 Questions 1.

How, if at all, does the development of the tort of invasion of privacy bear on property rights?

2.

Would the law as expressed by Skoien DCJ have made a difference to the result if applicable to the earlier cases of Victoria Park or Lenah?

3.

Is the approach of the New Zealand Court of Appeal preferable to that of the High Court in Lenah Game Meats?

[page 52]

4.

Would the tort of invasion of privacy as articulated in Grosse v Purvis and Hosking have assisted the respondent in Lenah?

5.

Do you agree with Keith and Anderson JJ that the existing law, including the law of trespass, affords a better balance of the relevant competing values and policies?

6.

Are human rights considerations relevant to the development of the tort? Consider this question in light of the discussion of property and human rights at 1.64ff below.

Property and the right to work 1.55

The ability that one has acquired by reason of education, the

registration by a competent authority of a level of professional skill or trade, or the capacity to exercise physical skills are key determinants of wealth and property. For that reason such qualifications and abilities are of enormous financial as well as personal value. But does this mean that they are property rights? Consider the following cases. 1.56C

Dorman v Rogers (1982) 148 CLR 365 High Court of Australia

[A disciplinary tribunal established under s 29 of the Medical Practitioners Act 1938 (NSW) directed that the name of a medical practitioner be removed from the register of practitioners. An appeal by the practitioner to the Court of Appeal Division of New South Wales was dismissed. He then appealed to the High Court. At the time of the tribunal’s direction Dorman was employed as a senior medical officer by the State Rail Authority of New South Wales. The respondents, who were members of the tribunal, objected to the competency of the appeal.] Gibbs CJ: It was contended on behalf of the appellant that the proceedings ‘involve directly or indirectly a claim, demand or question to or respecting any property or any civil right amounting to or of the value of $20,000 or upwards’ within the meaning of s 35(3)(b) of the Judiciary Act, and that an appeal to this Court therefore lies as of right. It was submitted that the proceedings involve the right of the appellant to practise as a medical practitioner, and that the value of that right to him exceeds $20,000. In fact the appellant is employed as a senior medical officer by the State Rail Authority of New South Wales at a salary which is at present $33,761 per annum. He has been employed in that position for some years, and might have expected to remain in it for some years more. However, if his name is not restored to the register, his employment will, it was said, be terminated. It was submitted that the salary which he would have received in that position would have accrued from the exercise of the right to practise and provides a measure of the value of that right. It was held by this Court in Clyne v NSW Bar Association that no appeal lay as of right from an order striking the name of the appellant off the roll of barristers, notwithstanding that the net income of the appellant from his practice had been, and was likely to be in future, greater than the amount specified in s 35 of the Judiciary Act. The Court said of

the order of the Supreme Court in that case (5): ‘There is no “property” that can be said to be involved, and no civil right capable of being valued.’ That decision governs the present case, and in [page 53] my opinion it was correct. It proceeds on the ground that a right to practise a profession is incapable of valuation. It is true that a person who has a right to practise a profession may earn considerable sums from the exercise of the right, and that many, if not most, would suffer financially if deprived of the right. But what is valuable is the person’s own earning capacity, which is something personal to him. The right to practise 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. One man, who has a right to practise, may, because of his own imperfections or misfortune, earn less than he could have obtained from unskilled employment. Another, who has earned a substantial income from practising his profession, may, if he is deprived of the right to practise, earn an even larger income from some other occupation. In other cases the deprivation of the right to practise may not affect the existing employment of the person concerned in any way. In the present case, it may prove possible for the State Rail Authority to continue to employ the appellant in a different capacity. One may venture to hope that such a course, which might greatly assist the appellant in his rehabilitation, may prove convenient to the Authority. All these things support the conclusion reached in Clyne v NSW Bar Association that a right to practise is in itself not capable of being valued for the purposes of s 35 … Stephen J: Registration as a medical practitioner under the Medical Practitioners Act is essentially a matter of mere certification because it does no more than attest the possession by the practitioner of certain qualities regarded as necessary for those who are to practise medicine. This character of registration under the Medical Practitioners Act, as a standing certification of the possession of qualities regarded as requisite to the practice of medicine, stands in high contrast to those licences and permits, the holding of which authorizes engagement in some trade or occupation, entry to which is controlled otherwise than merely by reference to the personal qualifications of applicants. In the case of such licences and permits the law, for a variety of policy reasons, limits the number of entrants, thereby creating a monopoly, shared among the permitted entrants; the operation of taxis, the conduct of hotels or lotteries and the growing of certain primary products where quota limits on production exist are all instances of this. In such cases rights of entry, made valuable by their scarcity, are conferred and are themselves capable of exploitation because of their scarcity value. Registration under the Medical Practitioners Act of itself possesses no such value, it merely certifies the possession of necessary personal qualities. It is only by employing those qualities, and not at all from the exploitation of any share of a monopoly in a particular activity, that a medical practitioner derives economic advantage. He may, popularly but inaccurately, be said to share in a monopoly but that will only be because relatively few possess the personal qualities which the law requires as a prerequisite to practise. The distinction between the two emerges most clearly when transferability is considered. Registration which is merely

certification of the possession of personal qualities is 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 of such transfer. It follows that whatever loss may be suffered following the deregistration of a medical practitioner is no measure of the value of his registration but only reflects the monetary effect of the loss of one or more of those personal qualities which doctors are required to possess if they are to engage in the practice of their profession. It does not flow from any right, civil or otherwise … [Aickin, Wilson, Mason and Brennan JJ agreed.]

[page 54]

1.57

In Forbes v New South Wales Trotting Club (1979) 25 ALR 1 the

plaintiff was warned off racecourses by the defendant. He was a professional punter. He brought an action challenging the order, inter alia, on the ground that he had a right to work, which the defendants were unlawfully preventing him from exercising. The High Court by majority held that he did not have a right to work enforceable against the respondents. However, the court held that where the club made such a decision, it could not do so arbitrarily in breach of its own Rules of Trotting. As we have seen above (1.22) a decree of specific performance will not be granted as a remedy for a breach of a contract of employment. Is this case further proof that the right to work is not a property right? When a court emphasises the power to restrain the exercise of private property rights in cases where owners wield significant power, does this mean that the person in whose favour those rights are granted has acquired a proprietary right?

PROPERTY RIGHTS AND CIVIL RIGHTS 1.58

The development of the law of modern societies is marked by the

extension of political and civil rights to all citizens. These rights are of a different character to property rights: they are rights to participate in public life, rather than rights to exclude others from the enjoyment of things. It is important to emphasise that the emergence of modern societies is reflected in legal classifications by the separation of political rights on the one hand, and property rights on the other. On many occasions civil and political rights will be in conflict with property rights. Courts are frequently required to balance these various sets of rights. The following case demonstrates some of the emerging legal principles. 1.59C

Davis v Commonwealth (1988) 166 CLR 79; 82 ALR 633 High Court of Australia

[The plaintiffs produced shirts with designs on them ‘bearing a discernible similarity’ to designs owned by the defendants under the Australian Bicentennial Authority Act 1980 (Cth). The shirts contained the symbols ‘1788’ and ‘1988’ that were similar to those of the Australian Bicentennial Authority, and they were 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 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’ an official symbol.] Mason CJ, Deane and Gaudron JJ: If we ask the question whether the commemoration of the Bicentenary is a matter falling within the peculiar province of the Commonwealth in its capacity as the national and federal government, the answer must be in the affirmative. That is not to say that the States have no interest or no part to play in the commemoration. Clearly they have such an interest and such a part to play, whether as part of an exercise in co-operative federalism or otherwise. But the interest of the States

in the commemoration of the Bicentenary is of a more limited character. It cannot be allowed to obscure the plain fact that the commemoration of the Bicentenary is preeminently the business and the concern of the Commonwealth as the national government and as such falls fairly and squarely within the federal executive power. [page 55] We turn now to the challenge to the validity of ss 22 and 23. The defendants submit that the validity of these sections is sustained by the incidental or implied legislative powers and the specific legislative powers conferred by ss 51(i), (xviii), (xx) and 122 of the Constitution. Thus, s 51(i) clearly supports s 22(1)(d). That provision, being a conditional prohibition of the importation of articles into Australia, necessarily falls within the trade and commerce power. The power conferred by s 51(xviii) with respect to copyright, designs and trade marks may be capable of sustaining the provisions relating to the name and the official symbols of the Authority. But it is difficult to see how this power can support all the wide-ranging provisions contained in ss 22 and 23. The plaintiffs contend that the relevant provisions relate to the use of expressions which do not necessarily identify the goods, their origin or their owner. The plaintiffs also contend that, as the Authority does not itself engage in trade, the provisions go beyond trade mark protection … It is necessary, first, to refer to the four devices or symbols to the plaintiffs’ use of which the Authority refused to consent. The first device consists of the profile of a human head surrounded by the two words ‘AUSTRALIAN BICENTENARY’ with the caption ‘DISCOVERED + DISCOLOURED’. The device is quite different from the official symbols of the Authority. And the words ‘AUSTRALIAN BICENTENARY’, though prescribed by reg 4 for the purposes of s 22(6)(d), are not used in the device in conjunction with ‘1788’, ‘1988’ or ‘88’. Accordingly, the plaintiffs’ proposed use of the expression does not fall within the concluding words of s 22(6)(d). The third and fourth devices to be used by the plaintiffs do not involve the use of a prescribed expression or an official symbol. However, the plaintiffs’ second device stands in a different situation. It has a central symbol, bearing the figures ‘1788’ and ‘1988’, that has a discernible similarity to the first and second official symbols of the Authority. The inner symbol is surrounded with an outer ring in which the words ‘200 YEARS OF SUPPRESSION AND DEPRESSION’ appear. The device involves the use of a prescribed expression, the words ‘200 years’, in conjunction with ‘1788’ and ‘1988’. Furthermore, the device incorporates a symbol that ‘so nearly resembles’ the first and second official symbols ‘as to be capable of being mistaken for’ those symbols. Accordingly, it is only the use of the second of the plaintiffs’ devices that would expose the plaintiffs to liability for the commission of offences against s 22(1)(a), (b) and (c), in the absence of the written consent of the Authority. Section 24 recognizes that ss 22 and 23 are provisions ‘for the protection of (the) name, property or interests’ of the Authority. The defendants submit that, when the two sections are so understood, the executive power, operating in conjunction with the incidental power (s 51(xxxix)) or the implied power, supports them as laws reasonably adapted to the purpose of facilitating and protecting the attainment of the objects of the commemoration of the Bicentenary and the objects of the Authority. This, the defendants

argue, includes the protection of the integrity of the official symbols and the protection of the prescribed expressions. The broad proposition advanced by the defendants travels too widely in two respects. First, it suggests that the relevant exercise of executive and legislative power is directed not to the commemoration of the Bicentenary as such but to the attainment of objects lying beyond the commemoration itself. Secondly, the proposition suggests that the relevant exercise of power extends to the attainment of the objects of the Authority as though they are independent of the commemoration of the Bicentenary. In one respect this is so. The external affairs power supports the prescription in s 22(6)(d)(i) of the last four expressions mentioned in that paragraph. Australia is a party to the Convention Relating to International Exhibitions of 1928 as amended by subsequent Protocols. Expo 88 is an international exhibition to which the Convention applies. By Art 9(3) Australia is bound to: ‘use whatever means it considers most appropriate under its own legislation to act against the organisers of false exhibitions or [page 56] exhibitions to which participants might be fraudulently attracted by false promises, notices or advertisements’ … The difficulties do not stop at this point. Take the prescription of ‘Melbourne’ and ‘Sydney’ in para (d)(i). The use of ‘Family Law Conference Melbourne 1988’, without the prior written consent of the Authority, in connection with a conference of the legal profession in that city this year would infringe s 22(1)(a). Yet it is impossible to perceive how the prohibition of such a use contributes to the protection of the integrity of the commemoration of the Bicentenary or the attainment of the objects of the Authority. Many similar illustrations (eg, clothing or emblems displaying support for sporting teams) might be given of the use of a combination of ‘Melbourne’ and ‘1988’ or ‘Sydney’ and ‘1988’. The illustrations given in the two preceding paragraphs indicate that the effect of the provisions is to give the Authority an extraordinary power to regulate the use of expressions in everyday use in this country, though the circumstances of that use in countless situations could not conceivably prejudice the commemoration of the Bicentenary or the attainment by the Authority of its objects. In arming the Authority with this extraordinary power the Act provides for a regime of protection which is grossly disproportionate to the need to protect the commemoration and the Authority. It is therefore no answer to say that the Authority’s power to refuse written consent is exercisable only for the purpose of ensuring such protection, assuming that to be a permissible construction of s 22(1). Here the framework of regulation created by s 22(1)(a) with s 22(6)(d)(i) and (ii) reaches far beyond the legitimate objects sought to be achieved and impinges on freedom of expression by enabling the Authority to regulate the use of common expressions and by making unauthorized use a criminal offence. Although the statutory regime may be related to a constitutionally legitimate end, the provisions in question reach too far. This extraordinary intrusion into freedom of expression is not reasonably and appropriately adapted to achieve the ends that lie within the limits of constitutional power. …

In the result we would overrule the demurrer so far as it asserts that the plaintiffs lack standing to challenge ss 22 and 23 and that s 22(6) (d)(i) is valid to the extent that it relates to the expression ‘200 years’. Otherwise we would allow the demurrer. We would declare that s 22(6)(d)(i) is invalid to the extent that it refers to the expression ‘200 years’. [Wilson, Dawson and Brennan JJ also held that the provisions were beyond the Commonwealth’s powers.]

1.60 Questions 1.

Would you agree that the defendant’s property rights were limited by the civil or political rights of the plaintiffs?

2.

Did the court achieve a fair balance between the different rights here?

3.

Are the plaintiffs’ rights in their designs property rights or civil rights?

4.

Consider the rights to navigate and fish in coastal waters. They are considered native title interests under the Native Title Act 1993 (Cth). But do they qualify as property by reference to the criteria enunciated in Stow (1.12C)? As we have seen above (1.11), the right to navigate and to fish on the part of non-native title holders in coastal waters is a public right, but of an economic and social, rather than political, nature.

[page 57]

PROPERTY RIGHTS AND HUMAN RIGHTS 1.61

In general, because property rights essentially entail a right to exclude

and to use and enjoy, they may potentially impact adversely on the public rights, or human rights, of others. The extract from Davis v Commonwealth above (1.59C) shows how in certain circumstances, where property rights unreasonably affect civil rights to free expression, they may be curtailed by the courts. Importantly, civil rights are protected not only by municipal law, but also by international human rights instruments such as the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), and the European Convention on Human Rights (ECHR). In recent years, human rights have come to play a greater role in the domestic law of most countries. And although human rights are typically associated with political and personal rights, such as the right to free expression, to privacy, to freedom of association, and to freedom from arbitrary governmental interference, they also embrace property rights. For instance, art 17 of the UDHR states that ‘(1) Everyone has the right to own property alone as well as in association with others; (2) No-one shall be arbitrarily deprived of his property’. Similarly, art 1 of Protocol No 1 of the ECHR provides that: 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.

1.62

Clearly these provisions bear directly on property rights. But

ratification of an international human rights instrument does not mean that those human rights norms have domestic force since they are not automatically incorporated into Australian law: Kiao v West (1985) 159 CLR 550 at 570. Nonetheless, even in a country like Australia where human rights legislation (with the exception of the Australian Capital Territory and Victoria: see below) is absent, the international norms may be persuasive authority in cases where existing common law rules do not provide clear guidance. In particular, in common law jurisdictions, norms emanating from supranational human rights instruments infiltrate domestic law ‘vertically’ by offering interpretive guidance to judges in five separate areas: first, in the resolution of ambiguities in statutes; second, in the development of the common law and equity, particularly where principles are uncertain; third, in the review of the exercise of executive discretion; fourth, in the general exercise of judicial discretion; and fifth, in the development of public policy.44 A striking example of this influence is provided by Mabo v Queensland (No 2), where Brennan J (Mason CJ and McHugh J concurring) found support in the ICCPR for the appellants’ claim that the terra nullius doctrine had no place in Australian law. He concluded (at [42]) that: Whatever the justification advanced in earlier days for refusing to recognize the rights and interests in land of the indigenous inhabitants of settled colonies, an unjust and discriminatory

[page 58]

doctrine of that kind can no longer be accepted … The opening up of international remedies to individuals pursuant to Australia’s accession to the Optional Protocol to the International Covenant on Civil and Political Rights … brings to bear on the common law the powerful influence of the Covenant and the international standards it imports. The common law does not necessarily conform with international law, but international law is a legitimate and important influence on the development of the common law, especially when international law declares the existence of universal human rights.

1.63

The influence of human rights principles on property law is

particularly evident in the European Union, where the ECHR directly binds member states, particularly where it has been incorporated in municipal legislation. The United Kingdom, for example, has enacted the Human Rights Act 1998 (UK) to achieve this objective. The relevance of human rights law to property law is demonstrated in the recent decisions of the European Court of Human Rights in Pye v United Kingdom.45 In this case, the documentary title holder’s land was held by the House of Lords to have been extinguished by the squatter’s period of 12 years’ possession of the land. On appeal to the European Court of Human Rights, a section of the court by a narrow majority held that the legislation allowing title to be extinguished by adverse possession (squatting), particularly because no compensation was payable to the documentary title holder, was contrary to art 1 of Protocol No 1 of the ECHR. This decision was overturned by the Grand Chamber, the majority of which found the legislation to be compliant with the ECHR.46 Contrast Connors v United Kingdom,47 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 of the convention (the right to respect for private and family

life, home and correspondence). The family was awarded compensation for their loss of the site. This principle was affirmed in Manchester City Council v Pinnock (No 1) [2010] 3 WLR 1441; [2010] UKSC 45; where the United Kingdom Supreme Court held that an occupier with limited statutory rights to possess was entitled to have the proportionality required by art 8 considered when the landlord sought a repossession order. The ramifications of these cases have been considered in a series of UK Supreme Court decisions. 1.64

Victoria’s Charter of Human Rights and Responsibilities Act 2006

(Vic), s 20, entitled ‘Property Rights’, is similar to art 17 of the UDHR and art 1 of Protocol No 1 of the ECHR. It provides that: ‘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 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. The Australian Capital Territory has also enacted the Human Rights Act 2004 (ACT), though significantly it has no property provision like s 20 of the Victorian Act. In other states such as New South Wales and Tasmania, there is mounting political pressure at present to adopt similar legislation, so that international human rights jurisprudence may come to have increasing relevance in many Australian jurisdictions. Independently of legislative activity, as noted above, international developments in human rights law can influence judicial discretion in hard cases even now, and the delicate balancing act involved when judges in

[page 59]

other jurisdictions seek to reconcile human rights law with property law will continue to have resonance with policy debates about the legitimate boundaries of property rights in Australia. Whatever the general arguments for and against the enactment of human rights instruments, the inclusion of a property guarantee is controversial, as the following article suggests. 1.65E

Should Australian Bills of Rights Protect Property Rights? S Evans (2006) 31(1) Alt LJ 19–24 (footnotes omitted)

One of the most controversial questions in drafting a Bill of Rights or Charter of Rights is whether or not to protect property rights. The decision to omit property rights from the Canadian Charter of Rights and Freedoms was essential to obtaining political support from the provinces. Conversely, the decision to omit property rights from a proposed Victorian Bill of Rights in 1987 sparked strong dissent within the parliamentary committee making the proposal. And in South Africa the question was one of the key issues in the drafting of the post-apartheid constitution … In this article I ask, in the context of a decision to adopt a Charter of Rights in some form, whether and how an Australian State or Territory Charter of Rights should protect property rights. In my view, a Charter should protect property rights. But it should do so in a way that respects the limited extent to which property rights are properly regarded as human rights: it should not guarantee compensation for expropriation or deprivation of property rights it should protect property rights in a way that recognises the significant protections already afforded to property rights by the common law and by Parliament it should do so in a way that recognises the inappropriateness of the courts secondguessing the Parliament’s decision that legislation strikes an appropriate balance between private rights and the public interest … In my view, it should not contain such a guarantee [of compensation]. My reasons are as follows: A Charter of Rights need not contain such a property rights guarantee [for example

Human Rights Act 2004 (ACT)] both as a matter of general international law and as a matter of principle, such a property rights guarantee is not a human right where constitutions and bills of rights have contained such a property rights guarantee, the results have been undesirable. The courts have been asked to second-guess the parliament’s judgment that legislation strikes an appropriate balance between private rights and the public interest. And the courts have not been able to reach satisfactory and stable interpretations of the property rights guarantee a strong property rights guarantee would not reflect Australia’s political traditions a property rights guarantee in the absence of protection of social and economic rights would be unbalanced the existing parliamentary scrutiny of legislation that affects property and the common law presumption that the legislature does not intend to take or limit property rights without compensation already provide appropriate protection for property. A property rights guarantee asks the courts to decide whether compensation ought to be paid when legislation affects property rights. The questions are not straightforward legal ones. The courts will be asked to engage in a line-drawing exercise: to decide when regulatory legislation ‘goes too [page 60] far’ and warrants compensation. The courts have no particular expertise in the economic, social and political issues involved in that determination. As Jennifer Nedelsky argues: [D]ebates over the meaning of property, of the kinds of power that should be allocated to individuals and the limits of that power (such as landlord-tenant law, environmental regulation, minimum wage law) should be part of the ongoing vigorous debate of the most popularly accessible bodies, the legislative assemblies. That debate should not be obscured or curtailed by constitutionalizing property. Moreover, property rights are not the kinds of rights that Parliament is at all likely to limit without appropriate deliberation and debate. Property rights have high visibility and high salience. They provide a focus for organised interest groups to make Parliament aware of the impact of proposed legislation … Jurisprudence on guarantees of property rights is almost universally incoherent. The lack of clarity in judicial decisions regarding the interpretation of property provision in the Commonwealth Constitution (s 51(xxxi)) is a good example. This problem comes about largely because the courts are attempting to compress the most highly contested political questions into propositions of law. These political questions invariably revolve around the relative value to be assigned to individual rights and the general welfare of the community. These questions do not tend to be amenable to legal solutions … An appropriate model for the recognition of property rights within a Charter of Rights would have four elements:

It would provide that property is defined and regulated by law It would provide that the Parliament may make laws defining and regulating the rights and responsibilities of ownership It would provide that everyone has a right to own property alone as well as in association with others, without discrimination on grounds including race, colour, sex, language, religion, political or other opinion, national or social origin, birth or other status (see ICCPR art 2.1). (Equally, it would provide that the enjoyment of other rights is not to be denied on grounds of property (see ICCPR, arts 2.1, 24.1, 26.1).) It would provide that no one is to be deprived of their property other than in accordance with law (see Universal Declaration of Human Rights, art 17 and compare s 1 of the Canadian Charter) (where law includes the common law and the prerogative) … Most fundamentally, defining a right to property in these terms recognises the core human rights associated with property — the absence of arbitrary and discriminatory restrictions on ownership and a requirement that government act in accordance with law when it does act to limit property rights.

1.66 Questions 1.

Does Evans’ argument represent a convincing compromise between the competing arguments about the place of property rights in charters of human rights?

2.

Is Evans too sanguine about the parliamentary process as a mechanism for effectively protecting property rights? Can you think of recent examples of parliaments offering too little respect for property rights in passing legislation?

[page 61]

3.

Are there other reasons for limiting the property protections in

charters of human rights? 4.

Does s 20 of the Victorian Act give expression to Evans’ concerns? Would it be possible for the Victorian Parliament to enact legislation providing security of tenure for residential tenants, or extensive environmental protection without falling foul of s 20?

5.

Should

property

owners

be

allowed

compensation

when

legislatures enact legislation that has the effect of significantly reducing the property’s value?

Having examined the external boundaries of property, we are now in a position to examine the traditional internal classification of property rights.

THE TRADITIONAL CLASSIFICATION AND TERMINOLOGY 1.67

The law of property, perhaps more than any other basic area of law, is

characterised by a technical terminology the survival of which is due more to a sense of historical continuity than to analytical precision. Nonetheless, the terminology has to be understood, whatever its imperfections, simply because it forms part of the everyday vocabulary of lawyers. The basic distinction in property law is between real property (land) and personal property (chattels). This distinction is still fundamental, notwithstanding that the dichotomy does not have the same significance for substantive rules of law as it once did. At one time, for example, the principles governing the devolution of real

property (land) and personal property on an intestacy (that is, on the death of a person who dies without having made a valid will) were quite different. Title to real property and to those items of personal property designated as ‘heirlooms’ passed to the ‘heir’ of the person dying intestate, while the remainder of the personal property was distributed among the ‘next of kin’ as defined by a statutory formula. The distinction was removed by legislation in the mid-nineteenth century. The traditional classification is still useful because the legal rules that regulate the use and transfer of real property and personal property differ at least in part because of the essential differences between these two categories. For instance, land is immovable, which means that the rules that govern its use differ from those that regulate the use of chattels. A further reason why the distinction remains important is because legislation is often drafted employing the traditional terminology and classifications. The Goods Act 1958 (Vic), for example, defines ‘goods’ to include ‘all chattels personal other than things in action and money’. Compare the Fair Trading Act 1999 (Vic) which defines ‘goods’ in s 3 as including ‘(a) ships, aircraft and other vehicles; and (b) animals (including fish); and (c) minerals, trees and crops, whether on, under or attached to land or not; and (d) gas, electricity, water, sewerage and telecommunications’. The definition of ‘land’ in the Real Property Act 1900 (NSW) s 3 includes ‘messuages, tenements, and hereditaments corporeal and incorporeal of every kind and description or any estate or interest therein …’ Legal documents, too, may be drafted by reference to the traditional terminology of property law. It is not uncommon for a testator to

‘devise’ real property to one person and to ‘bequeath’ personal property to another. Real property is generally sub-classified into corporeal hereditaments and incorporeal hereditaments. The former describes rights of possession, or tangible real property (land) and the latter describes lesser rights over land, or intangible real property such as an easement of

[page 62]

way which entitles the holder only to a right to walk across a certain piece of land owned by another person.48 1.68

In the light of the arguments in 1.5–1.13, the question arises as to

whether the traditional classifications, embodied in the terminology of property law, provide a satisfactory analytical framework for the study of legal principles. The distinction between real and personal property concentrates attention not on proprietary interests themselves but on the objects of those interests. It may be very useful to distinguish between land and, say, goods or patents as objects of proprietary interests for some purposes at least. Since land has the unique characteristics of permanence and immovability it is not surprising that the law recognises proprietary interests in land that are wholly different to rights over goods or patents. The objection is to constructing separate legal compartments on the assumption that there must be inherent differences between the principles applicable to real property and those applicable to personal property. The chapters that follow seek to show that

there are both similarities and differences between the rules governing real and personal property.

Land, or realty 1.69

The origins of the dichotomy between real and personal property lie

in the remedies available at common law for the recovery of tangible objects. If a person dispossessed of an object could recover that object (the res) as of right it was classified as real property. The distinguishing characteristic of real property was the quality of being specifically recoverable in a ‘real’ action. Objects not so recoverable were regarded as personal property. A person dispossessed of such objects had a ‘personal’ action for damages against the wrongdoer, but was not entitled to an order requiring the wrongdoer to deliver the actual object. Since only land was specifically recoverable under the early common law, it followed that the category of real property was limited to land. Things other than land, such as goods, fell within the category of personal property.

Boundaries of land 1.70

How are the rights of owners of land limited by law? Can the owner

of a block of land in the suburbs build a 50-storey office block on it? In the absence of legislation, to what extent is a landowner entitled to exclude third parties from the air space above the land? For example, does the owner of a country estate have an action against a person who overflies the land without permission in order to take photographs of the estate to offer for sale? These

questions were answered to some degree in Baron Bernstein of Leigh v Skyviews & General Ltd [1978] QB 479 at 488; [1977] 2 All ER 902 at 907, where Griffiths J, after referring to the authorities on rights in air space, stated that: [T]he problem is to balance the rights of an owner to enjoy the use of his land against the rights of the general public to take advantage of all that science now offers in the use of air space. This balance is in my judgment best struck in our present society by restricting the rights of an owner in the air space above his land to such height as is necessary for the

[page 63]

ordinary use and enjoyment of his land and the structures upon it, and declaring that above that height he has no greater rights in the air space than any other member of the public.49

His Honour concluded that scenic flights operating some hundreds of feet above the plaintiff’s land did not constitute a trespass. 1.71

In Bendal Pty Ltd v Mirvac Projects Pty Ltd (1991) 23 NSWLR 464;

74 LGRA 407 it was held that construction facilities and objects encroaching upon the air space above adjacent land constituted a trespass if they were of a nature and at a height which would interfere with any ordinary uses of the land which the occupier may see fit to undertake. This principle was assumed to apply in Lang Parade Pty Ltd v Peluso [2006] 1 Qd R 42, also a case of oversailing crane jibs.50 1.72

As injunction is a discretionary remedy, it may be refused even if

trespass is proved. In Shelfer v City of London Electric Lighting Co [1895] 1 Ch 287, at 322–3, AL Smith LJ said that while, prima facie, an injunction is the

remedy for trespass, damages may be a more appropriate remedy where the following conditions apply: In my opinion, it may be stated as a good working rule that — (1) If the injury to the plaintiff’s legal rights is small, (2) And is one which is capable of being estimated in money, (3) And is one which can be adequately compensated by a small money payment, (4) And the case is one in which it would be oppressive to the defendant to grant an injunction: then damages in substitution for an injunction may be given. There may also be cases in which, though the four above-mentioned requirements exist, the defendant by his conduct, as, for instance, hurrying up his buildings so as if possible to avoid an injunction, or otherwise acting with a reckless disregard to the plaintiff’s rights, has disentitled himself from asking that damages may be assessed in substitution for an injunction.

1.73

The ‘good working rule’ in Shelfer was applied in Jaggard v Sawyer

[1995] 1 WLR 269, where the defendant proposed to construct a driveway over his land to a second property he was to develop behind the land. Each landowner on the street owned the roadway in front subject to a covenant not to use any part of their unbuilt plot except as a private garden. The plaintiff, who also lived on the street, objected to the defendant’s development, but not until after construction was well under way. Action was brought for breach of covenant and for trespass over the plaintiff’s section of roadway. Since the development had progressed so far, and since an injunction would leave the second property without access, the court

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refused to grant an injunction since that would be oppressive to the defendant and awarded damages in lieu. 1.74

In Break Fast Investments Pty Ltd v PCH Melbourne Pty Ltd (2007) 20

VR 311, the appellant attached metal cladding to the face of its building which projected into the defendant’s airspace. The appellant claimed it would suffer harm if it were required by an injunction to remove the cladding, and that the intrusion was a minor inconvenience to the plaintiff but of great significance to itself. In upholding the trial judge’s refusal to award damages in lieu of an injunction, the Victorian Court of Appeal said that the ‘good working rule’ in Shelfer did not require a balancing in which the potential harms to each party were given equal status. What must be shown is that the hardship caused to the defendant by granting the injunction is significantly disproportionate to the relief obtained by the plaintiff so that to grant it would be ‘greatly oppressive’ (at 322–8). In LJP Investments Pty Ltd v Howard Chia Investments Pty Ltd (1989) 24 NSWLR 490 the plaintiff obtained a mandatory injunction requiring the defendant to remove scaffolding which was erected 4.5 metres above ground level and protruded about 1.5 metres into the air space above the plaintiff’s property. The defendant had previously sought the plaintiff’s permission to erect the scaffolding but the plaintiff had sought payment in return, which the defendant regarded as excessive and refused to pay. In the Supreme Court of New South Wales, Hodgson J (at 496) commented that ‘the case really comes down to whether one person should be permitted to use the land of another person for considerable personal gain for himself, simply because his use of the other person’s land causes no significant damage … As a matter of

general, though not universal principle, I would answer this question no’. The right to land similarly extends below the surface. In Bulli Coal Mining Co v Osborne [1899] AC 351 a person who mined coal beneath land of another person was held liable in trespass.

Air space rights 1.75

Is a right to build higher than would normally be permitted by

council codes a proprietary interest, which can be transferred from one landowner to another? In Uniting Church in Australia Property Trust (NSW) v Immer (No 145) Pty Ltd (1991) 24 NSWLR 510; 74 LGRA 255 (CA) the appellant and the respondent contracted to transfer ‘air space’ rights. These rights are not the interest in the space above a property. They are rights to construct buildings on land higher than would normally be permitted by council planning laws. The legislation permitted transfer of these rights in certain circumstances from one plot-owner to another (so that if, for example, A and B are each able to build up to 20 metres, A may, with council approval, transfer 10 metres to B, so that A may build up to 10 metres and B up to 30 metres). The court held that these rights were transferable so that a contract for sale of these rights was specifically enforceable. The decision was overturned by the High Court, but not on this point. In Depsun Pty Ltd v Tahore Holdings Pty Ltd (1990) 5 BPR 11,314; NSW ConvR ¶55-523, the defendant agreed to sell a building to the plaintiff with an ancillary deed giving the defendant the benefit of ‘floating floor space’ rights. These rights relate to the floor space potential permitted by the local council for a building. The ‘floating floor space’ will be greater where the preservation of

historic places or structures is involved. The deed stated that the rights given to the defendant were proprietary rights in the subject property. However, the court rejected this claim and held that the rights granted under the deed were personal rights, despite their description in the deed.

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Chattels, or personalty 1.76

The distinction between real and personal property broadly

corresponds with the factual distinction between land, which is immovable, and movable objects. One exception to this general rule is the leasehold interest in land. Historically, leaseholds were regarded as personal property for the reason that the early law did not permit the dispossessed leaseholder to recover the land itself. The lessee was limited to an action for damages, mainly because leases were seen as personal commercial arrangements outside the rigid feudal structure of landholding. In time, the leaseholder was enabled to recover the land itself through the action of ejectment, but by that time the anomalous classification of leaseholds as personal property was too well established to be overturned. To accommodate leasehold interests, the category of personal property is itself divided into ‘chattels real’ and ‘chattels personal’ (or ‘pure personalty’). The term ‘chattels real’ covers leasehold interests and is designed to indicate both the ‘personal’ nature of leasehold interests and the fact that they create proprietary interests in land. The term ‘pure personalty’ refers to all other

forms of personalty. It is normally sub-classified into choses in possession, and choses in action. The term ‘choses in possession’ covers movable, physical objects, such as books or furniture. Choses in action include intangibles, such as patents, copyrights, shares in companies and goodwill. It is important to emphasise once more that these forms of property refer to rights exercisable over such things, rather than the things themselves: see 1.5–1.13. 1.77

In industrialised societies such as Australia, various forms of choses in

action, or ‘intellectual property’, such as copyrights, trademarks and patents, have become an important form of wealth. The rules governing the creation and transfer of intellectual property are a specialist body of law, in the same way that a specialist body of rules developed in relation to land, when land was the major source of wealth and political and economic power. As we have seen above, there have also been extensions of the concept of property to provide protection against invasions of privacy, prevent breaches of confidence, and prevent unauthorised exploitation of the ‘personality’ of public figures: see 1.47. The notion that property may exist in intangibles is not confined to advanced industrial societies.51

BOUNDARIES BETWEEN DIFFERENT TYPES OF PROPERTY 1.78

When courts are called upon to adjudicate between the competing

claims of parties over property, they frequently have to decide what type of property the subject matter of the dispute is. So, the questions may be, ‘is the thing a chattel, or is it land? Or was it a chattel, but has now become land?

Also, if it has changed form, has it at the same time changed ownership?’. In addressing these issues, courts frequently rely on policy arguments to justify drawing the line in favour of one litigant or another. When reading the following cases, it is important to bear in mind the various philosophical debates on property rights discussed in the next section to see which of them informs particular legal rules.

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The boundary between land and chattels: fixtures 1.79

One useful way of assessing the practical significance of the common

law distinction between real and personal property is through a study of the law of fixtures. The doctrine of fixtures provides that chattels, by virtue of the circumstances surrounding their annexation to land, may change character from personal to real property. In certain circumstances, a chattel (personal property) which is affixed to or placed on land may become part of the land (real property). Depending upon the ownership of the land, this may result in a transfer of ownership in the particular objects which are affixed. The question whether a chattel has become a fixture is a question of law: Reynolds v Ashby & Son [1904] AC 461 (HL). Disputes about whether a chattel has become a fixture may arise between vendors and purchasers of land (though normally the contract of sale will deal with this issue); between landlords and tenants; between mortgagees of land and owners of chattels; between life

tenants of land and persons with an interest in remainder; and between a devisee and the personal representative of a deceased. In practical terms the doctrine operates as a default rule for resolving contests concerning title to an object in the absence of agreement. The doctrine plays a significant role in tax and stamp duty law where the question of who is the ‘owner’ may determine liability for stamp duty, or other tax liabilities, and as in the case that follows where a building owner and the owner of air-conditioning equipment are in dispute.

The doctrine of fixtures 1.80C

Belgrave Nominees Pty Ltd v Barlin-Scott Airconditioning (Aust) Pty Ltd [1984] VR 947 Supreme Court of Victoria

[The plaintiffs, who were owners of a building, entered into a contract with a builder (Guide) for the renovation of their adjoining buildings. In turn, the builder subcontracted with the defendant for the supply and installation of air-conditioning systems. The defendant installed two airconditioning plants on the roofs of the plaintiffs’ buildings. A platform was constructed on each roof to hold a chiller, which stood on its own weight on the platform with pads acting as shock absorbers between the base of the legs of the chiller and its platform. Each chiller was connected to the water reticulation system of its building and electrical supply cables forming part of the structure of the building were connected to an electrical junction box fitted to the chiller on one of the buildings. However, the electric power supply was not connected. The builder failed to make progress payments to the defendant and later went into liquidation. The plaintiffs then entered into a contract with another builder to complete the renovations and the defendant agreed with that builder to complete the installation of the system. The defendant resumed the work of installing the air-conditioning, but later removed the air-conditioning plants incorporating the chillers, compressors and general works. The plaintiffs sought a mandatory

injunction compelling the defendant to deliver up two air-conditioning plants or alternatively damages for detention, conversion and trespass.] Kaye J: … The plaintiff’s claims for relief are based on the premise that at the time of removal from the building, each air-conditioning plant was a fixture. These claims are founded on the general rule of common law that property in materials and fittings, once annexed to a [page 67] building, become part of the freehold. Whether the annexation of the plants was sufficient to constitute the plants fixtures must be determined by the circumstances in which the same were positioned on the platform, and more particularly the intention as evidenced by the degree of annexation and the purpose of the annexation. These principles of law were expressed by Blackburn J in the following passage when delivering the judgment of the Court of Exchequer Chamber in Holland v Hodgson (1872) LR 7 CP 328 at 334–5: There is no doubt that the general maxim of the law is, that what is annexed to the land becomes part of the land; but it is very difficult, if not impossible, to say with precision what constitutes an annexation sufficient for this purpose. It is a question which must depend on the circumstances of each case, and mainly on two circumstances as indicating the intention, viz, the degree of annexation and the object of the annexation. When the article in question is no further attached to the land, then [sic] by its own weight it is generally to be considered a mere chattel: see Wiltshear v Cottrell ((1853) 1 EL & BL 674; 118 ER 589), and the cases there cited. But even in such a case, if the intention is apparent to make the articles part of the land, they do become part of the land: see D’Eyncourt v Gregory ((1866) Law Rep 3 Eq 382). Thus blocks of stone placed one on the top of another without any mortar or cement for the purpose of forming a dry stone wall would become part of the land, though the same stones, if deposited in a builder’s yard, and for convenience sake stacked on the top of each other in the form of a wall, would remain chattels. On the other hand, an article may be very firmly fixed to the land, and yet the circumstances may be such as to shew that it was never intended to be part of the land, and then it does not become part of the land. The anchor of a large ship must be very firmly fixed in the ground in order to bear the strain of the cable, yet no one could suppose that it became part of the land, even though it should chance that the shipowner was also the owner of the fee of the spot where the anchor was dropped. An anchor similarly fixed in the soil for the purpose of bearing the strain of the chain of a suspension bridge would be part of the land. Perhaps the true rule is, that articles not otherwise attached to the land than by their own weight are not to be considered as part of the land, unless the circumstances are such as to shew that they were intended to be part of the land, the onus of shewing that they are 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 shew that it was intended all along to continue a chattel, the onus lying on those who contend that it is a chattel. In Australian Provincial Assurance Co Ltd v Coroneo (1938) 38 SR (NSW) 700 at 712– 13, Jordan CJ, with whom Davidson and Nicholas JJ concurred, expressed the principles and test to be applied as follows: A fixture is a thing once a chattel which has become in law land through having been fixed to land. The question whether a chattel has become a fixture depends upon whether it has been fixed to land, and if so for what purpose. If a chattel is actually fixed to land to any extent, by any means other than its own weight, then prima facie it is a fixture; and the burden of proof is upon anyone who asserts that it is not: if it is not otherwise fixed but is kept in position by its own weight, then prima facie it is not a fixture; and the burden of proof is on anyone who asserts that it is: Holland v Hodgson. The test of whether a chattel which has been to some extent fixed to land is a fixture is [page 68] whether it has been fixed with the intention that it shall remain in position permanently or for an indefinite or substantial period: Holland v Hodgson, or whether it has been fixed with the intent that it shall remain in position only for some temporary purpose: Vaudeville Electric Cinema Ltd v Muriset [1923] 2 Ch 74 at 87. In the former case, it is a fixture, whether it has been fixed for the better enjoyment of the land or building, or fixed merely to steady the thing itself, for the better use or enjoyment of the thing fixed: Holland v Hodgson; Reynolds v Ashby & Son [1904] AC 466; Colledge v H C Curlett Construction Co Ltd [1932] NZLR 1060; Benger v Quartermain [1934] NZLR s 13. If it is proved to have been fixed merely for a temporary purpose it is not a fixture: Holland v Hodgson; Vaudeville Electric Cinema Ltd v Muriset. The intention of the person fixing it must be gathered from the purpose for which and the time during which user in the fixed position is contemplated: Hobson v Gorringe [1897] 1 Ch 182; Pukuweka Sawmills Ltd v Winger [1917] NZLR 81. If a thing has been securely fixed, and in particular if it has been so fixed that it cannot be detached without substantial injury to the thing itself or to that to which it is attached, this supplies strong but not necessarily conclusive evidence that a permanent fixing was intended: Holland v Hodgson; Spyer v Phillipson [1931] 2 Ch 183 at 209–10. On the other hand, the fact that the fixing is very slight helps to support an inference that it was not intended to be permanent. But each case depends on its own facts. Whether the intention of the party fixing the chattel was to make it a permanent accession to the freehold is to be inferred from the matters and circumstances including the following: the nature of the chattel; the relation and situation of the party making the annexation vis-à-vis the owner of the freehold or the person in possession; the mode of

annexation; and the purpose for which the chattel was fixed: Reid v Shaw (1906) 3 CLR 656, at 667, per Griffiths CJ. Facts from which the inference may be drawn that the plants were intended to be affixed permanently to the building are: the very nature of the air-conditioning plants; the defendant, who carries on the business of suppliers and fitters of such plant, supplied positioned and connected up the air-conditioning plants as a sub-contractor; the plaintiffs are the registered proprietors of the freeholds; the chillers were positioned on the platforms and connected up by pipes to the water pumps fitted to each platform which in turn were connected to the reticulation system of each building; and the plants, when fitted, formed an essential part of the buildings necessary for their use and occupancy as modern office premises. Mr WJ Martin, counsel for the defendant, submitted that the defendant’s intention ought not to be inferred without regard to its sub-contract with Guide and particularly the circumstance that the sub-contract remained only partly performed; counsel relied upon provisions in cl 12 of the sub-contract by which the defendant agreed to remedy any defect in the plant. It was said that because some repairs could not be carried out in situ it would be necessary to remove the plant for that purpose. Counsel submitted that where by a contract for work and labour and supply of materials to be fitted to the premises of another the supplier agreed that for a definite period he will maintain and repair the materials, the materials do not become annexed to the freehold before the maintenance period has expired. Support for this submission was said to be found in a passage of the judgment of Blackburn J in Appleby v Myers (1867) LR 2 CP 651 at 659. Of the facts of the case then under appeal, his Lordship said: … as to a great part at least of the work done in this case, the materials had not become the property of the defendant; for, we think that the plaintiffs, who were to complete the whole for a fixed sum, and keep it in repair for two years, would have had a perfect right, if they thought that a portion of the engine which they had put up [page 69] was too slight, to change it and substitute another in their opinion better calculated to keep in good repair during the two years, and that without consultation or asking the leave of the defendant. However, his Lordship’s remarks were made in connection with a claim under an agreement between the plaintiff and the defendant whereby the plaintiff agreed to construct certain machinery on the defendant’s premises and to keep it in repair for two years. The distinguishing feature of that case was the contractual relationship between the plaintiff and the defendant, and the absence of any such relationship between the parties in the present action. Counsel’s submission was expressed too widely; the statement of Blackburn J in Appleby v Myers has no application to circumstances where there is no contractual relationship between the person fitting the chattel and the owner of the freehold or person in possession. This is made clear from the judgments of the Court of Appeal in Hobson v Gorringe [1897] 1 Ch 182. In that case the court was concerned with a gas engine which had been affixed by bolts and screws to the

mortgagor’s land under a hire-purchase agreement made by him with the hirer. The mortgagor made default under his hire-purchase agreement, and the mortgagee entered in possession of the land. The hirer sought to restrain the mortgagee from selling the machine, claiming ownership of it, while the mortgagee claimed entitlement of the machine as a fixture. At 193 the court said: It is said that the intention that the gas engine was not to become a fixture might be got out of the hire and purchase agreement, and, if so, it never became a fixture and part of the soil, and it was said that the case of Holland v Hodgson has so decided. For this point it must be assumed that such intention is manifested by the hiring and purchase agreement, though, as before stated, we think it is not. Now, in Holland v Hodgson, Lord Blackburn, when dealing with the ‘circumstances to shew intention’, was contemplating and referring to circumstances which shewed the degree of annexation and the object of such annexation which were patent for all to see, and not to the circumstances of a chance agreement that might or might not exist between an owner of a chattel and a hirer thereof. This is made clear by the examples that Lord Blackburn alludes to shew his meaning. He takes as instances (a) blocks of stone placed in position as a dry stone wall or stacked in a builder’s yard; (b) a ship’s anchor affixed to the soil, whether to hold a ship riding thereto or to hold a suspension bridge. In each of these instances it will be seen that the circumstance to shew intention is the degree and object of the annexation which is in itself apparent, and thus manifested the intention. Lord Blackburn in his proposed rule was not contemplating a hire and purchase agreement between the owner of a chattel and a hirer or any other agreement unknown to either a vendee or mortgagee in fee of land, and the argument that such a consideration was to be entertained, in our judgment, is not well founded. Similarly, Adam J in Kay’s Leasing Corporation Pty Ltd v CSR Provident Fund Nominees Pty Ltd [1962] VR 429 at 433 said, in connection with the test to be applied for determining whether chattels brought on to land are fixtures, ‘the relevant intention is to be gathered from the circumstances which show the degree and the object of annexation, which are patent for all to see, and not, to quote the judgment of the court in Hobson v Gorringe [1897] 1 Ch 182 at 193, “the circumstances of a chance agreement that might or might not exist between an owner of a chattel and a hirer thereof”’. In Appleby v Myers, Blackburn J added after the passage cited, ‘It is quite true that materials worked by one into the property of another become part of that property. This is equally true, whether it be fixed or movable property. Bricks built [page 70] into a wall become part of the house; thread stitched into a coat which is under repair, or planks and nails and pitch worked into a ship under repair, become part of the coat or the ship’. The learned author of Hudson on Building and Engineering Contracts (10th ed) p 655 commenting on the principle so expressed by Blackburn J states: ‘The principle is so firm that notwithstanding an express provision to the

contrary and to the contract, the builder will not be able to take advantage of it as against a third party entitled to the land’. It was also contended on behalf of the defendant that there was insufficient annexation of the chillers to cause the same to be fixtures. The chillers were connected to water pipes by means of four bolts and nuts so that there was a connection, perhaps indirect, with the building. In any event, such connection may be described as slight only. Nevertheless even slight fixing to the land is sufficient to raise the presumption that a chattel is a fixture. In those circumstances, the onus of proving otherwise rests upon the party so contending; he must do so by showing from the relevant circumstances that it was intended that the article should remain a chattel. The relevant circumstances from which the objective intention is to be inferred are those which I have already described. It follows that the defendant bore the onus of proof which it failed to discharge. In my opinion the correct inference to be drawn from the facts of this case is that the airconditioning plants were intended to be fitted permanently to each building and therefore the same were fixtures at the time of their removal by the defendant. Leave to enter final judgment.

1.81

An important principle in the law of fixtures is the observation of

Lord McNaghten in Leigh v Taylor [1902] AC 157 at 162: To determine that question you must have regard to all the circumstances of the particular case — to the taste and fashion of the day as well as to the position in regard to the freehold of the person who is supposed to have made that which was once a mere chattel part of the realty. The mode of annexation is only one of the circumstances of the case, and not always the most important — and its relative importance is probably not what it was in ruder or simpler times.

Note how Kaye J in Belgrave Nominees above examined all the circumstances (including the status of the person responsible for the affixing, and their relationship to the owner of the freehold). In Agripower Barraba Pty Ltd v Blomfield (2015) 317 ALR 202 at [76], the New South Wales Court of Appeal cited with approval the following observation by Kearney J, in Palumberi v Palumberi (1986) NSW ConvR ¶55-287: It would seem from perusal of [the] authorities in the field that there has been a perceptible decline in the comparative importance of the degree or mode of annexation, with a tendency to

greater emphasis being placed upon the purpose or object of annexation, or, putting it another way, the intention with which the item is placed upon land. This shift has involved a greater reliance upon the individual surrounding circumstances of the case in question as distinct from any attempt to seek to apply some simple rule or some automatic solution.

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The object or purpose of annexation refers to the intention of the person who affixed the object to the land, determined objectively by inference from surrounding circumstances including the degree of annexation. For example, in Ball-Guymer v Livantes (1990) 102 FLR 327, the fact that the affixer was a licensee, and the licence could be terminated by one week’s notice, were factors that indicated that the item remained a chattel. The actual or subjective intention of the original affixer may have some limited relevance: May v Ceedive Pty Ltd (1.86C). In Permanent Trustee Australia Ltd v Esanda Corporation Ltd (1991) 6 BPR 13,420 at 13,423 Rolfe J commented that the ultimate question for determination was whether the intention of the person placing the thing on the land, viewed objectively, was that it should become a fixture. This intention was to be derived from all the relevant facts, including any evidence of actual intention, though this would not always be decisive. Is this a more satisfactory approach? If a general principle emerges from the case law, it is that all of the circumstances of the case, subjective and objective, must be considered.52 1.82

In Leigh v Taylor, a tenant for life affixed valuable tapestries to the

walls of the drawing room. The tapestries were tacked onto canvas which was

stretched over, and nailed to strips of wood which, in turn, were nailed to the walls. The life tenant died and competing claims to the tapestries were made by her executors and by the remainderman (the person succeeding to the mansion upon the life tenant’s death). The House of Lords decided that the tapestries retained their character as chattels and formed part of the personal estate of the life tenant, to which her executors were entitled. The Earl of Halsbury LC contended that, although the tapestries were affixed to the walls, this was the only way that they could be enjoyed as ornamental tapestries. Thus, there was ‘no intention to dedicate these tapestries to the house’. Given their ornamental character, they could not have been affixed more lightly, and, moreover, were easily removable from the structure without causing damage. Lord Lindley observed that the life tenant would in all likelihood not have intended to annex the tapestries for the benefit of the remainderman. Compare Re Whaley [1908] 2 Ch 497, where tapestries attached by the owner were considered to be fixtures first, because they were attached by an owner, and it would be reasonable to expect an owner to intend that they contribute to the improvement of the land; and second, the tapestries were designed to enhance the Elizabethan character of the room. Likewise in Norton v Dashwood [1896] 2 Ch 497, 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’: at 501 per Chitty J. In Famous Makers Confectionery Pty Ltd v Sengos (1993) 6 BPR 13,222, it was held that a large freestanding air-conditioner which sat on a roof and was connected by ducting was a fixture. A similar result was reached

in relation to insulation consisting of panels of aluminium foil resting on girders which supported the roof of the building. 1.83

The effect of a contractual term that an article will not become a

fixture vis-à-vis a person who is not a party to that contract was considered in Hobson v Gorringe [1897] 1 Ch 182; [1895–9] All ER Rep 1231, referred to by Kaye J in Belgrave Nominees. The Court of Appeal held that the gas engine had become a fixture, despite the provision in the agreement between its owner and the hirer. The object of annexation test referred to circumstances which were ‘patent for all to see, and not to the circumstances of the chance agreement that might or might not exist between an owner of a chattel and a hirer thereof’:

[page 72]

[1897] 1 Ch 182 at 193. Hobson’s contractual right to enter on King’s land and repossess the chattel if there was a default under the hire–purchase agreement was enforceable and therefore gave him an equitable interest in the gas engine. Since Gorringe did not take with notice of this equitable interest (see 4.202–4.213), it was not enforceable against him. The effect of the decision in Hobson v Gorringe was to extinguish Hobson’s proprietary interest in the engine and to vest a similar interest in Gorringe, by way of the mortgage from King. Should this effect occur as the result of physical factors (the degree of annexation)? Would it be preferable for the court to determine the correct decision in terms of proprietary interests? Should not the court

consider the effect of its decision, for example, on the reasonable expectations of the parties?53 1.84

Compare with Hobson v Gorringe the case of Attorney-General (Cth) v

RT Co Pty Ltd (No 2) (1957) 97 CLR 146. In that case, Fullagar J held that two printing presses, each weighing approximately 45 tons, were not fixtures, even though they were attached by nuts and bolts to a concrete foundation in the basement of a building. The main reason was that the annexation was for the purpose of holding the presses steady for their more efficient use as presses. Thus, a Commonwealth Marshal, who was obliged to ‘deliver the possession of land’ acquired under the Lands Acquisition Act 1906 (Cth), was under no duty to remove the presses, since they did not constitute ‘land’. Fullagar J relied in part for his conclusion upon Reid v Smith (1905) 3 CLR 656. In that case, a lessee erected a dwelling house which was not affixed to the land, but simply rested by its own weight upon brick piers. It was the practice to erect dwellings of this nature in the area (Northern Queensland) to avoid destruction by white ants. Upon the termination of the lease, the landlord sought to restrain the lessee from removing the dwelling house on the ground that it had become a fixture. The High Court held that the house could not be removed. Although the building may have been erected as a temporary structure, with the intention of ultimately removing it, this was not decisive in assessing the intention of the parties. The circumstances showed that the building was intended to be part of the freehold. In particular, this was a building lease (one which obliged the lessee to erect certain dwellings, although not the dwelling in question), suggesting that the ‘intention was that any dwelling house put on the land should be considered annexed to the

freehold’. Griffith CJ, however, added that a dwelling house, if unattached to the land, was not necessarily a fixture. In different circumstances, a temporary dwelling, such as a manager’s house erected on a gold mining lease, might retain its character as a chattel.54

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1.85C

May v Ceedive Pty Ltd (2006) 13 BPR 24,147 Court of Appeal of New South Wales

[The appellant lived on land owned by the respondent. At the time when he took up residence, he and the respondent’s predecessor in title signed a contract for sale which specified that the subject matter of the contract was the house, not the land on which it was situated. The contract also purported to lease the land to the appellant in return for the payment of ground rent. This arrangement was consistent with a practice developed over many decades whereby working miners would build their own houses on the land, retaining ownership of them. The trial judge, Levine J, concluded that ‘the uncontested picture is one of the defendants (including Mr May) purchasing their dwellings and then paying weekly ground rent, both sides always regarding the dwellings, ie residences, as the property of the ground lessees’. The respondent sought to evict the appellant because he was in arrears of rent. One of the issues in the case was whether the appellant was protected by security of tenure provisions of the Landlord and Tenant (Amendment) Act 1948 (NSW). In order to establish this, his dwelling had to be ‘prescribed premises’ according to s 5A of the Act. A tenancy of vacant land was not ‘prescribed premises’. The trial judge held that the house was a chattel.] Santow JA: The appellant does not challenge the findings of the trial judge that ‘the appellant’s subjective intention was that he owned the house which stood on the land, but not the land itself’. The essence of the appellant’s submission which I accept, is twofold. First, subjective intention of Mr May, who thought he was buying a house, and the estate agent, who it can be presumed thought he was selling one, cannot prevail over the position at law which obtains if the house were a fixture to the underleased land; it necessarily is leased with that land. Second, the intention which determines the question

whether an object has, in law, become affixed to the land, or, to use the paraphrase emphasised in Elitestone Ltd v Morris [1997] 1 WLR 687 at 690–1 and 693, become part and parcel of the land by affixation is at least predominantly, ‘the objective intention of the person who brings the object on to the land and affixes it there’. That question is determined according to rules of law: Reid v Smith (1905) 3 CLR 656. The starting point under those rules is to identify where the onus of proof lies. If an item is affixed to land to any extent (other than merely resting by its own weight), it is presumed, though the presumption is rebuttable, to be a fixture. The burden of proof lies on those who assert that such an object so resting is not a fixture. Clearly enough the house in question does not rest on its own weight but is affixed to the land. The picture of the house (Blue, 163) and the valuation report of Mr Begg earlier referred to make it clear enough that not only is the house affixed to the land but its removal is not equivalent to putting a portable house on the back of a truck and removing it elsewhere. It is a reasonable inference which I draw that its removal would involve significant destruction of the house if not its total destruction … The authorities in Australia, while emphasising likewise that the original affixer’s intention is determined objectively, allow of the possibility that the original affixer’s actual (subjective) intention may have limited bearing. This is ‘at least to the extent that it helps indicate such matters as the period of time the item is intended to remain in position and the function to be served by its annexation’: Peter Butt, Land Law (LBC, 2006) at [307] and the authorities cited in footnote 27 [namely, N H Dunn Pty Ltd v L M Ericsson Pty Ltd (1979) 2 BPR 9241 at 9244–5 per Mahoney JA; Ball-Guymer v Livantes, supra; Eon Metals NL v Commissioner for State Taxation (WA) (1991) 22 ATR 601 at 606–7; NAB v Blacker (2000) 104 FCR 288.] [page 74] Moreover, I would agree with the submission of the appellant that the primary judge erred in considering the intention of Mr May to be relevant to the question of whether the house had the initial status of a fixture or a chattel. It was not Mr May who affixed the house to the land in the first place but his predecessor more than 50 years back. Therefore Mr May’s subjective belief that he was purchasing the house, based upon the documentation earlier referred to, would not alter the position at law. This on the evidence was that the house as a matter of law remained the property of the registered proprietor of the land. The earlier documentation between Mr May and Mr Breen, the real estate agent, presumably representing the relevant owner in 1969 could not alter the position otherwise obtaining. There was never for example, any agreement that the house could be dealt with separately from the underlease, or even that it could be severed. This is quite apart from the likely physical impossibility of doing so other than as building materials. One important factor pointing strongly in favour of the house being a fixture is the fact that all the evidence points to the house being affixed with the intent that it remain in position permanently or for an indefinite or substantial period, in this case from at least since 1910. No predecessor to Mr May purported to sever or remove it, nor has Mr May. There is certainly no suggestion that the house was intended to remain in position only

for some temporary purpose such as a mining operation that had long ceased; clearly the houses have remained whether for mining purposes or otherwise for their continued occupation on the Pottery Estate. The house thus satisfied the test enunciated by Sir Frederick Jordan in Australian Provisional Assurance Co Ltd v Coroneo (1938) 38 SR (NSW) 700 at 712–13 … If one were instead to look, as more recent authority suggests, at all the surrounding circumstances (see for example N H Dunn Pty Ltd v L M Ericsson Pty Ltd (1979) 2 BPR 9241 at 9246 per Glass JA and more recently NAB v Blacker (2000) 104 FCR 288 at 295–6 per Conti J) and not simply the degree of annexation to the realty and the function served by that annexation, the circumstances here in their totality do not rebut the presumption in favour of the house being a fixture. On the contrary, the circumstances indicate fairly clearly that the house is affixed to the land. It must be taken as a matter of law to be a fixture constituting part and parcel of the relevant land, notwithstanding expressions of subjective intention to the contrary. [Mason P and Beazley JA concurred.]

1.86

The importance of examining ‘all the surrounding circumstances’ as

emphasised by Santow JA in May v Ceedive Pty Ltd above explains why a particular item may be a chattel in one case, and a fixture in the next. In Australian Provincial Co Ltd v Coroneo (1938) 38 SR (NSW) 700, a theatre, subject to a mortgage, contained rows of seats which were bolted to the floor and fastened together. It was held that they remained chattels because the seats were regularly moved around: the best seats went to the back for picture shows and to the front for concerts. Compare Vaudeville Electric Cinema Ltd v Muriset [1923] 2 Ch 74, where the premises were used exclusively as a cinema, cinema chairs which 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.55

[page 75]

1.87

Eon Metals NL v Commissioner of State Taxation (WA) (1991) 22

ATR 601 concerned mining plant and equipment which, without being moved from the mine where it was installed, was sold to the appellant. The question was whether the agreement for the sale of the plant and equipment should be charged with stamp duty at the rate applicable to personalty or realty. In deciding that some of the equipment remained a chattel, Ipp J took into account ‘the limited life of the mine, the transportable character of the equipment concerned, the common practice to transfer equipment of that kind, the economic incentive to remove it, the relevantly slight degree of attachment to the ground, and the facility with which detachment could occur’. In National Australia Bank Ltd v Blacker (2000) 179 ALR 97, the court held that items of irrigation equipment were chattels. The electric pumps and sprinkler heads rested on their own weight for operational purposes, and the valves attached to hoses could be easily removed. Unlike the earlier decision of Litz v National Australia Bank [1986] Q ConvR 54229 at 57,550, where items of irrigation equipment were held to be fixtures, no damage would be caused to either the land or the chattel upon removal in this instance. Also, the intention of the parties was that the equipment would be readily movable around the property whenever needed, thus indicating no intention to annex. A houseboat, moored to a pontoon in a river and used as rental accommodation, was held not to be a fixture, even though electricity, gas and other services were connected to it. There was no sufficient degree of annexation, as the houseboat could be easily moved without injury to it, or to the land; nor did the parties demonstrate any intention to attach the chattel

permanently to the land: Chelsea Yacht and Boat Co Ltd v Pope [2000] 1 WLR 1941. But if moored more securely and on a more permanent basis, a boat (used as a nightclub) may become part of the land: Rudd v Cinderella Rockerfellas Ltd [2003] 1 WLR 2423.

1.88 Questions 1.

What was the effect, in proprietary terms, of the decision in Belgrave Nominees that the air-conditioner had become a fixture? Why was the defendant concerned to establish that it had not become a fixture?

2.

What was the original function of the fixtures doctrine? Bearing in mind that under the old law of property a deceased person’s realty would often go to one person (the heir) and the personalty to other people (the next of kin), what would have been the result if, for example, materials used to construct a house retained their character as personalty? Could it be said that the doctrine served the goal of conservation of community resources by preventing the wasteful process of dismantling objects securely affixed to the land? Does this explain the emphasis upon ‘degree of annexation’ as a test for determining whether an object has become a fixture?

3.

To what extent are decisions that an article is or is not a fixture authority in subsequent cases? In Holland v Hodgson (1872) LR 7 CP 328; [1861–73] All ER Rep 237, when Blackburn J spoke of the ‘object of annexation’, what did he mean? Was he referring to

the actual wishes of the parties? If the object of annexation refers to the objective intention of the parties, in the sense of what a reasonable person would consider to be the purpose of attaching the chattel to the land, what factors are relevant in considering this objective intention? In the view of Walsh J

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in Anthony v Commonwealth (1973) 47 ALJR 83 at 89: ‘… the question is not one of ascertaining the actual intention, but one of determining from the circumstances of the case, and in particular from the degree of annexation and the object of annexation, what is the intention that ought to be presumed’. 4.

The object of annexation was not introduced as a test of deciding whether an object had become a fixture until the nineteenth century. Why do you think it may have been introduced? Do you think it was to mitigate the rigidity of a rule which focused exclusively on the physical fact of annexation? Might the emergence of the rule have been influenced by the historically novel nature of chattels in industrial buildings in the nineteenth century and, in particular, the practice of bolting machines into place?

5.

Is the intention as manifested by the use of nuts and bolts to fasten machinery to factory floors, an intention to attach them

temporarily or permanently?

Tenant’s fixtures 1.89

In certain circumstances, the common law recognised that a person

who had affixed chattels to land had the right to remove them, despite the fact that they had become fixtures. ‘Tenant’s fixtures’, as they were known, were the most important example of this principle. The rule giving tenants a right to remove certain fixtures provides a good example of the moulding of the common law to economic considerations, providing tenants with an incentive to annex chattels during the currency of the lease, particularly in the case of commercial tenancies: see Lord Kenyon CJ in Penton v Robart (1801) 2 East 88 at 91; 102 ER 302 at 303. Thus, the common law permitted a tenant to remove any trade, ornamental and domestic fixtures affixed by the tenant during the term of the lease or, in some situations, for a reasonable period after termination. Examples of trade fixtures are shelves and counters: Harding v National Insurance Co (1871) 2 AJR 67. For an example of domestic and ornamental fixtures, see Spyer v Phillipson [1931] 2 Ch 183, where wooden panelling, ornamental chimneypieces and fireplaces were held to be removable ‘tenant’s fixtures’. This right will usually be expressly granted, or be subject to restrictions, in the lease.56

Right to remove 1.90

While the lease is in force and the fixture attached to the land, the

lessor is said to be the owner of the fixture subject to the tenant’s right of

removal.57 The tenant may remove the fixture at any time up to expiry of the lease, unless the lease prohibits or restricts the right. The right to remove after the lease comes to an end is less clear. The tenant of a lease of uncertain duration, for example, a tenancy at will, has a reasonable time after the termination of the tenancy to remove fixtures: D’Arcy v Burelli Investments Pty Ltd (1989) 8 NSWLR 317. The tenant may also remove within a reasonable time after the lease is determined if the lease expressly confers this right. This right does not usually apply where the lease was forfeited

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or surrendered. However, if after expiration or surrender, a tenant remains in possession by virtue of a new tenancy express or implied, which follows immediately, the tenant usually is still entitled to remove tenant’s fixtures: New Zealand Government Property Corp v H M & S Ltd [1982] QB 1145; [1982] 1 All ER 624. In that case (at QB 1161; All ER 630), Dunn LJ summarised the matter thus: If a tenant surrenders his lease and vacates the premises without removing the tenant’s fixtures, then he is held to have abandoned them. But if he surrenders his lease, either expressly or by operation of law, and remains in possession under a new lease, it is a question of construction of the instrument of surrender whether or not he has also given up his right to remove his fixtures. If nothing is said, then the common law rules applies, and he retains his right to remove the fixtures so long as he is in possession as a tenant.

1.91

In D’Arcy v Burelli Investments Pty Ltd (1989) 8 NSWLR 317, it was

held that a tenant for a fixed term could not remove tenant’s fixtures after the

expiration of the term, except, as recognised by Dunn LJ in the New Zealand Government Property Corp case, where a new lease was granted, or where the tenant remained in possession under ‘colour of right’, for example, where the tenant had a dispute with the landlord about the date on which the term expired. The ‘colour of right’ principle was applied in Concepts Property Ltd v McKay [1984] 1 NZLR 560 to allow a tenant who claimed he had a fixedterm lease under an equitable assignment a reasonable time to remove fixtures after expiration of the periodic tenancy which was found to exist between the landlord and the tenant. At common law, the personal representatives of a life tenant also had a right to remove trade, ornamental and domestic fixtures (but not agricultural fixtures) provided they were removed within a reasonable time of the determination of the life estate. In Victoria, the complex common law rules relating to the removability of trade, ornamental and domestic fixtures have been replaced by broader rights for tenants, other than residential tenants. The Property Law Act 1958 (Vic) s 154A(1) provides as follows: 1.92E

Property Law Act 1958 (Vic)

154A(1) A tenant who at his or her own cost or expense has installed fixtures on, or renovated, altered or added to, a rented premises owns those fixtures, renovations, alterations or additions and may remove them before the relevant agreement terminates or during any extended period of possession of the premises, but not afterwards.

1.93

Section 154A does not apply to the extent that the lease provides

otherwise or the landlord and the tenant otherwise agree: s 154(3). As to what constitutes a provision to the contrary, see Dawson v Stevenson [1920]

VLR 564. In Vopak Terminals Australia Pty Ltd v Commissioner of State Revenue (2004) 12 VR 351, Ormiston JA noted that a predecessor of this provision was ‘unique in Australia’ by abrogating the common law rule. It followed that items attached to the land by the tenant do not lose their character as chattels and become part of the realty during the period of the lease or any extended period of possession by the tenant. If the tenant fails to remove them within that time, the items are thereafter treated as fixtures if they would be so treated under the common law rule. One consequence is that the tenant can transfer the items during the period in which the tenant possesses the premises: Liubinas v Vicport Fisheries Pty Ltd [2016] VCAT 927.

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Agricultural and residential tenancies 1.94

At common law, the tenant’s rights of removal did not extend to

agricultural fixtures: Elwes v Maw (1802) 3 East 38; 102 ER 510. Legislation in New South Wales, Queensland, Tasmania and Victoria has modified this rule, giving tenants of agricultural land the right to remove certain fixtures in specified circumstances. This is, however, generally subject to the statutory right of the landlord to purchase the fixtures for a reasonable price.58 There are also certain provisions entitling a tenant to receive compensation from the landlord at the determination of the tenancy for specified improvements made by the tenant to agricultural land.59

1.95

Residential tenancies legislation in some states varies the common

law rules. In general, these provisions prevent tenants affixing or removing fixtures to residential premises without the landlord’s consent.60 The South Australian legislation permits the removal of a fixture affixed by a tenant unless removal would cause irreparable damage to the premises. The Victorian legislation requires the tenant to restore the premises to the condition they were in prior to affixation or to compensate the landlord for doing so, at the termination of the lease.

Chattels annexed without permission 1.96

The general rule is that, in the absence of agreement, a person who

annexes a chattel to the owner’s land has no right to recover it. In Chateau Douglas Hunter Valley Vineyards Ltd v Chateau Douglas Hunter Valley Winery and Cellars Ltd (Receivers Appointed) [1978] ACLD 258, a company built a winery on land owned by a vineyard company adjacent to its own land. No member of the boards of directors of either company was aware at the time that the winery was not sited on the winery company’s land. The court held that the winery and certain plant and equipment fitted to it were fixtures. In Brand v Chris Building Society Pty Ltd [1957] VR 625 the plaintiff held the fee simple estate in a block of land. He alleged that the defendant company had, without his knowledge or consent, erected a house on his land, and he sought, inter alia, to restrain the defendant from entering upon his land and demolishing the house. The evidence showed that a building was erected and was nearly completed. The evidence for the defendant was that it had a contract with Joe and Mary Pulis to erect a house on the adjoining block, that

it had built in error on the plaintiff’s land by mistake induced by Joe Pulis pointing out the wrong block, that the defendant was prepared to remove the structure and put the plaintiff’s land back into its previous state, or alternatively accept £2,145 from the plaintiff, being the cost without profit of the labour and materials, including the loose chattels. The defendant contended that the plaintiff knew of the mistake shortly after building commenced in October 1956, but took no steps until 30 November 1956 when he informed the defendant that it had built on the wrong block. However, Hudson J accepted the plaintiff’s

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evidence that he knew nothing of the building until he discovered the building operations on 30 November. His Honour entered judgment for the plaintiff and concluded as follows: The position therefore is this, that the plaintiff as the owner is entitled to possession, the defendant under an honest mistake which was not contributed to by the plaintiff entered upon the land without any authority or licence of the plaintiff, became a trespasser and proceeded to build a house on it; and when the plaintiff found out, he took immediate steps to prevent the continuance of the trespass … In cases such as the present, it must be shewn that the plaintiff was guilty of something in the nature of a fraud, and there is nothing of that kind here and I can find no ground which could raise an equity in favour of the defendant … On the face of it, the result of the case seems very hard on the defendant and he may well feel that the decision is unjust; but he must realise that the court must be guided in its decision by principles of law. It has been said that the plaintiff is hard in insisting on his strict legal right, but it does appear that there were certain negotiations made in an effort to settle the matter. What the

offers were that were made I am not concerned to inquire, nor can I say whether either side is reasonable or unreasonable. The injunctions are to be prefaced by an undertaking with respect to the doors and loose materials.

1.97 Questions 1.

Why did counsel not refer to the law of fixtures? Could counsel have urged the court to develop an exception to the usual principles relating to fixtures in order to cover the case of objects affixed to land by mistake?

2.

Does the case not demonstrate the unsatisfactory consequences of concentrating upon the physical fact of annexation of an object to land, rather than upon the ‘real’ question of whether the owner of the land should acquire a proprietary interest in the object so affixed?

3.

Would the case have been decided the same way if the house erected on the plaintiff’s land were prefabricated?

1.98

Hudson J in Brand v Chris Building Society rejected a submission by

the plaintiff on the basis of unjust enrichment because counsel could not identify authorities that would establish such a principle. But the tide seems to be turning. In Pavey & Matthews v Paul (1986) 162 CLR 221, Deane J offered a definition of unjust enrichment where work is performed on property (at 263):

What the concept of monetary restitution involves is the payment of an amount which constitutes, in all the relevant circumstances, fair and just compensation for the benefit or ‘enrichment’ actually or constructively accepted. Ordinarily, that will correspond to the fair value of the benefit provided (eg remuneration calculated at a reasonable rate for work actually done or the fair market value of materials supplied).

Deane J went on to add that payment of the full value of the work performed would be unreasonable where ‘unsolicited but subsequently accepted work is done in improving property in circumstances where remuneration for the unsolicited work calculated at what was a reasonable rate would far exceed the enhanced value of the property’. In Nepean District

[page 80]

Tennis Association v Penrith City Council (1988) 4 BPR 9645 Hodgson J, relying on Pavey & Matthews v Paul, awarded the plaintiff compensation for their expenditure in re-surfacing tennis courts because the council acquiesced in it by contributing to the expense of constructing a levee bank to protect the courts. In Angelopoulos v Sabatino (1995) 65 SASR 1 the court held that the defendant was unjustly enriched by the plaintiff’s improvements to the property, and was therefore required to reimburse the plaintiff for this cost. Chief Justice Doyle, with the concurrence of Duggan and Nyland JJ, reviewed the judgments in Pavey & Matthews and concluded at 9–10: [T]he decision in Pavey’s case suggests that acceptance of a benefit is relevant as a basis for recovery in restitution. However, it is clear that more is involved than the simple fact of acceptance. The consideration of the judgments in Pavey’s case, and of other case law in this area, suggests that one must also consider the basis upon which the provider of the benefit acted, the

choice which the recipient of the benefit had in deciding whether or not to accept the benefit and the conduct of the defendant, by which I mean the defendant’s knowledge of what the plaintiffs were doing and the basis upon which they did it.

1.99

In Sunstar Fruit Pty Ltd v Cosmo [1995] 2 Qd R 214, a purchaser

under a contract of sale went into possession prior to completion. Despite a provision in the contract that the purchaser would not add to the property without the vendor’s consent, the plaintiff made various improvements. After the vendor rescinded the contract for failure to complete, the plaintiff sought restitution for improvements. It was held that the plaintiff was not entitled to restitution because the enrichment was not ‘unjust’ on account of the breach of the agreement, and there was no inducement by the vendor. Where a person was let onto a racecourse in the expectation that he would be granted a lease, made various improvements (some of which were financed by the defendant), he was entitled to restitution for his expenditure, particularly because of the conduct of the defendant, specifically because they ‘endorsed the improvements by advancing money for them, and sought advantages from them in leasehold negotiations’: Fensom v Cootamundra Racecourse Reserve Trust [2000] NSWSC 1072 per Bryson J. In Clancy v Salienta Pty Ltd (2000) 11 BPR 20,425 the appellant, while in possession of land, with the knowledge and acquiescence of the deceased former owner, had spent a large amount of money and time in converting a dry sheep farm into a rich agricultural property growing rice, soy beans and hay, greatly enhancing its value and income-earning capacity. The appellant had occupied first under a licence and an option to purchase and later, under a contract for the sale of the land. The appellant was found by the trial judge

to have repudiated the contract. The appellants claimed relief, inter alia, by way of compensation for the improvements in the nature of restitution on the basis that to allow the owner to keep the benefit would amount to unjust enrichment. Giles and Stein JJA concluded that no claim for unjust enrichment was made out because the rights of the parties were laid out in detail in the contract with no express provision for compensation. The parties therefore knew that entitlement to the improvements would be resolved in favour of the purchaser if the contract was completed, or the vendor if rescinded. In 1973, the Queensland legislature enacted the following provision to deal with the problem of mistaken improvements (Property Law Act 1974 s 196):

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1.100E

Property Law Act 1974 (Qld)

196 Where a person makes a lasting improvement on land owned by another in the genuine but mistaken belief that — (a) such land is the person’s property; or (b) such land is the property of a person on whose behalf the improvement is made or intended to be made; application may be made to the court for relief under this division.

1.101

The court has power to order, inter alia, the vesting in the applicant

of the whole or any part of the land on which the improvement is made, the

removal of the improvement, the payment of compensation to any person where appropriate and the delivery up of possession of the land or improvement or part thereof: ss 195–198. The Encroachment of Buildings Act (NT) s 13 is expressed in similar terms. Compare the slightly more restrictive s 123 of the Property Law Act 1969 (WA) which, for example, applies only to a building and not to other ‘lasting improvements’, such as the clearing of land. In 2010, the Victorian Law Reform Commission61 recommended enactment of a similar provision to the Queensland provision, but concluded that ‘[a]n improvement for the purpose of mistaken improver relief should be defined as a fixture on land’ (at 63).

1.102 Questions 1.

What result should a court reach in applying the Queensland legislation to the situation in Brand v Chris Building Society Ltd? Is the unjust enrichment approach preferable?

2.

Does the emerging case law on unjust enrichment confer a right to restitution on improvers such as the plaintiff in Brand? Is it less flexible than the legislative solutions of Queensland and the Northern Territory? Note that a number of equitable doctrines may provide remedies to assist persons who annex chattels to, or build on, the land of another: see 4.115ff.

3.

Should relief for mistaken improvements be confined to fixtures, or to lasting improvements? Why?

The boundary between adjoining landowners 1.103

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. Though the natural processes of accretion and erosion have the

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effect of modifying the physical boundaries of land, the legal boundaries will only change if the following requirements are met. First, the erosion or accretion must be so gradual as to be imperceptible to the naked eye: Gifford v Lord Yarborough (1828) 5 Bing 163; 130 ER 1023. 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, in the case of accretion, title to the increase in land will be in the landowner. The principle of erosion works in a parallel way, so that any decrease in land will accrue to the Crown: Hill v Lyne (1893) 14 LR (NSW) 449. 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. 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: Baxendale v Instow PC [1981] 2 All ER 620. Such a grant is known as a ‘movable freehold’. The following case examines the relevant principles.

The doctrine of accretion 1.104C Southern Centre of Theosophy Inc v South Australia [1982] AC 706; [1981] 1 All ER 283; 38 ALR 587 Privy Council [The appellant was the registered proprietor of a perpetual lease of some 500 acres of land to the west of Lake George in South Australia. The boundary of the land was referred to in the lease as being ‘delineated in the public maps deposited in the Land Office’ and corresponded to the highwater mark of the lake when the lease was granted in 1911. Since that time, the high-water mark had receded, due in part to the deposit of sand by wind and water. At the time of the action about 20 acres of land previously covered by water were exposed. The appellant claimed that it had acquired this land by accretion and that its land still had a water frontage. The appellant succeeded in the Supreme Court but this decision was reversed on appeal to the Full Court. The appellant appealed to the Privy Council.] The judgment of their Lordships was delivered by Lord Wilberforce: … The principal ground on which [the decision of the trial judge] was reversed by the Full Court was that the doctrine of accretion was excluded from application by the express terms of the two leases. In both the subject land was described ‘as the same as delineated in the public maps’ (ie the maps already referred to). As it was put by King CJ, the doctrine of accretion could not apply to property whose boundary is delineated by a line of a plan which is not expressed to be the water’s edge. Zelling J similarly held that since the appellant’s predecessor in title was granted a lease of land ‘as delineated in the public maps’ and since it was possible to identify the original boundary at the time of delineation, the doctrine of accretion did not apply. Wells J also considered that the case turned on conveyancing issues and that the word ‘delineated’ was crucial. Whether this approach was correct was the main issue before the Board. [Before dealing with this issue, their Lordships considered two subsidiary issues and decided (i) that at common law the doctrine of accretion applies to the land formed on the edge of an inland

lake; and (ii) that the doctrine of accretion applies to leases including leases of Crown land. Lord Wilberforce continued:]

[page 83]

Before examining the authorities, which are copious and in their result clear, their Lordships find it advisable to consider briefly the nature of the doctrine of accretion. This is a doctrine which gives recognition to the fact that where land is bounded by water, the forces of nature are likely to cause changes in the boundary between the land and the water. Where these changes are gradual and imperceptible (a phrase considered further below), the law considers the title to the land as applicable to the land as it may be so changed from time to time. This may be said to be based on grounds of convenience and fairness. Except in cases where a substantial and recognisable change in the boundary has suddenly taken place (to which the doctrine of accretion does not apply), it is manifestly convenient to continue to regard the boundary between land and water as being where it is from day to day or year to year. To do so is also fair. If part of an owner’s land is taken from him by erosion, or diluvion (ie advance of the water) it would be most inconvenient to regard the boundary as extending into the water; the landowner is treated as losing a portion of his land. So, if an addition is made to the land from what was previously water, it is only fair that the landowner’s title should extend to it. The doctrine of accretion, in other words, is one which arises from the nature of land ownership from, in fact the long-term ownership of property inherently subject to gradual processes of change. When land is conveyed, it is conveyed subject to and with the benefit of such subtractions and additions (within the limits of the doctrine) as may take place over the years. It may of course be excluded in any particular case, if such is the intention of the parties. But if a rule so firmly founded in justice and convenience is to be excluded, it is to be expected that the intention to do so should be plainly shown. The authorities have given recognition to this principle. They have firmly laid down that where land is granted with a water boundary, the title of the grantee extends to that land as added to or detracted from by accretion, or diluvion, and that this is so whether or not the grant is accompanied by a map showing the boundary, or contains a parcels clause stating the area of the land, and whether or not the original boundary can be identified … But there are even stronger authorities [than Williams v Booth (1910) 10 CLR 341]. There is first the decision of this Board in Attorney-General of Southern Nigeria v John Holt & Co (Liverpool) Ltd [1915] AC 599. The point now under consideration was there dealt with in the most explicit terms: ‘To suppose that lands which, although of specific measurement in the title deeds, were de facto fronted and bounded by the sea were to be in the situation that their frontage to the sea was to disappear by the action of nature to the effect of setting up a strip of land (it might be yards, feet, or inches) between the receded foreshore and the actual measured boundary of the adjoining lands, which strip was to be the property of the Crown, and was to have the effect of converting land so held into inland property, would be followed by grotesque and well-nigh impossible results, and violate the doctrine which is founded upon the general security of landholders and upon the general advantage’ (at 612).

It is true that in that case the properties were described, in one way and another, as bounded by the sea, and the respondent invoked this as a relevant distinction. But there is no logic or reason, in their Lordships’ opinion, in distinguishing a case where property is described as bounded by water from one where the relevant map shows beyond doubt that a water boundary is intended. The same ‘grotesque and well-nigh impossible results’ follow in either case if it is said that the original boundaries are to remain in spite of alluvial changes … [O]n the general argument, principle and overwhelming authority lead their Lordships to conclude that the doctrine of accretion was not excluded by the terms of the Perpetual Lease. If the doctrine of accretion applies, there is no difficulty as regards such accretion as has taken place by gradual deposit of sand or soil by the waters of the lake. This has occurred [page 84] in the northern or beach area, and the respondent does not, as a matter of fact, dispute it. It does, however, maintain that the position is different in the southern sector. The question here is whether the appellant can make good its claim to such portion of the accretion as has been caused, or mainly caused, by windswept sand. This question is divisible into two sub-questions: (i) whether the legal doctrine of accretion is, in principle, capable of application to the case of windswept sand, and (ii) whether the evidence satisfactorily establishes that extension of the appellant’s land has been brought about by accretion caused by windswept sand. As to (i) their Lordships know of no authority for or against the proposition that the doctrine is capable of applying to such a case. Accretion is, however, a doctrine of the common law and is therefore capable of adjustment and expansion by the use of analogy. In the first place it is necessary to limit the question to a case such as the present where what is involved is the alteration of a land/water boundary: other cases where alterations of boundaries may occur through windswept sand may give rise to different issues which their Lordships do not wish to preempt. In relation to such an alteration there seems to be no reason in principle why the doctrine should be confined to such changes as are effected solely through fluvial action: a logical category would be that of natural causes which would embrace additions to (or detractions from) land brought about by the action of either or both elements, water and air. It is common ground that changes caused by human action (other than deliberate action of the claimant) are within the doctrine of accretion, a fact which is inconsistent with the proposition that accretion is confined to the natural action of water … Further, as the present case well shows, it may be impossible in practice to ascertain to which cause (by air or by water) a given accretion is to be attributed or to apportion it between contributory causes — viz the fluvial action by the waters of the lake, the wind and the man-made operations. It is obvious that some drifting sand will enter the water directly and so be available to be added to the land by water deposit. This is mainly what happened in the northern beach sector of the appellant’s land where by the action of longshore drift, water-carried sand brought about an accretion of such traditional kind. Why then distinguish between this accretion and such accretion as occurred in the

southern section largely by direct addition to the land brought about by wind force, but presumably to a minor extent by water? In such a case, then as the present (and their Lordships repeat that they confine their observations to it), their Lordships are of opinion that the doctrine of accretion is capable of application. … (ii) The doctrine of accretion must be applied according to established principle. One of these is that the accretion must take place by gradual and imperceptible means … The word [imperceptible] of course, has to be interpreted. In R v Yarborough, Abbott CJ, giving the judgment of the King’s Bench ((1824) 3 B and C 91 at 107), said that it must be understood as ‘expressive only of the manner of accretion … and as meaning imperceptible in its progress, not imperceptible after a long lapse of time’. The gain to the land in that case, by recession of the sea, was said to have been on average, over 26–27 years, of about 5 yards in a year, or (according to other witnesses) greater and it was held that the jury could properly hold this to be imperceptible. In the opinion which Best CJ, on behalf of the judges, later gave to the House of Lords there is this passage: ‘Land formed by alluvion must become useful soil by degrees, too slow to be perceived. What is deposited by one tide will not be so transient as to be removed by the next. An embankment of a sufficient consistency and height to keep out the sea must be formed imperceptibly’ (2 Bligh (NS) 147 at 158) … [page 85] How then is this test of imperceptibility to be applied to the facts, in particular to the movement of sand dunes in the southern portion? Walters J, in a passage naturally much relied on by the appellant, found that the test was satisfied: ‘On the balance of probability I find that the alluvion on the eastern boundary of Section No 16 SW has become subject to the doctrine of accretion, and that that land has been gained, gradually, insensibly, and imperceptibly from Lake George, not at any particular moment, but in the same way “as the motion of the palm of a horologe is insensible at any instant, though it be very perceivable when put together in less than the quarter of an hour” (quoting from Lord Stair’s Institutions of the Law of Scotland)’. The respondent’s criticism of this passage was that it did not properly distinguish between what occurred in the northern beach section, which was admitted to be accretion, and the dune movement in the southern section, as to which there was evidence of ‘jump’ and perceptible movement … [Their Lordships considered the expert evidence presented at first instance, and decided that evidence as to long- and short-term movement was not conclusive as to whether the advance of the land had or had not been imperceptible. They therefore concluded that it was for the trial judge (who in fact viewed the location) to consider together the two indications as to long- and short-term movement. Taken together they provide material on which, in their Lordships’ opinion, his Honour was entitled to come to the conclusion that the movement was imperceptible

within the meaning of the authorities. The case was finely balanced, but the evidence was not such that he was bound to draw an inference that any sudden movements of the dunes were necessarily accompanied by consolidated intrusions of the shoreline into the lake. On this point therefore their Lordships uphold the finding of the trial judge.]

1.105

In Verrall v Nott (1939) 39 SR (NSW) 89, the owner of four lots

under the general law, that were described in the grants as being bounded by ‘North Harbour’, was held entitled to the benefit of any accretion to his land from the sea. This was so despite the fact that the Maritime Services Board, from whose land the accretion derived, had a Torrens system certificate of title covering the bed of the harbour ‘as bounded by high water mark’. It was held that the ‘high water mark’ did not refer to the mark at the time the certificate of title issued, but the mark as it existed in fact from time to time. The situation is different in Western Australia, by virtue of Land Act 1933 s 16(3) which provides that the boundaries of land fronting on the sea: … or any sound, bay or creek, or any part … affected by the ebb or flow of the tide or of any lake, lagoon, swamp, river or main stream, shall be limited in every case where possible by straight lines, as near to the high water mark as the Minister shall decide.

Such lines are to be marked on the ground, and the area between the line and the high-water mark is to vest in the Crown. The doctrine of accretion applies to imperceptible changes in the course of a river, tidal or non-tidal. Thus, if a river forms the boundaries between two plots, and it changes course imperceptibly (through silting up or otherwise), the boundary will change accordingly. There is some doubt as to whether the doctrine of accretion applies to the case of a shifting river, not forming

(initially at least) the boundary between two plots. Lindley J in Foster v Wright (1878) 4 CPD 438 held that it did, but Harrison, Cases on Land Law (1965), 35–6, casts doubt

[page 86]

upon the decision on the ground that the rationale of the doctrine is to avoid the difficulty of determining the precise boundary where there is a gradual shift in the course of the river.62

Encroachments 1.106

Some states have special legislation dealing with buildings

encroaching on a neighbour’s land. The legislation follows a similar approach to that dealing with improvements by mistake; indeed, the Property Law Act 1969 (WA) s 123 covers encroaching buildings as well as cases of mistakes as to the identity of land.63

Land bounded by water 1.107

If land is bounded by tidal waters, either because it is situated on the

sea, or on a tidal river or lake, the owner owns the land up to the mean highwater mark: Attorney-General v Chambers (1854) 4 De GM & G 206. 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. The rule applies to land held under the Torrens system: Verrall v Nott (1939) 39 SR

(NSW) 89. Land below the mark belongs to the Crown in right of the state: Hill v Lyne (1893) 14 LR (NSW) 449. 1.108

At common law, if land contained non-tidal waters (whether in the

form of a river or lake) the owner retains exclusive rights to the bed: the ‘alveus’: Orr Ewing v Colquhoun (1877) 2 AC 839. But if land is bounded by non-tidal waters, ownership of the land confers rights up to the ‘middle line’ (in Latin, medium filum) of the water: Lord v Commissioners for the City of Sydney (1859) 12 Moo PC 473; 14 ER 991. The rule has been held to apply to Torrens title land: Lanyon Pty Ltd v Canberra Washed Sand Pty Ltd (1966) 115 CLR 342. The common law rule is effectively obsolete in regard to both non-tidal rivers and lakes by legislation in four states which vests title to alveus in the Crown, so that the owner’s rights end where land and water meet.64 The doctrine of accretion applies: Southern Centre of Theosophy Inc v South Australia [1982] AC 706.

When chattels merge: the doctrine of accession 1.109

Accession is a doctrine that originated in Roman law. It governs the

ownership of chattels that have been merged. In particular, it deals with the problem of the rights of the parties in circumstances where it is no longer possible to separate the chattels easily.

[page 87]

1.110C

Rendell v Associated Finance Pty Ltd [1957] VR 604 Supreme Court of Victoria

[The complainant, Rendell, hired a Chevrolet car engine to one Pell under a hire–purchase agreement in the usual form, dated 2 September 1955. In August 1955, Pell had hired a 1942 Chevrolet utility truck from the defendant company under a hire–purchase agreement, also in the usual form. This agreement contained a clause providing that ‘any accessories or goods supplied with or for or attached to or repairs executed to the goods shall become part of the goods’. At some time after 2 September 1955, Pell removed the old engine from the truck and replaced it with the engine hired from Rendell. Rendell did not assist in this operation but became aware of it soon after it was completed. Pell failed to meet the payments due for the hire of the truck and on 15 February 1956 the defendant, Connley, acting with the authority of the company, repossessed the truck. At that time, neither Connley, who had guaranteed Pell’s performance of the hire–purchase agreement with the company, nor the company knew that a different engine had been substituted for the one originally in the truck. Connley paid the amount due under the hire–purchase agreement, pursuant to the guarantee, and the company agreed that the truck and the engine should thereafter belong to Connley. The complaint claimed the sum of £53 from the defendants as damages for conversion of the engine. The magistrate found in the complainant’s favour and the defendants obtained an order nisi returnable before the Full Court to review the magistrate’s order.] O’Bryan J: [delivering the judgment of the court, Lowe, O’Bryan and Barry JJ] … If [the engine] had been Pell’s own engine, by attaching it to the hired truck he would have passed his right of ownership therein to the defendant company, by reason of the condition contained in his hire-purchase agreement with the defendant company: see Akron Tyre Co Pty Ltd v Kittson (1951) 82 CLR 477. But as he had no greater rights in it than that of hirer, the clause in his agreement with the defendant company that accessories or goods attached to the hired truck should become part of the truck, could not operate proprio vigore [by its own force] to pass the property in the engine to the company: see Akron Tyre case at 483, 485 and 489 … The first ground of the order nisi is that the magistrate should have held that the engine, in consequence of its having been installed by Pell in the motor truck, became the property of the defendant company and had prior to any act of conversion by the defendants ceased to be the property of the complainant … [T]he fundamental principle in English law in relation to the passing property by reason of the annexation of one chattel to another looks at the necessity of the occasion.

Two Australian decisions of strong persuasive authority in relation to accessories added to a motor vehicle were brought to our attention. In Bergougnan v British Motors Ltd (1929) 30 SR (NSW) 61, the Full Court of New South Wales had to consider the question whether the property in motor tyres belonging to A which had been put into a motor lorry belonging to B, passed to B. It was held that the tyres did not so merge into the motor lorry so that the ownership in them passed to the owner of the lorry. The basis of the decision appears to have been that there was no change of ownership because they were readily identifiable and could be detached without damage to the lorry. There was, however, no real discussion of the doctrines of accession, but this absence is readily explainable on the view that the facts did not require resort to such a doctrine. The same question in relation both to tyres and other accessories which had been attached to a motor primemover trailer was considered again by the Full Court of New South Wales in Lewis v Andrews and Rowley Pty Ltd (1956) 73 WN (NSW) 670. Ferguson J, in a judgment in which [page 88] Roper CJ in Eq concurred, emphasised at the outset that it is a general rule of English law that property in chattels is transferred only when the owner so intends; that the doctrine of accession is an exception to that rule, but that doctrine is only applied where the circumstances require its application. He rejected the submission that if the attached articles are essential to the operation of the vehicle, they became, when affixed, incorporated with it so that the property in them thereby passes to the owner of the vehicle. In his opinion the doctrine of accession is applied only as a matter of practical necessity. He accordingly held that the property in those accessories which were readily identifiable and could be detached from the vehicle without damage thereto did not pass to the owner of the vehicle. He also expressed the opinion that once it was proved that the articles claimed belonged to the plaintiff at the time when they were attached to the vehicle and that he intended to retain his ownership therein, it was for the defendant on proper evidence to establish that the property in them had passed to the owner of the vehicle … We consider the test laid down by Ferguson J (in which Roper CJ in Eq concurred) is the proper one to apply in this class of case in which accessories in the nature of spare parts are attached to a motor vehicle. Prima facie the property in the accessory does not pass to the owner of the vehicle if the owner of the accessory did not intend it to pass. It is for the defendant by proper evidence to show that the necessity of the case requires the application of principles whereby the property is deemed to pass by operation of law. The accessories continue to belong to their original owner unless it is shown that as a matter of practicability they cannot be identified, or, if identified, they have been incorporated to such an extent that they cannot be detached from the vehicle. It is clear in this case that the plaintiff was the owner of the engine when it was annexed to the truck and that he intended to retain the property in the engine until Pell exercised his option to buy it. In our opinion, he is entitled to rely on the presumption that he continued to remain the owner, so that in the absence of evidence to the contrary the engine continued to belong to him, which, in this case, would require evidence from the defendants that as a matter of practicability it had been so attached to the truck that

it could not be detached therefrom. But even if the ultimate onus was on the plaintiff, as Mr McInerney contended, to prove that at the date of conversion he was still entitled to possession of the engine, or in other words to prove that its manner of annexation did not as a matter of justice require that it should remain where it was, so that the property in it should be deemed to have passed to the owner of the truck, the proper inference from the meagre material placed before the magistrate was that it had not been so annexed or attached but could be detached without difficulty or harm to anything … This is an age when automobile parts are generally standardised and interchangeable, at all events in the case of motor vehicles of the same make and year of manufacture. The court should not shut its eyes to what is common knowledge. For these reasons we are of opinion that the property in the engine remained throughout the property of the complainant, Rendell, and that the magistrate arrived at the correct decision in this regard. Nothing that we have said is intended to cover a case where the plaintiff’s chattel has been annexed to another by his authority, either express or implied, or where his conduct is such as to estop him from contending that he is still entitled to his chattel. These are questions which do not arise in this case. This disposes of ground 1 of the order nisi … [O’Bryan J then rejected other grounds of the order nisi. In particular, he held that Connley, when he repossessed the truck, committed the tort of conversion even though he was acting honestly. The tort of conversion was committed by an intentional taking regardless of whether the taker had a mistaken belief as to the ownership of the object taken.]

[page 89]

1.111 Questions 1.

What is the justification for the doctrine of accretion?

2.

Why must the accretion be gradual and imperceptible before the doctrine operates?

3.

In what circumstances does the doctrine of accession affect proprietary interests in chattels? Does the Supreme Court propound an objective or subjective test to determine the

application of the doctrine? If the test is subjective, why is the approach different from that used in the law of fixtures? 4.

The Supreme Court commented that prima facie property in an accessory does not pass unless the owner intended it to pass. Is this the same approach which is taken to the doctrine of fixtures?

5.

The doctrine of accession is also said to apply to accession by natural means, as in the case of animals: cf Tucker v Farm and General Investment Trust Ltd [1966] 2 QB 421; [1966] 2 All ER 508. What economic reasons support the application of the doctrine in these circumstances?

1.112

The doctrine of accession is closely related to that of intermixture,

referred to in the judgment in Rendell’s case. The doctrine of intermixture applies where separate objects are mixed so as to become indistinguishable. An example is where separate consignments of wheat are stored in the one silo.65 In McKeown v Cavalier Yachts Pty Ltd (1988) Aust Torts Reports ¶80172, the plaintiff, who owned the hull of a yacht, agreed to complete the yacht with the defendant for $20,000 as well as the plaintiff’s old yacht as a trade-in. Later, the defendant agreed to sell its business and assets to the second defendant, Spartech, but did not formally assign to Spartech the benefit of contracts which Cavalier had with its customers. Spartech took possession of the hull and did extensive work on it. The plaintiff sued in detinue to recover the yacht, or in equity for specific restitution, arguing that the hull was his property and the additional material added to the yacht had

also become his property by virtue of the doctrine of accretion. The court held that by the doctrine of accretion McKeown, rather than Spartech, had property in the yacht because the improvements could not be removed without destroying the original chattel. In Borden (UK) Ltd v Scottish Timber Products Ltd [1981] Ch 25; [1979] 3 All ER 961, resin once mixed with chipboard was held not to exist as a separate chattel with the result that the plaintiff lost title to it.

1.

(1954) 9 Rutgers LR 357.

2.

W Hohfeld, ‘Some Fundamental Legal Conceptions as Applied in Judicial Reasoning’ (1913) 23 Yale Law Journal 16 at 21–2.

3.

Hamilton v Porta [1958] VR 247; (1957) 65 ALR 620.

4.

Local Government Act 1993 (NSW) s 45; see Kogarah Municipal Council v Golden Paradise Developments Pty Ltd (2007) 12 BPR 23,651 and in particular comments by Basten JA at [101]– [102].

5.

Blundell v Catterall (1821) 5 B & Ald 268; 106 ER 1190.

6.

Case of the Royal Fishery of the Banne (1610) Dav 55; 80 ER 540.

7.

Commonwealth v Yarmirr (2001) 208 CLR 1; 184 ALR 113.

8.

For further discussion of these issues, see Coval, Smith and Coval, ‘The Foundations of Property and Property Law’ (1986) 45 Cam LJ 457; Underkuffler, ‘On Property: An Essay’ (1990) 100 Yale LJ 127; Brudner, ‘The Unity of Property Law’ (1991) 4 Can J of Law & Juris 3; Butler, ‘The Pathology of Property Norms: Living Within Nature’s Boundaries’ (2000) 73 Southern California Law Review 927.

9.

Charter of Human Rights 2005 (ACT); Charter of Human Rights and Responsibilities Act 2006 (Vic) s 20. These will be examined below at 1.61–1.66.

10. Thomas v Sorrell (1673) Vaughn 330; 124 ER 1098. 11. Wood v Leadbitter (1845) 13 M&W 838; 153 ER 351. 12. Ibid.

13. Jarvis v Swan Tours [1973] QB 233; Jackson v Horizon Holidays Ltd [1975] 3 All ER 92. 14. Australian Softwood Forests Pty Ltd v Attorney-General (NSW) (1981) 148 CLR 121; 36 ALR 257. 15. For a discussion of the problems of contractual licences, see Wade, ‘What is a Licence?’ (1948) 64 LQR 57; ‘Stern Licences and Self-Help — The Ticket Cases Revisited’ (1968) 32 Conv & PL 49; Moriarty, ‘Licences and Land Law: Legal Principles and Public Policies’ (1984) 100 LQR 376. More generally, see Merrill and Smith, ‘The Property/Contract Interface’ (2001) 101 Columbia Law Review 773. 16. (1952) 52 SR (NSW) 143. 17. [1980] 1 All ER 839. 18. See Wolverhampton & Walsall Railway Co v London and North & Western Railway Co (1873) LR 16 Eq 433 at 439 per Lord Selborne LC. 19. Dougan v Ley (1946) 71 CLR 142. Some writers suggest that specific performance, strictly so called, is confined to the first situation. For an explanation of the difference, see Dixon J in J C Williamson Ltd v Lukey & Mulholland (1931) 45 CLR 282 at 297; [1931] ALR 157 at 161. 20. Dowsett v Reid (1912) 15 CLR 695 (hardship); Harrigan v Brown [1967] 1 NSWR 342 (clean hands); Lamshed v Lamshed (1963) 109 CLR 453 (delay). 21. Hill v C A Parsons & Co Ltd [1972] Ch 305; [1971] 3 All ER 1345. 22. J C Williamson Ltd v Lukey & Mulholland (1931) 45 CLR 282; [1931] ALR 157. 23. Humphries v Southern Cross Ski Club [2012] VSC 232 [58]–[62]; Sigma Constructions (Vic) Pty Ltd v Maryvell Investments Pty Ltd [2004] VSCA 242 [31]. 24. Meagher, Heydon and Leeming, 766. 25. Gray and Gray, 2009, 90. 26. Blackstone, Commentaries, Bk II, 2. 27. See Gray, [1991] CLJ 252. 28. See, for instance, National Provincial Bank Ltd v Ainsworth [1965] AC 1175 at 1251–2 per Lord Wilberforce, and Lord Upjohn (at AC 1239) pointed out that the decision underestimated the difficulties created by King v David Allen. For a general discussion of these issues, see McFarlane, ‘Identifying Property Rights: A Reply to Mr Watt’ [2003] Conv 473. 29. Pollock and Maitland, The History of English Law, 2nd ed, 1968, vol 1, 451. 30. Higginbotham and Kopytoff, ‘Property First, Humanity Second: The Recognition of the Slave’s Human Nature in Virginia Civil Law’ (1989) 50 Ohio St LJ 511.

31. Hardingham and Neave, Australian Family Property Law (1984), Chs 1–3. 32. The judgments in this case are copiously footnoted. Most of these footnotes have been omitted from the extract. Those which have been retained are set out at the end of the extract. 33. Mortimer, ‘Proprietary Rights in Body Parts: The Relevance of Moore’s case in Australia’ (1993) 19 Mon LR 217. For a criticism of the policy arguments made by the majority, see Magnusson, ‘The Recognition of Proprietary Rights in Human Tissue in Common Law Jurisdictions’ (1992) 18 MULR 601; Zodrow, ‘The Commodification of Human Body Parts: Regulating the Tissue Bank Industry’ (2003) 32 Southwestern University Law Review 407. 34. For a discussion of the legal issues raised by transplantation, see Scott, The Body As Property (1981); Davies and Naffine, 2001, Ch 7; and Australian Law Reform Commission, Human Tissue Transplants, Report No 7 (1977). 35. Compare Transplantation and Anatomy Act 1978 (ACT) s 44; Human Tissue Act 1983 (NSW) s 32; Human Tissue Transplant Act (NT) s 24; Transplantation and Anatomy Act 1979 (Qld) ss 40–42; Transplantation and Anatomy Act 1983 (SA) s 35; Human Tissue Act 1985 (Tas) s 27; Human Tissue and Transplant Act 1982 (WA) ss 29, 30. 36. For a general discussion see Atherton, ‘Claims on the Deceased: The Corpse as Property’ (2000) 7(4) Journal of Law and Medicine 361–75, and other articles in this special issue on the body and property, and Australian Law Reform Commission, Essentially Yours: The Protection of Human Genetic Information in Australia, Report 96 (2003). 37. For a discussion of this case, see L Bennett Moses, ‘Property in Sperm’ (2011) 1 Prop L Rev 135 and J Edelman, ‘Property Rights to Our Bodies and Their Products’ (2015) 39 UWALR 47. 38. On a regulatory approach to this question, see C Dent, ‘Stepping Back from the Property Line: a Perspective from Regulatory Theory’ (2013) 21 Jo Law & Med 330. 39. For further discussion of the contrasting approaches of the High Court of Australia in Victoria Racing Park and Recreation Grounds Co Ltd v Taylor see 1.46C; and of the US Supreme Court in International News Services v Associated Press, see Gray, ‘Property in Thin Air’ [1991] Cambridge LJ 252, 266ff; Coval, Smith and Coval, ‘The Foundations of Property and Property Law’ (1986) 45 CLJ 457. For a discussion of the action for nuisance in relation to the obstruction of views, see Gillespie, ‘Private Nuisance as a Means of Preventing Views from Obstruction’ (1989) 6 Env and Planning Law Journal 94. 40. For a detailed discussion of the passing off action, see Ricketson, Chs 24–26. 41. For a general discussion of these issues, see J Caldwell, ‘Protecting Privacy Post Lenah: Should the

Courts Establish a New Tort or Develop Breach of Confidence?’ (2003) 26(1) UNSWLJ 90. 42. ALRC, Serious Invasions of Privacy in the Digital Era (Report 123) (2014). 43. See further, N Witzleb, ‘A Seed on Barren Ground? The ALRC’s Recommendation for a Statutory Privacy Tort’ (2014) 42 Aust Bus Law Rev 403. 44. A Cunningham, ‘The European Convention on Human Rights, Customary International Law and the Constitution’ (1994) 43 International and Comparative Law Quarterly 537–67 at 553. See also M Kirby, ‘The Role of International Standards in Australian Courts’, in P Alston and M Chiam eds, Treaty-Making and Australia: Globalization versus Sovereignty, Federation Press, Sydney, 1995, 81–92. 45. JA Pye (Oxford) Ltd v United Kingdom [2005] ECHR 921. For further discussion, see 2.76. 46. JA Pye (Oxford) Ltd and JA Pye (Oxford) Land Ltd v United Kingdom [2007] ECHR 700. 47. [2004] EHRR 189. 48. For a critical analysis of the traditional classification, see Jackson, 23–31; and, generally, Lawson, Ch 2. 49. See also Bradbrook, ‘The Relevance of the Cujus Est Solum Doctrine to the Surface Landowner’s Claims to Natural Resources Above and Beneath the Land’ (1988) 11 Adel L R 462. For a general discussion of the relevant case law from a number of jurisdictions, see Grattan, ‘Judicial Reasoning and the Adjudication of Airspace Trespass’ (1996) 4 APLJ 128. 50. Legislation in Queensland, New South Wales and Tasmania has now given the courts power to impose easements in circumstances similar to those in LJP Investments Pty Ltd v Howard Chia Investments Pty Ltd: Property Law Act 1974 (Qld) s 180; Conveyancing Act 1919 (NSW) s 88K; Conveyancing and Law of Property Act 1884 (Tas) s 84J. See further 10.98. 51. Property in intangibles, such as charms, spells and songs, also exists in many non-industrialised societies: see Lowie, ‘Incorporeal Property in Primitive Society’ (1928) 37 Yale LJ 551; Hoebel, The Law of Primitive Man, 1954, 56–63. 52. Collier, ‘Distinguishing Chattels and Fixtures: Intent and Annexation’ (1994) 2 APLJ 189; Butt, 41–7. 53. For modern cases applying Hobson v Gorringe, see Kay’s Leasing Corp Pty Ltd v CSR Provident Fund Nominees Pty Ltd [1962] VR 429; Pan Australian Credits (SA) Pty Ltd v Kolim Pty Ltd (1981) 27 SASR 353; Sanma Australia Leasing Ltd v National Westminster Finance Australia (1988) 4 BPR 97,294.

54. See also Maori Trustee v Prentice [1992] 3 NZLR 344; Anthony v The Commonwealth [1972–73] ALR 769; (1973) 47 ALJR 83 at 89–90; Wellsmore v Ratford (1973) 23 FLR 295; Best, ‘Competing Claims to Ownership of Fixtures’ (1995) 3 APLJ 221. For a discussion of the problems arising over mortgaged land, see Butt, ‘Removing Fixtures Against Mortgagees’ (1995) 69 ALJ 858. 55. On this point, see L Griggs, ‘The Doctrine of Fixtures: Questionable Origin, Debatable History, and a Future that is Past!’ (2001) 9 APLJ 51. 56. See, for example, Dr Bronte Douglass v Lawton Pty Ltd [2007] NSWCA 89. 57. Bain v Brand (1876) 1 App Cas 762 at 772; Northshore Gas Co Ltd v Commissioner of Stamp Duties (NSW) (1939–1940) 63 CLR 52 per Dixon J at 68, who observed that removable tenant’s fixtures are part of the soil unless and until removed. 58. Agricultural Tenancies Act 1990 (NSW) s 14 (see also ss 5–7) (this applies only to land of minimum size of one hectare used solely or mostly for agricultural purposes); Property Law Act 1958 (Vic) s 154A(1); Property Law Act 1974 (Qld) s 155; Landlord and Tenant Act 1935 (Tas) s 26. 59. See, for example, Agricultural Tenancies Act 1990 (NSW) ss 6–8; Property Law Act 1974 (Qld) Pt 8 Div 6; Agricultural Holdings Act 1891 (SA) ss 6–22. 60. See Residential Tenancies Act 1987 (NSW) s 27; Residential Tenancies Act 1995 (SA) s 70; Residential Tenancies Act 1980 (Vic) s 104; Residential Tenancies Act 1987 (WA) s 47 (an agreement may provide to this effect). 61. Victorian Law Reform Commission, Review of the Property Law Act 1958: Final Report, 2010. 62. See generally Moore, ‘Land by the Water’ (1968) 41 ALJ 532. See also Bradbrook, MacCallum, Moore and Grattan 802–8; Butt, 26–37; Gray, Edgeworth, Foster and Dorsett, 40–1. 63. Encroachment of Buildings Act 1922 (NSW); Real Property Act 1900 (NSW) Pt 14A; Encroachment of Buildings Act (NT); Property Law Act 1974 (Qld) Pt 11; Encroachments Act 1944 (SA). For cases discussing the application of these provisions, see Gesmando v Anastasiou (1975) 1 BPR 9297; Kostis v Devitt (1979) 1 BPR 9231; Ex parte Achterberg [1984] 1 Qd R 160; Cuthbert v Hardie (1989) 17 NSWLR 321; Amatek Ltd v Googoorewan Pty Ltd (1993) 176 CLR 471; 112 ALR 1; 67 ALJR 339; Tallon v The Proprietors of Metropolitan Towers Building Units Plan No 5157 [1997] 1 Qd R 102. See also Butt, 62–7. In 2010, the Victorian Law Reform Commission in its Review of the Property Law Act 1958: Final Report, Ch 4, recommended enactment of similar legislative provisions.

64. Crown Lands Act 1989 (NSW) s 172; Land Act 1994 (Qld) s 13A; Land Act 1958 (Vic) ss 384– 385; Rights in Water and Irrigation Act 1914 (WA) ss 15, 16. 65. For the rules concerning intermixture, see Fisher, Commercial and Personal Property Law, 1997, 112–20. See generally Guest, ‘Accession and Confusion in the Law of Hire-Purchase’ (1964) 27 Mod L R 505; Alston, ‘Chattels Attached to Chattels’ (1996) 45 APLJ 120.

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Possession and Title

CHAPTER

2

INTRODUCTION 2.1

This chapter examines some fundamental principles of the modern law

relating to land and goods. Historically, tangible forms of wealth constituted the economic backbone of pre-industrial societies. And where the majority of the population is illiterate, it is not surprising that the law of such societies has placed great emphasis on the physical holding of land and goods. As Holmes J wrote in Missouri v Holland 252 US 416 at 434 (1920): ‘Wild birds are not in the possession of anyone; and possession is the beginning of ownership.’ So, the concept of possession was central to the remedies developed by the early common law. The historical position was outlined in Government of the Islamic Republic of Iran v The Barakat Galleries Ltd [2007] EWCA Civ 1374; [2009] QB 22 at [15] (per Lord Phillips of Worth Matravers CJ, Wall and Lawrence Collins LLJ): Originally the common law did not differentiate between possessory title and proprietary title. Possession of a chattel gave title to it. Where there was an involuntary transfer of possession, as a

result for instance of loss or theft of the chattel, the person who had first possessed the chattel would have a superior title to the subsequent possessor.

2.2

Possession continues to play a role, if a much-diminished one, in the

modern law. The general principle is that a person in possession of land or goods, even as a wrongdoer, is entitled to take action against anyone interfering with the possession unless the person interfering is able to demonstrate a superior right to possession. Possession is to be contrasted with ‘title’, the term we use to describe the ‘owner’s’ rights and the evidence adduced to establish them. The various ‘title’ systems of Australian land law will be examined in Chapter 5, but before title is considered, an examination of how the law protected possession is required.

Why protect ‘possession’? 2.3

The emphasis of the common law on possession as a source of

proprietary interests has attracted the attention of many writers.1 In The Common Law,2 the American jurist

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Oliver Wendell Holmes explained the law’s protection of possession as a safeguard of peace and good order, instancing the common law’s recognition of rules developed by hunters to regulate claims to captured animals: Possession is a conception which is only less important than contract … Why is possession protected by the law, when the possessor is not also an owner? … The courts have said but little on

the subject. It was laid down in one case that it was an extension of the protection which the law throws around the person: Rogers v Spence (1844) 13 M&W 571 at 581; 153 ER 239 at 243. So it has been said, that to deny a bankrupt trover against strangers for goods coming to his possession after his bankruptcy would be ‘an invitation to all the world to scramble for the possession of them’, and reference was made to ‘grounds of policy and convenience’: Webb v Fox (1797) 7 TR 391 at 397; 101 ER 1037 at 1040. I may also refer to the cases of capture … In the Greenland whalefishery, by the English custom, if the first striker lost his hold on the fish, and it was then killed by another, the first had no claim; but he had the whole if he kept fast to the whale until it was struck by the other, although it then broke from the first harpoon. By the custom in the Gallapagos, on the other hand, the first striker had half the whale, although control of the line was lost: Fennings v Lord Grenville (1808) 1 Taunt 241; 127 ER 825; Littledale v Scaith (1788) 1 Taunt 243, n (a); 127 ER 826; cf Hogarth v Jackson (1827) Mood & M 58; 173 ER 1080; Skinner v Chapman (1827) Mood & M 59, n; 173 ER 1081. Each of these customs has been sustained and acted on by the English courts, and Judge Lowell has decided in accordance with still a third, which gives the whale to the vessel whose iron first remains in it, provided claim be made before cutting in: Swift v Gifford 2 Lowell 110. The ground as put by Lord Mansfield is simply that, were it not for such customs, there must be a sort of warfare perpetually subsisting between the adventurers.

POSSESSION OF GOODS 2.4

Fundamental to property law is the distinction between real property

(realty) and personal property (otherwise known as chattels, or personalty). For historical reasons, leases have been classified as ‘chattels real’, a species of personalty, but are more conveniently considered under the heading of real property. Pure personalty, or ‘chattels personal’ can be classed as either: (1) choses in possession, which are tangible property other than land, such as jewellery, motor vehicles and other goods; or (2) choses in action, which are

intangible property such as shares, debts and copyright. Choses in possession, or goods, are distinctive because they can be physically possessed. 2.5

The legal test for possession of goods is met when two conditions are

fulfilled: (1) actual physical control; and (2) an intention to possess, or animus possidendi. These requirements are the same as those required to establish a possessory title to land.3 In Young v Hichens,4 two fishing vessels were separately attempting to catch the same shoal of fish. It was held that the plaintiffs, who had partially enclosed their net around the fish, did not have possession in law because they did not have de facto control. It followed that they could not maintain an action in trespass (see 2.8 below) to prevent the defendants taking the fish. Contrast this case with

[page 93] The Tubantia,5 where a salvage company had laid buoys and lights around the site where the ship was located, and had cut access holes in the ship’s hull. A competitor sought to extract material from the ship. The first salvage company was held to have possession of a sunken ship and its contents because its acts were held sufficient to establish de facto control and animus possidendi. 2.6

Possession usually coincides with ownership. But rights to possession

and ownership, or title, to goods, are often held by different persons. Some common examples are:

contractual bailment, where the owner grants a temporary right of possession to another; hire–purchase agreements; contracts for the sale of a chattel where the seller retains custody of the chattel; finders of lost or mislaid chattels; and where goods have been stolen. 2.7

In these situations, the possessor has a proprietary interest different in

kind to that of the owner of goods, or the title holder. The possessor was protected in law differently to the owner out of possession. By contrast, the owner out of possession had two different kinds of rights, either: (1) an immediate right to possession, which would arise where, for example, a bailment had come to an end, but the bailee still retained possession, or, where a finder had possession of a lost chattel; or (2) a right to future possession, as where a bailee held the chattel during the currency of the contractually agreed term of the bailment. During this time, the owner did not have a right to possess the chattel.

Remedies 2.8

The law provides a range of remedies in tort to all those who hold

proprietary interests in chattels. The tort of negligence protects the holder of an interest in a chattel, regardless of the nature of their interest, against reasonably foreseeable harm to it: Mears v London and South Western Railway

Co (1862) 11 CBNS 850; 142 ER 1029. The intentional torts also provide redress for wrongful interference with goods. These torts are trespass, detinue, conversion and action on the case. They differ from negligence to the extent that all four actions provide remedies where only one or some of the different proprietary rights in goods are affected. In particular: Trespass lies where there is an interference with the plaintiff’s actual possession, such as the wrongful taking of goods, and is actionable without proof of damage. A non-owner who was in actual possession at the time of the taking can sue in trespass, while an owner who was not in actual possession, either personally or through the custody of a servant, agent or bailee at will, cannot: Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204 at 225. Conversion lies at the suit of a plaintiff who was in actual possession of the goods at the time of the wrong or had an immediate right to possession, the gist of the action being an intentional denial of the plaintiff’s dominion over the goods. Title to sue in conversion depends on the right to possession, not proof of absolute ownership. ‘Conversion consists of a positive wrongful act of dealing with goods in a manner inconsistent with the rights of the owner’: Maynegrain Pty Ltd v Compafina Bank [1984] 1 NSWLR 258 at 264 (Privy Council);

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Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204 at 229. Conversion

commonly occurs where goods are transferred into the possession of the wrongdoer or a third party who is not entitled to them. In Cook v Saroukos (1989) 97 FLR 33 at 41 it was stated: ‘The delivery of goods to a third party with the intent to pass ownership, or even possession, constitutes conversion.’ Mere detention or handling is not sufficient to found a claim of conversion. It is necessary to show a degree of use amounting to employing goods as if they were one’s own: Kuwait Airways Corp v Iraqi Airways Co [2002] AC 883; [2002] UKHL 19 at [42]–[45]. Detinue lies at the suit of a plaintiff who was in actual possession or had an immediate right to possession at the time of the wrong, the gist of the action being that the defendant wrongfully retains the plaintiff’s goods following the plaintiff’s lawful demand for their return. The plaintiff need not prove title or ownership, but the right to possession must derive from some proprietary or possessory interest in the chattel: Horsley v Phillips Fine Art Auctioneers Pty Ltd (1995) 7 BPR 14,360; Russell v Wilson (1923) 33 CLR 538. The elements for a cause of action in detinue will usually ground an action in conversion; for example, where the defendant wrongfully took the goods from the plaintiff’s possession and refused to return them on demand.6 Action on the case lies at the suit of an owner out of possession who has a mere right of future possession, but the damage to the chattel is ‘special’, that is to say, enduring, as where the chattel is completely destroyed. In such situations, the owner’s future, or reversionary interest, is harmed.7 In

Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204 at 230 Dixon J referred to this action as: … 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’.

In Mears v London and South Western Railway Co (1862) 11 CBNS 850; 142 ER 1029 the owner of a barge, Mears, hired it to Russell. During the term of the bailment, Russell employed the defendants who seriously damaged it. Williams J held that ‘where there is a permanent injury, the owner may maintain an action against the person whose wrongful act has caused that injury’ (at 854–5). Although the damage in Mears was caused by negligence, the principle of the case also extends to intentional damage, and even where the injury to the chattel is caused by negligence, the action still appears to be framed as an action on the case.8 See also O’Sullivan v Williams [1992] 3 All ER 385 (below) at 2.30. 2.9

Despite the overlap, there are differences in the remedies available for

conversion and detinue. In an action for conversion, the normal remedy is damages, while detinue developed as a proprietary action for return of the specific chattel, or its assessed value, plus damages for its detention: A principle on which the court has long acted is not to order delivery of goods which are ordinary articles of commerce with no special value or interest, whether to the plaintiff

[page 95]

or others, when damages will fully compensate. If a plaintiff can easily replace the goods detained by purchasing their equivalent on the market, then the payment of damages out of which the price of the equivalent may be paid is adequate compensation to the wronged plaintiff …9

In McKeown v Cavalier Yachts Pty Ltd (1988) 13 NSWLR 303, the plaintiff claimed specific restitution of a yacht which the defendant refused to deliver. At the time of the yacht coming into the possession of the defendant, it consisted only of a laminated hull but at the time of the action, the yacht was ready to sail. Young J held that a person’s yacht was unique and, for that reason, susceptible to the remedy of specific restitution.10 His Honour also held that the doctrine of accretion applied, so that chattels added to the hull became the property of the original owner. Animals are considered chattels in law. The following case raises the question of rights to the progeny of animals that have been converted or unlawfully detained. 2.10C

Grant v YYH Holdings Pty Ltd [2012] NSWCA 360 New South Wales Court of Appeal

McColl JA: YYH Holdings Pty Ltd (‘YYH Holdings’) and Hamoud Ali Al-Khalaf (trading as Transportation EST), the respondents, brought an action in detinue and conversion against Phillip and Karen Grant, the appellants, for the return of 16 Awassi sheep, all other sheep which had been bred from those sheep and any other sheep of any cross containing Awassi genetics. Rolfe DCJ found that although the cause of action in respect of the 16 sheep had expired, the same was not the case for the progeny and semen of those sheep. Accordingly, his Honour ordered that the appellants deliver up to the respondents all of the progeny and any embryos and/or straws and pellets of semen of the 16 original sheep: YYH Holdings Pty Ltd v Grant (District Court of New South Wales, Rolfe DCJ, unreported, 23 March 2012). The appellants appeal from those orders. The issue on appeal is whether the respondents’ claim to the progeny and ‘genetics’ of the 16 original sheep is also statute barred. Section 14(1)(b) of the Limitation Act 1969 provides, relevantly, that ‘[a]n action on a cause of action founded on tort is not maintainable if brought after the expiration of a limitation period of six years running

from the date on which the cause of action first accrues to the plaintiff’. The following provisions of the Limitation Act are also relevant: s 21 Where: (a) a cause of action for the conversion or detention of goods accrues to a person, and (b) afterwards, possession of the goods not having been recovered by the person or by a person claiming through the person, a further cause of action for the conversion or detention of the goods or a cause of action to recover the proceeds of sale of the goods accrues to the person or to a person claiming through the person, an action on the further cause of action for conversion or detention or on the cause of action to recover the proceeds of sale is not maintainable if brought after the expiration of a limitation period of six years running from the date when the first cause of action first accrues to the plaintiff or to a person through whom the plaintiff claims. [page 96]

[Pursuant to a contract of sale, ownership of the Awassi Sheep was transferred to the respondents on 4 November 2003, but attempts to take possession in January 2004 were rebuffed by the appellants in whose possession they remained as shareholders of the company that originally owned the sheep. Many subsequent attempts were made to reclaim the sheep, including threats of legal action, which did not eventuate until 8 December 2010, after the respondents found out that the appellants were advertising the sale of 209 Awassi sheep at auction in November 2010]. The respondents’ claimed entitlement to the progeny of the original 16 sheep is based on the maxim that offspring of domestic animals are the property of the owner of the dam: Case of Swans [1572] EngR 403; (1572) 7 Co Rep 15b (at 17b); 77 ER 435 cited with approval in Yanner v Eaton [1999] HCA 53; (1999) 201 CLR 351 (at [24]) per Gleeson CJ, Gaudron, Kirby and Hayne JJ; see also Big Top Hereford Pty Ltd v Gavin Thomas as Trustee of the Bankrupt Estate of Douglas Keith Tyler [2006] NSWSC 1159 (at [35]) per Brereton J. A cause of action in conversion accrues once the person in possession of the goods engages in an act which is repugnant to the owner’s right to possession, for example, by retaining the goods after a lawful demand: see Bunnings Group Ltd v CHEP Australia Ltd (at [117]–[121]). Mere unauthorised possession of another’s chattel is not a conversion of it: Bunnings Group Ltd v CHEP Australia Ltd (at [117]). The essence of detinue lies in a wrongful refusal to deliver up goods to a person having the immediate right to the possession of those goods: CHEP Australia Ltd v Bunnings Group Ltd [2010] NSWSC 301 (at [183]) per McDougall J. Similarly, the cause of action in detinue accrues once a lawful demand for the return of possession of the chattel is made and the demand is refused: Philpott v Kelley (1835) 3 Ad & El 106; (1835) 111 ER 353; Miller v Dell [1891] 1 QB 468; Lloyd v Osborne (1899) 20 LR (NSW) 190. Accordingly at the end of six years after the accrual of the cause of action, the title of the original owner to the converted or wrongfully detained chattel, and hence any cause of action for conversion and/or detinue, is extinguished: s 65(1) Limitation Act. There may be different limitation periods if the facts establish that the causes of action

in conversion and detinue accrued at different times: John F Goulding Pty Ltd v Victorian Railways Commissioners [1932] HCA 37; (1932) 48 CLR 157 (at 169–170). The appellants relied upon Seay v Bacon (1856) 4 Sneed (TN) 99; 36 Tenn 99 (Tenn); 1856 WL 2500 (Tenn), a decision of the Supreme Court of Tennessee where the court held that ‘By our law, the issue of a female slave follows the condition of the mother. The children are part of the mother, and, potentially, exist in her before they have a being. The ownership of the mother carries with it the property in the children born of her during the period of such ownership. The mother and her issue are treated, in respect of the title and rights of the owner, as an aggregate property.’ Whatever affects the rights or remedies of the owner as respects the mother, equally affects his rights and remedies in respect to her issue. [They argued that the case] support[ed] their contention that the progeny of the original 16 sheep are ‘aggregate property’, and, accordingly, the same ‘goods’ for the purposes of s 21 of the Limitation Act. I do not accept that submission. As the passages emphasised in the extract from the case demonstrate, the Tennessee court’s decision appeared to be founded on the law as to slavery in that State which treated slaves as in a special category. However, in Buckley v Buckley, Administratrix of the Estate of Henry A Buckley, (dec’d) 12 Nev 423; 1877 WL 4371 (Nev) (an action brought to recover a flock of ewe sheep or their value, the right to their increase and the wool subsequently shorn from the flock), the Supreme Court of Nevada, having cited the passage the appellants rely upon from Seay v Bacon (at [5]), and referring to other cases dealing with slaves, said (at [6]) that, ‘there was no distinction at that time, as objects of property, between negroes and domestic animals’. [page 97]

Seay v Bacon reflected a view which had currency in some quarters prior to the abolition of slavery, that slaves were regarded as chattels and, accordingly, that actions for their conversion or wrongful detention would lie at the suit of their owners: see Pearne v Lisle (1749) Amb 75 (at 76–77); (1749) EngR 142; 27 ER 47. The conclusion in Buckley v Buckley, Administratrix of the Estate of Henry A Buckley, (dec’d) is consistent with the conclusion reached in Pearne v Lisle. In that case, the Lord Chancellor, Lord Hardwicke, had ‘no doubt that trover will lie for a Negro slave; it is as much property as any other thing’. His Lordship declined to grant specific performance of a contract to provide such slaves saying, by analogy with ‘stock on farm’, that they were not in a special category. As Young J said in Borg v Howlett [1996] NSWSC 153; (1996) 8 BPR 15,535 (at 15, 538), ‘the exact words used by his Lordship are now outdated, and, indeed, the whole thrust of what he said would now be considered abhorrent’. Nevertheless his Honour applied his Lordship’s reasoning insofar as it concerned stock on a farm to conclude that, prima facie, racehorses were not of the nature of a special chattel. That reasoning, in my view, applies, a fortiori, to sheep, even those of the Awassi line which, while perhaps of a distinct genus, are bred for primary production purposes no different from the greater Australian sheep stock. The Seay v Bacon approach to commodification of individuals by treating them as an article of possession was effectively rejected in Somerset v Stewart (Somerset’s Case) (1772) Lofft 1; (1772) 20 State Tr 1; (1772) 98 ER 499 prior to the settlement of the

Colony of New South Wales in 1788. In that famous case, Lord Mansfield held (Lofft, at [19]) that ‘[t]he state of slavery is of such a nature, that it is incapable of being introduced [into the law of England] on any reasons, moral or political’. ‘Chattel slavery’ being ‘full ownership of another human being’ was unlawful under Imperial legislation dating back to colonial times, a position now reflected in s 270.3(1)(a) of the Criminal Code Act 1995 (Cth): R v Tang [2008] HCA 39; (2008) 237 CLR 1 (at [81]) per Kirby J. Seay v Bacon does not, in my view, enunciate a principle concerning the title to the progeny of the sheep which finds a basis in Australian law. The appellants cited no binding or persuasive authority which applied its reasoning concerning ‘aggregate property’ in the present context. There is, in my view, no reason why, as a matter of principle, the owner of the 16 original sheep does not obtain a separate title to the progeny. The progeny have a separate existence. Although the respondents’ ownership of them was derived from their title to the original 16 Awassi sheep, once the progeny were no longer in utero they were separate entities and the respondents had a separate title to them. In any event, in my view the one goods argument cannot be sustained on the facts. The respondents offered to, and did, purchase ‘all Awassi sheep owned by Awassi (Aust) Pty Ltd (in liq)’ from the liquidator. The respondents’ January 2004 demand was ‘to collect the 16 Awassi sheep from [the appellants’] property in Cowra’, while the November 2010 demand was to recover ‘the sixteen original Awassi Sheep, as well as all purebreds and cross-breeds bred from the original sixteen (16) Awassi Sheep directly or indirectly’. It was never put to Mr Daws at trial, that the respondents had purchased the ‘genetic material’ rather than the sheep. Any proposition to that effect would have been inconsistent with the objective evidence of the contract: Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165. While it might be accepted that from time to time Mr Daws used the word ‘genetics’ as, for example when he referred to the first respondent attempting to recover ‘the full genetics that were purchased’, it is plain that he used that expression to refer to ‘the 16 sheep’: see Transcript at 38(45)– (50). As the November 2010 demand demonstrated, the respondents regarded the 16 original sheep as different from the progeny. The appeal must, accordingly fail. [page 98]

Basten JA: The legal basis for the primary submission was derived from s 21 of the Limitation Act. That section provides that where a cause of action for conversion or detention of goods has accrued, an action is not maintainable more than six years after the initial accrual on the basis of a further cause of action arising for the conversion or detention of the goods. The argument was that ‘the goods’ were the ‘genetic material’ which passed from the original flock to the progeny, leading to the assertion that ewe and progeny were, in law, one thing. This argument owed more to ingenuity than commonsense. It sought to draw support from the doctrine of accretion or accession which operates with respect to inanimate products. Thus, in Jones v De Marchant (1916) 28 DLR 561, the Manitoba Court of Appeal (in a judgment delivered by Richards JA) held that the owner of certain beaver skins was entitled to succeed against a defendant who had acquired, by gift, a fur coat made from the beaver skins, property in which was held to remain in the owner by virtue of the principle of ‘accession’ [the joining of one

chattel to another]. Just as it is no longer acceptable to treat people as, in law, chattels (see below) it is neither logical nor morally acceptable to treat animals, though chattels, as in all respects equivalent to inanimate objects. Nor indeed does the law allow such an equation; there are specific offences for cruelty to animals: see, for example, Prevention of Cruelty to Animals Act 1979 (NSW). The secondary argument asserted that, as a matter of law, upon the respondents losing property in the original 16 sheep, they also lost property in the progeny, including, presumably, successive generations. While it is true that the respondents obtained property in the progeny because of their ownership of the ewes at the time the further generations were born, why they should lose property once their title to the original ewes was extinguished, was obscure. The fact that a ewe dies, or is sold, would not ordinarily be thought to extinguish title to her progeny once they had vested in the respondents. If such a legal consequence flowed, to how many generations would it apply? No authority was relied on for the proposition, beyond the concept of ‘aggregate mass’ discussed above. There is a further reason why neither submission should be accepted. It turns on the premise underlying the legal conclusion that title to the original 16 sheep was extinguished, namely the lapse of six years from the demand made in January 2004. The legal consequences flowing from making the demand, and the lapse of time thereafter without commencement of proceedings, must turn on the proper construction of the demand. Once it is accepted that livestock and their progeny may form different ‘goods’ for the purposes of the torts of detinue and conversion, and therefore for the purposes of s 21 of the Limitation Act, the remaining question was whether the demand made in January 2004 related to the progeny and other material extracted from sheep within the flock. Dealing first with the question of progeny, there is a question as to whether it is sensible to talk of a demand for non-existent goods. It is difficult to see how a cause of action could arise in detinue from the refusal to transfer to the putative owner goods which were not in existence. That being so, little time need be spent on the terms of the demand. The uncontroversial evidence was that an agent of the owner rang the first appellant in late January 2004 stating: I want to organise a day with you to collect the 16 Awassi sheep from your property in Cowra. The request was rejected. The appeal must be dismissed. [Tobias AJA concurred].

2.11 Questions 1.

Are animals ‘property’? If so, what type of property are they?

2.

Did the respondents lose title to the original 16 sheep? If so, on what principle?

[page 99]

3.

Why were the progeny considered different goods to the original sheep?

4.

What bearing does the contractual arrangement between the parties bear on the respondents’ rights? Might the terms have restricted them? In what way/s?

5.

Would the respondents have rights to any progeny born to sheep whose title had been already extinguished by the Limitation Act, that is sheep born after January 2010?

6.

After reading 2.24 below, would the respondents (above) have been able to exercise the right of ‘recaption’ over the sheep?

The plea of jus tertii 2.12

If conversion protects the rights of a non-owner in possession of

goods, can the defendant avoid liability by pleading that a third party has a better right to the goods? This plea is known as the jus tertii, or the right of a third party, normally used in the sense of a right superior to that of both the plaintiff and defendant. 2.13C

Jeffries v The Great Western Railway Co (1856) 5 El & Bl 802; 119 ER 680 Court of Exchequer Chamber

[The plaintiff brought an action of trover (a predecessor of the modern tort of conversion) against

the defendants who had taken some railway trucks which had been in the plaintiff’s possession. The plaintiff claimed to own the trucks as a result of an assignment from Owen. The defendants also claimed to own the trucks from an assignment from Owen, after the date of the first assignment, but before the plaintiff took possession of the trucks. The defendants argued that, before the plaintiff took possession of the trucks, Owen had become bankrupt and that the Court of Bankruptcy had made an order requiring the trucks to be sold for the benefit of Owen’screditors. The defendants were trying to prove that at the time of their seizure, the trucks did not belong to the plaintiff, but to the people who had title under the order of the Court of Bankruptcy. Pollock CB said that unless the defendants had evidence that they were claiming under those people, the evidence of the bankruptcy would be rejected. Pollock’s reason was that if the defendants were wrongdoers, they could not set up the jus tertii as a defence. The plaintiff obtained a verdict from the jury and the defendants obtained a rule nisi for a new trial on the ground of misdirection.] Lord Campbell CJ: I am of opinion that the Chief Baron did right in refusing to admit evidence to impeach the title of the plaintiff. The defendants were strangers to the title which they proposed to set up; and the plaintiff had been for some time in possession, when the defendants seized the goods, claiming them as their own, but having, as we must now take it, no right to the goods; and I think that, under such circumstances, the jus tertii could not be set up, by the defendants averring that they themselves were mere wrongdoers at the time of the conversion, but that there were strangers who then had a right to take the goods. I am of opinion that the law is that a person possessed of goods as his property has a good title as against every stranger, and that one who takes them from him, having no title in himself, is a wrongdoer, and cannot defend himself by shewing that there was title in some third person; for [page 100]

against a wrongdoer possession is a title. The law is so stated by the very learned annotator in note (1) to Wilbraham v Snow (1699) 2 Wms Saund 47a, 47f; 85 ER 624, and I think it most reasonable law, and essential for the interests of society, that peaceable possession should not be disturbed by wrongdoers. And I do not find that this doctrine has been impeached by any of the cases cited. It is not disputed that the jus tertii cannot be set up as a defence to an action of trespass and trover; for in truth the presumption of law is that the person who has possession has the property. Can that presumption be rebutted by evidence that the property was in a third person, when offered as a defence by one who admits that he himself had no title and was a wrongdoer when he converted the goods? I am of opinion that this cannot be done, and consequently that the Chief Baron’s ruling was right …

Wightman J: Here the plaintiff was in possession of the trucks on the railway as his own. The defendants took them out of his possession and converted them; and they seek to defeat an action for that conversion by shewing title, not in themselves, or in any one under whom they acted, but title in a stranger against whom they would be wrongdoers; and they ask, by doing this, to defeat the prima facie right arising from possession. The old law upon the property necessary to maintain trover is thus stated in note (1) to Wilbraham v Snow: ‘So possession with an assertion of title, or even possession alone, gives the possessor such a property as will enable him to maintain this action against a wrongdoer; for possession is prima facie evidence of property’. Several cases have been cited in the course of the argument. In 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. But I find no case where the person in actual possession has been defeated in an action of trover because the defendant was permitted to set up the jus tertii. I therefore think that the Chief Baron was right. [Crompton J delivered a judgment to the same effect.]

2.14 Questions 1.

Why were the defendants in Jeffries’ case ‘wrongdoers’? What is the policy underlying the reasoning in Jeffries’ case? See also Armory v Delamirie (1722) 1 Strange 505; 93 ER 664: 2.32C.

2.

In what circumstances, if any, could the defendants have relied upon the title of the third party? In particular, what relationship would have had to exist between the defendants and the third party?

3.

What if the persons entitled under the court order had authorised the defendants to seize the trucks from the plaintiff? Would it have been a sufficient defence for the defendants to show that they had returned the trucks to Owen’s assignees?

2.15

Jeffries’ case is generally accepted as deciding that a defendant who

interferes with the plaintiff’s possession is liable to pay the full market value of the chattel, without any deduction for the likelihood of the true owner taking steps to recover the chattel from the plaintiff. It also appears to be settled that the defendant, despite having satisfied the judgment in favour of the plaintiff, will have no defence to a subsequent action by the true owner for recovery of

[page 101]

the chattel or payment of its value: Attenborough v London and St Katharine’s Dock Co (1873) 3 CPD 450 at 454.11 2.16

A mere contractual right to possession, in the absence of prior actual

possession or some other proprietary interest such as an immediate right to possession, is not sufficient title to maintain detinue: see Jarvis v Williams [1955] 1 All ER 108. The same principle was applied by the Court of Appeal to an action of conversion in International Factors Ltd v Rodriguez [1979] QB 351. Assume that A contracted to purchase goods owned by B from C who at all relevant times was in actual possession of the goods. Assume further that the contract did not pass C’s ‘property’ in the goods to A and that A never took possession. If D wrongfully took the goods from C, A could sue in neither detinue nor conversion. D could successfully plead B’s ownership as defeating A’s claim, a correct use of the plea of jus tertii as a denial of the plaintiff’s cause of action? By showing ownership of the goods in B, D has

demonstrated that A cannot show an immediate right to possession, an essential prerequisite in an action of detinue or conversion. 2.17

Sale of Goods legislation in all jurisdictions enables a seller in

possession of goods after sale to pass a good title to a third party acting in good faith and without notice of the previous sale: see, for example, Sale of Goods Act 1896 (Qld) s 25. This legislation may be relevant in cases which would otherwise raise issues similar to those discussed in Jeffries’ case. 2.18

In Jeffries’ case, the defendants were described as ‘wrongdoers’.

Consider the position if the plaintiff, deprived of possession by the defendant, had acquired possession ‘wrongfully’. What if the plaintiff had acquired possession as a result of theft? In Costello v Chief Constable of Derbyshire Constabulary [2001] 1 WLR 1437; [2001] 3 All ER 150, the defendant lawfully took possession of a motor vehicle from the plaintiff in the belief that it had been stolen. Acting under legislative powers, the defendant retained possession of the goods for the permitted statutory period but, upon expiration of the period, refused to return the goods to the plaintiff. The defendant contended that the plaintiff knew that the vehicle had been stolen. Lightman J, with whose judgment Robert Walker and Keene LJJ agreed, in upholding the plaintiff’s entitlement to recover possession of the vehicle from the defendant, summarised the law in these terms: In my view on a review of the authorities, (save so far as legislation otherwise provides) as a matter of principle and authority possession means the same thing and is entitled to the same legal protection whether or not it has been obtained lawfully or by theft or by other unlawful means. It vests in the possessor a possessory title which is good against the world save as against anyone setting up or claiming under a better title. In the case of a theft the title is frail, and of likely

limited value … but nonetheless remains a title to which the law affords protection … The frailty of the protection is reflected in [certain decisions] … that, if the stolen property in the possession of the thief or a receiver is seized by the police and pursuant to statutory authority possession is transferred to someone else (but not otherwise), the transferee obtain the possessory title in defeasance of that of the thief or receiver. There

[page 102]

are authorities … which reveal a natural moral disinclination (on occasion expressed in terms of public policy) to recognise the entitlement of a thief, receiver or other wrong-doer to the protection by the law of his possession … But it is clear … that such a disinclination and public policy do not afford a sufficient ground to deprive a possessor of such recognition and protection. This conclusion is in accord with that long ago reached by the courts that even a thief is entitled to the protection of the criminal law against the theft from him of that which he has himself stolen [at 1450–1; 163–4].

This statement was approved most recently by Leeming JA in Fistar v Riverwood Legion and Community Club Ltd [2016] NSWCA 81 at [37], who added: Possessory title has very deep roots in the common law. The point of Armory v Delamirie (1722) 1 Stra 505; 93 ER 664, after all, is that a mere finder, who has nothing more than possession, has a right against other possessors who lack better title. This extends even to thieves. Possession of a chattel gives rise to a possessory title, and even a thief obtains a good possessory title against someone who is a wrongdoer to the thief … see also Bride v Shire of Katanning [2013] WASCA 154 at [72] (Edelman J, Newnes JA agreeing).

In Webb v Chief Constable of Merseyside Police [2000] QB 427, the plaintiff succeeded in an action to recover from the police sums of money which they had seized that they could not prove to be proceeds of drug trafficking.

Possession by a bailee 2.19

As noted above, bailment arises when one person is the owner of

goods, but another person is temporarily in possession of them. The owner is the bailor and the person in temporary possession is the bailee. Bailment is a very common commercial arrangement. It typically arises under a contract, such as an agreement to hire machinery, a car or to dry-clean clothes. During the term of the contract, the bailee has actual possession. The bailee also has a right to immediate possession of the item should it cease temporarily to be in his or her possession, for instance, if it is lost or taken by a third party without permission. The bailor has a right to future possession at the conclusion of the hire. The bailee may have the custody of another’s goods without reward or consideration (a gratuitous bailment), which may be for a specified term, or until the owner (bailor) demands their return (a bailment at will). For example, the bailor may lend the bailee a car for a week or until the bailor requires its return. The possessor may also be an ‘involuntary’ bailee, where their possession is without the consent of the owner, as in cases of finding, or theft. 2.20

Whether in the case of bailment or otherwise, to succeed in an action

in detinue or conversion, a plaintiff must show that he or she had actual possession or an immediate right to possession at the date of the interference with the goods, or at the date of the demand for the return of the goods. A future or reversionary right to possession is not sufficient, such as where goods are bailed or hired to a bailee for a term which has not expired. Where an owner of goods has given possession of them to another, the terms of the

arrangement will determine whether the owner has an immediate or merely a future right to possession. In the case of goods bailed at will, such as where they are lent to another gratuitously, the bailor has the right to regain possession of the goods at any time, and therefore retains an immediate right to possession during the bailment. In such a case, both the bailee and the bailor have a cause of action against a wrongdoer who interferes with the goods in the bailee’s possession: BIS Cleanaway t/a CHEP v Tatale [2007] NSWSC 378 at [38]–[47].

[page 103]

Claims by bailee against a third party 2.21C

The Winkfield [1902] P 42; [1900–3] All ER Rep 346 Court of Appeal

Collins MR: This is an appeal from the order of Sir Francis Jeune dismissing a motion made on behalf of the Postmaster-General in the case of The Winkfield. The question arises out of a collision which occurred on 5 April 1900 between the steamship Mexican and the steamship Winkfield, and which resulted in the loss of the former with a portion of the mails which she was carrying at the time. The owners of the Winkfield under a decree limiting liability to £32,514 17s 10d paid that amount into court, and the claim in question was one by the Postmaster-General on behalf of himself and the Postmaster-General of Cape Colony and Natal to recover out of that sum the value of letters, parcels, etc, in his custody as bailee and lost on board the Mexican.12 The case was dealt with by all parties in the court below as a claim by a bailee who was under no liability to his bailor for the loss in question, as to which it was admitted that the authority of Claridge v South Staffordsmith Tramway Co [1892] 1 QB 422, was conclusive, and the President accordingly, without argument and in deference to that authority, dismissed the claim. The Postmaster-General now appeals. The question for decision, therefore, is whether Claridge’s case was well decided … For

the reasons which I am about to state I am of opinion that Claridge’s case was wrongly decided, and 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, although he would have had a good answer to an action by the bailor for damages for the loss of the thing bailed. It seems to me that the position, that possession is good against a wrongdoer and that the latter cannot set up the jus tertii unless he claims under it, is well established in our law, and really concluded this case against the respondents … And the principle being the same, it follows that he can equally recover the whole value of the goods in an action on the case for their loss through the tortious conduct of the defendant. I think it involves this also, that the wrongdoer who is not defending under the title of the bailor is quite unconcerned with what the rights are between the bailor and bailee, and must treat the possessor as the owner of the goods for all purposes quite irrespective of the rights and obligations as between him and the bailor. I think this position is well established in our law though it may be that reasons for its existence have been given in some of the cases which are not quite satisfactory. I think also that the obligations of the bailee to the bailor to account for what he has received in respect of the destruction or conversion of the thing bailed has been admitted so often in decided cases that it cannot now be questioned; and further, I think it can be shewn that the right of the bailee to recover cannot be rested on the ground suggested in some of the cases, [page 104]

namely that he was liable over to the bailor for the loss of the goods converted or destroyed. It cannot be denied that since the case of Armory v Delamirie (1722) 1 Str 506; 93 ER 664, not to mention earlier cases from the Year Books onward, a mere finder may recover against a wrongdoer the full value of the thing converted. That decision involves the principle that as between possessor and wrongdoer the presumption of law is, in the words of Lord Campbell in Jeffries v Great Western Railway Co (1856) 5 El & Bl 802 at 806; 119 ER 680 at 681, ‘that the person who has possession has the property’. In the same case he says (El & Bl at 805; ER at 681): I am of opinion that the law is that a person possessed of goods as his property has a good title as against every stranger, and that one who takes them from him, having no title in himself, is a wrongdoer, and cannot defend himself by shewing that there was title in some third person, for against a wrongdoer possession is title. The law is so stated by the very learned annotator in his note to Wilbraham v Snow (1670) 2 Wms Saund 47f; 85 ER 624. Therefore it is not open to the defendant, being a wrongdoer, to inquire into the nature of limitation of the possessor’s right, and unless it is competent for him to do so the question of his relation to, or liability towards, the true owner cannot come into the discussion at all; and, therefore as between those two parties full damages have to be paid without any further inquiry. The extent of the liability of the finder to the true owner

not being relevant to the discussion between him and the wrongdoer, the facts which would ascertain it would not have been admissible in evidence, and therefore the right of the finder to recover full damages cannot be made to depend upon the extent of his liability over to the true owner. To hold otherwise would, it seems to me, be in effect to permit a wrongdoer to set up a jus tertii under which he cannot claim. But, if this be the fact in the case of a finder, why should it not be equally the fact in the case of a bailee? Why, as against a wrongdoer, should the nature of the plaintiff’s interest in the thing converted be any more relevant to the inquiry, and therefore admissible in evidence, than in the case of a finder? It seems to me that neither in one case nor the other ought it to be competent for the defendant to go into evidence on that matter. [Collins MR then discussed a number of cases which supported the view that a bailee had the right to recover full damages for loss of the bailed chattel.] It is now well established that the bailee is accountable, as stated in the passage cited and repeated in many subsequent cases. But whether the obligation to account was a condition of his right to sue, or only an incident arising upon his recovery of damages, is a very different question, though it was easy to confound one view with the other … Therefore, as I said at the outset, and as I think have now shewn by authority, the root principle of the whole discussion is that, as against a wrongdoer, possession is title. The chattel that has been converted or damaged is deemed to be the chattel of the possessor and of no other, and therefore its loss or deterioration is his loss, and to him, if he demands it, it must be recouped. His obligation to account to the bailor is really not ad rem in the discussion. It only comes in after he has carried his legal position to its logical consequence against a wrongdoer, and serves to soothe a mind disconcerted by the notion that a person who is not himself the complete owner should be entitled to receive back the full value of the chattel converted or destroyed. There is no inconsistency between the two positions; the one is the complement of the other. As between bailee and stranger possession gives title — that is, not a limited interest, but absolute and complete ownership, and he is entitled to receive [page 105]

back a complete equivalent for the whole loss or deterioration of the thing itself. As between bailor and bailee the real interests of each must be inquired into, and, as the bailee has to account for the thing bailed, so he must account for that which has become its equivalent and now represents it. What he has received above his own interest he has received to the use of his bailor. The wrongdoer, having once paid full damages to the bailee, has an answer to any action by the bailor … The liability by the bailee to account is also well established and therefore it seems to me that there is no such preponderance of convenience in favour of limiting the right of the bailee as to make it desirable, much less obligatory, upon us to modify the law as it rested upon the authorities antecedent to Claridge’s case …

[Stirling and Matthew LJJ concurred.]

2.22 Questions 1.

Does The Winkfield represent a simple application of Jeffries’ case (2.13C)? Do the facts of the two cases differ in any material respect? Note the view of Tilbury: While The Winkfield is itself concerned with ‘bailees’ … it is clear that the word ‘bailee’ is not to be understood in any limited sense, eg as restricted to consensual or conventional bailments. Thus the result in The Winkfield would also be reached in the case of involuntary bailees, such as finders; indeed, in the case of anyone with a limited interest in the goods and with actual possession at the time of the wrong. In such cases, whether the defendant’s liability stems from his inability to raise the jus tertii or simply from the fact that the plaintiff has a better right to possession, the result is that the plaintiff is entitled to claim the full value of the goods without any deduction for the possibility of the true owner’s recovering those goods from the plaintiff.13

2.

In The Winkfield, the court assumes (the point not having been taken at the trial) that the mails on board the Mexican were in the ‘custody’ of the Postmaster-General. If the Postmaster-General were regarded as having only a right to possess the mails at the time of their loss, would he have been entitled to recover their full value? See Maynegrain Pty Ltd v Compafina Bank [1984] 1 NSWLR 258; Palmer, 301–12. In The Jag Shakti [1986] AC 337 the Privy Council applied the rule in The Winkfield to allow a nonpossessing claimant with an immediate right to possession to

recover the full value of the goods. 3.

Why has the law been prepared to protect the possession of the bailee? Why should bailees not have to show accountability to bailors for loss of chattels before being entitled to claim more than the actual loss? Is it an answer to say that the bailor has a right to call on the bailee to account for the damages recovered by the latter from the wrongdoer? What difficulties might arise in enforcing this right?

[page 106]

2.23

The court in The Winkfield asserts that a ‘wrongdoer, having once

paid full damages to the bailee, has an answer to an action by the bailor’: at 61. As noted in 2.15, it seems that a defendant who pays damages or restores a chattel to a person who had been in possession otherwise than as a bailee will have no defence to a subsequent action by the true owner. The rule in The Winkfield, that a bailee may recover the full value of a chattel even though not liable to the bailor for the loss, is an exception to the general principle that damages in contract and tort are compensatory: that is, the function of damages is to restore the person whose rights have been infringed to the same position as if those rights had not been invaded: The Albazero [1977] AC 774 at 841; [1976] 3 All ER 129 at 132. 2.24

The true owner has a right to retake possession of his or her goods

even from an innocent purchaser, see Suttons Motors (Temora) Pty Ltd v

Hollywood Motors Pty Ltd [1971] VR 684 (owner recovering car from innocent dealer by means of a trick); compare Greenwood v Bennett [1973] QB 195; [1972] 3 All ER 586 (order for specific restitution of a chattel should include a condition requiring the owner to compensate an innocent purchaser whose work and expense has increased the market value of the chattel).14 The true owner also has a right of ‘recaption’, namely the right of self-help to recover the chattel: Blades v Higgs (1861) 10 CBNS 713; 142 ER 634. But the right is limited to recovery of those chattels that the possessor knew he or she had no right to: Toyota Finance Australia Ltd v Dennis (2002) 58 NSWLR 101. The owner may also enter onto the land of the wrongdoer to recover the chattel: Cox v Bath (1893) 14 LR (NSW) 263.

Claims by a bailor against a bailee 2.25

The Winkfield (2.21C) involved a claim by a bailee against a third

party responsible for the destruction of the goods subject to the bailment. The question of the defendant’s entitlement to plead the jus tertii also may arise in a claim by the bailor against the bailee. The general principle is that the bailee is estopped from disputing the title of the bailor: Biddle v Bond (1865) 6 B & S 225; 122 ER 1179. It follows that in an action by the bailor against the bailee, the latter cannot maintain the defence of jus tertii, except where the bailee can show that the goods have been taken by someone with a better claim to them or that the claim is defended with the authority of the true owner: see Palmer, 281–94. In Biddle v Bond the exception was held to apply. The plaintiff had seized goods belonging to R under a distress for rent

owing. (Distress was a common law remedy allowing a landlord seizure of certain of the tenant’s chattels if rent were in arrears.) The plaintiff delivered the goods to the defendant auctioneers to be sold, but before the sale, R served a notice on the defendant claiming the distress was void and requiring the proceeds to be retained for him (R). The plaintiff’s claim for the proceeds of sale failed on the ground that the auctioneer could rely on R’s title as he was defending the action with R’s authority and evidence showed that the distress was void. The court emphasised that it was not enough for the defendant merely to be aware of an adverse claim; the defendant must defend on the right and title and by the authority of the true owner. This requirement was satisfied on the facts of the case. 2.26

Austin J of the Supreme Court of New South Wales has commented

that the plea of jus tertii in an action by the bailor against the bailee shares some characteristics with the

[page 107]

modern doctrine of estoppel. In Esanda Finance Corporation Ltd v Gibbons [1999] NSWSC 1094 at [23], his Honour commented: In my view, though they are expressed by reference to the particular case of bailor and bailee, the principles with respect to pleading the jus tertii are best understood not as a series of mechanistic rules but as a series of propositions which relate to the same fundamental concern for fairness which gives rise to the modern law of equitable estoppel. An understanding of the basis of principle should help to avoid confusion about the relevant legal concepts. Essentially, the defendant in an action in conversion in modern times will be precluded from pleading and relying

upon the title of a third party in order to defeat the plaintiff’s assertion of a right to immediate possession, when: (a) the defendant’s conduct has contributed to the plaintiff’s belief that its right to immediate possession exists; and (b) the defendant does not act with the authority of the true owner.

2.27

Does a bailee who is in breach of the terms of the bailment have title

to sue? In Anderson Group Pty Ltd v Tynan Motors Pty Ltd (2006) 65 NSWLR 400; [2006] NSWCA 22, the appellant company was the hirer of a car under a hire–purchase agreement from Esanda Ltd. The appellant left the car with the respondent to sell, without obtaining Esanda’s written consent as required by the hire–purchase agreement. The car was stolen from the respondent’s premises. Subsequently, Esanda Ltd issued a notice seeking repossession. The respondent disputed the appellant’s title to sue, arguing that its breach of the hire–purchase agreement meant that at the time of the theft, only Esanda had the right to immediate possession. The New South Wales Court of Appeal held that the respondent, as bailee from the appellant, could not deny the appellant’s title to sue. Young CJ in Eq said (at [51]): ‘There is an abundance of authority for the proposition that even if a person breaks a bailment, if that person continues in possession of personal property then that person has a title to sue to defend his or her possession.’ The court recognised that if a bailee’s breach was so serious as to amount to a disclaimer of the bailment, it could terminate the contract of bailment, giving the bailor an immediate right to possession. The appellant’s breach did not amount to a disclaimer. Accordingly, the appellant had title to sue.15 2.28

In certain cases, the bailee’s possession may be protected even against

the bailor. In City Motors (1933) Pty Ltd v Southern Aerial Super Service Pty Ltd (1961) 106 CLR 477; [1962] ALR 184, the plaintiff, Southern Aerial Super Service Pty Ltd, agreed to purchase a new truck from the defendant, and to trade in an old truck as part payment of the purchase price. The plaintiff applied to a finance company, X, which was associated with the defendant, for finance to cover the balance of purchase money. On being told by the defendant that finance was available, the plaintiff signed an offer addressed to X to hire the new truck. The defendant took possession of the old truck, and delivered the new truck to the plaintiff. Later the old truck broke down, whereupon the defendant told the plaintiff that X had refused the offer to hire the new truck. The plaintiff offered to pay cash for the new truck. Nevertheless, the defendant retook possession of the new truck and returned the cheque which the plaintiff had sent in

[page 108]

payment for it. The trial judge held that property in the new truck had passed to the plaintiff who could accordingly sue in detinue. The High Court dismissed the defendant’s appeal. Dixon CJ, Kitto and Windeyer JJ took the view that the plaintiff had an exclusive possessory right to the truck, which could not be terminated except on the default of the plaintiff. This title as bailee was sufficient to maintain an action of detinue against City Motors. Dixon CJ said (at CLR 483; ALR 188): The possession of the plaintiff company of the Thames diesel truck as bailee was exclusive and in obtaining possession of it from the driver against the strongly expressed will of Gangell [the

managing director of the plaintiff company] the defendant company committed a trespass to goods. That this may be so notwithstanding that the trespasser is the bailor appears to be shewn by the cases discussed in his work on Bailments by Sir George Paton under the head of ‘Theft by Owner from the Bailee’: see s 96 at 444. The bailment seems clearly not to have been at will and the plaintiff company had made no default nor committed any act justifying its termination. There seems to be no reason why the bailee with an immediate right to possession should not maintain detinue against the bailor if the bailor is clearly entitled only ‘in reversion’ …

Compare Standard Electronic Apparatus Laboratories Pty Ltd v Stenner [1960] NSWR 447, where the plaintiff, a bailee of goods from the defendant and holding a lien over them for work performed, was held entitled to claim damages from the defendant who had removed the goods from the plaintiff’s possession. The measure of damages was held not to be the full value of the goods, but the value of the plaintiff’s limited interest in them. 2.29

Where the plaintiff is in actual possession and a stranger has

converted the goods, the rule in The Winkfield applies and the plaintiff’s measure of damages will be the value of the goods. This is not the case when the plaintiff was not in actual possession at the time of the wrong and there is a legal arrangement between the plaintiff and defendant such as a chattel lease. In such a case, the High Court has emphasised the general principle that damages are compensatory and the plaintiff will only recover the true loss sustained: Butler v Egg and Egg Pulp Marketing Board (1966) 114 CLR 185.16 2.30

The Winkfield (2.21C) lays down the rule that while either the bailor

or bailee can sue for the loss of goods, full recovery by the bailee in possession prevents the bailor suing the wrongdoer, and the bailor can only get compensation from the bailee. A, the owner of a motor vehicle, allows B the

use of the car while A is on holidays. The car is irreparably damaged by C. A and B both sue C in separate actions, A claiming damages for the value of the car and other damages, and B claiming damages for nervous shock and loss of the use of the car. A’s claim was settled out of court. In O’Sullivan v Williams [1992] 3 All ER 385, the English Court of Appeal held that once A’s claim arising from use of and damage to the car had been satisfied by C, B had no claim against C arising out of the bailment, and would have to look to A for satisfaction in respect of his interest in the car. B’s claim for personal injuries was not affected and could proceed.17

[page 109]

2.31

In Dee Trading Co Pty Ltd v Baldwin [1938] VLR 173, 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. The nature of such an injury must be clearly demonstrated: Tancred v Allgood (1859) 4 H & N 438; 157 ER 910. It is clear that a ‘mere wrongful taking’ cannot found such an action because damage to the reversionary interest must be permanent.18

The rights of finders

2.32C

Armory v Delamirie (1722) 1 Strange 506; 93 ER 664 Court of King’s Bench

The plaintiff, being a chimney sweeper’s boy, found a jewel and carried it to the shop of the defendant (who was a goldsmith) to know what it was, and delivered it into the hands of the apprentice who, under the pretence of weighing it, took out the stones and, calling to the master to let him know it came to three halfpence, the master offered the boy the money, who refused to take it, and insisted to have the thing again; whereupon the apprentice delivered him back the socket without the stones. And now in trover against the master these points were ruled: 1.

2. 3.

That the finder of a jewel, though he does not by such finding acquire an absolute property or ownership, yet he has such a property as will enable him to keep it against all but the rightful owner, and consequently may maintain trover. That the action well lay against the master, who gives a credit to his apprentice, and is answerable for his neglect. As to the value of the jewel, several of the trade were examined to prove what a jewel of the finest water that would fit the socket would be worth, and the Chief Justice directed the jury, that unless the defendant did produce the jewel, and shew it not to be the finest water, they should presume the strongest against him, and make the value of the best jewels measure of the damages: which they accordingly did.

2.33 Questions 1.

Is this case an authority on the defence of jus tertii?

2.

At the time of the wrongful act, was the plaintiff in actual possession of the jewel?

3.

What is the ratio decidendi of this case? Would the result have been the same if the plaintiff had discovered the jewel on the floor of the defendant’s shop, neither the

[page 110]

defendant nor his apprentice knowing of the jewel’s existence until the plaintiff handed it to the apprentice? 4.

What duty of care does the finder owe to the owner?19

Finder and occupier of land 2.34C

Parker v British Airways Board [1982] QB 1004; [1982] 1 All ER 834 Court of Appeal

Donaldson LJ: On November 15 1978, the plaintiff, Alan George Parker, had a date with fate — and perhaps with legal immortality. He found himself in the international executive lounge at terminal one, Heathrow Airport. And that was not all that he found. He also found a gold bracelet lying on the floor. We know very little about the plaintiff, and it would be nice to know more. He was lawfully in the lounge and, as events showed, he was an honest man. Clearly he had not forgotten the schoolboy maxim ‘Finders keepers’. But, equally clearly, he was well aware of the adult qualification ‘unless the true owner claims the article’. He had had to clear customs and security to reach the lounge. He was almost certainly an outgoing passenger because the defendants, British Airways Board, as lessees of the lounge from the British Airports Authority and its occupiers, limit its use to passengers who hold first class tickets or boarding passes or who are members of their Executive Club, which is a passengers’ ‘club’. Perhaps the plaintiff’s flight had just been called and he was pressed for time. Perhaps the only officials in sight were employees of the defendants. Whatever the reason, he gave the bracelet to an anonymous official of the defendants instead of to the police. He also gave the official a note of his name and address and asked for the bracelet to be returned to him if it was not claimed by the owner. The official handed the bracelet to the lost property department of the defendants. Thus far the story is unremarkable. The plaintiff, the defendants’ official and the defendants themselves had all acted as one would have hoped and expected them to act. Thereafter matters took what, to the plaintiff, was an unexpected turn. Although the owner never claimed the bracelet, the defendants did not return it to the plaintiff. Instead they sold it and kept the proceeds which amounted to £850. The plaintiff discovered what had happened and was more than a little annoyed. I can understand his annoyance. He sued the defendants in the Brentford County Court and was awarded £850 as damages and £50 as interest. The defendants now appeal. Neither the plaintiff nor the defendants lay any claim to the bracelet either as owner of it or as one who derives title from that owner. The plaintiff’s claim is founded upon the ancient common law rule that the act of finding a chattel which has been lost and taking

control of it gives the finder rights with respect to that chattel. The defendants’ claim has a different basis. They cannot and do not claim to have found the bracelet when it was handed to [page 111]

them by the plaintiff. At that stage it was no longer lost and they received and accepted the bracelet from the plaintiff on terms that it would be returned to him if the owner could not be found. They must and do claim on the basis that they had rights in relation to the bracelet immediately before the plaintiff found it and that these rights are superior to the plaintiff’s. The defendants’ claim is based upon the proposition that at common law an occupier of land has such rights over all lost chattels which are on that land, whether or not the occupier knows of their existence. The common law right asserted by the plaintiff has been recognised for centuries. In its simplest form it was asserted by the chimney sweep’s boy who, in 1722, found a jewel and offered it to a jeweller for sale. The jeweller refused either to pay a price acceptable to the boy or to return it and the boy sued the jeweller for its value: Armory v Delamirie (1722) 1 Stra 505. Pratt CJ ruled: That the finder of a jewel, though he does not by such finding acquire an absolute property or ownership, yet he has such a property as will enable him to keep it against all but the rightful owner, and consequently may maintain trover. In the case the jeweller clearly had no rights in relation to the jewel immediately before the boy found it and any rights which he acquired when he received it from the boy stemmed from the boy himself. The jeweller could only have succeeded if the fact of finding and taking control of the jewel conferred no rights upon the boy. The court would then have been faced with two claimants, neither of which had any legal right, but one had de facto possession. The rule as stated by Pratt CJ must be right as a general proposition, for otherwise lost property would be subject to a free-for-all in which the physically weakest would go to the wall. Pratt CJ’s ruling is, however, only a general proposition which requires definition. Thus one who ‘finds’ a lost chattel in the sense of becoming aware of its presence, but who does no more, is not a ‘finder’ for this purpose and does not, as such, acquire any rights. Some qualification has also to be made in the case of the trespassing finder. The person vis-à-vis whom he is a trespasser has a better title. The fundamental basis of this is clearly public policy. Wrongdoers should not benefit from their wrongdoing. This requirement would be met if the trespassing finder acquired no rights. That would, however, produce the free-for all situation to which I have already referred, in that anyone could take the article from the trespassing finder. Accordingly, the common law has been obliged to give rights to someone else, the owner ex hypothesi being unknown. The obvious candidate is the occupier of the property upon which the finder was trespassing. Curiously enough, it is difficult to find any case in which the rule is stated in this simple form, but I have no doubt that this is the law. It is reflected in the judgment of Chitty J in Elwes v Brigg Gas Co (1886) 33 Ch D 562 at 568, although the chattel

concerned was beneath the surface of the soil and so subject to different considerations. It is also reflected in the judgment of Lord Goddard CJ in Hibbert v McKiernan [1948] 2 KB 142 at 149. That was a criminal case concerning the theft of ‘lost’ golf balls on the private land of a club. The only issue was whether for the purposes of the criminal law property in the golf balls could be laid in someone other than the alleged thief. The indictment named the members of the club, who were occupiers of the land, as having property in the balls, and it is clear that at the time when the balls were taken the members were very clearly asserting such a right, even to the extent of mounting a police patrol to warn off trespassers seeking to harvest lost balls … One might have expected there to be decisions clearly qualifying the general rule where the circumstances are that someone finds a chattel and thereupon forms the dishonest intention [page 112]

of keeping it regardless of the rights of the true owner or of anyone else. But that is not the case. There could be a number of reasons. Dishonest finders will often be trespassers. They are unlikely to risk invoking the law, particularly against another subsequent dishonest taker, and a subsequent honest taker is likely to have a superior title. In the interests of clearing the ground and identifying the problem, let me now turn to another situation in respect of which the law is reasonably clear. This is that of chattels which are attached to realty (land or buildings) when they are found. If the finder is not a wrongdoer, he may have some rights, but the occupier of the land or building will have a better title. The rationale of this rule is probably either that the chattel is to be treated as an integral part of the realty as against all but the true owner and so incapable of being lost or that the ‘finder’ has to do something to the realty in order to get at or detach the chattel and, if he is not thereby to become a trespasser, will have to justify his actions by reference to some form of licence from the occupier. In all likely circumstances that licence will give the occupier a superior right to that of the finder. Authority for this view of the law is to be found in South Staffordshire Water Co v Sharman [1896] 2 QB 44 where the defendant was employed by the occupier of land to remove mud from the bottom of a pond. He found two gold rings embedded in the mud. The plaintiff occupier was held to be entitled to the rings. Dicta of Lord Russell of Killowen CJ, with whom Wills J agreed, not only support the law as I have stated it, but go further and may support the defendants’ contention that an occupier of a building has a claim to articles found in that building as opposed to being found attached to or forming part of it. However, it is more convenient to consider these dicta hereafter. Elwes v Brigg Gas Co 33 Ch D 562, to which we were also referred in this context, concerned a prehistoric boat embedded in land. But I think that, when analysed, the issue really turned upon rival claims by the plaintiff to be the true owner in the sense of being the tenant for life of the realty, of the minerals in the land and of the boat if it was a chattel and by the defendants as lessees rather than as finders … Finally, there is Hannah v Peel [1945] KB 509. This was indeed a finding case, but the claimant was the non-occupying owner of the house in which the brooch was found. The occupier was the Crown, which made no claim either as occupier or as employer of

the finder. It was held that the non-occupying owner had no right to the brooch and that therefore the finder’s claim prevailed. What the position would have been if the Crown had made a claim was not considered. I must now return to the respective claims of the plaintiff and the defendants. Mr Brown, for the plaintiff, relies heavily upon the decision of Patteson J and Wightman J, sitting in banc in Bridges v Hawkesworth (1851) 21 LJQB 75; 15 Jur 1079. It was an appeal from the county court by case stated. The relevant facts, as found, were as follows. Mr Bridges was a commercial traveller and in the course of his business he called upon the defendant at his shop. As he was leaving the shop, he picked up a small parcel which was lying on the floor, showed it to the shopman and, upon opening it in his presence, found that it contained £65 in notes. Mr Hawkesworth was called and Mr Bridges asked him to keep the notes until the owner claimed them. Mr Hawkesworth advertised for the true owner, but no claimant came forward. Three years later Mr Bridges asked for the money and offered to indemnify Mr Hawkesworth in respect of the expenses which he had incurred in advertising for the owner. Mr Hawkesworth refused to pay over the money and Mr Bridges sued for it. The county court judge dismissed his claim and he appealed … Patteson J gave the judgment of the court … I take the text of the report in the Jurist, 15 Jur 1079 at 1082 but refer to the Law Journal version, 21 LJQB 75 at 77– 8, in square brackets where they differ. It reads: [page 113]

We find, therefore, no circumstances in this case to take it out of the general rule of law, that the finder of the lost article is entitled to it as against all persons except the real owner, and we think that that rule must prevail, and that the learned judge was mistaken in holding that the place in which they were found makes any legal difference. Our judgment, therefore, is, that the plaintiff is entitled to these notes as against the defendant; that the judgment of the court below must be reversed, and judgment given for the plaintiff for £50. The ratio of this decision seems to me to be solely that the unknown presence of the notes on the premises occupied by Mr Hawkesworth could not without more, give him any rights or impose any duty upon him in relation to the notes. Mr Desch, for the defendants, submits that Bridges v Hawkesworth 15 Jur 1079, can be distinguished and he referred us to the judgment of Lord Russell of Killowen CJ, with which Wills J agreed, in South Staffordshire Water Co v Sharman [1896] 2 QB 44. Sharman’s case itself is readily distinguishable, either upon the ground that the rings were in the mud and thus part of the realty or upon the ground that the finders were employed by the plaintiff to remove the mud and had a clear right to direct how the mud and anything in it should be disposed of, or upon both grounds. However, I would accept Lord Russell of Killowen CJ’s statement of the general principle in South Staffordshire Water Co v Sharman [1896] 2 QB 44 at 46–7, provided that the occupier’s intention to exercise control over anything which might be on the premises was manifest. But it is impossible to go further and to hold that the mere right of an occupier to exercise such control is sufficient to give him rights in relation to lost

property on his premises without over ruling Bridges v Hawkesworth 21 LJQB 75. Mr Hawkesworth undoubtedly had a right to exercise such control, but his defence failed. … One of the great merits of the common law is that it is usually sufficiently flexible to take account of the changing needs of a continually changing society. Accordingly, Mr Desch rightly directed our attention to the need to have common law rules which will facilitate rather than hinder the ascertainment of the true owner of a lost chattel and a reunion between the two. In his submission the law should confer rights upon the occupier of the land where a lost chattel was found which were superior to those of the finder, since the loser is more likely to make inquiries at the place of loss. I see the force of this submission. However, I think that it is also true that if this were the rule and finders had no prospect of any reward, they would be tempted to pass by without taking any action or to become concealed keepers of articles which they found. Furthermore, if a finder is under a duty to take reasonable steps to reunite the true owner with his lost property, this will usually involve an obligation to inform the occupier of the land of the fact that the article has been found and where it is to be kept. In a dispute of this nature there are two quite separate problems. The first is to determine the general principles or rules of law which are applicable. The second, which is often the more troublesome, is to apply those principles or rules to the factual situation. I propose to confront those two problems separately. Rights and obligations of the finder 1. 2. 3.

The finder of a chattel acquires no rights over it unless (a) it has been abandoned or lost and (b) he takes it into his care and control. The finder of a chattel acquires very limited rights over it if he takes it into his care and control with dishonest intent or in the course of trespassing. Subject to the foregoing and to point 4 below, a finder of a chattel, whilst not acquiring any absolute property or ownership in the chattel, acquires a right to keep it against all [page 114]

4.

5.

but the true owner or those in a position to claim through the true owner or one who can assert a prior right to keep the chattel which was subsisting at the time when the finder took the chattel into his care and control. Unless otherwise agreed, any servant or agent who finds a chattel in the course of his employment or agency and not wholly incidentally or collaterally thereto and who takes it into his care and control does so on behalf of his employer or principal who acquires a finder’s rights to the exclusion of those of the actual finder. A person having a finder’s rights has an obligation to take such measures as if all the circumstances are reasonable to acquaint the true owner of the finding and present whereabouts of the chattel and to care for it meanwhile.

Rights and liabilities of an occupier

1.

2.

3.

4.

An occupier of land has rights superior to those of a finder over chattels in or attached to that land and an occupier of a building has similar rights in respect of chattels attached to that building, whether in either case the occupier is aware of the presence of the chattel. An occupier of a building has rights superior to those of a finder over chattels upon or in, but not attached to, that building if, but only if, before the chattel is found, he has manifested an intention to exercise control over the building and the things which may be upon it or in it. An occupier who manifests an intention to exercise control over a building and the things which may be upon or in it so as to acquire rights superior to those of a finder is under an obligation to take such measures as in all the circumstances are reasonable to ensure that lost chattels are found and, upon their being found, whether by him or by a third party, to acquaint the true owner of the finding and to care for the chattels meanwhile. The manifestation of intention may be express or implied from the circumstances including, in particular, the circumstance that the occupier manifestly accepts or is obliged by law to accept liability for chattels lost upon his ‘premises’ eg an innkeeper or carrier’s liability. An ‘occupier’ of a chattel, eg a ship, motor car, caravan or aircraft, is to be treated as if he were the occupier of a building for the purposes of the foregoing rules.

Application to the instant case The plaintiff was not a trespasser in the executive lounge and, in taking the bracelet into his care and control, he was acting with obvious honesty. Prima facie, therefore, he had a full finder’s rights and obligations. He in fact discharged those obligations by handing the bracelet to an official of the defendants’ [sic] although he could equally have done so by handing the bracelet to the police or in other ways such as informing the police of the find and himself caring for the bracelet. The plaintiff’s prima facie entitlement to a finder’s rights was not displaced in favour of an employer or principal. There is no evidence that he was in the executive lounge in the course of any employment or agency and, if he was, the finding of the bracelet was quite clearly collateral thereto. The position would have been otherwise in the case of most or perhaps all the defendants’ employees. The defendants, for their part, cannot assert any title to the bracelet based upon the rights of an occupier over chattels attached to a building. The bracelet was lying loose on the [page 115]

floor. Their claim must, on my view of the law, be based upon a manifest intention to exercise control over the lounge and all things which might be in it. The evidence is that they claimed the right to decide who should and who should not be permitted to enter and use the lounge, but their control was in general exercised upon the basis of classes or categories of user and the availability of the lounge in the light of the need to clean and maintain it. I do not doubt that they also claimed the right to exclude individual

undesirables, such as drunks, and specific types of chattels such as guns and bombs. But this control has no real relevance to a manifest intention to assert custody and control over lost articles. There was no evidence that they searched for such articles regularly or at all … It was suggested in argument that in some circumstances the intention of the occupier to assert control over articles lost on his premises speaks for itself. I think that this is right. If a bank manager saw fit to show me round a vault containing safe deposits and I found a gold bracelet on the floor, I should have no doubt that the bank had a better title than I, and the reason is the manifest intention to exercise a very high degree of control. At the other extreme is the park to which the public has unrestricted access during daylight hours. During those hours there is no manifest intention to exercise any such control. In between these extremes are the forecourts of petrol filling stations, unfenced front gardens of private houses, the public parts of shops and supermarkets as part of an almost infinite variety of land, premises and circumstances. This lounge is in the middle band and in my judgment, on the evidence available, there was no sufficient manifestation of any intention to exercise control over lost property before it was found such as would give the defendants a right superior to that of the plaintiff or indeed any right over the bracelet. As the true owner has never come forward, it is a case of ‘finders keepers’. I would therefore dismiss the appeal. [Eveleigh LJ and Sir David Cairns in separate judgments also held that the appeal should be dismissed.]

2.35 Questions 1.

Does the formulation of principle by Donaldson LJ take sufficient account of the concept of relativity of title in English law?

2.

Does the judgment sufficiently recognise that prior possession, however acquired, is of itself a good title against all later comers? See Roberts ‘More Lost Than Found’ (1982) 45 MLR 683.

3.

Would the result of Bridges v Hawkesworth have been the same if the finder had been a bank robber who had discovered the notes on the floor while robbing the bank? If not, how could a court

justify a different result?

2.36

The summary of the rights and obligations of the finder given by

Donaldson LJ reflects a policy favouring the finder over a stranger ‘for otherwise lost property would be subject to a free-for-all in which the physically weakest would go to the wall’ (at 1009; 836–7). The policy is not so clear when the rights of the finder are in competition with the rights of an occupier of land. The law has frequently been concerned to uphold the rights of the owner and occupier of land over others. In assessing the rights of the occupier of land, Donaldson LJ

[page 116]

distinguishes between items attached to or embedded in the soil of occupied land and things lying unattached upon the surface. In the case of the former, his Lordship applied the statement of the law developed by Lord Russell of Killowen in South Staffordshire Water Co v Sharman [1896] 2 QB 44 that possession of land embraces possession of all attached to or under the land even if the possessor be ignorant of the thing’s existence. Such a rule favouring the rights of the occupier is grounded in pragmatism and efficiency. However, the argument is less convincing when the moral rights of the finder are considered. Permanent possession goes to the occupier notwithstanding any labour and effort on the part of the finder and notwithstanding lack of any knowledge on the part of the occupier of the existence of the thing.20

Where things are found lying on the surface of land unattached, the occupier of land will have a better claim to the thing than the finder only if the occupier’s intention to exercise control over items on the land is manifest to the finder. The application of the test to exercise control is bound to be difficult in practice and, in the case of public land, probably more so, particularly where the public land is open space. 2.37

In Waverley Borough Council v Fletcher [1996] QB 334, the question

arose as to whether the principles stated by Donaldson LJ in Parker v British Airways Board (see 2.34C) apply to chattels found on public open space. Using a metal detector, Fletcher found and dug up a medieval gold brooch under the soil of a park owned by the council. The council’s title was subject to a covenant that the land was to be used only for the recreation and pleasure of the public. The Court of Appeal rejected the argument that the finder had a better right than the council under a licence from the council. It found that the use of a metal detector was not a permitted mode of recreation and that the unauthorised digging up and removal of the brooch were acts of trespass. The court saw no reason to depart from the ordinary principles as stated by Donaldson LJ in Parker. Having found that the council was the occupier of the park, the court applied the rule that where an article is found in or attached to land, the owner or lawful possessor of the land has a better right to it than the finder. If the brooch had been found unattached to the land, the council would have had a better title only if it ‘exercised such manifest control over the land as to indicate an intention to control the land and anything that might be found on it’. The Court of Appeal indicated that if

that question had arisen, it would have found that the council clearly had the requisite intent and ability to control. 2.38

Elwes v Brigg Gas Co (1886) 33 Ch D 562 and the first proposition of

Donaldson LJ in Parker v British Airways Board [1982] QB 1004; [1982] 1 All ER 834 (2.34C) establish that where chattels have been embedded in the land, so as to form part of the land, the owner of the land has a right superior to a finder, even if the owner is unaware of the existence of the chattel embedded in the land. In Chairman, National Crime Authority v Flack (1998) 86 FCR 16; 156 ALR 501, one issue was whether in relation to chattels not embedded in the land, it is necessary for the owner of the land on which they are found to have knowledge of the existence of the chattel. Mrs Flack was a public housing tenant of premises where she had lived alone since the death of her husband in 1990. Her son Glen had a key to the premises and visited regularly. The premises were searched in April 1994 by officers of the National Crime Authority (‘NCA’) pursuant to a warrant obtained under the Crimes Act 1914 (Cth). The warrant was issued because of a reasonable suspicion of the unlawful importation of cannabis resin and the search

[page 117]

was for goods relating to Glen Flack. During the search a large briefcase was found containing $433,000 in cash. Mrs Flack denied all knowledge of the briefcase. The briefcase and its contents were taken away by the Authority

but despite investigation no person was charged in respect of any offence and the items were no longer required as evidence. No other person having claimed the seized goods, Mrs Flack sought their return to her, arguing that she was presumed to be in possession of them because of her exclusive occupation and control of the premises in which they were found. The NCA refused on the basis that her presumed possession was a question of fact that was rebutted in the circumstances of the case. At first instance, Hill J ordered that the NCA deliver up to Mrs Flack the briefcase together with its contents. The Full Court of the Federal Court dismissed the NCA’s appeal, by a majority (Foster J dissenting). Heerey J said that Mrs Flack, as tenant of the Glebe premises, had possession of the premises in law. This was sufficient to manifest an intention to possess all chattels, known or unknown, on the premises, subject only to a superior right. It made no difference that the briefcase was hidden and that Mrs Flack did not know of its presence. Her denial of prior knowledge and ownership when the briefcase was found did not amount to a denial of intention to exercise control over the briefcase along with other chattels on the premises. Tamberlin J expressly left open the possibility that an occupier’s presumed intent to possess all chattels might be rebutted in the case of an unknown chattel that was a dangerous or prohibited item, such as weapons or drugs, but this was not such a case. The High Court declined special leave to appeal the decision.21

2.39 Questions

1. 2.

What role does the concept of possession play in the determination of the ‘finding’ cases? Does the use of the concept advance the choice facing the court in cases where, until the finding, there is no knowledge of the object and consequently no factual intention by any person in respect of the particular object? Could it be that the statement ‘A had prior possession of this object’ is merely a way of restating the conclusion that A has an interest in the object enforceable against the whole world other than the true owner? In other words, when the court says the question is whether the occupier or finder had prior possession of the object, is this not another way of asking whether the occupier or the finder should be given a proprietary interest in the object?22

Finder and employer 2.40

Donaldson LJ observed that servants or agents who find an object

during the course of employment do so on behalf of the employer or principal. In Willey v Synan (1937) 57 CLR

[page 118]

200, the plaintiff, a boatswain of a ship, discovered a quantity of concealed coins on board the ship. The customs authorities took possession of the coins

and the plaintiff claimed the coins as finder. Dixon J reasoned as follows (at 216–20): It is an important consideration that the goods were concealed in the ship and that this was done for the purpose of exporting them from New Zealand, and, as I think should be inferred, for the purpose of introducing them into Australia. They were not lost. They were stowed where their owner or his agents entertained an intention of exercising over the coins such control and disposal as opportunity might allow. When the plaintiff, as the ship’s boatswain, discovered the coins and handed them to the master, he was the instrument by which this opportunity for control and disposal was displaced in favour of the master. It does not appear what passed between the boatswain and the master when the latter took the coins into his keeping. But it is not to be supposed that the plaintiff asserted an independent possession of his own. The concealment of goods on a ship for the purpose of clandestine carriage is a matter that concerns the master and owners. It would be inconsistent with the duties of a member of the ship’s company to deal with goods so concealed on his own account. Although it may be taken that he found the coins, it does not appear that he took even manual custody of the bags of money. But if he did, it could amount only to custody and not possession. The possession taken was that of the owners, unless it be still true that a ship is in the possession of the master.

2.41

In M’Dowell v Ulster Bank (1899) 33 Ir L To 223 the porter of a

bank, sweeping up the banking chamber after the hours of business, found a roll of notes near the tables where customers wrote out cheques. The porter handed the notes to the manager, but afterwards, on the true owner’s failing to appear, he sought to recover the money from the bank. Palles CB said (at 226): I decided [the case] on the ground of the relation of master and servant, and that it was by reason of the existence of that relationship and in the performance of the duties of that service that the plaintiff acquired possession of the property. I conceive that it is the duty of the porter of the bank, who acts as caretaker, to pick up matters of this description, and to hand them over to the bank. I hold that the possession of the servant of the bank was the possession of the bank itself, and that, therefore, the element is wanting which would give the title to the servant as against the master.

He relies as against his master on the possession. In this case it was the possession of the bank, and the servant held the notes as servant.

Palles CB was careful to say that he did not decide the case on the ground laid down by Lord Russell of Killowen CJ in South Staffordshire Water Co v Sharman [1896] 2 QB 44; [1895–9] All ER Rep 259. That ground was expressed by Lord Russell as (at 47; at 261): … the general principle … that where a person has possession of house or land, with a manifest intention to exercise control over it and the things which may be upon or in it, then, if something is found on that land, whether by an employee of the owner or by a stranger, the presumption is that the possession of that thing is in the owner of the locus in quo. [I]ndependently of the question whether the shipowners or the master on their behalf had a prior possession of the bags of coins as part of the contents of the ship not in the special possession of any person carried upon the ship, the plaintiff, as boatswain, cannot be considered as acquiring a possession for himself. It has been pointed out repeatedly that

[page 119]

Sharman’s case might have been decided on the ground that the employment of the plaintiff to clean out the defendant’s pool involved the consequence that what he found he obtained for the defendant and not for himself. Indeed, Sir John Salmond denied the validity of the ground upon which Lord Russell in fact proceeded and justified the decision upon this ground (Salmond, Jurisprudence (8th ed, 1930) 307): The rings found at the bottom of the pond were not in the company’s possession in fact; and it seems contrary to other cases to hold that they were so in law. But though Sharman was the first to obtain possession of them, he obtained it for his employers and could claim no title for himself. A boatswain looking for stowaways and finding articles in the ship could not, in my opinion,

appropriate them to himself, and, if he did so without honestly believing that he had a claim of right he would be guilty of larceny: see R v Pierce (1852) 6 Cox CC 117. The appellant made no attempt, so far as appears, to appropriate the money to himself, but conceded the custody as well as the possession to the master. On the ground that he never obtained any possessory title to the coins, I think his action against the collectors must fail.

2.42 Questions 1.

What is the basis of Dixon J’s argument in Willey v Synan? Would the same argument apply to a bus conductor finding banknotes in the bus? To a salesman finding the notes on the floor of a shop? To the managing director of a company finding a parcel of notes in the board room?

2.

In Byrne v Hoare [1965] Qd R 135, a policeman, performing special duty at a drive-in theatre, found a gold ingot near the public exit from the theatre. The ingot was found on privately owned land, but the true owner could not be located. One issue in the case was whether the policeman, as the finder, was entitled to the value of the ingot as against his employer, the Crown. A majority of the Full Court decided in favour of the policeman. Does the following passage from the judgment of Gibbs J (at 148– 9) clarify some of the ambiguity surrounding the judgment of Dixon J in Willey v Synan? To give the master a right to a chattel found by his servant, it is clearly not enough that the servant happened to be going about his duties when he found it, for the fact that he was performing his duties may have been accidental, and not the cause of the finding. If, for instance, the ingot had been found by an errand boy who had been

sent by his master to deliver goods at the theatre, or … by a dustman sent to collect the theatre’s rubbish, the finder and not his employer would have been entitled to it, because he would not have acquired possession by reason of his employment, although it is true that if it had not been for his employment he would not have been in the place where the chattel was found. In such cases the employment provided the occasion of the finding but was not the effective cause.

[page 120]

… [Did] the plaintiff acquire possession of the ingot by reason of the fact that he held the office of constable and in the performance of the duties of that office? … [It] appears to me impossible to say that the plaintiff found the ingot by reason of his office of policeman. He was not conducting a search when he found it, and he had not been allowed access to a private place for the purpose of performing his duties, but was walking where any member of the public coming from the theatre might have walked. The fact he was on duty when he happened to see the gold was merely coincidental.

Abandonment of goods 2.43

Most of the finding cases relate to chattels which are lost rather than

abandoned. There is significant Australian judicial support for the proposition that relinquishment of physical possession of a chattel, coupled with a clear and unequivocal intention to renounce ownership, is effective to divest the interest of an owner or possessor: for example, Cook v Saroukos (1989) 97 FLR 33 at 41.23 Divesting abandonment requires evidence of ‘facts from which an intention to abandon property can be inferred or established’:

Sims v SPM Business Consultants Pty Ltd [2002] FCA 1588 at [52]. For example, in Moffatt v Kazana [1969] 2 QB 152; [1968] 3 All ER 271, the vendor of a house, in a remarkable feat of forgetfulness, omitted to take with him a biscuit tin containing 1,987 £1 notes. It was held that the vendor, as owner of the notes, was entitled to succeed in an action against the purchaser of the house, who some years after sale, found the tin hidden in the chimney. Wrangham J considered that more than a faulty memory was required for an intention to abandon title.24 2.44

In Re Jigrose Pty Ltd [1994] 1 Qd R 383, a vendor of land asserted

rights to goods which were not included in the sale, and had been left on the land at the time the land was delivered to the purchaser. Clause 28 of the contract of sale provided that any property of the vendor not removed from the land before delivery of possession ‘shall thereupon be deemed abandoned by the Vendor … and the Purchaser may … appropriate or remove or otherwise dispose of such property’. Kiefel J held that the effect of cl 28 was that as against the purchaser, the vendor was precluded from asserting any rights to the goods after the purchasers took delivery of the land. Title would not pass to the purchasers until they appropriated the goods as their own property. 2.45

Abandonment of chattels commonly arises where a tenant vacates

leased premises. Residential tenancies legislation specifies procedures that landlords must follow to store the chattels, give notice to the tenant, and sell them by public auction if the tenant fails to reclaim them within a specified period: see, for example, Residential Tenancies Act 1995 (SA) s 97.

2.46

When another person takes or retains possession of goods wrongfully,

the owner or prior possessor accrues a cause of action in conversion or detinue. In all jurisdictions, the limitation period for bringing an action for conversion or detinue is six years. See, for example, Limitation Act 1974

[page 121]

(Tas) s 6(1); Limitation of Actions Act 1958 (Vic) ss 5(1), 6(1) and Grant v YYH Holdings Pty Ltd [2012] NSWCA 360 (2.10C). A person in wrongful possession of goods may acquire the best title to them through the operation of the limitation provisions. The legislation in most jurisdictions extinguishes the title of a person whose cause of action has been barred by the expiry of the limitation period: for example, Limitation Act 1974 (Tas) s 6(2); Limitation of Actions Act 1958 (Vic) s 6(2).

LAND Title in actions to recover possession of land 2.47

Possession of land, like possession of goods, creates an interest in the

possessor enforceable against the whole world, except someone with a superior right to the land. A superior right might derive from a better documentary title or even a period of prior possession. One of the issues at stake in the cases extracted below is similar to that raised by the possession of chattels, namely, ‘to what extent, if at all, is a defendant to an action for

possession entitled to raise the jus tertii as a defence?’ That is, can the defendant prevent the plaintiff from being given the land on the grounds that, although the plaintiff’s claim may be better than the defendant’s, there is an even better claim in some third person who is not a party to litigation? The answer to this question not only establishes that possession creates a proprietary interest, but that the critical question for the courts is one of relativity: who has the better right to possession of the land? 2.48C

Asher v Whitlock (1865) LR 1 QB 1 Court of Queen’s Bench

[(i) In 1842 Thomas Williamson enclosed some waste land of a manor. The holder of the freehold estate in the manor was the lord of the manor, not a party to these proceedings. (ii) In 1850 Thomas enclosed more waste land of the manor, building a cottage on the newlyenclosed portion. (iii) In 1860 Thomas died having occupied all the enclosed waste land until his death. By his will he devised all the land to his wife, Lucy during her widowhood and after her death or remarriage to his daughter Mary Ann. (iv) After Thomas’ death both his widow and daughter remained in possession of the enclosed land. In 1861 his widow married the defendant Whitlock, who also came to reside on the land. (v) In February 1863 the daughter died, aged 18. The female plaintiff, Mrs Asher, was the daughter’s heir. (vi) In May 1863 the widow died, but Whitlock continued to occupy the land. (vii) The plaintiffs brought an action of ejectment against Whitlock. At the trial the Chief Justice directed a verdict for the plaintiffs. The defendant obtained the rule nisi to enter a verdict for himself on the ground that Thomas had had no devisable interest in any part of the land at his death.] Cockburn CJ: I am of the opinion that this rule should be discharged. The defendant, on

the facts, is in this dilemma; either his possession was adverse, or it was not. If it was not adverse to the devisee of the person who enclosed the land, and it may be treated as [page 122]

a continuance of the possession which the widow had and ought to have given up, on her marriage to the defendant, then, as she and the defendant came in under the will, both would be estopped from denying the title of the devisee and her heir-at-law. But assuming the defendant’s possession to have been adverse, we have then to consider how far it operated to destroy the right of the devisee and her heir-at-law. Mr Merewether was obliged to contend that possession acquired, as this was, against a rightful owner, would not be sufficient to keep out every other person but the rightful owner. But I take it as clearly established, that possession is good against all the world except the person who can shew a good title; and it would be mischievous to change this established doctrine. In Doe d Hughes v Dyeball (1829) Mood & M 346; 173 ER 1184, one year’s possession by the plaintiff was held good against a person who came and turned him out; and there are other authorities to the same effect. Suppose the person who originally enclosed the land had been expelled by the defendant, or the defendant had obtained possession without force, by simply walking in at the open door in the absence of the then possessor, and were to say to him: ‘You have no more title than I have, my possession is as good as yours’, surely ejectment could have been maintained by the original possessor against the defendant. All the old law on the doctrine of disseisin was founded on the principle that the disseisor’s title was good against all but the disseisee. It is too clear to admit of doubt, that if the devisor had been turned out of possession he could have maintained ejectment. What is the position of the devisee? There can be no doubt that a man has a right to devise that estate, which the law gives him against all the world but the true owner. Here the widow was a prior devisee, but durante viduitate only, and as soon as the testator died, the estate became vested in the widow, and immediately on the widow’s marriage the daughter had a right to possession; the defendant, however, anticipates her, and with the widow takes possession. But just as he had no right to interfere with the testator, so he had no right against the daughter, and had she lived she could have brought ejectment; although she died without asserting her right, the same right belongs to her heir. Therefore I think the action can be maintained, in as much as the defendant had not acquired any title by length of possession. The devisor might have brought ejectment, his right of possession being passed by will to his daughter, she could have maintained ejectment, and so therefore can her heir, the female plaintiff. We know to what extent encroachments on waste lands have taken place; and if the lord has acquiesced and does not interfere, can it be at the mere will of any stranger to disturb the person in possession? I do not know what equity may say to the rights of different claimants who have come in at different times without title, but at law, I think the right of the original possessor is clear. On the simple ground that possession is good title against all but the true owner, I think the plaintiffs entitled to succeed, and that the rule should be discharged. Mellor J: I am of the same opinion. It is necessary to distinguish between the case of the true owner and that of a person having no title. The fact of possession is prima facie

evidence of seisin in fee. The law gives credit to possession unless explained; and Mr Merewether, in order to succeed, ought to have gone on and shewn the testator’s title to be bad, as that he was only tenant at will, but this he did not do. In Doe d Hughes v Dyeball, possession for a year only was held sufficient against a person having no title. In Doe d Carter v Barnard (1849) 13 QB 945; 116 ER 1524, the plaintiff did not rely on her own possession merely, but shewed a prior possession in her husband, with whom she was unconnected in point of title. Here the first possessor is connected in title with the plaintiffs; for there can be no doubt that the testator’s interest was devisable. In the common case of proving a claim to landed estate under a will, proof of the will and of possession or receipt of rents by the testator is always prima facie sufficient, without going on to shew possession for more than 20 years. I agree [page 123]

with the Lord Chief Justice in the importance of maintaining, that possession is good against all but the rightful owner. [Lush J concurred.] Rule discharged.

2.49

Though they reach the same conclusion, Cockburn CJ and Mellor J

do so by slightly different routes. The term ‘seisin’ is an old common law term that refers to the legal possession of land giving to a person a freehold title. The following case applies this old law in an Australian context and with express reference to the notion of relativity of titles. 2.50C

Perry v Clissold [1907] AC 73 Privy Council

[This was an action by the executors of Clissold, seeking a mandamus25 to compel the appellant Perry, Minister of Public Instruction in New South Wales, to make a valuation of certain land compulsorily acquired by the Crown in 1891 for the purpose of erecting a school. Clissold had taken possession of the land without any title in 1881 and had fenced it. The owner of the land was at all times unknown. Clissold’s executors claimed to be entitled to compensation under the

terms of the Act authorising the acquisition, on the ground that Clissold’s possession gave him an interest in the land. Valuation was a necessary step in assessing compensation. The advice of the Judicial Committee (Lord Loreburn LC, Earl of Halsbury, Lords MacNaghten, Davey, Robertson, Atkinson, Sir Ford North and Sir Arthur Wilson) was delivered by Lord MacNaghten:] Lord MacNaghten: … In May 1902, under an order of the Supreme Court, the respondents, who are the present trustees of Clissold’s will, and of whom three are his surviving executors, served notice of their claim to compensation in respect of the land resumed by the notification of 17 July 1891, stating that the claimants were the executors of Frederick Clissold, ‘who at the date of resumption was in possession of such land as the owner thereof, and in receipt of the rents of such lands, and had a title thereto by possession’. It appeared from the papers which were forwarded with the claim that in the year 1881 Frederick Clissold entered into possession of the land, which was then open and vacant, and enclosed it by a substantial fencing, and that ever since the enclosure, up to the time of resumption, Clissold held exclusive possession of the land without notice of any adverse claim, and let it to different tenants and received the rents for his own use and benefit, and duly paid all rates and taxes in respect of the land which stood in his name in the ratebooks of the municipality of Canterbury. The Minister refused to entertain the claim to compensation. The Supreme Court upheld the view of the Minister. The High Court reversed this decision, and granted a mandamus requiring the Minister to cause a valuation to be made. The only question on this appeal was whether or not a prima facie case for compensation had been disclosed. [page 124]

On the part of the Minister it was contended that, upon the plaintiff’s own showing, Clissold was a mere trespasser, without any estate or interest in the land. Their Lordships are unable to agree with this contention. It cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. And if the rightful owner does not come forward and assert his title by process of law within the period prescribed by the provisions of the Statute of Limitations applicable to the case, his right is forever extinguished, and the possessory owner acquires an absolute title. The[ir Lordships] do not think that a case for compensation is necessarily excluded by the circumstance that under the provisions of the Act of 1900 the Minister acquired not merely the title of the person in possession as owner, but also the title, whatever it may have been of the rightful owner out of possession, who never came forward to claim the

land or the compensation payable in respect of it, and who is, as the Chief Justice says, ‘unknown to this day’. The Act throughout from the very preamble has it apparently in contemplation that compensation would be payable to every person deprived of the land resumed for public purposes. It could hardly have been intended or contemplated that the Act should have the effect of shaking titles which, but for the Act, would have been secure, and would in process of time have become absolute and indisputable, or that the Governor, or responsible Ministers acting under his instructions, should take advantage of the infirmity of anybody’s title in order to acquire his land for nothing. Even where the true owner, after diligent inquiry, cannot be found the Act contemplates payment of the compensation into court to be dealt with by a court of equity. It only remains for their Lordships to express their opinion that the valuations to be made should be a valuation of the land as at the date of the notification of resumption. When the valuation is made it will be for the claimants to take such proceedings as they may be advised to recover the amount, unless the Minister thinks fit to pay them or to pay the money into court. For these reasons their Lordships humbly advised His Majesty that the appeal should be dismissed, and ordered the appellant to pay the costs of the appeal.

2.51

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

facts of the case are extracted in 3.77C), Toohey J (at CLR 206ff; ALR 161ff) examined the concept of ‘common law aboriginal title’ in the context of a claim by the plaintiffs that they acquired a possessory title by reason of possession at common law. His Honour provided a detailed analysis of possessory rights to land at common law: 2.52C

Mabo v Queensland (No 2) (1992) 175 CLR 1; 107 ALR 1 High Court of Australia

Toohey J: … The relationship between possession and title: Does possession give rise to a presumptive title? ‘Possession’ is notoriously difficult to define (see Pollock and Wright pp 1–42; Tay, ‘The Concept of Possession in the Common Law: Foundations for a New Approach’ (1964) 4 Melbourne University Law Review 476) but for present purposes it may be said to be a

[page 125]

conclusion of law defining the nature and status of a particular relationship of control by a person over land. ‘Title’ is, in the present case, the abstract bundle of rights associated with that relationship of possession. Significantly, it is also used to describe the group of rights which result from possession but which survive its loss; this includes the right to possession. In the thirteenth century Bracton wrote (Bracton on the Laws and Customs of England (Thorne Tr) (1977), vol III, p 134): (E)veryone who is in possession, though he has no right, has a greater right [than] one who is out of possession and has no right. It is said that possession is the root of title (Asher v Whitlock (1865) LR 1 QB 1; Perry v Clissold [1907] AC 73; Calder [1973] SCR at 368; (1973) 34 DLR (3d) at 185 … Possession At common law conduct required to prove occupation or possession will vary according to the circumstances including, for example, whether the claimant enters as a trespasser or as of right (Stanford v Hurlstone (1873) LR 9 Ch App 116). And the nature of the land will to a large extent dictate the use that might be made of it. For example, conduct amounting to possession will be different in relation to a dwelling and to uncultivated land (Lord Advocate v Lord Lovat (1880) 5 App Cas 273 at 288; Johnston v O’Neill [1911] AC 552 at 583; Kirby v Cowderoy [1912] AC 599 at 602–3). Some land is barren and unproductive so that it cannot sustain people all the year round. It may be necessary for occupiers to seek water and sustenance elsewhere for part of the year, returning to ‘their’ land as soon as it is possible.

2.53

Consider the following passage from the judgment of the Full Court

of the Supreme Court of New South Wales in Oxford Meat Co Pty Ltd v McDonald [1963] SR (NSW) 423 at 427 per Brereton J: Now the rule as I understand it, is not that a person in possession is entitled to maintain his possession as against all but the true owner; it is that he is entitled to maintain it against all but a person having a better right to possession … A right to possession in a third party is relevant if it demonstrates that the claimant has none; but if the claimant has a right to possession (even though it springs merely from possession prior to ouster), a jus tertii (even in the true owner in fee) is irrelevant. Indeed the confusion only arises from the introduction by textwriters of the unfortunate

phrase jus tertii. The real effect of Perry v Clissold is to affirm that de facto occupation has the status of an inchoate title …

2.54

The principle articulated above by Lord MacNaghten in Perry v

Clissold (2.50C) that ‘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’ refers to the theory of ‘relativity of titles’. The theory of relativity of titles is directed principally to the situation where two or more parties make conflicting claims to interests in the same piece of land. Note that Lord MacNaghten in the passage extracted above from Perry v Clissold emphasises that at the end of the limitation period, the documentary title holder’s right ‘is forever extinguished, and the possessory owner acquires an absolute title’ (emphasis added). At this point the squatter in effect becomes the owner of the land. 2.55

The modern action for recovery of possession of land grew out of the

common law action of ejectment, a form of the older action of trespass. The function of ejectment was to

[page 126]

provide a remedy to the possessor of land in respect of damage caused by the intrusion of another person. The plaintiff in proceedings for the recovery of possession of land may wish to recover compensation for loss sustained by reason of the defendant’s wrongful occupation of the land. The plaintiff’s remedy is to claim ‘mesne profits’, which will include such items as the rental

value of the premises during the period of the plaintiff’s ouster. Mesne profits may be claimed in the proceedings for recovery of possession: Fleming, 37– 59. An occupier whose possession has been disturbed by the acts of another, but who does not require an order for possession of the land, may bring an action in trespass claiming an injunction. As to what constitutes sufficient possession for the purpose of bringing an action of trespass, see Ocean Estates Ltd v Pinder [1969] 2 AC 19. 2.56

In New South Wales, the common law action of ejectment has been

abolished and the Civil Procedure Act 2005 s 20 now substitutes a claim for possession of land. The Uniform Civil Procedure Rules 2005 deal with various aspects of the action for possession of land. See, for example, r 14.15 (matters to be pleaded by the defendant); r 10.15 (provision for court to order that originating process be served by affixing a notice to the land); and r 16.4 (default judgment on claim for possession). In other states, the position is similar to that in New South Wales, although there are variations in the rules of court and in some cases, legislation based on the Common Law Procedure Act 1852 (Eng) remains in force.

Relativity of titles under the Torrens system 2.57

The existence in Australia of the Torrens system of registration of

title has radically reduced the significance of possession as a means of proving title to land. The Torrens system creates a register which authoritatively records who owns land, and the state guarantees the accuracy of the register. There is nothing inherently inconsistent between the theory of relativity of

titles and the principles of the Torrens system. However, the creation of an authoritative register of title makes it much easier to identify the ‘true owner’ of land as we shall see in Chapter 3. Nonetheless, the principles discussed in Asher v Whitlock (2.48C) and Perry v Clissold (2.50C) continue to apply to Torrens system land. This is because disputes may occur in which one party is registered, but they are time-barred from asserting their title and recovering the land from someone whose claim is based on possession, or neither party is registered and both are relying on possessory titles. A possessory title over Torrens land can also be used to maintain an action in trespass: see Spark v Whale Three Minute Car Wash (Cremorne Junction) Pty Ltd (1970) 92 WN (NSW) 1087; Newington v Windeyer (1985) 3 NSWLR 555; cf Spark v Meers [1971] 2 NSWLR 1. The New South Wales Real Property Act 1900 s 45 originally provided that a registered proprietor’s title could not be statute-barred by any length of possession by another, but it was amended by the Real Property (Possessory Titles) Amendment Act 1979, Pt 6A. Under Pt 6A, a person who has been in adverse possession of a whole parcel of land in circumstances which would have extinguished the title of the holder of the fee simple estate had the land been old system, may apply to the Registrar-General to be registered as proprietor of the fee simple estate. A provision equivalent to s 45 continues to apply in the Australian Capital Territory: Land Titles Act 1925 s 69. The principles discussed in the cases extracted above are also basic to the operation of the limitation of actions legislation: see, for example, Mulcahy v Curramore Pty Ltd [1974] 2 NSWLR 464. This legislation is discussed in 2.72ff.

[page 127]

Assignment of the interest of a person dispossessed by a squatter 2.58

In New South Wales, s 50(2) of the Conveyancing Act 1919 may

affect the assignability of the interest of a person dispossessed from land. (Similar provision is found in the Civil Law (Property) Act 2006 (ACT) s 226.) 2.59E

Conveyancing Act 1919 (NSW)

50(2) Any conveyance of a present right of entry in any land, other than a conveyance to the person in possession thereof, and any covenant or agreement for, or promise of a conveyance (other than as aforesaid) of the same shall be void as, against the person in possession or those claiming under him or her unless the person conveying or covenanting, agreeing, or promising to convey, or the person through whom he or she claims has been in possession of the land within twelve months from the date of the conveyance, covenant, agreement or promise.

2.60

The courts have tended to construe s 50(2) narrowly: see Mulcahy v

Curramore Pty Ltd [1974] 2 NSWLR 464 at 480–1. The reasoning of Bowen CJ in Mulcahy v Curramore Pty Ltd was accepted by Bryson J of the Supreme Court of New South Wales in Beever v Spaceline Engineering Pty Ltd (1993) NSW ConvR ¶55-678, where his Honour described the ambit of the section in these terms (at 59,869, 59,870): [A] conveyance by a person who is out of possession is a conveyance of a right of entry within the meaning of s 50(2) although it purports to be a conveyance of the fee simple. If the person

purportedly conveying an interest is not in possession, his rights in relation to the land are equated with his opportunity to gain possession of it by effecting an entry or by legal process.

The self-help remedy 2.61C

McPhail v Persons Unknown [1973] Ch 447; [1973] 3 All ER 393 Court of Appeal

Lord Denning MR: 1 Introduction Mr McPhail is the owner of a leasehold house, 4 Thornhill Square, Islington. There was some furniture in it, but otherwise it seems to have been unoccupied. On Friday 13 April 1973, the premises were left locked and secured. On Sunday 15 April, some persons, the unknown, made entry. They got in by the front door and put a new lock on. On Monday 16 April, Mr McPhail went with a detective inspector, and asked them their names. They did not give them. So he took proceedings for possession under RSC O 113. These were served on them some time on Thursday 19 April, for hearing on 25 April. They then gave their names. They said they believed that the house had been empty for at least two years, and, as they had [page 128]

nowhere to live, they decided to make their home there. On 25 April, Phillips J made an order that Mr McPhail do recover possession … [T]he squatters appeal to the courts. They admit that they have no defence in law, but they ask the court to give them time. They only ask for four weeks, or so. Can the court give it to them? The case raises this question: when the owner of the house asks for an order for possession, is the judge bound to make an order which is enforceable forthwith? Or can he suspend it for a while? 2 The law as to squatters What is a squatter? He is one who, without any colour of right, enters on an unoccupied house or land, intending to stay there as long as he can. He may seek to justify or excuse his conduct. He may say that he was homeless and that this house or land was standing empty, doing nothing. But this plea is of no avail in law. As we said in London Borough of Southwark v Williams [1971] Ch 734 at 744; [1971] 2 All ER 175 at 179: If homelessness were once admitted as a defence to trespass, no one’s house could be safe. So the courts must, for the sake of law and order, take a firm stand. They

must refuse to admit the plea of necessity to the hungry and the homeless; and trust that their distress will be relieved by the charitable and the good. (i) The remedy of self-help. Now I would say this at once about squatters. The owner is not obliged to go to the courts to obtain possession. He is entitled, if he so desires, to take the remedy into his own hands. He can go in himself and turn them out without the aid of the courts of law. This is not a course to be recommended because of the disturbance which might follow. But the legality of it is beyond question. The squatters were themselves guilty of the offence of forcible entry contrary to the statute of 1381: the Forcible Entry Act 1381 (5 Ric 11 Stat 1, c 7). When they broke in, they entered ‘with strong hand’ which the statute forbids. They were not only guilty of a criminal offence. They were guilty of a civil wrong. They were trespassers when they entered, and they continued to be trespassers so long as they remained there. The owner never acquiesced in their presence there. So the trespassers never gained possession. The owner, being entitled to possession, was entitled forcibly to turn them out: see Browne v Dawson (1840) 12 Ad & El 624; 113 ER 950. As Sir Frederick Pollock put in his book on Torts (Pollock’s Law of Torts (15th ed, 1951) p 292): A trespasser may in any case be turned off land before he has gained possession, and he does not gain possession until there has been something like acquiescence in the physical fact of his occupation on the part of the rightful owner. Even though the owner himself should use force, then so long as he uses no more force than is reasonably necessary, he is not himself liable either criminally or civilly. He is not liable criminally (1) because it was said in the old times that none of the statutes of forcible entry apply to the expulsion by the owner of a tenant at will: see Anon (1670) 1 Vent 89; 86 ER 62; R v Dormy (1700) 1 Ld Raym 610; 91 ER 1308; R v Bathurst (1755) Say 225; 96 ER 60; but, even if this is no longer true, (2) in any case the statutes only apply to the expulsion of one who is in possession: see R v Child (1846) 2 Cox CC 102. They do not apply to the expulsion of a trespasser who has no possession. The owner was not civilly liable because the owner is entitled to turn out a trespasser using force, no more than is reasonably necessary: see Hemmings v Stoke Poges Golf Club [1920] 1 KB 720; [1918–19] All ER Rep 798. [page 129]

(ii) The remedy by action. Although the law thus enables the owner to take the remedy into his own hands, that is not a course to be encouraged. In a civilised society, the courts should themselves provide a remedy which is speedy and effective; and thus make self-help unnecessary. The courts of common law have done this for centuries. The owner is entitled to go to the court and obtain an order that the owner ‘do recover’ the land, and to issue a writ of possession immediately. That was the practice in the old action of ejectment which is well described by Sir William Blackstone in his Commentaries on the Laws of England (6th ed, 1774) vol 3, pp 200–5 and Appendix No 11: and by Maitland in his Equity (1909) pp 352–4; and see The Forms of Action at Common Law (1936) pp 58–60. So far as I can discover, the courts of common law never suspended the order for

possession. Once the order was made, the owner could straightaway get a writ of possession for the sheriff to cause the owner to be put into possession. Sometimes the owner, although he got an order, might not wish to get the sheriff to turn out the trespassers, because the sheriff was known to charge extortionate fees. In that case the owner was entitled to take possession at once by his own hand. Seeing that the owner could take possession at once without the help of the courts, it is plain that, when he does come to the courts, he should not be in any worse position. The courts should give him possession at once, else he would be tempted to do it himself. So the courts of common law never suspended the order for possession. It was suggested by counsel for the defendants that, although the courts of common law never suspended the order for possession, nevertheless, the courts of equity might do so; because they had power to issue an injunction to restrain the owner from proceeding with his action at law or with the enforcement of his order. I am satisfied that a court of equity would never intervene in aid of a wrongdoer. In Grafton v Griffin (1830) 1 Russ & M 336 at 337; 29 ER 130 at 130, where some claimants had wrongfully turned a widow out of a house and got possession of it, Lord Lyndhurst LC said: ‘This court will not interfere to support a possession so acquired’. By the Supreme Court of Judicature Act 1875 the old action of ejectment was replaced by an action for the recovery of land; but the practice remained the same, although the machinery was different: see Gledhill v Hunter (1880) 14 Ch D 492 at 498–500. The judgment was, as before, that the plaintiff ‘do recover’ possession. No time was mentioned. No date was given. The plaintiff could at once issue a writ of possession which was executed against the premises themselves. The sheriff’s officers turned out everyone who was there. If there was someone else there, in addition to the defendant, he too would be turned out unless he applied to come in and defend. (iii) The remedy by summons. So the matter rested until some difficulties were discovered recently. When some squatters entered on vacant land belonging to the Manchester Corporation, this court granted an injunction against them, but held that it could not make an order for recovery of possession except in a final judgment: see Manchester Corp v Connolly [1970] Ch 420; [1970] 1 All ER 961. And when some squatters occupied houses in Brighton, Stamp J held that no proceedings could be taken for recovery of possession unless they were named as defendants: see Re Wykeham Terrace, Brighton, Sussex; Ex parte Territorial Auxiliary and Volunteer Reserve Association for the South East [1971] Ch 204. The result was that if the squatters did not give their names, or if one squatter followed another in quick succession, no order for possession could be made. I must confess that I doubt the correctness of that decision. But it does not matter. The position was soon put right by new Rules of Court. RSC O 113 and CCR O 26 are quite clear. A summons can be issued for possession against squatters even though they cannot be identified by name and even though, as one squatter [page 130]

goes, another comes in. Judgment can be obtained summarily. It is an order that the plaintiffs ‘do recover’ possession. That order can be enforced by a writ of possession

immediately. It is an authority under which anyone who is squatting on the premises can be turned out at once. There is no provision for giving any time. The court cannot give any time. It must, at the behest of the owner, make an order for recovery of possession. It is then for the owner to give such time as he thinks right to the squatters. They must make their appeal to his goodwill and consideration, and not to the courts. I think that the judgment of Goulding J in Department of the Environment v James [1972] 1 WLR 1279; [1972] 3 All ER 629, was correct. 3 The position of tenants I must point out, however, that I have referred so far only to squatters who enter without any colour of title at all. It is different with a tenant who holds over after his term has come to an end or after he has been given notice to quit. His possession was lawful in its inception. Even after the tenancy is determined, he still has possession. If he remains in possession and in occupation, there is high authority for saying that the owner is not entitled to take the law into his own hands and remove the tenant by force. He should go to the court and get an order for possession. Otherwise he is guilty of a criminal offence contrary to the statute of forcible entry. He may not be liable to a civil action for damages: see Hemmings v Stoke Poges Golf Club. But, nevertheless, his conduct is unlawful and should not be countenanced by the courts of law. Any doubt on this score is nowadays removed by s 32 of the Rent Act 1965 which says that where a tenancy has come to an end but the occupier continues to reside in the premises, it is not lawful for the owner to recover possession otherwise than by proceedings in the court. Seeing that in the case of a tenancy the owner is not entitled to regain possession himself by his own self-help, and that he is bound to come to the court to recover possession, it follows that the courts are able to fix a date on which possession shall be recovered … My conclusion is that, when the owner of a house comes to the court and asks for an order to recover possession against squatters, the court must give him the order he asks. It has no discretion to suspend the order. But, whilst this is the law, I trust that owners will act with consideration and kindness in the enforcing of it — remembering the plight which the homeless are in. [Orr LJ agreed with the judgment of Lord Denning MR. Lawton LJ agreed that the appeal should be dismissed, but reserved the position of tenants and licensees holding over.] Appeals dismissed. Orders for possession.

2.62 Questions 1.

If the court did have power to order a stay of execution in this case, should the power have been exercised in favour of the squatters? If

so, on what basis? 2.

Why did Lord Denning MR hold that there was no power to suspend the order for possession?

3.

Would the result of the case have been different if the plaintiff had permitted the defendants to remain in possession for several weeks before taking action? In Selwyn Bibby v Suintra Partap [1991] 1 WLR 931, the Privy Council ordered a stay of the order for possession and allowed a squatter to remain on the land pending appeal.

[page 131]

Forcible re-entry 2.63

In early times the common law allowed a person who had been

dispossessed to retake possession by force within a specified time. As this remedy led to breaches of the peace, a series of Statutes of Forcible Entry was passed: Fleming, 10th ed, [5.12]. The Statute of Forcible Entry 1381 provided that: None from henceforth [shall] make any entry into any lands and tenements, but in case where entry is given by the law; and in such cases not with strong hand, nor with multitude of people, but only in peaceable and easy manner. And if any man from henceforth do to the contrary, and thereof be duly convict, he shall be punished by imprisonment …

The Statute of Forcible Entry 1391 (15 Rich 11, c 2) provided additional summary remedies for the enforcement of the earlier statute. In addition, the

1391 statute created the offence of forcible detainer of land, designed to meet the case of a person wrongfully taking possession of land and then seeking to rely on the 1381 statute to prevent the true owner from recovering possession. The statutes have been replaced by modern equivalents in Australia.26 The Code states supplement their legislation by providing that it is lawful for a person in peaceable possession of land with a claim of right to use such force as he or she reasonably believes to be necessary to defend his or her possession against any person whether entitled by law to possession of the property or not, subject to limits on the extent of bodily harm caused: Qld, s 278; WA, s 255; Tas, s 42. In certain circumstances, wilful trespass constitutes a criminal offence distinct from that of forcible entry. See, for example, Summary Offences Act 1966 (Vic) s 9(1)(e) and (f); Inclosed Lands Protection Act 1901 (NSW), s 4(1). 2.64

In Hemmings v Stoke Poges Golf Club Ltd [1920] 1 KB 720; [1918–19]

All ER Rep 798, the Court of Appeal held that, despite the existence of the offence of forcible entry, a person wrongfully retaining possession of land has no civil action for damages against the rightful owner who forcibly enters the premises unless more force is used than is reasonably necessary, or unless the owner fails to exercise reasonable care in removing the goods of the wrongful possessor. In reaching this conclusion the court examined many cases and overruled several. Scrutton LJ concluded his judgment by observing that (at KB 747; All ER Rep 809): [I]t will still remain the law that a person who replies to a claim for trespass and assault that he ejected a trespasser on his property with no more force than was necessary may be successfully met by the reply that he used more force than was necessary if the jury can be induced to find it. The

risk of paying damages and costs on this finding, and the danger of becoming liable to a prosecution under the statutes of forcible entry may well deter people from exercising this remedy except by order of the court. But I see no reason to add to the existing privileges of trespassers on property which does not belong to them by allowing them to recover damages against the true owner entitled to possession who uses a reasonable amount of force to turn them out.

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2.65

Hemmings v Stoke Poges Golf Club Ltd was followed in Macintosh v

Lobel (1993) 30 NSWLR 441. A tenant had remained in possession after the lease had expired and the landlord obtained a declaration from the Supreme Court that the tenant was a trespasser. Based on that decision the landlord could have obtained a writ of possession and had it executed by the sheriff. Instead, the landlord entered the premises and ejected the tenant using only such force as was reasonable in the circumstances. The tenant argued that s 18 of the Imperial Acts Application Act 1969 (NSW), which re-enacted the Statutes of Forcible Entry, prohibited such action and allowed possession to be obtained only by court process. The section states that: 2.66E

Imperial Acts Application Act 1969 (NSW)

18 No person shall make any entry into land except where such entry is given by law and, in such case, with no more force than is reasonably necessary.

2.67

The court held that the statute does not extinguish the common law

remedy of self-help in regaining possession of land and that a breach of s 18 by the rightful owner of the land would not give a trespasser any civil right to

bring an action for damages. Although the landlord had obtained a declaration that the tenant was a trespasser, Kirby P, with whom Cripps JA agreed, clearly accepted that the landlord could have removed the tenant without approaching the court at all. The landlord’s right of peaceable re-entry to recover possession of residential premises from an overholding tenant without a court order has been abrogated by legislation in all jurisdictions except Tasmania.27 The legislation generally forbids re-entry without the tenant’s consent except in accordance with a judgment, order or warrant of a court or tribunal given after notice to the tenant. The Northern Territory is the only jurisdiction which has abrogated the right of peaceable re-entry for all types of leases: Law of Property Act (NT) s 137(1). In other jurisdictions, the right of peaceable re-entry for tenancies other than residential tenancies is retained but is rarely used because the landlord may incur criminal penalties if the reentry is done in a manner likely to cause a breach of the peace (see state provisions adopting Statute of Forcible Entry: 2.63). 2.68

The squatter is liable to criminal penalties for forcible detainer of

land. All jurisdictions make it an offence for a person in actual but wrongful possession of land to hold it in a manner likely to cause a breach of the peace, or a reasonable apprehension of a breach of the peace, against the person legally entitled to possession.28 Further criminal legislation preventing entry onto, or occupation of land, may apply in certain jurisdictions such as the Inclosed Lands Protection Act 1901 (NSW). By s 4(1):

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2.69E

Inclosed Land Protection Act 1901 (NSW)

4(1) 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 …

2.70

By s 3, ‘inclosed lands’ means any lands, either public or private,

inclosed or surrounded by a fence, wall or other erection. The fact that the possession of land may also constitute a criminal offence does not prevent time running against the documentary title holder. See further, 2.94 below. 2.71

The result of McPhail’s case (2.61C) might well be different in the

various Australian jurisdictions, depending on the terms of the applicable rules of court. For example, the Supreme Court (General Civil Procedure) Rules 2005 (Vic) r 53.08 provides that a warrant of possession to enforce a judgment for possession given more than three months previously shall not be issued without leave of a judge. The position of an owner faced with squatters whose names are unknown also will depend on the rules in force. The Victorian rules expressly allow for proceedings to be commenced and served against occupiers of the land whose names are unknown to the plaintiff without naming any person as defendant: rr 53.03(2), 53.05(3). See also rr 1.12 and 36.5 of the Supreme Court (Uniform Civil Procedure) Rules 2005 (NSW), whereby a judgment for possession may specify the time for compliance.

LIMITATION OF ACTIONS 2.72

The current legislation on limitation of actions is as follows:

Limitation Act 1969 (NSW); Limitation of Actions Act 1958 (Vic); Limitation of Actions Act 1974 (Qld); Limitation of Actions Act 1936 (SA); Limitation Act 2005 (WA) (for causes of action arising on or after 16 November 2005); Limitation Act 1974 (Tas); Limitation Act 1985 (ACT). (The legislation is referred to in this section by the abbreviation of the state enacting it.)

How possessory title extinguishes documentary title with the passage of time 2.73

It has been seen that possession of land or goods, of itself, generates a

proprietary interest, although the possessor will be forced to yield to a person with a superior interest or title. In all common law jurisdictions, statutes provide that a possessory interest will, after the lapse of a certain period of time, defeat all other interests. For example, if A has a fee simple estate in Blackacre, and is dispossessed by B, B may be ousted at the suit of A. However, if B in turn is dispossessed of the land by C, B has a proprietary interest sufficient to enable him or her to regain the land from C: Asher v Whitlock (1865) LR 1 QB 1; 2.48C. When A is dispossessed by B, A’s right to sue B for possession of the land is extinguished by statute after the effluxion of a specified period, and B will then have an interest effectively enforceable against the whole

[page 134]

world. This result is achieved by legislation which limits the period within which action for the recovery of land or goods may be brought. 2.74

The legislation operates in a ‘negative way’, by barring A’s claim and

title to the land, rather than by stating that B’s interest is superior to that of anyone else. B’s interest ripens into the best interest in the land, simply because the only person with a superior title has become incapable of asserting that title. Under the English legislation before 1833, only A’s remedy was barred after the expiration of the limitation period, not his or her ‘title’. Thus, if possession of the land could peaceably be regained from B, A could withstand a challenge from B. However, since the enactment of the Real Property Limitation Act 1833 (UK) in England, A’s title as well as his or her remedy is extinguished, and even if A regains possession peaceably, B can succeed in an action to recover possession. This approach has been adopted in Australia with respect to actions for the recovery of land, and sometimes with respect to actions for the recovery of goods.29 The limitation period for actions to recover land is 12 years (NSW, s 27(2); Qld, s 13; WA, s 19; Tas, s 10(2)) or 15 years (Vic, s 8; SA, s 4). The registered title (Torrens) statutes of the Australian states and territories do not deal consistently with extinguishment of title by adverse possession for the limitation period. The provisions are discussed at 2.57–2.94ff.

Justifications for the rule of adverse possession 2.75

In Marquis Cholmondeley v Lord Clinton (1820) 2 Jac & W 1 at 139–

40; 37 ER 527 at 577, Sir Thomas Plumer MR explained the principle of limitation of actions and also attempted to state its rationale: The public have a great interest, in having a known limit fixed by law to litigation, for the quiet of the community, and that there may be a certain fixed period, after which the possessor may know that his title and right cannot be called in question. It is better that the negligent owner, who has omitted to assert his right within the prescribed period, should lose his right than that an opening should be given to interminable litigation, exposing parties to be harassed by stale demands, after the witnesses of the facts are dead, and the evidence of the title lost. The individual hardship will, upon the whole, be less, by withholding from one who has slept upon his right, and never yet possessed it, than to take away from the other what he has long been allowed to consider as his own, and on the faith of which, the plans in life, habits and experiences of himself and his family may have been … unalterably formed and established.

In addition to certainty of title and putting an end to litigation, McCrimmon advances the following as possible justifications for applying the principle of limitation to bar a landowner’s rights:30 1)

protecting those in possession from stale claims that, as a result of the passage of time, may be difficult to defend;

[page 135]

2)

encouraging holders of the documentary title not to sleep on their rights;

3)

facilitating a conveyance of the land in the event the holder of the documentary title has disappeared, or when, as a result of secret dealings, the documentary title no longer reflects an

accurate state of the title; and 4)

2.76

facilitating the investigation of title to unregistered land.

Arguments (1) and (2) are general justifications for limitation

statutes.31 The ‘sleeping on your rights’ argument has drawn support from Posner, who argues that the law of adverse possession encourages the productive use of land, thereby enhancing economic welfare.32 One problem with this ‘you snooze, you lose’ argument is that it is not necessarily inefficient to leave land idle. For example, to hold land in reserve for future development while awaiting planning approvals or capital formation may be its most economically productive use at the time.33 See, for example, JA Pye (Oxford) Ltd v Graham [2003] AC 419, a case in which squatters acquired title to valuable land set aside for urban development by using it for grazing. Moreover, the law of adverse possession does not actually require landowners to use their land productively, but only to monitor it and eject squatters. Some environmentalists argue that adverse possession tends to lead to the over-exploitation of wilderness areas, which are particularly susceptible to incursions by squatters.34 McCrimmon suggests that arguments (3) and (4), that adverse possession facilitates proof of title where documentary proof is lacking, do not apply to land under the Torrens System, because the register states who holds title and documentary proofs are not required. He finds it incongruous that many Torrens jurisdictions allow the acquisition of title to registered land by adverse possession.35 The English Law Commission observed that while registration of title reduces the need to rely on adverse possession for proof of

title, it still serves a useful function in updating the register in cases where conveyancing formalities were overlooked in the past:36 [I]f land ownership and the reality of possession are completely out of kilter, the land in question is rendered unmarketable if there is no mechanism by which the squatter can acquire title. This situation can easily happen, as for example where — (1) the true owner has disappeared and the squatter has assumed the rights of ownership for a substantial period; or (2) there have been dealings with registered land ‘off the register’, so that the register no longer reflects the ‘true’ ownership of the land.

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2.77

Similar concerns have prompted Australian jurisdictions to recognise

adverse possession: New Zealand and several Australian jurisdictions that originally did not allow adverse possession against a registered owner subsequently amended their statutes to allow it, in order to resolve problems arising from missing owners and informal conveyancing. The problems particularly affected areas where the original sales of Crown land coincided with mining booms, such as in parts of New Zealand, Victoria and western Tasmania. In these areas it has been known for owners to sell their lands without conveyancing formalities, or simply to abandon them if no buyer could be found at the time the owner wished to move on. Some parcels of land have been bought and sold off the register over decades, by occupiers who paid the rates and taxes. Since mortgage lenders will not accept possessory titles as security for loans, these properties tend to remain underdeveloped. The regression to deeds-based conveyancing undermined the accuracy and completeness of the register.37

Adverse possession and good faith

2.78

In many cases a person claiming as adverse possessor is in fact the

true successor to the last documentary owner, but lacks documentary proof. A curious aspect of the law of adverse possession is that it fails to distinguish between the deliberate trespasser and the person who takes possession under colour of right, believing that the land is his or her own. There is no legal requirement that a person in adverse possession believe that he or she is entitled to the land. For example, in Monash City Council v Melville (2000) V ConvR 54-621; [2000] VSC 55, the applicants had knowingly chosen when erecting a boundary fence to enclose an adjacent 20-foot strip of council reserve land with their land, with the intention of claiming it by adverse possession. The council failed to notice that the fence was off boundary. The applicants succeeded in making out their claim for a vesting order under the Transfer of Land Act 1958 (Vic) s 62 to register them as owners of the strip. Some overseas jurisdictions impose more onerous requirements on adverse possession claims where the original trespass was intentional, such as requiring a longer limitation period or more stringent proofs. For example, England’s Land Registration Act 2002 Sch 6, paras (1)–(5) now imposes a good faith test in some cases through a requirement that ‘the applicant (or any predecessor in title) has been in adverse possession for the preceding ten years in the reasonable belief that the land belonged to him’.38

Adverse possession and human rights 2.79

In recent years, limitation statutes that provide for the

uncompensated extinguishment of interests in land through adverse possession have been challenged for inconsistency with human rights.

Human rights instruments in some jurisdictions provide protection for property rights. For example, art 1 of Protocol 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (‘ECHR’) provides:

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2.80E

European Convention for the Protection of Human Rights and Fundamental Freedoms

Protocol 1, art 1 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 the general principles of international law. The preceding 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 interest or to secure the payment of taxes or other contributions or penalties.

2.81

The Human Rights Act 1988 (UK) gives effect to the ECHR,

including the protection of property in art 1 of Protocol 1. The ruling of the House of Lords in J A Pye (Oxford) Ltd v Graham [2003] AC 419, was the subject of an appeal to the European Court of Human Rights. The applicant companies complained that their property rights protected by the ECHR had been violated in consequence of the provisions of the repealed Land Registration Act 1925,39 under which they had lost ownership of their land without compensation through the adverse possession of a neighbour for the 12-year limitation period. In J A Pye (Oxford) Ltd and J A Pye (Oxford) Land Ltd v The United

Kingdom (Application No 44302/02) in a judgment given on 30 August 2007, the Grand Chamber of the European Court of Human Rights held, by ten votes to seven, that there had been no violation of the rights of the applicant companies under art 1 of Protocol 1 arising from their loss of ownership of their land through adverse possession. The majority justices noted that the second paragraph of art 1 recognises that states are entitled to control the use of property in accordance with the general interest. In order to be consistent with the general rule stated in the first sentence of the first paragraph of art 1, an interference with the right to the peaceful enjoyment of possessions must strike a ‘fair balance’ between the demands of the general interest of the community and the protection of the individual’s fundamental rights. The applicants had lost their land through the operation of limitation provisions for actions to recover land. It was held that the provisions were part of the general land law and amounted to ‘control of use’ provisions which regulate the use and ownership of land as between persons. There was a general interest in the limitation provisions themselves, and in the statutory extinguishment of title where the cause of action had expired. The majority justices considered that the fair balance required by art 1 was made out. The limitation provisions were of long standing and well known. The applicant companies were not without procedural protection, as there were various courses open to them that would have prevented time running, and they could dispute in court the squatter’s claim to have been in ‘adverse possession’. The absence of provision for compensation did not upset the

balance, since compensation was not consistent with the concept of limitation periods.40

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2.82

Victoria’s Charter of Human Rights and Responsibilities Act 2006

(the Victorian Charter) requires courts to interpret legislation compatibly with the rights listed in the Charter, so far as their purpose allows, and allows them to consider international law and the judgments of foreign courts relevant to a human right: s 32. The listed human rights include a person’s right ‘not to be deprived of his or her property, other than in accordance with law’: s 20; and protection from unlawful or arbitrary interference with his or her family home: s 13. Similar provisions are found in the Human Rights Act 2004 (ACT) ss 12, 30, 31, although the Act lacks the specific protection of property. The Victorian Charter s 7(2) is a general limitations provision. It provides that a human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and taking into account a list of relevant factors specified in the subsection. In Abbatangelo v Whittlesea City Council [2007] VSC 529, a defendant to an adverse possession claim argued that the Victorian Charter’s protection of property rights was inconsistent with ‘a rationale which actively encourages people deliberately to enter into possession of another’s land knowing that they would be rewarded with an unassailable title as a result of their wrong’.

The trial judge, Pagone J, rejected the argument, stating (at [3]) that the rule of adverse possession was one which sought to regulate and resolve competing property rights; namely, the right of the documentary title holder and the possessory right that an adverse possessor claims to have acquired. It was not clear that the Charter favoured the rights of the possessor over the documentary title holder. Moreover, the rule of adverse possession served a public interest ‘in ensuring that a person in long term and undisputed possession is able to deal with land as owner’. The point was not argued in the subsequent appeal in Whittlesea City Council v Abbatangelo (2.92C). Do you agree that the effect of the Victorian Charter as between the parties was neutral, given that Vic, s 18 extinguishes the title of one party — the documentary title holder? 2.83

An argument that seeks to reconcile all these competing

considerations proposes to deploy the court-ordered easements approach to possessory title.41 As we shall see below in Chapter 10, in certain circumstances courts may order an easement, typically where a neighbour conducting building operations or otherwise establishes that it is ‘reasonably necessary’ for the use or development of other land. Where such an easement is granted, the court must order compensation reflecting the loss to the documentary title holder. Similar reforms could require the documentary title holder to apply to a court after the limitation period has run to seek compensation for loss. In determining the amount of compensation the court could consider among other factors, the extent of any improvements made to the land by the possessor, whether the possessor or documentary title holder had a particular need for the land, whether the intention to possess was based

on a mistake, and the reasons of the documentary title holder for not seeking to repossess. In extreme circumstances, the figure might equal, but not exceed, market value. Arguably, a flexible approach might better address the competing principles, and in a way the current all-or-nothing rule fails to do.

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The length of the limitation period 2.84

In both England and Australia the approach of the limitation statutes

is to divide legal actions into various categories and to formulate a series of individual rules with respect to each category. State legislation provides for three main limitation periods. The longest of these periods relates to actions to recover land and certain other specific actions such as actions upon a bond or specialty and actions for the enforcement of a judgment. The shortest period, generally three years, applies to claims for damages for personal injuries. The middle period, usually six years, applies, inter alia, to actions founded upon simple contract and tort, and accordingly includes actions for the recovery of goods. For a consideration of the justification for the system of specified limitation periods, as opposed to a discretionary approach, see Jackson, ‘The Legal Effects of the Passing of Time’ (1970) 7 MULR 407 at 466–7. 2.85

The limitation period for actions to recover land is 12 years (NSW, s

27(2); Qld, s 13; WA, s 19; Tas, s 10(2)) and 15 years (Vic, s 8; SA, s 4). 2.86

The approach to claims of adverse possession against the Crown

varies from state to state. The English rule applicable at the time of the European settlement of Australia was that an action by the Crown was barred after a period of 60 years: Crown Suits Act 1769 (Imp) (Nullum Tempus Act). This rule appears to apply in South Australia (South Australian Co v City of Port Adelaide [1914] SALR 16), while in two states the period has been shortened to 30 years.42 In the remaining states, the rule is that there can be no adverse possession of land against the Crown.43 The justifications for refusing to permit time to run against the Crown is that the Crown cannot be expected to monitor the use of all public lands, and that future generations should not be deprived of their patrimony due to the oversight of officials who hold the lands in trust for them.44 The same arguments can be made in respect of lands held by public agencies outside the ‘shield of the Crown’, such as local councils and water authorities, and private bodies that hold land for public purposes such as railway tracks, water catchments and parks. A Victorian minister remarked that many councils ‘hold large areas of unfenced land which people can easily encroach upon and not be detected by doing so or be detected at significant cost’: Victoria Hansard (LA), 16 Sept 2004 (Hon Mr Thwaites, Minister for Environment), 554–5. Victoria has extended protection from adverse possession to councils and certain other bodies: Vic, ss 7A, 7AB and 7B.

Commencement of the limitation period General principles 2.87

The limitation period generally commences from the time the

relevant cause of action accrues. Section 8 of the Limitation of Actions Act 1958 (Vic), for example, provides as follows:

[page 140]

2.88E

Limitation of Actions Act 1958 (Vic)

8 No action shall be brought by any person to recover any land after the expiration of fifteen years from the date on which the right of action accrued to him or, if it accrued to some person through whom he claims, to that person …

2.89

For the most part the legislation does not specify the circumstances in

which an action accrues, or the time it accrues, leaving these matters to be ascertained from the pre-existing rules of the common law. It is necessary to state that the basic and overriding rule concerning the accrual of the right of action to recover land is that such an action is deemed to accrue only where the person entitled to possession is out of possession and some other person in whose favour the period of limitation can run is in possession (‘adverse possession’). In other words, if A abandons his or her land and, 10 years later, B takes possession, A’s right of action is not deemed to accrue until B takes possession: NSW, s 38(3); Vic, s 14(1); Qld, s 19(1); WA, ss 3(6), 65; Tas, s 16(1). The same result would follow in South Australia, even in the absence of specific legislation: Smith v Lloyd (1854) 9 Exch 562; 156 ER 240. It is irrelevant whether the documentary owner realises that he or she has been dispossessed: Cervi v Letcher [2011] VSC 156, [13]; Re Johnson [2000] 2 Qd R 502, 506. 2.90

A right of action cannot accrue if a person is in possession with the

consent of the owner, but once consent is withdrawn they become a trespasser, and the action accrues. In such a situation, the possession is not ‘adverse’ to that of the documentary title holder: Ramnarace v Lutchman [2001] 1 WLR 1651 (PC). In Cleret v Rago [2014] QCA 158, one partner in a de facto relationship remained in the home from 1995 after the other, the owner of the property left. He was served with an eviction letter in 2011, but refused to leave. The court held that the initial period of possession until the

eviction notice was with consent. The possession was only adverse from 2011 on receipt of the eviction letter, and had thus not run the requisite period.

Persons presently entitled to possession 2.91

Where the person bringing the action to recover land, or some person

through whom such person claims has been in possession thereof and has while entitled thereto ‘been dispossessed or discontinued his possession’, the right of action is deemed to accrue on the date of the dispossession or discontinuance.45 Special provision is made for the case where an action is brought to recover land of a deceased person or to recover land assured (or conveyed) otherwise than by will. In these cases the right of action is deemed, in general, to accrue, respectively, on the death of the deceased or the date the assurance took effect.46

[page 141]

The elements of adverse possession 2.92C

Whittlesea City Council v Abbatangelo (2009) 259 ALR 56; [2009] VSCA 188 Supreme Court of Victoria (Court of Appeal)

[The appeal was from a decision of Pagone J that the respondent, Mrs Abbatangelo, had acquired title to a parcel of general law (unregistered) land (‘the land’) by adverse possession against the appellant council, the documentary owner of the land. The appellant argued that the judge erred in finding that the respondent had acquired title by adverse possession. The land was rectangular in shape, and approximately half an acre in size. Its long boundaries included its

southern frontage. It had been owned by the council or its predecessor since 1908. Prior to 1950, all the boundaries had been fenced and the council had planted trees on the land. In November 1958, Mrs Abbatangelo and her husband (since deceased) bought a five acre property which effectively enclosed the land on three of its four sides, excepting the southern boundary which abutted a public road. The respondent and her family lived on the property from 1958, except for a five-year period from 1970 to 1975 when they resided in Geelong. During the five-year period, they visited the property most weekends to maintain it and to tend livestock. Between 1958 and 2004, when the claim for adverse possession was made, the respondent and her family had used the land for various purposes including grazing, enclosing and sheltering their livestock, sport and recreation, and barbeques and social gatherings. Shortly after they purchased their property, the Abbatangelos installed a gate in the northern boundary fence to give vehicular access to the land from their property, and placed an old bath tub on the land as a water trough to water stock. They built children’s swings and a rudimentary cubby house on the land. In 1986 they removed the fence along the eastern boundary of the land. They maintained the boundary fences and the vegetation on the land, kept the land clear of weeds, pests and fallen timber, mowed the grass, caught rabbits and undertook landscaping work, without any contribution from the council. The respondent relied on all these acts as demonstrating adverse possession since 1958. The trial judge held that there was a continuous period of adverse possession commencing either by the late 1960s, or at the latest, by 1975 when the family resumed living on their property.] Ashley and Redlich JJA and Kyrou AJA: [footnotes omitted] This appeal arises from a decision of a judge of the Trial Division that Laurice Abbatangelo (‘Mrs Abbatangelo’ or ‘the respondent’) had acquired title to a parcel of general law land situated at 581 Bridge Inn Rd, Mernda (‘the land’) by adverse possession against the Whittlesea City Council (‘the Council’ or ‘the appellant’), the paper owner of the land. The appellant contends that the judge erred in finding that the respondent had acquired title to the land by adverse possession. It says that the elements of adverse possession were not made out … For the reasons that follow, we have concluded that the judge’s decision was correct and that the appeal should be dismissed. Applicable principles Section 8 of the Limitation of Actions Act 1958 (Vic) (‘the Act’) provides that no action shall be brought by any person to recover any land after the expiration of 15 years from the date on which the right of action accrued. Section 18 provides that at the expiration of that period, the person’s title to the land shall be extinguished. As to when the right of action accrues, s 9(1) refers to the date upon which the person whose title stands to be extinguished ‘has … been dispossessed or discontinued his possession’, whilst s 14(1) provides that ‘[n]o right

[page 142]

of action to recover land shall be deemed to accrue unless the land is in possession of some person in whose favour the period of limitation can run (hereafter in this section referred to as ‘adverse possession’)’. Before us, the parties agreed that the following comments made by Ashley J (as his Honour then was) in Bayport Industries Pty Ltd v Watson aptly summarise the relevant principles: The law is clear enough. A number of the basic principles were summarised by Slade J in Powell v McFarlane. Thus, pertinently: ‘It will be convenient to begin by restating a few basic principles relating to the concept of possession under English law: (1) In the absence of evidence to the contrary, the owner of land with the paper title is deemed to be in possession of the land, as being the person with the prima facie right to possession. The law will thus, without reluctance, ascribe possession either to the paper owner or to persons who can establish a title as claiming through the paper owner. (2) If the law is to attribute possession of land to a person who can establish no paper title to possession, he must be shown to have both factual possession and the requisite intention to possess (animus possidendi). (3) Factual possession signifies an appropriate degree of physical control. It must be a single and [exclusive] possession, … The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed … It is impossible to generalise with any precision as to what acts will or will not suffice to evidence factual possession … Everything must depend on the particular circumstances, but broadly, I think what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no-one else has done so. (4) The animus possidendi, which is also necessary to constitute possession, … involves the intention, in one’s own name and on one’s own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the processes of the law will allow … the courts will, in my judgment, require clear and affirmative evidence that the trespasser, claiming that he has acquired possession, not only had the requisite intention to possess, but made such intention clear to the world. If his acts are open to more than one interpretation and he has not made it perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can, the courts will treat him as not having had the [requisite] animus possidendi and consequently as not having dispossessed the owner.’

To those principles should be added and/or highlighted the following: 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 [page 143]

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 L.T. 168, 1609: ‘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’. It is well established that it is no use for an alleged adverse possessor to rely on acts which are merely equivocal as regards the intention to exclude the true owner: see for example Tecbild Ltd v Chamberlain, 20 P & CR 633, 642, per Sachs LJ. A person asserting a claim to adverse possession may do so in reliance upon possession and intention to possess on the part of predecessors in title. Periods of possession may be aggregated, so long as there is no gap in possession. Acts of possession with respect to only part of land claimed by way of adverse possession may in all the circumstances constitute acts of possession with respect to all the land claimed … Where a claimant originally enters upon land as a trespasser, authority and principle are consistent in saying that the claimant should be required to produce compelling evidence of intention to possess; in which circumstances acts said to indicate an intention to possess might readily be regarded as equivocal … At least probably, once the limitation period has expired the interest of the adverse possessor, or of a person claiming through him, cannot be abandoned. For the purposes of this appeal, the following additional principles are also relevant: a)

b)

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

c)

Intention to possess requires an intention to exercise such custody and control on one’s own behalf and for one’s own benefit. Both elements must be satisfied by a putative adverse possessor, although the intention to possess may be, and frequently is, deduced from the objective acts of physical possession. In considering whether the putative adverse possessor has factual possession, a court has regard to all the facts and circumstances of the case, including the nature, position and characteristics of the land, the uses that are available and the course of conduct which an owner might be expected to follow. Each case must be decided on its own particular facts. Whilst previous cases can provide guidance as to the relevant principles which are to be applied, they should be treated with caution in terms of seeking factual analogies by reference to particular features of a person’s dealings with land. Acts that evidence factual possession in one case may be wholly inadequate to prove it in another. For example, acts done by a putative adverse possessor who lives next to the relevant property may sufficiently evidence a taking of possession, whereas those same acts may be insufficient if done by a person who lives some distance from the property. [page 144]

d)

e) f)

g)

h)

The intention required by law is not an intention to own or even an intention to acquire ownership of the land, but an intention to possess it. The putative adverse possessor need not establish that he or she believes himself or herself to be the owner of the land. A number of acts which, considered separately, might appear equivocal may, considered collectively, unequivocally evidence the requisite intention. Statements about intention by a putative adverse possessor should be treated cautiously, as they may be self-serving. But whilst a statement by a person that he or she intended to possess land will not be enough in itself to establish such an intention, it may be relevant when taken in combination with other evidence suggesting an intention to possess. Mere use falling short of possession will not suffice. In some circumstances, a person’s use of land may amount to enjoyment of a special benefit from the land by casual acts of trespass and will neither constitute factual possession nor demonstrate the requisite intention to possess. For example, where vacant land abutted a putative adverse possessor’s land, occasional tethering of the claimant’s ponies on the vacant land, and grazing them there, and occasional playing on the vacant land by her children were held not to suffice. Use and enjoyment of a special benefit and exclusive possession are not, however, necessarily mutually exclusive, for exclusive possession will usually entail use and special benefit. Use and enjoyment of a special benefit, on the other hand, will not necessarily amount to exclusive possession. There is no separate requirement that the use to which the land is put by the putative adverse possessor be inconsistent with the paper owner’s present or future intended use of the land, as suggested by Leigh v Jack. In Monash City Council v Melville, Eames J reviewed the history of the rule in Leigh v Jack and said the

following: To the limited extent that the rule still applies its effect, now, is as follows. Where the trespasser’s acts had not been inconsistent with the future planned use, not therefore manifesting the requisite intention of dispossessing the owner, one might conclude that the requisite elements for adverse possession had not been established; [l]ikewise it may more readily be concluded that the requisite elements to constitute adverse possession had not been established where the land is waste land and the possessor had not done any acts to manifest an intention to dispossess the owner. However, where the trespasser had done acts which plainly manifested an intention to dispossess the owner, and where the acts would otherwise lead to the conclusion that adverse possession had been established, the fact that the land was waste land or was set aside for some future public purpose, did not introduce any special rule which gainsaid that conclusion. It was not suggested before us that Eames J incorrectly stated the law in relation to the present limited effect of the rule in Leigh v Jack. We would therefore proceed on the basis that his Honour correctly stated the law even if it was not for the subsequent decision of the House of Lords in J A Pye (Oxford) Ltd v Graham, where Lord Browne-Wilkinson (with whom the other Law Lords agreed) said this in relation to the rule in Leigh v Jack: The suggestion that the sufficiency of the possession can depend on the intention not of the squatter but of the true owner is heretical and wrong … The highest it can be put is that, if the squatter is aware of a special purpose for which the paper owner uses or intends to use the land and the use made by the squatter [page 145]

does not conflict with that use, that may provide some support for a finding as a question of fact that the squatter had no intention to possess the land in the ordinary sense but only an intention to occupy it until needed by the paper owner. For myself I think there will be few occasions in which such an inference could be properly drawn in cases where the title owner has been physically excluded from the land. But it remains a possible, if improbable, inference in some cases. i)

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

In our opinion, the trial judge was correct to hold that the appellant’s title to the land had been extinguished by the respondent’s adverse possession. For the reasons which follow, the respondent demonstrated both sufficient acts of factual possession and a manifest

intention to exclusively possess the land for the necessary period. On a tenable view of the evidence, actual possession with requisite intent was continuous from the early 1960s until 2004. But even if the better view was that possession was broken during the period when the Abbatangelos resided in Geelong — that is, between about October 1970 and February 1975 — there was, we consider, continuous possession with requisite intent for more than 15 years from the time that they returned to Mernda. From that time, the Abbatangelos engaged in a process of reinforcing and building upon what they had previously done in relation to the land. On the basis that time began to run no later than the end of February 1975, the appellant’s title was extinguished at the end of February 1990 at the latest. In arriving at our conclusions, we have rejected a number of submissions advanced for the Council. Those submissions [include]: (1) submissions about factual possession; (2) submissions about intention to possess; (3) submissions about particular aspects of the legal principles which inform adverse possession … As intention to possess is usually inferred from acts of possession, the appellant understandably relied upon similar evidence and submissions in attacking the judge’s findings with respect to both elements. Except where necessary, we will deal with overlapping submissions and evidence in respect of one or other element on the basis that our conclusions will apply to both. Factual possession It was submitted for the Council that the respondent had not shown sufficient acts of possession to establish that she had factual possession … The answer to the question what acts of possession are sufficient to show factual possession always depends upon the particular facts and circumstances of the instant case. These include the circumstances of the putative adverse possessor. In this case, those circumstances included the fact that the respondent’s property effectively enclosed the land on three of its four sides, whilst its fourth side faced the road. It is rare for there to be something so clear as a literal unfurling of a flag or the erection of a ‘keep out’ sign. Nor is there any general requirement that structures be erected on the land, although the erection of structures may assist in establishing factual possession. Similarly, it cannot be said that grazing stock on land, of itself, will never be sufficient to establish possession. Whether it is sufficient of itself, or in combination with other matters, invites consideration of all the circumstances of the case. In this case, the respondent’s failure to change the appearance of the land, particularly in relation to the trees, did not in our opinion betoken an absence of sufficient acts of possession. It was explicable in terms of the amenity provided by the treed land, which provided shade and shelter for stock and facilitated its use and enjoyment by children and for social occasions. [page 146]

Supposing that there had been a single owner of the respondent’s property and the land, we consider it quite likely that such owner would have made the same use of the land as did the Abbatangelos.

The appellant submitted that the placing of the bathtub stock trough on the land should not be given great weight because there was no piped water connected to it. All that the Abbatangelos did was hand-fill it from time to time. In our view, that submission failed to take account of the Abbatangelos’ position. They resided on the adjacent property. The trough was positioned close to the boundary of the land, and so could be observed, and filled as required. There was no need for a piping system. The arrangements for filling the trough were rudimentary, adequate, and we think not unusual. In our opinion, the placing of the trough on the land was a circumstance which, viewed in context, considerably aided the respondent’s case. The Council also submitted that his Honour did not make a direct finding, as it was contended he was required to make, that the appellant had been dispossessed, or had discontinued possession. The criticism was unfounded. As Pye makes clear, dispossession of the paper owner is established by the putative adverse possessor going into possession of the land for the requisite period without the consent of the owner. His Honour held that the Abbatangelos had exclusive possession and control of the land without the Council’s consent for continuous period of 15 years. That was sufficient to establish factual possession. Another argument advanced for the Council was that there was no use of the land by the Abbatangelos which was inconsistent with the appellant’s rights as the paper owner. Senior counsel for the appellant conceded that inconsistency may not be strictly necessary, but maintained that there will be very few cases where adverse possession is established without inconsistent use. In our view, inconsistent use need not be proved in order to establish factual possession. What is important is whether the requisite degree of control and exclusivity was present. In this case, for the reasons we have already given, there was such control and exclusivity. Intention to possess The Council submitted that the trial judge misstated the law on intention to possess because he failed to refer in full to what Ashley J said in Bayport. In particular, the appellant criticised the trial judge for not referring to the following passage in Powell v McFarlane, which was quoted in Bayport: If his acts are open to more than one interpretation and he had not made it perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can, the courts will treat him as not having had the requisite animus possidendi and consequently as not having dispossessed the owner. The appellant submitted that the consequence of the alleged error was that the judge gave undue primacy to his findings about the respondent’s subjective intention and failed to give sufficient consideration to whether her acts indicated a manifest unequivocal intention to exercise exclusive control. In our opinion, the appellant’s criticisms of the trial judge’s analysis were unfounded … Contrary to the appellant’s submission, his Honour did not err in finding that ease of access through the fence on the southern boundary of the land did not detract from the nature of a fence as a sign to all who saw it not to enter. As we have said already, the fact that a person, including an employee of the Council, could have physically entered the land

[page 147]

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

boundaries. Others are internal. Some are ornate. Others are minimalist and purely functional. The nature and purpose of a fence will be affected by the nature, location and characteristics of the land and the uses to which it is put. Given that the use to which the Abbatangelos put the land over an extended period included grazing of livestock, it is entirely unsurprising that one purpose of maintaining the fences on the land was to prevent animals from straying on to the road. The existence of that purpose, however, did not prevent the maintenance of the fences [page 148]

from being included in the factual matrix from which findings could be made about factual possession and an intention to exclusively possess. In a still further submission, the Council sought to rely upon notations made by the Abbatangelos in a series of planning applications lodged between 1969 and 1979 concerning the respondent’s property. Documents which they filed depicted the land and used the acronym ‘NIT’ (‘Not in Title’) to describe it. The appellant submitted that the statements were clear acknowledgments by the respondent that the appellant, rather than she, owned the land. In our view, the notations were nothing to the point. The intention that the putative adverse possessor must have, and must manifest, is an intention to possess exclusively, not an intention to own. An acknowledgement as to who is the paper owner is not inconsistent with the requisite intent. The acronym ‘NIT’ accurately represented the title position and said nothing about who was in possession of the land and with what intention. The appellant submitted that the trial judge was bound to, but did not, find that Mrs Abbatangelo was aware of the use to which the appellant intended to put the land and so more was required to manifest an intention to possess the land adversely than was done by her. For the reasons set out at [6](h) above, the submission should be rejected. This case was not one where an inference — which Lord Browne-Wilkinson described in Pye as ‘improbable’ — could be drawn that Mrs Abbatangelo’s presumed awareness of the Council’s intended use of the land, and the lack of inconsistency between her use of the land and the Council’s intended use, justified a finding of fact that Mrs Abbatangelo had no intention to possess the land but only an intention to occupy it until needed by the Council. In relation to the trial judge’s use of Mrs Abbatangelo’s evidence about her own subjective intention, the appellant submitted that such evidence was ambiguous, inadequate and in any event self-serving. It submitted that the evidence of her intention apparent from her statement to Mr Draper should be preferred. We have already dealt with the 1992 conversation. With respect to the respondent’s evidence of her subjective intention, whilst statements of intention must be treated with caution, they may nonetheless be of use in conjunction with other circumstances. In this case, the trial judge was alive to the potentially self-serving nature of Mrs Abbatangelo’s statements of her intention and evaluated her evidence in the context of the evidence as a whole. In our opinion, he was entitled to accept Mrs Abbatangelo’s stated intention in the context of all the evidence. The appellant also relied on the Abbatangelos not having paid rates for the land. Although payment of rates may be evidence of an intention to possess, there is no

requirement that they be paid for intention to be established. As the Council was the paper owner of the land, it was not rated. In the circumstances, it was not to be expected that Mrs Abbatangelo would request the Council to issue rate notices to her. Again there is an element of confusion with recognition of ownership. It cannot tell against Mrs Abbatangelo having the requisite intention to possess the land that she did not volunteer to pay rates. Other issues relating to the principles of adverse possession The judge found that the period spent by the Abbatangelos in Geelong did not constitute an interruption to their continuous possession. The appellant challenged this finding. In our view, it was open to the judge on the evidence before him to find that the Geelong period did not interrupt the Abbatangelos’ possession. But even if such a finding was not open to the judge, in our view there was a continuous period of possession for 15 years from the time the Abbatangelos returned to Mernda in February 1975. The appellant next relied on the principle that possession of land cannot be adverse to the paper owner if done with the permission of that owner. It called in aid Mr Christian’s evidence about the appellant’s practice of allowing grazing on some Council land — even [page 149]

though, for reasons which we have described, the judge rejected its usefulness. It also called in aid evidence given by Mr Draper to which the judge did not refer. Mr Draper had said that some land owned by the appellant was fenced off by farmers who used it for grazing and that the appellant was happy for that to happen because it helped to keep the grass down. The appellant submitted that this was compelling evidence that the respondent’s use of the land for grazing was not adverse to the appellant. It also referred to evidence given by one of the respondent’s sons that the fences around the land were well maintained to keep animals from getting on to the road. It submitted that, consistent with Murnane v Findlay, the judge should have found that grazing was an equivocal act and indicated an intention to obtain a special benefit from the land rather than an intention to exclusively possess. In our view, those submissions must be rejected. The trial judge was correct to conclude that whatever tacit permission the appellant gave for farmers to graze their cattle on Council land did not apply to this small, treed and fenced-off parcel of land … In any event, grazing was far from being the only act of possession by the respondent of the land. Those acts, which extended over a lengthy period, were not engaged in as a consequence of some express or tacit permission of the appellant. All of the acts, when viewed in combination, were not the mere obtaining of a special benefit. They were sufficient to establish factual possession and an intention to exclusively possess. We observe in passing that apart from the matters to which we have already referred, the Council did not at trial or on appeal rely upon any particular conduct by it in relation to the land that told against the respondent’s claim of exclusive possession for the requisite period. Order: Appeal dismissed.

2.93 Questions 1.

Adverse possession can be very lucrative. In J A Pye (Oxford) Ltd v Graham [2003] AC 419 squatters acquired title to 57 acres of land in Berkshire with development potential, valued at £2.5 million in 2002. In Whittlesea City Council v Abbatangelo (2.92C), the value of the land had increased almost fivefold in just two years. The decision represents a significant loss of public land to Whittlesea, an outer metropolitan municipality with a surging population. In Monash City Council v Melville [2000] VSC 55 a municipality lost 428 square metres of public open space (valued at $75,000) when adjacent landowners knowingly enclosed a 20-foot strip of a council reserve with their own land. Should council land and other public land be at risk of loss through adverse possession in the same way as privately-owned land? Section 7B of the Limitation of Actions Act 1958 (Vic), which commenced in 2005, provides that the title of a council to land of which it is the registered proprietor is not affected by any period of adverse possession. Why did Whittlesea City Council not rely on s 7B?

2.

The Victorian Court of Appeal distinguished between acts amounting to adverse possession (factual intention and intention to possess), and ‘casual acts of trespass’ amounting to ‘enjoyment of a special benefit’ such as where a neighbor occasionally grazes animals on vacant land that abuts his or her own land, or where

children occasionally play there. In Bridges v Bridges [2010] NSWSC 1287, [14], Tamberlin AJ

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said: ‘[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’. Is ‘special benefit’ simply a term indicating a conclusion that the use falls short of adverse possession? 3.

In Murnane v Findlay [1926] VLR 80 at 87, Cussen J said that in determining whether or not there was actual possession of the land by the claimant and actual dispossession of the documentary owner, the acts of the claimant implying possession necessary to establish a possessory title must be considered with reference to the peculiar circumstances of the case. These will include ‘the character and value of the property, the suitable and natural mode of using it, having regard to all the circumstances, and the course of conduct which the proprietor might reasonably be expected to follow with due regard to his own interests’. In South Maitland Railways Pty Ltd v Satellite Centres Aust Pty Ltd [2009] NSWSC 716, [18], Tamberlin AJ added: ‘What is sufficient in one case may be inadequate to prove it in another because it is necessary to have regard to the character and value of the property, the appropriate

way of using it and the course of conduct which a proprietor might reasonably be expected to follow’. If each case turns on its own peculiar circumstances, what assistance can be derived from previous cases in which particular uses were regarded as constituting, or not constituting, possession? 4.

In Mulcahy v Curramore Pty Ltd [1974] 3 NSWLR 464 at 475, Bowen CJ said: ‘Possession which will cause time to run under the Act is possession which is open, not secret; peaceful, not by force; and adverse, not by consent of the true owner’. In general, the adverse possessor must use the land as an owner might be expected to do: Powell v McFarlane (1977) 38 P & CR 452 at 469. Carol Rose sees the common law’s requirements for possession as amounting to a clear statement to other potential claimants of one’s intention to appropriate the property: Rose, ‘Possession as the Origin of Property’ (1985) 52 Uni of Chicago Law Review 73. Does characterising acts of possession as communication explain why enjoying ‘special benefits’ does not establish one’s claim, while fencing or enclosure of land or erection of a building is normally considered to be at least prime facie evidence of intention to exercise exclusive control over the land? See Seddon v Smith (1877) 36 LT 168, 169; George Wimpey & Co Ltd v Sohn [1967] Ch 487, 511A; Monash City Council v Melville (2000) V ConvR 54-621; [2000] VSC 55, [29].

2.94

In Seddon v Smith (1877) 36 LT 168, enclosure was said to be the

strongest possible evidence of adverse possession, but it is necessary to examine all the facts to determine whether the requisite intention has been established. In Riley v Pentilla [1974] VR 547, the fencing of land in a subdivision for use as a tennis court was not held to evidence adverse possession where the landowner who constructed it invited other landowners in the subdivision to use it. In Bayport Industries Pty Ltd v Watson [2002] VSC 206, a small area of land was enclosed by a poorly maintained fence. Ashley J was not satisfied that the claimant had factual possession of the disputed land accompanied by the requisite intention to possess, principally upon the ground that the claimant must have known that the fence had begun life as an internal fence for farming purposes quite unlike a suburban fence built upon the wrong alignment. See also Inglewood Investments Co Ltd v Baker [2003] 2 P & CR 319, where an adjacent landowner who

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erected a makeshift fence merely to pen in his own sheep was held not to have the requisite animus possidendi to establish adverse possession. In Whittlesea City Council v Abbatangelo (2.92C) at [100], the Victorian Court of Appeal said that fences can serve multiple purposes. The fact that one of the purposes was to keep livestock in does not in itself preclude the maintenance of a fence from being considered as part of the evidence of the squatter’s factual possession and intention to possess. One of the most obvious

indicators of factual possession in the urban context is having the key to the locks on a house. 2.95

To establish the requisite intention to possess, it is not necessary to

show that the squatter intended to exclude the documentary owner specifically. It is now accepted that it is sufficient to show that the squatter intended to possess the land to the exclusion of the world at large, including the documentary owner.47 In KY Enterprises Pty Ltd v Darby [2013] VSC 484 the defendant used vacant land as a driveway and erected gates with a lock to prevent access to it from the street; but the fence did not prevent access to the disputed land by the documentary title holder, the defendant’s neighbour. However the neighbour was not able to access the land because of the derelict state of buildings on his land. The defendant was held to have sufficient factual possession with the requisite intention to possess in order to establish adverse possession.

Possession amounting to a criminal offence not relevant 2.96

As we have seen above (2.57–2.62), a trespasser who takes

possession of the land may well commit a criminal offence in doing so. McPhail v Persons Unknown [1973] Ch 447; [1973] 3 All ER 393 (2.61C above) suggests that possessors in breach of the criminal law might not be able to take advantage of the Limitation Acts. This principle appears to be at odds with the general principles of adverse possession. The primacy of the Limitation Acts over criminal legislation was affirmed recently by the English

Court of Appeal in R (on the application of Best) v Chief Land Registrar and the Secretary of State for Justice [2015] EWCA Civ 17. Best had been restoring a derelict house since 1999. He commenced living in the building in breach of the criminal law as from 1 September 2012, when s 144 Legal Aid Sentencing and Punishment of Offenders Act (LASPOA) 2012 (Eng) (making squatting in a residential building a criminal offence) came into force. Best sought to register title through adverse possession in November 2012, the application being on the basis of the 10 years required by Schedule 6 paragraph 1 to the Land Registration Act 2002 (Eng). The Chief Land Registrar decided that the application would be cancelled on the basis that the effect of s 144 LASPOA prevented the claimant relying on any period of adverse possession which involved a criminal offence to establish the basis for an application for registration as the proprietor. The Court of Appeal rejected the argument on the basis that this legislation was not clear enough to repeal the relevant provisions of the Limitation Act.48 The same argument would seem to apply in Australia.

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Adverse possession claims to part parcels adjacent to boundaries 2.97

At common law, adverse possession claims could be made to whole

parcels of land and to part parcels, such as a ‘boundary strip’ of land adjacent to the boundary of the adverse possessor’s land as conveyed. The boundaries

of land parcels registered under the Torrens statutes are described in the register by reference to Crown surveys and plans of subdivision, but are not ‘guaranteed’.49 Victoria and Western Australia allow an application for a vesting order in respect of part of a registered land parcel by an applicant who claims to have acquired it under the limitation statute. The provisions are discussed at 5.143ff. In addition, the Registrar (Vic) or Commissioner of Titles (WA) has administrative power to amend boundaries to coincide with land as actually and bona fide occupied.50 2.98

In the case of Torrens system land, all states except Victoria and

Western Australia either prohibit adverse possession claims to boundary strips, or impose significant restrictions upon them. From 9 January 2007, New South Wales allows adverse possession claims only in respect of whole parcels of land, except for a ‘residue lot’ (strip of land originally intended for use as a service lane or to prevent access to a road) which is not vested in the council: Real Property Act 1900 ss 45C, 45D(1), (2A), (2B). Where an applicant has been in adverse possession of land up to an ‘occupational boundary’ (such as a fence) that lies within the true boundary, the applicant may claim the whole parcel extending to the true boundary: s 45D(2), (6). Queensland prohibits applications to register ‘encroachments’: Land Title Act 1994 (Qld) s 98. In South Australia, the encroaching owner can apply to be registered as the owner of the boundary strip on the basis of adverse possession, but the registered owner can effectively veto the application by lodging a caveat: Real Property Act 1886 (SA) s 80F. Tasmania does not allow adverse possession claims that result in the creation or continuation of ‘sub-minimum lots’: Tas, s 138Y. The Northern Territory and the Australian

Capital Territory do not permit adverse possession claims in respect of Torrens system land: ACT, s 69; Land Title Act 2000 (NT) s 198. 2.99

The restriction on part-parcel adverse possession is relieved in New

South Wales, Queensland, South Australia and the Northern Territory by special legislation that empowers courts to provide discretionary relief in cases where a building encroaches across a title boundary.51 The court can order a transfer of the land over which an encroachment extends, grant another interest or right, or order removal of the encroachment. Western Australia also has a building encroachment provision, Property Law Act 1969 (WA) s 122, but does not restrict the acquisition of title to a boundary strip by adverse possession. In Executive Seminars Pty Ltd v Peck [2001] WASC 229, adverse possession was argued as an alternative ground for relief to s 122 although it was not established on the facts.52

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2.100

It is not uncommon for a landowner to believe himself or herself to

be the documentary owner of a boundary strip of land actually owned by a neighbour, in circumstances where a dividing fence has been built off the title boundary. Provided that the landowner has the requisite intention to possess the boundary strip, his or her mistaken belief does not prevent the acquisition of title to the strip by adverse possession: Malter v Procopets [2000] VSCA 11; Bligh v Martin [1968] 1 WLR 804. In Sunny Corporation Pty Ltd v Elkayess Nominees Pty Ltd [2006] VSC 314, a squatter’s mistaken belief that he had a

lease was held to be irrelevant to the question of whether he had the requisite intention to possess.53 2.101

In the case of a part parcel adjoining a title boundary, especially

strong evidence of adverse possession may be required: Rimmer v Pearson (2000) 79 P & CR D21, at D22. In particular, evidence is required that the acts of possession occurred on the boundary strip and not on the surrounding land: West Bank Estates Ltd v Arthur [1967] 1 AC 665, 679; Williams v Underwood (1981) 45 P & CR 235.

Does possession of part of a lot amount to possession of the whole? 2.102

An adverse possessor may acquire title to a horizontal stratum of

land such as a subterranean cellar, even though someone else is in possession of the surface: Rains v Buxton (1880) 14 Ch D 537. In some circumstances where an adverse possessor’s acts of user have involved only part of the surface of a lot, the adverse possessor has been able to establish ‘constructive possession’ of the whole. The adverse possessor must show that he or she ‘has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no-one else has done so’: Powell v McFarlane (1979) 38 P & CR 452, 470–2 (Slade LJ). In Lord Advocate v Lord Blandyre (1879) 4 App Cas 770, the claimant’s acts of ownership did not extend to the whole of the 700 acres of foreshore claimed. Lord Blackburn (at 791–2) said that acts of the claimant tending to prove possession of part may tend to prove ownership of the whole ‘provided that there is such a common

character of locality as would raise a reasonable inference that if [a party] possessed one part as owners they possessed the whole, the weight depending on the nature of the tract, what kind of possession could be had of it and what the kind of possession proved was’. The doctrine of constructive possession does not apply where the boundaries of the whole lot are undefined or disputed: Higgs v Nassauvian Ltd [1975] AC 464; JNM Pty Ltd v Adelaide Banner Pty Ltd [2011] VSCA 428.

Future interests 2.103

The general rule is that the right of action of the holder of a future

estate is deemed to accrue on the date on which the estate falls into possession.54 Thus, if A has a life estate and B has an equitable fee simple remainder, and A is dispossessed by X, B’s cause of action accrues on A’s death and B has the full limitation period from that date before the cause of action is

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extinguished. This general rule is qualified in Victoria, Queensland and Tasmania. In those states the holder of the future estate has the full limitation period from the date upon which the cause of action of the holder of the preceding estate accrues, or six years from the date upon which the holder’s cause of action accrues, whichever is the longer period, in which to institute proceedings.55 Thus, assuming a 15-year limitation period, if A, the

life tenant, is dispossessed by X in 1997, and A dies in 2008, B, the remainderman, has until 2014 to bring action against X: that is, six years from when B’s estate became an estate in possession upon A’s death. If A is dispossessed by X in 2000 and dies in 2007, B has until 2015 to bring action: that is, 15 years from the date a cause of action accrues to A. In the three states where the qualification applies, a person against whom time has begun to run cannot avoid the consequences by creating new interests in the land by way of assurance.56

Equitable estates 2.104

As to trusts and equitable estates generally, see Chapter 4. In

considering the operation of the limitation of actions legislation on equitable interests, three situations must be distinguished. The first is where a right of action accrues to the holder of an equitable interest against the trustee. The general equitable rule was that in the case of an express trust, no lapse of time could bar the equitable right of the cestui que trust (subject of course to the equitable doctrines of laches and acquiescence). This rule has now been modified in some states, so that the trustee is now entitled to claim the benefit of any statute of limitations to the same extent as if he or she had not been a trustee, except where the trustee has been guilty of fraud, or the action is to recover trust property in his or her possession.57 The 2005 Western Australian Act does not bar a trustee from relying on the limitation period in case of fraud or breach of trust: WA, ss 27, 61. The New South Wales Law Reform Commission took the view that even a fraudulent trustee should not be forever beyond the protection of the legislation (Report of the Law Reform

Commission on the Limitation of Actions, 1967, paras 230–6). Accordingly, in New South Wales a trustee is in general entitled to claim the benefit of any limitation period (NSW, s 36), and a defrauded beneficiary has 12 years in which to bring an action to recover land after the time when he or she discovers or might with reasonable diligence have discovered a cause of action: NSW, s 47. 2.105

The second situation is where a cause of action accrues to the

trustee against the cestui que trust. Where the beneficiary is absolutely entitled and is in possession to the exclusion of the trustee, the statute may run against the trustee: Re Cussons (1904) 73 LJ Ch 296 at 298. Thus, in Bridges v Mees [1957] Ch 475, the purchaser under a contract of sale paid the full purchase price but the contract was never completed by conveyance. The purchaser went into possession against the vendor who was a bare trustee and acquired a title by adverse possession. Bridges v Mees was not cited to the Court of Appeal in Hyde v Pearce [1982] 1 All ER 1029; and it is arguable that if it had, the result in Hyde v Pearce would have favoured the purchaser.58 The third situation is where a right of action accrues to the holder of an equitable interest, or his or her trustee, against a stranger who has taken possession of land subject to a trust.

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In this case the normal limitation periods generally apply. Difficulties may arise if the legal estate of the trustee is extinguished before all equitable

interests have been barred. In this case the estate of the trustee is generally preserved so long as the right of action to recover the land of any person entitled to a beneficial interest therein either has not accrued or has not been barred.59 In most states actions for equitable relief are excluded from the operation of the provision specifying the limitation periods for actions for land, contract and other personal actions.60 These periods only apply where the courts of equity are prepared to apply them by analogy to the statute: Cohen v Cohen (1929) 42 CLR 91. Western Australia makes separate provision for limitation periods for actions for equitable relief, while preserving the equitable jurisdiction to refuse relief on grounds such as laches and acquiescence: WA, ss 27, 80.

Adverse possession by a co-owner 2.106

In the case of co-ownership the general rule is that time begins to

run when one co-owner takes possession of more than his or her share of the land, rents or profits.61 This rule qualifies the position under common law, whereby, in the absence of ouster, possession by one co-tenant was regarded as possession by all. The Australian provisions all derive from the Real Property Limitation Act 1833 s 12, which has been enacted in a number of jurisdictions. The provision is an example of ‘deemed adverse possession’, where legislative intervention sets the limitation period running even though there has been no trespass (2.118). The operation of an equivalent provision in the Bahaman legislation was considered by the Privy Council in Paradise Beach and Transportation Co Ltd v

Price-Robinson [1968] AC 1072; [1968] 1 All ER 530. In 1913 B died, devising land to certain named children (including his daughters R and U) and grandchildren, as tenants in common. During the lifetime of B, his daughters R and U had farmed the land on their father’s behalf. After his death they continued to farm it, although they did not live on the property. In the early 1920s they built a house on the land and from that date until their deaths in 1962 they were in possession of the land. In 1963 the appellants brought an action for possession against the successors in title to R and U. The appellants relied on the interest that their predecessors in title had taken under the will of B. It was shown that their predecessors in title had never taken possession of their share of the land, although they had occasionally received gifts of vegetables from it. The appellants argued that time had never started to run in favour of R and U who were rightfully in possession and committed no wrong in farming the land. It was held that the finding of the fact by the Supreme Court of the Bahamas that R and U were in possession for their own use and benefit was correct and that the respondents’ title was therefore extinguished. 2.107

In Wills v Wills [2004] 1 P & CR 37, the Privy Council considered

a similar provision under the legislation of Jamaica. On the breakdown of their marriage, a wife left her husband in sole occupation of the jointly owned marital home, and in sole receipt of the rents from another jointly owned property. She was found to have discontinued possession, or been dispossessed, for the limitation period. The husband was held to have acquired sole title to both properties by adverse possession.

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In Re Application by Franklin [2009] VSC 496, a brother and sister were joint registered owners of a property over which the brother exercised sole rights of possession from 1959 until his death in 2009. It was held that the administrator of the brother’s estate was entitled to a vesting order under Vic, s 60, based on the deceased’s adverse possession against his sister for the full limitation period. While the deceased’s interest as joint proprietor did not survive his death, his interest acquired by adverse possession was not dependent on his interest as joint proprietor, and passed to his administrator. As to co-ownership generally, see Chapter 7.

Successive adverse possessors 2.108

The simplest case of a title to land being extinguished is where the

squatter dispossesses the owner of the fee simple estate and remains in possession for the full limitation period. In some cases the squatter may not actually occupy the land for the full period required to extinguish the interest of the previous owner. Three situations may occur: 1.

A has a fee simple estate in Blackacre. B dispossesses A and after 10 years purports to assign his or her interest to C. Can C rely on B’s period of adverse possession? See Asher v Whitlock (1865) LR 1 QB 1; 2.48C. What is C’s position before the expiration of the limitation period? Cf Tas, s 16A. While successive periods of adverse possession may be added together, there need be no formal connection between the

adverse possessors such as by formal conveyance or evidenced by other documentation.62 2.

B dispossesses A from Blackacre, but after 10 years’ adverse possession B abandons possession of the land. Does time continue to run against A?63 Note that it is a question of fact in each case whether a squatter has abandoned possession, and that the question is not conclusively answered by showing a mere break in physical possession: Nicholas v Andrew (1920) 20 SR (NSW) 178 at 184; Kierford Ridge Pty Ltd v Ward [2005] VSC 215 at [130].

3.

B dispossesses A of Blackacre, but after 10 years’ adverse possession is ousted by another adverse possessor, C. Can the periods of adverse possession of B and C be added together in order to extinguish the title of A? The generally accepted view is that they can, and in New South Wales and Western Australia this view has been given legislative recognition: NSW, s 38(2); WA, s 65(2). Who has the best title to the land after A’s title is extinguished? In Mulcahy v Curramore Pty Ltd [1974] 2 NSWLR 464 at 476–7, Bowen CJ in Eq said: If a person, A, is in adverse possession for a period of less than twenty years, say, ten years, and then abandons the property, he leaves no cloud on the true owner’s title, which is then restored to its pristine force, and another person, B, who later enters into adverse possession of the property, cannot add the period of A’s possession to his own so as to extinguish the title of the true owner when the period of twenty years from A’s first entry into possession is reached.64

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When a person enters into adverse possession, and so long as he continues in possession before the expiry of the statutory period, he has title to the land in the nature of a fee simple, good against all the world except the true owner, and his title may be conveyed or devised to, or devolve upon, another person.65 Where there has been a series of persons in adverse possession by virtue of successive transmissions of the inchoate possessory title for a total period of twenty years or any extended period required by the Act, s 34 will operate to extinguish the true owner’s title. At that point of time the last successor being then in possession will acquire a title in fee simple to the land good against all the world including the true owner: Allen v Roughley (1955) 94 CLR 98 … Where there is a series of adverse possessors, not deriving title from each other, who have been in adverse possession for a continuous period of twenty years or any extended period required by the Act, s 34 will operate to extinguish the true owner’s title: Willis v Earl Howe [1893] 2 Ch 545 at pp 553, 554; Allen v Roughley (1955) 94 CLR 98; Salter v Clarke (1904) 4 SR (NSW) 280; 21 WN (NSW) 71. It is emphasised that possession must be continuous to have this effect. An abandonment by one adverse possessor followed by a break in time when the land is not in possession of some person adversely to the true owner will, as we have seen, restore the true owner’s title to its pristine force. Upon the extinguishment of the true owner’s title by successive trespassers, say A, B, C, D and E, who have been in adverse possession for the necessary period, the question arises as to the person in whom the title in fee simple exists at that time. The better view appears to be that it exists in the first of the successive trespassers, A; see Allen v Roughley (1955) 94 CLR 98 at pp 131, 132 … E, the final trespasser who is in possession at the time when the true owner’s title is extinguished, would, by virtue of his possession, have a title in fee simple good against all the world except A, B, C and D. The last statement needs qualification. If A brought proceedings to eject E, and E could prove that A had abandoned possession, then, in my view, E could successfully resist A. On the same ground, he may be able to resist B, C and D. Accordingly if the departure of A, B, C and D each took place in circumstances constituting an abandonment by each of them, E would indeed have a title in fee simple good against all the world: see Allen v Roughley (1955) 94 CLR 98 at pp 114, 115, 131 … It is, perhaps, unlikely that this would occur without a break in possession, which would restore the true owner’s title and prevent aggregation.

To determine the matter in a particular case of successive trespassers it is necessary to know whether a succeeding trespasser is possession wrongfully as against his predecessor, in which case his predecessor will retain a higher right than the successor, or whether on the other hand, the succeeding trespasser has entered immediately following an abandonment by his predecessor.

Stopping time running 2.109

Time stops running when the person having the cause of action

effectively asserts his or her title or when the squatter admits the existence of the superior title by acknowledgment or, in an appropriate case, part payment of a debt such as one secured by a mortgage. Merely realising that the land is owned by another and so cancelling a licence is not an acknowledgment of the rights of the owner: Szew To Chun Keung v Jung Kwok Wai David [1997] 1 WLR 1232.

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The mere assertion of title in a letter from the documentary title holder to the adverse possessor is not sufficient to stop time running against the owner: Mount Carmel Investments v Peter Thurlow Ltd [1988] 3 All ER 129. A superior title may be asserted by bringing an action to recover the land or making a peaceable but effective entry upon the land. A mere formal entry upon the land (an entry without a resumption of possession) was once effective, but the position has now been changed by statute.66 Legislation also provides for the effect of an acknowledgment or part payment.67

2.110

Time will stop running if the person having the cause of action

consents to the continuance of possession. In BP Properties Ltd v Buckler (1988) 55 P & CR 337 the documentary title-holder gave the adverse possessor permission to remain on the premises. The English Court of Appeal held that this act was effective to prevent the possession being adverse, and so stopped time running. 2.111

In Ofulue v Bossert [2009] 1 AC 990; [2009] 2 WLR 749, a squatter

made a ‘without prejudice’ offer in writing to purchase the property in an attempt to settle proceedings for recovery of possession. The documentary owner refused the offer, and the proceedings lapsed. In later proceedings for recovery of the land, the documentary owner argued that the running of time had been interrupted by the commencement of the previous proceedings and by the squatter’s acknowledgement of title. The House of Lords held that when proceedings are permanently stayed, time will not be considered to have been interrupted by the commencement of those proceedings. While the squatter’s offer to purchase amounted to an acknowledgment of the documentary owner’s title, it was made only for the purpose of settling the proceedings and could not be admitted in evidence against him if no settlement resulted. See also Kierford Ridge Pty Ltd v Ward [2005] VSC 215 at [136], where it was held that an offer by the squatter to purchase the land, made in the context of an attempt to settle an adverse possession claim, did not negate the squatter’s claim to exclusive possession of the land. Compare Davidson v Elkington [2011] WASC 29, where some years before the legal action commenced, owners of contiguous lots agreed on a ‘land swap’ whereby the subject land would be incorporated into the title of the lot owner

who was encroaching on it. Although the land swap agreement was never carried out, Hall J held it represented an acknowledgment of title by the encroaching owner which was inconsistent with an intention to continue to adversely possess the land. The effect was to stop time running: at [156]– [160].

Extension of time 2.112

The legislation provides for extension of the limitation period in

certain circumstances. These include the disability of the person to whom the cause of action has accrued68 and cases in which the action is based on fraud or mistake or the cause of action is fraudulently concealed by the defendant.69 All states place an absolute limit on the extension of the limitation period that may be available to a person suffering from a disability and in New South Wales the limit applies generally.70

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The effect of effluxion of time 2.113

The modern limitation of action legislation operates to extinguish

not only the remedy but also the title of the person dispossessed of land for the requisite period of time. More recently this approach has been extended to statute-barred claims to recover goods. The negative operation of the legislation is now well accepted and certain consequences flow from this as a matter of principle. For example, the squatter will be bound by non-

possessory interests to which the land is subject, such as a restrictive covenant, easement or profit à prendre. The only rights extinguished by the running of the limitation period are those of persons who were entitled to bring an action to recover possession of the land.71

Tenancies 2.114

The general principle is that the lessor’s right to recover the land

against the lessee accrues when the lease determines by effluxion of time.72 If the lease provides for forfeiture by the lessor in the case of breach of condition by the tenant, the lessor’s failure to enforce the forfeiture will result in his or her right of action to recover land in respect of the breach of condition, being extinguished after effluxion of the limitation period. But the failure to forfeit will not prejudice the lessor’s right to recover the premises after the lease has determined by effluxion of time. For this purpose the lessor has a separate cause of action, arising at the determination of the lease, which is not barred until the limitation period has run.73 The New South Wales and Tasmanian sections provide that a right to recover land by forfeiture arises on the date the plaintiff discovers, or could with reasonable diligence have discovered, the facts creating the right of forfeiture. 2.115

Where a stranger dispossesses a tenant, time runs against the tenant

from the date of the dispossession. Time does not begin to run against the lessor until the termination of the lease, because the right of action does not accrue until that time. However, if the lessor is ‘dispossessed’ from the receipt of rent (in other words, if the tenant pays the rent to the wrong person) time

will begin to run against the lessor from the time the rent is wrongfully paid to the stranger, provided the rent is more than minimal.74 This provision is criticised by the New South Wales Law Reform Commission, Report of the Law Reform Commission on the Limitations of Actions, 1967, paras 174–176, on the ground that time runs against the landlord and in favour of the stranger receiving the rent even though the landlord has no cause of action against the stranger. In the view of the commission, time should not begin to run until the landlord becomes entitled to recover the land from the tenant by exercising the remedy of forfeiture: see now NSW, s 33. 2.116

Although adverse possession against a tenant for the limitation

period bars the tenant’s cause of action and title, the tenant’s title remains effective as against the landlord. In Fairweather v St Marylebone Property Co Ltd [1963] AC 510; [1962] 2 All ER 288, a tenant

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held a 99-year lease that was not due to expire until 1992. The tenant’s cause of action to recover the land from a squatter was barred in 1932. In 1959 the tenant purported to surrender the balance of the lease term to the landlord, whereupon the landlord sought to recover possession of the land from the squatter. The House of Lords held by a majority that the tenant could surrender his lease to the landlord even after his title had been extinguished as against the squatter, whereupon the landlord’s cause of action against the squatter accrues.75 Even assuming that the title of the tenant was

extinguished only as against the squatter, how could the tenant, by surrendering his interest, confer on the landlord a right which he (the tenant) did not have; namely, a right to possession as against the squatter?76 The Irish Supreme Court declined to follow Fairweather in Perry v Woodfarm Homes Ltd [1975] IR 104. It would be open to an Australian court to follow suit. In Chung Ping Kwan v Lam Island Development Co Ltd [1997] AC 38 at 47, the Privy Council left open the question of whether Fairweather was correctly decided. 2.117

In Tichborne v Weir (1892) 67 LT 735 it was held that the title that

a squatter acquired under the Limitation Act was a new title, not a ‘parliamentary conveyance’ of the previous owner’s estate. Therefore, the squatter who extinguished the title of a tenant did not become liable to the landlord under the covenants of the tenant’s lease by virtue of privity of estate. This ruling was affirmed by Lord Radcliffe in Fairweather’s case.77 2.118

The limitation of actions legislation has long made special provision

for the case of periodic tenancies not in writing and tenancies at will. A tenancy at will, for the purposes of the legislation, is deemed to be determined at the expiration of one year from the commencement thereof and thus the cause of action of the person entitled to the land subject to the tenancy is deemed to have accrued at the date of its determination. Similarly, a periodic tenancy not in writing is deemed to be determined at the expiration of the first period, but if rent is received after that date the cause of action accrues on the date of the last receipt of rent.78 The overholding periodic tenant and the tenant at will are lawfully in possession with the

consent of the owner, but the statute provides for the running of time in his or her favour. 2.119

The policy questions presented by such provisions are raised by

Hayward v Challoner [1968] 1 QB 107; [1967] 3 All ER 122. Before 1938 a small plot of land was let on a half-yearly tenancy to the rector of a church for use as a rectory garden, without a lease in writing. The rector paid rent until 1942 but thereafter no rent was paid. The owners took no action as they did not wish to ask for money from the church. In 1966 the owners brought an action claiming possession of the plot. Section 9(2) of the Limitation Act 1939 (UK) provided that if there is a periodic tenancy not in writing, the tenancy shall be deemed (for the purpose of the Act of 1939) to be determined at the expiration of the first such period, and accordingly the right of action of the person entitled shall be deemed to have accrued at the date of such

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deemed determination; but if rent is received after such deemed determination, the right of action is deemed to have accrued on the date of the last receipt of rent. The Court of Appeal held by a majority that the owner’s cause of action was barred. Russell LJ, with whom Davies LJ agreed, remarked: The generous indulgence of the plaintiffs and their predecessors in title, loyal churchmen all, having resulted in a free accretion at their expense to the lands of their church, their reward may be

in the next world; but in this jurisdiction we can only qualify them for that reward by allowing the appeal and dismissing their action.

Lord Justice Davies expressed ‘bitter regret’ at having to reach this decision, and condemned the rector’s behaviour. Further material on limitations is to be found in Chapter 5, dealing with adverse possession and the Torrens system.

1.

See also Richard Epstein, ‘Possession as the Root of Title’ (1978) 13 Georgia L Rev 1221; Carol Rose, ‘Possession as the Origin of Property’ (1985) 52 Univ of Chicago L Rev 73.

2.

The Common Law, 1881, 206–13.

3.

As to which, see 2.92C.

4.

Young v Hichens (1844) 6 QB 606.

5.

The Tubantia [1924] P 78.

6.

For an analysis of the development and application of the torts of trespass to goods, conversion, detinue and action on the case, see Dixon J in Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204. See further, Sappideen and Vines, Fleming’s The Law of Torts, 10th ed, 2011 (‘Fleming’), Ch 4; Gray et al, 3rd ed, 53–64.

7.

Palmer, 257; Trindade and P Cane, The Law of Torts in Australia, Oxford University Press, Melbourne, 1985, 139–40.

8.

Trindade and Cane, The Law of Torts in Australia, Oxford University Press, Melbourne, 1985, 139; Fleming, 86.

9.

Howard E Perry and Co v British Railway Board [1980] 1 WLR 1375 at 1382–3 per Megarry J.

10. See also Wade Sawmill Pty Ltd v Colenden Pty Ltd [2007] QCA 455. 11. This principle does not apply where the order of proceedings is reversed: that is, the first plaintiff is the bailee and the subsequent action is brought by the bailor. Compare The Winkfield [1902] P 42; [1900–3] All ER Rep 346; 2.21C. 12. The owners of the Winkfield admitted liability for losses caused as a result of the collision. The amount paid into court represented the statutory limit of their liability, calculated at the rate of £8

per ton. The Postmaster-General’s claim for the loss of registered articles, in respect of which he was responsible to the owners of the articles, was admitted by the registrar handling the claims. However, the registrar disallowed the claims of the Postmaster-General for the value of letters and parcels in respect of which no claim had been made by the owners, on the ground that the Postmaster-General was not liable over to the senders. It was this claim that was the subject of the action. 13. Tilbury, Civil Remedies, vol I, 1990, 63. 14. See Hawes, ‘Recaption of Chattels: The Use of Force Against the Person’ (2006) 12 Cant L R 253–72. 15. See also Clambake Pty Ltd v Tipperary Projects Pty Ltd (No 4) [2008] WASC 293; N Palmer, ‘Title to Sue in Bailments: Repudiation and the Contractual Basis of Liability for Wrongs to Chattels’ (2008) 24 JCL 132. 16. See also City Motors (1933) Pty Ltd v Southern Aerial Super Service Pty Ltd (1961) 106 CLR 477; [1962] ALR 184; and Standard Electronic Laboratories Pty Ltd v Stenner [1960] NSWR 447. 17. See also Anderson Group Pty Ltd v Tynan Motors Pty Ltd (2006) 65 NSWLR 400; [2006] NSWCA 22; Clambake Pty Ltd v Tipperary Projects Pty Ltd [2008] WASC 293; Palmer, 342–5. 18. Palmer, 257. 19. See further, R Hickey, Property and the Law of Finders, (Hart, 2010), Ch 4; and L Aitken, ‘Abandonment of a Chattel and the Unwilling Bailee’ (2010) 84 ALJ 369. 20. J Tooher, ‘Jubilant Jamie and the Elephant Egg: Acquisition of Title by Finding’ (1998) 6 APLJ 117, 135. 21. See also Hickey, above n 19, 142–4; R Mulheron, ‘The Money in the Briefcase: Flack and Title to Sue in Conversion’ (2000) 5 Deakin LR 205. 22. Harris, ‘The Concept of Possession in English Law’ in Guest (ed), Oxford Essays in Jurisprudence, (OUP, 1961), 69–106; Tay, ‘The Concept of Possession in the Common Law: Foundations for a New Approach’ (1964) 4 MULR 476. 23. Robinson v Western Australian Museum (1977) 138 CLR 283 at 338; Re Jigrose Pty Ltd [1994] 1 Qd R 383 at 386; Keene v Carter (1994) 12 WAR 20 at 24–6; Banks v Ferrari [2000] NSWSC 874 at [98]; Moorhouse v Angus & Robinson (No 1) Pty Ltd [1981] 1 NSWLR 700; see also L Aitken, ‘The Abandonment and Recaption of Chattels’ (1994) 68 ALJ 263. 24. Harris, above n 22, 69; MacMillan, ‘The Finding Distinction’ (1996) 146 NLJ 383; Morris, ‘Lost

Abandoned or Discarded Objects — Finders Keepers?’ (1984) NLJ 1126. 25. An order of mandamus is one issued to compel a person to perform a duty which he or she has refused to perform. 26. Imperial Acts Application Act 1969 (NSW) ss 18–20; Crimes Act 1958 (Vic) s 207 and Summary Offences Act 1966 (Vic) s 9(1)(g); Criminal Code Act 1899 (Qld) ss 70, 71; Summary Offences Act 1953 (SA) s 17D; Criminal Code Compilation Act 1913 (WA) s 69; Criminal Code Act 1924 (Tas) s 79. 27. Residential Tenancies Act 1997 (Vic) s 229; Landlord and Tenant Act 1899 (NSW) s 2AA; Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 277; Residential Tenancies Act 1987 (WA) s 80; Residential Tenancies Act 1997 (ACT) s 37; Residential Tenancies Act 1995 (SA) s 95. 28. Summary Offences Act 1953 (SA) s 17D(2); Crimes Act 1958 (Vic) s 207(2); Criminal Code 1899 (Qld) s 71; Criminal Code Act 1924 (Tas) s 79(2); Criminal Code (WA) s 70; Imperial Acts Application Act 1969 (NSW) s 19. 29. See ACT, s 43 (goods only); NSW, ss 63–68A; Qld, ss 12(2), 24; SA, s 28; Tas, ss 6, 24 (and note s 16A); Vic, ss 6(2), 18; WA, s 75. 30. McCrimmon, ‘Whose Land is it Anyway? Adverse Possession and Torrens Title’ in Grinlinton, 157, 159. 31. M Dockray, ‘Why Do We Need Adverse Possession?’ [1985] Conv 27 at 272–4. 32. R Posner, Economic Analysis of Law, 6th ed, Aspen Publishers, New York, 2003, 83; see also Jourdan, 50–1. 33. Stake, ‘The Uneasy Case for Adverse Possession’ (2001) 89 Geo LJ 2419 at 2436. 34. See, for example, Sprankling ‘An Environmental Critique of Adverse Possession’ (1994) 79 Cornell L Rev 816. 35. McCrimmon, above n 28; B Edgeworth, ‘Adverse Possession and Human Rights: The Last Act in JA Pye (Oxford) v United Kingdom’ (2007) 15 Australian Property Law Journal 107, 159–60; Griggs, ‘Possessory Titles in a System of Title by Registration’ (1999) 21 Adel LR 157. 36. Law Commission and HM Land Registry, Land Registration for the Twenty-first Century: A Consultative Document LC 254, 1998, at [10.7]. 37. O’Connor, ‘The Private Taking of Land: Adverse Possession, Encroachments by Buildings, and Improvement under a Mistake’ (2006) 33(1) UWALR 31, 35–36.

38. O’Connor, above n 37, 38–41; Goodman, ‘Adverse Possession of Land — Morality and Motive’ (1970) 33 MLR 281. 39. Although the Land Registration Act 1925 had been repealed, it applied to the facts in this case which arose before the repeal. 40. For discussion of the human rights aspects of the case, see L Griggs, ‘Possession, Indefeasibility and Human Rights’ (2008) 8(2) QUTLJ 286; B Edgeworth, ‘Adverse Possession and Human Rights: The Last Act in JA Pye (Oxford) v United Kingdom’ (2007) 15 APLJ 107. 41. Edgeworth, ‘Adverse Possession, Prescription and their Reform in Australian Law’ (2007) 15 APLJ 1. 42. NSW, s 27(1), (4); and no adverse possession is possible in respect of land defined as ‘Crown land’: Crown Lands Act 1989 (NSW), s 170(3); Tas, s 10(1) and see s 10(4), (5). 43. Vic, ss 7, 32; Qld, s 6(4); WA, ss 19(2), 76; see McGellin & Fuchsbichler v Button [1973] WAR 22. 44. Cf Law Reform Committee Report, para 3.41, LRC (Tas), Report on Adverse Possession and Other Possessory Claims to Land, Report No 73, 1995, para 9.32. 45. NSW, s 28; Vic, s 9(1); Qld, s 14(1); SA, s 6; WA, s 66; Tas, s 11(1). 46. NSW, ss 29, 30; Vic, s 9(2), (3); Qld, s 14(2), (3); SA, ss 7, 8; WA, ss 67, 68(c); Tas, s 11(2), (3). 47. Ocean Estates v Pinder [1969] 2 AC 19; Bayport Industries Pty Ltd v Watson (2006) V ConvR 54709; [2002] VSC 206; Whittlesea City Council v Abbatangelo (2.92C) at [6]; Petkov v Lucerne Nominees Pty Ltd (1992) 7 WAR 163. 48. See Butt, ‘Adverse Possession and Criminal Trespass’ (2014) 89 ALJ 150. 49. See Weir, ‘The Uncertainty of Certain Boundaries’ (2001) 9 APLJ 27. 50. WA, ss 170, 171, 177; Transfer of Land Act 1958 (Vic) s 99. The scope of the Registrar’s powers is unclear and requires clarification: see Victorian Law Reform Commission, Review of the Property Law Act 1958, Report 20, 2010, paras 4.1–4.31. 51. Encroachment of Buildings Act 1922 (NSW); Real Property Act 1900 (NSW) Pt 14A; Property Law Act 1974 (Qld) Pt 11, Div 1; Encroachments Act 1944 (SA); Encroachment of Buildings Act (NT). 52. For further discussion on encroachment provisions, see Wallace, Weir and McCrimmon, Real Property Law in Queensland, 4th ed, (Thomson Reuters, 2015), 109–15; Butt, Land Law, 6th ed, (Thomson Reuters, 2010), 62–7; Moore, Grattan and Griggs, Bradbrook, MacCallum and Moore’s Australian Real Property Law, 6th ed, (Thomson Reuters, 2016), 826–31.

53. Although not in NSW: see 2.95. As to the use of adverse possession to adjust boundary problems, see Park and Williamson, ‘An Englishman Looks at the Torrens System: Another Look 50 Years On’ (2003) 77 ALJ 117; Parliament of Victoria Law Reform Committee, Review of the Fences Act 1968, Report, 1998, Ch 6; O’Connor, ‘An Adjudication Rule for Encroachment Disputes: Adverse Possession or Building Encroachment Statute?’ in Cooke (ed), Modern Studies in Property Law Vol 4, (Hart, 2007), 197. 54. NSW, s 31; Vic, s 10(1); Qld, s 15(1); SA, s 9; WA, s 69(1); Tas, s 12(1). 55. Vic, s 10(2); Qld, s 15(2); Tas, s 12(2). 56. Vic, s 10(3); Qld, s 15(3); Tas, s 12(5). 57. Vic, ss 11, 27; Qld, ss 16, 27; SA, ss 31, 32; Tas, ss 13(1), 24 (and see s 16A); see also Dalton v Christofis [1978] WAR 42; Re Flavelle; Moore v Flavelle [1969] 1 NSWR 361. 58. See Sills, ‘Hyde v Pearce’ (1983) NLJ 526. 59. NSW, s 37; Vic, s 11; Qld, s 16; WA, s 78; Tas, s 13(3), (4). 60. NSW, s 23; Vic, s 5(8); Qld, s 10(6)(b); Tas, s 9. 61. NSW, s 38(5); Vic, s 14(4); Qld, s 22; SA, s 20; WA, s 3(6)(d); Tas, s 16(4); Re Application by Franklin [2009] VSC 496. See N Skead, ‘Giveth With One Hand, Taketh Away With Possession?’ (2011) 19(1) APLJ 103. 62. Shelmerdine v Ringen Pty Ltd [1993] 1 VR 315; Mount Carmel Investments v Peter Thurlow Ltd [1988] 3 All ER 129; Renaghan v Breen [2000] NIJB 174; Roy v Lagona [2010] VSC 250; Shaw v Garbutt (1996) 7 BPR 14,816; (1997) NSW ConvR 55-801; Jourdan, 103. 63. See NSW, s 38(3); Vic, s 14(2); Qld, s 19(2); Tas, s 16(2). These sections confirm the decision in Trustees, Executors and Agency Co Ltd v Short (1888) 13 App Cas 793. See generally Shelmerdine v Ringen Pty Ltd [1993] 1 VR 315; Mulcahy v Curramore Pty Ltd [1974] 2 NSWLR 464 at 476–7 (quoted below). 64. Trustees Executors and Agency Co Ltd v Short (1888) 13 App Cas 793 at 798, 799; Allen v Roughley (1955) 94 CLR 98 at 114, 115, 131; cf Solling v Broughton [1893] AC 556; (1893) 14 LR (NSW) 412. 65. Asher v Whitlock (1865) LR 1 QB 1; Perry v Clissold [1907] AC 73; (1907) 4 CLR 374; Wheeler v Baldwin (1955) 94 CLR 98 at 108, 130 et seq; Allen v Roughley (1955) 94 CLR 98. 66. NSW, s 39; Vic, s 16; Qld, s 21; SA, ss 18, 19; WA, s 84; Tas, s 19; see Symes v Pitt [1952] VLR 412 at 430–3; Shaw v Garbutt (1996) 7 BPR 14,816; (1997) NSW ConvR ¶55-801.

67. NSW, s 54; Vic, ss 24, 25; Qld, ss 35–37; SA, ss 21, 42; WA, ss 46–51; Tas, ss 29–31. 68. NSW, ss 52, 53; Vic, s 23; Qld, s 29; SA, s 45; WA, ss 35–36, 42, 52; Tas, ss 26–28. 69. NSW, ss 55, 56; Vic, s 27; Qld, s 38; Tas, s 32; cf the more limited provisions in SA, s 25; WA, s 38. 70. NSW, s 51; Vic, s 23(1)(c); Qld, s 29(2)(b); SA, s 45(3); WA, ss 42(1), 52; Tas, s 26(4). 71. Re Nisbet and Potts’ Contract [1905] 1 Ch 386, 391; [1904–7] All ER Rep 865; Ashe v Hogan [1920] 1 IR 159; Jourdan, 7–10. 72. The current provisions are: NSW, s 31; Qld, s 15(1); SA, s 9; Vic, s 10(1); WA, s 69; Tas, s 12(1). 73. NSW, s 32; Qld, s 17; SA, ss 10, 11; Tas, s 14; Vic, s 12; WA, s 70. 74. Qld, s 18(3); SA, s 17; Tas, s 15(3); Vic, s 13(3); WA, s 71; Bligh v Martin [1968] 1 All ER 1157; [1968] 1 WLR 804. 75. Wade asks: Why did the principle nemo dat quod non habet not apply in this case?: Wade, ‘Landlord, Tenant and Squatter’ (1962) 78 LQR 541. 76. For criticism, see Wade; Note (1962) 78 LQR 33; Harrison, 108–9. The English Law Reform Committee in its Final Report on Limitation of Actions, Cmnd 6923, 1977, paras 3.44–3.46. 77. See further, Jackson, ‘The Legal Effect of the Passing of Time’ (1970) 7 MULR 407 at 411–16; see also Omotola, ‘The Nature of the Interest Acquired by an Adverse Possessor of Land under the Limitation Act 1939’ (1973) 37 Conv & PL 85. 78. NSW, s 34(2); Qld, s 18; SA, ss 15, 16; Tas, s 15; Vic, s 13; WA, s 72.

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The Fragmentation of Proprietary Interests in Land

CHAPTER

3

INTRODUCTION 3.1

As we have seen from Chapter 1, property refers to a bundle of rights

over things exercisable against others. The bundle of rights in an object may be held by one person or a group of persons at any given time. Moreover, the elements of the bundle may be divided up among a number of persons in a wide variety of ways. This capacity for extensive fragmentation of proprietary interests is evidenced in a number of common law doctrines.1 First, the doctrine of tenure, discussed below (see 3.3ff), enabled interests in land to be divided spatially, with different tenants having a range of entitlements tied to particular parcels of land. Second, the doctrine of estates allowed a fragmentation of interests in land on a temporal basis. These developments

were carried further in relation to land than other objects, principally because of the permanence of land, but also because of the economic, social and political importance to the social structure of feudal times. According to Pollock and Maitland: Just in so far as the idea of feudalism is perfectly realized, all that we call public law is merged in private law: jurisdiction is property, office is property, the kingship itself is property; the same word dominium has to stand now for ownership and now for lordship.2

At a later stage of historical development, the equitable doctrine of trusts, a third form of divided ownership, separating beneficial ownership from strict legal entitlement, extended the techniques of fragmentation from real property to other objects. Because the doctrines that underpinned this type of fragmentation originated in the Courts of Equity, as distinct from the common law courts, it can be seen as in the nature of a jurisdictional fragmentation of proprietary interests. 3.2

In the Australian context, one of the most persistent and perplexing

questions in the history of property law has been whether, and if so, how, to recognise the claims of Indigenous

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peoples with those of the European settlers who came to inhabit the continent. This issue poses the problem of how to distribute rights over land in a clear and comprehensive manner, or in Frank Brennan’s terms, how ‘sharing the country’ might be effectively expressed in legal doctrine.3 The

belated recognition of native title by the High Court in Mabo v Queensland (No 2)4 represents a further fundamental element in dividing rights over land in Australia. Insofar as the nature and incidents of native title derive not from common law, equity or legislation, but from a wholly different system of law, namely the customs and traditions of Indigenous Australians, native title may be described as the fourth type of fragmentation: that is, systemic fragmentation of interests in land. As Gummow J put it in 1999 in Yanner v Eaton, native title lies at the ‘intersection’ of two systems of law: it originates in a traditional system, yet is recognised by the common law.5 This chapter will examine each one of these forms of fragmentation (space, time, jurisdiction and system) separately.

FRAGMENTATION IN A SPATIAL DIMENSION: THE DOCTRINE OF TENURE 3.3

The doctrine of tenure has exerted a profound influence on the

structure of proprietary interests in land. The roots of the doctrine of tenure lie in the economic and political interstices of the feudal system. The term refers to a mode of holding land whereby one person (the ‘tenant’) holds lands from (or ‘of’) another subject to the performance of certain obligations. In English law, it can be traced to the Norman Conquest. A victorious William the Conqueror confiscated the property of the recalcitrant English landowners and then redistributed these lands not only to his Norman supporters, but also to Englishmen in return for their loyalty. These tenants who held directly from (or ‘of’) the Crown were known as ‘tenants in chief’. It

followed that only the Crown ‘owned’ land absolutely, as it alone held of no other. Landowners who were not tenants in chief, and who did not rebel against William, continued in possession of their land, held of these tenants in chief, as recognised by the Domesday survey which charted who held what land, and of whom.6 These persons’ landholdings were not the subject of a grant from William. However, in order to legitimise the notion of the Crown’s paramount lordship over land, the law adopted a fiction that presumed that all land titles were held by the King’s subjects as a result of a royal grant.7 The obligations of tenants generated complex feudal ties between the King and his tenants in chief in the form of ‘services’ and ‘incidents’. A service was an obligation on the part of the tenant owed to the landlord. For example, in return for a grant of an interest in land, a tenant in chief might agree to provide a certain number of knights to serve the King for 40 days of the year (known as ‘knight service’). In turn, the tenant in chief might grant his land or part of it to others. In this way, he became a ‘mesne lord’, meaning that he stood between the King and the tenant actually in occupation. These grants might specify different services, such as the provision of agricultural labour. This was known as ‘socage tenure’. This process of creating tenures out of tenanted land was known as ‘subinfeudation’. It led to a pyramid-like structure

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of landholding, with a tenant typically also an ‘overlord’ of a tenant whose interest had been carved out of his own by means of a grant. At the same time, these tenanted lands were subject to various ‘incidents’. Incidents were rights conferred on the lord over the tenant’s land or the tenant’s person that arose in certain circumstances, most commonly on the death of the tenant. For example, in the case of knight service on the death of a tenant in fee simple the heir of the tenant had to pay a sum of money known as ‘relief’ to the overlord before he could succeed to the land. If the heir was an infant, the overlord was entitled to manage the land during the heir’s minority and keep all rents and profits (the incident of ‘wardship’). The overlord’s consent to the marriage of the heir had to be obtained and a condition of the consent might be the payment of a large sum of money (the incident of ‘marriage’). An important incident was that of escheat: the land of the tenant by knight service would escheat to the Crown in the event either of there being no heirs, or the tenant in chief’s being convicted of a felony. In the case of socage tenure the incidents were more limited. Escheat and relief were usually the only applicable incidents.8 The complicated pyramid of feudal relationships had the King at the tip, for all land was held of him, while each person in the pyramid to whom the land had been granted owed services to the mesne lord immediately above, and was owed services by the person immediately below. Of course, each of these tenants, no less than the King, would have land that they actually possessed (known as their ‘demesne’), as well as land which they held as lord, so that tenants were often lords at the same time. By contrast, the person at the bottom of the pyramid had only rights of actual occupation of the land

and was known as the ‘tenant in demesne’. In relation to that particular piece of land, therefore, it could be said that there were a number of persons with rights: first, the tenant in demesne with possessory rights; second, a mesne lord to whom the tenant owed services; third, a tenant in chief to whom the mesne lord owed services; and finally the Crown who received services directly from the tenant in chief. It followed that the modern vocabulary of ‘ownership’ was unhelpful in explaining the complexity of this distribution of rights: no one ‘freeholder’ could claim absolute ownership of this particular parcel of land, or indeed any parcel of land within the kingdom. The exception was those lands that constituted the Crown’s demesne. It is in this way that tenure connotes fragmentation in a spatial dimension: it allowed for a number of overlapping sets of rights to subsist over one particular parcel of land. A simplified version of this fragmentation exists in the case of the contemporary tenancy: both landlord and tenant can say, ‘That is my property’, in the sense of meaning that each has rights over it — namely, one to possession, the other to rent and the benefit of associated obligations. The feudal system became increasingly complex with numerous tenurial relationships existing in respect of the same parcel. Eventually the process became cumbersome and services difficult to enforce. Thus, in 1290, the Statute of Quia Emptores was passed. The statute was important for two reasons. First, it permitted every free man to alienate his interest in the whole or part of his land without his lord’s consent. Second, it prevented further subinfeudation from taking place. If A held land as tenant in chief from the King, he could alienate the whole or part of his land to B, so that B now stood in A’s shoes. However, A could not create a tenurial relationship

between himself and B. Thus, if A alienated his entire interest in the land, B became the tenant in chief of the King. This rule only applied to grants of the land in

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fee simple and did not prevent new tenures being created by grant of a lesser estate, such as a life estate. The Statute of Quia Emptores remains law in Australia, although three states have repealed the statute and re-enacted it in simplified form.9 3.4

With the process of subinfeudation abolished, the feudal pyramid

began to shrink. In 1660 the Tenures Abolition Act abolished knight service, converting all free tenures to socage tenure. Today the doctrine of tenure has no practical significance in Australian land law. Its influence still lingers, however, in three areas. First, it is often said that no person can, in the technical sense, ‘own’ land, since all land is held of the Crown. This proposition is still formally part of Australian law. By the time Australia was settled, subinfeudation was no longer possible, and there were no overlords; thus all land is held directly of the Crown because all land titles originate in Crown grants: Mabo v Queensland (No 2) (1992) 175 CLR 1 at 80 per Deane and Gaudron JJ. Second, the modern landlord–tenant relationship bears some resemblance to the early tenurial relationship. Third, and most importantly in the Australian context, the traditional doctrine of tenure operated until Mabo to obstruct recognition of native title. Despite these vestigial marks of the

doctrine, it can be argued that it has never been apposite to the reality of land law in Australia because its fundamental features — services and incidents — were never present in the same manner as in England.

No services 3.5

The standard interpretation of the legal position in Australia was

expressed by Windeyer J in Council of the Municipality of Randwick v Rutledge (1959) 102 CLR 54: ‘The early Governors had express powers under their commissions to make grants of land. The principles of English real property law, with socage tenure as their basis, were introduced to the colony from the beginning …’ (at 71). In 3.3 above it was noted that tenurial holding was marked by obligations of services and incidents, and that in the case of socage tenure (the only form of tenure relevant to Australia), the relevant obligations were the service of agricultural labour, and the incidents of relief and escheat. If these substantive obligations ever existed in Australia, then a case could be made for the idea that there is no absolute ownership of land here; instead, grants of land to citizens would lead to a ‘holding of’ the Crown. By the end of the eighteenth century, agricultural services had been commuted to a monetary payment known as ‘quit rents’. But no such commuted payments were levied in Australia. Payments in the form of purchase annuities spread usually over 20 years were levied on the grant of parcels of land from the Crown, and they were called ‘quit rents’. But these sums represented instalments of the monetary value of the land paid by grantees, or purchase annuities which came to an end when the full purchase price was paid. They

were not in any sense representative of the value of any continuing service to be performed in relation to land as was the case in England.10 It therefore appears to be inaccurate to see them as evidencing tenurial holding of the Crown.

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No incidents 3.6

At common law, land held in fee simple would pass (or escheat) to the

feudal overlord on the occurrence of certain events. In Australia, the feudal overlord was the Crown. In the case of socage tenure, escheat occurred in two kinds of cases: first, where the tenant in fee simple was convicted of a serious criminal offence, or left the realm to avoid conviction. Second, escheat arose on the death of a tenant in fee simple intestate and without next of kin. Escheat with attainder (as the first kind of escheat was known) was abolished in England in 1870 by the Forfeiture Act, and the Australian states followed the English example. Where a tenant in fee simple dies intestate without next of kin, the Crown now takes the realty and personalty of individuals dying intestate without next of kin as bona vacantia in the majority of Australian jurisdictions.11 These provisions align the rules of land law with the law of chattels. In the case of chattels, the Crown assumed the same absolute ownership as the deceased had in cases of intestacy and no surviving next of kin. By contrast, the doctrine of escheat implies that the Crown takes back what was originally its own. The statutory basis of the bona vacantia rule,

rather than the right deriving from the nature of the fee simple itself, is therefore further evidence of the gradual dissolution of the tenurial vestiges of Australian land law. Moreover, the incident of relief has never existed in Australia. It therefore seems that any reference to landholders ‘holding of’ the Crown appears to have been overtaken by a gradual process of legal evolution, rendering the term now quite misleading.12 The High Court’s decision in Mabo casts further doubt on the relevance of the traditional doctrine of tenure in Australia: see 3.77C.13

FRAGMENTATION IN A TEMPORAL DIMENSION: THE DOCTRINE OF ESTATES Introduction 3.7

By classifying interests in land according to the conditions on which

they were granted — the tenurial services and incidents — the doctrine of tenure recognised that the sum total of rights in relation to an object could be divided in many ways, so that a number of persons could have proprietary interests in a single piece of land. This idea was conducive to the fragmentation of ownership along other lines: ‘In particular, with the evolution of the doctrine of estates, property interests came to be fragmented on the basis of time’: Western Australia v Ward (2000) 170 ALR 159 at 359 per North J. The evolution of the doctrine of estates was the foundation for the invention of the concept of future interests. It is in this

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latter development that one can see most clearly what Gray and Gray describe as ‘the fourth dimension of land’.14 3.8

Land has certain special characteristics which differentiate it from

other forms of property. Its location is permanent and it may be capable of generating income forever. Because of the nature of land and its unique place in the economic and social structure of feudal times, the early common law recognised the desirability of allowing persons to hold successive proprietary interests in land. The desired goal was accomplished through the development of the doctrine of estates. The term ‘estate’ means, for present purposes, the fullest set of rights of enjoyment of land: namely, the right of possession. In the case of the ‘estate in fee’ this was (3.12) ‘the maximum interest which a subject could have in the land’: Mabo v Queensland (No 2) (1992) 175 CLR 1 at 80 per Deane and Gaudron JJ. Estates are to be differentiated from lesser interests in land such as easements or profits à prendre. This difference was recognised by the common law in its categorisation of estates as ‘corporeal hereditaments’ — referring to the physical possession of land — and the lesser interests as ‘incorporeal hereditaments’, which were seen as more akin to rights over land. Of course, this distinction is not entirely satisfactory as estates also refer to bundles of rights over land; but the distinction serves the purpose of distinguishing the qualitatively and quantitatively different nature of the types of rights. The doctrine of estates permitted interests in land to be carved out on a

temporal basis. One person might be granted rights to present possession while allowing a person who had a right to possess the land in the future. Each would have separate bundles of rights, each of which could be disposed of separately. So, the person who had a right to possess in future could transfer his interest immediately. The emergence of the doctrine was assisted by the fact that under the feudal system of tenure it was difficult to say that an individual ‘owned’ the land. Only the sovereign ‘owned’ land; the lords and tenants lower down the feudal scale thus had to own something else. The common law developed the notion that there was a thing called the ‘estate’, quite separate from the land. Ownership of the estate entitled the owner to possession (seisin) of the land at some time, but not necessarily to immediate possession. This approach permitted the common law to create estates of different duration. The greatest estate was the fee simple estate which, in theory, could last forever, while the life estate entitled the holder to possession of the land for his lifetime. The duration of other estates, such as the fee tail (see 3.13–3.14) or leasehold interests (see 3.16–3.20), was different again. In time, all estates became alienable. Thus, the holder of the fee simple estate, for example, could dispose of an estate inter vivos or by will (when devises of real property were permitted), even where the estate would not ‘fall into possession’ until some future time (as where entitlement to possession was dependent on the death of the holder of the life estate). The holder of a life estate, too, was entitled to convey his estate: see 3.15. 3.9

The operation of the doctrine of estates may be illustrated by an

example: A, the holder of the fee simple estate in ‘Blackacre’, may wish to convey a life interest to his wife, W, followed by a fee simple estate to his son,

S. Accordingly, A conveys to ‘W for life and then to S in fee simple’. In this case, S acquires a fee simple estate immediately on execution of the conveyance, notwithstanding that his mother is alive. Despite his acquisition of the fee simple estate, S’s right to possession of ‘Blackacre’ does not arise (or, in legal terminology, ‘accrue’) until W’s death, when her life estate determines. During W’s lifetime, S is free to convey his fee

[page 169]

simple estate, although he cannot confer on the purchasers the right to immediate possession of the land, since he does not have this right. The conveyance of the fee simple estate does confer on the purchasers a present right to future possession; consequently, on W’s death the purchaser becomes entitled to immediate possession of the land. Even if S predeceases W, he may devise his fee simple estate by will, and the devisee will become entitled to S’s right to future possession. 3.10

The materials in this chapter explore the refinements of the doctrine

of estates. Once the doctrine is mastered there is a tendency to ignore the fact that this is not the only way to organise a system of proprietary interests in land. The Romans, for example, did not have a doctrine of estates, but accepted only the concept of absolute ownership (dominium). They did not admit the possibility of a proprietary interest in land for a limited period of time. In order to accommodate the needs of a society which demanded that persons be permitted to use land temporarily, certain concepts were

developed, notably hiring (akin to a lease, but creating only a personal contract between the parties) and the usufruct (something like a life estate). But these were quite different from common law estates as they conferred rights of enforcement only against the person having dominium. While other legal systems adopt different techniques to achieve the flexibility provided by the doctrine of estates, the doctrine is basic to the modern law of property.

The estates — general 3.11

Estates are usually classified into freehold and less than freehold, or

leasehold interests. The distinction has its origins in the feudal system. At first, the three freehold estates — the fee simple, the fee tail and the life estate — were the only estates recognised by the courts. By contrast, leases were regarded as mere personal contracts between the landlord and tenant. They were accordingly regarded as inferior interests and classified as personalty. A freehold estate carried with it seisin and consequently the protection of the actions for the recovery of land. The holder of a leasehold estate had no such remedy, seisin being in the landlord — the freeholder. If the leaseholder were dispossessed he could not, originally, recover possession but only damages from the landlord for breach of contract. It was not until the end of the fifteenth century that the leaseholder came to be protected by the action of ejectment: see 2.55. It followed that a lease for 500 years was afforded less protection than a life estate. The formal distinction between the two categories was that estates of freehold were of uncertain duration, because freehold estates are measured ultimately in lives, which of course are

of inherently uncertain duration, while estates less than freehold last for a certain period of time, or at least for a period capable of being rendered certain.

Fee simple 3.12

The fee simple is the greatest interest in land recognised by the

common law and is the closest it comes to recognising absolute ownership. As the Full Court of the Federal Court concluded in Gumana v Northern Territory (2007) 153 FCR 349 at [83]: [A]n estate in fee simple is for almost all practical purposes the equivalent of full ownership of the land and confers the lawful right to exercise over, upon, and in respect to, the land all rights of ownership save to the extent that any such right has been abrogated, qualified or varied by statute, by the owner of the fee simple or by a predecessor in title (whether or not for the benefit of a third person).

[page 170]

The fee simple therefore affords ‘the widest powers of enjoyment in respect of all the advantages to be derived from the land itself and from anything found on it’: per Gummow J in Wik v Queensland (1996) 187 CLR 1 at 176. Initially the estate continued so long as the heirs of the original tenant (the feudal word for freeholder) were still living, but by the early fourteenth century it was established that if the estate were alienated, the estate continued so long as the new freeholder had heirs. Under the modern law the estate continues indefinitely regardless of the existence of heirs. The word

‘fee’ indicates that the estate was one of inheritance, in the sense that under the old law it descended to the heir of the tenant in fee simple for the time being upon that tenant’s death. The word ‘simple’ means that under the old law the estate was capable of passing to heirs generally and was not, as in the case of the fee tail, restricted to a particular class of heirs. The modern law permits the fee simple estate to be freely disposed of inter vivos or by will.15 If the holder of the estate dies without making a will, the assets in the estate are to be sold by the administrator and distributed to the next of kin according to a statutory formula.16

Fee tail 3.13

The fee tail owed its existence to the importance of land as a form of

family wealth. Although the rights of enjoyment conferred by the fee tail resembled those incident to the fee simple estate, the rights of disposition were more limited. The estate was given to a person and then to specified descendants of that person, with the intention that it should last only while this line of specified descendants continued. In this way the grantor could ensure that the land would remain in the family forever, or at least as long as certain descendants survived. Male or female descendants might be specified as might descendants of a particular wife. Where descendants of a particular sex were specified, the interest was known as a tail male or tail female. If descendants of a particular wife were specified it was known as a special tail. All this was made possible by the statute De Donis Conditionalibus 1285 (De Donis). Before this statute was passed, a gift ‘to A and the heirs of his body’ was treated by the courts as a fee simple subject to a condition that A

had issue. Once A had a child, the condition was treated as satisfied, and for the purposes of alienation, A was in the same position as the holder of a fee simple. In other words, A could alienate the land in fee simple absolute and defeat the expectation of any children and the intention of the grantor. The statute provided that in gifts of this kind the will of the grantor should be observed and that despite any alienation by the donee, the land should descend to his issue on death and revert to the grantor on failure of the donee’s heirs. This meant that after enactment of the statute, the tenant in tail, for the time being, could alienate only an interest which lasted for his lifetime.

[page 171]

3.14

In Australia, the law relating to fee tails varies greatly from state to

state. In New South Wales, Victoria, Queensland, Western Australia and the Northern Territory the estate has virtually been abolished.17 The New South Wales, Queensland and Western Australian sections go further than the Victorian one. In these states not only can fees tail no longer be created (as in Victoria), but existing interests were converted to fee simple estates. Although the enactment of these provisions makes further legislation unnecessary, New South Wales, the Northern Territory, Victoria and Queensland have repealed the statute De Donis.18

Life estate

3.15

A life estate was created when an interest in land was granted to a

person for life. It was not, of course, an estate of inheritance since it terminated on the death of the tenant. An estate pur autre vie (for the life of another) was created by an express gift (‘to B for the life of A’) or, more commonly, by the life tenant, A, conveying the interest to another person, B. In either case, B’s interest terminated when A (who was known as the cestui que vie — ‘he who lives’) died. Special difficulties arose if B died before A. Since the estate was not one of inheritance it could not be devised nor would it devolve upon an intestacy. The common law solved the problem by creating the doctrine of occupancy. If the grant to B was to B and his heirs, then on B’s death the estate pur autre vie passed to B’s heir as special occupant. B’s heir did not take simply because he was the heir but because of the special mention of heirs in the grant. His interest in the land was not liable to the payment of B’s debts. If, however, the word ‘heirs’ was not mentioned in the grant to B, B’s heir had no special claim. The first person to enter the land after B’s death became entitled to it as ‘general occupant’ for the rest of A’s life. Again, the general occupant had no liability for B’s debts.19 Today, statutory provisions have swept away the common law doctrine of occupancy. Under these provisions estates pur autre vie may be disposed of by will and, on an intestacy, form part of the assets of the deceased to be distributed among the next of kin.20

Leasehold estates 3.16

As noted in 3.9, leasehold estates are classified as less than freehold

and, in general, are distinguished from freehold estates on the basis that their

duration is certain or capable of being rendered certain. Leaseholds were initially regarded by the common law as mere personal transactions, without the protection of the actions for recovery of land, partly because they developed from attempts to evade the usury laws by giving the creditor a lease to ensure

[page 172] repayment of money lent to the freeholder (the landlord).21 The principles governing the modern landlord–tenant relationship are examined in Chapter 8. Leasehold estates are as follows. 3.17

A lease for a fixed term of years A lease for a fixed term of years is a

lease for a fixed period which expires automatically at the end of the period. Despite the phrase ‘fixed term of years’ the lease may be for any specified period such as one day or 999 years: see 8.14. 3.18

A periodic tenancy A periodic tenancy differs from a lease for a fixed

term in that it does not terminate until appropriate notice is given. Periodic tenancies may be created on a monthly or weekly basis or by reference to any other agreed period and the notice required to terminate the tenancy will vary accordingly. It is clearly not possible to state precisely the date on which a periodic tenancy will determine, since this will depend on the date on which notice is given. Nonetheless, the periodic tenancy can be accommodated within orthodox doctrine by regarding it as a tenancy for a definite term of one year (or month or week as the case may be), with a superadded provision

that it will continue for another term of the same period unless determined by notice: Commonwealth Life (Amalgamated) Assurance Ltd v Anderson (1945) 46 SR (NSW) 47 at 50–1; 8.18. 3.19

A tenancy at will A tenancy at will, as the name implies, may be

determined at any time by either party subject, in appropriate cases, to a ‘packing-up’ period: Landale v Menzies (1909) 9 CLR 89. A tenancy at will may be created, for example, where the holder of the fee simple estate allows another person to take exclusive possession of the land without any agreement as to the duration of the occupancy or any payment of rent. A tenancy at will differs from a licence in that a tenant at will is able to maintain an action against third parties while the licensee cannot. Arguably, a tenancy at will should not be classified as a leasehold estate since it has no defined duration, although conventionally it is classified in this way. 3.20

A tenancy at sufferance The so-called tenancy at sufferance arises

where a tenant takes possession of land lawfully pursuant to a lease, but continues wrongfully in possession after termination of the lease. This occurs, for example, where a tenant for a fixed term ‘holds over’ after the expiration of the term without the landlord’s assent or dissent: Anderson v Bowles (1951) 84 CLR 310. The landlord may institute proceedings for recovery of possession of land from the tenant, but cannot maintain an action for trespass, at least until objection is made, since the tenant’s initial entry on to the land was lawful.

Creation of freehold estates — words of

limitation 3.21

At common law, the rules of conveyancing were strict and technical.

If the grantor used incorrect words to delimit the estate intended to be granted, the grant would not effect the intention. Thus, if the grantor intended to pass a fee simple estate, but used the wrong form of words, the grantee would receive only a life estate ‘by default’ and the balance of interest would revert to the grantor. The technical words used merely to define the estate conferred were known as words of limitation, while words which designated the person upon whom the estate was conferred were called words of purchase.22

[page 173]

Fee simple 3.22

Inter vivos At common law the correct expression was ‘to A and his

heirs’; no other words of limitation would suffice to create a fee simple estate. The words ‘and his heirs’ did not give the heirs any interest in the land: they were not words of purchase, but words of limitation, defining the estate obtained by A. 3.23

By will Because the courts leaned in favour of effectuating the

testator’s intention, it was not necessary to use strict words of limitation. Any words evidencing the wish to devise a fee simple estate were sufficient. Nevertheless, the onus was on the devisee to establish that this was the testator’s intention.

Fee tail 3.24

Inter vivos To create an entail the word ‘heirs’ was again vital. In

addition, words of procreation, evidencing the grantor’s intention to limit the interest to lineal descendants of the grantee, were necessary. The common form of limitation was ‘to A and the heirs’ (words of limitation) ‘of his body’ (words of procreation). However, other words of procreation, such as ‘of his flesh’ or ‘from him proceeding’ might be used. The entail could be further limited by restricting it to a particular class of descendants; for example, by reference to sex as in the limitation ‘to A and the heirs male of his body’. Alternatively, the heirs could be limited to those descended from a particular wife. This created a special tail, as in the limitation ‘to A and the heirs of his body begotten upon his wife X’. 3.25

By will It will be sufficient if the language of the will clearly

evidenced the testator’s intention to devise an entailed interest. Thus, words such as ‘to A in tail’ were sufficient to create a fee tail. No special words were necessary.

Life estate 3.26

Inter vivos A life estate was created by any words showing an

intention to do so, as a limitation ‘to A for life’. The life estate was created also by default in the case where the grantor failed in the attempt to create a fee simple or a fee tail because incorrect words of limitation were employed. Again, the life estate would result where an instrument failed to use any words of limitation at all.

3.27

By will A will (or ‘devise’) created a life estate in the beneficiary (or

‘devisee’) unless the testator demonstrated a clear intention to pass a fee simple or fee tail. However, as has been seen, it was not necessary to employ technical words of limitation to demonstrate that intention.

Statutory modifications to the common law 3.28

The common law rules have been modified by statute in all

Australian jurisdictions. In general, the reforms have displaced the common law’s presumption in favour of the life estate as the default estate by presuming that the grantor intends to dispose of the whole interest subject to contrary intention. Also, with the exception of South Australia, in recognition of the obsolete nature of this particular estate, the fee tail can no longer be created, and any attempt to do so will lead to the creation of a fee simple. In the case of inter vivos dispositions, after the

[page 174] introduction of the reforms,23 expressions such as ‘to A in fee’, ‘to A in fee simple’, ‘to A in tail’, ‘to A’, and ‘to A forever’, in addition to ‘to A and his heirs’, will pass a fee simple or the whole interest of the grantor. These provisions allow a life estate to be created by the expression of a clear intention to do so. In South Australia, the common law rules for dispositions inter vivos continue to apply. For dispositions by will, the statutory reforms adopted the common law’s

more lenient position that the testator’s intention was the guiding principle, so that a disposition without words of limitation would pass the entire estate of the testator unless a contrary intention were shown.24 When states abolished the fee tail, attempts to create a fee tail by will conferred a fee simple on the intended beneficiary.25 Words of limitation have only ever been relevant to old system land. Because the Torrens system uses particular forms for the creation and disposition of interests, and is based on the principle of registration rather than forms of words in documents, the common law rules are irrelevant.

Determinable and conditional interests General 3.29

The scheme of estates outlined earlier could be modified by the

grantor (or the testator in the case of estates devised by will) imposing limits on the duration of the estate granted by reference to the occurrence of some event which might or might not occur. The common law allowed such limits to be imposed either by way of a ‘determinable limitation’ or by the attachment of a ‘condition subsequent’ to the grant of an estate. In one sense the difference between the two was purely a matter of semantics, yet the use of one form of words rather than another could produce very significant consequences. The point may be illustrated through a case where the grantor, by a conveyance inter vivos, seeks to impose a limit on the grant of a fee simple estate. The grantor may do this by creating a determinable fee simple estate:

that is, one that continues until it is automatically terminated by the occurrence of some event specified in the grant. If it is intended that the estate should end when the land is no longer used for residential purposes, the grant would be ‘to A in fee

[page 175]

simple until Blackacre ceases to be used for residential purposes’. In this example, the fee simple estate automatically reverts to the grantor on the occurrence of the determining event. The event specified must not be one which is bound to occur at some time (such as the death of a named person) for it is an essential characteristic of a fee simple estate that it may last forever. The grantor’s interest in a determinable fee simple estate is known as a possibility of reverter since there is a possibility that the grantor will gain the fee simple estate in the future. 3.30

The grantor may also achieve the objective not by means of a

determinable fee simple estate, but by creating a fee simple estate subject to a condition subsequent (or a conditional fee simple). Such an estate is created where the grantor attaches a condition to the grant of the fee simple estate which will cause that estate to be cut short. Thus, a conveyance ‘to A in fee simple, but if Blackacre ceases to be used for residential purposes his estate shall thereupon cease’ creates in A a fee simple estate subject to a condition subsequent. If the condition subsequent is breached, the grantor or the grantor’s successor in title will have a right to ‘re-enter’ the land. If this right

of re-entry is exercised, either by physically retaking possession of the land or by obtaining a court order for possession, A’s fee simple estate will end. Until the grantor exercises the right of re-entry, A’s fee simple estate continues. This differs from the possibility of reverter retained by the grantor after the creation of a determinable fee simple estate in that the grantor’s right of reverter arises immediately on the occurrence of the determining event without the need to take any particular action. It now appears that both possibilities of reverter and rights of re-entry are alienable inter vivos or by will: see legislation cited in 3.12. The following case illustrates the significance of the distinction between determinable and conditional estates.

Effect of void contingencies 3.31C

Zapletal v Wright [1957] Tas SR 211 Supreme Court of Tasmania

Crisp J: The plaintiff and the defendant in this suit, the appellant and respondent respectively in the appeal — are registered proprietors as joint tenants of 2 roods 29 1/10 perches of land at Bellerive, subject to the incumbrances noted on the certificate of title. The plaintiff is claiming a sale of the property and division of the proceeds. The defendant was a married man, separated from his wife. Two or three years after the separation, he commenced co-habitation with the plaintiff and this continued for some 15 years until 1955 when the plaintiff left and married another. Two children were born of the union. The defendant bought the land in 1951. The learned trial judge found that the plaintiff was not a contributor to the purchase. However, the defendant agreed at the plaintiff’s request to put the title in their joint names, which he did and they were so registered. The learned trial judge found that in doing so, the defendant’s intention was to confer a gift on the plaintiff of a joint interest in the land subject to the limitation or condition shortly to be noticed. This express intention he found sufficed to rebut the implication of any resulting trust in the defendant’s favour, and in this I think he was plainly right. The defendant’s evidence, which the learned judge accepted, as to the circumstances of the gift was as follows. The plaintiff had been worrying him that she had no security

and that if he were to die his lawful wife would take all in preference to her. She therefore asked for an [page 176]

interest in the land he was purchasing. He, for his part, was worried that if he did he might lose both her and the land. As he said, ‘He knew he couldn’t trust her’, that is, to remain with him. He therefore, before completing the gift by having her registered as joint proprietor, asked her what would be the position if she left him. Her answer, according to his evidence was: ‘Don’t be silly Jim. If I ever do that I will take my name off it the next day’, or another version of the same promise was: ‘I’d sign it back to you the next day if I did leave’. In another part of his evidence he said: ‘It was given to her on her own terms, that she would stick to me and behave herself’. The learned judge regarded the transaction as a gift, subject to a condition subsequent, the term of the condition being that if she should cease to co-habit with the defendant (otherwise than by the death of either of the parties) her interest should cease. I think that it was correctly so regarded. Initially I had some doubts as to whether it was not a terminable limitation, that is, an estate during cohabitation which is to be distinguished from an estate in fee subject to determination if she should cease to co-habit. The distinction is often a fine one, but it is well established. The subject is lucidly dealt with in Professor Cheshire’s The Modern Law of Real Property (5th ed) Ch VI, s 1, where other references will be found. On this point some of the authorities are not always easy to follow, but I think that the agreement for the determination of the estate should be regarded as a condition subsequent for the following reasons. The form of the gift was an undivided moiety in fee; it was not in terms limited to an estate defined by reference to any prior event. In fact it might continue after the event in which defeasance was to take place or might become impossible or irrelevant, that is, after the defendant’s death. The form of the condition is such that it did not denote the extent of the estate but only the event in which the larger estate conferred may have been cut short. But it is better said by Preston: ‘The (determinable) limitation marks the bounds or compass of the estate, and the time of its continuance. The condition has its operation in defeating the estate before it attains the boundary or has completed the space of time described by the limitation’: Preston on Estates, vol 1, p 49; quoted by Cheshire, p 523. The distinction is important, because a condition subsequent void on a ground of illegality or because it is contra bonos mores may be ignored leaving the primary gift good but a terminable limitation void for the same reasons fails entirely. There is no law that a man may not make a valid gift to his mistress. The primary gift is therefore good. Then, what of the condition which is a distinct clause by which an estate already limited is to be defeated? The learned trial judge in analysing the intention of the parties states his conclusions thus: ‘Here the agreement between the parties showed a composite intention — first, that the plaintiff should have a beneficial interest so long as she continued to co-habit with the defendant, and second, an intention that if she should cease to co-habit, the whole beneficial interest should go to the defendant’, but with respect I think this is very like stating the same thing in two different ways, the first as a [terminable] limitation and the

second as a condition subsequent. The provision in question must, I think, be one or the other, it cannot be both. I have given my reasons for thinking it to be a condition subsequent and I think plainly its object was to bind the plaintiff to the defendant and to provide inducement for her not to leave him. In the defendant’s own words: ‘It was given to her on her own terms that she would stick to me and behave herself’, that is, in the sense of being a loyal paramour. Hence I would say that the condition was void as tending to promote immorality. It is true that the object of the gift may be regarded as a desire to make some provision for the plaintiff’s maintenance in the event of the defendant’s death when he should be no longer able to do so, and the gift may from that aspect be regarded as in the nature of ‘voluntary compensation by way of maintenance made to the (appellant) for the injury done to her by his past illicit connection’ [page 177]

(Gibson v Dickie (1815) 3 M&S 463; 105 ER 684 … and other cases on the subject of past co-habitation as a valid consideration) but it is the condition to which attention must be directed as a distinct and separable provision, and the object of the condition in this case was not to secure to the plaintiff maintenance after co-habitation ceased, but to deprive her of it in the event of her voluntary termination of an immoral state. It may thus be said to have acted in terrorem, and in this respect the matter is completely distinguishable from Gibson v Dickie and the other cases cited. In my opinion, therefore, the plaintiff took by way of gift as joint tenant in fee simple free from the condition which is void and she would be entitled to a declaration accordingly. She has not in fact asked for a declaration but for a sale. I think she is entitled to that order she seeks under ss 4 and 16 of the Partition Act 1869 (see Bray v Bray (1926) 38 CLR 542) and I would therefore uphold the appeal. [Burbury CJ and Green J delivered judgments generally agreeing with that of Crisp J.]

3.32

The reason for the rule that if a condition subsequent is void the

primary gift remains valid, but that if a terminable limitation is void the gift fails entirely is that in the latter case the contingency is seen to be so intimately a part of the estate that it cannot be severed from it. Ultimately, the difference between the two kinds of estates is both semantic and of substance. According to Gummow J in Caboche & Bond v Ramsay (1993) 119 ALR 215 at 227:

Criticism has been levelled at this doctrine on the grounds that distinctions such as this are purely semantic … However, the two cases described are logically distinct and the difference between them is well-settled and fundamental. In the [case of a gift defeasible by condition subsequent], the donor is attempting to take back something which he has given absolutely, something which is beyond his power. In the [case of a determinable limitation], the donor is merely defining the nature of what is given. It is necessary in each case to construe the instrument creating the proprietary interest in question to determine into which category the interest falls.

Phrases that have been held to create conditional interests are: ‘on condition that’, ‘but if’ and ‘provided that’. Expressions effective to create determinable interests are: ‘whilst’, ‘during’, ‘as long as’ and ‘until’.26 A gift in a will expressed to be ‘on condition that my brother has attended Alcoholics Anonymous (AA) and complied with their requirements concerning sobriety for a period of not less than two years’ was held to be a condition precedent: Hyde v Holland [2003] NSWSC 733. It was also held that a condition cannot be met by substantial compliance with its terms. Accordingly, although the intended donee had been completely sober for two years, but had not attended any AA meetings, he failed to satisfy the contingency.27 In 2010, the Victorian Law Reform Commission28 recommended enactment of a provision that removed the much-criticised distinction between conditional and determinable interests. It proposed that all conditions attached to a fee simple should give rise to conditional interests only on the basis that it would be closer to the grantor’s intention that the gift would be effective without the condition (if declared void) rather than the gift fail entirely, as it does in the case

[page 178]

of determinable interests. Also, it argued that if a condition is void for public policy, then the effect on dispositions should be the same regardless of the form of words used (at 71–2). As the decisions in Caboche & Bond v Ramsay and Belmont Park Investments Pty Ltd v BNY Corporate Trustee Services Ltd [2012] 1 AC 383 demonstrate, the distinction continues to apply in AngloAustralian law. 3.33

In Andrews v Parker [1973] Qd R 93, the male plaintiff and the

female defendant lived together in a house owned by the plaintiff. The plaintiff transferred title to the house to the defendant. It was understood between the parties that if the defendant returned to her husband she would retransfer title to the plaintiff. The defendant and her husband began to see more and more of each other and eventually the husband moved into the house. The plaintiff left the house and took proceedings to recover title to the property. The defendant argued that the transfer from the plaintiff was made conditionally upon her continuing in immoral cohabitation with the plaintiff and that this condition was not enforceable. Stable J upheld the agreement. He did see this gift as a grant of an interest defeasible by condition subsequent, but held that the agreement between the parties was not one to bring about immoral cohabitation for cohabitation already existed. The agreement simply provided for a termination of the relationship by stipulating for a return of the property rather than to induce the defendant to continue to live apart from her husband. In addition, his Honour took the view that concepts of ‘immorality’ had changed over time. Thus, even if the agreement between the parties was based on an immoral consideration, which he doubted, ‘then the immorality was not such according to modern standards as

to deprive the plaintiff of the right to enforce it’ (at 104). Stable J did not cite Zapletal v Wright in his judgment.29

When will a condition be void? 3.34

There are five grounds upon which conditions and limitations may be

void for reasons of public policy. First, as Zapletal v Wright shows, a condition or limitation may be void on the ground of its being conducive to immoral behaviour — though what counts as immorality may change from time to time. Second, a condition or limitation may be void on the grounds of illegality, as where a condition seeks to frustrate insolvency laws: Re Machu (1882) 21 Ch D 838. Third, a condition or limitation may be void for uncertainty. A gift ‘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 her interest is to cease’ was held void because the meaning of ‘Jewishness’ was too vaguely defined: Clayton v Ramsden [1943] AC 321; [1943] 1 All ER 16. The House of Lords held that the term could have meant either religion or ethnicity. In Re Tuck’s Settlement Trusts [1978] Ch 49; [1978] 1 All ER 1047 and Re Tepper’s Will Trusts [1987] 1 Ch 358, gifts in similar terms were found not to be void for uncertainty. In Re Tepper’s Will Trusts the court held that extrinsic evidence could be adduced to clarify the intention of the testator. In the circumstances, the court held that the gifts were sufficiently certain. In Re Allen, dec’d [1953] Ch 810, a gift contingent on adherence to ‘the doctrine of the Church of England’ was held not to be void for uncertainty. Also, the court held that the requirement of certainty is more liberal for conditions precedent than conditions subsequent.

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Fourth, a condition or limitation will be void if it unduly restricts the right to marry. In Trustees of Church Property of the Diocese of Newcastle v Ebbeck (1960) 104 CLR 394; [1961] ALR 339, a testator left ‘my residuary real and personal estate to my sons on condition that they and their wives shall at the date of my wife’s death satisfy my trustees that they each profess the Protestant faith’. (Two of the sons had already married Catholics, and the other was engaged to marry a Catholic.) A majority of the High Court (Dixon CJ and Windeyer J) held that the condition was void because it offended the public policy of preserving and maintaining marriage: ‘In an uneasy marriage, a more fruitful apple of discord could hardly be placed upon the domestic board’ (per Dixon CJ at 404). Kitto J, in a dissenting judgment, held that while ‘it may cause discord and unhappiness if [the wife] is unwilling to fulfil the condition … fulfilment of it must tend to enhance domestic concord’ (at 410). Also, the High Court rejected the reasoning of Else-Mitchell J at first instance, who held that the condition was void for uncertainty. The court unanimously held that the gift was sufficiently certain because it referred to those readily identifiable Christian churches and their various offshoots that broke with Rome at the time of the Reformation. In Ellaway v Lawson [2006] QSC 170, a condition stipulated that the applicant would not receive her bequest until she either divorced her current husband or her current husband died. Douglas J followed Ramsay v Trustees Executors and Agency Co Ltd holding that this condition was not void, stating that the standards of ordinary moral and decent persons would prevent such

conditions operating as an encouragement to divorce (at 13) (unlike the one in Ebbeck).30 3.35

Grants conditional on the grantee not remarrying have been upheld

as valid: Jordan v Holkham (1753) Amb 209; 27 ER 139; Allen v Jackson (1875) 1 Ch D 399. In light of the reasoning in Andrews v Parker (see 3.33) changing social attitudes might be likely to render these authorities doubtful. Prohibitions on marrying a member of a narrowly-defined group have been upheld: Perrin v Lyon (1807) 9 East 170; 103 ER 538 (‘a Scotchman’); Duggan v Kelly (1847) 10 Ir Eq R 295 (‘a Papist’); Jenner v Turner (1880–81) 16 Ch D 188 (‘a domestic servant’), as has a prohibition on marrying a named person: Jarvis v Duke (1681) 1 Vern 19; 23 ER 274.31 Conditions directed to prevent the abandonment of religious faith, or requiring a change of faith (as opposed to preventing marriage to a person of a different faith), have been held to be valid. In Blathwayt v Baron Cawley [1976] AC 397, the House of Lords upheld as valid an interest defeasible should the grantee ‘be or become a Roman Catholic’ (see also Ebbeck at 402 per Dixon CJ). Conditions of this nature are not unlawful under anti-discrimination legislation.32 Fifth, and finally, a condition in a grant will be void if it substantially restricts the grantee’s rights of alienation: see generally Chapter 8.

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3.36 Questions

1.

What interests would be created by the following limitations? a.

To A in fee simple, provided that A does not marry B.

b.

To A in fee simple so long as A remains a resident of Australia.

c.

To A in fee simple on condition that he continues to use the premises as an ammunition store (assuming that such use is illegal by statute).

2.

Are the reasons given by Crisp J in Zapletal v Wright for holding the condition subsequent void convincing? Is the approach in Andrews v Parker to be preferred?

3.

Is it socially desirable to allow property holders to impose conditions or limitations relating to religious belief and marriage on the grant of an estate? Is Rich J’s reasoning in Ebbeck more convincing than that of the majority? Can Ebbeck be reconciled with Clayton v Ramsden? Do the cases above demonstrate that the ‘deference accorded the private prejudice of the propertied class has been substantial’?33 Should conditions in gifts relating to religious affiliation, whether or not linked to choice of marriage partner, be void on the grounds of public policy? Or should the antidiscrimination legislation invalidate such gifts? Conversely, is it undesirable to restrict property holders from attaching to gifts whatever conditions they see fit, leaving it to the prospective donee to exercise their free choice one way or the other? Do you agree with the statement of Lord Wilberforce in Blathwayt v Baron

Cawley that public policy should not interfere with a testator’s preferences on religious grounds ‘in relation to landed estates in which family attitudes may be strong and valued by testators, and moreover which may involve close association with one or another Church’ (at 426)? 4.

Do the reforms proposed by the Victorian Law Reform Commission in its 2010 report to conditional and determinable fees effectively address the problem of void conditions?

The doctrine of waste 3.37

Since the doctrine of estates permits successive interests in land, the

law must achieve a balance between the rights of the person presently entitled to possession of the land (the life tenant) and those of the person entitled to possession in the future (the remainderman or reversioner). If the life tenant is permitted to exploit the land without restriction, the value of the land may be drastically reduced, to the detriment of the remainderman. But if the life tenant is unduly restricted, the efficient exploitation of the community’s land resources will not be possible. The basic purpose of the common law doctrine of waste is to reconcile the conflicting interests of life tenant and remainderman.

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3.38

There are a number of categories of waste. The liability, if any, of the

life tenant to the remainderman depended on the category into which the life tenant’s conduct could be placed. The common law categories are as follows: Ameliorating waste is conduct by the life tenant which alters the character of the land, but which enhances its value. Although such acts technically amount to waste, the court will provide no relief other than nominal damages at the suit of the remainderman. Equity in the exercise of its discretion may refuse to grant an injunction to restrain waste that is not of an injurious character or is trivial in its effect on the land. Thus, in Doherty v Allman (1878) 3 App Cas 709, the House of Lords refused to issue an injunction against a tenant who had converted dilapidated store premises into dwelling houses, thereby increasing the value of the land substantially. In Meux v Cobley [1892] 2 Ch 253 a farm was converted into a market garden; and in Hockley v Rendell (1909) 11 WALR 170 sheds were pulled down and moved to another part of the property; held in both cases; no damages because value of land increased. Permissive waste is committed where the life tenant fails to keep the property in a satisfactory state of repair, for example, by allowing the buildings on the land to become dilapidated. A life tenant is not liable for permissive waste unless the instrument creating the life estate imposes an obligation to repair upon the life tenant: Re Cartwright (1889) 41 Ch D 532. Voluntary waste is a positive act occasioning injury to the land. Examples include the life tenant demolishing a building, opening a new mine or cutting ‘timber’. Timber is defined as trees which are normally felled for

building purposes. This includes pinus radiata: Crocombe v Pine Forests of Australia Pty Ltd (2005) 219 ALR 692, but not mallee: Chapman v Strawbridge [1910] SALR 118; Re Hart [1954] SASR 1. There is one exception to this rule: Estates which are cultivated merely for the produce of saleable timber, and where the timber is cut periodically. The reason of the distinction is this, that as cutting the timber is the mode of cultivation, the timber is not to be kept as part of the inheritance, but part, so to say, of the annual fruits of the land, and in these cases the same kind of cultivation may be carried on by the tenant for life that has been carried on by the settlor on the estate and the timber so cut down periodically in due course is looked upon as the annual profits of the estate, and therefore, goes to the tenant for life [Honywood v Honywood (1874) LR 18 Eq 306 at 309 per Jessel MR].

A life tenant is liable for voluntary waste unless the instrument granting the estate specifically makes the life tenant ‘unimpeachable for waste’, or ‘without impeachment of waste’ — that is, grants a ‘special licence’ which exempts the life tenant from liability for waste: Woodhouse v Walker (1880) 5 QBD 404 at 406–7. If the instrument contains no such provision, the life tenant is said to be impeachable for waste and therefore liable for voluntary waste. Merely being impeachable for waste is not enough, however, to impose liability for permissive waste. For this to occur the life tenant must be under a specific duty to keep the premises in repair. A life tenant is also entitled to ‘estovers’: that is, timber for the purpose of repairing structures or agricultural equipment. 3.39

A life tenant unimpeachable for waste was, at common law, free to do

what he or she pleased with the land. By contrast, the doctrine of equitable

waste prevents life tenants who unconscionably exercise their legal rights to the prejudice of the remainderman. So, a life tenant who commits acts of wanton destruction may be restrained and compelled to repair the damage: Vane v Lord Barnard (1716) 2 Vern 738; 23 ER 1082, where a life tenant who, in order

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to spite his son (the remainderman), set about stripping the castle of lead, iron, glass doors and boards. The son obtained an injunction to restrain further damage and an order requiring his father to repair the castle. It is now provided by legislation in most jurisdictions that an estate for life, without impeachment of waste, shall not confer upon the tenant for life any legal right to commit equitable waste, unless an intention to confer such right expressly appears by the instrument creating such estate.34 One effect of this legislation appears to be that legal as well as equitable remedies are available against a life tenant who commits equitable waste. 3.40

Where a life tenant commits actionable waste, the remainderman

may have a variety of remedies available, depending on the circumstances. The remainderman may have an action for damages to the reversion (to the land) or for damages for conversion in respect of objects severed from the land. In certain circumstances an action will lie against the life tenant for money had and received in respect of objects taken from the land, and in such cases, the life tenant may be ordered to provide an account of moneys

received. In addition, the remainderman may be able to obtain injunctive relief to restrain further damage and to compel repair of damage already caused to the land.

Legal future interests 3.41

The doctrine of estates involves the recognition of future interests.

Where A conveys ‘to W for life and then to S in fee simple’, W has a life estate giving her an immediate right to possession. She has an estate in possession and, subject to the doctrine of waste, may treat the land as hers. As has been seen, S is not entitled to possession during W’s lifetime; accordingly his estate does not become possessory until W’s death. During W’s lifetime S has what is known as an estate in expectancy or a future interest. Despite this terminology, S’s interest is future only in the sense that his right to possession will accrue at a future time. He has a present estate and, as noted in 3.28, that estate may be disposed of inter vivos or by will (even if S predeceases W). The future interest held by S is a marketable commodity. It follows that an estate in possession is one that carries with it an immediate right to possession; an estate in expectancy or future interest is one that confers a right to possession in the future.

Reversions and remainders 3.42

A legal future interest may be either a remainder or a reversion. A

remainder is a grant of a future interest to someone not previously entitled to an interest in the land. A reversion is created when the holder of an estate

grants a lesser estate in possession to some other person, as where the grantor does not dispose of the whole of the estate. For example, X, who has a fee simple estate in ‘Blackacre’, conveys ‘to W for life’. When W dies the fee simple estate in possession reverts to X, or, alternatively, to X’s estate, if X has died. During W’s lifetime, X has a fee simple reversion which, like S’s interest in the earlier example, is a future interest. The reason is that X, like S, must await the death of the life tenant before his or her estate falls into possession. X is known as the reversioner. 3.43

When X creates a life estate in W, whether by grant, inter vivos, or by

will, he or she may decide not to retain a reversion but to dispose of the residue of the interest to another person.

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As indicated above, the interest taken by that person is known as a remainder. There may be more than one remainder following an estate in possession. For example, X grants ‘to W for life and after her death to Y for life, remainder in fee simple to Z’. In this example both Y and Z, during W’s lifetime, have interests in remainder and are known as ‘remaindermen’. The life estate in W is known as a particular estate because it is only a fragment of the grantor’s estate.

Vested and contingent remainders 3.44

In general, a vested interest is one to which a person is presently

entitled to possess, or one that is bound to take effect in possession at some future date. A contingent interest may or may not take effect in possession because some contingency must be met before vesting occurs. It is usually said that an interest is vested if two requirements are fulfilled: (1) the precise identity of the person who is to take the interest must be ascertained; (2) there must be no condition precedent to this interest falling into possession other than the regular determination of the prior particular estate or estates. To take a simple illustration, it is clear that in the limitation ‘to A for life, remainder to B in fee simple’, B’s remainder is vested from the outset. Not only is B’s identity ascertained, but the remainder only awaits the determination of A’s prior life estate before it falls into possession. Should B predecease A, the vested remainder in fee simple will pass to B’s personal representatives to be distributed to the beneficiaries named in the will or to the next of kin, should B die intestate. On the other hand, in the limitation ‘to A for life, remainder to B in fee simple if B attains the age of 25 years’, B’s remainder is, at the outset, contingent unless B has attained 25 years at the date the document comes into operation. B will not attain a fee simple estate in possession if he or she dies before reaching the age of 25, because the limitation specifically requires B to reach that age before becoming entitled to enjoyment of the land. In short, there is a condition precedent to B’s interest falling into possession other than the determination of A’s prior life estate. B’s fee simple estate will vest when B reaches the age of 25 years, for then there will be no contingency preventing B acquiring a possessory interest other than the determination of the prior particular estate. The fact that the

interest has vested does not make it possessory; B’s interest will not actually fall into possession until the holder of the prior life estate dies. The distinction between vested and contingent interests is important for a variety of reasons. It will be seen later, for example, that the legal remainder rules required legal contingent remainders to ‘vest’ within a certain period of time. If a contingent remainder did not vest within the time specified it failed at common law, although in modern times the remainder may be rescued by statute. Similarly, the rules against ‘remoteness of vesting’ (or the rule against perpetuities), which attempt to limit the power of individuals to tie up interests in land (and other objects) for an excessive period of time, are framed in terms of ‘vesting’: see Chapter 7. 3.45

In many cases it is not clear on the face of the instrument whether the

grantor or testator intended to create a vested or contingent interest. For example, in Permanent Trustee Co of New South Wales Ltd v D’Apice (1968) 118 CLR 105; [1968] ALR 437, the High Court was divided as to the proper interpretation of a will. The will provided for a life estate in certain land followed by a remainder ‘after the decease of the said’ life tenant to a remainderman in fee simple. The remainderman predeceased the life tenant. If the phrase preceding the remainder created a contingency requiring the remainderman to survive the life tenant, the remainder had failed since the contingency was not satisfied. On the other hand, if the phrase merely stated the obvious proposition that the remainder would not fall into possession until the death of the life tenant, no contingency was created and the remainderman’s interest was vested from

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the outset. The majority of the court reached the conclusion that the remainder was vested. Accordingly, the fee simple estate of the remainderman fell into possession on the death of the life tenant. Since the remainderman was dead, the person entitled to the estate was the devisee under the remainderman’s will. Generally, if there is doubt, the court leans in favour of holding that it is vested. In Coventry v Smith (2004) 31 Fam LR 608; [2004] FamCA 249, the words ‘if and when he survives the distribution date’ were held to create a condition subsequent. 3.46

At one time, vested remainders could be alienated freely by deed or

will, but contingent remainders, which carried only the possibility of an estate in possession, could not be disposed of with the same freedom. A number of detailed and complex rules known as the ‘contingent remainder rules’ governed these interests. They are now largely of historical interest and will not be examined here. Legislation has now intervened to place contingent remainders in the same position as vested remainders.35

3.47 Questions Consider the following problems: 1.

W devised land to A and L during their joint lives, remainder to the survivor of A and L for her life, remainder to X and his heirs. Was the remainder to the survivor of A and L vested or contingent? Were the remainders to A and L vested or contingent?

Compare Whitby v Von Luedecke [1906] 1 Ch 783. 2.

X devised land to A, B, C, D, E, F and G ‘as joint tenants and not tenants in common, and to the survivor of them, his or her heirs or assigns forever’. It was held, despite the terms of the Wills Act 1837 s 28 (which provided that a devise should pass the whole estate of the testator unless a contrary intention appeared), that the devise was not intended to create a joint fee simple estate in the devisees. They received a joint life estate, followed by a remainder in fee simple to the survivor. Was the remainder in fee simple vested or contingent? Compare Quarm v Quarm [1892] 1 QB 184.

3.

The following limitations are contained in deeds executed by the holder of the fee simple in Blackacre. Which remainders are vested and which contingent? In the case of the contingent remainders, when will they vest? In all cases what estate, if any, does the grantor retain at the date of the execution of the deed: a.

To A for life, remainder upon A’s death to B in fee simple?

b.

To A for life, remainder to B for life, remainder to C in fee simple provided that C has married?

c.

To A (a bachelor) for life, remainder to his widow in fee simple?

d.

To A (who is married) for life, remainder to his widow in fee simple?

e.

To A and B for their joint lives, remainder to the survivor in fee simple?

f. 4.

To A for life, remainder to B for life if he survives A?

Reversions must always be vested. Why?

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FRAGMENTATION BETWEEN LEGAL AND BENEFICIAL OWNERSHIP: EQUITABLE INTERESTS IN LAND The development of the use 3.48

The Chancery was originally the secretarial department of the

Crown. The head of the Chancery was the Chancellor who served the King in a role akin to a present-day Secretary of State. One of the main functions of the Chancery was to issue writs which enabled an action to be commenced in the common law courts. Before a writ was issued it was sealed with the Great Seal of the Realm, of which the Chancellor was custodian. By the end of the thirteenth century the forms of writs which could be issued by the Chancery were circumscribed, and so too was the power of the Chancery to create new writs. This meant that in many cases no remedy was available in the common law courts. In other cases it was difficult for a prospective plaintiff to obtain justice at common law because of the limits on the jurisdiction of the courts or because the wealth of the defendant made it likely that he would bribe jurors. In these cases, suitors often petitioned the King

who retained a residual judicial power in his hands. The King’s Council, of which the Chancellor was an important member, exercised general supervision and control over the common law courts and heard special petitions of this kind. Eventually, this function of dealing with petitions was delegated to the Chancellor. To hear the petitions it was necessary to determine the facts by hearing witnesses, and in the course of doing so, the Chancery began to resemble a judicial body. In this way the Court of Chancery, over which the Chancellor presided, came into being. By the end of the fifteenth century, the judicial power of the Chancery was recognised, and after the end of the seventeenth century only lawyers were appointed to the office of Chancellor. The body of rules administered by the Court of Chancery was known as equity. For some time these rules varied from Chancellor to Chancellor, but by the end of the seventeenth century they had become more settled. One area in which the Court of Chancery assumed a vital role was the enforcement of uses, a role which gave rise to the basic distinction in English law between legal and equitable interests.36 3.49

Holdsworth (vol iv, 410) describes the use as amounting to a

‘recognition of the duty of a person to whom property has been conveyed for certain purposes to carry out those purposes’. Where X conveys ‘Blackacre’ to ‘A in fee simple to the use of B in fee simple’ X’s intention is that, while the legal estate is to vest in A, B should have the right to the beneficial enjoyment of Blackacre. However, the feudal system of landholding was too burdensome and the common law system of proprietary interests too inflexible for the many and varied interests of landowners, including the holding of land by one person for the use of another. Uses satisfied a number

of purposes at the time, and it was the Court of Chancery that eventually assumed the task of enforcing them. In doing so, it provided for a mechanism for fragmenting proprietary interests. Uses served the following purposes to become an important part of arrangements for the holding of land.37

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Substitute for wills 3.50

At common law a tenant in fee simple could not devise the interest in

the land. By the rule of primogeniture, upon his death the land devolved upon his eldest son (or other heir) to the exclusion of any other descendants. Except by a disposition made during his lifetime, he could not provide for his other descendants after his death. Nor could he disinherit his heir, however undeserving. If the tenant in fee simple died without leaving an heir, the land would escheat to his overlord; because he was unable to dispose of the land by will, he could not avoid escheat. The use was employed to overcome all these difficulties. The tenant in fee simple conveyed his land to a friend, on the understanding that the friend would permit the grantor, and after his death, the grantor’s children (or other designated persons) to have the full benefit and enjoyment of the land. In other words, A (known as the ‘feoffor to uses’)38 conveyed the land to B (the ‘feoffee to uses’) to the use of C for life and after his death to the use of the person or persons whom A wished to benefit. (These persons were known as beneficiaries or cestuis que usent.) By

the fifteenth century it became common for land to be conveyed to a feoffee to hold to uses declared by the will of the feoffor.39

Avoidance of feudal burdens 3.51

By the device of a use, all the burdensome feudal dues could be

avoided. During his lifetime the tenant in fee simple conveyed the land to several feoffees to uses jointly, to the use of himself for life, and then to the use of his heir. Since the tenant in fee simple was not seised of the land at his death, no dues were attracted by that death. The number of feoffees to uses was never permitted to fall below two. If one feoffee to uses died, the other feoffees took his interest by way of survivorship so that his death did not attract feudal dues.

Providing for grantor’s wife 3.52

By a legal fiction, man and wife were considered to be one person at

common law. Thus, a man could not convey land to his wife, since this was regarded as an ineffectual conveyance to himself. This difficulty was overcome if the land was conveyed to a feoffee to uses to the use of the grantor’s wife.

Avoidance of the Statutes of Mortmain 3.53

The Statutes of Mortmain 1279 and 1290 prohibited the conveyance

of land to religious bodies. The statutes were passed because overlords had lost profitable dues (in the form of incidents: see 3.6) when land was

conveyed to a body which did not attain majority, die or become attainted for treason. The Statutes of Mortmain were avoided by the conveyance of land to a feoffee to uses to the use of a religious order.

Creation of new future interests 3.54

One reason for the creation of uses was a desire to avoid the strictness

of the legal contingent remainder rules. Because the common law considered seisin to be all-important,

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a legal interest could not be created to spring up in the future. Thus, a grantor could not convey land ‘to my infant son at age 21’, for if effect were given to such a conveyance, there would be an abeyance of seisin during the period between the conveyance and the attainment by the son of his majority. However, if the land were conveyed to a feoffee to uses to the use of the son at the age of 21, the difficulty was avoided. Since the feoffee to uses took seisin of the land immediately, the common law was satisfied. The Court of Chancery gave effect to the interest which sprang into existence when the son attained 21. The interest was known as a ‘springing use’. Until the son turned 21 the Court of Chancery implied that the feoffee to uses was to hold to the use of the grantor. The beneficial interest retained by the grantor was known as a resulting use. At common law a future interest would be void if it were to take effect in possession by cutting short a prior particular estate. Again,

equity did not follow the law in this respect. In a limitation ‘to A for life, but if A marries B, to C for life’, C’s contingent remainder would be invalid at law. But if the remainder were created behind a use, the Court of Chancery would enforce it.40

Enforcement of uses 3.55

As noted above, the enforcement of uses became the province of the

Court of Chancery. This court was ideally suited to the task, for unlike the common law courts it could summon the parties to the action before it and examine them on oath. At first the court would enforce the use only against the feoffee to uses, on the basis that only his conscience was bound by the use. Later, however, the Court of Chancery decided that not only was the conscience of the feoffee to uses bound by the use, but also the conscience of his heir. Thus, on the death of the feoffee to uses the use could be enforced against the feoffee’s heir to whom the legal fee simple estate had descended. By 1466 it had been held that any person who took an interest in land with ‘notice’ of the use was also affected by it. Likewise, it later became clear that a person who had not paid for the interest in the land was also bound, whether or not he had notice of the use. Thus, the idea of a tie of conscience was gradually extended, and with it the sphere of enforceability of the use, until by the beginning of the sixteenth century the modern position, in substance, had been reached. That is, the use could be enforced against anyone in the world acquiring an interest in the land other than a bona fide purchaser of the legal estate for value without

notice of the use: Holdsworth, vol iv, 432–3. The cestui que use had three main rights. He or she was entitled to take the profits of the land, to force the feoffee to dispose of the land in accordance with his or her instructions and to require the feoffee to take all necessary proceedings to protect or recover the land. Thus, a unique position was reached. In a conveyance ‘to A and his heirs to the use of B and his heirs’, the common law courts took cognisance only of A and went no further. A was the only person who could take proceedings against persons interfering with the land. But if A attempted to act inconsistently with the dictates of his conscience, the Court of Chancery would enforce the use against him, if necessary by imprisonment. Thus B had an interest in the land recognised and enforced by the Court of Chancery. In other words, two different kinds of interests in the land could exist side by side.

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The Statute of Uses 1535 3.56

In the sixteenth century, an attempt was made to bring to an end the

whole machinery of uses. Since the King was at the top of the feudal pyramid, he suffered most from the evasion of tenurial incidents. Although the lords suffered from a reduction in revenue when their tenants employed uses, they too could avoid the payment of feudal dues in respect of lands of which they were tenants. The King was the only person who always lost, for

only he was always lord and never tenant. The Statute of Uses was the culmination of various attempts by Henry VIII to solve this problem. 3.57

The following precis of the first section of the Statute of Uses 1535 is

drawn substantially from Holdsworth, vol iv, 461–2: Where any person or persons are, or shall be seised of any lands, tenements … or other hereditaments, to the use confidence or trust of any other person or persons or body politic these other person, persons or body politic that have the use, confidence or trust in fee simple, fee tail, for life or years, or for any estate in remainder or reverter, shall be seised of the like estate as they had in the use, confidence or trust, and the estate of the feoffees shall be in them that have the use for such estate as they formerly had in the use.

The statute operated to execute the use, so that the interest of the cestui que use, which was previously an equitable interest, was converted into a legal interest. For example, in a disposition to A and his heirs to the use of B and his heirs, before the enactment of the statute, A would have had a legal fee simple in the land and B an equitable fee simple. After 1535, the Statute of Uses executed the use, giving B the legal fee simple. A was conceived of as being seised of the land only for a moment, and thereafter being divested of his interest. 3.58

The provisions of the statute were not wide enough to execute all

uses. Thus, some equitable interests continued to exist even after its enactment: see Symson v Turner (1700) 1 Eq Cas Abr 383; 21 ER 1119; Holdsworth, vol iv, 463; vol iii, 136–49: 1.

The statute applied where one person was seised to the use of another. Where a lessee held land to the use of another the lessee was not seised, for seisin remained with the landlord. In this case the use was not

executed. Similarly, where a person was possessed of chattels to the use of another the statute did not apply. 2.

Before 1535, uses were not enforced by the Court of Chancery against corporations, for a corporation was thought to have no conscience. The Statute of Uses did not execute a use where a corporation was seised to the use of a person, although it did execute the use in the reverse case where a person was seised to the use of a corporation.

3.

The statute did not execute active uses, where the feoffee to uses had duties imposed. The evil against which the statute was directed arose only where the feoffee to uses played a mere passive role, with the cestui que use in possession of the land and apparently the owner. Thus, if land were conveyed to A and his heirs with the intent that A should collect the rents and profits and hold them to the use of B and his heirs, A received a legal fee simple and B an equitable fee simple.

4.

The statute did not execute the use where a person was seised to his own use. Because of its wording the statute only applied where a person was seised to the use of another: see Doe d Lloyd v Passingham (1827) 6 B & C 305; 108 ER 465; 3.61C.

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5.

The statute did not execute a use upon a use. This was decided in 1557 in Tyrrel’s case (1557) 2 Dyer 155a; 73 ER 336, and later became extremely important as a legal principle. Thus, a conveyance ‘to A and

his heirs to the use of B and his heirs to the use of C and his heirs’ was ineffective to give C any interest. It was held that the second use was void at common law, the effect of the Statute of Uses being exhausted after execution of the first use. It will be seen (3.61C) that by the end of the seventeenth century the Court of Chancery had revived the second use in the form of the modern trust.

The Statute of Wills 1540 3.59

One of the purposes of the Statute of Uses was to prevent the

employment of uses for making wills. This aspect of the statute was extremely unpopular. By 1540, Henry VIII found it expedient to compromise, enacting the Statute of Wills. Under this statute a tenant of land held under socage tenure was given ‘full and free liberty, power and authority to give, dispose, will and devise, as well by his last will and testament in writing, or otherwise by an act or acts lawfully executed in his life, all his … hereditaments at his free will and pleasure’. Tenants by knight service were allowed to devise twothirds of their lands.

The development of the trust 3.60

Although the Statute of Uses did not abolish the power to create

equitable interests, or execute all uses, it did convert the most numerous classes of equitable interests into legal ones. Moreover, in Tyrrel’s case (1557) 2 Dyer 155a; 78 ER 336, the Court of Wards, with the approval of the judges of the Court of Common Pleas, decided that a use limited after a use

was invalid at law (‘to A and his heirs to the use of B and his heirs to the use of C and his heirs’). This did not mean, of course, that the Court of Chancery could not give effect to the second use as an equitable interest, but for more than 100 years after the Statute of Uses that court was reluctant to act. This was probably because the Chancellor realised that widespread creation of equitable interests could again lead to the King being deprived of his feudal revenues. The recognition and enforcement of this second use gradually took place during the seventeenth century. By 1700, as seen from Symson v Turner (1700) 1 Eq Cas Abr 383; 21 ER 119, the trust, as the second use was known, was well established. Like equitable interests before 1535, trusts did not have to comply with legal contingent remainder rules. Perhaps the major difference between the pre-1535 use and the trust of the eighteenth and nineteenth centuries was the form of words required to create the equitable interest. Another form of words capable of evading the Statute of Uses appears in the following case. 3.61C

Doe d Lloyd v Passingham (1827) 6 B & C 305; 108 ER 465 Court of King’s Bench

[Land was conveyed by lease and released to A and his heirs to the use of A and his heirs on trust for B and his heirs.] Holroyd J: Upon the first perusal of the deed in question I have no doubt that the legal estate was vested in the trustees, having always understood that an use cannot be limited [page 190]

upon an use; and although I was struck by the ingenuity of the distinction pointed out by Mr Taunton, yet upon further consideration it appears to me that this argument does not warrant it. The argument is, that as the trustees did not in the first instance take to the use of another, but of themselves, they were in by the common law, and not by the statute; that the first use was, therefore, of no effect, and the case was to be considered as if the deed had merely contained the second limitation to uses. But that is not so for although it be true that the trustees take the seisin by the common law, and not by the statute, yet they take that seisin to the use of themselves, and not to the use of another, in which case alone the use is executed by the statute. They are, therefore, seised in trust for another, and the legal estate remains in them …

3.62

According to Doe d Lloyd v Passingham, A was seised not by force of

the statute but by common law; and because the statute did not execute a use upon a use to oneself rather than to another, the trust in favour of B was effective. Eventually the form of words was contracted to ‘unto and to the use of A and his heirs on trust for B and his heirs’. The Statute of Uses has been repealed in four Australian jurisdictions — New South Wales, Queensland, the Northern Territory and Victoria41 — with consequential changes in the wording required to create trusts of land. In conjunction with the reforms in relation to words of limitation, the requisite form of words to create a trust of land has now become ‘to A in fee simple on trust for B in fee simple’, or ‘to A in trust for B’. Because the Statute of Uses continues to apply in the other jurisdictions, the original form of words (‘unto and to the use of A on trust for B’) remains necessary. Chapter 4 outlines important aspects of the modern law relating to trusts.

Equitable estates and wills 3.63C

Re Beavis; Beavis v Beavis (1906) 7 SR (NSW) 66

Supreme Court of New South Wales [The home-made will of the testator contained the following provision: I give to my daughter Sara Kate Beavis the allotment and house she now resides in for her use for her lifetime. I bequeath to her oldest son not yet born the said allotment if no son to the oldest daughter. The life estate devised to the daughter failed because she had witnessed the testator’s will. The executors commenced an action to determine whether the corpus of the allotment devised to the daughter fell into the residue of the testator’s estate and, if not, how the executors should deal with the rents and profits thereof.] Street J: In this State the harsh and technical feudal rule of law still survives, which requires that in order to support a contingent remainder there must be a preceding estate of freehold [page 191]

continuing in existence up to the happening of the contingency on which the remainder is to vest; so that if until the time of the determination of the prior estate the remainder has not become vested it will fail. This rule has not been adopted in equity when the legal estate is vested in trustees, and in such cases the legal estate of the trustees will support the contingent remainder. The ground upon which the rule was based at law was apparently that there must be a tenant of the freehold to perform services and answer all writs concerning the realty and that consequently a freehold could not be allowed to be in abeyance; and the reason apparently why the rule was never adopted in equity was that the legal objection was obviated in the case of equitable estates in as much as the trustee was the tenant of the freehold to perform services and answer writs. Sarah Kate Beavis’s life estate has failed to take effect by reason of her attestation of the will, and as she is still unmarried the remainders to her children are not vested. The devises to her and to them are in form legal devises, but Mr Thompson contended that, in as much as the Probate Act 1898 vests the whole of the real estate of the testator in his executors, to whom probate is granted, the contingent remainders to the children do not fail, but will be supported by the legal estate so taken by the executors. I am of the opinion that Mr Thompson is right in his contention. Under the Probate Act 1898, on the grant of probate of a will the real estate of a testator passes to and becomes vested in his executors as from his death. It is [an asset] in their hands for the payment of his debts: they have as complete dominion over it as over the personal estate, and a devisee, whatever the terms of the devise in his favour, can only acquire the legal estate in lands devised to him either by a conveyance from the executors or by the statutory acknowledgment which is made the equivalent of a conveyance. Why, then, should the

legal estate so acquired be inefficacious to support contingent remainders? I can see nothing, either in the rule itself or in the nature of its origin, which would prevent the statutory legal estate cast upon the executors from operating in this way, and, in my opinion, it is sufficient to support contingent remainders created by the will of a testator … I, therefore, answer this question by saying that the corpus of the land specifically devised to the plaintiff Sarah Kate Beavis does not fall into residue, but that it must be retained by the executors of the will until it is ascertained whether the remainders expectant on the determination of her life estate can take effect, and that in the events which have happened the rents and profits are in the meantime distributable as on the intestacy of the testator …

3.64

Similar legislation to that discussed in Re Beavis applies throughout

Australia. It follows from Re Beavis that the learning relating to executory devises has been superseded, since all devises create equitable interests which need not comply with the legal remainder rules.42

Reform of future interests 3.65

The operation of the common law contingent remainder rules (which

were concerned to prohibit an abeyance of seisin, and so generally struck down remainders which allowed it) meant that legal contingent remainders provided a less flexible means of creating future

[page 192]

interests in land than legal executory interests and trusts. In England during the nineteenth century reforms were introduced to mitigate the harshness of those rules culminating in the Contingent Remainders Act 1877 (UK). Tasmania, Victoria and Western Australia followed the English example.43

These provisions are still in force. New South Wales (s 16(1)) and South Australia (s 25) appear to have prevented both the natural and artificial destruction of contingent remainders by the following provision. 3.66E

Conveyancing Act 1919 (NSW)

16(1) A contingent remainder … 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.

The New South Wales Act (s 16(2)) adds, for good measure, that a contingent remainder lying between two estates vested in the same person shall prevent the merger of those two estates. 3.67

New South Wales (s 44(2)), Western Australia (s 39) and the

Australian Capital Territory (s 223) have enacted legislation providing that executory interests ‘may be made by direct conveyance and without the intervention of uses’. This provision appears to mean that an interest which could previously exist only as an executory interest and not as a remainder may now be created without reference to uses. Thus, a grant ‘to A in fee simple but if he marries B then to C in fee simple’ results in the creation of a valid fee simple in favour of A which shifts to C in the event of A’s marriage to B. Western Australia adds that an estate of freehold to take effect at a future time may be created by any deed by which a present estate of freehold may be created. 3.68

New South Wales has taken a step of some significance, not only for

the law of future interests, but for the creation of equitable interests in general by repealing the Statute of Uses: Imperial Acts Application Act 1969 (NSW) s 8. On one interpretation, the repeal of the statute conceivably returns New South Wales to the situation existing in England prior to 1535 insofar as s 44(2) is expressed to allow the creation of executory interests ‘without the intervention of uses’. Thus, a grant by deed in 1994 to ‘A in fee simple when he graduates in law’ is possibly void. Such an interpretation of the effect of the repeal of the Statute of Uses is an unlikely one. A more plausible one is to give s 44(2) a continued operation by interpreting it as having an effect independent of the Statute of Uses creating interests by analogy to the statute but by force and effect of the subsection itself.44 3.69

The Queensland Law Reform Commission, Report on Property Law

Reform, 1973, 21–2, recommended that future interests in land should take effect only as equitable and not legal interests. This recommendation, implemented by Qld s 30 (and NT s 30),

[page 193]

effectively abolishes legal contingent remainders and legal executory interests. A further recommendation that the Statute of Uses be repealed was also implemented: see Qld, ss 3, 7. In 2010, the Victorian Law Reform Commission45 made a similar recommendation (at 68) on the basis that ‘the abolition of legal future interests would remove a method used only by the ill

advised’. Should these far-reaching and modernising reforms be adopted in all states? 3.70

In Victoria the Imperial Acts Application Act 1980 s 5 repealed the

Statute of Uses. In addition, the Imperial Law Re-Enactment Act 1980 (Vic) s 6 inserted a new s 19A into the Property Law Act 1958. This section provides as follows: 3.71E

Property Law Act 1958 (Vic)

19A Interests in land under the Statute of Uses (1) Interests in land which under the Statute of Uses could before the commencement of this section have been created as legal interests shall after the commencement of this section be capable of being created as equitable interests. (2) Notwithstanding subsection (1) an equitable interest in land shall after the commencement of this section only be capable of being validly created in any case in which an equivalent equitable interest in property real or personal could have been validly created before such commencement. (3) In a voluntary conveyance executed after the commencement of this section, a resulting trust for the grantor shall not be implied merely by reason that the property is not expressed to be conveyed for the use or benefit of the grantee. (4) Subsection (3) does not limit or affect the operation of any principle or rule of equity relating to the implication of resulting trusts.

Unlike in Queensland, legal contingent remainders may still be created in Victoria, although the Victorian Law Reform Commission in its recent report (Review of the Property Law Act 1958: Final Report, 2010, 73) recommended that they should be abolished and only exist in equity behind a trust. 3.72

The law relating to future interests as outlined above was developed

in the context of common law, or old system, title. There remains a question as to whether they apply to land held under the Torrens system. The registration provisions of that system suggest significant modification of the operation of the legal remainder rules in relation to land held under it. The following case details one aspect of the operation of the Torrens system on the contingent remainder rules. Although the case arose in South Australia, similar provisions exist in the Torrens statutes in the other states and territories.46

[page 194]

3.73C

Re Campion [1908] SALR 1 Supreme Court of South Australia

Way CJ: Although this statute [the Contingent Remainders Act 1877 (UK)] has not been adopted in South Australia practically the same result has been brought about with respect to land under the Real Property Act by provisions of that statute which doubtless had a very different primary object — that is, to simplify titles by making the Register Book a complete record of all transactions relating to the legal estate. In accomplishing this, consequences have followed which may or may not have been foreseen by the framers of the Act. The Land in question is under the Real Property Act, which directs that ‘on the death of the registered proprietor’ his estate ‘shall be transmitted to his executor or administrator,’ who is to ‘hold the land upon the trusts and for the purposes for which the same is applicable by law’ (ss 175, 180) … Nor is there, as Mr Glynn suggested, a gap in the seisin between the death of the testator and the registration of the executors’ title. His estate, as just mentioned, was ‘transmitted’ to his executors on his death, and the definition clause (s 3) says ‘“transmission” shall mean the passing of title to land in any manner other than by transfer.’ The land therefore passed to the executors immediately on the testator’s death, although section 176 requires that before dealing with it they are to be registered as proprietors. The legal estate being thus vested in the executors as trustees for the persons entitled under the Will, the other remainders are saved from destruction and one of them may yet take effect by the happening of the contingency upon which it depends.

3.74

Provisions enabling the creation of future interests under the Torrens

system are contained in each of the statutory regimes.47 The Torrens legislation in New South Wales, South Australia and Tasmania gives the Registrar-General power to create and issue new certificates of title for each future interest: NSW s 100(2); SA s 75; Tas s 33(6), (8).

3.75 Questions Discuss the effect of the following limitations: 1.

In a conveyance and in a will in 2002: a.

To A for life, remainder to such of the children of A who shall attain the age of 21 years in fee simple. A has three children, two of whom have reached 21 at his death.

b.

To A for life, remainder to such of the children of A who shall attain the age of 21 years whether before or after his death.

2.

In a conveyance in 2002: a.

To T in trust for B.

b.

To T and his heirs on trust for B and his heirs at 21.

[page 195]

c.

To T in trust for A, but if the land is sold proceeds in trust for A and B equally.

d.

Unto and to the use of A in fee simple on trust for C when he graduates in law.

3.

Give a complete and precise description of the estate or interest taken by A, B and C in each of the following limitations relating to ‘Blackacre’. You may assume that the grantor or testator had the legal fee simple estate in Blackacre and that the relevant instrument came into effect in 2002. In each answer, mention the section of any legislation directly relevant to your answer: a.

By Deed: To A for life then to A’s widow C until she remarries, remainder to A’s eldest son B.

b.

By Deed: To A in three years’ time but if he becomes a lawyer, then to B on condition that he remains an Australian citizen.

c.

By Deed: To A for life or until he marries B, then to C provided she has attained the age of 25 years. On A’s marriage to B, C is 21.

d.

By Deed: To A for life or until he marries B and one week after A’s death or marriage to B, whichever occurs first, to C provided she has attained the age of 25 years. One week after A’s marriage to B, C is 21.

e.

By Will: To A on trust for B five years after his graduation in law.

f.

By Will: To A on trust for B but if he fails to graduate in law by his 50th birthday then to C.

SYSTEMIC FRAGMENTATION OF INTERESTS IN LAND: THE COMMON LAW, TENURE AND NATIVE TITLE Introduction 3.76

One of the most decisive differences between the system of

Australian land law and its English forebear lies in the recognition of Indigenous rights. This recognition has come in two distinct forms. First, following the Woodward Commission’s recommendations in 1975, a number of jurisdictions, commencing with the Land Rights Act (Northern Territory) 1976 (Cth), enacted specific legislation authorising the grant of interests in land, typically in the form of a fee simple, to traditional owners of the land by the state.48 Second, following Mabo (No 2) (3.77C below), ‘native title’ as recognised by the common law can, in certain circumstances operate, and coexist, in the same physical location, with common law, non-indigenous proprietary rights. Native title represents a distinctive, local example of the fragmentation of proprietary interests. More particularly, it provides an example of two quite distinct systems of law operating within the same geographic, national and jurisdictional space. This co-existence

[page 196]

of legal orders has been described by Noel Pearson as ‘the recognition space’

between different systems of law. He concludes that: [F]undamentally, I proceed from the notion that native title is a ‘recognition concept’. The High Court tells us in Mabo that native title is not a common law title but is instead a title recognised by the common law. Native title is, for want of a better formulation, the recognition space between the common law and the Aboriginal law which is now afforded recognition in particular circumstances. Adopting this concept allows us to see two systems of law running in relation to land. This is a matter of fact …49

As will be evident from the readings below, an identifying feature of native title is that the source of the legal rights it describes differs from the source of law for common law rights. The precise contours of how the two systems of law intersect are still being developed given that recognition of native title was established for the first time in this country just over two decades ago by the High Court in the landmark Mabo decision. The remainder of this chapter will examine the case law that has elaborated on the nature of native title, its incidental features, and the circumstances in which it is extinguished. It will also examine, albeit briefly, the legislative framework that has been set up to regulate native title claims. 3.77C

Mabo v Queensland (No 2) (1992) 175 CLR 1 High Court of Australia

[The plaintiffs, who were Murray Islanders, commenced proceedings in the High Court in 1982, in response to the Queensland (Aboriginal and Islander Land Grants) Amendment Act 1982 establishing a system of making land grants on trust for Aboriginals and Torres Strait Islanders, which the Murray Islanders refused to accept. The action was brought as a test case to determine the legal rights of the Meriam people to land on the islands of Mer (Murray Island), Dauar and Waier in the Torres Strait, which were annexed to the state of Queensland in 1879. The Meriam people had been in occupation of the islands for generations prior to first European contact and

they continue to live in villages on the islands to this day. The plaintiffs sought declarations, inter alia, that the Meriam people were entitled to the Murray Islands ‘as owners; as possessors; as occupiers; or as persons entitled to use and enjoy the said islands’. In the present case, the decision of the High Court was based on findings of fact made by Moynihan J of the Supreme Court of Queensland. Moynihan J found, inter alia, that prior to European contact the Meriam people had lived on the islands in a subsistence economy based on gardening and fishing. Gardening played a central part in their social organisation and culture and garden land was ‘identified by reference to a named locality coupled with the name of relevant individuals if further differentiation is necessary’. Murray Islanders had a strong sense of relationship to the islands and regarded the land as theirs. Land on the islands was not the subject of public or general community ownership, but was regarded as belonging to individuals or groups.]

[page 197]

Brennan J: [Brennan J began by examining the proposition that the effect of annexation of the Murray Islands to the State of Queensland in 1879 was to vest in the Crown ownership of the land in the Murray Islands.] The theory of universal and absolute Crown ownership … On analysis, the defendant’s argument is that, when the territory of a settled colony became part of the Crown’s dominions, the law of England so far as applicable to colonial conditions became the law of the colony and, by that law, the Crown acquired the absolute beneficial ownership of all land in the territory so that the colony became the Crown’s demesne and no right or interest in any land in the territory could thereafter be possessed by any other person unless granted by the Crown. Perhaps the clearest statement of these propositions is to be found in Attorney-General v Brown ((1847) 1 Legge 312 at 316) when the Supreme Court of New South Wales rejected a challenge to the Crown’s title to and possession of the land in the Colony. Stephen CJ stated the law to be: … that the waste lands of this Colony are, and ever have been, from the time of its first settlement in 1788, in the Crown; that they are, and ever have been, from that date (in point of legal intendment), without office found, in the Sovereign’s possession; and that, as his or her property, they have been and may now be effectually granted to subjects of the Crown. It was maintained that this supposed property in the Crown was a fiction. Doubtless, in one sense, it was so. That principle, however, is universal in the law of England, and we can see no reason why it shall be said not to be equally in operation here. [I]n a newly-discovered country, settled by British subjects, the occupancy of the Crown with respect to the waste lands of that country, is no fiction. Here is a property, depending for its support on

no feudal notions or principle. But if the feudal system of tenures be, as we take it to be, part of the universal law of the parent state, on what shall it be said not to be law, in New South Wales? At the moment of its settlement the colonists brought the common law of England with them. ((1847) 1 Legge 312 at 317–18). … The proposition that, when the Crown assumed sovereignty over an Australian colony, it became the universal and absolute beneficial owner of all the land therein, invites critical examination. If the conclusion at which Stephen CJ arrived in Attorney-General v Brown be right, the interests of indigenous inhabitants in colonial land were extinguished so soon as British subjects settled in a colony, though the indigenous inhabitants had neither ceded their lands to the Crown nor suffered them to be taken as the spoils of conquest.