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Brunker v Perpetual Trustee Co (Ltd)

Brunker v Perpetual Trustee Co (Ltd)

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Case Copied 10 June 1937 80 min read

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57 CLR 555

PERPETUAL TRUSTEE COMPANY (LIMITED) RESPONDENT.

ON APPEAL FROM THE SUPREME COURT OF

NEW SOUTH WALES. Gift-Land-Memorandum of transfer-Executed by donor and delivered to third

person-Death of donor-Authority of third person-Notification of encumbrance -Omission from document-Subsequent unauthorized insertion-Materiality of alteration-Right to register document-Imperfect gift-Donor-Capacity- Undue influence-Real Property Act 1900 (N.S.W.) (No. 25 of 1900), sec. 46.

A bachelor seventy-one years of age died from cardiac failure after an illness of seven days' duration. On the day before his death he executed a memoran- dum of transfer in respect of certain land under the Real Property Act 1900 (N.S.W.) in favour of the appellant, who for many years had been his house- keeper and had attended to him during his last and a previous illness. The McTiernan JJ, transfer was prepared by a law stationer, a friend of both the deceased and the appellant, and was handed to him after execution without any precise instructions it was expressed to be for a nominal consideration only and purported to transfer to the appellant an estate in fee simple in remainder expectant on the transferor's death: it contained no notification of a mortgage to which the land contained in the transfer was, together with other properties, subject at the time of the execution of the transfer, because it appeared that the transferor wished to procure a release of that land from the mortgage. After the transferor's death the law stationer handed the transfer to the appel- lant's solicitor, who then inserted particulars of the mortgage in the document and sought to register it. The relevant certificate of title was at all material times in the custody of the mortgagee, In a suit by the transferor's executor, which had entered a caveat against the registration of the transfer, the Supreme

57 CLR 556

Court declared the transfer void and of no effect, but found in the appellant's favour on an issue of incapacity and, on an issue of undue influence, held that there was no relation of influence raising a presumption against the transaction and no proof of undue influence. Co. (LTD.).

(1) By the whole court, that the appellant had failed to establish a gift of any interest in the land.

(2) By Rich, Dixon and McTiernan JJ. (Latham C.J. dissenting), that the appellant had failed to establish the creation in her favour of any right to obtain an interest in the land by registration. So held :-

By Rich, Dixon and McTiernan JJ., on the ground that the memorandum of transfer had not been delivered to the appellant or to anyone on her behalf and she had no property in the instrument or right to possession thereof.

By Rich and Dixon JJ., on the further ground that without the indorsement of a notification of the mortgage as required by sec. 46 of the Real Property Act 1900 the memorandum of transfer was not a registrable instrument, and the insertion therein of that notification was unauthorized and could have no…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1937] HCA 29
Decision Date: 10 June 1937

CaseChat Overview and Summary

The case of *Brunker v Perpetual Trustee Co (Ltd)* concerned a dispute over a memorandum of transfer of land executed by a terminally ill man, Robert James Douglas Sellar, in favour of his housekeeper, Bessie Brunker. The executor of Mr. Sellar's will, Perpetual Trustee Co (Ltd), sought to have the transfer declared void and of no effect. The grounds for the executor's claim included allegations of the deceased's incapacity, undue influence by the defendant, an incomplete gift, defects in the transfer document, and material alterations made after execution.

The Supreme Court of New South Wales was required to determine several legal issues. These included whether Mr. Sellar possessed the requisite capacity to execute the transfer, whether the defendant exerted undue influence over him, and whether the gift of the land was legally complete. Further issues concerned the validity of the transfer document itself, specifically whether it was in registrable form at the time of execution and whether subsequent alterations rendered it void.

The court found that the plaintiff executor failed to establish the deceased's incapacity or that undue influence was exerted by the defendant. However, the court held that the gift was incomplete because the memorandum of transfer had not been effectively delivered to the appellant or her agent before the donor's death. The court reasoned that the law stationer, Mr. Fuller, who held the document, was acting as the donor's agent until the donor's death, and his authority ceased at that point. Therefore, the subsequent delivery of the transfer to the appellant's solicitor was ineffective. Additionally, the court found that the insertion of particulars of a mortgage after the donor's death constituted a material alteration to the document, rendering it invalid for registration.

Consequently, the memorandum of transfer was declared void and of no effect. The court ordered its cancellation and granted an injunction restraining the defendant from attempting to register the transfer or act under it. The operation of a caveat preventing registration was also extended.

Orders