Brunker v Perpetual Trustee Co (Ltd)

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.