Corin & Anor v Patton

[1989] HCATrans 197

..

' 'C

• ·-,~~

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S230 of 1988

B e t w e e n -

JOHN JEFFREY CORIN and

JUDITH JONES

Appellants

and

RONALD JOHN PATTON

Respondent

MASON CJ

BRENNAN	J .
DEANE J TOOHEY J McHUGH J
Corin(2)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 5 SEPTEMBER 1989, AT 10.16 AM

Copyright in the High Court of Australia

C2T J. / 1 /HS 1 5/9 / 89

MR D.M.J. BENNETT, QC:  May it please the Court, l aooear

with mv learned frined, MR P.E. KING, for the

appellant. <instructed bv Smallwood Cathcart)

MR B.C. OSLING!ON, QC:  Mav it please the Court, I appear with

mv learned friend, MR D.L. DAVIES, for the

respondent. (instructed bv Rowlandson & Co)

MASON CJ:  Mr Bennett.

MR BENNET!:  If the Court pleases. Your Honours, I hand up an

outline of submissions. I have provided an original

and a copy for Your Honour the Chief Justice because

such is modern technology that the photocopy is much

clearer than the original.

MASON CJ:	Than1< you.	Yes.
MR BENNETT:	If the Court pleases.	In July 1974, when

Mrs Annette Patton was dying of cancer, her sole substantial asset was her interest as ioint tenant in a ,ouse with her husband and on that date she decided to sever the ioint tenancy and leave her

half interest to her four children.	She did this bv
executing three documents:	the first was a transfer

of her half interest under the REAL PROPERTY ACT
to her brother expressed to be in consideration of
his execution of a deed of trust: the second was a
deed of trust which she and the brother thereupon
executed, under which he agreed to hold the propertv

as bare trustee for her, and the third was a wiD. 1.eavin~ her

residual of·the estat~.virtuallv al1 of w~ich was

the ~alf interest, to ~he f~ur ~hildren.

The deed of trust itself recites that the whole

purpose was to sever the ioint tenancv, and that was the whole purpose of the transaction and there ts no

doubt at all in the face of the documents of her

intention. She died five days later. At that stage

there was still an unregistered mortgage to the

State Ban~ which held the certificate of title in

support of that mortgage and the question is whether

she succeeded in effectuating her unrevo1<ed intention

of severing the ioint tenancy prior to her death.

Now, the courts below relied on three arguments

to defeat her intention, two of them by wav of ratio,

one by way of obiter. The two by way of ratio, I am

told, were not really put to the courts but were, in

both cases, adopted by them. The third, by way of

obiter, is the one that seems to have been the main

argument below. The first argument which was used to

defeat the document was the one used by

Mr Justice McT~elland.	He said, "Let us assume that
the documents were effective.	The effect was, orior

to registration, that an executed transfer, handed over,_

would create an equitable interest in the brother.

ClTl/2/HS	2	5/9/80
Corin(2)

MR BENNETT (continuing):  But, he held that equitable

interest on trust back for her, so one has a

case where land is held by A on trust for B

on trust for A. And, His Honour said, "Well,

in that situation the law elimi~ates the middle

man and, therefore, there is nothing left and,

therefore, she had not effectuated anything".

Putting that a little differently, he could not enforce the equitable interest in his favour

arising out of the execution of the documents

assuming everything else was satisfied because she

was the person it was held on trust for and he

could not have enforced it without her concurrence

or, at least, over her objection.

The second argument is closely related to that

and it was the argument that succeeded, or that was

applied against us, in the Court of Appeal. And,

that was the argument which said, "Well, accepting
the ANNING VANNING, MILROY V LORD, BRUNKER V

PERPETUAL TRUSTEE test, the question is, could she

have revoked this transaction prior to her death,

did she have the power to prevent it going through?"

The answer the Court of Appeal gave was, "Yes, of

course, she did". Because she was the ultimate

beneficiary in that capacity she could have

presumably either disclaimed or instructed her bare

trustee to disclaim or not to do what was necessary

and, therefore, she could effectively in her other

capacity have revoked the transaction. And, those

were the arguments on which we failed below and I

will be dealing with them in a few moments.

The third argument which was the principal

argument put below which both courts referred to,

although neither actually decided, although some of

the language suggests it might have been decided

against us, is the problem arising out of the

unregistered mortgage and the question is whether

the donor has done all that the donor can do to

effec.uate the transfer when the certificate of

title is with an unregistered mortgagee. That is

a more difficult question and I will be dealing with

that as well.

So, those then are the issues. My outline puts

five arguments. The first argument is the one based

on the CONVEYANCING ACT, section 96 - that is the

section which provides that a mortgagor is entitled

to require a mortgagee to produce the certificate of

title at the :Registrar-General for the purpose of

having transfers and the like registered.

C2T2/l/JH	3	5/9/89
Corin(2)

BRENNAN J: Mr Bennett, before you develop the arguments against

the a.rgurre..rits against you, what is the act or transaction, as

you would describe it, which effecced the

severance?

MR BENNETT:  The execution of the transfer and the

accompanying deed of trust and the handing of those

documents to the solicitor for the dolee.

BRENNAN J: Is that because that effected an alienation

of an interest?

MR BENNETT: It effected an alienation in equity, Your Honour.

BRENNAN J: In equity of what interest?

MR BENNETT: It effected an alienation of the equitable

interest.	Or putting it a little differently,
the whole interest was alienated in equity.	One
can put it either way.	But it was an equitable

alienation. It would not have become a legal

alienation until registration of the documents,

but the equitable alienation was sufficient, we

submit, to constitute a completed gift.

Section 96 provides that a mortgagor may

require the mortgagee to produce the certificate

of title for registration purposes. The persons

who may use it are defined as the "mortgagor".

The "mortgagor" is defined as including:

any person ..... entitled to redeem a mortgage - and there are cases saying a "donee" is a person

entitled to redeem a mortgage, ergo we submit

the donee could have required the bank to do

whatever was necessary to enable registration to

take place, ergo the donor had done all she

needed to do. That is the first argument.

The second argument relates to Mr Justice Hope's

decision in the Court of Appeal, with which the other members agreed, that the donee could have

recalled the gift and we say two things about that

first that it confuses the two capacities of the

donor. It matters not that she can recall it in

her capacity as donee.	The question is whether she
can recall it in her capacity as donor.	And secondly,

in any event, that sort of recalling, presumably

based on some principle of disclaimer, even if a

disclaimer is regarded as retrospective, as the

cases suggest it may be, could not retrospectively

avoid the severance of a joint tenancy.

C2T3/l/CM	4	5/9/89
Corin(Z)

MR BENNETT (continuing):  The third argument looks to the

severance of the joint tenancy itself and says what
acts are necessary to severe a joint tenancy and the

submission is, in accordance with a decision of a

single judge of the Family Court in South Australia,	that the acts done here were sufficient. The general
submission will be that once one accepts that a joint
tenant has the abilit~ by his own acts, to severe a
joint tenancy the Court shoulu be lenient in applying
tests to see whether - tests taken from the law of gift -
to see whether a joint tenancy has been severed.

The fourth is a related argument; it is based

on section 24 of the CONVEYANCING ACT which permits a conveyance to oneself, and the argument I will be

developing there is that prior to the CONVEYANCING ACT
there were two types of convenance; gifts and

conveyances for consideration of some type. There is

now a third type which really does not fall into either

category because it is meaningless to talk of consideratio,
in the context of a conveyance to oneself. I will be

submitting that it is inappropriate to apply the gift

rules developed in ANNING VANNING, MILROY V LORD and

so on to what is, certainly in equity, a conveyance

to oneself.

And the final argument is the one based on

the answer to Mr Justice McLelland's proposition about

A holding on trust for Bon trust for C, and we will

be submitting that one cannot invoke that principle

in the present case to prevent the severance of the

joint tenancy. That is the route I am going to take.

Starting with section 96: the first argument

accepts the test which was the test laid down by

Sir Samuel Griffith in ANNING VANNING on his

interpretation of MILROY V LORD as adopted by 1-1!" Justice Dixon ar.

Mr Justice Rich in BRUNKER V PUBLIC TRUSTEE, and that

is,summarizing it to its barest essentials, because

there is no equity to perfect an imperfect gift a

gift is not complete unless and until the donor has

done all in his power to effectuate it.

(Continued on page 6)

C2T4/l/FK	5	5/9/89
Corin(2)

MR BENNETT (continuing): Indeed, the way it was put by this

Court in COPE V KEENE is useful.	Your Honours need
not go to i~	It appears in the appeal book at
page 120.	I am sorry, not COPE V KEENE,

BRUNKER V PERPETUAL TRUSTEE COMPANY (LIMITED), at page 120 line 27.

DEANE J:	Mr Bennett, this could not be a gift, could it?
I mean, the transferee gave quid pro quo by agreeing
to hold the legal estate in trust for the transferor.

MR BENNETT: Well, we would so submit, Your Honour. We submit

that the whole analysis of"gift"is inappropriate to

this type of transaction. There is a statement in

DKLR NOMINEES, in this Court, which said that for

stamp duty purposes, where there was a conveyance to

a bare trustee on trust for oneself, that the

agreement by the trustee to hold on trust was not

sufficient consideration to avoid the gift provisions

of the stamp duties legislation. That, of course,

is a slightly purpose.

But, certainly, we submit that the gift cases arequite inappropriate.	My first argument assumes
that they were - - -

DEANE J:	They may not be irrelevant in that one's instinct
is that equity would not enforce this transaction as
against the transferor but the categorization of it
as a gift seems to be quite inappropriate.

MR BENNETT: We, respectfully agree, Your Honour. In relation

to what Your Honour puts to me about equity not

enforcing it, that involves the question of the

separate capacities of the donor. We would submit,

equity would enforce it, at the suit of the trustee,
unless the donor, in her capacity as beneficiary,
in some way objected, in which case, of course, one

has the simple situation of a bare beneficiary

instructing the bare trustee to act in accordance

with her wishes. I will come to that argument, if

I may. (Continued on page 7)

C2TS/l/DR	6	5/9/89
Corin(2)

MR BENNETT (continuing): At page 120, then, those last few

lines of the quotation, beginning at line 27:

But, if by delivery to the donee or someone

as bailee for her, the transferor has given

her property in the instrument itself -

which, clearly, is this case -

then unless some further condition is expressly
or impliedly prescribed by the statute, it

would appear that the instrument, assuming

it to be registrable, may be registered by

the transferee independently altogether of the donor and in spite of any objection on

his part.

Higher on the same page, at line 8, if Your Honours go to the last word in that line, His Honour said:

The question is whether by his acts he has

placed the intended donee in such a position

that under the statute the latter has a right

to have the transfer registered, a right which
the donor, or his executors, cannot defeat

or impair.

We submit the donor, qua donor, could not defeat

or impair the right once she had handed over these

documents. If she had gone to equity and sought

an injunction against registration she would have
failed because she had executed the two documents

and given over the transfer in consideration of

it. She might have succeeded in her other capacity

but I will come to that later.

The problem is, as I have said in 1.3 of the

submissions, it was not in the donor's power to
hand over the certificate of title because it was

in possession of the bank as mortgagee. As I have

told you, under section 96 the mortgagor could

have compelled the bank to produce it and "mortgagor" -

Your Honours need not go to the definition - it

is defined as including a person:	entitled to redeem a mortgage -
Your Honours, Halbury's Laws of England states

barely in the passage I have cited there that

a voluntary donee is entitled to redeem a mortgage.

There are two early cases cited for that proposition

and I hand those to Your Honours.

C2T6 /1 /ND	7	5/9/89
Corin(2)
MR BENNETT (continuing):	The simple	statement in

Halsbury is the following persons can redeem an

assignee of the equity of redemption including

a volunteer. And then, the two cases cited are

THORNE V THORNE and HOWARD V HARRIS.
HOWARD V HARRIS at the bottom of page 407:

Then it was insisted, that this additional jointure was voluntary, and the plaintiff

ought not to take the estate out of the

hands of a purchaser. But it was

answered, he was a purchaser for no more

than his mortgage-money; and one that

comes in by a voluntary conveyance may
redeem a mortgage.

And, the earlier case in a rather more obscure way says the same thing. So, we submit, that

here one has a - if at any time prior to death

the brother, the trustee, had gone to the mortgagee

and said, "Here I have this transfer and have

executed this deed of trust; I wish you to lodge

the certificate of title for registration of my

documents", the bank would have been obliged to do

so. There are two comments that need to be made

on that. The first is what, in fact, happened was

that that was done after death; the bank readily

agreed to produce the documents on payment of its

fees and the fees were paid. But, before the bank

could do so the respondent found out what was
happening and commenced proceedings and wrote to

the bank and demanded that it not do that and the bank then said it would hold its hand pending the

outcome of these proceedings. So, the only thing

that stopped the bank acting in accordance with,

what we say, its obligations are in any event, was

the intervention of the respondent.

McHUGH J-:  Is there not something circular though in your

argument? Does not the question whether the

transferee could have required the mortgagee to

produce the certificate of title depend upon

whether or not the gift was complete?

(Continued on page 9)

C2T7/l/JH	8	5/9/89
Corin(2)

MR BENNETT:  Yes, Your Honour, but with this qualification:

when one says that a person entitled to redeem the

mortgage may make an application, that must mean a

person whose equitable title is good but for the

existence of the mortgage. In other words, one

cannot rely on the existence of the mortgage itself

to prevent the title being good. So if our

equitable title is good in every wav, except for

the fact that we do not have the certificate of title
because the mortgagee has it, then that fact must be
ignored for the purpose of determining whether we are

a person entitled to redeem. Otherwise the section·

cannot operate. The section must assume a person

who is the owner for all purposes except those

arising out of the existence of the mortga~e and

that, we submit -

McHUGH J:  The section can operate. It is because of what you seek to do with it. Section 96 simply refers

to a mortgagor, does it not?

MR BENNETT:  Yes, a mortgagor, which is defined as including

a person entitled to redeem.

McHUGH J:  Yes. That is the question though, is it not?

MR BENNETT:  That is whaf the 17th century case savs, that

a volunteer is a person entitled redeem a mortgage.

So we say we are a volunteer, we have a perfect title

in every respect - - -

McHUGH J:  Perhaps some way in a context where there has been

an assurance under the old system title and -

MR BENNETT:  Yes, but applying it to the modern situation we

go along and say to the mortgagee, "We have a perfect

equitable title in every respect but one. That one is

because you're there. Please mav we have the

certificate produced." Now, i( our title is perfect

in every respect, except the existence of the

mortgage itself, that must ma~e us a person entitled

to redeem under the definition.

BRENNAN J:  But it is not, is it? Title to what do you

have for the&e •.... butfor the mortgage itself?

MR BENNETT:  Your Honour, it is clear, subiect to the other

arguments, that if we had been given the certificate of title under transfer, so that there is nothing to be done but registration, which we can effect, then

the donor has done all the donor can do. The gap in

what has been done is that we have not got the

certificate of title and therefore cannot get

registered. Our answer is that if the mortgagee

produces it we can get reRistered, and the mortgagee

is bound to produce it on the application of any

person entitled to redeem.

ClT8/l/HS	9	MR BENNETT, QC	5/8/89
Corin(2\

BRENNAN J:	But why are you entitled to redeem before vou become, to use the language of the early case,
one who has come in by a voluntary conveyance?
MR BENNETT:	Because, Your Honour, I hold a signed voluntary

transfer which is effective in equity sub~ect to the

mortgagee oroducing the certificate of title.

BRENNAN J:  Perhaps that takes us back to the first question.

For myself at the moment I do not see how vou can

say that it is effective in equity because the

dichotomy you draw between the two capacities

assumes, in the case of a capacity of the beneficiarv,

that the legal estate has passed upon which the

beneficial interest might be impressed.

MR BENNETT:  Yes, Your Honour. I have to succeed on that

argument to succeed on this one.	If I fail on either
I fail.

BRENNAN J:  Does not that bring you back to the circularitv

problem that Justice McHugh raised with you?

MR BENNETT:  Your Honour, what I am endeavouring to put is that

assuming I succeed on the argument based on the fact

that the donor is both beneficiary and ultimate

settlor, assuming I succeed on that argument, the

mortgage itself is not an obiection because of

section 9~ combined with the rule in the 1623 case.

That is really all I am putting at the moment.

Certainly I accept that I have to make good the

other argument to make good this one.

(Continued on page 11)

ClT8/2/HS 10 5;q;39

Corin(2)
TOOHEY J: What does the Act say, Mr Bennett, about the

position of the mortgagee producing title in the

event of a transfer?

MR BENNETT: It just says that he must do it, Your Honour.

TOOHEY J:  I mean, you have put the emphasis on the position

of the brother as coming within the definition

of "mortgagor".

MR BENNETT:	Yes, and the relevant
TOOHEY J:	But what about his position as a potential

transferee of the land?

MR BENNETT:  The definition of "mortgagor" is, it:

includes any person from time to time

deriving title to the equity of redemption

under the original mortgagor, or entitled

to redeem a mortgage, according to his estate,

interest, or right in the mortgaged property.

TOOHEY J:  Yes, I understand that but my question was directed

at the position of the brother as a potential

transferee of an interest in the land. How does

he stand vis a vis the mortgagee in requiring the

mortgage to be produced for the purposes of a

transfer, subject to that mortgage?

MR BENNETT:  In my respectful submission, he stands as a

person entitled to redeem because he is a volunteer

whose only defec~ on the hypothesis I am looking

at, is that arising out of the mortgage itself.

If one assumes that the donor never did anything,

the donor did what this donor did, remained alive

so there was no question of severance to be considered,

and simply took no further part in any transaction,

in my submission, it would have been open to
the brother to go to the bank and require

production under section 96 and to say, "Here is

my authority; here are my documents; please produce

the certificate of title.".

is what the bank was willing to do after that but And, of course, that

that perhaps does not help me all that much.

BRENNAN J:  Do you say that at the moment of death the

transferee had a beneficial interest in this property?

MR BENNETT:  Yes, Your Honour. May I just add one submission

which may strengthen this: if one looks at

section 96(2), it is only capable of operation

in a case - there will be many cases where the
mortgagor, in order to become registered, needs

to have the document produced. There is simply

no reason for confining it to the person who is

C2T9 /1 /ND	1 1	5/9/89
Corin(2)

the old mortgagor, the transferring mortgagor,

and we submit there is simply no reason why

section 96 should not operate, bearing in mind

the definition, at the suit of a transferee.

Suppose one has a transferee for value, suppose one had a purchaser for valuable consideration

from the registered proprietor who receives a transfer

and then goes to the mortgagee and says, "Now,

the original mortgagor has gone away, I want to

have my transfer registered, here is my transfer,

I am a person entitled to redeem the mortgage in

equity, please produce the documents." Surely

the bank could not say, "You are not the mortgagor

for that purpose; you are not a person entitled

to redeem because you are not registered yet."

The answer would have to be, "Well, the only thing

that is stopping you being registered is the bank

itself."

And in the same way here, the only thing on

the MILROY V LORD, ANNING VANNING, BRUNKER V PUBLIC

TRUSTEE test which stops us being registered or

perfecting our gift is registration which we

are in a position to achieve subject to the bank

producing the document and there is a circularity,
we would submit, in the bank saying, "Well, I won't
do that because you're not the mortgagor; you're
not the person entitled to redeem.", where the

only reason -we are not a person entitled to redeem

is that the bank will not produce its own document.

(Continued on page 13)

C2T9/2/ND	5/9/89
Corin(2)

MR BENNETT (continuing): So, we would submit that to give

the section effective operation in this type of case,

one should read it as extending to a person in the

position of the brother in this case. The other way of putting it is to say - and this is 1.5 - that the

transfer and trust deed operated as a request under

section 96, so that the bank was, in fact, requested

by the mortgagor by that Act and the donor had,

therefore, done all she could do by making that

implied request.

There was no doubt about her statement of

intention: it was put in writing; it was signed;

it was handed to the donee to do with it as he saw fit, and that would have been sufficient, we would

submit, for her to show the bank and have effectuated.

Now, I should, before leaving this argument, just

briefly remind Your Honours of what was said by
Mr Justice Dixon, as he then was, in BRUNKER's case,
57 CLR 555 and the passage is at

page 604.

BRENNAN J:  Mr Bennett, before you go to this, could we just

ask you: as a matter of the Titles Office practice,

would a record of death be entered on the register?

MR BENNETT:  Has it been done in this case, Your Honour?

BRENNAN J: Would it be done in the ordinary course of Titles

Office practice.

MR BENNETT:  In the ordinary course, yes, it would be done by

the surviving joint tenant. What has happened here

is that everything is held up, on both sides, pending

this litigation.

BRENNAN J:  Of course, but if there were a transfer by a

transferor and it was a voluntary transfer and death

occurs before registration - - -

MR BENNETT:	Yes.
BRENNAN J:	- - - what is the Titles Office practice?
MR BENNETT:	I do not know the answer to that, Your Honour, but,

if I may just say this: if the Titles Office were

to say, as it might well say, that if the notice of

death is registered before the transfer then, as a

matter of law, there would be a survivorship in

favour of:the surviving joint tenant, wa would say then that, in equity, the joint tenancy was severed and, therefore, the surviving joint tenant would hold

one half on trust for the donee which, ultimately,

would be the estate of the donor.

C2Tl0/l/DR	13	5/9/89
Corin(2)

TOOHEY J:  But how would the Titles Office be alerted to a death

absent a survivorship application?

MR BENNETT: It would not, Your Honour.

TOOHEY J: Well, what would prevent the registration of the

transfer - putting mortgages to one side - simply

because the transferor died between execution of the

transfer and registration?

MR BENNETT: If the transfer were registered first, subject to

the power of the Registrar-General to correct the

register under section 12, the registered death would

simply be too late because it would not be the death

of the registered proprietor. I suppose if the

surviving joint tenant went to the Registrar-General

and said, "That transfer should not have been

registered because death supervened before

registration, therefore you should revoke that

dealing and apply my notice of death." That, no

doubt, would, itself, lead to a suit which would

probably end up where this suit ended up. As a

matter of fact, yes, I do not know the answer to

Your Honour's question.

TOOHEY J:  Mr Bennett, is there any provision in the

CONVEYANCING ACT - perhaps you could tell me now

or later, that de,~ls v. i tl't the production of a

certificate of title for the purpose of registration

of a dealing, apart from section 962

MR BENNETT: Only, Your Honour, the provisions of the

REAL PROPERTY ACT, which prevent registration of a

dealing except in cases of lost certificates, where

the certificate is not produced. So, if there is a mortgage not on the title and the mortgagee has the certificate of title, then one is unable to effectuate

a transfer under the REAL PROPERTY ACT unless and

until it is produced. Section 96 says, of course,

the mortgagee has to produce it.

TOOHEY J: Yes, thank you.	(Continued on page 15)
C2Tl0/2/DR	14	5/9/89
Corin(2)

MR BENNETT:  In a sense,of course, the provision in section 96

which talks about request of the mortgagor is

really a procedural convenience. The substantive

operation of the section ought not to be fettered by an over-strict regard to the definition of the

mortgagor or person who makes the request. The real

policy of the section is a very simple one; it is

that the mortgagor can deal freely with the property

notwithstanding the existence of a mortgage so long

as the dealing is not inconsistent with the

mortgagee's rights, and, of course, the transfer

of the equity of redemption is not inconsistent

with the mortgagee's rights. So, if one goes to

the purpose of the section and its policy, it ought

not to be frustrated by an over-strict application

of the question of who can apply.

The passage in the judgement of Mr Justice Dixon,

BRUNKER's case,57 CLR 603, and this discussion is all

obiter because His Honour ultimately held that he could

decide the case without determining this question of

the effects of the mortgage on the title, but he

discussed it in a manner adverse to what I am putting

at these two pages.	On the fifth line of page 603
His Honour said this:

But, if by delivery to the donee or

someone as bailee for her, the transferor

has given her property in the instrument

itself -

which happened here -

then unless some further condition is

expressly or impliedly prescribed by the statute,

it would appear that the instrument, assuming

it to be registrable, may be registered by the

transferee independently altogether of the

donor and in spite of any objection on his

part.

Stopping there, of course, thdt is what happens

in every conveyancing transaction.	The purchaser is
giventhecertificate of title on the transfer, and there

is no way the vendor has the right to prevent the

purchaser going and obtaining registration.

Under the New Zealand legislation such a further

condition appeared to be prescribed: delivery
of the certificate of title was considered a
necessary condition of the transferee's right
to register. It does not, of course, follow
that delivery of the dertificate of title

will also be a condition under the New South Wales

REAL PROPERTY ACT. But in fact the provisions

of that Act create a position which is not so

very different -

C2Tll/1/FK	15	5/9/89
Corin(2)

And he goes on to say one must have the

certificate of title, and we do not dispute that.

He then gets to the effects o~ the mortgage, at the top of the next page, and in the fourth line on

page 604 His Honour says:

Section 96 of the CONVEYANCING ACT 1919 recognizes the existence of the practice and

provides that the mortgagor shall be entitled

to have the certificate of title lodged
by the mortgagee with the Registrar-General

to allow of the registration of any authorized

dealing. But the transferee -

This is the statement we, with respect, dispute.

But the transferee or other person taking

under such a dealing has no statutory right

directly to compel a mortgagee in possession

of the certificate ro produce it at the

Land Titles Office.

Now, His Honour does not deal with the definition of mortgagor there and it is probable that the argument

I have put on section 96 and the definition was not

put to the court in that case. We, with respect, take

issue with that sentence I have just read.

It follows that, when a mortgagee holds the

certificate of title, a ~ransferee from
the mortgagor cannot obtain registration unless

one or other of the following events occurs:

either (i.)the mortgagee must voluntarily

produce the certificate -

Here he was willing to do that, but of course, that was after death.

or (ii.)the mortgagor transferor must under

section 96 of the CONVEYANCING ACT compel him

to lodge it; or -

the Registrar-General must act, and (iiL) and (iv.)
deal with the Registrar-General.	He talks about the

difficulties of the Registrar-General doing it and

then His Honour says, eight lines from the bottom against the words "securing registration" - this is

after dealing with the Registrar-General's powers -

His Honour says:

Perhaps the most logical view is that, if an

intending donor confers upon the intended donee
property in a piece of paper containing a memorandum

of transfer in the donee's favour, completed and

executed by the donor, he has no legal title to

recall it or prevent its use by the donee for any

purpose allowed by law L1cluding registration and

no equity upon which an injunction or any other

relief administered by the Court of Chancery would

be granted.

C2Tll/2/FK	16	5/9/89
Corin(2)

MR BENNETT (continuing): Well, that we respectfully agree

with. Once we were given the transfer it was our

property. We were free to use it in any way the

law permitted. I am including attempting to

obtain registration and persuade the bank to

produce its certificate. "On this view, the

question whether the donee could divest the donor's

legal title would depend upon her practical success

in procuring production of the certificate of title

or obtaining dispensation ..... this is not the view

adopted by the New Zealand Court in SCOONES V GALVIN.

The question was not discussed in that case

whether the registrar might ..... register

the transfer without production -

but because he did not, was not.	Then His Honour
says:

In the present case, it is, I think,

unnecessary to pursue the distinction -

because "there are two" other "fatal objections" -

and they do not arise in this case. So the two other objections in that case were: one, that the transfer

was not in registrable form and the other was that

the transfer was not delivered to the donee.

McHUGH J:  Your argument depends upon Mr Smallwood being the

agent of Mr Corin. Why was he not still the agent

of the deceased and why could she not have still

recalled his instructions to register the transfer?

MR BENNETT:  Because,Your Honour, his instructions to do so were instructions on the part of Mr Corin. He gave

his instructions to the solicitor in the presence

of the deceased and with the deceased's apparent

approval. So that means that Mr Corin then held

those documents as his solicitor and not as the

deceased's solicitor. And had the deceased said

"I forbid you to transfer" he would have been

entitled and bound to say "I am sorry, I do not

hold them for you. I hold them for Mr Corin who

has told me to register them".

McHUGH J:  I did not read the judgmen~ below as making a

finding of fact to the effect that Mr Smallwood

was Mr Corin's agent.

MR BENNETT:  Your Honour I had thought they did. At page

65 in the transcript, Mr Corin said at line 30:

C2Tl2/l/CM	17	5/9/89
Corin(2)

What happened then? A. I signed them.

Q. Then what happened? A. I handed them

back to Mr Richard Smallwood.

MR KING:  Q. Have you given any instructions

to Richard Smallwood for the stamping and

registration of the transfer? A. I

instructed him at the time of the signing or

soon thereafter.

Q. To do what? A. To go ahead with the

registration, stamping and registration.

Q. You said at the time or soon thereafter,

do you mean on the same day? A.	The same day,
probably within minutes, I guess	that is the
same time.

And the finding,page 109,at the bottom of the page:

The evidence of Mr Corin and Mr Smallwood differs

as to the giving of instructions to Mr Smallwood

about what he was to do with the documents.

Mr Corin thought that Mr Smallwood had been

given express instructions to do what was
necessary to complete the transaction whilst

Mr Smallwood's evidence was that no express instructions were given to him but that he assumed - and in my opinion he would quite correctly assume - that he was to do what

was necessary to complete the transaction.

McHUGH J:	But on behalf of whom?
MR BENNETT:	It must be on behalf of Mr Corin, we would submit

The normal - - -

McHUGH J:	Re was Mrs Patton's solicitor,was he not?
MR BENNETT:	Yes, but he was also instructed to act for

Mr Corin and we would submit that bearing in mind

what the documents make clear, which was that their

intention was to carry out a transaction, bearing

in mind the transaction the deceased wished to

have effected as soon as possible, we would submit

that the clear inference is that the solicitor,

as in the normal practice, takes the documents on

behalf of the transferee. It is the transferee

who registers documents, not the transferor,

and the presumption,we would submit, giving nothing

more, is that it is given to him to act for the

transferee and causing them to be registered.

C2Tl2/2/CM	18	5/9/89
Corin(2)

MR BENNETT (continuing):  There is also, I am told, a passage

in the judgment of Mr Justice McLellan~ at the top

of page 97, where His Honour said:

Immediately upon their execution the two

documents were returned to Mr Smallwood

on the understanding, common to Mr Corin,

Mrs Patton and Mr Smallwood that he

would attend to the stamping of the

documents and the registration of the

transfer.

And then there was the will.

TOOHEY J:  You may have to read that in the context of the

earlier finding on page 95 at line 14 that the:

-

documents ... had been prepared on

Mrs Patton's instructions by her solicitor.

MR BENNETT:  Oh yes, that is clearly so, Your Honour,

that is so. But, we would, submit,

in the circumstances of this case, the

inference one would draw is that he is acting for

Mr Corin in relation to his instructions to register.

That is the first submission.

The second one can be dealt with very briefly

and that is the argument, the proposition, put by

Mr Justice Hope that the gift was not complete

because the donor could in her capacity as

beneficiary have recalled the gift presumably either

by disclaimer or by directing her trustee to

disclaim or to fail to perfect it and we simply

say that confuses the two capacities, that the test for
whether the transaction is complete cannot depend

upon the fact that in another capacity the person

could recall it. May I put this example?

McHUGH J~ But, was Mr Justice Hope saying that? Was he not

saying that it was not complete because they could

recall it?	You seem to be saying it was complete and
she had a further power of recall.

MR BENNETT:  Yes, that is at page 125, Your Honour. At the bottom of the page, His Honour says:

However it is not necessary to decide these questions -

that is the mortgage question -

for in my opinion there is a matter which on

the authorities prevented the transaction

from effecting a severance. As appears from

one of the passages in the judgment ..... no

C2Tl3/l/JH	19	5/9/89
Corin(2)

transfer of the shares having been

effected in that case, no decree to

require Medley to effect that transfer

could have been obtained in a court of

equity - Medley was the donor -

No document had been executed by Medley which would have procured a transfer of

the shares in the books of the

Louisiana Bank. In these circumstances

no interest in the shares was vested in respect of them. This point was taken up

and emphasised in BRUNKER. In order to

obtain the right described by Dixon J,

the transferee had to show that he had

acquired a right "which the deceased or

his executor could not intercept or

defeat".

We accept that.

Perhaps more importantly, in the passage

in Dixons J's judgment expressly approved
in TAYLOR the question to be decided

was ..... whether by her acts Mrs Patton had

placed Mr Corin "in such a position that

under the statute (he had) a right to have
the transfer registered, a right which
(Mrs Patton or her) executors (could) not

defeat or impair".

We accept that subject to the qualification in her

capacity as donor. Then, His Honour says:

It is apparent that Mrs Patton did not

confer any such right on Mr Corin. It was

open to Mrs Patton at any time before her

was not for valuable consideration. Had

death to recall the transaction, assuming it

Mrs Patton sought to defeat the

transaction as, for example, by having a

caveat placed on the title, there was nothing

which Mr Corin could have done to compel her

to allow the registration to take place. If

Mrs Patton had instituted proceedings for an

injunction to restrain the registration .....

Mr Corin would have had no answer.

He goes on to make it clear that is because she was the beneficiary.

C2T13/2/JH	20	5/9/89
Corin( 2)
MR BENNETT (continuing):

It was submitted for the appellants that

this was a wrong approach to the

question since Mrs Patton had not in fact

done anything to prevent registration - and I thin~ that is relevant:

Mrs Patton for reasons which may have been

entirely valid adopted a procedure which

she was advised would effect a severance

of her ioint tenancy:  what has to be

resolved is the dry· question whether in
the circumstances the procedure was

effective for that purpose. If, as clearlv

enough appears from BRUNKER and was

affirmed in TAYLOR, the relevant right
does not arise before registration if the
transferor has the right to defeat or

impair the arrangement ..... then the

procedure adopted ·by Mrs Patton was

ineffective. The transfer and the deed

of trust operated contemporaneously -

this is why it is ineffective.

The transfer is expressed to be pursuant

to the terms of the deed of trust, so that

Mrs Patton, assuming that the transfer is

to be deemed to have been handed over to

Mr Smallwood as agent for Mr Corin, was in

a position at any time before registration

to recall it. It has been submitted that

any right of recall in Mrs Patton would

arise under the rule in SAUNDERS V VAUTIER
but I do not thin~ that this was so.

Mr Corin obtained no legal or equitable

interest in the land; at best he was put

in a position to procure the registration

of the transfer, a right or power which he

might only exercise for Mrs Patton's benefit,

and which Mrs Patton might withdraw at any

time -

1e because she is the beneficiary

I should add that McLelland J did not conclude

that Mr Corin held any equitable interest

in the land. He disposed of the matter upon

an assumption that he had.

We submit that simply cannot be right, with respect.

Under section 24 of the CONVEYANCING ACT a person mav

convey to himself. That applies both to the legal

estate and to the equitable estate.

C2'!'14/l/HS	21	5/9/80
Corin(2)

McHUGH J:  Before you go on to this, would vou iust develop

your argument on this point. I did not follow w~at

you had to say about the bo~~om of page 127 and

page 128? -

MR BENNET!:  Yes. His Honour's proposition is that accepting

the test to be could the donor have recalled or at	-
least prevented the donee proceeding to perfect the transaction, his answer is, "Yes", not because of any failure by the donor to do what had to be
done, but because under the deed of trust - - -

McHUGH J:  Well, that is the point where you have lost me.

Why do you say that there was nothing that she could

do to prevent registration.	His Honour seems to
assume that she could.

MR BENNETT:  But she could because she was beneficiary,

not because she ~s donor ½a0 not done

what she needed to do.	If one had - may I iust
go back a step.	Suppose one had the simple case where

there is no mortgage and the donor signs a
transfer by way of gift and hands that, together

with a certificate of title, to the donee and dies

before lie gets to t1ie Registrar General's off ice,

there is no doubt there that she has severed the

iointure in equitv.

BRENNAN J:	Has she?
MR BENNETT:	I submit yes, Your Honour.
BRENNAN J:	Why.
MR BENNETT:	There are a number of cases which support that,

but she has not, in that situation - she could not

recall the transaction.	She has, to use
Mr Justice Dixon's words,	given the property

in, the pieces of pape~ to the donee and the donee is

entitled to do what he wishes with those pieces of

paper. That includes registering them. The donor,

therefore, has no equity to say, "I want an in_iunction

to prevent you registering those documents and

divesting me of my title".

BRENNAN J:  But the relevant question there would be, by

dealing with the piece of paper in that way, has she

alienated an interest or alienated something which is

inconsistent with the existence of the ioint tenancy?

MR BENNETT:	In equity yes, Your Honour.
BRENNAN J:	Well, leave equity aside because, as at present advised, I do not see how equity comes into it.
MR BENNETT:	May I go back one step further then? suppose for valuable consideration she sells to a Your Honour,

C2Tl4/2/HS 22 5/9/89

Corin(2) (Continued on page 22A)

purchaser and completion takes place, she receives the bank cheque and hands over the transfer of her half on the certificate of title and she dies

before the purchaser_gets to the Registrar-General's

office. Clearly there the ioint tenancv is severed

in equity. There cannot be any question of that.

(Continued on page 23)

C2Tl4/3/HS	22A	5/9/89
Corin(2)

MR BENNETT (continuing): One moves back a step to this

situation where there is no consideration. Then

one has to look to the law of gifts and the law

of gifts says , fr om these cases , that the test

is, "Has she done all within her power to effectuate

it?". So that it is only acts of the transferee

which remain for the perfection of the title.

The answer is, "Yes, she has handed over the

certificate of title, she has handed over the transfer."

McHUGH J:  But there is still the outstanding question of

the mortgage.

MR BENNETT:  I am assuming no mortgage at the moment, Your Honour. I am going to get to that. So in

that situation she passes the ANNING VANNING,

BRUNKER test, therefore the donor no longer has

any equity to restrain registration of the documents.

One can put the reason for that in a number of

ways. One can say it is because the gift is complete

as far as the donor is concerned and all that remains

is the donee~ own acts to perfect it. One can

say it is on the basis that Mr Justice Dixon put

it on, that the donee is the owner of the bits

of paper and can use the bits of paper as he sees

fit and cannot be restrained from using it in the

manner in which clearly it is intended to be used,

its only purpose if one likes.

One could put it on a number of those bases.

Whichever basis one puts it on, the result is that

there has been a severance in equity of the joint

tenancy.

McHUGH J:  I am not sure that Mr Justice Dixon would support

you. Does not his judgment, in effect, deny the

application of the MILROY V LORD situation but

say that in the position in the example you

have given that there is, in effect, a right by

the statute to seek registration when you are in

possession of the transfer?

MR BENNETT:  Your Honour, it does not really matter how the

right arises, it is a right the donor - - -
McHUGH J: It might because it might - on that hypothesis

it may mean that there is no severance until you

get registration.

MR BENNETT:  There is not a severance at law until one gets

registration.

McHUGH J:  Nor in equity. Mr Justice Dixon himself said

tha~ the donor has not done everything because

she could register it herself.	He has specifically
said that in his judgment.	I thought BRUNKER's

C2T 15 /1 /ND	23	5/9/89
Corin(2)

case, in effect, denied the application of ~ILROY

V LORD but said that there was an independent ground.

MR BENNETT:  Your Honour, the point of BRUNKER's case was

that there the donor retained through his solicitor

the relevant documents. So it was the donor who

was going to register and who retained the ability

not to register. That is why I place such emphasis

on the fact that here the inference is that it

was the donee who had control of the documents.

McHUGH J:  But if you look at page 602 after Mr Justice Dixon

cited MILROY V LORD, he said:

But, in applying that test to the present

question, care must be taken to keep in mind

what that question exactly is. It is not
whether the intending donor has divested

himself of his estate or interest in the land,

or has done all that lies in his legal power

to do so. For obviously it was within his

legal power to cause the immediate registration

of the transfer.

MR BENNETT:  Yes, and then the next sentence, Your Honour:

The question is whether by his acts he has

placed the intended donee in such a position

that under the statute the latter has a right

to have the transfer registered -

McHUGH J:  Yes, that is under the statute which is a separate

right altogether.

(Continued on page 25)

C2Tl5/2/ND	24	5/9/89
Corin(2)

MR BENNETT:	In the example I am dealing with at the moment he has that right; he has a transfer and a
certificate of title; if he goes to the
Registrar-General he has a right under the
statute - - -
McHUGH J:	I am not disputing that but what I was disputing

is that the joint tenancy was severed at the time

he gets in possession of those documents and I am

suggesting to you that perhaps the joint tenancy

is still not severed until registration takes place.

MR BENNETT:	Well, Your Honour, my submission is that once he has the statutory right to registration and once
the donor no longer has the right to interfere he has the equitable estate in the land in the same
way that a purchaser has who is given - - -
McHUGH J:	Well, he may not; what if the Registrar-General refuses in the exercise of his discretion to
register because the certificate of title is not
produced, for example?

MR BENNETT: Well, Your Honour, I was assuming he had the

certificate of title for the purpose of this

argument.

McHUGH J:	Yes.
MR BENNETT:	That is a separate hurdle I have to overcome and that is the mortgage argument but what I was
attempting to deal with at the moment was
Mr Justice Brennan's question to me as to the
simple case where a donee  receives a certificate
of title and the transfer and death occurs before
reeistration and in that case it is my submission
that the equitable estate has passed because of the application of these cases in the same way as it
would pass in a full transaction where there was
consideration.
TOOHEY J:	Why do you draw in this notion of equitable estate?
MR BENNETT:	Because, Your Honour, to severe the jointure

at law one needs a conveyance of the legal estate;

to severe the jointure in equity one needs a

conveyance of the equitable estate.

TOOHEY J:  Well, that sort of learning is no doubt

appropriate in the case of common law conveyancing.

Is it necessarily appropriate when we are dealing

with land under the Torrens system?

MR BENNETT:  Yes, Your Honour because under the REAL PROPERTY ACT

such of the doctrines of the estates in the common

law apply to land except to the extent that the

C2Tl6/l/JH	25	5/9/89
Corin(2)

statute overcomes them and there is no doubt from a series of cases, BARRY V HEIDER onwards,

that one can have equitable interests in

REAL PROPERTY ACT land. Indeed, the purpose of

the caveat system - - -

TOOHEY J:  I am not questioning that in the context in which

those cases were decided but you are dealing here

with the notion of severance in a tenancy. It may be

appropriate to talk about what is effective at law

and what is effective at equity but I am not sure

whether it is appropriate simply because of the
notion that equitable estates can be created under

the Torrens system in. the case of interests which

are quite different to the sort of situation we are

dealing with here.

MR BENNETT:  Well, Your Honour, I am going to come to the severance aspects of the case. We would submit,

for example, that if one signs a contract of sale of a half-interest in Torrens land that effects a severance in equity from the date of the contract.

BRENNAN J:  Well, no doubt about that because that creates

the equitable interest which severs it. But, where

you have got no question of a contract, no question

of a beneficial interest arising ex con tractu,

but you have got a piece of paper which is in

registrable form as a transfer and it is handed over

with intention that it should be taken by the
transferee as a gift, at the moment I do not see

why the transferor cannot say, "Give it back to me".

MR BENNETT:  Well, Your Honour, the answer is what

Mr Justice Dixon said in BRUNKER's case.

McHUGH J:	That is if you have got the piece of paper but to have an equitable interest the donee would be
entitled to get the protection of equity. Now, in
what way would equity come to the protection of the
donee in your illustrations?

(Continued on page 27)

C2Tl6/2/JH	26	5/9/89
Corin (2)

MR BENNETT:  It would treat him as the owner in equity,

Your Honour.

BRENNAN J:  Why?

MR BENNETT: Well, because there has been a gift under which

the donor has done all that he can do.

DEANE J: But, is not your real problem that equity is

simply not interested in this transaction. I mean,

say it had gone with no problems and the legal

estate had been transferred and registered and the

question was asked, "Well, now, what's happend to

the beneficial estate here?" The answer would not

be that the person who became registered as the legal

owner was also the owner in equity but he held the

ownership in equity in trust for the lady. The

answer would be, "The beneficial interest has never
moved from the lady." Well, now, if that is the

final answer, when you split it up into components

at this stage, you just cannot get the beneficial

interest moving to the person who was always intended

to receive it and hold it as trustee. It seems to

me that is the point that Mr Justice McLelland

founds on and it is the starting point rather than

the ending point of the case.

MR BENNETT:  Your Honour, the difficulty with that aspect

is this: there seems to be no doubt that if one

simply conveys to oneself that severs the joint

tenancy. So, if under section 24 of the

CONVEYANCING ACT the registered proprietor executes

a transfer to herself of her own interest,
registers it and everyone solemnly enters on the

title that she has transferred it to herself,

there is no doubt that severs the joint tenancy

at law.

BRENNAN J: But, assuming, let us say, that is because there

is a change in legal ownership which severs the

joint tenancy.

MR BENNETT:	Your Honour, with respect, uses the word "changetl. The same person is the owner before and after the
transaction. There has been a new statutory
concept, if one likes, created by the CONVEYANCING ACT, unknown to the connnon law of conveying to oneself.

BRENNAN J: But,underlying the proposition is the assumption

that you cannot convey to yourself as joint tenant

with somebody else as a single act if the conveyance

successfully transfers the legal estate.

MR BENNETT: Well, it is treated as an act and it is treated

as an act sever~. the joint tenancy. Now, one then

says, "Why can't one do the same thing in equity?

C2Tl7/l/DR	27	5/9/89
Corin(2)

If I convey the legal estate to someone else on trust

for myself or, for that matter, if I declare that I

hold my land on trust for myself,	that must sever the
jointure."

BRENNAN J:	You appreciate the problem I am raising with you?
MR BENNETT:	Oh, yes.

BRENNAN J: The point I am trying to make is: here, there never

has been a transfer in equity. If the whole transaction

went through and one a.sked, "What has happened to the

beneficial estate?", the answer would be, "It has

always remained at home with the lady."

MR BENNETT: Well, there was a punctum temporis , perhaps,

where it went to the trustee and came back to her.

BRENNAN J: Well, that is an interesting question, no doubt.

MR BENNETT: But, Your Honour, we simply put it as a logical

proposition: if a conveyance of the legal estate

to oneself severs the joint tenancy at law surely,

by analogy, a conveyance of the equitable estate

to oneself severs the jointure in equity.

(Continued on page 29)

•

C2Tl7/2/DR	28	5/9/89
Corin(2)

BRENNAN J:  What is the statutory provision which allows one to

convey the equitable state to oneself?

MR BENNETT: It is section 24 of the CONVEYANCING ACT, combined

with the definition. Section 24 says:

A person may assure property to himself,

or to himself and others.

And the definition of -

' 'Pproperty'' includes real and personal property, and

any estate or interest in any property real

or personal .... and any other right or interest.

BRENNAN J:. Does assurance cover such a transaction?

MR BENNETT:	"Assurance" includes a conveyance and a
disposition made otherwise than by will -

the definition.	So, it includes a conveyance and
disposition.

"Conveyance" includes any assignment,

appointment, lease, settlement, or other

assurance by deed of any property -

and

"Disposition" includes a conveyance, and also

an acknowledgment ..... declaration of trust,

disclaimer, release and every other assurance

of property by any instrument except a will -

So if one puts all the definitions together one obtains almost any form of purported transfer of anything to

oneself and it would include a declaration of trust

in favour of oneself. So what would have been a nonsense

at common law in the person solemly saying "I declare

. that I hold my land on trust for myself" would be

effective under a combination of the definitions

and section 24 to create a disposition of the equitable estate to oneself and that, in turn, would sever the jointure.

One of the arguments which I am going to come to

in a few minutes is that that is, in a sense, what

has been done. If one goes to some of the recent

English cases which comment on MILROY V LOID such as

RE ROSE one treats this sort of transaction, really,

as a declaration of trust or, at least, an intervening

declaration of trust.	I will take Your Honours to
RE ROSE in a moment.

BRENNAN J:	There is an old case of RAY V WILLIAMS which is in the appendix to the eleventh e·dition of Sugden on
Vendor and Purchaser which speaks of a conveyance by two joint tenants to a nominee as leaving the equitable
joint tenancy intact but I do not know whether that
affects the argument which you would put under section 24.

C2Tl8/l/PLC	29	5/9/89
Corin(2)

I presume your argument would be that section 24

cuts across that?

MR BENNETT:  Yes, it does, Your Honour. The most direct

authority we have found - there are two - is one
in Canada in RE MURDOCH AND BARRY, (1975) 64 DLR (3d)
222 which is a decision on a simple conveyance.

Your Honours see in that case the Ontario statute, like our CONVEYANCING ACT, provided:

that "a person may convey property to

or vest property in himself -

and the settlor there simply executed a deed from

herself to herself and that was held to effect a
transfer.

The transfer there was by the person concerned as executrix of an estate to herself in her personal

capacity but nevertheless it was a conveyance from

herself to herself and the court held that that was

sufficient to sever the jointure.

(Continued on page 31)

C2Tl8/2/PLC	30	5/9/89
Corin(2)

MR BENNETT (continuing):  At page 228, Mr Justice Godman

said this, and this is about a third of the way

down the page:

I now propose to deal with the submission

that Patricia Murdoch severed the joint tenancy

by her conduct. It is clear in this case
that there was no mutual agreement to sever
the joint tenancy. The question then remains

whether she could, by her unilateral conduct,

other than by an absolute alienation of her

interest to a third person, sever the joint

tenancy. In the case of PARTRICHE V POWLET,

which dealt with a joint ~nancy of personal

property, Lord Hardwicke said that: "The declaration of one of the parties that it

should be severed, is not sufficient, unless

it amounts to an actual agreement."

And there is a reference to RE WILKS and he discusses

RE WILKS. And then, at the bottom of page 229,

two-thirds of the way down:

As previously indicated, a joint tenant

can unilaterally sever the tenancy by a

conveyance to a third party. As a matter

of common sense, as well as law, it seems to me that the execution and registration

of a deed by a joint tenant conveying her

interest in joint property to herself in like

manner as she could have done to another person

and as provided bys. 42 of the CONVEYANCING

AND LAW OF PROPERTY ACT, for the purpose of

carrying out the expressed intention of

effecting a severance, should be no less

effective -

So there is that decision and the other decision

is the decision which I referred to earlier of

Justice Murray - - -

TOOHEY J: Just before we leave that decision, Mr Bennett,

presumably the transfer from a joint tenant to

herself, once registered, is effective because

the unity of title that previously existed is

destroyed, both the registered proprietors now
derive their proprietorship from different

instruments registered at different points in time.

There is not much difficulty with that proposition,

I think. How far does that get you in relation

to the present, unless you fall back on your notions

of equity?

MR BENNETT:  That is the way I fall back, Your Honours.

Equity follows the law and one just applies the

analogy in relation to equitable estates. So that,

for example, a declaration of trust against - back

C2T 19 /1 /ND	3 1	5/9/89
Corin(2)

a moment. Suppose a joint tenant executes a

declaration of trust of her half interest in favour
of a third person, clearly the jointure is severed
in equity because in equity there is no longer
unity of title. We would say the same would flow

for a declaration of trust in favour of herself.

DEANE J:	Why should equity allow severance without notice
to the other joint tenant? It is completely
contrary to what one would have thought are the
basic principals of equity that one joint tenant by unregistered documents of which the other joint
tenant has no knowledge can produce severance and
then if the other joint tenant dies bury the whole
transaction and take the advantage.
MR BENNETT:	There are two answers to that, Your Honour.

First, a severance of a joint tenancy does not

require notice to the other joint tenant. There

are numerous situations in which one can effectuate

a severance without notice. The very simple one

is, if one has one's own certificate of title for

one's own half interest, as often one has, one

could simply register a transfer of that without

the other joint tenant knowing.

DEANE J:	But then the conveyance appears on the register
and there is no problem about notice. No doubt
what you say is right about the authorities but
what is the best case that says that one joint
tenant by private documents can sever the joint tenancy without the other joint tenant ever finding
out about it?

(Continued on page 33)

C2Tl9/2/ND	32	5/9/89
Corin(2)

MR BENNETT: Certainly WILLIAMS V HENSMAN implies that;

WRIGHT V GIBBONS, perhaps, is another. Your Honour

recalls in this Court in WRIGHT V GIBBONS there were

three joint tenants, two elderly and one young, and
the two elderly ones mutually conveyed their estates
to each other and that was held to severe the joint

tenancy.

DEANE J:  And what, the conveyances were not registered and were

unknown to the other joint tenant?

MR BENNETT:  No, I think it was old system, Your Honour, so

registration would have been irrelevant. Under

old system, of course, registration is quite

irrelevant to the title, so it only arises in questions

of priority. So, with old system land one could have

a secret conveyence which would be perfectly effective

to severe the joint tenancy and the other joint tenant

would never know of it unless the purchaser chose to

register.

DEANE J: It seems extraordinarly inequitable to me.

MR BENNETT: Well, Your Honour, no, for the second reason - the

second point of my answer to Your Honour's question,

and I will have the authority in a moment, is that

there are a number of cases which say equity leans

against joint tenancy. Equity regards the concept of

joint tenancy as itself inequitable and will facilitate

any attempt by one - and the law also I suppose, when

one looks at the cases, facilitates an attempt by a

person to severe it, on the bdsis that the concept of

joint tenancy is almost a lottery, and it is one which

is contrary to normal expectations of both law and

equity.

DEANE J: Except, ~: what Mr Justice Stirling said in

CHILD V BULMER is right, and that is that you cannot

have a severance in this sort of case unless the

Act would entitle the other joint tenant to claim

severance, it is a rather strange equitable notion

that says it is all right if you keep things in a

situation where the other joint tenant never finds

out about it.

MR BENNETT:  Your Honour, that is inherent in any situation

where one does something and does not disclose it to

the joint tenant. That is inherent in :ie simple old system conveyance of one's half incerest to a

secret purchaser. The answer is that if the other

joint tenant finds out about it, it is severed both

ways from the time of the conveyance and there may

be an evidentiary problem and it may be that there

is, in a sense, an available vehicle for fraud.	But
the existence of that available vehicles for fraud
has not deterred courts from applying that rule.

C2T20/l/FK	33	5/9/89
Corin(2)

It certainly has to be part of my submission in
this case that, had the other joint tenant died during
the five days between the execution of this document

and the death, the deceased would not have obtained

his half interest.

DEANE J:	I follow the way you put it.
BRENNAN J:	Mr Bennett, there would be no risk of fraud, would

there, in the case of a conveyance by a joint tenant of his legal interest, because the instruments of

title would then be out of his possession.

MR BENNETT:  Not if it was old system, Your Honour. With old

system, if I wished to perpetrate a fraud on my

joint tenant, I could execute a conveyance to my

nominee, for valuable consideration perhaps, hand

him the documents, then he could produce them, by

collusion with me, if I died firs~ say the joint

tenancy had been severed, whereas if my joint tenant died first, by collusion with me, he could tear them

up. And that would be, under old system, totally

effective.

There is a decision which I am just having turned

up at the moment, where the court makes the general
statement that there is a reluctance in the law to
contemplate joint tenancies and that the law will

therefore - yes, I have it - it is in the judgment,

it is CRAY V WILLIS, it is the bottom of page 124,

top of page 125, the relevant passage.

(Continued on page 35)

C2T20/2/FK	34	5/9/89
Corin(2)

MR BENNETT (continuing):  The statement is, four lines

from the end of the page:

A right of survivorship is as good as a right by

descent; neither is there any thing unreasonable

or unequal in the law of jointenancy, each	having an equal chance to survive; and the
duration of all lives being uncertain if either party has an ill opinion of his own life, he
may sever the jointenancy by a deed granting
over a moiety in trust for himself; so that
survivorship can be no hardship, where either side may at pleasure prevent it.

That was as early as 1729.

DEANE J: Except that is silent about whether you must in

equity as least tell the other person whose right to

survivorship you are terminating.

HR BENNETT:  Your Honour, what I can submit is, there

is no case that I am aware	of in the whole ot the
literature on this subject	which suggests that
notice to the joint tenant	is of any relevance.

DEANE J: I think that is probably so.

MR BENNETT:  And we would submit the only real evidence is the

prevention of the type of fraud to which I am

referring and that perhaps is a risk inherent in

joint tenancy. There is one other matter to which

I should refer while dealing with this question of declarations of trust. Might I hand to Your Honours copies of a decision of the Court of Appeal in

England RE ROSE,(1952)Ch _ 499. Your Honours

recall the second aspect of MILROY V LORD, the

aspect which is referred to somewhat less,was

that in that case one of the arguments put in support

of the gift was that it could be read as a declaration

of trust and there was implied in the imperfect gift

a declaration of trust in favour of the donee and what

was said about that was ''Well there are different ways of

affectuating a gift; one is by gift; ·one is by declaration of trust

If you use the-first method, conveyance by way of gift,

you cannot, if you fail, assume an intention to use the

other method".

And that reasoning was severely cut down by the

Court of Appeal re ROSE and at page 507, the MB,Ster of the

Rolls said this:

The burden of the case presented by the Crown -

this was a stamp duty case in which the question was
whether a transfer of shares by way of gift was

complete when the documents were handed over or much

later at the date of registration and the Crown was

entitled to duty or to its tax if the transaction

C2T21/l/CM	35	5/9/89
Corin(2)

was only complete at the date of registration - The burden of the case presented by the Crown

may be briefly put as it was formulated in reply

by Mr Pennycuick. This document, he said, on the

face of it, was intended to operate and operated,

if it operated at all, as a transfer. If for

any reason it was at its date incapable of so

operating, it is not legitimate, either by

reference to the expressed intention in the

document or on well-established principles of

law, to extract from it a wholly different

transaction - that is, to make it take effect

not as a transfer but as a declaration of trust.

Now I agree that on the face of the document it was

obviously intended .... . to operate and operate

inn:nediately as a transfer - "I do hereby transfer

to the transferee" ..... It plainly was intended to operate irmnediately as a transfer of rights. To some extent at least, it is said, it could

not possibly do so. That is because it was shares in a company that

required registration.

To revert to the illustration which has

throughout been taken, if the company had declared a dividend during this interregnum, it is not open to the question that the company must have paid

that divident to the deceased.

That is because he is the legal owner of the shares.

So that vis-a-vis the company, this document did

not, and could not, operate to transfer to Mrs Rose

the right against the company to claim and receive

that divideno. Shares, Mr Pennycuick says, are

property of a peculiar character consisting, as it

is sometimes put, of a bundle of rights.

(Continued on page 37)

C2T21/2/CM	36	5/9/89
Corin(2)

MR BENNETT (continuing):  It has followed from his

argument that if such a dividend had been

paid, the deceased could, consistently

with the document to which he has set his
hand and seal, have retained that

divident, and, if he had handed it over

to his wife, it would haveen an independent

gift. I think myself that such a

conclusion is startling. Indeed, I venture

to doubt whether to anybody but a lawyer

such a conclusion would even be

comprehensible - at least without a

considerable amount of explanation. That

again is not conclusive; but I confess that

I approach a matter of this kind with a

pre-conceived notion that a conclusion that

offends common sense, so much as this

would prima facie do, ought not to be the

right conclusion.

And, it goes on to say why:

Jenkins L J carried the illustration a stage

further. He said: Suppose, on the Crown's

view, the deceased, retaining, pending

registration, full rights over these shares

..... repented of his generosity and told

the company not to register the transfer.

This is the example I was discussing before with

Mr Justice Brennan.

Supposing Mrs Rose went to the company -

with the Registrar-General -

and the directors of the company had

nevertheless said that they were willing to

register the transfer. Let it further be

supposed that the deceased proceeded to

take action to restrain the company by
injunction from registering the transfer.

If the deceased in truth retained at that

time a proprietary interest, the court

would be bound to protect it by granting
an injunction. That, indeed, was perhaps

too startling for Mr Pennycuick, for he

said that he thought the court would not

grant an injunction and that, the document

having at least operated as a gift of a
piece of paper ..... the deceased could not

be heard to claim the court's assistance so

as to restrain the company from doing that

which possession, as upon gift, of the

certificate and of this transfer, enabled

the donee to require the company to do.

C2T22/l/JH	37	5/9/89
Corin( 2)

And, that is precisely what I was putting a moment

ago.

I do not pursue these examples; but it seems

to follow from testing this matter by such

extreme cases, that the assertion that

nothing whatever passed under this deed

except the right to possess, as articles,

as physical things, two pieces of paper,

is not right. I will now go to the

case of MILROY V LORD -

he then spends some pages analysing MILROY V LORD

and at page 510, Your Honours see the last sentence

of the quotation from MILROY V LORD is the one which

I have referred to; four lines from the end of

the quotation:

If it is intended to take effect by transfer,

the court will not hold the intended transfer

to operate as a declaration of trust, for

then every imperfect instrument would be

made effectual by being converted into a

perfect trust.

Those last few sentences form the gist

of the Crown's argument and on it is founded

the broad, general proposition that if a

document is expressed as, and on the face

of it intended to operate as, a transfer,
it cannot in any respect take effect by way

of trust - so far I understand the

argument to go. In my judgment, that

statement is too broad and involves too

great a simplification of the problem;

and is not warranted by authority.	I agree
that if a man purporting to transfer

property executes documents which are not

apt to effect that purpose, the court

cannot then extract from those documents

some quite different transaction and say

that they were intended merely to operate as

a declaration of trust, which ex facie they

were not; but if a document is apt and

proper to transfer the property - is in truth
the appropriate way in which the property

must be transferred - then it does not seem

to be to follow from the statement of

Turner L J that, as a result, either during

some limited period or otherwise, a trust may

not arise, for the purpose of giving effect to
the transfer.

So, His Lordship is suggesting that where you give

the certificate of title and the transfer to the

donee prior to registration there is a trust which

arises. Whether it is a trust analogous to that in favour

of a purchaser - - -

5/9/89

·C2T22 / Zl JH	38
Corin(2)	(Continued o~ page 38A)
McHUGH J:	Well, he does not mention anything about

certificates of title. What he says in that

passage seems to be contrary to what

Mr Justice Dixon had to say in BRUNKER, is it not?

MR BENNETT:  Well, similar to what he said about the

mortgage in BRUNKER, yes, but His Honour goes on: The simplest case will, perhaps, provide

an illustration. If a man executes a

document transferring all his equitable

interest, say, in shares, that document,

operating, and intended to operate, as a

transfer, will give rise to and take effect

as a trust; for the assignor will then be

a trustee of the legal estate in the

shares for the person in whose favour he

has made an assignment of his beneficial

interest. And, for my part, I do not

think that the case of MILROY V LORD is an

authority which compels this court to hold

that in this case - where, in the terms
of Turner L J's judgment, the settlor did
everything which, according to the nature
of the property comprised in the
settlement, was necessary to be done .....
the result necessarily negatives the

conclusion that, pending registration, the

settlor was a trustee of the legal interest

for the transferee.

(Continued on page 39)

C2T22/3/JH	38A	5/9/89
Corin(2)
MR BENNETT (continuing):	He then goes on to analyse	some

other cases and say they support it.

McHUGH J:  I mean, that is contrary to ANNING VANNING, is

it not?

MR BENNETT:	I would submit not, Your Honour.
McHUGH J:	I mean, in ANNING V ANNING there was a deed executed

and it was held that no property passed, was it not?

MR BENNETT:  Your Honour, ANNING VANNING involved a large

number of different types of property and one has

to be a little careful but in ANNING VANNING the

test laid down by the Chief Justice, which has

since been accepted, was, "Has the transferor

done all that is in his power to do - all that

he needs to do - so that the transferee can, by

his own acts, perfect his title?" And if one applies

that test here, that is exactly what

Lord Justice Evershed, the Master of the Rolls,

is doing.

He is saying, "Once you have done all that

you can do, then there is an equity which arises

in the transferee".

McHUGH J:  But what Sir Samuel Griffiths said expressly was

that having executed a deed of assurance, the one

thing that was not done by the assurer in that

case was to constitute his ..... trustee.

This judgment in ROSE seems to say the contrary.

MR BENNETT:  Your Honour, the relevant property in ANNING

VANNING was not property where everything had

been done that could be done. The submission I am making is that once everything has been done

that could be done but before the legal title arises,

there is an equity. In the simple case, coming

donor hands over the certificate of title and a transfer to the donee and says, "Here you are,

back to the example I was debating with

this is a gift, go and register.", and then, while

he is going to the Registrar-General's office

repents or dies - it does not matter for this purpose -

as soon as the donee leaves his presence the donee

has an equitable interest, the equitable interest

being that of a person to whom a gift has been

made and everything has been done that could be

done. His legal interest is dependent on his own

act of registering but the donor has no right to

interfere with that process.

BRENNAN J: Mr Bennett, may there not be two arguments, one

of which is sufficient for your purposes anyhow

and that is based on the piece of paper argument.

C2T 23/1 /ND	39	5/9/89
Corin(2)

If the piece of paper is an instrument of title

and it is delivered as an effective step towards

severance - towards the creation of legal title

in the donee, may that be an act which is sufficient

per se to effect severance even though it does not per se effect alienation of a title? That

is one argument. The other seems to be based on

a proposition, as you have been putting it, that

the transferee then has all that he needs to have

for registration. As at present advised, it seems

to me there is one other thing that is necessary

and that is that the t:ansferor should remain alive,

otherwise section 93 of the REAL PROPERTY ACT comes

into force and there must be a transmission by

death followed by some other step.

MR BENNETT:  Your Honour, we would submit the short answer

to that is that what Your Honour puts about

section 93 is correct, with respect, but only in

relation to the legal estate, not in relation to

the equitable estate.

BRENNAN J:  The problem is, of course, whether an equitable

estate has arisen. That is the argument put on

in RE ROSE. But if one is looking at it simply

as a question of an equitable estate which depends

on everything being done which has to be done by

the transferor, it seems to me that there is one

other thing for the transferor to do and that is

to stay alive.

MR BENNETT:  In my respectful submission that has never been

put as something required to do for this purpose.

But if I could just go back again to the transfer

for consideration, if a joint tenant sells his

half interest, hands over a transfer and certificate

of title and dies, there is no doubt that

section 93 operates and the surviving joint tenant

is entitled to be registered as proprietor of the

legal estate. (Continued on page 41)

C2T 2312/ND	40	5/9/89
Corin(2)

MR BENNETT (continuing):  There is also no doubt that

equity will protect the purchaser and sav,

''You hold one half on trust because in equitv there

was a severance.

BRENNAN J:  I am not sure whether the first proposition 1s

right under the curious provisions of sect ion 03

of the New Soutli Wales Act which speaks of "or

otherwise". It mav be that you can get direct

registration on provin~ an equitable interest there.

MR BENNETT:  Certainly there are certain rights if one does

them, ½ut if one does not come forward in time,

I suppose, the other may occur. But that is why

one has to separate, we would respectfully submit,

the legal and the equitable consequences and none of the cases in the MILROY, ANNING, BRUNKER line, none of them, as far as I am aware, suggest that

one of the things that one has to do is to stay

alive until some perfection occurs.

BRENNAN J:  But was there a question of title by registration

in any of those cases; because here, under the

REAL PROPERTY ACT, we are concerned with title by

registration.

MR BENNETT:  There certainly was in BRUNKER and there

certainly was in relation to the mortgages in

ANNING but, of course, the specific question did

not arise because in those, as indeed in most of

the other cases which the courts have looked at in

this area, there has always been some other defect.

There are quite a number of cases which are referred

to in various places, and I can give Your Honours a

reference very briefly, but almost all of them are

cases in which either the transfer was not handed

over or tlie· transfer was not in a registrable form

or there was some other impediment of tliat type.

In many of them, for example, the transferor

expressly handed the documents over on some basis-

that they were not to be registered till death,

and there were cases of that sort.

There were all sorts of - there are cases about

the revocation of authority which is effective on
death, where you give authority to do something

and the authority is revo~ed by death, but none of

the cases that I am aware of suggest that the staying

alive is something one has to do to perfect a

transfer and, in my respectful submission, section 93

does not go so far. The proposition 2.3

in the submissions really flows from what Your Honour

Justice Deane put to me earlier in relation to the dangers of fraud and, if the contrary were so, there

would be not merely a possibility of fraud but a

possibility of using what would almost be a

legitimate device to defeat one's co-owner. This

arises out of the effect of a disclaimer.

C2T24/l/HS	41	S/0/89
Corin(2)

If one says, "The reason why this transaction

could have been recalled is that the donor, in her

capacity as ultimate beneficiary, could have

disclaimed, or called on the trustee to disclaim",

and the next step is that from cases such as

RE PARADISE MOTOR COMPANY a disclaimer is retrospective

that was a case where there was a gift of shares
where a father-in-law transferred shares to his
son-in-law, forged the son-in-law's signature on

the transfer, registered it with the companv and then some years later the son-in-law disclaimed, the court said that the original transfer was

effective because the son-in-law's signature was

unnecessary under the company's articles and so

although he had done even more than was required

to perfect it he had certainly done everything he

could do, but the son-in-law was entitled to disclaim

at any stage and his ultimate disclaimer was

retrospective when he found out about it - but

the retrospective disclaimer cannot unsever the

severance.

In other words, if there is a transfer which can

subsequently be retrospectively annulled by the act

of the donee, one cannot regard the disclaimer as

undoing any severance which has been effected.

(Continued on page 43)

C2T24/2/HS	42	5/9/89
Corin(2)

MR BENNETT (continuing): If it could, it would be open to the

donee to disclaim or not disclaim depending on who

died first. That would be certainly a moral fraud

but one which would be permitted by law. We would

submit the true answer to it is, very simply, that

in determining whether a joint tenancy has been

severed, one looks primarily at the acts of the

transferor - of the joint tenant. If his act creates

a severance,what the donor does or does not do ought

not to effect that. In the same way here, to

determine whether there has been a severance in

equity, one does not look at the subsequent conduct

of the donee, what he has achieved or failed to

achieve, one simply says, "Once the donee is

put in the position where he can achieve legal

ownership, then the severance has occurred in equity."

Now, that leads me to the third area which is

the law concerned in the severance of a joint tenancy.

I will not take Your Honours back to the well-known

passages in WILLIAMS V HENSMAN which are always cited

in this area, but I will take Your Honours briefly

to a decision of Justice Murray in

BADCOCK V BADCOCK, (1979) FLC 90-723. This was a

case where there was a wife who was a joint tenant,

and suffering from a terminal illness, executed, as

in this case, a transfer pursuant to a deed of trust
and the transfer purported to transfer her interest as

a joint tenant and the deed of trust held it back,

as in this case, for the wife.

So, the facts are almost exactly as in this case

and the husband obtained an interim injunction to
prevent registration of the documents - that is, the
surviving joint tenant, and Her Honour then heard

the matter and ultimately decided that the joint

tenancy had been effectively severed.	So the husband
failed.	At page - I am sorry, my photocopy omits the

numbers at the top, but it is the fifth page.

MASON CJ:  Page 78,897?

MR BENNETT:  No, 78,894, Your Honour. Her Honour, in the first

column in the second full paragraph: she says:

I turn now to the question of whether the

wife by the execution of the Trust Deed and

Deed of Memorandum of Transfer and by acts

subsequent to such execution has severed the

joint tenancy. If that in fact is the case, the

husband is faced with a fait accompli. The

wife in the Trust Deed, has clearly indicated

that she has no intention of disposing of her

share in the estate to an outside and by
events subsequent to the execution of the Deed

she concedes to the husband the right to retain

sole use and occupation of the house. She has

C2T25/l/DR	43	5/9/89
Corin(2)

not deprived the husband of any property not of the possession of that property. She has

sought however to destroy the jus accrescendi.

That, of course, is the same as here. Here, of

course, the trust deed specifically says, "The
reason I am doing all this is to destroy the joint

tenancy." So there is no secret about it. She

then goes to WRIGHT V GIBBONS and refers to the

passage cited in CRAY V WILLIS, which I have already

taken Your Honours to, the familiar passage in

WILLIAMS V HENSMAN and it is the first sentence of

that passage in the middle of the second column of

that page:

" ... in the first place, an act of any one

of the persons interested operating upon his

own share may create a severance as to that

share ... Each one is at liberty to dispose
of his own interest in such manner as to sever
it from the joint fund-losing, of course, at

the same time, his own right of survivorship.

(Continued on page 45)

C2T25/2/DR	44	5/9/89
Corin(2)

MR BENNETT (continuing): Then, "it says:

Here, there was no mutual agreement, nor a course of dealing as described in

WILLIAMS V HENSMAN; but in my view there

was an operation by the wife on her own

share - not a purported alienation of the

sort dealt with in PARTRICHE V POWLET

..... (by a recital in a deed referring

to personalty but not dealt with in the

body of the deed) but in the manner aking

to and going further than that described

in CRAY V WILLIS ..... namely by the

execution of a deed whereby a trustee

agrees to hold a moiety in trust on her

behalf accompanied by a Memorandum of the trustee -

in that case it does say -

followed by notice to the husband and

attempted registration of the Transfer.

In view of the provisions of the

South Australian REAL PROPERTY ACT 1886 as amended however, is any severance in

equity, assuming that this has been

accomplished by the above means,

recognised or able to be protected under

the Act, even without its registration.

It then goes through the REAL PROPERTY ACT

provisions:

gives the right to protect by caveat -

BARRY V HEIDER, references to some other cases

and then there is references to BRUNKER's case and

so on and WRIGHT V GIBBONS. Two pages from the

end, the page where, "operating upon his own

share" are the first words on the page; that must

be 78,897, in the second column, Her Honour says:	I do not however regard the severance of
the joint tenancy as being complete in
law until the registration of the transfer.
No instrument of transfer until registered
can itself be effectual to pass any
estate or interest in any land (see section 67 of the South Australian REAL
PROPERTY ACT 1886). There is of course the query as to whether the omission of the
notification of the mortgage as required by section 96 of the Act makes the
memorandum of transfer an unregistrable

C2T26/l/JH	45	5/9/89
Corin ( 2)

instrument ..... but that is an omission

which can be so easily rectified by the

wife and the Trustee and I do not regard

it as being of any substance in the matter.

And then at the bottom of the page:

Having reached the conclusion that the

joint tenancy was severed in equity by the

course of action taken by the wife, I

accordingly ordered -

the injunction be discharged and so on.	We
respectfully commend that decision to -

McHUGH J:  Well, except that the question of an effective

equitable right is just the result of an assertion

by Her Honour on page 78,895, is it not? I mean,

she gives no reasons for saying that there was

an equitable right; she just asserts it.

MR BENNETT:  Yes, she does, Your Honour. Now, we say that

where there is an attempted transfer one ought

not to be over-zealous in applying principles

concerned with whether the transaction is complete

to the question of severance. Once there is a clear

intention to severe she has done what she can do to

achieve that severance with the sole aim of

severance. That was her whole and only purpose.-

We submit that if even if one applies the

WILLIAMS V HENSMAN approach directly, this should

be regarded as a severance. And, the ultimate

submission in this part of the case is the one put

in 3.3 that if the Court considers that an effective

transfer is required to effectuate a severance,
the rule for determining its existence ought to be

more lenient than the gift rule and that is simply

because the Court should lean in favour of a joint

tenant being able to sever a joint tenancy.

McHUGH J:  Is it not in the one sense that the real question

in this case - the judgments below have

concentrated on questions as to whether or not there

had been a completed gift and so on - but, the

real question really is, whether or not the joint

tenancy has been severed, is it not?

MR BENNETT:  That is so, Your Honour; that is really what we

submit that, in a sense, the cases about gifts are

simply inappropriate. And, that is the submission I

make now in section 4 about conveyance to oneself. beyond that.

And, the argument really is just the four paragraphs

C2T26/2/JH	46	5/9/89
Corin ( 2)

MR BENNETT (continuing):  Section 24 permits a conveyance

to oneself. Prior to this provision there were

two types of conveyance, advances for consideration

and gifts. The gift rule, as I have called it, was developed to deal with the latter. It would

operate to the conscience of the vendor in the

former case to require completion so long as there

was consideration.

Section 24 creates a new third category.

It is neither for consideration nor a gift since

the concept of consideration is meaningless in

the context of a conveyance to oneself. The rationale

of the gift rule was that a person who is suffering

a loss of his property without the consideration

ought not to be compelled to complete such a

transaction unless it was clear that all the donor

had to do had been done.

Your Honours, that is referred to in an old case which I hand to Your Honours, called ATROBUS

V SMITH, 12 VES.JUN 40, at 46, and volume 33 of

the reprint. 16, at 18. This is one of the early cases before MILROY V LORD and it is referred to in some of the later cases. It is referred to

by Mr Justice Higgins in ANNING VANNING. What

is important is the rationale. At page 18, the

beginning of page 46 of the author report, half-

way down page 18 of the reprint, this passage appears

in the judgment of the Master of the Rolls,

Sir William Grant:

There have been some cases, in which

a voluntary conveyance, kept in the possession

of the party during his life, and in his

possession at the time of his death, has been

held to operate against his Will. But in

those cases there was a complete conveyance,

a transfer in law, of the property : nothing

requisite to add to the validity ..... and all

the Court was called upon to say was, that

deed, should not be a revocation of the deed

a Will, a mere voluntary act as much as the

..... But this instrument of itself was not

capable of conveying the property. It is

said to amount to a declaration of trust.
Mr Crawfurd was no otherwise a trustee than

as any man may be called so, who professes

to give proplerty by an instrument, incapable

of conveying it. He was not in form declared

a trustee: nor was that mode of doing what

he proposed in his contemplation. He meant

a gift. He says, he assigns the property.

But it was a gift, not complete. The property

was not transferred by the act. Could he

himself have been compelled to give effect

C2T27/l/ND	47	5/9/89
Corin(2)

to the gift by ma g an assignment? There

is no case, in wh ~ a party has been compelled

to perfect a gift, which in the mode of making

it he has left imperfect. There is locus -

paenitentiae, as long as it is incomplete;

and Mr Crawfurd did repent: that is, he changed

his mind upon what he thought a sufficient

motive -

et cetera. What that seems to suggest - and it

is the nearest we have got to it - is that the

reason why the court would not perfect an imperfect

gift was that a person making a gift who has not

completed it who is giving up his own property

ought to have a locus paenitentiae.

The basis then is that if one is giving up one's property voluntarily, suffering a loss of

one's property, then one should regard that person as

retaining until he has done all that he can do a

locus paenitentiae. That rationale simply does

not apply to a conveyance to oneself for the purpose

of severing a joint tenancy.

McHUGH J:  Yes, but it is all right if there has been a

severance at law but you have still got to get

out of this some form of equitable interest. You

have got to say that by reason of section 24 there
has been an equitable interest created here in

your client of a tenancy in common.

(Continued on page 49)

C2T27/2/ND	48	5/9/89
Corin(2)

MR BENNETT:  Yes, Your Honour, and what! am submitting is,

that in looking to see whether such an interest is

created, one does not even need to apply the gift

rule. Even that goes further than one needs to go.

One simply says, "Well, has he done it?", and

here is :the bit of paper signed by him saying, "I

transfer the deed of trust saying, I accept the

beneficial interest" and the transfer saying that is

the consideration for the transfer. So, he has

done it. What I am submitting is - and this submission

does not appear in any case, no one has put this

before - that really, now you can convey to yourself,

now section 24 exists, now you can severe a joint

tenancy by a completed conveyance to oneself, really,

if you sign the documents showing that that is your

intention, and hand them to someone else, we should not

apply the gift test but should apply some more lenient

test such as simply, "Have you signed the documents
and handed them over?" "Have you shown your intention

and acted out that intention?", that should be sufficient

because, why should one apply a test designed to give

a person a chance to reconsider a gift, to a situation

where a person where a person is doing something which

does not cause him the same level of loss, which

merely severes the joint tenancy, thus giving him

perhaps a countervailing advantage and disadvantage

but one which, at the time, he sees as being more of

an advantage.

Here, presumably, within five days of death, dying

of cancer, the deceased took the view that a joint

tenancy was something she did not wish to have; that

she wished to be able to determine her own course as

to where the property went.

McHUGH J:  But what equity? Who could be the plaintiff in equity

to protect this equitable interest?

MR BENNETT:  Mr Corin, the transferee.

McHUGH J:	But he is not.	He has not got any equit~ has he?
MR BENNETT:

Your Honour, we submit he has. We submit that he,

as the trustee of the trust, has the equity to enforce

that trust. It may be the only purpose of that trust

is to ensure that the deceased held the property as

tenant in common, not as a joint tenant, but he, I

would submit, as that trustee, has that equity.

And why should one say, "Just a moment, we will apply

to you the gift rule", instead of saying, for example,

"We will apply to you the conveyance rule - the

conveyance for consideration rule"? Because, if you

apply the conveyance for consideration rule, then,

quite clearly, there is an equity in his favour.

Now, as a matter of logic, of course, one would

have thought there is that consideration. As a matter

of logic, he receives the whole legal and equitable

C2T28/l/FK	49	5/9/89
Corin(2)

estate, on the basis of DKLR NOMINEES, and he

then parts instantaneously with the whole equitable

estate, back to her. One would have thought, as a

matter of logic, that is very precise consideration.

Now, DKLR says, for stamp duty purposes, that is

not consideration for the transfer. But accepting

DKLR as saying that, why should one not, for the purpose

of seeing if a joint tenancy is severed, say, "Well,

really the test ought not to be, "Has he done all he

can to perfect a gift?" the test should be, "Has he

set up a transaction in which there are other

rights and liabilities, signed the document and

handed it over?". And, it is perfectly equitable

because, as Mr Justice Deane puts to me, if the

husband were to have died on the next day, before registration, these documents would be as much an

answer to the deceased taking his interest as they are to his taking her interest. The consideration,

way, is, 111"'.1 consideration of my giving up my right of	if one likes - if one expresses the consideration this
survivorship, I destroy your right of survivorship,"
and the law says that can be done without the other
party being a party to it.

(Continued on page 51)

C2T28/2/FK	50	5/9/89
Corin(2)

MR BENNETT (continuing): Assuming that state of the law,

that that can be done by unilateral act, whv should

one then say, "We will test that unilateral act

by the law of gift", and we submit that is the ~alac-.,

in applying MILROY V LORD, and all of the gift cases,

to this type of situation. The intention is clear,

the ability to achieve it ultimately is clear, the onlv reason it is not achieved is that the law has

intervened and said, "You've failed to achieve your
intention because we are going to test it bv

reference to the gift cases" and that, in my

submission, is that it should not be done and

Justice Murray, we respectfully submit, was correct

in saying that it should not be done.

Now, the final matter I can deal witb very

briefly. That is this argument which was put by the

trial judge about the elimination of the intermediate

trustee. The argument is this: the transfer

operated as a declaration of trust - I should per~aps

add a qualification to that - or as a creation of an equitable interest aliunde, because I have not

relied on it solely as a declaration of trust, but

it created an equitable interest of some sort of

the type I have been arguing, so that from its date
the land was held by the deceased on trust for the

trustee who in turn held on t~ust for her.

Mr Justice McLelland said, "Assuming the correctness

of that argument you fail because if A who holds

on trust for D who holds on trust for C, E's interest

is merged and never comes into existence and he

referred at pages 99 to 100 to some ancient and

to some not so ancient cases where the intermediate

trustee disappears from the picture.

Just stopping there, there are, of course - if

one ignores the STATUTE OF USES which no longer

applies in New South Wales and which does not seem
to have been a factor in these cases - if one

ignores the STATUTE OF USES to A on trust for Bon

trust for C means that A has the legal estate,

that is clear. It also means that C is the beneficiarv

equity will protect. So one says with some logic ·

"Where does that leave B?" He has neither a legal

estate nor an equitable estate. He has, if one

takes it literally, an equitable estate the whole

of which he holds on trust for someone else and

therefore which is worthless and, indeed, in some of

the earlier cases it has been not necessary to join

him as a party. The cases do not go so far as to

say, "He has no interest or rights at all". What they

say is, "One can ignore him for all practical

purposes".

There are two ways we answer that argument.

The first is to say that where A and Care the same

oerson, so that you have A on trust for Bon trust

for A, if one were to apply this rule literally one

C2T29/l/HS	51	5/9/89
Corrin(2)

would have A holding on trust for A.	That would
still be sufficient to sever the iointure.	In

other words, it does not matter that B drops out.

It does not matter that you simply have A on trust

for A.	That is sufficient in equity to sever the
iointure.	That is my earliest example of, "I declare

that I hold the land on trust for myself", or,

"I hereby convey the equitable estate in my land

to myself". That severs the iointure in equity.

So it does not matter if one eliminates the middle

person.

Secondly, the principle seems to be inconsistent

with the approach taken in DKLR where it was in a

conveyance by A to Bon trust for A was not a

conveyance of two different estates but a single
conveyance of the whole legal and equitable estate

followed by a declaration of trust over the whole

of that estate back for A. Of course, there is

another asoect too, which I have not referred to in

the submissions, but that is that the two trusts

are slig~tly different. The first trust is reallv

a "trust", it is the equitable interest

held by a person who is entitled to become the

legal owner. The second is the more traditional

bare trust, so it is hard to see why there should

be the sort of merger which His Honour refers to.

(Continued on page 53)

C2T29/2/HS	52	MR BENNET'!, OC	5/9/80
Corin(2)

MR BENNETT (continuing): Finally, at 5.4, the answer is that,

in fact, it is said to be consistent with MILROY V LORD

and I have referred to RE ROSE where it was held

that an imperfect transfer may operate. What I have

said there is not quite accurate: I have said "as

a valid declaration of trust", I should have said,

"as creating a valid equitable interest". It is

not quite put as a declaration of trust. So, for

those reasons we would submit that the various

arguments which are put by way of objection to the

effectuation of the deceased's intention do not

succeed.

Her intention was absolutely clear, she stated

it, she did what she could do to effectuate it and,

in my resFectful submission, the law should be slow

to imply from the early common law doctrines some

failure of effectuation which results in, of course,

a total failure of the intention she set out to

achieve and which there is no doubt she could lawfully

have achieved and was entitled to achieve under

the law existing at the time.	May it please the
Court.

I have not taken Your Honours to the eight or nine Australian cases which are on related topics.

I can give Your Honours a conspectus of them, if

Your Honours wish. They are mainly referred to in

the judgments, they are in the list of authorities

and, really, they are all cases where there was some

defect in the documentation.	In COPE V KEENE,
118 CLR 1, for example,	the transfer was never

handed over; in PATZAK V LYTTON, (1984) WAR 353,

again the transfer was not handed over; in

FREED V TAFFEL, (1984) 2 NSWLR 322, a transfer was

handed over but the certificate of title was held

by an agent of the transferor and there was no

attempt to hand that over; in McNAB V EARLE,

(1981) 2 NSWLR 673, the transfer was not handed over

and the same applies in the Canadian case of

RE SAMMON, (1979) 94 DLR (3d) 594.

Finally, in GOLDING V HANDS, (1969) WAR 121

there was a specific instruction to the donor's

solicitor to delay registration until death.	So,
none of those cases really solved the present

problem. Although many of them contain a general

discussion of it, none appear to us to discuss it

in really helpful terms. May it please the Court.

MASON CJ: Yes, thank you, Mr Bennett. Yes, Mr Oslington.

MR OSLINGTON:	Might I hand up our submissions, Your Honours?
MASON CJ:	Thank you.

C2T30/l/DR	53	5/9/89
Corin(2)

MR OSLINGTON:  Your Honours, the question is not so much as

to whether Mrs Patton could have obtained an

injunction restraining Mr Corin from registering

the transfer; the question under MILROY V LORD and

ANNING is whether Mr Corin was in a position to have
the transfer registered. In our submission, he was

not because he did not have the certificate of

title and could not obtain possession of the

certificate of title in order to obtain registration.

Mrs Patton never needed to obtain an injunction to

restrain registration; she simply had to withhold

production of the certificate of title and, because

Mr Corin was a volunteer he was unable to compel

Mrs Patton to produce the certificate of title.

(Continued on page 55)

C2T30/2/DR	54	5/9/89
Corin(2)

MR OSLINGTON (continuing):  HOWARD V HARRIS, in our

submission, is not authority for the broad

proposition that a donee stands in the same

position of a mortgagor or is a mortgagor, as

defined in the CONVEYANCING ACT HOWARD V HARRIS,

in the passage cited by my learned friends,

assumes that the donee has come in by a voluntary

conveyance. In other words, he has some title,

pursuant to a voluntary conveyance, so as to give

him the right to redeem the mortgage. Mr Corin,

under this transaction, never came into any title

whatsoever so as to entitle him to seek redemption

of the mortgage.

Accordingly, in our submission, Mr Bennett's

first point cannot succeed.

TOOHEY J:  Mr Oslington, what are you saying was necessary

before there could be a severance? You are not
suggesting, I take it, that it was necessary for

Mr Corin to have a certificate of title physically

in his possession?

MR OSLINGTON:  No. Your Honour, we do not need to go so far

as to say that Mr Corin needed to be registered, but

if necessary we will say that, but at the very least

Mrs Patton must have done all that was in her power

in order to obtain possession of the certificate of

title. At the very least that would have been a

request persuant to section 96(2) to the mortgagee
to produce the certificate of title, but even that

had not been done before Mrs Patton died.

TOOHEY J:  Even if the evidence showed, and I do not suggest

that it went this far, but even if evidence showed

that the mortgagee was quite prepared to produce

a certificate of title, if called upon?

MR OSLINGTON:  If the mortgagee had voluntarily handed over

the certificate of title and Mrs Patton then had

given possession of that certificate of title to

Mr Corin and also Mr Corin had possession of the transfer, that may have been sufficient.

TOOHEY J: But events rather overtook the parties here which

makes it a little more difficult perhaps to

formulate precisely what it was that prevented a

severance from occurring. Or perhaps putting it

the other way, more difficult to formulate what it

was that would have brought about a severance.

MR OSLINGTON:  The events which overtook the parties,namely

Mrs Patton's death, had the effect of extinquishing

Mrs Patton's interest in the land and unless, prior

C2T31/l/CM	55	5/9/89
Corin(2)

to her death, she had successfully managed to
transfer either an equitable or legal interest in

the land, Mr Patton's interest was simply enlarged

because of the rules of survivorship.

TOOHEY J: Well that is rather following Mr Bennett down the

track of analysis in terms of the creation of legal

and equitable interests.

What about in terms of severance of

the tenancy?

MR OSLINGTON:	Your Honour, the severance was only sought achieved in this case through a transfer by
Mrs Corin of her interest in the land and the transfer of her interest in the land which she sought to
achieve was a transfer of the whole of her estate. It
was only upon successful transfer of the whole of her estate to Mr Corin could the trust in favour of her
come into existance.

TOOHEY J: Well she chose a particular means by which to sever

the tenancy and that requires, as you put it, the

transfer of what, the legal estate, the equitable

estate, the registrable estate?

(Continued on page 57)

C2T31/2/CM	56	5/9/89
Corin(2)

MR OSLINGTON:  No, she chose to transfer the whole of her

estate to Mr Corin and simultaneously with that

transfer taking effect she then intended to

acquire an equitable interest. But she was unable

to acquire an equitable interest unless and until

the transfer to Mr Corin was effected.

Mc HUGH J:  But you ass imi late, in a case where there is

an absence of consideration, the law of severance

with the law of gifts or declarations of trust?

MR OSLINGTON:  The gift law is simply brought into play in

this case because of the manner in which

Mrs Patton chose to attempt to effect a severance.

McHUGH J: One matter I am not sure about at the moment is

whether or not there may be a third category where

although there is neither a declaration of trust

nor a gift within the meaning of the authority

nevertheless there may be a severance in equity.

MR OSLINGTON:  In the absence of a declaration of trust or

a gift?

McHUGH J:	Yes.
MR OSLINGTON:	There clearly can be, Your Honour, by a sale

of an interest to a third party.

McHUGH J:  I see. Leaving aside the question of consideration.

MR OSLINGTON:	Yes.
TOOHEY J:	Say she had decided to adopt a different approach

and simply transferred the land to hers e 1 f, that is

transferred her undivided ·interest in the land to herself,

at what point do you suggest she would have had

to go for there to be a severance of the joint

tenancy?

MR OSLINGTON:  The Canadian case of MURDOCH would support

a conclusion that severance is achieved upon
registration of the transfer.	MURDOC~ referred

to by my learned friend, does not really consider
whether or not severance had or was capable of

occurring prior to registration because

registration had occurred in that case and

Their Honours, in that case, concluded that a severance had taken place upon registration.

We would submit that if she had chosen to

use section 24 and make an assurance or conveyance

to herself that the severance would not take place

until such time as the conveyance was registered

because up until that time she would be able to

withdraw from the transaction and there would no

C2T32/1 /ND	57
Corin(2)

one, in our submission, who would be entitled to

compel her to complete that transaction.

TOOHEY J:  But, in that situation, what is it that makes

her capacity to withdraw in some way the yardstick

by which to measure whether there had been a severance

with the tenancy?

MR OSLINGTON:  I am corning back to the gift rules,

Your Honour.

TOOHEY J:  That is what I felt.

MR OSLINGTON: It is because of the gift rules that her right

to withdraw affects her ability to sever the

tenancy.

TOOHEY J:  But if you seek to apply that in the context of

someone who executes a transfer for himself or

herself, you are not really talking about a gift,

are you?

MR OSLINGTON:  There cannot be any real consideration for

such a transfer so it is analogous to a gift in

that there is no consideration given for the

conveyance.

TOOHEY J:  Yes, but that may simply be because it is the

very nature of the transaction that there is no

consideration not because it is a gift or perhaps

even analogous to a gift.

MR OSLINGTON: It is analogous to a transaction involving

a gift because it is a transaction which the donor

is unable to enforce.

BRENNAN J: Is it a problem of enforcement of a transaction.

The real relevance of the gift cases is to determine

whether or not there has been an alienation of

property, is it not?

MR OSLINGTON:	Yes, Your Honour.
BRENNAN J:	The first step is, "Is it necesssary for a

severance that there be an alienation of property,

absent any course of conduct or agreement between

the parties?"

MR OSLINGTON:  Yes.

BRENNAN J: If there has to be an alienation of property,

then what constitutes a alienation? You might

look at the gift cases to see whether or not, given
the situations that exist there, there was or was
not an alienation of property and the question
here is whether or not the delivery of an instrument

of transfer in registrable form amounts to an

alienation of property.

C2T32/2/ND	58
Corin(2)

MR OSLINGTON:  In answer to Your Honour's first question, we

submit that there must at least be an alienation

of property to sever the joint tenancy, and when

one comes to look at this particular case, our

submission is there has been no alienation of

property; there has certainly been an intention

conveyed by the transfer and the trust which were

executed, an intention conveyed by Mrs Patton to

alienate a property, but no property was actually

alientated. It really does come back to the gift rules,

in our submission, because of the nature of the

transaction Mrs Patton entered into, because the

alienation of the property was not the creation of
the trust in her favour, which would have severed
the joint tenancy, the alienation was the transfer

of the whole of her interest in the land to the

trustee. So the inquiry is whether Mrs Corin

effectively alienated the whole or any part of her

interest in the land to Mr Corin.

McHUGH J: Well, supposing she wanted to transfer it to herself

and she lodged the transfer and died before

registration, would equity have anything to say as to

whether or not there had been a severance of the

joint tenancy?

MR OSLINGTON: If she lodged the transfer together with the

certificate of title.

McHUGH J:	But this is a case where she is transferring to
herself.

MR OSLINGTON:  Yes. Under the REAL PROPERTY ACT she still would

be required to lodge the certificate of title -

McHUGH J:	I am assuming she has done everything.
MR OSLINGTON:	- - - with the transfer.

HcHUGH J: Except there has been no registration.

NR OSLINGTON:  Yes. In that case, which does not arise here,

I hasten to add, but, in our submission, no, she

would not have effected a severance because it

would have been within her power to go along to

the Registrar-General and withdraw that lodgement

so as to prevent registration. The point we are

seeking to make, Your Honour, is that that is not

the case here.

McHUGH J:  I follow your point, yes.

BRENNAN J: In that case, if she had not gone along to the Registrar-General before death, but she had died before registration, what would the Registrar-General

do?

C2T33/l/FK	59	5/9/89
Corin(2)

MR OSLINGTON: Certainly if the Registrar-General did not have

notice of the death, he would simply go along and

register.

BRENNAN J: That would be in ignorance.

MR OSLINGTON: That would be ignorance.

BRENNAN J:	Yes.
MR OSLINGTON:	I am not sure what the Registrar-Generals

practice would be if he had knowledge of death between

lodgement and registration. In our sucmission, in

that case, the surviving joint tenant, because of the
absence of registration before death, would be

entitled to sucessfully oppose the registration of

the transfer, and that is consistent with the answer

I gave to His Honour Mr Justice McHugh, namely, in

those circumstances, severance does not take place

until registration is effected.

Your Honour, we would further submit that it

cannot be conclude~ on the evidence in this case,

that Mr Smallwood was ever the solicitor or agent for

Mr Corin, and that in so far as Mr Corin gave

Mr Smallwood any instructions or participated in the transaction, he should be properly treated as acting

as the agent for Mrs Patton at all times. The evidence

relevant to that, Your Honours, is at page 65, line 33,

to the bottom of the page, Mr Bennett referred Your Honour

to that page. Page 67 at about line 10 where

Mr Corin was asked:

(Continued on page 61)

C2T33/2/FK	60	5/9/89
Corin(2)

MR OSLINGTON (continuing):

Do you remember anything that was said

concerning the documents at about that

time of signature? A. Only that I

requested Mr Smallwood to carry out

whatever was required with those

documents, especially in regard to the

deed.

Q.	Your sister didn't ask him to do
anything abut that? A.	My sister was

basically more interested in the terms,

or having the will signed, making sure

that was signed and having that

registered, or whatever they do with

that, and making certain that - that other

document which I had to be involved with

that they were prepared so that her will

would be capable of being carried out.

In our submission, that makes it tolerably plain that Mr Corin was really acting as Mrs Patton's

agent. My learned friend has referred Your Honours

to the passages in Mr Justice McLelland's judgment

appearing at pages 95 and 97 of the appeal book and

in the judgment of His Honour Mr Justice Hope at

pages 109 and 110. Accordingly, in our submission,

apart from not having the certificate of title and

not having the ability to obtain the certificate of

title, Mr Corin never had possession of the transfer.

The physical possession of the transfer remained with

Mr Smallwood and that possession, in our submission,

was not on behalf of Mr Corin but on behalf of

Mrs Patton which would be a further reason why

Mr Corin would be unable to obtain registration of the transfer in his favour.

TOOHEY J:  You say, "Not being able to get the title",

Mr Oslington, and that carries. with it the

notion that somehow it was quite beyond the

capacity of Mr Corin to gain access to the title.

What are you really saying in this situation; that

there was no provision in the REAL PROPERTY ACT
by which the bank could be required to produce the
title or that on the facts the bank was not going

to produce the title or what?

MR OSLINGTON:  Mr Corin could not compel the bank to

produce the certificate of title.

TOOHEY J:	But if the bank was quite happy to produce it?
MR OSLINGTON:	If the bank volunteered it, hecmildobtain it.

Mr Co~in could not compel Mrs Patton to make an

application to the bank under section 96(2) to

C2T34/l/JH	61	5/9/89
Corin(2)

produce the certificate of title. On the other

hand, if Mrs Patton was willing to do so and did so,

she could ask the bank to produce it. The bank

having produced it to Mrs Patton, it would then be

a matter for Mrs Patton as to whether or not she

would hand it over to Mr Corin.

TOOHEY J:  I am just not sure what sort of a stumbling block,

if any, it represents in the circumstances of this

case.

MR OSLINGTON:  Well, the stumbling block is this, Your Honour,

that equity will not assist a volunteer and that

there is nothing Mr Corin could have done other
than through voluntary acts of others, Mrs Patton

or the bank, to obtain registration pursuant to the

transfer.

TOOHEY J:  Well, you could have asked the bank to produce

it. Is there any reason why the bank would not

have produced the title in those circumstances?	On
registration of the transfer the transferee would
become also liable by reason of registration of the transfer to the covenants in the mortgage but -

MR OSLINGTON:  There would probably be every reason why the

bank would not produce the certificate of title

to Mr Corin. The bank had no legal obligation to do

so and Mr Corin was not a registered proprietor of

the land at that point in time nor was he a

mortgagor. On the other hand, under section 96(2),

the bank could not resist production of the

certificate of title to Mrs Patton provided the

terms of the mortgage were such as to define

"mortgagor" as including any number of mortgagors

separately as well as jointly as Mr Patton was also

a mortgagor.

McHUGH J":  It seems rather odd to be talking about "equity

will not assist volunteers" when, in effect, it is

Mrs Patton who wants this registration so that she

can get the beneficial ownership even though

Mr Corin will have the legal ownership. This seems

to indicate to my mind that we are in a wrong frame

of discourse somehow or other here.

(Continued on page 63)

C2T34/2/JH	62	5/9/89
Corin(2)

MR OSLINGTON:  Not necessarily so, Your Honour, with respect.

Mrs Patton was seeking to achieve that result without

notice to Mr Patton. Both parties ori~inally had the

mutual expectation that when the land was purchased

they would take	by survivorship upon the death
of the first.	As a matter of principle, what

Mrs Patton was seeking to achieve was, on one view - and this is maybe where the statute of frauds could be applicable - is to do something which, if

Mr Patton first died, she need not necessarily

ever disclose a transfer of this kind whereas she

can take the benefit of survivorship. On the other

hand, if she first dies, her executors or heirs or

relations would be able to deprive Mr Patton of the

right to survivorship. That, in our submission, is

a competing equity which should be considered and

Mrs Patton did seek to achieve her object of

severance through a particular way against the

statutory background of the REAL PROPERTY ACT

and the CONVEYANCING ACT and the question simply

is not whether it would be a fair thing whether

she should be able to achieve her intention but
whether, in accordance with the relevant statutes
and the relevant principles of law, she has, in
fact, achieved her intention and she sought to
achieve her intention by conveying the whole of the

estate to Mr Corin which did not occur prior to her

death.

On Mr Bennett's point of the ability to the

donor to recall and that a disclaimer can be

retrospective, my learned friend referred to the

PARADISE MOTOR's case but that, in our submission,

assumes that there is something to disclaim. In

other words, there has been some assurance, some

effective assurance or conveyance which can

subsequently be disclaimed so it really begs the

question. If our submissions are thus far right,

there simply is nothing which is capable of being

disclaimed because there has been no conveyance or

disposition of the property.	I apologize,
Your Honour, I notice the time.

MASON CJ:  No need to apologize, Mr Oslington. We will

adjourn until 2. 15 pm.

AT 12.48 PM LUNCHEON ADJOURNMENT

C2T35/1/SH	63
Corin(2)
UPON R:t:SUMING AT 2.15 PH:
MASON CJ: Yes, Mr Oslington.
MR OSLINGTON:	Might I address the question Your Honours

as to why the gift rules should apply in this case.

The law recognizes only three ways in which a

severance of a joint tenancy can take place and

that is by mutual agreement or a course of dealing,

evidencing a connnon intention or an effective

alienation. Effective alienation is the only ground

upon which it is suggested the joint tenancy in this

case was severed. Unless the gift rules are

applied there would then remain uncertainty as to

what needs to be done to effectively alienate so

as to sever the joint tenancy.

That problem in fact was recognized in England and an amendment was made to the law of the

PROPERTY ACT permitting a severance to take place upon one joint tenant giving notice to the co-tenant

of his intention to sever the joint tenancy. But

that required statutory reform to give effect to

such a rule. If anything short of the application

of the gift rules was to apply in determining whether

there had been an effective alienation, one then

necessarily asks the question, is it sufficient for

the co-tenant simply to express an intention to

sever or need the further step be taken of preparing

a transfer or executing a transfer or, if the

certificate of title is necessary to register that

transfer, to produce the certificate of title and give

possession of that to the assignee for the purpose

of registration?

In our submission, it is difficult to formulate

any rule of certainty other than the gift rule as

formulated in MILROY V LORD.

McHUGH J: What about BADCOCK V BADCOCK, do you say it is

wrongly decided?

MR OSLINGTON:  That is wrongly decided with respect, Your Honour.

BADCOCK V BADCOCK - Her Honour did not really address

the question of whether there had been an effective

alienation or not. She assumed, for the purpose of

her judgment, that there had been an effective

alienation.

C2T36/1/CM	64	5/9/89
Corin(2)

MR OSLINGTON (continuing): That uncertainty would lead to

problems on the death of one co-tenant prima facie

on the death of a co-tenant where there has been a

joint tenancy, the surviving tenant's interest is

enlarged and he is entitled to be registered as

proprietor of the fee simple of the whole of the

estate. If anything short of the gift rules was to

be said to amount to sufficient alienation, that

would lead to fairly horrendous problems in a number

of cases upon death of a tenant, particularly if
the co-tenant did not have any notice of an alienation

by the deceased joint tenant falling short of

satisfying the gift rules.

TOOHEY J: What was the gift in the present case, Mr Oslington?

MR OSLINGTON:  The gift in the present case was a gift of the

whole of Mrs Patton's estate to Mr Corin. The

subsequent resulting trust in favour of Mrs Patton

was purely incidental but, in our submission,

really had nothing to do with the severance of the

joint tenancy. To determine what estate was

conveyed one must go to the terms of the instrument
itself and the intention is derived from the terms

of that instrument. In this case, the instrument is

the transfer which is at page 36 and at line 10,

that which was to be conveyed was:

her estate and interest as joint tenant.

In other words, she is conveying the whole of her estate and interests as joint tenant.

TOOHEY J:  What is there in the transfer, if anything, that

identifies a gift?

(Continues on page 66)

C2T37/l/DR	65	5/9/89
Corin ( 2)

MR OSLINGTON:  There is no consideration expressed in the

transfer, Your Honour.

TOOHEY J:	Well, there is, is tl-iere not? In words there is.
MR OSLINGTON:	In words there is, Your Honour, but in accorda~c~

with authority that is not a consideration such as

to exclude the assignment as being a gift.

TOOHEY J~ It is a curious form of gift though, is it not?

"I transfer my interest in the land to you to liold

on trust for me".

MR OSLINGTON:  The form is, in fact, taken from BADCOCK,

Your Honour, as is the trust instrument. There is
a reasonable inference that the draftsman had the
decision in BADCOCK before him and simply effective!v

copied the terms of the transfer and the trust

from BADCOCK. But when one turns to the deed of trust,

which is at page 32, at line 20 in paragraph 3: The beneficiary has contemporaneously

herewith executed a form of Transfer

of her estate in interest in the said

property to the Trustee to hold as

tenants in common with the said

Ronald John Patton.

Such Transfer as aforesaid is made to

the Trustee for the -

I think possibly the word "benefit" has been

omitted there, although the word "benefit" does not

appear in the trust deed as set out in BADCOCK -

Such Transfer as aforesaid is made to the

Trustee for the beneficiary and the declaration of Trust hereinafter contained.

Then on page 33:	The Trustee HEREBY DECLARES that subiect to
the provisions contained herein he holds an interest as tenants in common with the said
Ronald John Patton in the said property
UPON TRUST for the beneficiary.

So, in our submission, it is only after the trustee obtains the whole of Mrs Patton's interest in the land is the trust then created.

C2T38/!/HS	66	5/9/89
Corin(2)

MR DSLINGTON·(continuing): And that, in our submission, is

consistent with what was said in DKLR, that is

DKLR HOLDING (NO 2) PTY LIMITED V COMMISSIONER

OF STAMP DUTIES (NSW), (1982) 149 CLR 431. The

relevant facts are properly set out in the then

Chief Justice's judgment at page 435, about

point 7 on the page. His Honour said:

The questions at issue in this case are whether

the appellant, DKLR Holding Co (No 2) Pty

Ltd is liable to the payment of ad valorem

duty on either or both of two instruments,
dated 1 June 1976, viz a memorandum of transfer

of certain land from 29 Macquarie (No 14)

Pty Ltd to DKLR and a deed poll by which

DKLR declared that it would hold the land

on trust for 29 Macquarie.

And then, at page 442, His Honour said, at

about point 1:

The property comprised in the declaration

of trust was the entire property in the land

in question. Before the transfer was

executed 29 Macquarie was the legal owner

of the land; it had the whole right of

property in the land, but had no separate equitable estate in it, for its equitable

estate was absorbed in the legal estate.

Assuming, as we must, for the purpose of
the case, that there was an effective transfer
of the fee simple to DKLR, the latter company

then became obliged to hold the land for the

benefit of 29 Macquarie. However, the property

as to which the trust was declared - the

property comprised in the declaration - was

the whole right of property in the land, and

not the bare legal estate, for it was not

until the declaration of trust became

operative that any separate equitable estate

was created. 29 Macquarie did not transfer

to DKLR the bare legal estate; indeed it

could not declare itself a trustee for itself,

and then transfer the bare legal estate to

another.

(Continued on page 68)

C2T39/l/ND	67
Corin(2)

DEANE J:  I do not understand that. Why cannot you

transfer the bare legal estate? That is basic

equity that it can, surely.

MR OSLINGTON:	Because, in our submission, His Honour the Chief Justice had in mind the terms of the
instruments pursuant to which the transaction was
to take place and the transfer transferred the
whole of the fee simple to the trustee.
DEANE J:	Well, I can understand if His Honour is talking
about the terms of the instruments; he does not
seem to be there.
MR OSLINGTON:	Your Honour, in so far as His Honour says:

It could not declare itself a trustee

for itself -

in our submission,that is correct because there

simply would not be a trust. The same person would

hold the whole of the estate, the legal and

equitable interest.

DEANE J:  But His Honour seems to be saying that it could

not transfer the bare legal estate to another

retaining the beneficial interest.

MR OSLINGTON:  No, His Honour is saying that it could not

do it in this way, namely:

declare itself a trustee for itself, and

then transfer the bare legal estate to

another.

I do not read His Honour as saying that it would not

have been possible to transfer the bare legal

estate but a transfer of the qare legal estate was

not the intention in that case nor was it the

intention in this case.	Mr Justice Toohey, at
page 463 - I am sorry, I withdraw that;

Mr Justice Aickin.

TOOHEY J:	I accept the compliment, Mr Oslington.
MR OSLINGTON:	I apologize, Your Honour.
McHUGH J:	That was in dissent, was i-t not?

C2T40/l/JH	68	5/9/89
Corin(2)

MR OSLINGTOtT:	Mr Justice Aikin at page 463 said something to the same effect. at about point 7, His
Honour says:

If one person has both the legal estate and the

entire beneficial interest in the land he

holds an entire and unqualified legal interest

and not two separate interests, one legal and

the other equitable. If he first holds the

legal estate upon trust for some other person

and thereafter that other person transfers to

him the entire equitable interest, then again
the first-named person does not hold two

separate interests, one the legal and the

other the equitable estate; he holds a single

entire interest - he is the absolute owner of

an estate in fee simple in the land. The

equitable interest merges into the legal estate
to comprise a single absolute interest in the

land. If is a fundamental principle of both the

common law and of equity that the holder of an

estate in fee simple cannot be a trustee of

that fee simple for himself for what he holds

is a single estate, being the largest estate

in land known to the law.

Then at page 464 in the second paragraph:

It is true that the common intention of both parties to the transfer was that no

beneficial interest should be held by D.K.L.R.

That fact excludes any possibility of rebutting

the ordinary inference that a resulting trust

arose in favour of the transferor 29 Macquarie

but it does not deny that what was transferred

was the entire interest in the land. It is

of the nature of a resulting trust that it

arises when the entire interest is vested in

the transferee and at the very moment it

becomes so vested.

McHUGH J:  Mr Oslington, does the provisions of section 24

and similar legislation in other places affect

the proposition set out on page 463?

MR OSLINGTON:  With respect not, Your Honour. Your Honour has

in mind that part of the passage where His Honour

says:

the holder of an estate in fee simple cannot be a trustee of that fee simple for himself.

No, it does not, with respect, Your Honour, because of

the reasons given by His Honour Mr Justice Aickin

namely, what that person holds is a single estate,

being the largest estate known in land to the law.

C2T41/l/CM	69	5/9/89
Corin(2)

And if there are two separate estates there is

one legal estate and one equitable estate under the trust. S,-:,

Your Honours, the nature of the transactions

in this case are basically the same as those which

were considered in DKLR and what was sought

to be transferred or assured by Mrs Patton was

her entire interest in the land and for the reasons

we have already submitted, the gift rules should

apply and applying those rules the transfer or the
arrangement did not affect an alienation.

I should have given Your Honours earlier a

reference to the provision in the	UK law of
the PROPERTY ACT.	It is set out in a decision which

I think is on Mr Bennett's lis~ RE DRAPER's

CONVEYANCE, <19fi9~ 1 Ch 486,and the statutory provision

is set out at page 487, t~e effect of it being,

as I have said, that by statute a co-tenant could

sever the joint tenancy by a statement of intention

conveyed to the co-tenant.

Those are our submissions,if Your Honour pleases.

(Continued on page 71)

C2T41/2/CM	70	5/9/89
Corin(2)

MASON CJ:	Yes, Mr Bennett.
MR BENNETT:	If Your Honours please. Your Honour Mr Justice Brenna~

asked my learned friend what the practice of the

Registrar-General was. We have had a look at

Baalman and Wells, "Land Titles Office Practice" and

photocopied the relevant pages which I hand	to
Your Honours.

MASON CJ:	Thank you.
MR BENNETT:	In relation to it, on the third of the pages I have provided to Your Honours, in the second-last
full paragraph on the page, that is page 221,
Your Honours see that the learned author says:

In cases other than those abovementioned, the

death of a party to an instrument after
execution will not prevent registration of

the instrument in his name.

That seems to relate to the death of a transferee

rather than a transferor. Then, over on page 453,

he deals with section 93. Section 93, under the

heading, "Who May Apply" says:

By virtue of s. 93, upon the death of the

registered proprietor ..... the "executor -

et cetera -

or otherwise" may make an application in the
approved form to be registered as proprietor.

The words "or otherwise" extend the class of

competent applicants as the view is taken that,

provided the person recorded as registered

proprietor is dead and provided further that

there is some claimant clearly entitled to the

particular estate or interest, the machinery of

s. 93 is available to that claimant -

irrespective of whether that claim arose upon

the death of the registered proprietor or quite

independently of that event.

He says that while you cannot describe "all the

circumstances", he sets out a number of them. On

the following page, the third item at point 5 on
the page, he says:

The third class of applicant is one whose claim rests on circumstances tending to raise a

presumption that the deceased registered
proprietor held as "trustee" for him - giving

the word "trustee" its loosest connotation.

Thus, applications will be accepted from

persons who have purchased from a registered

proprietor in cases where the latter died

C2T42/l/DR 71 5/9/89

Corin(2) (Continued on page 71A)

without passing title and there is no

personal representative available -

et cetera -

The success of such an application depends upon

the applicant's ability to convince the

Registrar-General that the contract was in

fact completed by payment of the full purchase

price, so that he has become beneficially

entitled and the land could not be regarded,

other than nominally, as an asset in the estate -

and so on.

(Continued on page 72)

C2T42/2/DR	71A	5/9/89
Corin(2)

MR Bf.NNETT ( continuing):  So, in the present case, we

submit that it would have been open to Mr Corin

to ma~e such an application. Whether it would have

succceeded of course, Baalman and Wells are silent

about.

BRENNAN J:  That raises a most fascinating oroblem, Mr Benne~t,

because if you were to achieve registration under

section 93 it would be otherwise than by

registration of the transfer and so the transfer

is not the relevant instrument of title. In fact,

it would be the death of the registered proprietor

which opens the way to his achieving registration.

MR BENNETT:  Yes, that is so, but the argument to the

Registrar-General, of course, would be the same
argument I am putting to Your Honours in this case.
It would be, "I am the person entitled in equity
to registration. Therefore in equity severance of

the ~oint tenancy too~ place. Therefore you should

prefer me to the survivorship applicant", and really

he would have to decide	the question Yo 1 1r Honours
have to decide.

BRENNAN J:  It is the "angels on tl-ie head of a needle" kind of

argument that obviously would not be - until she died, he would have no title under section 93.

MR BENNETT: That is so, Your Honour. Secondly, my learned

friend referred to the question of whose solicitor

Mr Smallwood was. The evidence is in a verv smal~

compass and, at risk of being repetitive, because

it is an issue of importance, I would ~ust like to

remind Your Honours of the three or four relevant

answers because this does go to a key issue in the

case. The central answer upon which I rely is that
on page 67, line 10, wl-iich my learned friend read to

Your Honours, where Mr Corin was asked:

Do you remember anything that was said

concerning the documents at about that time of signature? A. Only that I	requested Mr Smallwood to carry out
whatever was required with those
documents, especially in regard to
the deed.

(Continued on page 73)

C2TLd /1 /HS 72 MR BENNETT, QC 5/9/80

orin(2)

MR BENNETT (continuing): If that answer is accepted, that is

the end of the matter. The next answer, which my

friend treats as qualifying it, was this:

Q. Your sister didn't ask him to do anything

about that?

A. My sister was basically more interested in

the terms, or having the will signed, making

sure that was signed and having that

registered, or whatever they do with that, and

making certain that - that other document which

I had to be involved with that they were

prepared so that her will would be capable of

being carried out.

So he regards the transfer deed of trust as a document he had to d:ci. with, and that fits in with his previous

answer, that he requested Mr Smallwood to do it.

Mr Smallwood's evidence can be summarized by saying

he does not remember the specific conversation, but he

took an inference from it. That appears at page 70,

line 25, where he was asked by my learned frien4 Mr Davie:

Q. Were you given instructions then by

Mrs Patton?

And the answer is:

Well, what happened was that I then explained

to both Mr Corin and Mrs Patton what had to

be done ..... they listened to me and after

that advice was given I don't recall any

express instruction to the extent "You go and

do that" -

so it may or may not have been said -

it was just assumed by me I was then to do

what I had instructed that had to be done.

And clearly what had to be done was to procure
registration of the transfer.	Now we had to that

answer the fact that, as a matter or normal conveyancing

practice, it is the transferee, not the transferor

whose solicitor attends to registration, and when

one adds that practice to the absence of conversation,

my submission is it is Mr Corin for whom he is acting
when he goes ahead in relation to registration, and it

is as Mr Corin's agent that he received the documents.

If one accepts Mr Corin's evidence, of course, it is

more specific on that subject, bearing in mind that

Mr Smallwood's recollection does not seem to be as

precise.

C2T44/l/FK	73	5/9/89
Corin(2)

MR BENNETT (continuing): The third matter is my learned

friend made a submission in answer to a question

by Your Honour Mr Justice Toohey about the

position of the bank and my learned friend said -

as I recorded him, subject to my having done so

wrongly - that probably there would have been no

reason why the bank should provide the certificate

of title for Mr Corin. The answer to that, of

course, is that we know, in fact, that what happened

after death is that the bank was prepared to do

that until there was a challenge. And up to the

moment of the challenge the bank's position was -

I will take Your Honours to the correspondence.

My friend says that is not right.

The correspondence is set out in the appeal to the bank manager and say:

book. At page 49 my instructing solicitors write

We act on behalf of the Executor .....

Prior to Mrs Patton's death, she executed

a Transfer .....

The effect of this was to sever the joint

tenancy.

Enclosed is a photocopy of the Deed of Trust .....

Would you kindly produce the relevant

Certificate of Title -

Then the following letter says:

We refer to recent telephone conversations

when you requested us to provide you with

the Caveator's consent -

that is Mr Carin's consent -

enabling you to register the Bank's Mortgage .....

We remind you that during a telephone conversation

..... we stated that we would provide that

consent provided you let us have a letter

noting that the Certificate of Title would

be produced .....

We note that the other joint owner would be

Ronald Patton .....

We suggest the best way of handling the matter

would be for you to lodge the Certificate

of Title -

C2T45 /1 /ND	74	5/9/89
Corin(2)

MR BENNETT (continuing):  The bank replies, at page 51:

We ..... advise that we will be producing

the Certificate of Title at the

Registrar General's Department to enable

the transfer of a half interest to

Mr John Corin.

Prior to advising you of the

production date ..... the Bank will be

registering its mortgage and we therefore

would appreciate your caveator's consent.

We write back saying:

We enclose a letter addressed to the
Registrar General giving the Caveators'

consent.

We note your undertaking to lodge the

Certificate of Title.

The transfer to Mr Corin is presently

being stamped.

So, at that point, there is a concluded agreement

by the bank with the other parties saying,

"Provided we consent to registration of its

mortgage", which we have done, it will produce

the certificate of title. Then, at page 53,

after intervention by my learned friend's client,

the bank says, "Well, now there is a dispute

we just abide the dispute". And, the solicitor

for the bank now comes into it and he refers to

previous letters. He says:

I am in receipt of correspondence from
Mervyn J Cathers & Co, Solicitors for

Ronald John Patton, the surviving joint

tennant.

I respectfully suggest you contact -

them to try and -

resolve the matter.

You must understand that the Bank

will, in future, only act on the mutual

request of both parties or a court order

..... if the Bank is drawn into any Court

proceedings -

it wants its costs. And, from then on, of course,

the bank maintained that attitude.	I left out
the document at page 56.	We then wrote back

C2T46/l/JH	75	5/9/89
Corin(2)

at page 54 canvassing_the matter and saying

the bank should nevertheless go ahead and produce

it. Then, at page 56, the bank advises:

that Certificate of Title ..... will be

produced for transfer -

that is even after the intervention on payment

of fees:

We enclose our cheque for $40 ..... Please advise us when the Deed has been

produced.

And, then the answer, "Nq_as that proceedings

have been commenced". At page 58:

I advise that the Bank has been placed on notice of Supreme Court proceedings.

The Bank wishes to avoid pre-empting

the Court's decision ..... Consequently, I
enclose your cheque by way of return and
advise that the Bank will not produce the

deed without Court orders.

And, that is where it seems to rest. But, the point

I make is that what that indicates is, that prior

to any intervention and protest by the surviving

joint tenant the bank's attitude was it was quite

happy to produce the certificate of title subject

to some other protections which it was given and

one would draw the inference that it would have been

prepared to do that before death if that inference

were relevant.

Now, Your Honour Mr Justice Deane asked my

learned friend some questions about the problems

of fraud arising out of secret documents. Might I

remind Your Honour of what was said in

WILLIAMS	HENSMAN, that is not on anyone's list
but it seems to be treated as the fons et origo

and it may be that Your Honour - I am referring to a

question Your Honour asked me and - - -

DEANE J:	I think it -
MR BENNETT:	- - - something was said by my learned friend

about it; I think that is more accurate than what I said a moment ago. WILLIAMS and HENSMAN is not

on the list but is is supported in 1 J & H 546

and 70 ER 862 and there is a short paragraph which

is the one which virtually every case on severance

refers to.	I might just, although I have not given
Your Honours reference, _	remind Your Honours

of what it is. It is set out in a number of the cases.

C2T46/2/JH 76 5/9/89

Corin(2) (Continued on page 76A)

It is set out in ABELA which is on the list

in (1983) 1 NSWLR 308, if Your Honours wish to

follow it; it is a very short passage and it is

this:

A joint tenancy may be severed in

three ways: in the first place, an act of

any one of the persons interested

operating upon his own share may create a severance as to that share. The right of

each joint-tenant is a right by

survivorship only in the event of

no severance having taken place of the

share which is claimed under the jus
accrescendi.

Now, just stopping there, that is not up to that point limited to conveyances or transfers or

alienations. It is simply - the general proposition

is an _act of airf one operating on his own share.

(Continued on page 77)

C2T46/3/JH	76A	5/9/89
Corin(2)

BRENNAN J:	And what does that mean, "operating on"?
MR BENNETT:	Your Honour, it has been interpreted, as

Your Honours will see in a moment, very broadly

in England in some of the recent cases but they

are influence by their legislation which puts it

slightly differently. We would submit it means

any overt act such as the execution of a document

by which he purports to deal with his share, would

be sufficient.

BRENNAN J:  Even though it has no legal operation upon

issue?

MR BENNETT:  Yes, Your Honour, we would so submit and I will

take Your Honour to some examples of that in a

moment if I may. But he then goes on to say, still

talking about this first ground, giving what we

submit is the traditional example of it in the

normal case of it, and he says:

Each one is at liberty to dispose of his own

interest in such manner as to sever it from

the joint fund - losing, of course, at the

same time, his own right of survivorship.

So the example given of an act operative on his

own share is an alienation.

Secondly ..... by mutual agreement. And, in

the third place, there may be a severance

by any course of dealing sufficient to

intimate that the interests of all were

mutually treated as constituting a tenancy

in common. When the severance depends on

an inference of this kind without any express

act of severance, it will not suffice to rely

on an intention, with respect to the

particular share, declared only behind the

backs of the other persons interested.	You
must find in this class of case a course of dealing by which the shares of all the
parties to the contest have been effected -

as happened in LAWSON V BELL.

So, in relation to the third category, that is the course of dealing, it must be known to the

others and, obviously, the second one, mutual

agreement, is known to the others but it is not said about the first one. So there seems to be no requirement in the formulation of the rule that

there be any notice to the other joint tenants.

DEANE J: Except that that would leave - and I am not indicating this

agreement here, but that would leave it open as to whether
you can effectively dispose of your interest in the relevant

way without the other joint tenant knowing about it.

C2T4 7 /1 /ND 77 5/9/89

Corin(2)
MR BENNETT: Well, Your Honour, at common law, with old system

title, clearly one can, because if a joint tenant

executes a conveyance of his legal interest to

another person, whether for value or not, the

conveyance takes effect on delivery of the document

without any registration; registration may never

occur, and that can be secret from the surviving

joint tenant for as long as is desired. Indeed, all

the rules about fraudulent conveyances and the like

develop largely because of the practice of executing

secret conveyances and section 12 of the

REGISTRATION OF DEEDS ACT provides a very substantial

sanction by defeating, as a matter of priority, such

a conveyance against one which is registered.

DEANE J:  It may well be that the modern law of estoppel would

have quite a lot to say to that fact.

MR BENNETT:  Yes, although it is hard to see how the surviving

joint tenant has acted to his detriment.	If he has,
of course, there may well be a - - -

DEANE J: Well, he has lost the chance.

MR BENNETT:  He never had the chance, Your Honour. If I

DEANE J:  If A and Bare joint tenants on the basis that the

survivor would inherit, and A, without telling B,

alters that position, in circumstances giving rise

to the possibilities of fraud, you may well move

in to an area of equitable estoppel.

MR BENNETT: Well, I suppose, yes. If the detriment is that

he was unable to demonstrate that there was fraud when

there may have been, if it is put that way, yes,

Your Honour. Certainly the reference in

WILLIAMS V HENSMAN, going behind the backs of the

others in relation to the third category only, suggests

the contrary in relation to the first category, and

I would submit, there has never been any requirement,

in relation to the first category, of notice to the

other joint tenant. As a matter of courtesy and,

indeed,precaution one might well give notice and,

indeed, the evidence here is that Mr Smallwood gave

notice a few days after death which was about a week

or so after the date of execution of the document.

(Continued on page 79)

C2T48/l/FK	78	5/9/89
Corin(2)

DEANE J:	Mr Bennett, while I am interrupting you can I
try and get you to be a little bit more precise
about the trusts here. After these documents were
executed and handed over Mr and Mrs Patton remained
registered as proprietors of an estate in fee
simple as ~oint tenants.  Now, your starting point
must be that Mr Patton, as well as Mrs Patton, was a trustee or became a trustee, is that right?
MR BENNETT:	Yes, Your Honour.
DEANE J:	What, you would then say, Mr Patton, as a ioint

tenant, became a trustee of his ioint tenancy?

MR BENNETT:  No, Your Honour, of the h~lf which he might get

by· survivorship of the legal estate if that came to

him. He became a trustee of his contingent additiona

one half interest by survivorship, that being the hal

interest held by his wife.

DEANE J:  Is that the way you would put it, or would vou say

he became a trustee of his ioint tenancy, as did

Mrs Patton, in trust for himself and someone else's

tenants in common?

MR BENNETT:  Your Honour, subject to correction, I would prefer

to put it the way I put it for this reason, that the
reason he became a trustee of that type is that, on
the hypothesis I am arguing, the parties became

tenants in common in equity while they were _ioint

tenants at law. Now, he still held a half interest

in the land absolutely, in his own right, for all

purposes. The difference is that as to his right of

survivorship that right he then held in trust

because, equity regarding the parties as tenants

in common, if he were to acquire the legal estate

by survivorship in violation of that equitable

approach, equity would hold him as a trustee for

that half.

(Continued on page 80)

C2T49 /1 /HS 79 5/0/89

Corin(2)
DEANE J: Well then, for whom did he hold it as trustee?

MR BENNETT:  He held it as trustee for Mr Corin who, in turn,

held it as trustee for the estate of Mrs Patton.

DEANE J:	I see, good, thank you.
MR BENNETT:	Now, the remaining matter is - and, again, I do not want, in reply, to take Your Honour to these cases - my
friend referred to them briefly; 1n England there
is, as my friend just said, legislation since 1925
which provides for a joint tenant to give notice to the other saying, "I hereby sever the joint tenancy
and make it a tenancy in common." The courts have,
in some recent cases, considered questions of
severance.  I will simply give Your Honours the three
references, I will not take Your Honours to the
cases beyond telling Your Honours about one of them.

The three cases are:  HAWKESLEY V MAY,

(1956) 1 QB 304; RE DRAPERS CONVEYANCE, (1969) 1 Ch 486

and BURGESS V RAWNSLEY - a decision of the Court of

Appeal, in (1975) Ch 429. BURGESS V RAWNSLEY is

interesting because, although it is an example of

the second type of WILLIAMS V HENSMAN severance,

it was a case where there was a verbal agreement

between two joint tenants in relation to the sale by

one to the other. The two joint tenants agreed that

one would sell to the other for a certain price and

joint tenancy.

it was purely verbal, unenforceable under the sever the

(Continued on page 81)

C2T50/l/DR	80	5/9/89
Corin(2)

MR BENNETT (continuing): In HAWKESLEY V MAY there is a

one sentence passage at page 313, point 6, where

Mr Justice Havers said:

The first method indicated, namely, an act of

any one of the persons interested operating

upon his own share, obviously includes a

declaration of intention to sever by one party.

Now it is true that all these cases, and when one

reads the judgments this is very clear, are heavily

permeated by the policy of the English legislation

and I concede that. But nevertheless, it is my

respectful submission that the general direction

taken in England in the attitute towards severance

as a whole, is one which should be encouraged by

the courts, and really this case is as good an

example of the sort of case where it is going to

occur that one could have.

One has a dying joint tenant, presumably

estranged from her spouse, who wishes to sever the

joint tenancy prior to her death. Clearly there is

not going to be time to achieve registration. The

fact that the problem has arisen in a number of recent

cases illustrates its importance. ,In my respectful

submission the law ought to be slow to put burdens

and obstacles in the path of someone seeking to

achieve that result, bearing in mind the general

policy of the law that a joint tenancy can be severed at will by one party to it and once one accepts that,

in my respectful submission, it ought not to be made

difficult for a person to do it. May it please the

Court.

DEANE J:	Mr Bennett can I just trouble you to take you back
to WILLIAMS V HENSMAN.  Are you aware of any case
in which what has been involved has been a
disposition in equity only without notice to the
other party?  (Continued on page 82)

C2T51/l/CM	81	5/9/89
Corin(2)

DEANE J (continuing):  The example Sir William Pagewood gives.

that is,•~ disposition of his interest in such manner

as to sever it from the joint fund'' seems to be

referring not to a purely equitable disposition of

interest.

MR BENNETT:  Yes. Certainly BURGESS V RAUNSLEY, which is in

the second category and not the first, was equitable

only because it as an uncompletea conveyance and

there seems to be no doubt that a contract for sale

is treated as severing a joint tenancy.

DEANE J:	What is the proposition,that you cannot hold your
interests as a joint tenant in trust for somebody
else but the fact that you hold your interest in
trust somehow changes what you hold in trust?

MR BENNETT:  Not quite, Your Honour. The pro~csition is this:

that equity follows the law. One has a whole

structure in relation to legal estates as to

whether something is held in joint tenancy or

tenancy in common, whether it is severed or not.

One has an analogous structure in relation to

equitable estates if one deals in relation to the

equitable right of survivorship or equitable tenancy

in common and joint tenancy. If, therefore, one

does an act in relation to the equitable estate

not affecting the legal estate but otherwise

sufficient to sever except that it is on the

equitable estate only, then as a matter of logic

one has severed the equitable joint tenancy and

not the legal joint tenancy.

DEANE J: Except, what if I executed a document which said,

"I transfer my interest in Blackacre and pending

this transfer becoming effective at law, I will

hold my joint tenancy in Blackacre in trust for

the transferee"?

(Continued on page 83)

C2T52/1/SH	82	5/9/89
Corin(2)

MR BENNETT:  In my submission, there is no doubt that one

has severed the joint tenancy in equity.

DEANE J: In other words, I cannot say, "I don't want to

sever the joint tenancy until the transfer

becomes effective at law, and in the meantime

I will hold my joint tenancy in trust for the

transferee." because if one can say that, I

am encountering a bit of a brick wall in

getting the severance at the stage you want it.

MR BENNETT:  One cannot say that, Your Honour, because

that is inconsistent with what one is doing.

If one creates a situation in which the equitable

estate goes to someone else in one's interest,

in one's portion, then, as a matter of inexorable
logic it follows that one has severed the

equitable joint tenancy because they no longer

are held by the same title, same instrument and

so on.

MR DEANE:  Then the proposition is that I cannot hold my

interest as a joint tenant in trust for somebody

else?

MR BENNETT:  No, what one could do is do it as to half.

One could say, "I hereby transfer to X. I

appreciate this will not take effect until

registration, so in the meantime I declare myself

trustee for X of my half interest." Paragraph.

"If my fellow joint tenant dies in the meantime
I declare that I shall be trustee for my fellow

joint tenant of that share, because I do not

want the benefit of survivorship." So one could

divest oneself of the asset side of it, but one

could not avoid the liability side of it.	One
could not go on to say, "But if I die first
there shall be survivorship of my share,

notwithstanding this declaration of trust.	One
could not achieve that.

DEANE J:	I follow the way you put it.
MR BENNETT:	Your Honour, might I have leave, in view of

Your Honour Mr Justice Deane's question to me,

to see if I can find a case which answers

Your Honour's description because I feel fairly

sure that there are some in the authorities

which are on the - there are a large number of

them and I might take me a few minutes to go

through them. Perhaps if I could just have leave
to provide to the Court a list of any cases I

can find in which there was a severance of the

equitable joint tenancy effected by an alienation

of the equitable interest, which I think was

Your Honour's question.

MASON CJ:	What time do you want to do that, Mr Bennett?
Corin(2)

C2T53/l/JM 83 5/9/89

MR BENNETT:	By Thursday, Your Honour.
MASON CJ:	Yes, very well, you may have leave to do

that. Of course, Mr Oslington will need to

have leave to respond in any way to the

cases.

MR BENNETT:  Of course. I would not intend to do any

more than simply provide a list of cases.

MASON CJ:  Yes. Say by Tuesday of next week,

Mr Oslington.

MR OSLINGTON:  There is one decision which might come

close to that point. I think it might be

on our list, that is McNAB V EARLE (1981) 2 NSWLR 673,

a decision of Mr Justice Needham. The transfer

was not handed over and it is not entirely clear in that case whether - I do not think His Honour found whether that which was transferred was

an equitable estate or the whole fee simple.

There was a transfer by Mrs McNab to herself.

MASON CJ:  The Court will consider its decision in this

matter.

AT 3.05 PM THE MATTER WAS ADJOURNED SINE DIE

C2T53/2/JM 84 5/9/89

Corin(2)