Corin v Patton

[1990] HCA 12

HIGH COURT OF AUSTRALIA

Mason C.J., Brennan, Deane, Toohey and McHugh JJ.

CORIN v. PATTON

(1990) 169 CLR 540

9 April 1990

Real Property

Real Property—Joint tenancy—Severance—Torrens system land—Memorandum of transfer from one tenant to trustee for herself executed and delivered to transferee—Certificate of title in possession of mortgagee—Death of transferor—Whether joint tenancy severed—Whether equitable interest alienated before death—Real Property Act 1900 (N.S.W.), s. 41—Conveyancing Act 1919 (N.S.W.), ss. 24, 96.

Decisions

MASON C.J. AND McHUGH J. The respondent, Ronald John Patton, and his wife were joint registered proprietors of land under the Real Property Act 1900 (N.S.W.). On about 6 July 1984 Mr Smallwood, a solicitor, received instructions to take the steps required to sever the joint tenancy. It is not altogether clear from whom those instructions were in fact received. Mr Smallwood prepared documents which he took on 12 July 1984 to the Pattons' house where Mrs Patton was terminally ill. John Jeffrey Corin, the first appellant, who was Mrs Patton's brother, also went to the house.

2. Mr Smallwood produced and explained the documents, which were a form of memorandum of transfer and a declaration of trust. They were then executed by Mrs Patton and Mr Corin and taken away by Mr Smallwood, who was to do what was necessary to complete the transaction. The certificate of title was held by the State Bank of New South Wales as unregistered mortgagee of the property. Mrs Patton took no action to procure the production of the certificate of title so as to enable the transfer to be registered. Mrs Patton died on 17 July 1984. She left a will in which she appointed Mr Corin and the second appellant, Judith Jones, as executors.

3. The instrument of transfer was in the prescribed form and expressed to be subject to the bank's mortgage. In the instrument the printed provisions concerning consideration had been deleted and the following words substituted:
"In consideration of and pursuant to the
terms of a Deed of Trust between the Transferor and Transferee of even date transfers her estate and interest as joint tenant in the said land to (John Jeffrey Corin)." The deed of trust stated, so far as is relevant:

"WHEREAS: 1. The beneficiary is the registered proprietor as joint tenant with her husband RONALD JOHN PATTON of the property known as 19 Wyatt Avenue, Belrose and being the whole of the land contained in Certificate of Title Volume 11010 Folio 202 (such land being hereinafter referred to as "the property"). 2. The beneficiary desires a severing
of the joint tenancy over the said property. 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. 4. Such Transfer as aforesaid is made to
the Trustee for the beneficiary and the Trustee has agreed to execute the declaration of Trust hereinafter contained.

NOW THIS DEED WITNESSETH AS FOLLOWS: 1. The Trustee HEREBY DECLARES that subject 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 and further that, subject to the provisions contained herein, he agrees to deal with that interest in the said property in such manner as the beneficiary shall from time to time direct or in accordance with the direction or order of any relevant Court of law."

4. At first instance, McLelland J. held that the joint tenancy had not been severed and that Mr Patton was therefore entitled to the whole of the property. In his Honour's view, any equitable interest which may have become vested in Mr Corin would have been held on trust for Mrs Patton. In these circumstances, Mr Corin could not have invoked the assistance of equity to claim his equitable interest as against Mrs Patton and there was therefore no effective alienation either at law or in equity of Mrs Patton's interest in the land and the joint tenancy was not severed. McLelland J. made a declaration accordingly in favour of Mr Patton.

5. The Court of Appeal dismissed an appeal against this decision for reasons different from those advanced by McLelland J. Hope J.A. (with whom Priestley and Clarke JJ.A. agreed) held that the question to be decided was whether by her acts Mrs Patton had placed Mr Corin in such a position that under the Real Property Act he had a right to have the transfer registered, a right which Mrs Patton or her executors could not defeat or impair. His Honour found that it was open to Mrs Patton at any time before her death to recall the transaction, since it had not been made for valuable consideration and under the terms of the deed of trust, to which the transfer was expressed to be subject, Mrs Patton could have withdrawn Mr Corin's power to register the transfer. For this reason, no interest in the property was transferred to Mr Corin and the joint tenancy was not severed.

6. In this Court, Mr Bennett Q.C. for the appellants argued that Mrs Patton had done all that was in her power to effectuate a gift of her interest in the property, so that there was a transfer of the interest in equity. Mr Bennett submitted that Mrs Patton could not have recalled the gift except in her capacity as beneficiary under the trust, whereas it was only relevant to consider how she could have acted in her capacity as donor. He also argued that the transfer had operated as a declaration of trust itself and that an interest in the land had passed in this way. In the alternative, he suggested that the severance of a joint tenancy in equity does not require an actual transfer of property, but may be achieved by any act showing an intention to deal with the property in a manner inconsistent with the continuation of the joint tenancy. Mr Bennett said that, if these submissions failed, the Court should nonetheless endorse a test for determining whether there had been an effective transfer for the purposes of severing a joint tenancy which is less stringent than the gift rule. Finally, he contended that in the present case special rules needed to be developed to recognize the situation where a person conveys property to himself, a transaction made possible by s.24 of the Conveyancing Act 1919 (N.S.W.).

7. It is convenient to begin by considering the various ways in which a joint tenancy can be severed. The starting point is inevitably the judgment of Page Wood V.-C. in Williams v. Hensman (1861) 1 J &H 546 (70 ER 862), in which his Lordship said, at pp 557-558 (p 867 of ER):

"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. 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. Secondly, a joint-tenancy may be severed 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."

In the present case, the second and third of these means are clearly not relevant. But there is the question whether a unilateral declaration of intention or other act inconsistent with the continuation of a joint tenancy may suffice for the purposes of the first method of severance.

8. That question was answered firmly in the negative long before Page Wood V.-C. came to express the general principles already outlined. In Partriche v. Powlet (1740) 2 Atk 54, at p 55 (26 ER 430, at p 431), Lord Hardwicke L.C. stated:
"This is not a severance; for, first,
here is no agreement for this purpose; secondly, if no agreement, then there must be an actual alienation to make it amount to a severance ...; the declaration of one of the parties that it should be severed, is not sufficient, unless it amounts to an actual agreement". That statement of the law is consistent with the statement by Page Wood V.-C. that an intention "declared only behind the backs of the other persons interested" was insufficient to effect a severance. Lord Hardwicke's view has been consistently adopted in Australia: see Lyons v. Lyons (1967) VR 169, at pp 170-172; In the Marriage of Pertsoulis (1980) 6 Fam LR 39, at pp 43-47; McNab v. Earle (1981) 2 NSWLR 673, at pp 675-676; Freed v. Taffel (1984) 2 NSWLR 322, at pp 324-325; Patzak v. Lytton (1984) WAR 353. In Wright v. Gibbons (1949) 78 CLR 313, Latham C.J. stated (at p 322) that the agreement of some but not all tenants would not suffice to sever a joint tenancy.

9. In England, however, a different approach has been taken. Thus, in Burgess v. Rawnsley (1975) Ch 429, Lord Denning M.R. said (at p 439):
"It is sufficient if there is a course of
dealing in which one party makes clear to the other that he desires that their shares should no longer be held jointly but be held in common. I emphasise that it must be made clear to the other party." Sir John Pennycuick, at pp 447-448, appeared to agree with this statement of the law, while Browne L.J. expressed no final opinion.

10. There is no evidence in the present case of Mrs Patton's intention to sever the joint tenancy having been communicated to Mr Patton. But in any event there are powerful reasons for declining to adopt in Australia the approach which was taken in Burgess v. Rawnsley. First, as the judgment of Sir John Pennycuick makes clear (at p 447), the decision turned on the construction of s.36(2) of the Law of Property Act 1925 (U.K.), which permits the severance of a joint tenancy by notice in writing by one joint tenant to the other, rather than on the state of the pre-existing law. Secondly, as a matter of history and principle, the severance of a joint tenancy can only be brought about by the destruction of one of the so-called four unities: see Blackstone, Commentaries on the Law of England, (1778), vol.2, pp 185-186. Unilateral action cannot destroy the unity of time, of possession or of interest unless the unity of title is also destroyed, and it can only destroy the unity of title if the title of the party acting unilaterally is transferred or otherwise dealt with or affected in a way which results in a change in the legal or equitable estates in the relevant property. A statement of intention, without more, does not affect the unity of title. Thirdly, if statements of intention were held to effect a severance, uncertainty might follow; it would become more difficult to identify precisely the ownership of interests in land which had been the subject of statements said to amount to declarations of intention. Finally, there would then be no point in maintaining as a separate means of severance the making of a mutual agreement between the joint tenants.

11. Accordingly, it is necessary in this case for the appellants to demonstrate that Mrs Patton effectively alienated the property in equity. Although this may involve questions of whether or not Mrs Patton could have withdrawn from the transactions, the issue is primarily whether or not the property was alienated.

12. Mr Bennett contended that the rules for determining whether there has been an effective transfer should be relaxed in a case, such as the present, where the purpose of asking the question is to determine whether or not a joint tenancy has been severed. But such an approach cannot be reconciled with principle and would be productive of great uncertainty. Once it is accepted that a transfer is required, it is the general rules relating to transfers of land which must be applied. This particular case involved a voluntary transaction. In this respect we agree with Hope J.A. that the consent or agreement of Mr Corin to act as trustee did not constitute valuable consideration, and in any event it was not seriously suggested otherwise. Indeed, in the famous case of Milroy v. Lord (1862) 4 De GF &J 264 (45 ER 1185), in very similar circumstances, the consent or agreement of the transferee to act as trustee was not regarded as constituting valuable consideration.

13. The long line of earlier authority concerning voluntary conveyances and transfers culminated in the judgments in Milroy v. Lord. In that case Thomas Medley executed a voluntary deed purporting to assign certain shares to Samuel Lord, to be held by him on trust for Andrew Milroy and his wife. The shares could be transferred only by the making of appropriate entries in the books of the company, but no such action took place. However, Lord held a general power of attorney from Medley authorizing him to transfer the shares, and a further power of attorney authorizing him to receive the dividends on the shares. The dividends were received by Lord for the following three years, until Medley's death. The issue for decision was whether or not Medley had effected a gift of the shares in equity prior to his death.

14. The Court held that the gift was imperfect. Knight Bruce L.J. held that the instrument of transfer was insufficient to constitute Medley a trustee of the shares. Nor did it amount to a specifically enforceable contract. Rather, Medley left imperfect and incomplete that which he might have perfected and completed by making a transfer of the shares so as to confer the legal ownership upon Lord. Turner L.J. stated, at pp 274-275 (pp 1189-1190 of ER):
"I take the law of this Court to be well
settled, that, in order to render a voluntary settlement valid and effectual, the settler (sic) must have done everything which, according to the nature of the property comprised in the settlement, was necessary to be done in order to transfer the property and render the settlement binding upon him. He may of course do this by actually transferring the property to the persons for whom he intends to provide, and the provision will then be effectual, and it will be equally effectual if he transfers the property to a trustee for the purposes of the settlement, or declares that he himself holds it in trust for those purposes; ... but, in order to render the settlement binding, one or other of these modes must, as I understand the law of this Court, be resorted to, for there is no equity in this Court to perfect an imperfect gift. The cases I think go further to this extent, that if the settlement is intended to be effectuated by one of the modes to which I have referred, the Court will not give effect to it by applying another of those modes. 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." Accordingly, the purported transfer could not be supported as a declaration of trust, and failed as a transfer because the powers of attorney did not suffice to permit Lord to execute a transfer in his favour without express directions from Medley, which Medley had not given.

15. Two propositions emerged from the observations of Turner L.J. First, the donor must have done everything necessary to be done, according to the nature of the property, in order to transfer the property and render the gift binding. Secondly, if the gift was intended to have been effectuated by one means, the court will not give effect to it by another means. However, as the later cases were to reveal, there was an element of uncertainty in the first proposition. Did it require that the donor must have done himself all that was necessary to be done in order to transfer the property or did he only have to do all that was necessary to be done by him in order to achieve that result?

16. This question clearly emerged for the first time in Anning v. Anning (1907) 4 CLR 1049. There the donor executed a voluntary deed conveying real and personal property to his wife and children, including mortgages of land under the Torrens system and a Crown lease. Although the deed was executed and delivered, the mortgages were transferable under the Real Property Act 1900 (N.S.W.) only by a transfer in the prescribed form and by registration of the transfer. No such transfer was executed. Likewise, the donor did not execute an instrument of transfer of the lease in the prescribed form, the registration of such an instrument being necessary to transfer title to the Crown lease. Each member of the Court held that the transfers of the donor's estate and interest in the real property were void because they were not in the forms prescribed by statute. But each member of the Court had a different understanding of the principle to be applied.

17. Griffith C.J. said (at p 1057):

"I think that the words 'necessary to be done', as used by Turner L.J. in Milroy v. Lord, mean necessary to be done by the donor. ... If, however, anything remains to be done by the donor, in the absence of which the donee cannot establish his title to the property as against a third person, the gift is imperfect, and in the absence of consideration the Court will not aid the donee as against the donor. But, if all that remains to be done can be done by the donee himself, so that he does not need the assistance of the Court, the gift is, I think, complete."

Isaacs J. took a stricter view of the matter. His Honour said (at p 1069):

"If the legal title is assignable at law it must be so assigned or equity will not enforce the gift. If for any reason, whether want of a deed by the assignor, or a specifically prescribed method of transfer, or registration, or statutory notice, the transfer of the legal title is incomplete when the law permits it to be complete, equity regards the gift as still imperfect and will not enforce it. In such a case, the fact that the assignor has done all that he can be required to do is not applicable."

Higgins J. (at pp 1081-1082) appeared to adopt an intermediate position. His Honour stated that the word "necessary" refers to the nature of the property, not to any obligation upon the donor, and went on to say (at p 1082):

"What the Courts look at is what the donor might have done. This point has been put so fully in the judgment of Mr. Justice Isaacs that I need not deal with it further."

Despite the reference to the judgment of Isaacs J., it seems that Higgins J. would have been prepared to recognize in equity a gift which the donor could have done no more to perfect, for example, a gift incomplete simply because the transfer, lodged for registration, remained unregistered, the donor having done all that he could do. Isaacs J. would not have recognized such a gift because the transfer of the legal title was incomplete.

18. Isaacs J.'s approach gave full effect to the related maxims "equity will not assist a volunteer" and "equity will not perfect an imperfect gift". Moreover, this approach was entirely consistent with the statutory provisions regulating the transfer of title to Torrens system land. These provisions provide that an instrument shall not be effectual to pass an estate or interest in land until registration: see Barry v. Heider (1914) 19 CLR 197. That is not to say that the approaches taken by Griffith C.J. and Higgins J. were inconsistent with the two maxims and the statutory provisions. We shall discuss this aspect of the judgments in Anning v. Anning later.

19. In Brunker v. Perpetual Trustee Co. (Ltd.) (1937) 57 CLR 555, the donor executed in favour of his housekeeper a voluntary transfer of an estate in remainder expectant on his death of Torrens system land. He handed the executed transfer to a Mr Fuller who was a friend of both the donor and the housekeeper. The trial judge found that Mr Fuller had held the transfer as the donor's agent at the time of the donor's death. The transfer made no mention of a mortgage to which the land was subject, since the donor apparently wished his housekeeper to take the property free from the mortgage. After the death of the donor, Mr Fuller handed the transfer to the donee's solicitors who inserted particulars of the mortgage and sought to register the transfer. The mortgagee at all times held the certificate of title. The Court, Latham C.J. dissenting, held that there had been no gift of any interest in the land and that the transfer was void and of no effect.

20. Latham C.J., after noting that the Torrens system did not prevent the creation and recognition of equitable interests in land, found that the donee was not prevented by the absence of the certificate of title or the alteration of the transfer from presenting the transfer for registration. His Honour rejected (at p 589) the trial judge's finding that Mr Fuller had held the transfer as the donor's agent at the time of the donor's death. In a passage in his judgment which is somewhat difficult to follow (at pp 588-590), he found that Mr Fuller had been acting in accordance with the donor's wishes when he handed the transfer to the donee's solicitors after the donor's death and, that being so, also found that the donor had placed the donee in a position to obtain a legal title by the donee's own action without further action by the donor. Since the donee was in a position to seek registration, the assistance of the Court was not required to enforce the gift. The Chief Justice distinguished the statement by Isaacs J. in Anning v. Anning (at p 1069) on that basis and clearly preferred the approach of Griffith C.J., without acknowledging that the approach of Isaacs J. differed from that of Griffith C.J. He finally found that the alteration to the transfer did not affect the validity of the instrument and that the absence of the certificate of title did not necessarily prevent the donee from obtaining registration.

21. Dixon J. (with whom Rich J. agreed) found that the alteration to the transfer had not been authorized and that the donor gave no authority for it to be handed to the donee's solicitors or presented for registration. However, his Honour also considered the rights of the donee in terms not dissimilar to the language used by Latham C.J. After stating that the donor had manifested no intention to create a trust and that an intended donee cannot obtain equitable remedies compelling the donor to give legal effect to his intention to give, Dixon J. said (at pp 599-600):
"But, under the system of the Real Property
Act, a transferee may be in a position by registering an instrument to obtain a legal estate, although prior to registration neither the legal nor any equitable estate was vested in him. If that system allows a volunteer to acquire an indefeasible right to the registration of an instrument in his favour, then, although it would remain true that before registration he had neither a legal nor an equitable estate in the land, yet he would be entitled to a right of a new description arising under the statute, and by its exercise he could vest the legal estate in himself.

... There is no a priori reason why statutory provisions making title depend upon registration should not confer upon a person in whose favour a registrable instrument has been made, a right to procure its registration, notwithstanding that it is voluntary, and no reason why it should not leave the transferor powerless to countermand his instrument. Such a right would not depend upon the doctrines or remedies of a court of equity, and, pending actual registration, the transferee could not be considered entitled to an equitable interest any more than to a legal interest in the land."

After referring to Milroy v. Lord, his Honour gave his own view of the appropriate question (at p 602):

"(The question) 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 himself to cause the immediate registration of the transfer. 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."

On this view of the matter it was necessary to determine whether property in the actual instrument of transfer had passed to the donee. If a registrable instrument had been delivered to the donee, then the donee had a right to have it registered, as against the donor. The absence of the certificate of title did not necessarily defeat the donee, because the Registrar-General could dispense with its production. In fact, however, the transfer was not given to the donee or to Mr Fuller as bailee for her "and, therefore, never became her property and was not placed by the deceased in her possession or control" (at p 605). Accordingly, the property in it had not passed to the donee.

22. McTiernan J. found (at p 609) that the donor had not taken any irrevocable step by executing the transfer. He did not give the transfer to the donee and his death had revoked any authority to perfect the intended gift by registration. His Honour therefore did not find it necessary to consider the significance of the certificate of title or the meaning of Milroy v. Lord.

23. Accordingly, Brunker did not answer the questions presented by the judgments in Anning v. Anning. Although the judgment of Dixon J. is consistent with the view of Isaacs J. that no interest in land passes by way of gift prior to the registration of a transfer, the right recognized by Latham C.J. accords with the approach taken by Griffith C.J.

24. Subsequently, in Norman v. Federal Commissioner of Taxation (1963) 109 CLR 9, a case which did not involve a transfer of land, Windeyer J., consistently with the view stated by Griffith C.J. in Anning v. Anning, said (at pp 28-29) that:
"in equity there is a valid gift of property
transferable at law if the donor, intending to make, then and there, a complete disposition and transfer to the donee, does all that on his part is necessary to give effect to his intention and arms the donee with the means of completing the gift according to the requirements of the law". Evidently Dixon C.J. was not "disposed to disagree" with that statement (at p 16). The other members of the Court did not consider the question.

25. Next, in Cope v. Keene (1968) 118 CLR 1, the issue was whether a deceased person had made a completed gift of Torrens system land in his lifetime. Kitto J. (with whom McTiernan J. agreed) said (at p 6):
"To complete the gift the testator had to do
all that, according to the nature of the property as land under the provisions of the Real Property Act, was necessary to be done by him in order to transfer the property: Anning v. Anning. What this involved is shown by the judgment of Dixon J. in Brunker v. Perpetual Trustee Co. (Ltd.)." His Honour said that this required property in the instrument of transfer to pass to the intended donees, and probably also involved production by or on behalf of the donees of the certificate of title. The instrument of transfer was not delivered to the donees with the intention that property in it should pass to them and so the intended gift failed.

26. Two cases remain for consideration. The first is Olsson v. Dyson (1969) 120 CLR 365, a case involving a purported oral assignment of a debt. The Court held that the assignment failed at law for the absence of writing as required by the Law of Property Act 1936 (S.A.). In holding that there was no assignment in equity, Kitto J. (with whom Barwick C.J. (on this aspect of the case), Menzies and Owen JJ. agreed) spoke in terms similar to those of Isaacs J. in Anning v. Anning:
"(P)roperty which is assignable at law but is
not assigned in the manner which the law requires for a legal assignment of it cannot be held in equity to be assigned unless by reason of some fact or circumstance which a court of equity regards as binding the legal owner in conscience to hold the property upon trust for the assignee. ... But there is no equity to perfect an imperfect gift: because of the absence of consideration a purported assignment, if incomplete as a legal assignment, effects nothing in equity." (at pp 375-376) Windeyer J. (at pp 386-387) reiterated the views he had expressed in Norman.

27. The final case is Taylor v. Deputy Federal Commissioner of Taxation (1969) 123 CLR 206. There the question for determination was whether certain land remained in the hands of the executors of a deceased estate or had passed to the relevant beneficiary. The executors had consented in writing to the transmission of the land, delivered the certificate of title to the beneficiary and caused the instrument of probate to be produced to the Registrar-General. It was held by the Court (Barwick C.J., Taylor and Menzies JJ.) that the executors could no longer prevent registration by the beneficiary and that the property was accordingly no longer in the hands of the executors. The Court referred to Milroy v. Lord and the observations of Griffith C.J. in Anning v. Anning, then quoted from the judgment of Dixon J. in Brunker. Their Honours found that nothing remained for the executors to do to enable the beneficiary to become registered as proprietor of the land. Equally, nothing could be done by them to prevent or obstruct registration.

28. As in Cope v. Keene, the test of Dixon J. in Brunker was applied. It was applied in a manner which involved recognition of an interest in land in a volunteer prior to registration. Further, the judgment reflects the approach of Griffith C.J., in contrast to the decision in Olsson v. Dyson which draws on the view of Isaacs J. In both Cope v. Keene and Taylor, the Court used the language of Dixon J. in Brunker as a test for ascertaining the existence of equitable interests in property in accordance with the principle enunciated in Milroy v. Lord, rather than for the purpose of ascertaining whether a personal statutory right to registration has come into existence. In this way it has become clear that, in the subsequent cases, the Court has not endorsed the personal statutory right favoured by Dixon J.

29. That the Court has taken this course is not surprising. The legislation is silent as to the supposed statutory right. Given that the rule in Milroy v. Lord is part of the law, the statute provides scant support for the concept of a personal right mirroring that rule in scope but differing in effect. All that can be said is that the legislation enables a donee to secure registration of a transfer of the donor's interest when he is armed with an instrument of transfer in registrable form and he can produce, or arrange for the production of, the appropriate documents (which include the certificate of title). If the donor lacks the power to recall his transfer, that lack of power stems not from the statute, but from the principles of equity.

30. Once it is recognized that Dixon J.'s formulation no longer represents a correct statement of the law in this area, it becomes necessary to consider the authority and force of the three judgments in Anning v. Anning. The view of Higgins J., to the extent that it differs from that of Isaacs J., has not found support in the later cases. Moreover, the difficulties which would be presented by an inquiry into what was within the power of the donor to achieve in a particular case constitute a sufficient reason for discarding his Honour's view.

31. The stricter approach of Isaacs J. is consistent with the historic attitude of equity in developing rules applicable to intended gifts where no means of effecting a transfer at law were available: see William Brandt's Sons &Co. v. Dunlop Rubber Company (1905) AC 454, per Lord Macnaghten at pp 461-462. There is also perhaps a conceptual difficulty in accepting, in accordance with the broader view, that a donor has done everything necessary to be done by him to complete a legal transfer in a case where the donor could in fact have procured a legal transfer, for example by seeing to registration personally. And, as we have already noted, Isaacs J.'s view conforms to the notion, underpinned by the two equitable maxims, that equity will not assist a volunteer to perfect a title which is incomplete. Equity's refusal may be justified on the footing that the donor should be at liberty to recall his gift at any time before it is complete.

32. Although Griffith C.J. did not expressly advert in Anning v. Anning to the maxim that equity will not assist a volunteer (cf. Isaacs J. at p 1063), the divergent approaches adopted by Griffith C.J. and Isaacs J. in that case may be taken to imply different understandings of the maxim. Isaacs J. considered that equity would pay no regard at all to voluntary transactions which were insufficient to create proprietary or contractual rights at law. Thus, equity would not heed the volunteer's plea for recognition of his interest. On the other hand, Griffith C.J. must be taken to have regarded the maxim as an injunction against equity making its remedies available to perfect an imperfect gift. On this footing the recognition of the volunteer's interest did not amount to the provision of assistance in violation of the maxim.

33. Of course it would be a mistake to set too much store by the maxim. Like other maxims of equity, it is not a specific rule or principle of law. It is a summary statement of a broad theme which underlies equitable concepts and principles. Its precise scope is necessarily ill-defined and somewhat uncertain. It is subject to certain clearly established exceptions such as the rule in Strong v. Bird (1874) LR 18 Eq 315 and the doctrine of equitable estoppel, where an equity arises in favour of an intended donee from the conduct of the donor after the making of the voluntary promise by the donor: see Olsson v. Dyson, at pp 378-379. These exceptions have no bearing on the present case except in so far as they demonstrate that the maxim does not enunciate an inflexible or universal rule. What is of importance is that this and the related maxim that equity will not perfect an imperfect gift are primarily associated with the rule that a voluntary covenant is not enforceable in equity, a rule which itself has become the subject of critical scrutiny in some of its applications: see Macnair, "Equity and Volunteers", (1988) 8 Legal Studies 172. Thus, a volunteer who is the object of an intended trust will only succeed if the trust has been completely constituted. This means, so it is said, that the trust must be constituted by a present declaration of trust or by a transfer by the settlor of the legal title to the intended trustee. And that brings us back to the statement of principle by Turner L.J. in Milroy v. Lord.

34. But there is a distinction between the enforcement of a voluntary covenant to create a trust and the enforcement of a transfer by way of intended gift when the donor has done all that was within his power to vest title to the property in trustees for the donee or in the donee. In the first case, equity will not compel specific performance of the voluntary covenants, there being no completely constituted trust; in the second case, as the transaction is complete as far as the donor is concerned, no question of withholding specific performance can arise and equity will hold the donor to the completed transaction on the footing that title has been divested: see Ellison v. Ellison (1802) 6 Ves Jun 656, at p 662 (31 ER 1243, at p 1246); Ex parte Pye (1811) 18 Ves Jun 140, at p 149 (34 ER 271, at p 274) (where Lord Eldon L.C. observed "if the act is completed, though voluntary, the Court will act upon it"); Fletcher v. Fletcher (1844) 4 Hare 67, at p 74 (67 ER 564, at p 567) (where the covenant being "complete", the court was "not called upon to do any act to perfect it", in the words of Wigram V.-C.). The point is, as Page Wood V.-C. noted in Donaldson v. Donaldson (1854) Kay 711, at p 718 (69 ER 303, at p 306), that where there is an imperfect gift "which requires some other act to complete it on the part of the assignor or donor, the Court will not interfere to require anything else to be done by him" (our emphasis).

35. These specific statements, which necessarily circumscribe the area of operation of the equitable maxims, were apt to apply to those situations in which legal title passed not on the delivery of an executed conveyance or transfer of property but subsequently on registration of a transfer, as is the case with stocks and shares in companies. The statements are equally apt to apply to the transfer of estates in land under the Torrens system.

36. The rationale for refusing to complete an incomplete gift is that a donor should not be compelled to make a gift, the decision to give being a personal one for the donor to make. However, that rationale cannot justify continued refusal to recognize any interest in the donee after the point when the donor has done all that is necessary to be done on his part to complete the gift, especially when the instrument of transfer has been delivered to the donee. Just as a manifestation of intention plus sufficient acts of delivery are enough to complete a gift of chattels at common law, so should the doing of all necessary acts by the donor be sufficient to complete a gift in equity. The need for compliance with subsequent procedures such as registration, procedures which the donee is able to satisfy, should not permit the donor to resile from the gift. Once the transaction is complete so far as the donor is concerned, he has no locus poenitentiae. Viewed in this light, Griffith C.J.'s approach has the advantage that it gives effect to the clear intention and actions of the donor rather than insisting upon strict compliance with legal forms. It is a reflection of the maxim "equity looks to the intent rather than the form". By avoiding unnecessarily rigid adherence to the general rule and endeavouring to give effect to the donor's intention, the law avoids unjust and arbitrary results. See Zines, "Equitable Assignments: When Will Equity Assist a Volunteer?", (1965) 38 Australian Law Journal 337.

37. In any event there is stronger support in the later cases for the view of Griffith C.J. than that of Isaacs J. That support is found in the judgment of Latham C.J. in Brunker, those of Dixon C.J. and Windeyer J. in Norman, the joint judgment in Cope v. Keene, and the judgment of the Court in Taylor. Furthermore, the view of Griffith C.J. is supported by the decision of the English Court of Appeal in In re Rose (1952) Ch 499, at pp 510-511. Accordingly, we conclude it is desirable to state that the principle is that, if an intending donor of property has done everything which it is necessary for him to have done to effect a transfer of legal title, then equity will recognize the gift. So long as the donee has been equipped to achieve the transfer of legal ownership, the gift is complete in equity. "Necessary" used in this sense means necessary to effect a transfer. From the viewpoint of the intending donor, the question is whether what he has done is sufficient to enable the legal transfer to be effected without further action on his part.

38. Although Griffith C.J. did not explicitly say so, his proposition implicitly recognizes that the donee acquires an equitable estate or interest in the subject matter of the gift once the transaction is complete so far as the donor is concerned. So much was acknowledged by the English Court of Appeal in In re Rose. There the Court concluded that the donor had executed and delivered transfers and share certificates to the donee with the intention of transferring title to the shares to him and had placed him in a position to secure the legal title to the shares by registration subject to an exercise by the directors of their discretion to register the transfers. In this situation the donor could not recall the gift or invoke the aid of the court to prevent registration: see at p 516. The Court held that the donor had parted with his beneficial interest and had become a constructive trustee for the donee. This conclusion did not affect the second proposition in Turner L.J.'s judgment in Milroy v. Lord. As Evershed M.R. stated (at p 510):
"... 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 me 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". See also per Jenkins L.J. at pp 517-518.

39. The course of reasoning pursued by Evershed M.R. and Jenkins L.J. within the framework of the statement of principle by Turner L.J. in Milroy v. Lord bears a marked similarity to the reasoning of Dixon J. in Brunker which was, of course, directed to establishing the conditions on which a statutory right might be exercised. However, if we accept that In re Rose correctly states the consequences of the approach taken by Griffith C.J. in Anning v. Anning, there remains the problem of accommodating that approach to the injunction contained in s.41 of the Real Property Act to the effect that, until registration, an instrument of transfer shall be ineffectual to pass an estate or interest in the land. Although that injunction applies to equitable as well as legal estates, it "does not touch whatever rights are behind" the instrument, as Isaacs J. pointed out in Barry v. Heider, at p 216; see also Chan v. Cresdon Pty. Ltd. (1989) 64 ALJR 111, at p 117; 89 ALR 522, at pp 531-532. Where a donor, with the intention of making a gift, delivers to the donee an instrument of transfer in registrable form with the certificate of title so as to enable him to obtain registration, an equity arises, not from the transfer itself, but from the execution and delivery of the transfer and the delivery of the certificate of title in such circumstances as will enable the donee to procure the vesting of the legal title in himself. Accordingly, s.41 does not prevent the passing of an equitable estate to the donee under a completed transaction.

40. The question is then whether Mrs Patton did all that it was necessary for her to do in order to effect a transfer. Two obstacles are suggested to completion of the gift. First, the certificate of title remained throughout with the mortgagee and Mrs Patton took no steps to arrange for its production for the purposes of registration. Secondly, it is not clear whether or not Mr Smallwood held the executed transfer on Mrs Patton's instructions or those of Mr Corin.

41. Whether or not it is correct to say that the production of a certificate of title is "necessary" to achieve registration of a transfer of Torrens system land, it is apparent that a gift of such land cannot be regarded as complete in equity while the donor retains possession or control of the certificate of title: Dixon J. in Brunker, at pp 600-605; Scoones v. Galvin and the Public Trustee (1934) NZLR 1004. That is because it can scarcely be said that the donor has done everything necessary to be done by him if he has retained the certificate of title, by virtue of the possession of which the gift might well be thwarted.

42. In the present case Mrs Patton gave no authority for the mortgagee bank to hand the certificate of title to Mr Corin for the purposes of registration. At least, if she authorized Mr Smallwood to obtain the certificate, there is no clear evidence to that effect. In response to the difficulty this presents to the appellants, it was suggested that s.96 of the Conveyancing Act would have entitled Mr Corin to compel the bank to produce the certificate of title. Section 96 is in these terms:
"(1) A mortgagor, as long as his right
to redeem subsists, shall by virtue of this Act be entitled from time to time at reasonable times on his request ... to inspect and to be supplied with copies or abstracts of, or extracts from, the documents of title ... in the custody or power of the mortgagee. (2) This section applies to mortgages under the Real Property Act 1900, and in such case the mortgagor shall be entitled to have the relevant certificate of title ... lodged at the office of the Registrar-General, to allow of (sic) the registration of any authorised dealing by the mortgagor with the land ..." Section 7(1) defines "mortgagor" to include a person entitled to redeem a mortgage.

43. The section is of no assistance to the appellants. Mr Corin was not a person entitled to redeem the mortgage unless and until there had been a transfer of Mrs Patton's interest. Further, sub-s.(2) concerns the entitlement to the certificate of title of a mortgagor seeking registration of any authorized dealing by that mortgagor, that is, in this case, Mrs Patton. Although she could, in relation to an authorized dealing, have compelled production of the certificate of title, Mr Corin could not: Brunker, at p 604.

44. Accordingly, the transactions failed to pass the equitable property in the land to Mr Corin, and it is unnecessary to consider under whose control the instrument of transfer was after execution. Further, because the gift was incomplete, Mrs Patton could have recalled the transfer at any time. But it is not strictly relevant to ask whether or not Mrs Patton could have recalled the gift; that is not a criterion but rather a result of the efficacy or otherwise of the gift.

45. Before turning to Mr Bennett's final contention, it should be observed that the instrument of transfer cannot take effect in equity as a declaration of trust. Mrs Patton clearly did not intend to constitute herself trustee for Mr Corin and the terms of the instrument provide no support for such an interpretation, notwithstanding the element of flexibility introduced by In re Rose.

46. The final matter to consider is whether a special approach should be taken to the rules concerning severance of joint tenancies, or those concerning gifts, in the situation where there is an attempted conveyance to oneself, as permitted by s.24 of the Conveyancing Act. Mr Bennett suggested that the rationale for the gift rules is inapplicable in that situation and so a different approach is required. He drew attention to the statement of Varny M.R. in Cray v. Willis (1729) 2 P Wms 529 (24 ER 847) that a joint tenant "may sever the jointenancy by a deed granting over a moiety in trust for himself". But the Master of the Rolls was there doing no more than demonstrating that "survivorship can be no hardship, where either side may at pleasure prevent it". The case does not suggest that a joint tenant can sever the tenancy by executing a document purporting but failing to pass his interest in the property.

47. It was accepted in Re Murdoch and Barry (1975) 64 DLR (3d) 222 that a transfer to oneself could sever a joint tenancy. Whether or not that is so, there was in this case no transfer from Mrs Patton to herself, and no transfer to Mr Corin on trust for herself. There was an attempted transfer to Mr Corin followed by a purported declaration of trust over the property the subject of that attempted transfer: see D.K.L.R. Holding Co. (No. 2) Pty. Ltd. v. Commissioner of Stamp Duties (N.S.W.) (1982) 149 CLR 431, at pp 442, 443, 449-451, 460, 463-464, 473-474. The terms of the instruments are not consistent with an intention to transfer merely a legal interest to Mr Corin, but even if they were, this would not amount to a conveyance of the equitable estate from Mrs Patton to herself.

48. The appeal must be dismissed.

BRENNAN J. The circumstances out of which this appeal arises and the principal authorities which elucidate its solution are set out in the joint judgment of the Chief Justice and McHugh J. I need not repeat the facts nor the full citations, but I should state briefly what I perceive to be the effect of those authorities.

2. A proposed transferee of Torrens title land in New South Wales does not acquire an estate or interest in the land merely by the delivery to him of a registrable transfer (whether with or without the relevant certificate of title) or by lodging the instrument (whether with or without the relevant certificate of title) for registration. Section 41(1) of the Real Property Act 1900 (N.S.W.) provides:
"No dealing, until registered in the
manner provided by this Act, shall be effectual to pass any estate or interest in any land under the provisions of this Act, or to render such land liable as security for the payment of money, but upon the registration of any dealing in the manner provided by this Act, the estate or interest specified in such dealing shall pass, or as the case may be the land shall become liable as security in manner and subject to the covenants, conditions, and contingencies set forth and specified in such dealing, or by this Act declared to be implied in instruments of a like nature."

3. Although a proposed transferee of land has no legal estate or interest in the land to be transferred prior to registration of the transfer, he may acquire an equitable estate or interest "by reason of some fact or circumstance which a court of equity regards as binding the legal owner in conscience to hold the property upon trust for the (transferee)": per Kitto J. in Olsson v. Dyson (1969) 120 CLR 365, at p 375. Section 41, "in denying effect to an instrument until registration, does not touch whatever rights are behind it": Barry v. Heider (1914) 19 CLR 197, per Isaacs J. at p 216. It is for this reason that a purchaser under a contract of sale of land under the Real Property Act has an equitable estate or interest in the land corresponding with the protection which equity gives to rights acquired under the contract: Bahr v. Nicolay (No.2) (1988) 164 CLR 604, at pp 612,645-646; Chan v. Cresdon Pty.Ltd. (1989) 64 ALJR 111, at p 117; 89 ALR 522, at pp 531-532. The source of that estate or interest is the contract, not the transfer. Where, as in the present case, a registrable transfer of land under the Real Property Act is delivered voluntarily to enable the proposed transferee to secure registration, there is no fact or circumstance on which a court of equity might fasten as binding the conscience of the donor to hold the land on trust for the transferee. Equity neither compels an owner of property who intends to give it to another to do anything to perfect the gift nor impresses the property with a trust which the owner did not intend to create: Milroy v. Lord (1862) 4 De GF &J 264, at pp 274-275 (45 ER 1185, at pp 1189-1190); Federal Commissioner of Taxation v. Clarke (1927) 40 CLR 246, at pp 283-284. When Turner L.J. in Milroy v. Lord spoke of a "valid and effectual" voluntary settlement, he was speaking of a settlement which was effective to pass to the intended donee title to the intended gift, and his observation that there is no equity to perfect an imperfect gift relates to the absence of an equity to compel the donor to vest or to procure the vesting of title in an intended donee.

4. Equity awaits the vesting in the donee of title to the property given before it lends its aid to getting the property in; it does not assist the donee to get in the title. Isaacs J. in Anning v. Anning (1907) 4 CLR 1049 said (at p 1063):
"a gift to be valid must be complete, or in
other words, the intention of the donor must have been perfectly effectuated so far as the nature of his property admits. Otherwise the gift must fail, because without the aid of a Court of Equity the donees are unable to make out a title to the property, and equity will not lend its aid to complete a title unless the donees can show they have in the meantime given consideration, or done what is equivalent to consideration by acting upon the presumed gift, because there is nothing unconscientious in a donor in refusing at any stage to perfect a mere bounty. In Callaghan v. Callaghan ((1841) 8 Cl & F 374, at p 401 (8 ER 145, at p 156)),

Lord Cottenham said 'Courts of Equity do not decree specific performance of incomplete gifts.' The rule was laid down in the clearest terms in the leading case of

Kekewich v. Manning ((1851) 1 De GM &G

176 (42 ER 519)). On the other hand, if the donor has carried out his intention so far as the nature of the property will allow, equity will then exercise its jurisdiction to assist the donee in getting in the property."

When a donor's intention to make an immediate gift of property is established and the nature of property is such that title to it can be passed by the acts of the donor and donee without the intervention or consent of a third party, an enquiry as to the passing of title is answered by determining whether the donor has done all that is necessary on his part to vest title in the donee and whether the donee has accepted the gift. But when the nature of the property is such that the passing of title to it depends on the registration of an instrument of transfer or on some other act of a third party, an enquiry into the passing of title is more complex. An intention to give and an intention to accept being established, three distinct but related questions then arise: (i) has the donor done what is necessary on his part to make the gift effectual? (ii) when does title pass from the donor to the donee? and (iii) can the donor recall the gift after he has done what is necessary on his part to make the gift effectual but before the title passes to the donee? The single question "Is the gift complete?" conflates these three questions, and one must be careful to understand the sense in which completeness is used. Thus, in Anning v. Anning, Griffith C.J. expressed this view (at p 1057):

"in the case of shares in a company which are only transferable by an instrument of transfer lodged with the company, I think that the donor has done all that is necessary on his part as soon as he has executed the transfer. So, in the case of a gift of land held under the Acts regulating the transfer of land by registration, I think that a gift would be complete on execution of the instrument of transfer and delivery of it to the donee. If, however, anything remains to be done by the donor, in the absence of which the donee cannot establish his title to the property as against a third person, the gift is imperfect, and in the absence of consideration the Court will not aid the donee as against the donor. But, if all that remains to be done can be done by the donee himself, so that he does not need the assistance of the Court, the gift is, I think, complete."

His Honour's description of a gift as "complete" refers to the donor's completion of doing what is necessary on his part to make the gift effectual; "complete" in this context does not connote that title has vested in the donee but connotes that there is nothing more for the donor to do to enable title to be so vested. On the other hand, Isaacs J. (at p 1063) described a gift as complete when "the intention of the donor (is) perfectly effectuated so far as the nature of his property admits." His reference to In re Earl of Lucan; Hardinge v. Cobden (1890) 45 ChD 470, at p 474, makes it clear that completeness of a gift, as his Honour used the term, connotes that the title intended to pass has passed.

5. In most cases where the completeness of a gift is in issue, the matter in dispute arises between the donor and the donee or persons claiming through them. Such a dispute is resolved by answering the first and third questions: did the donor do all that was necessary on his part to make the gift effectual and, if the donor (or the person claiming through him) purported to revoke the gift before the title passed to the donee, would the purported revocation be valid? In this case, however, we are concerned with completeness in the sense of the passing of a title to the property intended to be given. That is because Mr Patton's claim is not made through either Mrs Patton or Mr Corin but on the strength of his own title as a joint tenant. The issue is whether, at the time of Mrs Patton's death, Mr and Mrs Patton were joint tenants so that Mr Patton's interest was enlarged on her death and he took by survivorship (not by transfer or devise) the entire fee simple estate in the land.

6. The joint tenancy of Mr and Mrs Patton in the subject land was severed prior to Mrs Patton's death only if she succeeded in alienating her share or, at least, in divesting herself of a proprietary interest in it: Williams v. Hensman (1861) 1 J &H 546 (70 ER 862); Partriche v. Powlet (1740) 2 Atk 54 (26 ER 430). (I agree with the Chief Justice and McHugh J. that the mere manifestation of an intention to sever is insufficient to sever a joint tenancy and that the approach taken in Burgess v. Rawnsley (1975) Ch 429, at p 439, should not be adopted in Australia.) Therefore the question is whether, by delivering a registrable transfer of her interest to Mr Corin, Mrs Patton divested herself of that interest in the land or, at least, of some proprietary interest in the land. As s.41 precludes the conclusion that any legal estate or interest passed from Mrs Patton to Mr Corin on delivery of the instrument of transfer, the question is whether any equitable estate or interest passed.

7. The argument that Mr Corin acquired an equitable estate or interest in the land when Mrs Patton delivered the instrument of transfer rests on the proposition that the instrument of transfer was registrable and could be registered without any further act on Mrs Patton's part. The weight of authority supports the view that a transfer executed by a registered proprietor in registrable form and delivered to a proposed transferee may be registered after the death of the transferor (Tierney v. Halfpenny (1883) 9 VLR (Eq.) 152 and National Trustees, Executors and Agency Co. of Australasia Ltd. v. Boyd (1926) 39 CLR 72, at p 84; Brunker v. Perpetual Trustee Co. (Ltd.) (1937) 57 CLR 555, at p 585) although, in Cope v. Keene (1968) 118 CLR 1, at p 7, Kitto J. (with whom McTiernan J. agreed) thought that a memorandum of transfer executed by the registered proprietor ceased to be a registrable instrument on the death of the registered proprietor. For reasons which will appear, it is not necessary to determine this question. Let it be assumed for present purposes that a transfer in registrable form can be registered under the Real Property Act after the death of the registered proprietor without re-execution by, or consent of, the personal representative of the deceased registered proprietor.

8. Even so, it is doubtful whether Mrs Patton, by mere delivery of a registrable transfer, had done all that was necessary on her part to effect a transfer of an estate or interest in the land to Mr Corin. She took no step to secure the production of the relevant certificate of title either by requesting the bank to produce the certificate of title or by authorizing Mr Corin to apply to the bank to produce it. The appellants submit that it was not necessary for her to take any step to secure production of the relevant certificate of title because Mr Corin was himself entitled as mortgagor under s.96 of the Conveyancing Act 1919 (N.S.W.) to have the certificate of title lodged to allow registration of the transfer. For the reasons given by the Chief Justice and McHugh J., I agree that s.96 is of no assistance to the appellants. However, it may be that, without production of the relevant certificate of title, Mr Corin could have prevailed upon the Registrar-General to dispense with its production and to proceed to register the transfer: see ss.36(6)(b)(ii) and 38 of the Real Property Act and the discussion of earlier provisions by Dixon J. in Brunker, at pp 601-604. Or it may be that Mr Corin, merely as proposed transferee, could have prevailed upon the bank to produce the relevant certificate of title to allow registration of the transfer. But speculation as to the likelihood of Mr Corin's obtaining of a favourable exercise of discretion by either the Registrar-General or the bank is relevant to the question whether Mrs Patton had done all that was necessary on her part to complete the gift, and this case can be resolved without finally determining the answer to that question. It is sufficient to note that it is doubtful whether Mrs Patton had done all that was necessary on her part to allow Mr Corin to be registered as proprietor of the interest intended to be given. But we are not concerned with Mr Corin's right to secure registration nor with Mrs Patton's right to prevent registration; we are concerned with the state of title to the interest intended to be given at the time of Mrs Patton's death. At that time, clearly enough, no favourable exercise of discretion had been obtained and, without the production of the relevant certificate of title, the transfer could not then have been registered.

9. In Brunker, the three questions earlier identified are mentioned (though not in precisely the same terms) by Dixon J. who distinguished between them and stressed the importance of identifying the question relevant to the particular case. After referring to the well-known statement in Milroy v. Lord that to make a voluntary settlement effectual the settlor must have done what was necessary to transfer the property, his Honour said (at p 602):
"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 himself to cause the immediate registration of the transfer. 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." (Emphasis added.) In Cope v. Keene, at p 12, Taylor J. recalled the admonition by Dixon J. to take care in keeping in mind precisely what the relevant question is and in Taylor v. Deputy Federal Commissioner of Taxation (1969) 123 CLR 206, at p 213, that statement by Dixon J. (together with the passage following it) was cited with approval by Barwick C.J., Taylor and Menzies JJ. In each of these cases the issue was whether a registered proprietor had effectively and beyond recall given land to a voluntary transferee. In Brunker it was held that the purported gift failed because the registered proprietor had not delivered the instrument of intended transfer to the intended transferee and (by Rich and Dixon JJ.) because the instrument was not in registrable form. In Cope v. Keene, the purported gift also failed because the registered proprietor had not delivered the instrument of intended transfer to the intended transferee. And in Taylor v. Deputy Federal Commissioner of Taxation, executors successfully resisted a claim by the Deputy Commissioner against property which had come into their hands as assets in the estate of a deceased taxpayer and which, they contended, had been distributed to the beneficiaries without notice of the Deputy Commissioner's claim. It was held that the executors had done all that was necessary on their part to make the distribution effectual and that the executors could not prevent registration of the beneficiary as registered proprietor. In none of these cases were the parties other than alleged donor or donee or a claimant through donor or donee; none was concerned with the question of the time of the passing of title to the land the subject of the gift or purported gift as distinct from the question whether the donor had done all that was necessary on his part to effect the gift or had done so beyond recall.

10. However, the opinion expressed by Dixon J. in Brunker as to what was necessary to be done on the part of an intending donor to make a gift of land under the Real Property Act effectual is instructive on the question whether any estate or interest passes prior to registration of a transfer. The opinion his Honour there expressed was accepted in the later cases. In Cope v. Keene, Kitto J. (at pp 6-7) stated what was necessary to be done:
"What this involved is shown by the judgment
of Dixon J. in Brunker v. Perpetual Trustee Co. (Ltd.) (at pp 599-605). It involved at least that the memorandum of transfer should be delivered to the appellants by or on behalf of the testator with the intention on his part of there and then parting with it and with the property in it so that the appellants should be entitled as against him to cause the instrument to be registered. It probably involved also that the appellants should be enabled to produce or require the production of the certificate of title to the Registrar-General to have a memorial of the transfer entered upon it." See, to the same effect, Taylor J. at pp 12-13 and Taylor v. Deputy Federal Commissioner of Taxation, at pp 213-214. Thus, at the forefront of the steps necessary to be taken by an intending donor of land under the Real Property Act stands the delivery of an instrument of transfer to the intending donee with the intention of there and then parting with it and the property in it. The reason why such a delivery is necessary is that the intending donor then "has no legal title to recall it or prevent its use by the donee for any purpose allowed by law including registration and no equity upon which an injunction or any other relief administered by the Court of Chancery would be granted": per Dixon J. in Brunker, at pp 604-605. Delivery of the memorandum of transfer with the requisite intent by the donor to the intended donee, coupled with the donee's ability to produce or to require the production of the certificate of title, puts the intended gift beyond recall by the donor and enables the donee to obtain title to the estate or interest transferred.

11. The foundation of this view is not that the donee acquires an equity to compel the donor to take any step to facilitate registration nor that the donee acquires any equitable interest in the land. According to Dixon J. (at pp 599-600), the right of the donee to seek registration of his instrument of transfer is founded on the Real Property Act:
"Being a volunteer, an intended donee cannot
obtain equitable remedies against the donor compelling him to give legal effect to his intention to give. The deceased manifested no intention to constitute himself a trustee of the land for the appellant, and the memorandum of transfer is not, and cannot produce the effect of, a declaration of trust. The appellant is, therefore, the owner of neither a legal nor an equitable estate in the land. But, under the system of the Real Property Act, a transferee may be in a position by registering an instrument to obtain a legal estate, although prior to registration neither the legal nor any equitable estate was vested in him. If that system allows a volunteer to acquire an indefeasible right to the registration of an instrument in his favour, then, although it would remain true that before registration he had neither a legal nor an equitable estate in the land, yet he would be entitled to a right of a new description arising under the statute, and by its exercise he could vest the legal estate in himself. The true question in the present case appears to me to be whether the appellant acquired a right of this nature which the deceased or his executor could not intercept or defeat." The right to registration, as Dixon J. saw it (at p 600) -

"would not depend upon the doctrines or remedies of a court of equity, and, pending actual registration, the transferee could not be considered entitled to an equitable interest any more than to a legal interest in the land. It might appear anomalous, but the anomaly would be no obstacle to the existence of the right."

In the same case, Latham C.J. appears to have excluded a right arising in equity, for he cited (at p 585) a passage from a joint judgment in Currey v. Federal Building Society (1929) 42 CLR 421, at p 431, which stated that a transferee's "'right to be registered as proprietor arises from the fact that she is the transferee of the registered proprietor under a proper instrument, and it depends upon nothing else'".

12. Upon this analysis, a right to registration, the effective exercise of which is essential to the vesting of title to the gifted land, is a statutory right dependent (at least) on delivery of a registrable transfer. That statutory right is confined by s.41 and, unlike a purchaser's contractual right, gives rise to no equitable estate or proprietary interest. As I read the cases, the only passages which might be construed as acknowledging an equitable estate or interest between the time of delivery of a registrable transfer and its registration which depends solely on delivery of the transfer are to be found in the judgments of Windeyer J. in Norman v. Federal Commissioner of Taxation (1963) 109 CLR 9, at pp 28-29, and in Olsson v. Dyson, at pp 386-387. Perhaps his Honour intended to assign to equity no greater role than preventing retraction of what he has given by a donor who has done all in his power to complete the gift of land. However that may be, the orthodox view, being founded on the judgment of Dixon J. in Brunker, denies the existence of an equitable estate or interest in the interregnum between delivery and registration.

13. It does not seem to me that any anomaly arises from the orthodox view. To the contrary, to press equity into service to create an equitable estate or interest where there is no equitable estate or interest arising from contract or from any conduct on the part of the donor is to take equity beyond its proper realm of acting in personam and to give equity a role not of circumventing but of overriding s.41 of the Real Property Act.

14. In the present case, let it be assumed that Mrs Patton delivered to Mr Corin a registrable transfer with the intention of parting with it and the property in it so that Mr Corin might be registered as proprietor of an estate in fee simple as tenant in common with Mr Patton and let it be further assumed that Mr Corin was thereby enabled to require production of the relevant certificate of title to allow registration of the transfer: on those assumptions Mrs Patton had done all that was necessary on her part to make the transfer effective and the transfer was not revocable by her prior to registration. On those assumptions, the elements of an effective gift summarized by Kitto J. in Cope v. Keene are fulfilled and Mr Corin would have acquired a right under, but subject to, the Real Property Act to have the transfer registered. Yet, at the time of Mrs Patton's death the transfer had not been registered and (in the absence of a certificate of title or a dispensation from production) was not then able to be registered. In those circumstances, it cannot be said that any title to the estate or interest in the land intended to be given by Mrs Patton had passed to Mr Corin. It follows that, prior to her death, Mrs Patton had not divested herself of her estate or interest in the land. She remained a joint tenant; she did not hold her estate or interest as trustee for any person. On her death, Mr Patton took by survivorship and his enlarged estate may be registered under s.101 of the Act. On Mrs Patton's death, Mr Corin's assumed statutory right to registration became valueless for the estate which he was intended to take was then extinguished.

15. It is unnecessary to consider the effect of s.24 of the Conveyancing Act, for the only way in which severance of the joint tenancy could have occurred is on registration of an instrument transferring Mrs Patton's interest in the land. None was registered.

16. The appeal should be dismissed.

DEANE J. The detailed facts involved in this appeal are set out in the joint judgment of the Chief Justice and McHugh J. Except to the extent necessary for discussion, I shall avoid repetition. Their Honours' judgment also contains a careful analysis of the principal cases bearing on the question whether a beneficial interest can arise prior to actual registration of a voluntary transfer of Real Property Act land. Subject to what is written hereunder, I agree with that analysis.

2. At the time of Mrs. Patton's death, she and her husband were registered as proprietors of an estate in fee as joint tenants of land ("the subject land") under the provisions of the Real Property Act 1900 (N.S.W.) ("the Act"). The memorandum of transfer which had been executed by Mrs. Patton some days before her death had not been lodged for registration. While the evidence is somewhat unsatisfactory, I am prepared to assume for the purposes of the appeal that Mrs. Patton had delivered the executed transfer to Mr. Smallwood (the solicitor) to hold as agent for Mr. Corin as trustee under the deed of trust. On that assumption, the legal property in the actual document (i.e. the memorandum of transfer) passed to Mr. Corin in his capacity as bare trustee for Mrs. Patton. The fact that the memorandum of transfer remained unregistered at the time of Mrs. Patton's death meant that it had, up to that time, been ineffectual "to pass any estate or interest" in the subject land (Act, s.41). It is not suggested that the circumstances brought the case within any of the exceptions to the ordinary operation of the Act which is to produce and preserve correspondence between legal entitlement and the state of the register (see, in particular, Act, s.42(1)). That being so, Mr. and Mrs. Patton remained, at law, the owners of the subject land as joint tenants. Equity aside, Mr. Patton acceded to the whole by survivorship when Mrs. Patton died.

3. The provisions of the Act do not, however, preclude the operation of equitable doctrines to create or preserve equitable estates or interests which do not correspond with, but lie behind or beyond, the legal interests as determined by the state of the register (see Barry v. Heider (1914) 19 CLR 197, at pp 204-208, 213-216). Such equitable estates or interests will yield to the conflicting claims of a third party who has, bona fide and without notice of them, dealt for value on the faith of the register. They will, however, prevail over the legal title of those whom equity holds to be bound to observe them. The appellants' argument in the present case is that the effect of the execution and delivery of the unregistered transfer was that there was a "severance" (i.e. conversion into tenancy in common) in equity of Mr. and Mrs. Patton's joint tenancy with the result that Mr. Patton was deprived of the benefit of his legal right of survivorship on Mrs. Patton's death.

4. The traditional law relating to severance has, at least since Blackstone, commonly been seen as deducible from the four unities - time, possession, title and interest - which are hallmark inhabitants of the institution of joint tenancy. Where all four unities are present in a multiple holding of land, there is joint tenancy. If one or other of them be absent, there ordinarily is not. The "captivating appearance of symmetry and exactness" (Challis's Law of Real Property, 3rd ed. (1911), p 367) of this traditional ritual cloaks some obscurity of precise meaning, some overlapping between the unities and some conceptual difficulties about the essential character of joint tenancy. In addition, the analysis requires qualification in that there are cases where the absence of unity of time will be excused (see, e.g., Kenworthy v. Ward (1853) 11 Hare 196 (68 ER 1245)), where one or other of the joint tenants may enjoy contractual rights of separate possession of the whole or part of the property without severance of the underlying joint tenancy and where surrender of possession by one joint tenant to a third party under a lease of his interest for a term will lead to suspension rather than severance of the joint tenancy (see, e.g., Wright v. Gibbons (1949) 78 CLR 313, at p 330, but cf. at p 327). Nonetheless, at law, where time, possession, title and interest can be seen as of the stuff of property, the question whether there has been a severance of a joint tenancy by some dealing with, or operation of law upon, one joint tenant's share can, subject to such qualification, be equated with the question whether one or more of the unities of possession, title and interest has been destroyed: in that equation, the unity of time can be disregarded as a practical matter since, if unity of title, interest and possession remain undisturbed, the original unity of time will persist. In equity, where good conscience and actual or presumed intention may prevail over common law rights and interests, and tenancy in common is seen as a preferred instrument for the reason that it avoids the gamble of the tontine, particular care must be taken to ensure that the equation of those questions does not divert attention from principle and from the two aspects of joint tenancy which are most likely to attract the operation of overriding equitable doctrine, namely, (i) the equality of the interests of joint tenants, regardless of intention or contribution, in the undivided rights constituting ownership of the relevant property, and (ii) the right of accretion by survivorship until there is a sole owner of the whole. Where legal joint tenancy persists, severance in equity must involve the creation of some distinct beneficial interests, that is to say, the creation of a trust for the joint tenants themselves as tenants in common in equal shares or for different beneficiaries or beneficial shares (see, e.g., Gissing v. Gissing (1971) AC 886, at pp 900, 904-905; Allen v. Snyder (1977) 2 NSWLR 685, at pp 689-690). In such a case, the imposition of a trust for tenants in common is likely to be the result of the direct operation of applicable equitable doctrine and the question whether the destruction in equity of one or more of the four unities has brought about a severance in equity of the joint tenancy may be an unhelpful and even confusing starting point. Accordingly, it seems to me that the preferable starting point in the present case is a more general enquiry about whether the effect of the operation of any applicable doctrine of equity was, as between Mrs. Patton and Mr. Corin, to give rise to a trust of any interest in the subject land. If it was, the question will then arise whether the effect of that trust or beneficial interest was to create a tenancy in common of the subject land in equity which bound Mr. Patton and effectively precluded him from enjoying the benefit of the right of survivorship which he enjoyed at law.

5. Equity will impose a trust of Real Property Act land held by the legal owners as joint tenants if the joint tenants actually agree to terminate the joint tenancy. Thereafter, their beneficial entitlement to the land will be as tenants in common: the legal joint tenants will hold as trustees for themselves as tenants in common in equal shares. Where such an agreement is made, there is valuable consideration in that each party agrees to relinquish the beneficial interest of a joint tenant of the common property, including the right of accretion by survivorship, in return for the share of a tenant in common. Such an agreement can be express. Alternatively, it can be implied from a "course of dealing sufficient to intimate that the interests of all were mutually treated as constituting a tenancy in common" (see Williams v. Hensman (1861) 1 J &H 546, at p 557 (70 ER 862, at p 867)). There was no such express or implied agreement in the present case. Indeed, it has not been suggested that Mr. Patton was aware of the fact that the memorandum of transfer had been executed until after Mrs. Patton was dead. It is unnecessary to consider whether equity will also impose a trust in a case where joint tenants of Real Property Act land are parties to mutual conduct of a kind which, while falling short of evidencing an express or implied agreement, "indicates a common intention that the joint tenancy should be severed" (see Gray, Elements of Land Law, (1987), p 329). Even if it be assumed that equity will impose a trust in those circumstances, it is clear that Mr. Patton was not a party to any such conduct in the present case.

6. There are circumstances in which equity will impose a trust for tenants in common of land held by legal joint tenants notwithstanding that there has been no relevant mutual agreement, understanding, dealing or intention between or on the part of the joint tenants. The only example of such circumstances which would seem to be relevant for present purposes is the voluntary or involuntary alienation in equity (i.e. the creation of a trust) of one legal joint tenant's interest in the land. Where such alienation has occurred, equity will, subject to any overriding competing equities, enforce a trust not only of the alienated interest but of the whole of the land under which the legal joint tenants hold it as trustees for tenants in common in equity. The explanation of why that is so is not free of difficulty. Ultimately, it must be found in the nature of joint tenancy and the manner in which equity acts in such a case. It is necessary to diverge briefly to examine those matters.

16. In the present case, the fact that Mrs. Patton had taken no step to enable Mr. Corin to procure the production of the duplicate certificate of title which was held by the bank meant that she had not done all that was necessary to place the vesting of the common law title within Mr. Corin's control. For the reasons given by Mason C.J. and McHugh J., s.96 of the Conveyancing Act 1919 (N.S.W.) did not entitle him to require the bank to lodge the certificate of title with the Registrar-General (see, also, Brunker, at pp 604-605). It is true that there was a theoretical possibility that the Registrar-General would register the transfer without production of the certificate of title (see Act, s.38 but note Brunker, at p 604: "Obviously in such a case the Registrar-General would not dispense with production"). The plain fact remains, however, that registration of the transfer and vesting of the legal title could not be said to be within Mr. Corin's control for so long as he was not entitled to procure production of the document of title. In any event, it is apparent that it remained in Mrs. Patton's power to intervene to prevent the vesting of any legal interest in him. In circumstances where Mr. Corin's only involvement was as a bare trustee for Mrs. Patton, she was entitled to terminate the trust at any time and demand the return of the unregistered transfer. It was submitted on behalf of the appellants that Mrs. Patton's position as beneficiary under the deed of trust should be disregarded. Her role as donor should not, it was said, be confused with any other role. The answer to that submission is that, in so far as equity is concerned, Mrs. Patton's role as prospective transferor and prospective beneficiary were inextricably connected. All that Mrs. Patton intended to confer and conferred upon Mr. Corin was the limited entitlement of a bare trustee. It was the limited content of that entitlement that resulted in the situation where, for so long as the memorandum of transfer remained unregistered, Mrs. Patton could recall the document and prevent the vesting of any legal title to the land in him (see Brunker, at pp 602-603, and cf. Cope v. Keene, at pp 12-13; McNab v. Earle (1981) 2 NSWLR 673, at p 677).

17. It follows that the transaction between Mrs. Patton and Mr. Corin did not have the effect that, in accordance with ordinary principles of equity, Mrs. Patton held her interest as a registered joint tenant of the subject land upon trust for Mr. Corin at the time of her death. It was, however, submitted for the appellants that ordinary equitable principles should be modified to produce that consequence. A joint tenancy should, it was submitted, be treated as "severed" in equity in any case where, as in the present, one joint tenant has unequivocally signified an intention to bring it to an end. In considering that submission, reference must inevitably be made to the judgment of Lord Denning M.R. in Burgess v. Rawnsley (1975) Ch 429. In that case, his Lordship expressed the view (at p 439) that it is sufficient for "severance" of a joint tenancy in equity if "there is a course of dealing in which one party makes clear to the other that he desires that their shares should no longer be held jointly but be held in common". Lord Denning's view in that regard was, however, significantly influenced by the provisions of s.36(2) of the Law of Property Act 1925 (U.K.) which have no Australian counterpart. It is true that there is little to be said from the point of view of logic or common sense for requiring that a joint tenant who desires to convert the joint tenancy into a tenancy in common should go through the charade of assigning his interest to a bare trustee for himself (or, arguably, conveying his interest to himself: cf. Re Murdoch and Barry (1975) 64 DLR (3d) 222; Re Sammon (1979) 94 DLR (3d) 594, at p 597; Freed v. Taffel (1984) 2 NSWLR 322, at pp 324-325, and Conveyancing Act, s.24). It seems to me, however, that it has long been settled that, where what is involved is unilateral action by but one joint tenant, actual alienation either in law or in equity or at the least something equivalent thereto (e.g. by operation of estoppel) is necessary for severance of a joint tenancy (see Partriche v. Powlet (1740) 2 Atk 54, at p 55 (26 ER 430, at p 431); and, generally, Nielson-Jones v. Fedden (1975) Ch 222, at pp 231-234; Freed v. Taffel, at pp 324-325). I do not think that it would be appropriate for this Court to alter the law in that regard in circumstances where the alteration would have a retrospective effect on conveyancing practice and would be likely to give rise to unintended consequences in other cases. Accordingly, Burgess v. Rawnsley (and the earlier English cases of Hawkesley v. May (1956) 1 QB 304 and In re Draper's Conveyance (1969) 1 Ch 486) should not be followed in this country.

18. Burgess v. Rawnsley would not, in any event, provide support for the appellants in the present case. To the contrary, Lord Denning M.R. was at pains to "emphasise that it (i.e. the desire to sever the joint tenancy) must be made clear to the other party" (at p 439). Indeed, it was the act of communication of the desire to sever the joint tenancy which was seen as the effective act. In the present case, it has not been suggested that Mrs. Patton did anything at all to communicate to Mr. Patton at any time before her death the fact that she wished to convert the joint tenancy into a tenancy in common.

19. There remains for consideration the question whether the transaction between Mrs. Patton and Mr. Corin gave rise to any other right or interest, short of a beneficial interest under a trust, which might have the effect of depriving Mr. Patton of the benefit of his right of survivorship under the legal joint tenancy. The answer to that question is clearly in the negative. All that Mr. Corin ever acquired pursuant to the transaction was the property in the actual memorandum of transfer as bare trustee for Mrs. Patton and a revocable chance that the Registrar-General would register the transfer without requiring production of the certificate of title. Upon Mrs. Patton's death without the memorandum of transfer having been even lodged for registration, that chance became without content since, even assuming that registration remains permissible after the death of the transferor (but cf. Cope v. Keene, at p 7), Mrs. Patton's interest in the property would have already devolved upon Mr. Patton by survivorship.

20. It follows from what has been said above that there had been no severance, either in law or in equity, of the joint tenancy at the time when Mrs. Patton died. That being so, Mr. Patton became the owner of the whole by survivorship. It is unnecessary to consider whether, if the effect of the transaction between Mrs. Patton and Mr. Corin had been that there was an equitable assignment by Mrs. Patton of her interest in the subject land, the legal joint tenancy between Mr. and Mrs. Patton would have been severed in equity with the result that Mr. Patton effectively lost the benefit of his legal right of survivorship notwithstanding that Mr. Patton had no notice of the assignment. The cases lend support for the view that an assignment will effect a severance even if it be concealed from the other joint tenant (see, e.g., Re Sammon, at p 609; Gray, op. cit., p 321, n.2). At least in the case of an assignment which could be kept concealed in the event of the death of the non-assigning joint tenant, there is, however, plainly something to be said for the view that a legal joint tenant should, by analogy with the position of a purchaser for value without notice or by operation of the doctrine of estoppel in pais, be unaffected as against the other joint tenant or a volunteer claiming through him, by an equitable assignment of the other joint tenant's share of which he remained ignorant until after the death of the other joint tenant.

21. The appeal should be dismissed.

TOOHEY J. At all material times the respondent and his wife, Annette Patton, were the registered proprietors as joint tenants of an estate in fee simple in land at Belrose in New South Wales.

2. Mrs Patton died on 17 July 1984. Anticipating her death, she took steps aimed at severing the joint tenancy and benefiting her children. These steps involved the execution of three documents, each prepared by a solicitor and dated 12 July 1984.

1. Mrs Patton transferred to her brother John Jeffrey Corin, the first appellant, her estate and interest as joint tenant in the land "In consideration of and pursuant to the terms of a Deed of Trust between the Transferor and Transferee of even date". 2. The parties to the deed of trust referred to in
the transfer were Mrs Patton and Mr Corin. By that deed Mr Corin declared that he held an interest in the land as tenant in common with Mr Patton "UPON TRUST for the beneficiary". The beneficiary was identified as Mrs Patton; she retained the power to appoint a new trustee during her lifetime. 3. The third document was a will in which, subject to
specific bequests of jewellery, Mrs Patton left her estate to her children in equal shares.

The transfer had not been registered at the time of Mrs Patton's death.

3. The mechanics of a transfer and deed of trust seem to have been inspired by those held effective in In the Marriage of Badcock (1979) 5 Fam L R 672. The question before the Court is whether the steps taken by Mrs Patton were effective to sever the joint tenancy with her husband so that she might devise an interest as tenant in common in the land to her children. To answer the question, reference to some other facts is necessary. These facts are detailed in the judgment of Mason C.J. and McHugh J. and, in this judgment, need only be mentioned in summary form. At the time of execution of the transfer, the land was mortgaged to the State Bank of New South Wales. The mortgage was unregistered but the bank held the certificate of title to the land by way of security. Before her death Mrs Patton took no steps to procure production of the certificate for registration of the transfer to Mr Corin. There were later developments concerning the bank and production of the certificate but they were some months after Mrs Patton's death and do not bear upon the issue to be resolved, except perhaps as throwing light on the bank's willingness to produce the certificate for registration of the transfer had Mrs Patton asked it to do so.

4. The means by which a joint tenancy may be severed have been stated on a number of occasions. A passage in the judgment of Page Wood V.-C. in Williams v. Hensman (1861) 1 J &H 546 (70 ER 862) is often cited in this regard. The passage appears in the judgment of Mason C.J. and McHugh J. A more succinct statement is that of Stirling J. in In re Wilks; Child v. Bulmer (1891) 3 Ch 59, at pp 61-62:

"A joint tenancy may unquestionably be severed either (1.) by a disposition made by one of the joint owners amounting at law or in equity to an assignment of the share of that owner; or (2.) by mutual agreement between the joint owners."

There is no inconsistency between the proposition of Page Wood V.-C. and that of Stirling J. so long as it is accepted (as it was by Stirling J.) that agreement between joint tenants may be express or implied from a course of conduct.

5. For the purposes of the present appeal, the starting point must be the existence of Mrs Patton and her husband as the registered proprietors as joint tenants of land under the provisions of the Real Property Act 1900 (N.S.W.) ("the Act"). As Baalman observed in the first edition of The Torrens System in New South Wales, (1951), at p 331:

"With regard to land under the R.P. Act, whatever relations may be set up between the joint tenants by dispositions dehors the register, their registered estates can be severed only by some dealing amounting to an assignment, which results in an alteration of the register-book".

The same proposition, with some change in language, appears in the second edition of the work, edited by Woodman and Grimes, (1974), at p 351.

6. Mr Baalman's observation is undoubtedly correct, having regard to the terms of s.41(1) of the Act which provides:

"No dealing, until registered in the manner provided by this Act, shall be effectual to pass any estate or interest in any land under the provisions of this Act ..."

7. The question in the present appeal is not whether there was severance of the registered estates, for clearly there was none. A consistent line of authority has held that, notwithstanding the language of the Act and other Torrens System statutes, an unregistered transfer may give rise to rights and obligations in equity. These in turn may constitute an equitable estate in the land. The application of equitable principles to land under the Torrens system was established as early as Barry v. Heider (1914) 19 CLR 197 and has been accepted since: see for instance J &H Just (Holdings) Pty. Ltd. v. Bank of New South Wales (1971) 125 CLR 546; Heid v. Reliance Finance Corporation Pty. Ltd. (1983) 154 CLR 326.

8. But there is no neat equation between legal and equitable interests on the one hand and registered and unregistered instruments on the other. An instrument of transfer is not effectual of itself to vest in the transferee either a legal or an equitable estate in the land: see Latham C.J. in Brunker v. Perpetual Trustee Co. (Ltd.) (1937) 57 CLR 555, at p 581. Where, however, there is a transaction for value which is recorded in a contract followed by an instrument of transfer or which is recorded in the transfer itself, there will result an equitable interest in the land commensurate with the transferee's ability to obtain specific performance of the contract: see Bahr v. Nicolay (No. 2) (1988) 164 CLR 604, at pp 612, 645-646. But where the transaction is not for value, the transferee acquires no estate in the land merely by force of execution and delivery of the transfer. Other considerations apply, for instance whether there has been a completed gift. It will be necessary to return to this matter later.

9. The answer to the question posed earlier in these reasons is not necessarily to be found in principles of equity. And while decisions relating to the efficacy of gifts may provide an analogy, too much emphasis on equitable principles and on those decisions tends to obscure what is at issue in the present appeal. Mrs Patton did not purport to make a gift to Mr Corin. She purported to transfer to him an interest which he would hold in trust for her. The persons in conflict are not donor and donee. The issue is not whether Mr Corin could enforce the transfer against Mrs Patton; rather it is whether that transfer had any consequences for what would otherwise be Mr Patton's right to be registered by survivorship as the registered proprietor of an estate in fee simple in the land.

10. Ordinarily, severance of a joint tenancy will be effected by the alienation by one joint tenant of his or her interest to a stranger though it may be effected by a transfer by joint tenants to themselves as tenants in common as in Wright v. Gibbons (1949) 78 CLR 313. In approaching the Act, it must be borne in mind, as Dixon J. pointed out in Wright v. Gibbons, at p 333, that "the interests of each joint tenant (fall) within the general statutory principle that all lands and all interests therein lie in grant". By the terms of s.41(1), it is upon registration of an instrument that the estate or interests specified in the instrument passes and, in terms of the Act, until registration the estate or interest of the transferor remains undisturbed. If the questions raised by this appeal turned solely upon the language of the Act, it would be enough to say that, the transfer executed by Mrs Patton remaining unregistered, there had been no alienation of her interest as joint tenant and accordingly, upon her death, her interest passed by survivorship to her husband. And, in the end, it is by reference to the Act that the appeal must be disposed of.

11. Where a transfer is by way of gift, the courts have imported the learning of Milroy v. Lord (1862) 4 De GF &J 264 (45 ER 1185) that equity will not assist a donee by perfecting an imperfect gift. Milroy v. Lord was relied upon in Anning v. Anning (1907) 4 CLR 1049 and later in Brunker. The respondent argued that Mrs Patton had not done all that was necessary on her part to divest herself of her interest as joint tenant and that, in particular, she had not taken the steps required by s.96(2) of the Conveyancing Act 1919 (N.S.W.) empowering her to call upon the bank to produce the duplicate certificate of title to the Registrar-General to enable the transfer to Mr Corin to be registered. More basically, the view of the Court of Appeal was that Mr Corin had not acquired a right to have the transfer registered "which the deceased ... could not intercept or defeat". This is the language of Dixon J. in Brunker, at p 600, a test that was approved in Taylor v. Deputy Federal Commissioner of Taxation (1969) 123 CLR 206.

12. However, the circumstances of the present case are different from those in the gift cases. There was no intention on the part of Mrs Patton that Mr Corin should have a beneficial interest in the land and no expectation on his part that he would have one. Indeed, by the deed of trust he was to hold whatever interest he acquired in trust for Mrs Patton so that once she divested herself of her registered estate in the land as joint tenant she would nevertheless be beneficially entitled to an interest as tenant in common. Some eleven years before Milroy v. Lord was decided, Sir John Romilly M.R., in Bentley v. Mackay (1851) 15 Beav 12, at p 18 (51 ER 440, at p 442), observed:

"In all cases where the legal owner intends voluntarily to part with property in favour of other persons, the Court requires everything to be done which is requisite to make the legal transfer complete; for if anything remains to be done, this Court will not be made an instrument for perfecting it." (emphasis added)

The failure of Mrs Patton to deliver the certificate of title to Mr Corin or to procure its production is not, in all the circumstances, crucial to the outcome of this appeal. Only one certificate is issued in the case of a joint tenancy. Baalman, 2nd ed. at p 353, notes:

"Now, except when formally requested, or in unusual circumstances such as the bankruptcy of a joint tenant or sale of his interest pursuant to a writ, it is not the practice to issue separate certificates of title upon severance of a joint tenancy. The transfer or other instrument effecting the severance will normally be registered by recording in the Register a single memorial specifying the present proprietors of the respective shares."

As a result of amendments made to the Act in 1970, even tenants in common no longer receive separate and distinct certificates of title as a matter of course. The Registrar is empowered to issue separate certificates of title in the circumstances mentioned in s.100(2).

13. The point is that, from the very nature of a joint tenancy, one joint tenant does not have a separate certificate of title reflecting his or her interest. Ordinarily there will be no certificate in the possession of one joint tenant which he or she is in a position to deliver to a proposed transferee, whether for value or otherwise. And so, to encompass delivery of the certificate in the steps required of a joint tenant seeking to sever the joint tenancy may be to make a somewhat unreal demand, even when the land is not encumbered.

14. When the land is encumbered, whether by registered or unregistered mortgage, the certificate of title will ordinarily be in the possession of the mortgagee. In those circumstances, a joint tenant seeking to sever the joint tenancy can do no more than call for production of the certificate to enable registration of the transfer of the joint tenant's interest. Section 96(2) of the Conveyancing Act entitles a mortgagor "to have the relevant certificate of title ... lodged at the office of the Registrar-General" to permit registration of an authorized dealing by the mortgagor. At the same time, s.38(1) of the Real Property Act contemplates that a dealing may be registered without production of the certificate of title; the Registrar may refuse to register a dealing in its absence but he is not obliged to do so.

15. So, failure by Mrs Patton to call upon the bank to produce the certificate of title for registration of the transfer to Mr Corin is not, in all the circumstances, of great moment. One would not have expected her to do so until a date had been fixed for registration of the transfer. To place great emphasis on this failure is, I think, to overlook the realities of the situation and conveyancing practice.

16. None of this is to suggest that notice by one joint tenant to another is sufficient to sever a joint tenancy. For the reasons given by Mason C.J. and McHugh J., the statement by Lord Denning M.R. in Burgess v. Rawnsley (1975) Ch 429, at p 439, should not be taken as representing the law in New South Wales. See also the note on Burgess v. Rawnsley in (1976) 50 Australian Law Journal 246.

17. But the question still remains. Did Mrs Patton effect a severance of her interest as joint tenant such as to divest Mr Patton of the right to be registered as sole proprietor of the land by survivorship? On Mrs Patton's death Mr Corin was in possession of a transfer of her interest in the land. Mrs Patton's death did not preclude registration of the transfer if it was otherwise registrable: Brunker, at p 585, where relevant authorities are noted; cf. Cope v. Keene (1968) 118 CLR 1, at p 7. The authorities relating to the completeness of gifts throw little if any light on Mr Corin's position because he did not ask for the assistance of the court to procure registration of the transfer. He did not need the assistance of equity "in getting in the property": Isaacs J. in Anning, at p 1063. Neither Mrs Patton nor her executors (admittedly Mr Corin was one of the executors) placed any obstacle in the way of registration. But he took no step to register the transfer nor, it would appear, to procure production of the certificate of title to enable him to do so. (For the reasons given by Mason C.J. and McHugh J., s.96(2) of the Conveyancing Act would not have been available to Mr Corin.) What now stands in the way of registration is the declaration of McLelland J. that Mr Patton "is solely entitled by survivorship to an estate in fee simple" in the land in question. Of course, in a sense, the declaration begs the question so far as this appeal is concerned for it is the declaration that is under attack.

18. In Brunker, at p 602, Dixon J. identified the question before the Court as whether the intending donor, by his acts, "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". The question in the present appeal is not, I think, whether Mrs Patton, by her acts, placed Mr Corin in such a position that under the Act he had a right to have the transfer registered, a right which Mrs Patton could not recall. A transferee may present a transfer for registration; he does not need the concurrence of the transferor to do that, though he will require the certificate of title unless the Registrar is prepared to dispense with production.

19. But the point is that the transfer had not been registered at the time of Mrs Patton's death, whatever the reason. At the moment of her death Mr Corin held a transfer. It was not a transfer for valuable consideration, notwithstanding the reference to a deed of trust. As Hope J.A. in the Court of Appeal said of the contrary proposition:

"If it were correct, every transfer of land to a person expressly agreeing to be a trustee would be for valuable consideration, and every agreement to enter into such a transaction would also be for valuable consideration. In my opinion this is not and never has been the law. There would have been no need for the enunciation of the principle in Milroy v. Lord if it were."

While I have said that I do not think the question to be answered is whether Mrs Patton placed Mr Corin in such a position that he had a right to have the transfer registered, a right that she could not recall, I agree with the conclusion reached by the Court of Appeal in that regard, namely, that he did not have such an unqualified right. Possession of the certificate of title aside, Mrs Patton could have recalled the transfer and taken steps, by caveat or injunction, to prevent its registration.

20. The decision of the Supreme Court of Canada in Stonehouse v. Attorney-General B.C. (1961) 31 DLR (2d) 118 is not truly in point. There a husband and wife owned property as joint tenants and before her death the wife transferred her interest to her daughter by a previous marriage. The transfer was registered but, for the purposes of a claim against the Assurance Fund, it was necessary to consider the position of the parties immediately before registration. Ritchie J., delivering the judgment of the court, held that there had been an effective severance of the joint tenancy at the time of transfer. The decision turned, however, on the language of a provision of the Land Registry Act 1948 of British Columbia, not dissimilar to s.41(1) of the Act save that it is prefaced with the words "Except as against the person making the same, no instrument ...". Thus, registration of a transfer, whether made for consideration or not, may be enforceable against the transferor. Such a broad operation cannot be given to s.41(1) of the Act.

21. The real point is that the transfer to Mr Corin had not been registered at the time of Mrs Patton's death. There was no transaction that equity would enforce; there was a transaction that had not been consummated. There had been no divesting by Mrs Patton of her interest as joint tenant. Her registered title remained intact. And not only her registered title. The language of Aickin J. in D.K.L.R. Holding Co. (No.2) Pty. Ltd. v. Commissioner of Stamp Duties (N.S.W.) (1982) 149 CLR 431, at p 463, is apposite here:

"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."

22. On Mrs Patton's death the Registrar-General was empowered, on application, to register Mr Patton as proprietor of an estate in fee simple in the land pursuant to s.101 of the Act. In practice what is required is a Notice of Death: see Baalman and Wells, Land Titles Office Practice, 4th ed. (1980), p 65. While there is no change in the registered title of the surviving joint tenant until endorsement on the certificate of title by the Registrar-General, no question of priority of interest arises. To say that a voluntary transfer in registrable form can be registered after the death of the transferor is not to say that the transferee has a right which prevails over other interests. In any event, the transfer to Mr Corin has not been registered. As Latham C.J. observed in Wright v. Gibbons, at p 324: "The Real Property Act does not alter the law with respect to joint tenancy. It leaves the incidents of joint tenancy standing as they are determined by the common law and any other relevant statute." On Mrs Patton's death, her interest survived to Mr Patton. He therefore became entitled by survivorship to an estate in the land. McLelland J.'s declaration gives effect to that position. None of this is affected by s.24 of the Conveyancing Act whereby a person "may assure property to himself, or to himself and others". There was no assurance from Mrs Patton to herself or to herself and others.

23. The appeal should be dismissed.

Orders

Appeal dismissed with costs.