Davis v Williams

Case [2003] NSWCA 371
CITATION: Davis v Williams [2003] NSWCA 371
HEARING DATE(S): 25/07/03
JUDGMENT DATE:
16 December 2003
JUDGMENT OF: Hodgson JA at 1; Young CJ in Eq at 52; Gzell J at 224
DECISION: (1) Appeal allowed; (2) Orders made by Davies AJ be set aside; (3) Order that the claim by the opponent as surviving joint tenant to a half share in the half share of the estate of Malcolm Clarence Williams in the property 19 Heyson Avenue, Ermington, NSW, be dismissed; (4) Order that the opponent pay the costs of the claimant and of the second opponent both of the trial before Davies AJ and this appeal; (5) First opponent to have a certificate under the Suitors Fund Act if qualified; (6) Remit the proceedings to the Equity Division for the Family Provision Act application to be heard and determined.
CATCHWORDS: REAL PROPERTY- Torrens System- Fraud- Alteration of document by registration clerk- Whether fraud- Whether attributable to registered proprietor. AGENCY- Principle that he who takes benefit of an authorised agent's act is bound- What is meant by "benefit".
LEGISLATION CITED: Family Law Act 1975, s 79
Family Provision Act 1982
Local Government Act 1993
Real Property Act 1900, ss 42, 97, 118
CASES CITED: Assets Co Ltd v Mere Roihi [1905] AC 176
Australian Guarantee Corporation v De Jager [1984] VR 483
Bahr v Nicolay (No 2) (1988) 164 CLR 604
Bank of South Australia Ltd v Ferguson (1998) 192 CLR 248
Barrow v Bank of New South Wales [1931] VLR 323
Beatty v ANZ Banking Group Ltd [1995] 2 VR 301
Blackburn, Low & Co v Vigors (1887) 12 App Cas 531
BNP Paribas v Pacific Carriers Ltd [2002] NSWCA 379
Bogdanovic v Koteff (1988) 12 NSWLR 472
Boyd v Mayor of Wellington [1924] NZLR 1174
Brickwood v Young (1905) 2 CLR 387
Butler v Fairclough (1917) 23 CLR 78
Colonial Mutual Life Assurance Society Ltd v Producers & Citizens Co-Operative Assurance Co of Australia Ltd (1931) 46 CLR 41
Conlan v Registrar of Titles (2001) 24 WAR 299
Corin v Patton (1990) 169 CLR 540
Cray v Willis (1729) 2 P WMS 529; 24 ER 847
Demetrios v Gikas Dry Cleaning Industries Pty Ltd (1991) 22 NSWLR 561
Dixon v Olmius (1787) 1 Cox 414; 29 ER 1227
Forgeard v Shanahan (1994) 35 NSWLR 206
Frazer v Walker [1967] 1 AC 569
Grgic v Australian & New Zealand Banking Group Ltd (1994) 33 NSWLR 202
Hardy v Lane (1994) 6 BPR 13968
Hedley v National Commercial Banking Corporation of Australia Ltd (C/A, unreported, 31.10.86)
Hickey v Powershift Tractors Pty Ltd (1998) 9 BPR 17339
Hollis v Vabu Pty Ltd (2001) 207 CLR 21
Houghton v Immer (No 155) Pty Ltd (1997) 44 NSWLR 46
Huguenin v Baseley (1807) 14 Ves 273; 33 ER 526
Jervis v Berridge (1873) LR 8 Ch App 351
Jessett Properties Ltd v UDC Finance Ltd [1992] 1 NZLR 138
Jones v Dunkel (1959) 101 CLR 298
Kettlewell v Refuge Assurance Co [1908] 1…

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AGLC
Davis v Williams [2003] NSWCA 371
Case
[2003] NSWCA 371
Decision Date

CaseChat Overview and Summary

The appeal concerned a dispute over a property at 19 Heyson Avenue, Ermington, NSW, between the claimant, Ms. Davis, and the opponent, Mr. Williams, who was the surviving joint tenant. The central issue revolved around the registration of a transfer of a half share in the property, which had been altered by a registration clerk without the knowledge of the registered proprietor, Mr. Williams. Ms. Davis claimed a right to a half share in Mr. Williams's estate in the property, alleging fraud in the registration process.

The court was required to determine whether the alteration of the transfer document by the registration clerk constituted fraud for the purposes of the Torrens system, and if so, whether such fraud was attributable to the registered proprietor, Mr. Williams. Furthermore, the court had to consider the principle that a party who takes the benefit of an authorised agent's act is bound by that act, and what constitutes a "benefit" in this context.

The court reasoned that the alteration of the transfer document by the registration clerk, while an unauthorised act, did not amount to fraud attributable to Mr. Williams. The clerk's actions were not undertaken with the intention to deceive Mr. Williams or to deprive him of his interest in the property. The court found that Mr. Williams had not taken any benefit from the fraudulent act of the clerk, as he was unaware of the alteration and had not sought to gain from it. Consequently, the principle of agency did not apply to bind him to the altered transfer.

The appeal was allowed, and the orders made by Davies AJ were set aside. The claim by Mr. Williams as surviving joint tenant to a half share in the estate of Malcolm Clarence Williams in the property was dismissed. Mr. Williams was ordered to pay the costs of Ms. Davis and the second opponent, both at trial and on appeal. The proceedings were remitted to the Equity Division for the Family Provision Act application to be heard and determined.

Orders

Orders of the court

(1) Appeal allowed; (2) Orders made by Davies AJ be set aside; (3) Order that the claim by the opponent as surviving joint tenant to a half share in the half share of the estate of Malcolm Clarence Williams in the property 19 Heyson Avenue, Ermington, NSW, be dismissed; (4) Order that the opponent pay the costs of the claimant and of the second opponent both of the trial before Davies AJ and this appeal; (5) First opponent to have a certificate under the Suitors Fund Act if qualified; (6) Remit the proceedings to the Equity Division for the Family Provision Act application to be heard and determined.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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