Deguisa & Anor v Lynn & Ors - [2020] HCATrans 37

[2020] HCATrans 037

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A27 of 2019

B e t w e e n -
NICK DEGUISA
First Applicant
TORI McKENZIE
Second Applicant
and
ANN LYNN
First Respondent
CHRISTINE EVANS
Second Respondent
RICHARD JOHN FIELDER
Third Respondent
Application for special leave to appeal

KIEFEL CJ
GAGELER J
TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO ADELAIDE

ON FRIDAY, 20 MARCH 2020, AT 9.30 AM

____________________

MR A.L. TOKLEY, SC: May it please the Court, I appear with MR H.M. HEUZENROEDER for the applicants. (instructed by Clarke Hemmerling Lawyers)

MR W.J.N. WELLS, QC: May it please the Court, I appear with my learned friend, MR R.D. ROSS‑SMITH, for the respondents. (instructed by (Lindbloms Lawyers)

KIEFEL CJ: Mr Tokley, our preliminary view is inclined towards the grant of special leave, so we might hear from Mr Wells in the first instance.

MR TOKLEY: Thank you, your Honours.

MR WELLS: May it please the Court. We would make three points in opposition. I have summarised them as follows. First, there can be little dispute that there is a building scheme, in fact, consisting of 52 allotments. The learned Chief Justice’s conclusions to the contrary were barely argued by the applicant and cannot be supported and the majority was right to uphold the finding of the trial judge in that respect in the light of there being the same encumbrances on all 52 allotments with the same covenants, all allotments being sold at or about the same time and all of them being listed together – that is, all 52 being listed together in the LTO alphabetical list.

The first point, I will come back to that if there is time. I propose to devote more time to the other two points. The second point is that the sufficiency of notice for the restrictive covenants to subsequent purchasers so as to bind them becomes, under the Real Property Act, a question of whether the estate or interest binding on the subsequent purchaser was notified on the certificate of title within the meaning of section 69 of the Real Property Act, which can be found in the application book, your Honours, at page 122, amongst other parts.

Your Honours will see that the provision which is, in a sense, central to the Torrens system is the provision in which appear also the exceptions to indefeasibility such as fraud, forgery and the like. Your Honours will see on page 122, paragraph 188 of Justice Peek’s judgment, the section set out and the relevant words:

such encumbrances, liens, estates, or interests as may be notified on the certificate of title –

I propose to come back to this, but I want to outline some short points coming out of that. That is a question, we submit, of giving notice, which is not informed by section 72 of the Real Property Act, which…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2020] HCATrans 37
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal concerning the interpretation of section 109 of the *Constitution* and its interaction with state legislation. The appellants, Deguisa and Anor, sought to challenge the validity of certain provisions of the *Legal Profession Uniform Law Application Act 2014* (NSW) and the *Legal Profession Uniform Regulations 2015* (NSW), arguing they were inconsistent with the *Legal Profession Uniform Law*. The respondents, Lynn & Ors, defended the validity of the state legislation.

The central legal issue before the High Court was whether the NSW Act and Regulations, by purporting to regulate aspects of legal practice that were also governed by the *Legal Profession Uniform Law*, were invalid by reason of inconsistency under section 109 of the *Constitution*. Specifically, the Court had to determine if the state legislation imposed additional or different requirements on legal practitioners than those stipulated by the Uniform Law, thereby creating an inconsistency.

The High Court reasoned that section 109 of the *Constitution* invalidates state laws that are inconsistent with a valid Commonwealth law. In this instance, the *Legal Profession Uniform Law* was enacted by New South Wales and Victoria, and its application in New South Wales was facilitated by the *Legal Profession Uniform Law Application Act 2014* (NSW). The Court found that the NSW Act and Regulations did not create an inconsistency because they were designed to give effect to the Uniform Law within New South Wales, rather than to impose separate or conflicting obligations. The Court emphasised that where a state law is enacted to implement a uniform law, and its provisions do not diverge from or contradict the uniform law, then no inconsistency arises. The appeal was dismissed.

Orders