Drake v Templeton

The case of Drake v Templeton involved an appeal to the High Court of Australia from a decision of the Supreme Court of Victoria concerning the registration of a mortgage instrument under the Transfer of Land Act 1890. The dispute arose when the Registrar of Titles refused to register a mortgage executed by Hugh Drake as mortgagor to Margaret Jane Mackay and Elizabeth Atchison as mortgagees. The mortgage instrument contained a clause specifying that the principal sum of £700 belonged to the mortgagees in unequal proportions, £475 to Mackay and £225 to Atchison.

The legal issues before the High Court were whether the mortgage instrument, by specifying unequal contributions from the mortgagees, constituted a variation from the prescribed form that was a matter of substance, and whether such a variation prohibited its registration. Specifically, the Registrar contended that the clause amounted to a declaration of trust, which was forbidden by section 57 of the Act, and that it effectively created two mortgages in one instrument, thereby altering the substance of the mortgage and potentially causing confusion regarding the parties' rights and remedies.

The High Court, allowing the appeal, held that the Registrar was not justified in refusing registration. The Court reasoned that the Transfer of Land Act was intended to facilitate, not obstruct, business, and that variations from prescribed forms are permissible if they do not affect the substance of the transaction. The clause specifying the unequal proportions was interpreted as indicating that the mortgagees were several owners, not joint owners, and that this did not fundamentally alter the nature of the mortgage or create an impermissible trust disclosure. The Court found that the Registrar's concerns about embarrassment to the public or the office were unfounded, as the document, when read as a whole, clearly indicated the parties' intentions and did not prevent the proper administration of the Act.

Consequently, the High Court ordered that the mortgage be registered. The decision of the Supreme Court was reversed, and the Registrar was directed to register the instrument. The respondent, the Registrar of Titles, was ordered to pay the costs of the application and the appeal.