Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Gerard Cassegrain & Co Pty Limited v Felicity Cassegrain [2013] NSWCA 453 Hearing dates: 21 and 22 February 2013 Decision date: 18 December 2013 Before: Beazley P at [1];
Basten JA at [120];
Macfarlan JA at [152]Decision: (1) Allow the appeal and set aside orders 2 and 3 made in the Equity Division on 11 November 2011 and entered on 15 November 2011.
(2) Declare that Felicity Cassegrain holds the property described in Folio identifiers 4/792413, 1/798316, 115/754434, 124/754434, 2/720827, 117/754434, 118/754434 and 174/754434 on trust for Gerard Cassegrain & Co Pty Ltd absolutely.
(3) Order that Felicity Cassegrain execute a Real Property Act transfer the property so described to the previous registered proprietor, Gerard Cassegrain & Co Pty Ltd [ACN 000 342 174] by Friday 14 February 2014.
(4) Order that Felicity Cassegrain pay Gerard Cassegrain & Co Pty Ltd's [ACN 000 342 174] costs of the trial with respect to the relief claimed against her.
(5) Order that Felicity Cassegrain pay the appellant's costs of this appeal.
(6) Grant Felicity Cassegrain a certificate under the Suitors' Fund Act 1951 in respect of the costs of the appeal.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords: REAL PROPERTY - Torrens title - indefeasibility of title - fraud exception -agency.
REAL PROPERTY - Torrens title - indefeasibility of title - fraud exception - co-ownership - joint tenants - whether fraud of one joint tenant in taking of title affects other joint tenant - where first joint tenant later transferred his interest to other joint tenant.
REAL PROPERTY - Torrens title - indefeasibility of title - proceedings for the possession or recovery of land - proceedings brought by a person deprived of land by fraud - Real Property Act 1900, s 118(1)(d).
ESTOPPEL - former adjudication - whether issue estoppel - whether privy in interest - co-ownership - joint tenancy.
APPEAL AND NEW TRIAL - appeal - general principles - Supreme Court Act 1970, s 75A - appeal by way of rehearing - Blatch v Archer (1774) 1 Cowp 63; 98 ER 969 - whether inference of agency should be drawn.Legislation Cited: Bankruptcy Act 1966 (Cth), s 121
Conveyancing Act 1919, s 26
Real Property Act 1900, ss 42, 45, 97, 100, 118
Supreme Court Act 1970, s 75ACases Cited: Advance (NSW) Insurance Agencies Pty Ltd v Matthews [1989] HCA 22; 166 CLR 606
Assets Co Ltd v Mere Roihi [1905] AC 176
Australian Securities and Investments Commission v Hellicar [2012] HCA 17; 247 CLR 345
Bahr v Nicolay (No 2) [1988] HCA…
Keep reading for free
Create a free CaseChat account to read Gerard Cassegrain & Co Pty Ltd v Cassegrain and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2013] NSWCA 453
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the indefeasibility of title provisions under the *Real Property Act 1900* could be defeated by the alleged fraud. Specifically, the court considered whether the fraud of one joint tenant in the taking of title could affect the other joint tenant, particularly in circumstances where the fraudulent joint tenant later transferred their interest to the other. The court also had to consider whether the appellant was entitled to recover possession of the land under section 118(1)(d) of the *Real Property Act 1900* as a person deprived of land by fraud, and whether principles of issue estoppel applied given previous proceedings.
The Court of Appeal allowed the appeal, setting aside previous orders. The court reasoned that the fraud of one joint tenant, in this instance, could indeed affect the other joint tenant's title, especially when that interest was subsequently transferred. The court found that Felicity Cassegrain held the properties on trust for Gerard Cassegrain & Co Pty Ltd. Consequently, the court ordered that Felicity Cassegrain execute transfers of the properties to Gerard Cassegrain & Co Pty Ltd and pay the appellant's costs of both the trial and the appeal.
Orders
Orders of the court
(1) Allow the appeal and set aside orders 2 and 3 made in the Equity Division on 11 November 2011 and entered on 15 November 2011.
(2) Declare that Felicity Cassegrain holds the property described in Folio identifiers 4/792413, 1/798316, 115/754434, 124/754434, 2/720827, 117/754434, 118/754434 and 174/754434 on trust for Gerard Cassegrain & Co Pty Ltd absolutely.
(3) Order that Felicity Cassegrain execute a Real Property Act transfer the property so described to the previous registered proprietor, Gerard Cassegrain & Co Pty Ltd [ACN 000 342 174] by Friday 14 February 2014.
(4) Order that Felicity Cassegrain pay Gerard Cassegrain & Co Pty Ltd's [ACN 000 342 174] costs of the trial with respect to the relief claimed against her.
(5) Order that Felicity Cassegrain pay the appellant's costs of this appeal.
(6) Grant Felicity Cassegrain a certificate under the Suitors' Fund Act 1951 in respect of the costs of the appeal.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.