Goodwin v Gilbert
[2000] QSC 309
•11 September 2000
SUPREME COURT OF QUEENSLAND
| CITATION: | Goodwin & Anor v Gilbert & Ors [2000] QSC 309 |
| PARTIES: | JOHN PATRICK ANTHONY GOODWIN and CATHERINE ALICE GOODWIN as Executors and Trustees of the Estate of JOHN TAYLOR GOODWIN (Deceased) (applicants) v ERROL RODERICK GILBERT, TREVOR GEORGE GILBERT, NEROLI DORELLE GILBERT, HIRAM ROSS GILBERT, VERNEE JOSEPH GILBERT and EDWARD JOHN GILBERT (respondents) |
| FILE NO/S: | SC No 5720 of 2000 |
| DIVISION: | Trial Division |
| PROCEEDING: | Application |
| DELIVERED ON: | 11 September 2000 |
| DELIVERED AT: | Brisbane |
| HEARING DATES: | 1, 4 and 9 August 2000 |
| JUDGE: | Atkinson J |
| ORDER: | (1)The application for the removal of caveats 704036283 and 704036264 is dismissed. (2) The respondents are given leave to amend caveats 704036283 and 704036264 within 14 days of the delivery of this judgment. |
| CATCHWORDS: | TORRENS SYSTEM – CAVEAT – APPLICATION FOR REMOVAL - application to remove caveats by personal representatives – testator failed to pay rates and Albert Shire Council sold the land to the respondents pursuant to s 27(11) Local Government Act 1936 – respondent failed to satisfy requisition issued when lodgment of certificates of sale rejected – personal representatives registered proprietors – respondent lodged caveats to protect interests – whether serious question to be tried – whether fairly arguable that respondent will fall within exceptions to indefeasibility or will establish adverse possession. Local Government Act 1936, s 27(11) Bahr v Nicolay[No 2] (1998) 164 CLR 604, considered Bogdanovic v Koteff (1988) 12 NSWLR 472, distinguished Union Bank of Australia v Harrison, Jones & Devlin Ltd (1910) 11 CLR 492, considered |
| COUNSEL: | M P Amerena for the applicants |
| SOLICITORS: | Tony Goodwin & Associates for the applicants |
ATKINSON J: The respondents are Errol, Trevor, Neroli, Hiram, Vernee and Edward Gilbert (“the Gilbert family”). They are the six children of Hiram and Clara Gilbert who owned and farmed a 210 acre property at Springbrook known as “Grey Rock” (“the Gilbert farm”) since they married in 1939. Next to this property is land which was registered on 26 November 1958 to John and Frances Goodwin as joint tenants of an estate in fee simple (“the neighbouring land”).[1]
[1]The neighbouring land consisted of CT 655116, Vol 3163 Folio 106, County of Ward, Parish of Numinbah, Plan 51168, Subdivisions 7 to 10 of Portion 136; DG 137196 Vol 2940 Folio 206, County of Ward, Parish of Numinbah, Subdivision 11 of Portion 136; DG 137196 Vol 2940 Folio 206 in the County of Ward, Parish of Numinbah, being Subdivision 12 of Portion 136; CT 655117, Vol 3163, Folio 107 in the County of Ward, Parish of Numinbah, Subdivision 13 of Portion 136. This land is now properly described as lots 7, 8, 9 and 10 on RP 51168, County of Ward, Parish of Numinbah, Title Reference 13163106; Lots 11 and 12 on RP WD2152, County of Ward, Parish of Numinbah, Title Reference 12940206; Lot 13 of RP 52706, County of Ward, Parish of Numinbah, Title Reference 13163107.
However, Mr and Mrs Goodwin failed to pay the rates on the neighbouring land and on 22 October 1969 the Albert Shire Council resolved pursuant to s 27 of the Local Government Act 1936 to sell the neighbouring land for arrears of rates. It appears that Mr and Mrs Goodwin resided at Kureelpa, Nambour at that time and owed some $188.12 in unpaid rates. Section 27 provides relevantly as follows:
sale of land for arrears of rates
(11) (i) Power to sell land for arrears of rates. When in respect of any rateable land any rates accrued thereon . . . have . . . remained unpaid for three years or longer . . . the Local Authority shall without further authority than this Act be empowered to sell such land.
(ii) Notice of sale to be served. The Local Authority, after resolving to sell any such land as aforesaid, shall forthwith cause to be served on the registered proprietor of such land . . . a notice of sale . . . together with a statement of the provisions of the law relating to the sale of land for arrears of rates:-
. . .
A notice of sale required to be served under this paragraph shall be served-
(a)by registered post;
. . .
(iii) Powers of sale. (a) After the expiration of three months . . . and before the expiration of six months from the date of the notice of sale, unless the rates due and in arrear in respect of the said land, and all expenses incurred by the Local Authority in connection with the proposed sale of the said land, are sooner paid, the Local Authority shall proceed with the sale of land.
(b) The land shall be sold by public auction.
(c) Not more than twenty-one days nor less than fourteen days before the date of the sale the notification of time and place of the sale and a full description of the land to be sold shall be advertised in some newspaper, and a notice containing particulars of the sale and a full description of the land to be sold shall be affixed on some conspicuous part of the said land and be served upon the registered proprietor by registered post as in the case of the notice of sale.
A copy of the notice served upon the registered proprietor shall, not later than the date the notice is so served, be posted up at the office of the Local Authority and it shall be kept so posted up at such office thereafter until the date of the sale.
(d) The Local Authority may place a reserve price upon the said land and, where it does so and that reserve price is not reached at the sale, the Local Authority shall thereupon be deemed to be the purchaser at the reserve price and there shall be deemed to have been a sale accordingly.
(iv) Application of moneys arising from sale. The moneys arising from the sale of any land (including a sale pursuant to subparagraph (d) of paragraph (iii) of this subsection) shall except as is hereinafter provided in subsection thirteen be applied by the Local Authority in priority to every mortgage, encumbrance, lien, bill of sale, caveat, judgment, writ, warrant, or other charge, agreement, or process registered against or in any way affecting the land, and notwithstanding any disability of any person on any statute of limitations –
Firstly, in payment of all expenses incurred in connection with the sale of such land;
Secondly, in payment of all rates and interest due to the Local Authority; and
Thirdly, in and towards payment of all rates due to the Local Authority in respect of any other land within its Area for which the person named in the notice of sale is rated;
Fourthly, in payment of all rates, charges, interest, and other moneys due to the Local Authority under this Act or any other Act or to a water authority under the Water Authorities Acts.
After payment of the moneys abovementioned, the residue of any moneys arising from the sale of the land shall belong to such person as would, if no sale had taken place, have been entitled to receive the rents and profits of the land:
Provided that if such moneys are unclaimed for a period of two years, the same shall be paid to the Public Curator of Queensland as unclaimed moneys and shall be dealt with accordingly.
ISSUE OF TITLE UPON SALE
(v) Issue of title on certificate of sale of land for rates. Upon the sale of any land as aforesaid other than a sale pursuant to subparagraph (d) of paragraph (iii) of this subsection, the Local Authority shall furnish to the registrar of titles under the seal of the council a certificate which shall be in the following form set out hereunder, or to the like effect certifying that the land has been sold in pursuance of this section and specifying the description of the land, the name, occupation, and address of the purchaser of such land, and the amount of consideration received for such land, and the registrar of titles shall thereupon, without any further authority than this Act, and notwithstanding any other Act to the contrary, and notwithstanding the non-production of the instrument of title, register the person named in such certificate for an estate in fee-simple in the said land free of any obligation hereinbefore referred to in paragraph (iv) of this subsection, . . . and shall, without any fee in respect of such registration, issue to such person a clear title to the said land.
“The Local Government Act of 1936”
Certificate of Sale of Land under Section 27 of
“The Local Government Act of 1936”
Whereas the Council of the [Town, City, or Shire] of
on the day of , one thousand nine hundred and , acting in pursuance of Section 27 of “The Local Government Act of 1936,” resolved to sell certain land whereof is the registered proprietor, situated in the County of , Parish of , and described in certificate of title [or deed of grant or instrument of lease, or certificate of registration, or other instrument of title] Number , Volume , Folio , containing acres roods and
perches, more or less:Now therefore the Council of the [Town, City or Shire] of
hereby certifies that the procedure prescribed by the said Act has been duly complied with and that the said land was sold for the sum of dollars and cents to [name]
[occupation], and that the said [name of purchaser] is now entitled to be registered for an estate in fee-simple in the said land free of any obligation [or for the entire estate or interest of the owner or occupier in default free of any obligation].Dated at this day of , one thousand nine hundred and .
Clerk of the Council:
Mayor or Chairman.
Seal of the council:”
The procedures set out in s 27 were followed and the neighbouring land was sold by public auction to the Gilbert family in November 1969 for $420.00. Mr and Mrs Gilbert purchased an estate in fee simple to the neighbouring land as a gift for their six children. On 29 January 1970 the Albert Shire Council issued the Gilbert family with certificates for sale of land pursuant to s 27(11)(v) of the Local Government Act 1936. On 5 July 1971 the certificates of sale were lodged for stamping and duty was paid. On 23 February 1972 the certificates of sale were lodged in the Titles Office. Requisitions were issued saying that a “Complied Plan of Survey should be lodged” and ultimately, as noted on the certificates of title, the registration of the certificates of sale was rejected on 18 December 1974. The new plan of survey was apparently required because an additional lane was created to a roadway which ran through part of the Goodwin land during the 1950s.[2] Errol Gilbert consulted Mr Ted Bennett of Bennett and Bennett, Surveyors on the Gold Coast, and arranged for him to prepare a Plan of Survey in answer to the requisition but no plan was lodged although a plan dated 14 October 1974 had been prepared.
[2]No argument was raised as to whether or not the Registrar should have registered the certificates of sale so I make no finding on this point.
Many years passed when the registered owners of the neighbouring land remained John Taylor Goodwin and Frances Goodwin, who could be considered as bare holders of the legal estate.[3] After 1969, Mr Gilbert and the Gilbert family used the neighbouring land for timber getting. They considered themselves to be in possession and the owners of the neighbouring land. Errol Gilbert, the eldest of the six children, who had the responsibility of registering the Certificates of Sale of Land in the Titles Office, did not seek legal advice and was transferred as a teacher to Proserpine in North Queensland in 1970 and then back to Brisbane in 1972. In the meantime, Mr and Mrs Gilbert paid all the rates on the neighbouring land from October 1969 until June 1989 when Mr Gilbert died. Since June 1989, Errol Gilbert has paid all the rates on behalf of himself and his brothers and sisters. By February 2000, the rates were $521.54 a quarter.[4]
[3]Clark v Raymor (Brisbane) Pty Limited[No 2] [1982] Qd R 790 at 797.
[4]The paragraphs of the affidavit deposing to the payment of rates, the changes to the land requiring a new plan of survey and the use made by the Gilbert family of the neighbouring land were objected to as irrelevant but were, in my view, relevant given the way in which the application was argued.
Frances Goodwin died on 21 July 1974 and John Taylor Goodwin died on 15 April 1999 in Toowoomba. In his last will which was dated 24 May 1992 the residue of his estate, which included this land, was left to his second wife and the daughter and son of that marriage. He appointed his second wife, Catherine Alice Goodwin, and his eldest son, John Patrick Anthony Goodwin (“Tony Goodwin”), to be his executors.
In September 1999, the Gilbert family were considering a land swap where they would release part of Lot 12 of the neighbouring land. The respondents, who were born and raised in the Springbrook area, are each approaching retirement, and the Gilbert family intend to retain the rest of the neighbouring land for those members of the family who wish to retire in the area. When Neroli Gilbert made formal enquiries of the Titles Office, she became aware that the Gilbert family were not the registered owners of the neighbouring land and engaged solicitors to prepare and lodge caveats to protect their interests.
Shortly after 10 March 2000, the executors of Mr Goodwin’s estate lodged in the Titles Office a request to record the death of Frances Goodwin, a transmission by death of John Taylor Goodwin and a request to dispense with production of the Certificates of Title.
On 3 April 2000 the applicants became the registered proprietors as personal representatives[5] of the neighbouring land at Springbrook which had been sold in 1969 to the Gilbert family. The neighbouring land has not yet been transferred to the beneficiaries of the estate of John Taylor Goodwin. On 24 July 2000, the executors of John Taylor Goodwin’s will were granted probate in solemn form.
[5]Pursuant to s 111 of the Land Title Act 1994.
On 9 May 2000 the Gilbert family lodged caveats 704036283 and 704036264 claiming an estate in fee simple as purchaser. The “Grounds of claim” were said to be the certificate of sale of the land dated 29 January 1970 between the Shire of Albert and the Gilbert family. Notice of this was given by the Registrar of Titles to the personal representatives of John Taylor Goodwin on 11 May 2000. On 17 May 2000, solicitors for the respondents provided certificates of sale of the neighbouring land from the Albert Shire Council to the personal representatives and explained all of the circumstances of the purchase of the land by the Gilbert family. They informed Tony Goodwin, who is also a solicitor, that since the purchase of the land in 1969, the Gilbert family had paid the rates and had been in possession of and used the land.
As the matter was unable to be resolved, on 29 June of this year the Gilbert family issued Supreme Court proceedings against the personal representatives for a declaration that they are entitled to be registered as owners of an estate in fee simple of the neighbouring land and consequential orders requiring transfer of the land to them. No defence has been filed in that action by the applicants.
On 2 August 2000, the respondents’ solicitors once again lodged the certificates of sale for registration. On 4 August 2000, the following requisitions were raised:
“As the certificate of sale relates to part of a lot a plan of survey is required to be lodged.
Caveat 704226228 affect the within land and should be dealt with.
In view of the registration of Record of Death Dealing no 703831269 and Transmission by Death Dealing no 703831294 what is the authority for this transaction?”
Caveat 704226228 had been lodged by the applicant, Tony Goodwin, on 1 August 2000. Notice of that was given to the Gilbert family by the Registrar of Titles on 2 August 2000 which was received by their solicitor on 7 August 2000.
It was conceded by the Registrar of Titles who appeared by counsel as amicus curiae, that his requisition in relation to the plan of survey could probably be satisfied by the preparation of a new plan of survey.[6] The respondents have retained a consulting surveyor who, it would appear, will have no difficulty in satisfying that requisition. The second requisition refers to the caveat lodged by the applicants which they have undertaken to withdraw forthwith if the respondents’ caveats are removed by the Court.[7] It is otherwise irrelevant to the present application. The third requisition is essentially the matter before the Court, at least in a summary way, on the present application. The Registrar of Titles, who is not a party, correctly declined to express a view on this matter, except as to the interpretation of s 127 of the Land Title Act 1994, preferring to leave the matter to the parties who are able to look after their competing interests.[8]
[6]As I have previously noted, because the matter was not squarely raised, I make no finding as to whether the plan of survey lodged was correctly rejected: cf Beames v Leader [2000] 1 Qd R 347.
[7]The applicants also offered an undertaking on the last day of hearing which in its terms referred to a proposed undertaking by the respondents. Presumably this was a mistake. Even if this were corrected, the proposed undertaking referred to time which has now expired. It does show however that the applicants were prepared to allow the respondents to lodge caveats on different grounds before they lodged any other dealings.
[8]Beames v Leader (supra) at 354, 362.
The personal representatives have applied for removal of the Gilbert family’s caveats under s 127 of the Land Title Act 1924 which provides:
“Removing a caveat
127.(1) A caveatee may at any time apply to the Supreme Court for an order that a caveat be removed.
(2) The Supreme Court may make the order whether or not the caveator has been served with the application, and may make the order on the terms it considers appropriate.”
This section replaced s 99 of the Real Property Act 1861 which provided:
“99. Notice of caveat to parties. Person lodging caveat may be summoned to show cause. Upon receipt of any caveat the Registrar-General shall notify the same to the person against whose right to deal with land under the provisions of this Act or against whose application to bring land under the provisions of this Act such caveat may be lodged and such person may if he think fit summon the person signing such caveat to attend before the Supreme Court of the Colony or any Judge thereof to show cause why such caveat should not be removed and it shall be lawful for the said Court or any such Judge upon proof that such last-mentioned person has been summoned to make such order in the premises either ex parte or otherwise as to the said Court or Judge shall seem fit.”
In my view the change of wording whereby the Court can make “the order on the terms it considers appropriate” as compared to “such order as the Court or Judge shall seem fit” does not effect a change in the meaning. In the 1861 Act, the Court had the power to remove a caveat and such order could be on any terms the Court considered appropriate. The power to order the removal of a caveat necessarily includes the power to order that a caveat not be removed. Terms could be applied to either order.[9] Similarly, under the Land Title Act, the Court can make an order removing a caveat or not, as the case may be, on terms that it considers appropriate. The Queensland Law Reform Commission Report on Consolidation of Real Property Acts,[10] which led to the Land Title Act 1994, recommended the simplification, consolidation, amplification and modernisation of the law relating to caveats but did not recommend the abolition of this important and flexible power which enables the court to order the amendment of a caveat in appropriate circumstances.[11] In my view, the court retains this power.
[9]Queensland Estates Pty Ltd v Co-ownership Land Development Pty Ltd [1969] Qd R 150; Jackson, S, “The Caveat in Queensland: Getting it Off!” (1996) 16 Qld Lawyer 204 at 211.
[10]Report No 40, March 1991.
[11]cf Marriage of Stevens (1991) 15 Fam LR 51 at 53.
A caveator is in a similar position to an applicant for an interlocutory injunction.[12] A caveat has been described as a statutory injunction.[13] In order to secure an interlocutory injunction, a plaintiff must show:
[12]Re Burman’s Caveat [1994] 1 Qd R 123; Re Jorss’ Caveat [1982] Qd R 458 at 464.
[13]Lamshed v Lamshed (1963) 109 CLR 440 at 451; J & H Just (Holdings) Pty Ltd v Bank of New South Wales (1971) 125 CLR 546 at 552; Re Hitchcock (1900) 17 WN (NSW) 62 at 63; Queensland Estate Pty Ltd v Co-ownership Land Development Pty Ltd (No 3) [1971] Qd R 260 at 264; Working Paper of the Law Reform Commission On a Bill in Respect of an Act to Reform and Consolidate the Real Property Acts of Queensland QLRC WP 32 at 182.
(a)That there is a serious question to be tried;[14]
(b)That the balance of convenience favours the granting of the injunction.[15]
A caveat will be removed by the Court where the caveator fails to show[16] on the evidence “that there is a serious question to be tried which would justify . . . leaving the caveat undisturbed.”[17] However it should be remembered that an application of this kind is summary only.[18] Many of the substantive questions that may be decided in the litigation of the action cannot be determined on a summary application.[19]
[14]Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 at 153-154 per Mason ACJ; Shiel v Transmedia Productions Pty Ltd [1987] 1 Qd R 199 at 203 (Full Court); Active Leisure (Sports) Pty Ltd v Sportsman’s Australia Limited [1991] 1 Qd R 301 at 303 (Full Court).
[15]Castlemaine Tooheys (supra) at 153-156; Active Leisure (Sports) Pty Ltd v Sportsman’s Australia Limited (supra) at 303-304, 311; Re Clement’s Caveat [1981] Qd R 341.
[16]The burden of proof is on the caveator: Re McKean’s Caveat [1988] 1 Qd R 524 at 525.
[17]Re Jorss’ Caveat (supra) at 465 where reference was made to the Privy Council decision in Eng Mee Yong v Letchumanan [1980] AC 331 in which Lord Diplock compared a caveat to a statutory interlocutory injunction (in this case granted ex parte). See also Genrich v Maitland Holdings Pty Ltd [1982] Qd R 58 at 62; Lewenberg & Pryles v Direct Acceptance Corp Ltd [1981] VR 344 at 347.
[18]Genrich v Maitland Holdings Pty Ltd (supra) at 68.
[19]Re Oil Tool Sales Pty Ltd; Classified Pre-Mixed Concrete Pty Ltd [1966] QWN 17.
The caveators must show that it is fairly arguable that they have a caveatable interest in the land.[20] If there is no caveatable interest then the caveats should be removed.[21]
[20]In Re Caveat No 773, Ex parte Hodgson (1873) 3 QSCR 158 at 159.
[21]Genrich v Maitland Holdings Pty Ltd (supra) at 63, 69.
The Gilbert family do not have indefeasible title to the neighbouring land under s 37 of the Land Title Act because it has not been registered by the recording of the particulars of the lot in the freehold land register. As was correctly conceded by the applicants, the respondents do, however, have an equitable interest. It arises from their right to have the certificates for sale of the land specifically performed.[22]
[22]Bahr v Nicolay [No 2] (1988) 164 CLR 604 at 612, 645-646.
The personal representatives apparently have an indefeasible title to the neighbouring land, even though they are volunteers[23] as their particulars have been noted on the freehold land register. This is because registration itself gives title.[24] A registered proprietor in general holds the interest in a lot subject to any other registered interests affecting the lot but free of all other interests.[25] This is the effect of indefeasibility.[26] However there are exceptions to this general rule set out both in the Land Title Act 1994 and elsewhere.[27]
[23]Land Title Act 1994 s 180.
[24]Breskvar v Wall (1971) 126 CLR 376 at 385-386.
[25]Land Title Act 1994 s 184(1).
[26]Frazer v Walker [1967] AC 569 at 580.
[27]Examples of exceptions to indefeasibility found in other Acts are set out by Street J in Pratten v Warringah Shire Council (1969) 17 LGRA 371 at 376-379.
The Gilbert family argues that they have a fairly arguable case and that they will fall into at least one of three exceptions to indefeasibility. They submit that the interest they acquired under s 27(11)(v) of the Local Government Act 1936 is an exception to indefeasibility. They further submit that they come within two of the exceptions to s 184 found in s 185(1)(a) and (d) of the Land Title Act 1994 which provide that a registered proprietor of a lot does not obtain the benefit of s 184 in respect of either an equity arising from an act of the registered proprietor,[28] or in respect of the interest of a person who, on application, would be entitled to be registered as owner of the lot because the person is an adverse possessor.
[28]See Breskvar v Wall (supra) at 384-385; Bahr v Nicolay [No 2] (supra) at 613, 653.
The Local Government Act 1936 which was the source of the rights acquired by the Gilbert family was repealed in 1993. However the rights acquired under a repealed Act are not lost by the repeal of that Act.[29] Consequently, the Gilbert family retain the right to have the neighbouring land registered in their name unless this right has been abolished by the Land Title Act 1994. However s 29(1) of the Land Title Act specifically recognises that other Acts may give rise to a right to registration. The right has been continued by the Local Government Act 1993 Part 7 Div 3 s 1049[30] which provides:
[29]Acts Interpretation Act s 20(2); Kraljevich v Lake View & Star Ltd (1945) 70 CLR 647 at 652 per Dixon J; Maxwell v Murphy (1957) 96 CLR 261 at 267; Re John [2000] 2 Qd R 322 at 325; OS No 1822 of 1998 at [6]; Local Government Act 1993 s 1208(1)(o).
[30]Contrary to the applicants’ submission, no point arises that the Government has unlawfully fettered its legislative power: cf Kartinyeri v Commonwealth (1998) 72 ALJR 722 at 729.
“Issue of title
1049.(1) On a sale of land under this division, other than a sale taken to be to the local government under section 1046, a local government must give to the registrar of titles a notice specifying-
(a) that the land has been sold under this division; and
(b) the full description of the land; and
(c) the full name and address of the purchaser; and
(d) the purchase price of the land.
(2) The notice must comply with the regulations that may be made for this section.
(3) On receiving the notice, the registrar of titles must register the purchaser for the interest held in the land by the owner of the land immediately before the sale, free of all encumbrances.
(4) The registrar of titles may comply with subsection (3) despite non-production of a relevant instrument of title. . . .”
This section was, under the Local Government Act 1936, and remains, under the Local Government Act 1993, an exception to indefeasibility. The respondents have the right, pursuant to s 27(11)(v) of the Local Government Act 1936, to have the Registrar of Titles register an estate in fee simple free of any obligation, in their names, notwithstanding any other Act to the contrary. The inclusion of the phrase “notwithstanding any Act to the contrary” demonstrates its paramountcy over the statutory regime of title found in the Real Property Acts and subsequently the Land Title Act as it gave the purchaser of the land the right to become registered and so defeat the otherwise indefeasible interest of the registered proprietor. The Local Government Act 1936 did not, however, give the respondent Gilbert family a superior legal title to the registered title[31] but it did give them an unqualified right to have their title registered in place of the registered proprietor. Their right to have their title registered gives rise to a caveatable interest.
[31]Unlike Pratten v Warringah Shire Council (supra) at 379 where the unregistered title was superior by force of law.
Further the caveators have submitted that they have a fairly arguable case that they fall within one or more of the exceptions to indefeasibility found in s 185(1) of the Land Title Act 1994 because of an equity arising from the act of the registered proprietor[32] or because they would be entitled to be registered as owners of the neighbouring land as adverse possessors.[33]
[32]Land Title Act 1994 s 185(1)(a).
[33]Land Title Act 1994 s 185(1)(d).
Section 184 of the Land Title Act 1994 provides that the registered proprietor of an interest in a lot holds the interest subject to registered interests affecting the lot but free from all other interests. However, this is subject to the interests listed in s 185 and fraud by the registered proprietor. In such cases the court can order the transfer of the property from the registered proprietor to the person holding the unregistered interest.[34] In this case the respondents have sought to establish that they have an arguable claim under s 185(1)(a) and (d). They have not claimed that there has been actual fraud by the registered proprietor under s 184(3)(b) of the Land Title Act 1994.
[34]Breskvar v Wall (supra) at 387; Latec Investments Ltd v Hotel Terrigal Pty Ltd (in liquidation) (1965) 113 CLR 265 at 273-4.
The applicants are the registered proprietors of the land by the nature of their interest in the land as personal representatives of John Taylor Goodwin.[35] They are executors of the estate with the obligation to organise the assets of the deceased, pay expenses and distribute the residue of the estate in accordance with the will.[36] In other words they stand in the shoes of the deceased[37] except for the performance of a contract for personal services.[38] They do not acquire a beneficial interest in the property of the deceased.
[35]Succession Act s 45; Land Title Act s 111.
[36]Succession Act s 52; Re Chirnside [1956] VLR 295 at 304; In the Estate of Just (No 2) (1974) 7 SASR 515 at 523-524 per Jacobs J.
[37]Kennewell v Dye [1949] 1 Ch 517 at 521-522.
[38]Robinson v Davison (1871) LR 6 Ex 269; Farrow v Wilson (1869) LR 4 CP 744; Graves v Cohen (1929) 46 TLR 121; Succession Act 1981 s 66.
The nature of the personal representation of an executor was aptly described by Isaacs J in Union Bank of Australia v Harrison, Jones & Devlin Ltd,[39] after quoting from the classic texts[40] on this subject:
“‘Sheppard’s Touchstone, which was the work of Mr Justice Doddridge, who also wrote Wentworth on the Office of Executors, says of an executor (at p. 401):- “He shall be charged and chargeable for so much as is committed to him as the testator or intestate himself: for this cause the executor . . . is said to represent the person of the testator . . . for as to the estate committed to his trust, he . . . may charge others, and be charged himself, sue and be sued, as the testator might. And the estate he . . . hath by his executorship is said to be in him to the use of the testator and in his right: and that which he doth in the disposition of his estate is said to be in the right and to the use of the testator also.’
So long as any portion of his duties remains to be performed, the estate is held by him in autre droit, that is in the right of his testator: Wentworth, p. 196, and 1 Rolle, 147; and he is ‘but the minister and dispenser and distributor’ of the testator’s property: Wentworth, p. 197. He represents (1 Inst., 209) more actually the person of the testator than the heir represents the ancestor, and it is from this conception that all the rights and duties appertaining to the office arise.”
[39](1910) 11 CLR 492 at 515.
[40]The principle of representation is of ancient origin: see F Pollock & F W Maitland History of English Law Vol 2 (London, Cambridge UP, 1968), 315.
It is in this sense that the personal representatives are responsible legally for the conduct of the deceased.[41] They do not gain the advantages of a bona fide purchaser for value without notice[42] nor of volunteers such as beneficiaries under a will who have become the registered proprietors.[43] The position of personal representatives is different because of the representative nature of the interest they take. While they gain the benefits of registration, because s 180 of the Land Title Act applies to volunteers[44] as well as purchasers for value without notice, they arguably take their interest subject to any equities created by the deceased in whose shoes they stand.
[41]Grgic v ANZ Banking Group Ltd (1994) 33 NSWLR 202 at 222-223; Sistrom v Urh (1992) 40 FCR 550 at 558.
[42]Gibbs v Messer [1891] AC 248; Breskvar v Wall (supra); Latec Investments v Hotel Terrigal (supra) at 277.
[43]cf Bogdanovic v Koteff (1988) 12 NSWLR 472 at 480; Land Title Act 1994 s 112.
[44]cf Rasmussen v Rasmussen [1995] 1 VR 613 at 634.
The registration of the personal representatives’ interest did not deprive the respondents of their equitable interest in the land.[45] Mere delay does not deprive the Gilbert family of their right to registration.[46] Neither does the rejection of the instruments lodged.[47] The right to registration is an equity[48] in the sense described by Kitto, Taylor and Menzies JJ in Latec Investments Ltd v Hotel Terrigal Pty Ltd (in liquidation) and Barwick CJ in Breskvar v Wall.[49] The question is whether or not that equity arises from an act of the registered proprietor. The registered proprietor is the current registered proprietor. It can be seen that the equity arose from acts of the previous registered proprietor in failing to pay rates under the statutory scheme which led to the sale of the land to the respondents.[50] Such an equity can arise from the acts of a registered proprietor after registration.[51] As personal representatives, the present registered proprietors are fixed with an equity arising from the act of the deceased whom they represent.[52] If necessary, this could be described as giving rise to a constructive trust.[53] The caveators have therefore established that they have a fairly arguable case under s 185(1)(a) of the Land Title Act. The question of the priority of competing interests is one which will have to await determination of questions of fact at the trial.[54] It was not fully argued before me.
[45]Breskvar v Wall (supra) at 413; Sistrom v Urh (supra) at 557.
[46]Latec Investments Ltd v Hotel Terrigal Pty Ltd (in liquidation) (supra) at 275; Sistrom v Urh (supra) at 559.
[47]Land Title Act 1994 s 157(4).
[48]There are many different senses in which the term “equity” is used: see Skapinker, D, “Equitable interests, mere equities, ‘personal’ equities and ‘personal equities’ – distinctions with a difference” (1994) 68 ALJ 593 where the learned author refers to the utility of this exception to indefeasibility when she observed at p 599: “This exception provides a judicial safety valve which allows courts, in certain circumstances, to apply simultaneously the harsh and unrelenting principle of immediate indefeasibility while at the same time dispensing justice to dispossessed parties having an equity in land.”
[49](supra) at 384-385.
[50]Bahr v Nicolay (supra) at 613, 628, 645-646.
[51]Barry v Heider (1914) 19 CLR 197; Bahr v Nicolay [No 2] (supra) at 613, 638.
[52]cf Sistrom v Urh (supra) at 557.
[53]cf Bahr v Nicolay [No 2] (supra) at 638, 655.
[54]Subject to s 157(2) of the Land Title Act 1994.
The respondents have submitted that they also have a fairly arguable case that the applicants must take the neighbouring land subject to their interest as adverse possessors. While at this interlocutory stage the court has not heard all the evidence as to adverse possession, the respondents have presented sufficient evidence to satisfy the court that they have a fairly arguable case that, on application,[55] they would be entitled to be registered as owner of the neighbouring land because they are adverse possessors as defined in Schedule 2 of the Land Title Act 1994. The Gilbert family have had the uninterrupted use and occupation of the neighbouring land since 1969, have paid the rates[56] continuously since 1969 and have evidenced the requisite intention to possess.[57]
[55]Land Title Act 1994 s 99; Limitation of Actions Act 1974 s 13.
[56]Bank of Victoria v Forbes (1887) 13 VLR 760; Quach v Marrickville Municipal Council (1990) 22 NSWLR 55 at 66-67; Bree v Scott (1904) 29 VLR 692; Shaw v Garbutt SC NSW No 2622 of 1995, 2 August 1996, Young J at 19.
[57]Re Application by Johnson [1999] QSC 197; SC No 2670 of 1999, 19 August 1999, Wilson J at [21] – [22]; Shaw v Garbutt (supra) at 13.
The respondents have to satisfy the Court that there is a serious question to be tried. In order to do so they must show that they have a fairly arguable case on at least one of three grounds put forward. In my view, they have a fairly arguable case on each of the three grounds. There is a serious question to be tried. The balance of convenience clearly favours the maintenance of the status quo by the prevention of further dealings until the matter can be resolved in the litigation which has been commenced.[58] The application for the removal of caveats 704036283 and 704036264 should be dismissed.
[58]Genrich v Maitland Holdings Pty Ltd (supra) at 67; cf Gibson v Co-ordinated Building Services (1989) 4 BPR 9630 at 9631.
The Court has the power under s 127 of the Land Title Act to amend a caveat in any order it makes when the caveatee has applied for the caveat to be removed. In Queensland Estates Pty Ltd v Co-ownership Land Development Pty Limited [59] the Full Court so held with regard to s 99 of the Real Property Act 1861. As I have observed, the slight change in wording of the equivalent section has not affected this power. Significantly there is no need to amend the interest being claimed, that is an estate in fee simple, but merely to add a ground for the claim.[60] The caveat which is to be amended is not invalid without the amendment so as to warrant its removal.[61] If my view as to the power of the Court to order the amendment of a caveat were not correct, then I would certainly have ordered under s 129 of the Land Title Act 1994 that the respondents have leave to lodge another caveat on similar grounds to that lodged together with the ground of adverse possession.[62]
[59][1969] (supra) at 158.
[60]Land Title Act s 121(2)(g); cf Midwarren Estates v Retek [1975] VR 575 at 577.
[61]cf Re Moore’s Caveat [1985] 1 Qd R 310. Neither is the claim to a right to freehold title by adverse possession inconsistent with the other claims made: Shaw v Garbutt (supra) at 12.
[62]Jackson, S, “Second Caveats and the Land Title Act 1994” (1995) 25 QLSJ 337 at 345.
The respondents are therefore given leave to amend caveats 704036283 and 704036264 within 14 days of the delivery of this judgment so as to articulate all of the grounds on which they claim an interest in fee simple. The Registrar is directed to accept the amendment to the caveats. I shall hear submissions as to the exact form of the amendment.
I shall make directions so that the matter can be determined without delay. I shall also hear submissions as to costs.
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