Halloran and Sealark Pty Ltd v Minister Administering National Parks and Wildlife Act 1974
[1999] NSWLEC 268
•12/09/1999
Land and Environment Court
of New South Wales
CITATION:
Halloran and Sealark Pty Ltd and Ors v Minister Administering National Parks and Wildlife Act 1974 [1999] NSWLEC 268
PARTIES
APPLICANTS:
Warren Halloran and Sealark Pty Ltd and OrsRESPONDENT:
Minister Administering National Parks and Wildlife Act 1974
NUMBER:
30282 of 1998
CORAM:
Talbot J
KEY ISSUES:
Compensation; Evidence :-
Compensation:- interest in land - beneficiary under constructive trust - equitable interest under parol contract - part performance
Evidence:- Admissibility of unstamped documents - liability for stamp duty in respect of an oral contract
LEGISLATION CITED:
Land Acquisition (Just Terms Compensation) Act 1991
Stamp Duties Act 1920 s 27, s 28, 29, s 44, s 44A
Conveyancing Act 1919 s 23C, s 54A
Real Property Act 1900 s 43A
Corporations Law s 413
DATES OF HEARING:
10/27/1999; 10/28/1999
DATE OF JUDGMENT DELIVERY:
12/09/1999
LEGAL REPRESENTATIVES:
APPLICANTS:
Mr S D Rares SC
With:
Mr D Raphael (Barrister)SOLICITORS:
Blake Dawson WaldronRESPONDENT:
SOLICITORS:
Mr G Downes SC
With:
Mr H R Sorenson (Barrister)
and
Mr J A Ayling (Barrister)
I V Knight, Crown Solicitor
JUDGMENT:
IN THE LAND AND Matter No. 30282 of 1998
ENVIRONMENT COURT Coram: Talbot J
OF NEW SOUTH WALES Decision Date: 9 December 1999
Applicants
v
Minister Administering the National Parks and Wildlife Act 1974
Respondent
1. The applicants are seeking to recover compensation for lands resumed by the respondent pursuant to the Land Acquisition (Just Terms Compensation) Act 1991 (the Just Terms Act).
2. On 8 September 1997 orders were made in this Court in separate class 4 proceedings whereby the Director General of the National Parks and Wildlife Service was ordered to acquire the land following notice requiring its acquisition by the then owners of the land.
3. Acquisition notices were published in the Government Gazette on 19 June 1998 and 18 September 1998.
4. Following judgment delivered on 20 November 1998 Pearlman J ordered the respondent to pay 90 per cent of the sums referred to in Compensation Notices issued to registered proprietors in respect of the lands the subject of the publication in the Gazette on 19 June 1998. That payment was subsequently made on 8 December 1998.
5. Three classes of applicant have been identified.
(i) The registered proprietors of part of the land who hold as a bare trustee with no beneficial ownership;
(ii) The holders of equitable interests in part of the land who are entitled to sole beneficial ownership; and
(iii) The registered proprietors of part of the land who are also the beneficial owners.
6. Although not strictly relevant to the issues presently before the Court, valuers advising the parties have agreed that there are four categories of land as follows:-
Category One
Five “Small Rural Lot” estates.Category Two
Large hectare sites.Category FourCategory Three
Miscellaneous lots.
Land subject to s 55(a) and s 55(f) claims.
7. The Court has been told that in May 1998 Philip Graeme Howell created 770 trusts as settlor. Parts of the land acquired are now said to be held under the terms of one or other of the trust deeds.
8. By Amended Notice of Motion dated 11 March 1999 the applicants seek declarations and orders that the applicants are owners within the meaning of that term in s 37 of the Just Terms Act.
9. By consent on 27 October 1999, the parties requested the Court to make the following order:-
Order that the following question be determined separately at the hearing of paragraph 1 of the Applicants’ Amended Notice of Motion dated 11 March 1999:
1. Has the Applicant, Pacinette Pty Limited established on the admissible evidence tendered at the hearing of this question, that Pacinette Pty Limited is an owner of an interest in land the subject of the notice of acquisition and published in the Government Gazette dated 19 June 1998, (“Notice”) entitled for the purposes of these proceedings to maintain its claim under section 37 of the Land Acquisition (Just Terms Compensation) Act 1991?
Note that the respondent admits that the following parcels of land were wholly within the land the subject of the Notice, namely:
(a) Lot 140 DP 11388 (part of Auto Consol 3409-116) being land contained within Lot 7 DP877899;
(b) Lot 1629 DP11386 (part of Auto Consol 3409-69) being land contained within Lot 7 DP877899; and
(c) Lot 1063 DP11387 (part of Auto Consol 3409-65) being land contained within Lot 7 DP877899.
10. The answer to the Question of Law in so far as it relates to the land alleged to be held by Pacinette Pty Ltd will enable the parties to proceed to the final hearing with a proper understanding of the rights and interests held by those applicants who claim to be beneficiaries under the 770 trust deeds.
11. Section 37 of the Just Terms Act provides:-
37. An owner of an interest in land which is divested, extinguished or diminished by an acquisition notice is entitled to be paid compensation in accordance with this Part by the authority of the State which acquired the land.
12. In s 4 an “owner” is defined as follows:-
“owner” of land means any person who has an interest in the land
13. Pursuant to s 4, an “interest” in land means:-
(a) a legal or equitable estate or interest in the land; or
(b) an easement, right, charge, power or privilege over, or in connection with, the land
14. Finally “land” is defined as:-
“land” includes any interest in land
15. Before the question of whether the several applicants have a relevant interest in land can be determined, it is necessary to resolve objections to the admissibility of documents upon which no stamp duty has been paid in New South Wales. These documents have been produced for the Court’s inspection to enable it to determine whether duty is payable. The issues raised on the admissibility question are, in the main, the same issues raised by the question of law itself. If the documents are not admissible, then the question of law cannot be answered in favour of the applicants. However, because the question of admissibility involves in large measure the same inquiry required in order to answer the preliminary question of law, the Court has heard the whole of the arguments.
General background to the transactions and liability to stamp duty
16. In the days leading up to 9 May 1998, but at least by that day, Gerald Santucci, as attorney for Philip Graeme Howell, signed 770 trust deeds in Canberra. The documents were then forwarded to Gadens Lawyers in Sydney.
17. A common date adopted for the relevant transactions involving Pacinette Pty Ltd is 14 May 1998. The original trust deed bears a date of 14 May 1998.
18. The evidence discloses that various meetings took place in the weeks leading up to 9 May 1998. On 11 May 1998 there was a meeting in the office of Gadens Lawyers between Ross Edward Seller, the partner in charge of the revenue law division of the firm, Gabrielle Cleary, a solicitor assisting Mr Seller in revenue law and working under his direct supervision, Warren Halloran, Mr Howell and Earleen Kenny. At that meeting arrangements were made for transactions to be entered into by the execution of documents and resolutions at a series of company meetings. The intention of the procedures adopted was to bring about change in the beneficial ownership of land.
19. Mr Seller made the following statement to the meeting:-
What I propose, and I think it is the only way to effectively deal with these matters so that they are valid, is for us to hold all the meetings and sign all the documents for one transaction, Gabrielle has one here, and then for you all to agree that, as regards each other transaction and transfer of land, that they occur in the same order and fashion. Do you understand this? It is important that you all agree and understand this. That is why we are going through one trust and transfer exercise in the specific order we require. All the transactions are exactly the same and by going through one transaction we are effectively going through all the transactions and then all that remains is the signing of the completed documents.These are the documents which will bring about the change in beneficial ownership of the properties as we have discussed. There are an enormous number of meetings to be held. It just is not possible to hold each meeting and sign each document in the sequence we need to have them signed in one sitting.
20. The evidence of Mr Seller is that each of the other persons at the meeting indicated that they understood.
21. Mr Halloran and Mr Howell acted in the capacity of directors of Pacinette Pty Ltd. Earleen Kenny acted as secretary for the purpose of affixing the seal of the company.
22. Mr Halloran and Mr Howell were also directors of a company Sealark Pty Ltd and purported to attend meetings of that company.
23. The documentation prepared for each transaction in advance was signed or executed at the same time.
24. There is no direct evidence that the individual participants formally conducted meetings and made statements attributed to them by the documents. Nevertheless the documents record that meetings were held and the transactions described were entered into. It is not the respondent’s case that the scheme was a sham. There was relevantly at all times an intention to transfer the beneficial ownership of land from one party to another.
25. Mr Seller has provided an undertaking to the Court that, at his direction and under his supervision, the documents as executed in the transaction involving the Pacinette property trust were likewise executed in relation to some other 770 trusts, the names of which have been provided.
26. Furthermore, he confirms that he has checked his files and says, and the fact is, that substantially identical documents in respect of the 770 trusts were prepared by his firm and provided to Mr Howell at least seven days prior to the date upon which he purports to have convened meetings and signed documents.
27. The question to be resolved is whether the objective of transferring beneficial ownership was achieved and if so whether liability for payment of stamp duty arose. If the objective was not achieved and beneficial ownership was not transferred then no question of duty can arise under Div 3A of the Stamp Duties Act 1920, which applied at the relevant time. The Division applies to a transaction which, on or after 21 November 1986, causes or results in a change in the beneficial ownership of an estate or interest in land in New South Wales.
28. The applicants rely, in part, on the exemption contained in s 44(2) of the Stamp Duties Act which provides that a reference to a change in beneficial ownership in the section does not include a reference to a change in beneficial ownership occurring as the consequence of, inter alia, (d) the issue or redemption of units in a unit trust scheme.
29. If duty is found to be payable, then s 29 prevents the relevant instrument from being pleaded or given in evidence or admitted to be good, useful or available within law or equity for any purpose whatsoever unless it is duly stamped.
30. The applicants rely on correspondence between Mr Raphael, barrister acting in their interests, and the Commissioner of State Revenue as satisfying s 29(3)(b) or s 29(4), which provide:-
(3) No instrument made or executed (whether in New South Wales or elsewhere) on or after 21 November 1986 in respect of a transaction to which Division 3A of Part 3 applies, shall, except in criminal proceedings, be pleaded or given in evidence, or admitted to be good, useful, or available in law or equity for the purpose of proving that a change in beneficial ownership to which the transaction relates occurred, unless:
…
(b) any statement required to be lodged under section 44A in respect of the transaction has been lodged and the duty and any fine with which the statement is chargeable have been paid.
(4) Sections 27 and 28 and this section do not apply to an instrument or a copy of an instrument tendered as evidence on behalf of a party (not being a person who is primarily liable to duty in respect of the instrument) if the court is satisfied:
(a) that the party has informed, or will in accordance with arrangements approved by the court inform, the Chief Commissioner of the name of the person primarily liable to duty in respect of the instrument; and
(b) that the party will, in accordance with arrangements approved by the court, lodge the instrument or a copy of the instrument with the Chief Commissioner.
31. In reply to the correspondence from Mr Raphael, the Commissioner has confirmed that the first relevant sale in the chain of transactions is not liable to duty, but in regard to the other, he is not prepared, at this stage, to comment in respect of the liability. Accordingly, the Court is required to determine at least whether the second sale involved in the series of transactions attracts stamp duty. The steps taken to achieve the change of ownership in many respects can be regarded as the one transaction.
32. There is no evidence that the Commissioner has called for a statement in respect of the transaction pursuant to s 44A.
The transaction
33. At all relevant times prior to 9 May 1998 and up to the date of acquisition, Sealark, although not actually, appears to have been entitled to be registered as proprietor of five parcels of land. The facts and circumstances giving rise to Sealark’s entitlement to be registered as proprietor of the land are dealt with in [139] to [146] under the heading The interest held by Sealark .
34. On 14 May 1998 various steps were taken with the object of the Trustee acquiring the land from Sealark and subsequently for Pacinette, in its own right, to purchase the land from the Trustee.
35. The Trustee made a written offer to purchase all the land and to satisfy the purchase price by the allotment of 79,000 $1 A Class units in the Trust to Sealark.
36. Earleen Kenny confirmed by statutory declaration that she was present at a meeting of the directors of Sealark and heard Halloran and Howell hold a meeting which resolved to accept the written offer. The minutes of the meeting of the directors of Sealark show it was resolved that the company should accept the offer made by the Trustee on the basis that the consideration would comprise of the allotment of 79,000 $1 A Class units in the Trust.
37. The Trustee resolved to allot 79,000 A Class units to Sealark.
38. A Unit Certificate for 79,000 $1 A Class units was issued in the name of Sealark.
39. Pacinette then applied for the allotment of 79,010 $1 ordinary class units in the Trust. At or about the same time the directors of Sealark resolved to request the redemption of all the A Class units held by the company in the Fund of the Trust.
40. The Trustee, at a meeting attended by Halloran and Howell, alloted 79,010 $1 ordinary class units to Pacinette. At the same meeting they resolved that the Trustee redeem all the $1 A Class units held by Sealark.
41. The consideration for the issue of 79,010 $1 Ordinary Class units to Pacinette was in the form of a bill of exchange drawn by Pacinette on Sealark in favour of the Trustee. Sealark accepted the bill of exchange. There is no explanation of the consideration passing between Pacinette and Sealark in respect of the drawing and acceptance of the bill of exchange. The respondent assumes it was a loan of some sort.
42. A Unit Certificate was issued in the name of Pacinette for 79,010 $1 Ordinary Class units.
43. The Trustee endorsed the bill of exchange in favour of Sealark.
44. At a further meeting of the Trustee, a written offer by Pacinette to purchase the subject land in consideration of the redemption of 79,010 $1 Ordinary units held by Pacinette in the Trust was accepted.
45. Finally, Sealark executed a Power of Attorney in favour of Pacinette authorising the latter to deal with the subject land in any way which it sees fit.
Effect of the transactions
46. The respondent submits that because the bill of exchange was accepted by Sealark at a time when it was the vendor of the land which it held as registered proprietor, no consideration was paid to it with the consequence that whatever interest was transferred, it is now held in trust by the holder of that interest upon a resulting trust for Sealark.
47. The proposition in support of this argument is that because there is no evidence of any transaction or existing relationship between Sealark and Pacinette that establishes any monetary consideration for the acceptance of the bill of exchange, the transaction is a voluntary one and that equity will not come to the aid of a volunteer.
48. In the Court’s opinion, it is not necessary to establish what consideration, if any, passed between Sealark and Pacinette. The bill of exchange is valid on its face. The acceptance by Sealark is no more than an acknowledgment by that company that it will guarantee payment of the funds on behalf of Pacinette to the Trustee upon presentation of the bill of exchange. It is alleged the bill of exchange was drawn in favour of the Trustee to enable the issue of 79,010 $1 Ordinary Class units to Pacinette. That the Trustee accepted the bill of exchange as a proper payment for the issue of the Ordinary Class units is said to be evidenced by the issue of a Unit Certificate in response to the application by Pacinette for allotment of the units.
49. By the time that Pacinette applied for 79,010 Ordinary Class units, the earlier transaction between Sealark as owner of the land and the Trustee company whereby 79,000 A Class units had been issued in consideration for the purchase of the land, had already taken place. Although each of the transactions took place at or about the same time, the sequence of the meetings makes it clear that the purported transfer from Sealark to the Trustee was intended to take place prior to the issue of Ordinary Class units to Pacinette by the Trustee.
50. The Court is not persuaded that the coincidental roles of Sealark as acceptor and ultimate payee, by endorsement, of the bill of exchange in any way devalued the consideration which initially passed between Sealark and the Trustee company in the first transaction ( Joseph v Campbell (Liquidator of the London Furnishing Company Limited (In Liq)) (1933) 50 CLR 317).
51. The Court is not satisfied that there is a presumption of a resulting trust and accordingly no question of rebuttal arises.
52. In Chief Commissioner of Stamp Duties v ISPT Pty Ltd (1998) 45 NSWLR 639 the majority (Meagher JA and Fitzgerald AJA) were of the view that where land was acquired by a trustee from a registered proprietor who was the sole unit holder in the trust and the legal estate remained with the vendor, there was no relevant transfer of a beneficial interest in the land.
53. Meagher JA did not agree with the proposition that if one were actually or potentially entitled in equity to any form of remedy in relation to an asset, one had, by virtue of that fact, an equitable interest in that asset ( Commissioner of Stamp Duties (Q) v Livingston [1965] AC 694;112 CLR 12).
54. Fitzgerald AJA described the beneficial estate or interest in the land which passed to the trustee as the concatenation of rights enforceable in equity against the registered proprietor, both as vendor and sole unit holder, which the trustee obtained in respect of the property under the contract of sale and purchase and the trust deed.
55. Earlier, in Suncorp Insurance and Finance v Commissioner of Stamp Duties [1998] 2 Qd R 285 Fitzgerald P (as he then was) explained that a person who is entitled to equitable relief to enforce or protect rights in respect of property has an equitable interest in the property commensurate with the equitable relief available.
56. However, he went on at 301-302:-
Principle and authority seem to me to indicate that a majority unitholder which has the right to have the trust deeds performed according to their terms, including the “Trust Funds” dealt with as each deed requires, and to cause the realisation of each “Trust Fund” and distribution of the proceeds, has an equitable “estate or interest” in the Trust Fund and each of the “Trust Fund” “Investments”.
57. Because the unit holder was also the original registered proprietor of the land, the majority in ISPT was not prepared to hold that there was a change in beneficial ownership within the meaning of Div 3A of Pt 3 of the Stamp Duties Act as a consequence of the transaction.
58. Meagher JA did not think there was any change of beneficial interest.
59. In Suncorp , at 301-303, Fitzgerald P referred to the acquisition of a lesser estate or interest. He adopted that earlier analysis in ISPT (at 660).
60. Whatever interest was held by Pacinette at the time of compulsory acquisition it must be the interest, if any, acquired pursuant to the allotment of the Ordinary Class units following redemption of the A Class units together with, or alternatively, the interest, if any, acquired pursuant to the second sale.
The trust deed
61. The trust constituted by the trust deed dated 14 May 1998 is known as The Pacinette Property Trust.
62. Subject to provision in cl 6 for the issue of special units, referrable to specific property discussed later, the deed provides for there to be two classes of units, the Ordinary Class units to which no special rights or restrictions attach and the A Class units. The cash or property received by the Trustee in consideration of the allotment of A Class units is required to form a separate fund (the A Fund). A Class unit holders shall not be entitled to any interest in the assets of the Trust Fund and Ordinary Class unit holders shall not be entitled to any interest in the assets of the A Fund.
63. Philip Howell, as settlor, caused the sum of $10 to be paid to the trustee prior to the execution of the deed. Sealark Pty Ltd is nominated as the Registered Holder of the initial 10 A Class units representing the beneficial interest in the Fund as originally constituted by the payment to the Trustee of the settled sum.
64. A Registered Holder may by notice in writing to the Trustee request redemption of specific units or request the return of the capital or part of the capital paid on the units specified in that request. The Trustee has a discretion either to refuse the request or to consent to that request on terms. The Trustee may effect a reduction in the Trust Fund by the cancellation of the units or a return of the capital or a part of the capital on the units specified in the request and the distribution of an appropriate part of the Trust Fund to the relevant Registered Holder.
65. The Trustee may, on request of an A Class unit holder, without the consent of the Ordinary Class unit holders, redeem units held by an A Class unit holder on payment of their full value, that is at a price of $1 per unit. Upon redemption of A Class units, the assets which were previously part of the A Fund shall cease to be assets of the A Fund and shall from then on form part of the Trust Fund.
66. The discretion of the Trustee to distribute an appropriate part of the Trust Fund upon redemption of Ordinary Class units pursuant to cl 9.2(b) contrasts to the limited right of an A Class unit holder to receive only the face value of $1 per unit following redemption of A Class units. The assets forming part of the A Fund thereafter fall into the Trust Fund to be held for the benefit of Ordinary Class unit holders.
67. The following clauses are particularly relevant to the determination of the issues before the Court:-
3.3 A Registered Holder will be entitled as provided in this Deed to a beneficial interest in the Trust Fund, subject to the special rights and restrictions relating to A Class units, but the Registered Holder will not be entitled, other than as provided in this Deed to:
(a) interfere with or to question the exercise or non-exercise by the Trustee of its rights and powers in dealing with the Trust Fund or any part of it;
(b) exercise any rights, powers or privileges in respect of any investment forming part of the Trust Fund; or
(c) require the transfer to him of any of the assets or property which at any time constitute the Trust Fund.
4.1 The Trust will begin on the Commencement Date and continue until the Vesting Day, being the first to occur of the following dates:
(a) the date one day before the eightieth anniversary of the date of this Deed; and
(b) any other date (if any) which the Trustee may in its absolute discretion appoint as the Vesting Date.
5.2 Every Unit will confer an interest in the Fund in accordance with the provisions of clause 3 but will not confer any interest in any particular part of the Fund or of any investment.
68. Pursuant to cl 10.1 the Trustee is required to keep and maintain an up-to-date register of all Registered Holders showing particulars of the units held and the Registered Holder. A “Registered Holder” means the person for the time being registered under the provisions of the Deed as the holder of a unit and includes persons jointly registered. A “Unit” means an undivided part or share in the Trust Fund.
69. It is common ground that no formal register of all Registered Holders has been kept by the Trustee. The applicants rely upon the issue of a Unit Certificate from time to time and the keeping of a General Journal and a General Ledger as sufficient compliance with cl 10.1.
70. The decision of the High Court in Federal Commissioner of Taxation v Patcorp Investments Ltd (1973-1976) 140 CLR 247 deals with the interest of a purchaser of shares where the transfer is not entered in the register. The significance of the entry of the name of a shareholder on the register of a company to constitute membership of the company was the relevant issue in that case. The High Court affirmed the general principle that entry on the register is necessary to constitute membership of a company and that the beneficial ownership of shares, without registration, does not make a person a shareholder. The decision is not, in my opinion, relevant to the present consideration.
The interest of the unit holders
71. In Suncorp Fitzgerald P cited Costa and Duppe Properties Pty Ltd v Duppe and Ors [1986] VR 90 as authority for the proposition that, commonly a unit holder under a unit trust will have an equitable interest in the trust property and its constituent parts. In Duppe Brooking J was dealing with a clause in a trust deed which provided the beneficial interest in the trust fund as originally constituted and as existing from time to time shall be vested in the unit holders for the time being. It further provided that each unit shall entitle the registered holder to the beneficial interest in the trust fund as an entirety but subject thereto shall not entitle a unit holder to any particular security or investment comprised in the trust fund or any part thereof and no unit holder shall be entitled to the transfer to him of any property comprised in the fund.
72. At 96 Brooking J regarded it as inescapable that the unit holders had a proprietary interest in all the property which was for the time being subject to the trust deed. He could not accept that the unit holders, while having a proprietary interest in the whole, have no such interest in any of the constituent parts. He said:-
If there is a proprietary interest in the entirety, there must be a proprietary interest in each of the assets of which the entirety is composed: cf. Smith v Layh (1953) 90 C.L.R. 102, at pp. 108-9. What cl. 8(a) recognises is that no unit-holder can claim to have any particular asset appropriated to his share or transferred to him otherwise than in accordance with the deed.
73. In Smith v Layh the High Court equated the right of the next of kin or residuary legatee to have the estate properly administered to “an equitable interest in the totality and therefore in the assets of which it is composed” .
74. The above passage in Smith v Layh was criticised by the Privy Council in Commissioner of Stamp Duties (Q) v Livingston 713; 23 when their Lordships said:-
With all respect, that cannot be taken as an exact statement of the law without some further definition of terms. For its expressions would have to be reconciled with the authorities that deny to the residuary legatee any property at all in any specific asset while administration proceeds and with the fact that “residue” cannot come into existence in the eyes of the law until administration is completed. Therefore, while it may well be said in a general way that a residuary legatee has an interest in the totality of the assets, (though that proposition in itself raises the question what is the local situation of the “totality”), it is in their Lordships’ opinion inadmissible to proceed from that to the statement that such a person has an equitable interest in any particular one of those assets, for such a statement is in conflict with the authority of both Sudeley [1897] A.C. 11 and Barnardo [1921] 2 A.C. 1 and is excluded by the very premise on which those decisions were based.
75. I have already said that in ISPT Meagher JA did not accept the general proposition. This is apparent from the following extract from his judgment at 655:-
At stages during the course of argument, a derivative proposition was advanced, viz, that if one were, actually or potentially, entitled in equity to any form of remedy in relation to an asset, one had, by virtue of that fact, an equitable interest in that asset. This cannot be correct. In Commissioner of Stamp Duties v Livingston [1965] AC 694, the Privy Council held that a residuary beneficiary had no proprietary interest in the residue of the estate, despite being entitled to limited equitable rights with regard to that residue. Similarly, a beneficiary in a discretionary trust has no interest in the trust assets, although possessing limited equitable rights against the trustee: Gartside v Inland Revenue Commissioners [1968] AC 553, even if he be the only beneficiary: Re Weir’s Settlement Trusts [1971] Ch 145. In R v Toohey: Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327 at 342, Mason J said: “No one who has a merely personal right in relation to land can be said to have an ‘estate or interest’ in that land.”
76. Although the majority in Read v Commonwealth (1987-1988) 167 CLR 57 referred, at 61, to the beneficial interest of a unit holder in the assets of the trust, they also referred in the same context to the right to have the trust executed in accordance with the deed and a right to proportionate distribution of the proceeds representing the assets of the trust fund upon termination of the trust. I do not understand the statement to be definitive of a proprietary right or interest of a beneficiary in the individual items of property comprising the trust fund.
77. Brooking J in Duppe identified Charles v Federal Commissioner of Taxation (1953-1954) 90 CLR 598 particularly at 609 as the most important authority for the proposition that a unit issued pursuant to a trust deed confers a proprietary interest in all the property which, for the time being, is subject to the trust of the deed.
78. The majority of Dixon CJ, Kitto J and Taylor J in Charles at 609 said, “(b)ut a unit under the trust deed before us confers a proprietary interest in all the property which for the time being is subject to the trust of the deed: Baker v. Archer-Shee (1927) A.C. 844” . In Baker v Archer-Shee the majority in the House of Lords found that there was a definite and specific trust fund and the estate having been fully administered meant that the beneficiary life tenant was the sole beneficial owner of the income of the trust fund. Under the provisions of the trust deed in Charles , certificate holders were the only persons having any right or interest in the units and upon its termination the trust fund was to be distributed in specie or cash amongst the certificate holders. A unit held under the Charles trust deed was distinguished as fundamentally different from a share in a company as follows:-
A share confers upon the holder no legal or equitable interest in the assets of the company; it is a separate piece of property; and if a portion of the company’s assets is distributed among the shareholders the question whether it comes to them as income or as capital depends upon whether the corpus of their property (their shares) remains intact despite the distribution: Inland Revenue Commissioners v. Reid’s Trustees (1949) A.C., at p. 373.
79. It is important therefore to have careful regard to the provisions of the Pacinette Trust Deed. In addition to cl 3, cl 4 and cl 5 materially set out above, cl 6 contains an authority to the Trustee to issue classes of units which will be referrable to specific property only and, despite cl 5, may confer specific interests in respect of specific property. No special units have been issued by the Trustee in this case.
80. The specific wording in cl 5.2 that a unit will not confer any interest in any particular part of the fund or of any investment suggests that it was never intended for the unit holder to have a proprietary interest in the individual assets comprised in the fund.
81. In MSP Nominees Pty Ltd v Commissioner of Stamps [1999] HCA 51 (30 September 1999) the High Court considered the effect of a trust deed which provided in cl 4 for the beneficial interest in the trust fund to be divided into units of equal value and that no unit holder was to have an interest in the trust fund other than in its entirety or to be entitled to interfere in the exercise of the right of the trustee as owner of the trust fund. This clause also stipulated that, except as provided by cl 11, no unit holder was to be entitled to require the transfer to him of any of the investments of the trust fund or any part thereof of any property comprising the trust fund. Clause 11 dealt with the commencement and determination of the trust created by the trust deed. At its discretion, and at the request of any unit holder, the trustee was empowered to transfer to that unit holder any assets of the trust fund in specie in satisfaction or part satisfaction of its entitlement upon termination of the trust.
82. At [7] the Court said:-
The significant provisions made by the Trust Deed for the exercise of powers and discretions by the Trustee with respect to distributions to Unit Holders support the description of the trusts established by the Trust Deed as discretionary trusts (see Commissioner of Stamp Duties (NSW) v Buckle (1998) 192 CLR 226 at 234). Clause 4 denied any entitlement to Unit Holders to require a distribution, other than pursuant to cl 11. Of the methods for distributions specified in the Trust Deed, only the first, that in cl 11 for distributions after the Vesting Date, conferred upon Unit Holders rights not dependent upon or preconditioned by a requirement of consent by the Trustee or the exercise of a power vested in the Trustee. Accordingly, any scope for the operation of the rule in Saunders v Vautier ((1841) 4 Beav 115 [49 ER 282]. See Underhill and Hayton, Law of Trusts and Trustees , 15th ed (1995) at 95, 710-716) was limited.
83. The rule in Saunders v Vautier is described in Jacobs Law of Trusts as where a sole beneficiary’s interest in the trust property is vested and he is sui juris, he may put an end to the trust by directing the trustees to transfer the trust property to him or his nominee, notwithstanding any directions to the contrary in the trust instrument.
84. Further, at [34], the Court referred to the use of the term “beneficial interest” as follows:-
The use of terms such as “beneficial interest” is apt to mislead when applied to beneficiaries’ interests in a discretionary trust. As effected by cl 4 of the Trust Deed, the Unit Holders were denied any specific interest in any item of property held in the Trust Fund (cf Official Receiver in Bankruptcy v Schultz (1990) 170 CLR 306 at 313-314). Rather, the rights enjoyed by Budget and Galaxy as Unit Holders were, upon favourable exercise by the Trustee of its discretion conferred by cl 34, transmuted by the redemption process into the entitlement to the price arrived at by the valuation for which cl 36 provided. This, as indicated earlier in these reasons, was in fulfilment of the rights of Budget and Galaxy, not the “surrender”, in the sense of that term in the definition of “transfer” in s 71(15) of the Act, of a beneficial interest or potential beneficial interest in or in relation to the assets represented by the Trust Fund.
85. The Pacinette Trust Deed provides that upon termination of the Trusts declared in the Deed, the investments of the Fund will be realised and the proceeds of realisation and other available cash will be distributed among the registered holders in proportion to the number of units held by them. There is no right vested in any individual unit holder to request or demand a transfer of any asset in specie.
86. The High Court’s decision in MSP appears to differ from the majority view in ISPT . At least, that of Fitzgerald AJA.
87. The provisions of the Pacinette Trust Deed are such that no unit holder is entitled to a beneficial or proprietary interest in the individual assets comprising the Trust Fund. Even though a registered holder will be entitled to a beneficial interest in the Trust Fund, that interest does not follow through to the individual assets at least until the vesting day occurs. Even then, the investments of the Fund are directed to be realised and the proceeds of realisation to be distributed among the registered holders in proportion to the number of units held by them. The beneficial interest in the Fund as originally constituted or subsequently by the addition of further assets is an interest in the whole. While ever a registered holder is not entitled to interfere with or to question the exercise or non-exercise of the Trustee’s rights and powers or acquire the transfer to it of any of the assets of property which constitute the Trust Fund, then it is not to be regarded as an estate which has been fully administered ( Baker v Archer-Shee ).
88. The decisions to the contrary by Fitzgerald AJA in ISPT and his earlier decision in Suncorp are to be distinguished on the different considerations which arose as a consequence of the terms of the individual trust deeds in those cases. Although there are significant similarities between the provisions, I am not satisfied that the same conglomeration of rights accrue to the unit holders under the Pacinette Trust Deed with the result they are not to be regarded as having a proprietary interest in the individual assets.
89. The terms of the Pacinette Trust Deed do not allow the holder of Ordinary Class units to claim an interest in the land ( MSP ).
90. The holder of the Ordinary Class units is only entitled to participate in a distribution of the proceeds of the Trust Fund or any individual asset comprising any one or more of the five parcels of land upon the exercise of the Trustee’s discretion ( MSP ).
91. A proper construction of the Pacinette Trust Deed, including cl 6, in accordance with the authorities therefor is that prior to the vesting date the Ordinary or A Class unit holders do not have a beneficial or proprietary interest in the individual assets of the Trust even in circumstances where there is only one unit holder and the assets comprise one parcel of land. The trustee has a discretion unfettered by any power of the unit holders to realise the asset and distribute the proceeds.
Stamp Duty
92. The overall results which the applicants claim flowed through in the present case are that Sealark transferred, by way of a sale for consideration, all its rights as a beneficial owner of the land to the Trustee whereupon the Trustee, by way of a further sale, surrendered all of those rights and interests, whatever they were, to Pacinette. In the meantime Pacinette had become the sole holder of Ordinary Class units and the A Class units held by Sealark had been redeemed.
93. The Duties Act 1997 came into force on 1 July 1998.
94. Sections 27, 28, 29 and 44 of the Stamp Duties Act continue to apply to transactions which took place before 1 July 1998.
95. Division 3A of the Stamp Duties Act applies to “a transaction which … causes or results in a change in the beneficial ownership of an estate or interest in land” . Pursuant to s 44(2), a reference to a change in beneficial ownership does not include a reference to a change in beneficial ownership occurring as the consequence of the issue or redemption of units in a unit trust scheme.
96. A “unit trust scheme” means “any arrangements made for the purpose, or having the effect, of providing, for persons having funds available for investment, facilities for the participation by them, as beneficiaries under a trust, in any profits or income arising from the acquisition, holding, management or disposal of any property whatsoever pursuant to that trust” .
97. In my view the majority decision in ISPT can be applied to the first transaction whereby Sealark purported to exchange the land for the A Class units in the Trust Fund. As Fitzgerald AJA said, his conclusion as to what passed in the transaction did not deny that the real estate became an asset of the Trust. However, that was not because there was “a change in the beneficial ownership of an estate or interest in” the property within the meaning of Div 3A of Pt 3 of the Stamp Duties Act. The change did not involve different persons beneficially owning an estate or interest before or after the relevant transaction (p 660). As in the present case one of the parties to the transaction was, at all relevant times, the sole unit holder.
98. I have already referred to the conclusion reached by Meagher JA that the legal estate resided in the original owner of the land both before and after the transaction. In his opinion, either s 23C and s 54A of the Conveyancing Act 1919 applied to nullify the ordinary effect of those steps, or they did not. He went on to say that if they did, the beneficial interest remained with the original owner. If they did not, the beneficial interest also remained in the original owner in its capacity as sole unit holder in the trust. In neither event was there any change of beneficial interest (p 654).
99. The first part of the transaction did not result in a change of the beneficial ownership as a consequence of the issue or redemption of units.
100. Under the terms of the Trust Deed, Sealark as unit holder did not acquire a beneficial interest in the land acquired by the Trustee.
101. The A Class units could be redeemed only upon payment of their full value nominated at $1 (refer to [65] and [66] above).
102. Alternatively s 23C and s 54A of the Conveyancing Act applied to nullify that part of the transaction (see Meagher JA in ISPT at 654).
103. Notwithstanding the successful contention by the respondent that, upon a proper construction of the terms of the Pacinette trust deed, neither the Ordinary or A Class unit holders have a beneficial or proprietary interest in the individual assets of the fund, the majority decision in ISPT must be regarded as also relying upon the circumstance of a sole unit holder to support the conclusion that there was no change in beneficial ownership of an estate or interest in land.
104. Because the actual beneficial interest was maintained in the same interest, namely by the vendor and the sole unit holder, the initial step in the transaction between Sealark and the Trustee is covered by the reasoning in ISPT .
105. I am satisfied that the second part of the Pacinette transaction involving redemption of the A Class units held by Sealark and issue of Ordinary Class units to Pacinette falls within the ordinary meaning of the words in s 44(2)(d) or alternatively having regard to the terms of the trust deed, no interest in the land was transferred.
106. However, the third part of the transaction does not equate to what occurred in the second stage of ISPT . The change of interest in ISPT was achieved by the issue of new units in the Trust to a third party and the redemption of units held by an existing beneficiary. In Pacinette the consideration paid by Pacinette to the Trustee was the agreement to accept the redemption of units as payment for the land. A change of interest thereby occurred by transfer rather than as a consequence of the reorganisation of the unit holdings within the Trust structure. Alternatively the change occurred as a consequence of the Trustee agreeing to transfer the asset in specie upon redemption of the units. The latter analysis of the third step in the transaction is not open, in my view, when regard is had to the nature of the offer to purchase made to the Trustee by Pacinette.
107. Once again there was no change in beneficial ownership for the reason that Pacinette, as the sole unit holder, already held an entitlement to the whole of the Trust Fund ( ISPT at 654). In the first part of the transaction, whatever interest passed was transferred from the vendor to the purchaser as the trustee to be held by the trustee on behalf of the vendor, whereas in the third part of the transaction whatever interest passed was transferred from the trustee holding it on behalf of the sole beneficiary to the purchaser who was that sole beneficiary.
108. The letter from the Commissioner of State Revenue to Mr Raphael is not significantly explicit to assist the Court, although it appears to confirm the view expressed above in regard to the initial steps of the transaction.
109. The trust deed was first executed under Power of Attorney on behalf of the settlor in the Australian Capital Territory. It appears to be common ground that a declaration of trust does not attract liability for stamp duty in the ACT unless it applies to land. At the date of the first execution, no real property was an asset of the trust.
110. Schedule 2 to the Stamp Duties Act requires that a declaration of trust be stamped with the amount calculated in accordance with the second column. The person primarily liable is the person declaring the trust or the person directing the declaration of the trust.
111. Even if duty is payable on the declaration, which I doubt given the circumstances, s 29(4) of the Stamp Duties Act provides that s 27, s 28 and s 29 do not apply to an instrument tendered as evidence on behalf of a party (not being a person who is primarily liable to duty in respect of the instrument) if the Court is satisfied that the party has informed the Chief Commissioner of the name of the person primarily liable and that the party will, in accordance with arrangements approved by the Court, lodge the instrument or a copy with the Chief Commissioner. I am satisfied that correspondence between Mr Raphael and the Commissioner of State Revenue shows that subs (4) of s 29 has been satisfied and that the Commissioner has been furnished with a copy of the trust deed.
112. In the circumstances the Court is not satisfied there is a liability to stamp duty.
113. The documents are therefore admitted as evidence in the proceedings.
The interest of the applicants in the subject land
114. In Legione and Anor v Hateley (1983) 152 CLR 406 at 423 Gibbs CJ and Murphy J said:-
There is no doubt that when the purchasers executed the contract and paid the deposit the beneficial ownership of the land passed to them subject to the payment of the purchase money.
115. In that same case, Mason and Deane JJ accepted the correctness of the statement in Brown v Heffer (1967) 116 CLR 344 at 349:-
… that the purchaser’s equitable interest under a contract of sale is commensurate only with her ability to obtain specific performance of the contract.
116. In Legione v Hateley the High Court of course was considering a written contract for sale. No questions arose under s 54A of the Conveyancing Act 1919 or s 23C of that Act.
117. Section 54A(1) is as follows:-
No action or proceedings may be brought upon any contract for the sale or other disposition of land or any interest in land, unless the agreement upon which such action or proceedings is brought, or some memorandum or not thereof, is in writing, and signed by the party to be charged or by some other person thereunto lawfully authorised by the party to be charged.
118. Section 23C provides as follows:-
(1) Subject to the provisions of this Act with respect to the creation of interests in land by parol:
(a) no interest in land can be created or disposed of except by writing signed by the person creating or conveying the same, or by the person’s agent thereunto lawfully authorised in writing, or by will, or by operation of law,
(b) a declaration of trust respecting any land or any interest therein must be manifested and proved by some writing signed by some person who is able to declare such trust or by the person’s will,
(c) a disposition of an equitable interest or trust subsisting at the time of the disposition, must be in writing signed by the person disposing of the same or by the person’s will, or by the person’s agent thereunto lawfully authorised in writing.
(2) This section does not affect the creation or operation of resulting, implied, or constructive trusts.
119. My understanding is that provisions derived from s 4 of the Statute of Frauds are accepted as having only a procedural or evidentiary effect. The effect of a statutory provision referred to is not to render void contracts which do not comply: the rights of the parties continue notionally to exist but a note or memorandum in writing is essential evidence in order to enforce them ( Britain v Rossiter (1879) 11 QBD 123).
120. Nevertheless equitable relief is obtainable, notwithstanding the statute, by a party who in pursuance of the contract has done acts of performance consistent only with some such contract subsisting ( J C Williamson Ltd v Lukey and Mulholland (1931) 45 CLR 282 at 297).
121. What then is the position when the interest of the claiming purchaser is no more than a claim for specific performance which has not been determined?
122. Where the contract has been partly performed, the Equity Court will allow evidence of the contract, even where there is no writing as required by s 54A, if the contract is one in respect of which, if it was in writing, relief would be granted by way of specific performance.
123. It is the essential nature of the acts which have to be determined. In Cooney v Burns (1922) 30 CLR 216, after considering authorities, Isaacs J summarised the inquiries to be made at 235:-
These authorities show that the Court in order to found its jurisdiction inquires whether with the concurrence of the plaintiff, and on the basis that the agreement would be carried on to completion by legal conveyance, the defendant has gone so far, if purchaser, in directly or indirectly exercising, or, if vendor, in permitting the purchaser directly or indirectly to exercise, rights of ownership over the property which the sale, if formally effected, would connote, that it would be a fraud on the plaintiff unless the ownership were completely transferred by formal sale upon the terms in fact agreed to. Crystallizing that statement, for present purposes, there is always in part performance the actual transfer by enjoyment, directly or indirectly, of some right of ownership which the legal title would confer . Maitland on Equity , at p. 242, brings the position to very much the same point.
124. The Land and Environment Court is a superior court of record which has jurisdiction to hear and dispose of any matter that is either within jurisdiction or is ancillary to a matter that falls within its jurisdiction.
125. The Court has jurisdiction to hear and dispose of claims for compensation by reason of the acquisition of land in accordance with the Just Terms Act. Pursuant to s 25 of the Land and Environment Court Act 1979, in hearing and disposing of any claim for compensation the Court has jurisdiction to determine the nature of the estate or interest of the claimant in the subject land.
126. I agree with the applicants’ contention that the Court has jurisdiction to determine the relevant ownership and estates where a claim is made under the Just Terms Act.
127. I can fathom no reason why this Court cannot proceed to ascertain if the applicants held a relevant interest in land at the date of acquisition by determining whether a court with equitable jurisdiction would take the view that it would be unjust that the other party to the contract should be able to rely on the absence of a memorandum in writing so that the applicant would be successful in equity and be granted specific performance of the contract. The principle of part performance is that it raises an equity against the party who has allowed it to take place on the fact of there being a contract and prevents the party from denying the existence of the contract. The part performance must therefore be by the party seeking enforcement.
128. In the sixth edition of Fry on Specific Performance the position is explained at pars 578 and 579 as follows:-
578. (4) The part performance of a contract by one of the parties to it may, in the contemplation of Equity, preclude the other party from setting up the Statute of Frauds, and thus render it, although merely resting in parol, capable of being enforced by way of specific performance, though not by way of damages, even since the Judicature Acts (see per Chitty J in Lavery v. Pursell , 39 Ch.D. 508).
579. This exception seems to be based on the view that if a man have made a bargain with another, and allowed that other to act upon it, he may have created an equity against himself which he cannot resist by setting up the want of a formality in the evidence of the contract out of which the equity in part arose (Per Lord Selborne in Maddison v. Alderson , 8 App. Cas. 476. And see Chaproniere v. Lambert , [1917] 2 Ch. 356, 361).
129. The respondent submits that the oral agreement between Sealark and the trust is ex facie a disposition of an equitable interest and therefore void under s 23C(1)(c).
130. The applicants rely on the analysis of Meagher JA in ISPT at 654 B-C (Fitzgerald AJA agreeing at 660 A-C) to show that as Sealark initially held the legal title and it became the only unit holder, it held the whole of the beneficial interest in the land. Moreover they say s 23C(2) preserves resulting, implied or constructive trusts. Thus Sealark in the position of a paid vendor became a constructive trustee of the land by reason of the beneficial interest having eventually passed to Pacinette when Pacinette acquired a beneficial interest in the land by redeeming the Ordinary Class units held by it in consideration of the agreement by the trustee to accept the offer from Pacinette to purchase the land.
131. Therefore, according to the applicants, at that point Sealark held no remaining proprietary or beneficial interest in the land so that it held the land on constructive trust for Pacinette.
132. In the first part of the transaction there is no evidence that, following the making of the contract, the trustee as the purchaser took possession of the land or executed any other physical dominion over the land consistent with legal ownership. However, Sealark orally accepted the offer to purchase and the issue of 79,000 A Class units by the trustee as payment of the consideration. The issue of the A Class units was clearly referable to the contract. The trustee subsequently entered into the later agreement, this time with Pacinette, whereby it agreed to sell the land to Pacinette for valuable consideration. In so doing, the trustee was acting consistently with the transfer of ownership to it. The act of the trustee entering into the agreement with Pacinette is such as to be referable to the title it acquired from Sealark.
133. A contract for valuable consideration to assign property gives rise to a constructive trust of that property. However, as the learned authors of the third edition of Equity Doctrines and Remedies , Meagher, Gummow and Lehane point out, there are uncertainties as to the time the trust arises. They conclude however at 208 that it is clear that if there is a valid and enforceable contract for sale and the purchaser has accepted title and paid the purchase price, then the vendor holds the property as constructive trustee absolutely and indefeasibly for the purchaser.
134. The controversy is demonstrated by the observations by Mason J in Chang v Registrar of Titles (1975 - 7976) 137 CLR 177 at 184:-
However, there has been controversy as to the time when the trust relationship arises and as to the character of that relationship. Lord Eldon considered that a trust arose on execution of the contract ( Paine v. Meller (1801) 6 Ves. 349 [31 E.R. 1088]; Broome v. Monck (1805) 10 Ves. 597, at p. 606 [32 E.R. 976 at pp. 979-980]). Plumer M.R. thought that until it is known whether the agreement will be performed the vendor “is not even in the situation of a constructive trustee; he is only a trustee sub modo, and providing nothing happens to prevent it. It may turn out that the title is not good, or the purchaser may be unable to pay” ( Wall v. Bright (1820) 1 Jac & W. 494, at p. 501 [37 E.R. 456, at p. 459]). Lord Hatherley said that the vendor becomes a trustee for the purchaser when the contract is completed, as by payment of the purchase money ( Shaw v. Foster (1872) L.R. 5 H.L. 321). Jessel M.R. held that a trust sub modo arises on execution of the contract but that the constructive trust comes into existence when title is made out by the vendor or is accepted by the purchaser ( Lysaght v. Edwards (1876) 2 Ch. D. 499). Sir George Jessel’s view was accepted by the Court of Appeal in Rayner v. Preston (1881) 18 Ch.D. 1.
135. The purchaser therefore becomes the beneficial owner of the property at the time of “payment” of the purchase price.
136. The subject matter of the latest transaction between the trustee and Pacinette may well be regarded as an equitable interest in the land.
137. In McKinnon Wallace Holdings Pty Ltd v Commissioner of State Revenue [1999] 1 VR 397 Phillips JA at 401 noted that the point of difference between the nature of rights arising upon the disposition of a purely equitable interest and under a binding and specifically enforceable contract for the sale of real property is “perhaps best encapsulated” in Meagher, Gummow and Lehane at 218 as follows:-
The application of this principle to a contract to assign a purely equitable interest gives rise to considerable difficulty. If as a result of the application of the principle the vendor is trustee of the interest, absolutely and indefeasibly, for the purchaser, then has not the contract been completed and is not the interest vested in the purchaser? What further assurance is either necessary or possible? But if that is the result, does it follow that such a contract amounts to a disposition of a subsisting equitable interest so as to be ineffective, by reason of [in Victoria s. 53(1)(c) of the Property Law Act], unless in writing signed by the vendor? Alternatively, is [s.53(1)(c)] inapplicable, because the assignment occurs by way of the creation of a constructive trust, by virtue of [s.53(2)]? See generally Waters , op. cit., pp. 108-16.But it is clear, at any rate, that if there is a valid and enforceable contract for sale, if the purchaser has accepted title and if the purchase price has been paid then the vendor holds the property as constructive trustee, absolutely and indefeasibly for the purchaser: see generally Waters, The Constructive Trust (1964) at pp. 74-143, and the cases there cited: see also [609].
138. On balance, and having regard to the extensive line of authorities referred to by Phillips JA, and elsewhere, I am prepared to accept that a constructive trust of the land came into existence upon completion of the first transaction between Sealark and the trustee and that there was an immediate disposition of the trustee’s interest to Pacinette in the final transaction.
The interest held by Sealark
139. By order of the Federal Court of Australia in proceedings NG3269/1997 made on 12 December 1997, a Scheme of Arrangement was approved whereby the whole of the undertaking and the property and liabilities of Port Stephens Development Pty Ltd were directed to be transferred to Sealark. Similar orders were made in respect of companies Queanbeyan Investments Pty Ltd and St Vincent City & Suburbs and Pacific City Pty Ltd. The documentary evidence discloses that the lands dealt with by Sealark on 14 May 1998 were transferred to it by Port Stephens Development Pty Ltd under transfers executed on 5 March 1998, although the transfers do not appear to have been registered until 2 October 1998. In the meantime the lands had been acquired.
140. The inference is that Sealark received the transfers from the transferor on 5 March 1998 when the transfer was executed by it under seal as the transferee.
141. The transfers were executed to give effect to the Federal Court orders made on 12 December 1997. The land vested in Sealark when the orders were made by dint of s 413 of the Corporations Law. At that date it became the owner of the land. The formal steps of transfer followed to enable the Registrar General to issue new certificates of title.
142. Section 413(2) of the Corporations Law provides that, where an order is made under that section, property shall be transferred to and vest in the transferee by virtue of the order.
143. Pursuant to s 43A of the Real Property Act 1900 for the purpose only of protection against notice, the estate or interest taken by a person under a registrable transfer before registration of that dealing is deemed to be a legal estate.
144. The High Court confirmed in Meriton Apartments Pty Ltd v McLaurin & Tait (Developments) Pty Ltd (1976) 133 CLR 671 that s 43A confers upon a purchaser the same protection against notice as that achieved by a purchaser who acquires a legal estate at common law rather than the larger degree of protection the purchaser would achieve following registration.
145. The Court is satisfied that in the circumstances set out above, Sealark was, at 14 May 1998, in a position to deal with the legal estate in the land and that accordingly, at the date of acquisition, had dealt with that interest so that Pacinette had become the holder of an equitable interest in the land.
146. Accordingly, at the date of acquisition Port Stephens Development Pty Ltd was the registered proprietor of the land, Sealark held the legal estate as trustee and Pacinette held the whole of the equitable interest in the land.
Is the interest held by the applicants at the date of acquisition an interest in land for the purpose of the Just Terms Act?
147. In written submissions made by the respondent, reference is made to the decision of the Court of Appeal in Hornsby Council v Roads and Traffic Authority of New South Wales (1997) 41 NSWLR 151 at 155C where, in a different context, Meagher JA referred to “proprietary or quasi-proprietary rights” as the relevant interest to support a claim for compensation under the Just Terms Act. The argument appears to be confined to the interest of Pacinette as a unit holder in the trust and that as such it could not have any interest in the land per se. This submission does not appear to take account of the final part of the transaction whereby Pacinette acquired the equitable interest in the land held by the trustee.
148. The Court is satisfied that, at the date of acquisition, Pacinette held a relevant “interest” in the land within the statutory definition as an equitable estate or interest in the land. It follows from the further statutory definition of “land” that such an interest is to be regarded as land for the purposes of the Act.
Orders
149. The Court is now in a position to determine the separate question set out at [9] of these reasons.
150. The Court is satisfied that the applicant Pacinette Pty Ltd has established that it is an owner of an interest in land the subject of the notice of acquisition and published in the Government Gazette dated 19 June 1998 entitled for the purposes of these proceedings to maintain its claim under s 37 of the Land Acquisition (Just Terms Compensation) Act 1991, at least in respect of the nominated lots 140, 1629 and 1063.
151. The question of costs of the Notice of Motion is reserved.
152. The exhibits may be returned.
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