Horvath v Commonwealth Bank of Australia
[1998] VSCA 51
•30 September 1998
SUPREME COURT OF VICTORIA
COURT OF APPEAL Not Restricted No. 9168 of 1994
GABOR HORVATH JUNIOR
Appellant
v
COMMONWEALTH BANK OF AUSTRALIA
Respondent
---
JUDGES: TADGELL, ORMISTON and PHILLIPS, JJ.A. WHERE HELD: MELBOURNE DATE OF HEARING: 24 February 1998 DATE OF JUDGMENT: 30 September 1998 MEDIA NEUTRAL CITATION: [1998] VSCA 51
---
INFANTS AND JUVENILES - SALE OF LAND - MORTGAGES - Purchase of Torrens title land by infant - Whether security for loan of purchase price enforceable against infant - Mortgage executed by infant and registered by mortgagee is effective as against infant despite s.49 of Supreme Court Act 1986.
STATUTES - Whether inconsistency between provisions of one statute and another.
EQUITY - Lien - Whether lender of purchase price of land subrogated to unpaid vendor's lien.
SUPREME COURT ACT 1986, ss.49, 50, 51.
TRANSFER OF LAND ACT 1958, ss.41, 42, 43.
---
APPEARANCES: Counsel Solicitors For the Appellant In person For the Respondent Mr. P.B. Murdoch, Q.C. I.F. Purbrick and Mr. J. Tsalanidis VICTORIAN GOVERNMENT REPORTING SERVICE
167 Queen Street, Melbourne - Telephone 9603 2404
TADGELL, J. A.:
Having been born on 12 November 1972 the appellant, Gabor Horvath, was at most times relevant in this case under the age of 18 years. He was, that is to say, until 12 November 1990 a person not of full age and therefore a minor: Age of Majority Act 1977, ss.2 and 3(1). He suffered judgment in the Supreme Court in favour of the respondent bank for possession of land over which he had joined with his parents during his minority to give a mortgage. There were also an order for sale of the land and declaratory orders, among others, that the respondent had become entitled as against the appellant to an equitable lien or charge on the land to the extent of $39,165 and interest of $14,813, a total of $53,978. By this appeal the appellant contends essentially that his minority alone rendered the mortgage absolutely void and unenforceable as against him and that accordingly he was not amenable to the judgment for possession, the order for sale or the declarations.
By contract of sale executed on 18 September 1987 the appellant's father (also named Gabor Horvath) and his mother, Agota Horvath, and the appellant purchased for $69,320 a parcel of vacant Torrens title land being lot 5, Superior Drive, Dandenong. The purchase was financed in part by a loan of $40,000 from the respondent bank for "10 years approximately" secured by a mortgage dated 19 August 1988 over the subject land. Mr Horvath senior was a die cutter by trade and his wife assisted him in his business. The land was purchased with a view to the construction on it of factory premises. According to the appellant he contributed some part of the purchase money. Whether he did or not, he and his parents signed an undated application for a loan (described as a small business loan) addressed to the Richmond South branch of the respondent. The application, apparently made in the first half of 1988, was successful and led to the execution of the mortgage by the appellant and his parents later in that year. Although the appellant was aged only 15 years and 9 months when he signed the instrument of mortgage, the bank manager before whom he signed it took him to be aged 18 years. Neither the appellant nor his parents informed the bank manager of his age and the manager did not expressly ask them about it. The proceeds of the loan were applied towards payment of the purchase price of the subject land, thus enabling settlement of the transaction, in which the purchasers had solicitors acting for them. They became registered on 2 September 1988 as joint proprietors of the land, which was that described in certificate of title vol. 9801 fol. 263.
In 1989 a further loan of $200,000, which was increased by $20,000 in 1990, was made by the respondent on the security of the mortgage. These advances were made, according to the respondent's correspondence addressed to the appellant and his parents, to assist with the construction of buildings on the subject land. Two factories were built, one for the appellant's father's business and the other for letting. The evidence does not indicate with complete clarity who were the borrowers of the advances in 1989 and 1990 aggregating $220,000. It appears to have been common ground, however, that all three of the Horvaths were the borrowers. The judge, if he did not in terms so find, appears to have proceeded on that footing, a course which the appellant has not sought to challenge.
On 2 January 1991 the respondent caused the mortgage to be registered in the Office of Titles in dealing R157366T. In 1993 periodical payments by way of interest on and repayment of the loans fell into arrear. The respondent on 12 November 1993 made demand under the mortgage and on 4 March 1994 served notice under s.76 of the Transfer of Land Act preparatory to an exercise of the power of sale. Following non-compliance, the respondent in December 1994 commenced a proceeding in the Supreme Court seeking possession against the three mortgagors. Judgment in default of appearance was obtained against all three but, in April 1995, the appellant obtained an order from a Master setting aside the judgment against him and granting him leave to defend the action. The judgments against Mr Horvath senior and his wife remained undisturbed. Following a trial, O'Bryan, J. on 2 April 1996 gave judgment and made orders against the appellant in favour of the respondent as I have indicated.
By his amended Defence the appellant had relied on his status of a minor when he executed the mortgage and when each of the loans that it secured was made by the respondent. He relied on the provisions of Division 4 of Part 5 of the Supreme Court Act 1986 and contended by his pleading that "... any contracts for the repayments of loans alleged by the plaintiff ... and any securities, including the mortgage, ... to secure such loans ..." were void as against him. Having joined the Registrar of Titles the appellant sought by way of counterclaim, as against the respondent bank and the Registrar, declaratory and other relief, including rectification of the Register in the Office of Titles "... to delete the registration of the mortgage from the interest of [the appellant] as joint tenant in the land".
Division 4 of Part 5 of the Supreme Court Act 1986 consists of ss.49 to 51. Section
49 provides -
"The following contracts entered into by a minor are void -
(a) contracts for the repayment of money lent or to be lent;
(b) contracts for payment for goods supplied or to be supplied, other than necessaries;
(c) accounts stated."
Sections 50 and 51, although relied on by the appellant in his pleading and in argument, are not in my opinion relevant. Both sections deal with engagements by a person, after the attainment of full age, in respect of transactions entered into during minority. This case concerns nothing done by the appellant after he attained full age, so ss.50 and 51 are not in point and I shall say no more about them.
In reliance on s.49(a) of the Supreme Court Act, O'Bryan, J. held that the subject mortgage "is void as against" the appellant. His Honour made a declaration accordingly, notwithstanding that he saw fit to pronounce judgment for the respondent on the appellant's counterclaim. His Honour also made a declaration, although such a declaration was not sought in any pleading, that the appellant "... is not entitled to have the registration of the mortgage registered in the Office of Titles in dealing No. R157366T deleted from the register". The authenticated order does not appear otherwise to deal with the counterclaim as against the Registrar of Titles save that it contains an order that the appellant pay the Registrar's costs.
Although he declared the mortgage to be "void as against" the appellant, the learned judge appears to have upheld a contention for the respondent, the subject of its Reply, that -
"... by virtue of ss.41, 42 and 43 of the Transfer of Land Act 1958 the plaintiff's title as registered mortgagee is and was indefeasible and in the premises the third defendant has no defence to the plaintiff's claim."
His Honour seems to have treated the mortgage, admittedly subsisting and enforceable as against the appellant's parents, as conferring, by virtue of its registration, an indefeasible interest in the land in favour of the respondent as against the appellant, in spite of its being "void as against" him, unless rendered defeasible as against him by virtue of fraud or "a claim in personam, founded in law or in equity for such relief as a court acting in personam may grant": cf. Frazer v. Walker [1967] 1 A.C. 569, at 585.
The appellant did not raise fraud as an answer to the contention that the mortgage became indefeasible upon its registration. His counsel did, however, rely below on what was described as a "personal equity" that was apparently said to arise from the respondent's knowledge of his minority. This, it seems, was claimed on behalf of the appellant to constitute "unconscionable conduct" on the part of the respondent and to amount to, or to provide a foundation for, the so-called personal equity. Without deliberating on the concept of "unconscionable conduct", the learned judge found that the respondent had not by reason of the bank manager's acts or omissions been guilty of it. On this appeal the appellant, who appeared on his own behalf, contended that the judge was in error not to have found that the respondent had had full knowledge of his age and that his Honour had ignored the provisions of Division 4 of Part 5 of the Supreme Court Act. The judge's finding that the manager was unaware of the appellant's minority was, however, open on the evidence. The manager swore that he made his own assessment of the appellant's age and there was no evidence to the contrary. The judge, having seen and heard the witnesses examined and cross-examined, was able - as we are not - to assess his credit. There were specific findings that the manager was unaware of the appellant's minority; that his omission to enquire into the appellant's age was due to inadvertence and was an error of judgment; and that the manager did not consciously and deliberately allow a minor to execute the mortgage. We are in no position to say that in any of these the learned judge was wrong. The judgment below cannot be successfully assailed on the footing that his Honour mistook the evidence or wrongly failed to find that the respondent knew of the appellant's minority. No defence to the respondent's claim is open on the basis that the respondent had such knowledge.
It appears from the judge's reasons that counsel for the appellant contended below also that the appellant had an "in personam right" or a "personal equity" derivable from s.49(a) of the Supreme Court Act that was sufficient to meet the respondent's claim that the mortgage was indefeasible by virtue of its registration under the Transfer of Land Act 1958. So far as I can gather from the reasons, the argument of counsel was simply that the appellant had a right not to have enforced against him, on the strength of its registration, a mortgage that is rendered void and unenforceable by virtue of s.49(a) of the Supreme Court Act. His Honour appears to have dealt with that argument by saying that although, by reason of the provisions of the Supreme Court Act that were relied on, certain contracts by a minor are incapable of being enforced against the minor, they are not devoid of all legal effect; that it was not disputed that the mortgage was legally enforceable as against the adult mortgagors; and that "the researches of counsel do not reveal that the provisions in Division 4 of Part 5 of the Supreme Court Act have ever been construed to undermine the concept of indefeasibility of title". As I follow it, his Honour's conclusion appears to have been that the doctrine of indefeasibility overrides the privilege conferred on a minor by s.49 of the Supreme Court Act or, in other words, that the indefeasibility provisions of the Transfer of Land Act are paramount over the provisions of s.49. Put in that way the proposition does not immediately explain why the benefit conferred on a minor by s.49(a) can not be or give rise to a right in personam to which a court acting in personam might give effect by way of meeting a claim of a registered proprietor under the Transfer of Land Act.
There appears to be no judicial decision that has directly considered the question whether the benefit conferred on minors by s.49 of the Supreme Court Act, or any cognate legislation, is subject to the indefeasibility provisions of Torrens title legislation. There are, however, two apparently conflicting decisions on the question whether the indefeasibility provisions survive an infant's right at common law to disclaim a contract made during minority. It does not appear that these were cited below. The first, which would tend to support the appellant on the question of indefeasibility, is the decision of Philp, J. in Coras v. Webb and Hoare [1942] St.R. Qd. 66. The other, which would appear to support the respondent on the question of indefeasibility, is Percy v. Youngman [1941] V.L.R. 275, which Martin, J. pronounced only a few weeks after the decision of Coras v. Webb but evidently unaware of it. These two differing, if not conflicting, decisions have stood without judicial comment, so far as I can discover, for well over fifty years. They have, however, been the subject of notes and comments in a range of textbooks and elsewhere, but not without division of opinion upon them.
In Coras v. Webb the registered proprietor of Torrens title land, being an infant whose infancy was not disclosed on the certificate of title, gave a mortgage over the land to secure repayment of money lent. The mortgage was in due course registered without knowledge by the mortgagee of the mortgagor's subsisting status of an infant. The money lent in consideration of the mortgage was used to pay for a building erected on the land. After attaining full age the mortgagor sued the mortgagee relying, among other things, on his infancy in support of declarations that the mortgage was null and void, alternatively that the mortgagee had not been entitled to be registered as mortgagee. Philp, J. decided that, were there no other consideration, he would make a declaration that the mortgage was by the time of trial void: he held that the mortgagor had disaffirmed it in accordance with his right at common law to do so on account of his infancy at the time he gave it. His Honour went on, however, to consider whether the mortgage had "attained a new virtue by reason of the Real Property Acts" - the Queensland Torrens legislation. Philp, J. referred, at 69-70 to the Queensland equivalent of s.30(1) of the Transfer of Land Act 1958, which in effect requires the Registrar, if a certificate of title is issued to a minor, to state the age of the minor "so far as known to him". His Honour continued -
"I assume that if the fact of infancy be noted on the title of an infant, any person dealing on the faith of the register with such infant would take subject to the privilege of the infant, but does it follow that, if the title do not notify the infancy, the infant's privilege is lost? Diligent search has failed to disclose any authority on the matter."
Referring to Boyd v. The Mayor of Wellington [1924] N.Z.L.R. 1174 (in which, by majority of three judges to two, the New Zealand Court of Appeal applied what is nowadays sometimes referred to as the doctrine of immediate indefeasibility, as opposed to that of so-called deferred indefeasibility) Philp, J. gave his opinion (at 70) that -
"... if the decision be correct it would involve, as I read it, that a mortgage given by an infant, when registered, would prevail against the privilege of the infant."
Philp, J. also supposed (at 71) that the majority decision in Boyd's Case would lead to a conclusion that a void mortgage given to a money-lender would become valid by registration, the contrary having been assumed by Street, C.J. in Eq. in Re Pepper (1920) 21 S.R.(N.S.W.) 37, at 52. Philp, J., however, declined to apply the decision of the majority in Boyd's Case, preferring the dissenting judgment of Salmond, J., which espoused the doctrine of deferred indefeasibility and had been accepted as correct by Dixon, J. in Clements v. Ellis (1934) 51 C.L.R. 217, at 258. Philp, J. therefore held that the register would be conclusive as to the validity of a registered mortgage except in an action to rectify the register by expunging the mortgage. Although in the case of Coras the plaintiff in his statement of claim had sought rectification, that remedy was not in the end pursued.
As is well-known, the so-called doctrine of deferred indefeasibility was rendered at least moribund by the decision of the Judicial Committee in Frazer v. Walker [1967] 1 A.C. 569. It has since been dealt its quietus in this country by decisions of the High Court. In Breskvar v. Wall (1971) 126 C.L.R. 376, the opinion of Dixon, J. in Clements v. Ellis that the dissenting judgment of Salmond, J. in Boyd v. Mayor of Wellington was to be preferred to those of the majority was repudiated by Barwick, C.J. at 386, by Walsh, J. at 406 and by Gibbs, J. at 412-3. That view was confirmed in Bahr v. Nicolay [No. 2] (1987) 164 C.L.R. 604. These decisions have been repeatedly applied in recent years by intermediate courts of appeal, the most recent (so far as I know) being Macquarie Bank Ltd. v. Sixty-Fourth Throne Pty. Ltd., unreported, C.A. (Vic.) 28 October 1997, where the other recent decisions are mentioned; and the High Court has lately re-inforced Bahr v. Nicolay [No. 2] in Bank of South Australia Ltd. v. Ferguson (1998) 151 A.L.R. 729; 72 A.L.J.R. 551. Accordingly the judgment in Coras, illuminating in many respects though it is, must be regarded as having been overtaken to the extent that it accepted the view of Dixon, J. in Clements v. Ellis.
Percy v. Youngman raised a point similar to that which arose in Coras v. Webb and Hoare but Martin, J., on the question of indefeasibility, reached a different conclusion. There, the plaintiff, a vendor of Torrens title land, having executed the contract of sale while an infant, disaffirmed it after attaining full age, relying on her right at common law to do so. The certificate of title had not indicated the vendor's minority and the purchaser, claiming to have been unaware of it, had in the meantime caused a transfer to be registered in his favour and mortgaged the land. The plaintiff sought to avoid the sale and the transfer and to require the Registrar of Titles to lodge a caveat on her behalf, as a person under the disability of infancy, prohibiting any dealing with the property. Martin, J., having referred to Gibbs v. Messer [1891] A.C. 248, to Assets Co. Ltd. v. Mere Roihi [1905] A.C. 176 and to the judgment of Dixon, J. in Clements v. Ellis, supra, held, at p.282, that "... the rule of law that an infant who contracts is entitled to avoid the contract before attaining, or within a reasonable time of attaining, her majority, does not prevail when such contract has been followed by a transfer duly registered under the Transfer of Land Act 1928 by one who had no knowledge of the fact of infancy and who has been granted a certificate of title free from encumbrances ...".
The judgment of Martin, J. leaves unstated the reason why ignorance by a transferee of the contracting transferor's infancy should render ineffectual, as against registration of the transfer, the transferor's common law right as an infant to avoid the contract. Is a transferee who takes a transfer with knowledge of the infancy to be deprived on that account of the benefit of indefeasibility? In Coras Philp, J. assumed so. If that is right it is not immediately easy to see why the efficacy of the infant's common law right should depend on the transferee's knowledge of the transferor's infancy or lack of it: an infant's common law right to avoid a contract is not dependent on the other contracting party's knowledge of the infancy. Dr Stanley Robinson in Transfer of Land in Victoria (1979), at 144-5, appears on that account to query the statement of Martin, J. which I have quoted above. If I may say so, it is a fair comment. On the other hand the justification for the comment on p.37 (note 29) of the same work that "Percy v. Youngman ... appears in the light of Frazer v. Walker ... to be wrongly decided: Coras v. Webb ... is preferred ..." is not obvious.
I should not doubt (with respect for the memory of Martin, J.) that the result in Percy v. Youngman was correct. It has received support in an essay by F.P. Hennessy, "Mortgages of Land by Infants", (1950) 24 A.L.J. 278, at 281 and in Baalman, Commentary on the Torrens System in New South Wales (1951), 155. Having regard, however, to the development of the law in the intervening period, the result might now be differently explained or justified. A contract to sell an estate or interest in Torrens title land, made by the registered proprietor who is a minor, will have immediate effect; and, fraud aside, registration of a transfer of the estate or interest sold will confer on the transferee, as against the minor, an indefeasible title unless the minor can resist the effect of registration by reference to some claim at law or in equity which binds the transferee. To say, merely, that the contract which justifies the transferee's registration, or on which the registration depends, has been avoided after the registration, or is voidable at common law, will not achieve a defeasance of the title which registration confers. So much is made clear by the decisions of Street, J. in Mayer v. Coe [1968] 2 N.S.W.R. 747, at 754 and Ratcliffe v. Walters [1969] 2 N.S.W.L.R. 146 at 151-3, which were approved by Barwick, C.J. in Breskvar v. Wall, supra, at 387, with whom Windeyer, J. (at 399) and Owen, J. (at 400) specifically agreed. Defeasance can only be justified (again leaving fraud aside) if the minor can point to a right in personam - that is to say, a right by which a legal or equitable remedy can properly be imposed upon and bind the transferee in favour of the minor by way of negating the claim of the transferee in the capacity of registered proprietor. Percy v. Youngman, however, did not deal with a contract by a minor to secure repayment of money lent or to be lent; and neither that case nor Coras v. Webb was concerned with a statutory provision which renders such a contract void, as opposed to a common law right to avoid a contract.
Although the arguments before O'Bryan, J. may have assumed otherwise, the expressions "personal equity" and "right in personam" in the present context are not in my opinion usefully indicative of anything other than a "claim in personam" of which the Judicial Committee spoke in Frazer v. Walker. Moreover it should now be acknowledged that such a claim in personam encompasses only known legal or equitable causes of action: Garafano v. Reliance Finance Corporation Ltd. (1992) N.S.W. Conv. R. 55-640, per Meagher, J.A., with whom Priestley, J.A. agreed; Grgic v. Australia & New Zealand Banking Group Ltd. (1994) 33 N.S.W.L.R. 202, at 223-3, per Powell, J.A.; Macquarie Bank Ltd. v. Sixty-Fourth Throne Pty. Ltd., supra; and cf. Pyramid Building Society (In Liq.) v. Scorpion Hotels Pty. Ltd. [1998] 1 V.R. 188, where the correctness of that view was assumed. Of course, equity always acts on the person; and it should scarcely be necessary to say that a claim in personam, whether legal or equitable, refers to a claim which avails against a specific person only because of the circumstances. Consistently with this notion, the Torrens system of title by registration "... does not interfere with the ordinary operation of contractual or other personal relations, or the effect of instruments at law or in equity": Groongal Pastoral Co. Ltd. (In Liq.) v. Falkiner (1924) 35 C.L.R. 157, at 163. The system is regarded, as Isaacs, J. explained in an oft-quoted dictum, "... as giving greater certainty to titles of registered proprietors, but not in any way destroying the fundamental doctrines by which Courts of Equity have enforced, as against registered proprietors, conscientious obligations entered into by them.": Barry v. Heider (1914) 19 C.L.R. 197, at 213. It does not seem to me to be possible to argue, a priori, that a privilege or benefit given to a minor by a statutory provision such as s.49(a) of the Supreme Court Act 1986 confers a right or claim in personam that will meet any and every claim of a registered proprietor under Torrens title legislation. In this I respectfully agree with Professor D.J. Harland who, in The Law of Minors in Relation to Contracts and Property (1974), at 114, wrote that -
"... it is difficult to characterise as a 'right in personam' the right of a minor to avoid, on the ground of lack of capacity, a disposition made by him. Such a right does not arise out of some aspect of the specific dealings between the parties giving rise to such rights as a right to attack the transaction on the ground of fraud or undue influence or to maintain that the transferee holds the property subject to some equitable right of the transferor. The right asserted by the minor arises quite independently of the particular dealings between the parties and is based on his general lack of capacity arising from his age."
I should be prepared to hold that, if ss.41, 42 and 43 of the Transfer of Land Act apply to confer on the respondent as against the appellant an interest in the land by registration of the mortgage, s.49(a) of the Supreme Court Act does not alone confer on the appellant a claim in personam which could defeat that interest. There is, however, an anterior question: whether registration under the Transfer of Land Act of a mortgage such as that which was executed by the appellant, a minor, is capable of effecting in favour of the mortgagee an interest in the subject land as against the minor. The question is not whether a prima facie indefeasible interest of the mortgagee can be met by a grant of relief to the minor by a court acting in personam but whether, by registration of the mortgage, the mortgagee derives an interest as against the minor at all. This question does not appear to have been considered below and we received no argument about it on the hearing of the appeal. The proper answer is to be determined by considering whether the relevant provisions of the Transfer of Land Act and the Supreme Court Act can stand together. I was at first attracted to the view that there was inconsistency between the two sets of provisions and that s.49, being a later enactment, should prevail. I am, however, persuaded by the reasons of the other members of the Court, which I have had the advantage of studying in draft, that the provisions should not be treated as inconsistent with each other. I respectfully adopt their reasons and need not add to them in that respect. The judgment for possession and the order for sale as against the appellant were accordingly justified by virtue of the registered mortgage. That is sufficient to defeat the appeal, although it appears that the relief granted by the learned judge to the respondent was not founded on the mortgage. The declaratory order made below that the mortgage "is void as against" the appellant, while now in strictness incongruous and inappropriate, will remain, there being no cross-appeal.
By its amended statement of claim the respondent sought alternative relief against the appellant that did not rely on the mortgage, namely a declaration that it was entitled to a subrogated right to a vendor's lien over the subject land. Because O'Bryan, J. had decided that the respondent had obtained an indefeasible interest by virtue of registration of the mortgage, and that the appellant was not entitled to rectification of the Register, it was not strictly appropriate that he should have dealt with the respondent's alternative claim for relief. Being an equitable claim, it was a true alternative which could not stand together with the right to rely on the mortgage. He did deal with it, however, and acceded to it. The basis for the alternative claim was that, because the advance of $40,000 made by the respondent to the Horvaths had been used by them to purchase the land, the respondent was subrogated to the lien that the vendor would have had if the purchase price had remained unpaid to the extent of the advance. O'Bryan, J. applied the decision in Nottingham Permanent Benefit Building Society v. Thurstan [1903] A.C. 6 which he held to be relevantly indistinguishable from the present case. In Thurstan the House of Lords upheld a decision of the Court of Appeal to the effect that a mortgage given to a building society by an infant in order to secure a loan made to the infant to purchase real property was void by reason of s.1 of the Infants Relief Act 1874; but that, the loan having been applied to pay the purchase price for the property owed by the infant purchaser to the vendor, the building society was entitled by subrogation to such a lien as the vendor would have had as against the purchaser. The principle has been widely recognised. Lord Diplock in Orakpo v. Manson Investments Ltd. [1978] A.C. 95, at 106, treated the Court of Appeal in Thurstan's Case as having regarded it "as a classic case of subrogation to the unpaid vendor's lien"; and see Halsbury's Laws of England, 4th ed., vol. 28, paras.508, 556, 558 and 570; Meagher, Gummow and Lehane, Equity Doctrines and Remedies, 3rd ed., 263-5; Sykes & Walker, The Law of Securities, 5th ed., 199-202; Mitchell, The Law of Subrogation (1994) 158-160; Voumard, The Sale of Land, 5th ed., para.4060; Fisher & Lightwood's Law of Mortgage, (Australian ed., 1995) para. 2.13. If the mortgage had not derived validity from its registration there would in my opinion be no reason not to apply here the principle that the House of Lords approved in Thurstan. A similar question had been extensively considered earlier by the Supreme Court of the United States, which reached the same conclusion as the House of Lords, in MacGreal v. Taylor (1896) 167 U.S. 688, a decision that was evidently not cited in Thurstan. Interestingly, both MacGreal and Thurstan were considered by Philp, J. in Coras v. Webb. Thurstan was not properly applicable there because the money lent had not been applied to the purchase of the subject land. MacGreal was a case (like Coras v. Webb and unlike Thurstan and the present case) in which a mortgage was avoided pursuant to an infant's common law right to do so. Philp, J. discerned from MacGreal, however, a principle that "... the common-law voidance did not exclude equity from giving effect to the avoidance by decreeing a modified restitutio which fully protected the infant's privilege". His Honour would apparently have been prepared to apply the principle that he discerned from MacGreal in order to require the plaintiff, by way of doing equity, to account to the mortgagee for the money lent in return for an equitable decree of rectification of the Register, had the plaintiff pursued a claim for it. We are not called on here to consider whether, by the adoption or adaptation of any comparable principle, the appellant might be required to account to the respondent, in order to obtain the rectification of the Register that he sought, for the advances of $220,000 that were not applied to the purchase price of the subject land. The respondent's claim based on subrogation to a lien was confined by its pleading to the unrepaid portion of the advance of $40,000 that was applied to the purchase price of the land, and interest thereon. It was agreed at the trial that the respondent's entitlement on that footing was $39,165 and interest from 21 May 1993 (when the Horvaths ceased to pay interest) to the date of judgment. O'Bryan, J. allowed interest at a rate of 13.2%, which worked out at $14,813, producing a total entitlement of $53,978.
The conclusion that the respondent was subrogated to the lien that it claimed if the mortgage was void was in my opinion inevitable. The lien was an equitable one, entitling the respondent to an equitable charge, the traditional remedy for the enforcement of which was to obtain a receiver: Thurstan [1902] 1 Ch. 1, at 13, per Romer, L.J. Nowadays an order for possession is appropriate as a step in the enforcement of the equitable charge, coupled with an order for sale made pursuant to O.55 of Chapter I of the Rules of Court. The order for sale made by O'Bryan, J. was justified either on the basis of a lien or on the basis of a mortgage. The declaratory order as to the extent of the lien would appear to have been overtaken by events. We were told that, following the judgment pronounced by O'Bryan, J., the land was sold by the respondent, and that there was a shortfall, although we were not told the extent of it.
The appeal should be dismissed.
ORMISTON, J. A.:
The appeal in this matter has caused the Court much difficulty, not only because difficult principles have had to be analysed and reconciled but because the appellant conducted the case for himself and was unable to give the Court any real assistance in resolving those issues. In the end all members of the Court are agreed, in substance, that the appeal must be dismissed and that the respondent bank had an enforceable security over the property jointly held by the appellant and his parents which the bank was entitled to enforce. The difficulty has been in identifying the nature of that right and in what circumstances, if any, the bank may have lost that right. This has thrown up difficulties relating to the nature of a security interest granted by a minor but registered under the provisions of the Transfer of Land Act 1958 ("the Act").
In the end I have concluded that the mortgage granted by the appellant (and his parents) has, at all times since its registration, remained enforceable by the mortgagee bank notwithstanding the fact that the appellant was at the time it was granted under the age of 18 years and might otherwise have claimed the benefit of the provisions of s.49 of the Supreme Court Act 1986 whereby contracts "for the repayment of money lent or to be lent" by a minor are "void": see para.(a). I shall call this section the "relief provision" in recognition of the fact that it is derived from s.1 of the Infants Relief Act 1874 of the United Kingdom which in turn was copied (though not precisely) in this State in s.3 of the Infants Relief Act 1909, which is the somewhat more elaborate forbear of s.49 of the Supreme Court Act.
The facts and issues are set out in the judgments of the other members of the Court. Their detailed analysis has relieved of the necessity of going through many of the issues and authorities. The first principal issue is whether before registration both the appellant's agreement to borrow and repay money and the related mortgage were made void by reason of the relief provision. The competing views are by no means simple, as the other judgments demonstrate. It is not inconceivable that a conclusion might have been reached by the courts over the years that avoidance of a loan contract would not in itself have any bearing on the validity or otherwise of a related mortgage: (that is, without having regard to any consequences which might flow from registration under the Act.) However, since at least 1902 it would appear that it has been accepted that the obligations under a mortgage are so closely bound up with a related agreement to borrow that, if the latter contract falls because the obligation is avoided by reason of a relief provision, or probably any other statutory provision avoiding a contract, then the related mortgage must likewise fall and cannot be enforced. This is what was held in Nottingham Permanent Benefit Building Society v. Thurstan [1903] A.C. 6, albeit that in that case and in subsequent cases it was held that the lender might succeed to and enforce the vendor's lien which the vendor otherwise would have had against the purchaser. I agree with what Tadgell, J.A. has said about this case. The principle was recognised, although distinguished, by the House of Lords in Orakpo v. Manson Investments Ltd. [1978] A.C. 95 and in Victoria in Evandale Estates Pty. Ltd. v. Keck [1963] V.R. 647. A similar conclusion, based in part on English authority, was reached by the Supreme Court of the United States at about the same time in MacGreal v. Taylor (1896) 167 U.S. 688: reference was made to this case in Coras v. Webb [1942] St.R.Qd. 66 at 72-73.
Whatever be the merits of the respective arguments I do not feel it is appropriate for this Court at this time to refuse to follow such a well-known line of authority as was sought by the appellant, if not directly, at least by inference. Indeed Thurstan was sufficiently well-known for Mr Mackey M.L.A. on 14 October 1909 to make a direct reference to its conclusions in the course of moving the second reading of the Contracts of Infants Bill, which was passed as the Infants Relief Act 1909: see Hansard 1909 Vol. II p.1603. Effectively those conclusions have been understood for 100 years and it is in these areas, the law of contract and the law of property, that the courts should be cautious in overturning accepted principle if a principle of this kind, which has a direct bearing on parties' title to land, is to be changed at the whim of the courts without regard to what has been accepted for so long a period, and, if changes were made, courts might be fairly criticised for undermining parties' expectations. Such changes as are appropriate ought only to be made after careful review and by enactment of suitably expressed legislation. Admittedly the present relief provision may be said to be expressed in a not ideal form, but, if change is to be made, it should be made upon careful consideration and, for example, in the way which attracted the approval of the New South Wales legislature when passing the Minors (Property and Contracts) Act 1970.
I would therefore conclude that, unless registration of the mortgage in the present case has preserved the respondent's rights, then it was not entitled to sue on or otherwise enforce the mortgage itself. So it would only have the benefit of the rights to which it was subrogated pursuant to the deemed vendor's lien, as was held by the learned primary judge.
Consequently the second principal question is whether the relief provision conflicts with the sections relating to indefeasibility of title in the Act to the extent that the latter cannot apply, thereby denying the respondent any rights under the mortgage. This will be resolved by determining whether the relief provision overrides the indefeasibility provisions of the Act, in particular ss.42 and 43. It must be remembered that in the present case the respondent's mortgage has been registered, with the accepted legal consequences which flow from the present interpretation of the Act, i.e., those consequences which would follow unless the relief provision prevails. Whatever sympathy one may have for the deferred indefeasibility doctrine espoused by those great jurists, Salmond, J., of the New Zealand Supreme Court in Boyd v. Mayor etc. of Wellington [1924] N.Z.L.R. 1174 and Dixon, J., in Clements v. Ellis (1934) 51 C.L.R. 217, the accepted consequence of Frazer v. Walker [1967] 1 A.C. 569 and Breskvar v. Wall (1971) 126 C.L.R. 376 (if it had not previously been so) has been that a transferee, mortgagee or other person acquiring an interest in Torrens system land acquires from the moment of registration an indefeasible interest of the relevant kind in the land notwithstanding that the instrument of transfer, mortgage etc. was itself void, voidable, unenforceable or illegal; that is, unless the provisions of the Act or some other statute such as the relief provision deny the unimpeachability and indefeasibility of the title intended to be so acquired.
Thus the issue is whether the relief provision in s.49(a) of the Supreme Court Act 1986 would deny the conclusive nature of the respondent bank's title as mortgagee. Is it so inconsistent with the essential provisions of the Act that it must prevail?
For this purpose an anterior question must be resolved. Inconsistency would only be relevant and prevalent in its consequences if it works an implied repeal pro tanto of some statutory provision. Omitting certain presently irrelevant circumstances, one must find that the legislature has later passed some inconsistent provision with which the earlier provision cannot stand. Ordinarily, if there be an inconsistency, the later passed statute or section will prevail. The relevant principles have been expressed in a number of ways over the years and they are best summarised by Yeldham, J. in Re Applications of Shephard [1983] 1 N.S.W.L.R. 96 at 106-107: for subsequent authorities see Halsbury, Laws of Australia: Statutes para.385-670(1) and Pearce and Geddes, Statutory Interpretation in Australia (4th ed.) paras.7.9-7.14. The principles go back many years and it would seem that they are not matters only of statutory construction for, once find inconsistency of the relevant and necessary kind, the implied repeal gives priority to the latter statute as a matter of law, not as a mere canon of statutory interpretation: see per Gummow, J. in Suatu Holdings Pty. Ltd. v. Australian Postal Corporation (1989) 86 A.L.R. 532 at 546.
The difficulty then is to ascertain whether the latter statute is inconsistent in the relevant sense with the earlier statutory provision. Four observations by members of the High Court will sufficiently state the principles. In Goodwin v. Phillips (1908) 7 C.L.R. 1 at 10 Barton, J. cited this passage from Hardcastle and Craies on Interpretation of Statutes:
"The Court must be satisfied that the two enactments are so inconsistent or repugnant that they cannot stand together, before they can from the language of the later imply the repeal of an express prior enactment, i.e. the repeal must, if not express, flow from necessary implication."
Later, in Rose v. Hvric (1963) 108 C.L.R. 353 the Court said (at 360):
"Even before Dr Foster's Case (1614) 11 Co. Rep. 56b it was settled law that a later affirmative enactment does not repeal an earlier affirmative enactment unless the words of the later are 'such as by their necessity to import a contradiction': see per Lord Blackburn in Garnett v. Bradley [1878] 3 App. Cas. 944 at 966. There must be in the later provision an actual negation of the earlier. Ex hypothesi there is no negation in words, but there must be a negation as a matter of meaning. Lord Chief Baron Comyns expressed the point by saying that affirmative words do not take away a former statute but where they 'in sense contain a negative': Com. Dig. tit. Parliament, R. 25. Only where that occurs is the general test satisfied which has often been laid down in respect of repeal by implication, that the contrariety between the earlier and later enactments must be such that 'effect cannot be given to both at the same time Kutner v. Phillips [1891] 2 Q.B. 267 at 272; Hack v. Minister for Lands (1905) 3 C.L.R. 10 at 23, 24 ...'".
Finally, a well-known passage by Fullagar, J. in Butler v. Attorney-General (Vic.) (1961) 106 C.L.R. 268 at 275-276, although in a dissenting judgment, has recently been restated and approved in a judgment of the majority of the Court (Wilson, Dawson, Toohey and Gaudron, JJ.) in South Australia v. Tanner (1989) 166 L.C.R. 161 at 171:
"The books contain, of course, plenty of examples of an implied repeal - total or partial - of an earlier statute by a later statute of the same legislature, but it is a comparatively rare phenomenon, and it has been said again and again that such a repeal will not be held to have been effected unless actual contrariety is clearly apparent. I would say that it is a very rare thing for one statute in affirmative terms to be found to be implied and repealed by another which is also in affirmative terms ... There is a strong presumption that the State legislature did not intend to contradict itself, but intended that both acts should operate."
I should add that it does not seem on the authorities to be of consequence whether the present relief provision cast in seemingly negative terms, inasmuch as it declares certain contracts void, should be characterised as either positive or negative.
Of course, the rule that later statutory provisions repealed earlier inconsistent statutory provisions requires for practical purposes that one must find an earlier and a later statute, and a relevant inconsistency, to which the rule might apply. If Parliament wishes to repeal a section it has only to do that or to say that it intends that consequence. There are cases of explicit inconsistency of which South-Eastern Drainage Board (S.A.) v. Savings Bank of South Australia (1939) 62 C.L.R. 603 may fairly be said to be an example. This cannot be said to be such a case. The other cases, where the issue arises, are those where it is asserted that there is an implied or implicit repeal by the passing of later inconsistent statutory provisions. There the alleged inconsistency and its consequences must be considered. That is what is here in issue. If the relief provision could be said to have been passed earlier than the Transfer of Land Act provisions, then little could be said in support of any contention that it should prevail. Here there is theoretically a problem raised by the practice of the Victorian Parliament, at least until 1958, of passing regular consolidating statutes. It is possible, as occurred here, that each relevant statutory provision has been passed a number of times. It would seem the preferred view that it is the most recent version of each provision with which one is concerned, notwithstanding that it may have been passed in identical terms many years earlier, but it is unnecessary here to examine the question: cf. Bennett v. Minister for Public Works (N.S.W.) (1908) 7 C.L.R. 372 at 378; Maybury v. Plowman (1913) 16 C.L.R. 468: cf. O'Connor: "Public Rights and Overriding Statutes as Exceptions to Indefeasibility of Title" (1994) 19 Melb. Univ. Law Review 649 at 658-659. Whether one looks to the first Torrens statute in Victoria in 1862 and the first Infants Relief Act of this State in 1909 or whether one looks to the present provisions in the 1958 Transfer of Land Act and in the 1986 Supreme Court Act, in each case the relief provision is contained in a later statute.
Assuming therefore the relief provision in the Supreme Court Act 1986 to be the later passed enactment, what ought one to conclude as to its effect on the earlier passed critical provisions of the Act, being those relating to indefeasibility of title? It must be remembered that what the Court is here dealing with is not the creation of some new interest by virtue of the relief provision but what is asserted to be the statutory denial of the validity and enforceability of the respondent's mortgage. The issue is whether the mortgage when registered gave an indefeasible interest in the land to the respondent or whether the avoidance of the mortgage instrument by virtue of the relief provision denied forever the consequences of registration under the Act.
Nevertheless, in order to answer that question, one must ascertain whether there was true inconsistency between the relevant provisions. If the relief provision can be given effect to without the need to conclude that there has been an implied repeal pro tanto of the indefeasibility provisions of the Act, then the problem is resolved without the need to set at nought those earlier provisions which would otherwise apply. It is not difficult to see such an inconsistency where a charge is created of the kind described in the South-Eastern Drainage Board case for there a charge could have been of little value to the chargee, the Drainage Board, unless it was to have immediate and continuous effect regardless of the acts of the imputed chargor, so that the charge was held to have priority over the respondent's registered title. That conclusion was reached notwithstanding the importance placed on the indefeasibility provisions of the South Australian Act and s.6 of that Act which sought to give priority to registered interests regardless of past or future enactments. It might be said that s.3 of the Victorian Transfer of Land Act has some similar effect inasmuch as it states that inconsistent provisions shall not apply to registered land unless it is "expressly enacted to the contrary". However, in my opinion it is not necessary to resolve any questions which might arise out of the application of s.3.
The answer to the question posed, as I would understand it, flows from a correct characterisation of the two statutes as consistent or inconsistent one with the other. There is a strong presumption that Parliament does not intend to contradict itself but rather intends both relevant acts to operate within their given spheres: Butler v. Attorney-General (Victoria) at 276 and 290. No earlier statutory provision is to be treated as repealed or derogated from by a later enactment unless an intention to do so must necessarily be implied, and ordinarily there must be a very strong basis supporting any such implication, for the Parliament is generally presumed to intend both provisions to operate without there being any such implicit repeal or derogation: cf. Saraswati v. The Queen (1991) 172 C.L.R. 1 at 17. Here, although there can be no doubt that, if not registered, the mortgage would have been unenforceable by the respondent because it was void by reason of the relief provision, that provision says nothing as to the effect of registration or the operation of any of the indefeasibility provisions of the Transfer of Land Act. It is directed to the enforceability of certain contracts. The respondent bank has conceded that it cannot enforce the loan agreement against the appellant. Nevertheless the better view seems to be that the word "void" was never intended to mean that the contract in question was totally ineffective: cf. Pearce v. Brain [1929] 2 K.B. 310 and Woolf v. Associated Finance Pty. Ltd. [1956] V.L.R. 51 and see Greig and Davis, Law of Contract pp.779-780. Whether or not a different construction of the word "void" may have had other consequences (and the forgery cases suggest otherwise), the fact is in this case that the mortgage was registered in the conventional way under the Act. Whatever may have been the position before such registration, the legislature must be treated, subject to the presently irrelevant exceptions as to fraud and the like, as having given an immediately indefeasible title in the land to the respondent bank as mortgagee unless the relief provision should prevail as being relevantly inconsistent.
In my opinion the relief provision is not inconsistent in that sense. The Act deals relevantly with the effect and consequences of registration of any document lodged purporting to deal with the title to land under the Act. The relief provision deals with the binding nature of certain agreements reached with minors. Neither deals directly with the subject matter in law of the other. They can be both left to operate within their respective spheres, unless it can be said that the latter plainly intended to repeal by implication the Act's provisions as to indefeasibility to the extent necessary to give effect to the "avoidance" of contracts with minors pursuant to that provision. If properly an attempt is to be made to read the two statutes together, then the later relief provision may be seen as confined to controlling in the relevant manner the contractual rights of the parties and the indefeasibility provisions of the earlier Act may likewise be confined to the consequences of registration of instruments under the Act. Subject to one line of authority relating to leases, there is no difficulty in identifying the broad spheres of effect of each set of provisions, which ought to be seen as mutually exclusive or at least as capable of having effect without any necessary repugnancy or contradiction.
In every case where indefeasibility arises as an issue, it is because the means chosen by the parties seeking registration has been a transaction which had what is alleged to be a vitiating element of some description. The party seeking to rely on a registered title or interest has been met with a challenge that the transaction which was registered or which led to registration of such title or interest was ineffective to pass title or create the interest. Where the vitiating element is "fraud", then that is recognised in the Act (see ss.42, 43 and 44) as allowing the other party to go behind the record of registration. Otherwise, but subject to the exceptions set out in s.42, the concept of immediate indefeasibility as spelled out in Frazer v. Walker and Breskvar v. Wall is ordinarily recognised as defeating any claim that the transaction giving rise to the registered interest was void, voidable, unenforceable, illegal or otherwise ineffective, unless that party has a "personal equity" of a kind which would entitle that person to an order requiring the registered holder to transfer or surrender up the interest so acquired. As Barwick, C.J. expressed it in Breskvar v. Wall (at 386):
"Consequently, a registration which results from a void instrument is effective according to the terms of the registration. It matters not what the cause or reason for which the instrument is void."
So, in the case of forgery of a transfer, unless the transferee was aware of the wrongdoing, registration of a document not even signed by a registered proprietor becomes indefeasible from the moment of registration: see Vassos v. State Bank of South Australia [1993] 2 V.R. 316 at 327-328 per Hayne, J., approved in Pyramid Building Society v. Scorpion Hotels Pty. Ltd. [1998] 1 V.R. 188. In each case it matters not what is the vitiating factor: the policy of the Act is that, subject to the stated exceptions, registration results in a title or interest which is incapable of challenge. "The doctrine of an indefeasible title arising by registration was seen as the very essence of the Torrens system from the beginning": per Windeyer, J. in Breskvar v. Wall at 400. So the Privy Council concluded in Fraser v. Walker that "registration once effected must attract the consequences which the Act attaches to registration whether that was regular or otherwise ... It is in fact the registration and not its antecedents which vests and divests title": at 580, a passage quoted with approval by Gibbs, J. in Breskvar v. Wall at 413.
It is that critical characteristic which demonstrates why there is no relevant inconsistency in the present case. The only inconsistency which would be relevant would arise from a provision which directly or by implication denied the consequence of indefeasibility to registration either generally or in a specified circumstance. The fact that another statute declares a class of contract "void" is ordinarily of no significance once the instrument is registered. Before registration, as in the present case both contract and instrument (here the mortgage) may be taken to be void, as the relief provision requires. But, except in the case of fraud, or of any of the other relevant exceptions, that does not preserve the instrument (here the mortgage) from the consequences of registration. The relief provision says nothing as to that and one may envisage many transactions where that section operates in accordance with its terms. Before registration the appellant could have set aside both contract of loan and mortgage and restrained the respondent from registering the latter. In terms of the law of contract to which the relief provision (and the related provisions in the Supreme Court Act) were directed, both contract of loan and mortgage were void in the relevant sense and, if nothing more had occurred, the latter could not have been enforced against the appellant. Once registered, however, the mortgage took on the characteristics and had the effect of a duly executed mortgage, not because of its original contractual effects, but because as a matter of policy the Act created an immediately indefeasible interest in the land by way of mortgage in favour of the respondent. Of course registration has a number of consequential effects in that it makes the mortgage easier, or at least more certain, of enforcement but, for the purposes of the present appeal, the object of the relevant provisions of the Act is directed to certainty of title and they relate solely to the question of indefeasibility. About this latter question the relief provision had nothing to say. In those circumstances there was no relevant inconsistency for the relief provision never purported and was never intended to deny indefeasibility to a mortgage or other document once it becomes registered in the manner prescribed by the Act.
Such a conclusion is consistent with the decision which is treated as the leading exposition of the indefeasibility doctrine, namely Breskvar v. Wall (1971) 126 C.L.R. 376, but the present issue is barely touched upon: cf. per Walsh, J. at 406. In the more recent decision of Travinto Nominees Pty. Ltd. v. Vlattas (1973) 129 C.L.R. 1, the majority found no need to examine the issue although Gibbs, J. expressed himself in terms that the statutory illegality in that case infected the registered lease: at 33-35 and see per Menzies, J. at 29-30. There the contractual rights were very different, being effectively an option to renew a lease, and, if it were not otherwise distinguishable, I would be inclined, with the greatest respect, to consider Gibbs, J.'s observations on this issue as incorrect and inconsistent with Breskvar v. Wall and the later observations on indefeasibility in Bahr v. Nicolay (No. 2) (1988) 164 C.L.R. 604 and Leros Pty. Ltd. v. Tenara Pty. Ltd. (1992) 174 C.L.R. 407: see also per Gleeson, C.J. in Story v. Advance Bank Aust. Ltd. (1993) 31 N.S.W.L.R. 722 at 736. On these matters and on the question whether there was a "personal equity" I would otherwise in general agree with the judgment of Phillips, J.A., although I have come to my conclusion in a somewhat different way.
I would therefore conclude that the mortgage given to the respondent and registered under the Act was valid in that it bound the appellant's interest in the land. That may have led to a simpler order than that which was necessary having regard to the learned trial judge's conclusions. A different final order might therefore flow from my conclusions but there was no cross-appeal and, in the circumstances, as the appellant would not be advantaged by any different order, the judge's order should stand and the appeal be dismissed.
PHILLIPS, J.A.:
This is an appeal from a judgment given by a judge of this Court on 2 April 1996 after trial of the proceeding which by that stage was between the appellant (as third defendant in the proceeding) and the respondent (the plaintiff bank). The plaintiff bank was relying upon a mortgage which had been given by the appellant and his parents over certain land at Dandenong. The bank was seeking possession and succeeded. The bank was held entitled to recover the sum of $39,165 plus interest from the appellant's share in the land, by reason of a subrogated vendor's lien. The appellant appeals against the whole of the judgment, relying upon his infancy at the time the mortgage was given and s.49 of the Supreme Court Act 1986.
The facts of the matter are set out comprehensively in the judgment of Tadgell, J.A. and I mention only the salient features. The land at Dandenong was purchased for $69,320 by contract of sale executed on 18 September 1987 when the appellant, who was born on 12 November 1972, was not quite 15 years old. The contract was in the name of the appellant and his parents as purchasers and was signed by the three of them. The purchase was accomplished in part with a loan of $40,000 from the respondent bank which took a mortgage over the land at settlement. The mortgage was dated 19 August 1988 and this, too, was signed by the appellant and his parents. As found at trial, the bank acted in ignorance of the appellant's being a minor. The transfer was registered on 2 September 1988 and thereupon the appellant and his parents became registered as joint proprietors of the land in the title. The appellant was still not 16 years old.
A further $220,000 was lent by the bank thereafter on security of the mortgage, to assist in the construction of buildings on the land. On 2 January 1991, the bank caused the mortgage to be registered. During 1993 repayments to the bank fell into arrears and so the bank moved against the appellant and his parents under the mortgage. Judgment by default, for both the money sum by then due under the mortgage and for possession, was recovered by the bank against all three defendants, but the judgment against the appellant was afterwards set aside on his application and trial followed.
Although it appears to have been common ground at trial (and indeed on appeal) that the appellant’s parents remained liable in full under the mortgage whatever its effect (or lack of effect) in respect of the appellant, the appellant's first contention at trial was that the mortgage was void as against him by reason of his infancy and s.49(a) of the Supreme Court Act 1986 and was not saved by its registration under the Transfer of Land Act 1958 at the instance of the bank. For its part the bank (apparently because of s.49(a)) did not assert that the appellant was under any liability on the personal covenants in the mortgage to make repayment of any money lent. Rather the bank’s contention was that, even as against the appellant, the mortgage was given effect as an interest in land by virtue of its registration under the Transfer of Land Act; alternatively, if the mortgage remained wholly void as against the appellant notwithstanding its registration, the bank had succeeded to the vendor’s lien in respect of such money as was paid by the bank on account of the purchase price and accordingly the appellant’s interest in the land was to that extent charged in favour of the bank for the repayment of that money. This last submission was upheld and the Judge, apparently in enforcement of the equitable charge arising from the lien, made an order for possession and sale against the appellant, but limited to the bank’s recovering $39,165 and interest.
The appellant now appeals, prosecuting the appeal in person. Not content with the decision below that he bore no liability for any money advanced by the bank after the purchase of the land for the purpose of making improvements, the appellant claims in substance to be (or to have been, for the land has since been sold in consequence of the judgment under appeal) a co-owner of the land, with its improvements, freed altogether from any obligation to the bank for moneys advanced either for its purchase or for building.
Supreme Court Act 1986 s.49
The first question is the effect of s.49 of the Supreme Court Act on the mortgage given by the appellant and his parents to the bank, independently of such force, if any, as is given the mortgage by the provisions of the Transfer of Land Act relating to indefeasibility of title. I have found that first question by no means an easy one; it is made complicated by the dearth of case-law that might be thought relevant and the uncertainty which still seems to surround the operation of the s.49 and its legislative precursors. See, for example, the exchange between G.H. Treitel and P.S. Atiyah in the Law Quarterly Review (to which Ormiston, J.A. referred me): The Infants’ Relief Act 1874 (1957) 73 L.Q.R. 194, (1958) 74 L.Q.R. 97, 104.
It is useful, I think, to start with the nature of a mortgage of land; for a mortgage wears two aspects, not one. First, it contains or evidences a contract for the repayment of money lent and, secondly, it creates an interest in the land which is given by way of security for the repayment. In Sykes, Law of Securities (4th ed.) at p.44 these two aspects are dubbed "a contractual part and a conveyancing part" and sometimes the distinction between them can be important. So it was in English, Scottish and Australian Bank Ltd. v. Phillips (1937) 57 C.L.R. 302 where the question was whether, when the mortgagor took by purchase a transfer of the mortgage at a price equal to what was owing and became for a time registered as the proprietor of the mortgage, the personal covenants of the mortgagor were extinguished by merger. It was held by Dixon, Evatt and McTiernan, JJ. that they were not, and that the mortgagor was accordingly liable on them to a subsequent transferee of the mortgage. Being the creature of statute, the mortgage subsisted and could be re-assigned by the registered proprietor of the mortgage for the time being, notwithstanding that for a time all interests had been vested in the one owner. A distinction was emphasised between the charge created by the mortgage, which was an interest in the land and was regulated by the statute, and the personal covenants within the mortgage instrument, the effect of which could be understood, in a given case, only by obtaining details otherwise than from the instrument itself. Although that is sufficient distinction for present purposes, it may be noted in passing that in the dissenting judgment of Latham, C.J. the contrast between the mortgage as a charge and the personal covenant to pay was even more marked; for in holding that the mortgagor’s purchase of the mortgage served to extinguish that personal covenant altogether the Chief Justice said, at 308-9:-
“This extinguishment of the covenant to pay does not result in the extinguishment of the mortgage. A mortgage, as a security over and a charge upon land or other property can quite well exist without any covenant to pay. .... It is thus clear that a mortgage can exist without such a covenant, and, in my opinion, it is equally clear that a mortgage can continue to exist as a mortgage though a covenant to pay contained in the mortgage has been extinguished.”
See and compare Mercantile Credits Ltd. v. Shell Co of Aust. Ltd. (1976) 136 C.L.R. 326, Bradbrook, MacCallum & Moore, Australian Real Property Law (2nd ed., 1997) para.[4.33].
So here, one may distinguish between the personal covenants in the mortgage (the “contractual part”) and the creation of an interest in the land in the mortgagee (the “conveyancing part”). Section 49 of the Supreme Court Act plainly governs the former, in so far as the mortgage contains the promise to repay money lent, but its effect, if any, in relation to the latter is far from evident. Section 49 derives from the Infants Relief Act 1874 (37 & 38 Vict. c.62) which read thus:-
"1.
All contracts, whether by specialty or by simple contract, henceforth entered into by infants for the repayment of money lent or to be lent, or for goods supplied or to be supplied (other than contracts for necessaries), and all accounts stated with infants, shall be absolutely void: Provided always, that this enactment shall not invalidate any contract into which an infant may, by any existing or future statute, or by the rules of common law or equity, enter, except such as now by law are voidable.
2.
No action shall be brought whereby to charge any person upon any promise made after full age to pay any debt contracted during infancy, or upon any ratification made after full age of any promise or contract made during infancy, whether there shall or shall not be any new consideration for such promise or ratification after full age.”
The contrast between ss.1 and 2 is obvious enough. Section 1 was expressed to be limited in operation to contracts of a certain specific kind, and it was so treated: Duncan v. Dixon (1890) 44 Ch.D. 211. If proscribed by s.1, the form of the contract was irrelevant: thus Hutley v. Peacock (1913) 30 T.L.R. 42 concerned a post-dated cheque and Smith v. King [1892] 2 Q.B. 543 the acceptance of a bill of exchange. But all contracts not specifically identified by s.1 remained unaffected by it: Whittingham v. Murdy (1889) 60 L.T.(N.S.) 956 at 959. Section 2 was altogether different. That section was not expressed to relate only to certain types of contract and very soon s.2 was being applied to contracts most unlike those mentioned in s.1; for example, contracts to marry: see Coxhead v. Mullins (1878) 3 C.P.D. 439, Northcote v. Doughty (1879) 4 C.P.D. 385 and Ditcham v. Worrall (1880) 5 C.P.D. 410. Under s.2 it was sometimes difficult to distinguish between the ratification of an earlier promise made during infancy (which could not be enforced) and a new and independent promise made after infancy ceased (which could): see, for example, Ex parte Kibble, In re Onslow (1875) L.R. 10 Ch.App. 373, Vickery’s Motors Pty. Ltd. v. Tarrant [1924] V.L.R. 195 (Cussen, A.C.J.). In this proceeding, however, no reliance is put upon any “ratification” of an earlier promise or contract and so I say nothing more about s.2, save to note its presence.
In Victoria ss.1 and 2 of the Infants Relief Act now find expression in ss.49 and 50 of the Supreme Court Act 1986, after being first enacted in Victoria as ss.3 and 4 of the Infants Relief Act 1909. Section 51 of the Supreme Court Act 1986 derives from s.5 of the Betting and Loans (Infants) Act 1892 (55 Vict. c.4), the long title to which was: “An Act to render Penal the inciting Infants to Betting or Wagering or to borrowing Money”. In Victoria that became s.5 of the Infants Relief Act 1909 and ss.3, 4 and 5 of that 1909 Act then became, in turn, ss.63-65 of the Supreme Court Act 1915, ss.69-71 of the Supreme Court Act 1928 and ss.69-71 of the Supreme Court Act 1958. Plainly ss.1 and 2 of the Infants Relief Act 1874 and s.5 of the later Act of 1892 had a very direct effect on the capacity of an infant to enter a binding contract of a certain type, including a contract for the repayment of money lent. It is by no means so obvious, however, what effect, if any, the Infants Relief Act had on the capacity of an infant to take, acquire and dispose of property.
That point can be demonstrated simply enough from the commentary in the title Infants and Children in Halsbury’s Laws of England (1st ed.) vol. 17, especially paras. 174 ff. and 200 ff. Published in 1911, and thus well before the major changes made in 1925 to property law in England under which it became impossible for an infant to hold real property at law, the commentary in Part III, headed Contracts, commences thus (on pp.63-4):-
“174. Independently of statutory enactments, contracts by infants are generally either void or voidable, but, in some exceptional cases, they are good and binding. A contract entered into by an infant which does not fall within the cases in which it is binding upon him has been held void if it is clearly prejudicial to his interests, and voidable if, without being clearly prejudicial, it is not indisputably beneficial to his interests. In the former case the contract will be nugatory and null ab initio, and in the latter case it may be subsequently either adopted or repudiated.
175. By statute all accounts stated with an infant are absolutely
void, and also all contracts, whether by specialty or by simple contract, entered into by an infant for the repayment of money lent, or for goods supplied or to be supplied, with the exception of contracts for necessaries, and such others as an infant is authorised to enter into by any statute for the time being in force, or by the rules of common law or equity.”
Thus far, this commentary reflected directly the provisions of the 1874 Act (as, with some qualification, it may now be taken to reflect upon s.49 of the Supreme Court Act). The commentary in Part V, headed Property, is very different. Commencing on p.75, Part V describes the capacity of the infant to hold, acquire or alienate property, but (save for one reference to the Act in para. 209 to which I refer later) it is in terms which are altogether independent of the Infants Relief Act: see especially paras. 200, 201, 203 (pp.75-6) and para. 206 (pp.78-9).
It appears well enough accepted that at common law an infant had the capacity to take, hold and dispose of real property before arriving at full age, subject to the relevant transaction’s being voidable; that is, subject to the infant’s having the power - or the privilege as it is sometimes called - of avoiding the transaction upon his or her reaching full age: see, for example, Kemp, Principles of Real Property in N.S.W. (1903) pp.77-78, Strahan, Law of Property (5th ed., 1908) p.373, Millard, Law of Real Property in N.S.W. (6th ed., 1948) pp.195-6, Moss, Sale of Land & Costs in N.S.W. (4th ed., 1967) pp.197-199, Williams, Title to Land (4th ed., 1975) pp.248, 250, Robinson, Transfer of Land in Victoria (1979) p.142 and, in Canada, Falconbridge, Law of Mortgages of Land (1942) p.23; see also North Western Rly Co. v. McMichael (1850) 5 Exch. 114, 155 E.R. 49, Edwards v. Carter [1893] A.C. 360 (an infant acquiring land) Duncan v. Dixon at 214 and Percy v. Youngman [1941] V.L.R. 275 (an infant disposing of land) and in Queensland (where there is no equivalent to the Infants Relief Act) Coras v. Webb and Hoare [1942] St.R.Qd. 66. Indeed, land vested in an infant is “settled land” within the settled land statutes and one of the purposes of that legislation was to enable dealings with such land that were not voidable, but final and binding: Settled Land Act 1958 s.8, Dart on Vendors and Purchasers (6th ed., 1888) p.4, Hood & Challis’ Conveyancing, Settled Land and Trustee Acts (7th ed., 1909) pp.329-333. Wolstenholme’s Conveyancing and Settled Land Acts (10th ed., 1913) pp.108-9, Voumard, Sale of Land (1939) p.188. None of this appears to be directly affected by s.1 of the Infants Relief Act, or indeed by s.2, and if it be correct to distinguish between the “conveyancing part” and the “contractual part” of the mortgage under consideration on this appeal, is it not open then to conclude that, while the appellant could not be regarded (in face of the statute) as liable on the covenant to repay the money lent by the bank, that in itself affords no reason why the appellant must be taken to have lacked the capacity to create in the mortgagee a valid interest in the land by way of charge, albeit that the creation of that interest remained voidable at his instance upon the appellant’s reaching adulthood? If an infant can alienate an interest in land though the transaction be voidable, why should an infant not have the capacity to charge his interest in land with the repayment of money, though that too be voidable in the sense described?
The appellant’s mortgage may be regarded as creating a charge because that is the structure of a Torrens system mortgage. Of course, it is more than simply a charge; for incidents, such as a right to possession on default and a power of sale, have been borrowed from the general law and attached so as to create this charge a "mortgage" for the purposes of the Act: Sykes, pp.17, 987, Robinson, pp.284-5, Fisher & Lightwood’s Law of Mortgage (Aust. ed.) pp.20-1, 103-4. Most importantly, a mortgage under the Transfer of Land Act creates an interest in land: in Victoria, so much is declared by s.74(2) (contrast the position in New South Wales, as described in Vukicevic v. Alliance Acceptance Co. (1987) 9 N.S.W.L.R. 13 at 15B). But why should absolving the appellant by statute from liability in contract to repay the moneys lent mean that he lacked the capacity to create such an interest in land (voidable though it might have been for the time being), or at all events to join in creating such an interest in the land of which he then became registered as one of three co-owners?
Yet, so far as I have seen, it is consistently declared by the text writers that a mortgage given by an infant is void: see, for example, Robbins, Law of Mortgages (1897) p.353, Halsbury’s Laws (1st ed.) vol. 17 para 209 note (g), Ashburner on Mortgages, Pledges and Liens (2nd ed., 1911) p.3, Williams on Vendor and Purchaser (2nd ed., 1919) pp.871-2 note (n), Williams, Law of Real Property (23rd ed., 1920) p.320 note (m), Edwards, Law of Property in Land (5th ed., 1922) p.439 note (k), Garrow's Law of Real Property in New Zealand (4th ed., 1954) p.96 note (i), Fisher & Lightwood's Law of Mortgage (9th ed., 1977) p.214 note (k), and in Canada Falconbridge, Law of Mortgages of Land (1942) p.23 note (b); contrast Hilliard, Law of Mortgages (3rd ed., Boston, 1864) vol.1, p.16. The only relevant authority cited in these texts for the proposition is Nottingham Permanent Building Society v. Thurstan [1903] A.C. 6. Indeed in Halsbury it is put quite simply in reliance upon that decision of the House of Lords: “A mortgage by an infant is, under the Infants Relief Act 1874, absolutely void”: see also Williams, Title to Land (4th ed., 1975) p.251, note 6; cf. Halsbury’s Laws (4th ed., 1979) vol. 24, para.412 note 1. On the other hand, as Romer, J. observed arguendo in Re Foulkes; Foulkes v. Hughes (1893) 69 L.T. 183 at 185: “The Act does not say that the conveyance ... is void; but only the contract.” Thurstan was apparently much debated below and the trial judge considered it indistinguishable, arriving at the conclusion in consequence that the mortgage given by the appellant was void as against him. But, with respect, I think that there are grounds in this instance for distinguishing Thurstan.
In Thurstan a mortgage had been given by the infant (the respondent in the House of Lords) to the Society (the appellant), the lending institution from which the infant had borrowed in order to complete the purchase of the land and thereafter to build on it. Upon attaining her majority, the respondent affirmed the purchase of the land but repudiated the mortgage and sued for a declaration that the mortgage was void, delivery of the title deeds (held by the Society) and possession of the property. At first instance Joyce, J. held that purchase and mortgage were but parts of the one transaction and that the respondent (being then plaintiff) could not repudiate the one while affirming the other. Accordingly he dismissed her action: sub. nom. Thurston v. Nottingham Permanent Benefit Building Society [1901] 1 Ch. 88. She appealed and succeeded in the Court of Appeal which held that the transaction of purchase was separate from the transaction of mortgage, that the one could be affirmed without the other and that the mortgage was void: [1902] 1 Ch. 1. At the same time, however, their Lordships were agreed that the Society was entitled to stand in the vendor’s shoes and, as successor to its vendor’s lien, assert a right to be paid what had been advanced for the purchase (though not what had been advanced for building) before being bound to deliver the title deeds to the respondent. On appeal by the Society, the House of Lords was brief, not reserving its decision but forthwith approving the Court of Appeal’s decision and its reasoning. The Law Lords all appeared to consider the case plain, Lord Davey expressing himself (at 12-13) as in agreement “with every word” of the judgment of Romer, L.J.
In Coote on Mortgages (9th ed., 1927) at p.378, it is stated that if an infant borrows money on mortgage for the purpose of purchasing land the transaction is voidable only and the infant cannot on coming of age affirm the purchase and repudiate the mortgage, but that appears inconsistent with the decision in Thurstan (at all events if the lender is not also the vendor). Central to the decision in Thurstan was the view that there were two transactions not one and that they might be treated separately. This might have been assisted by the fact that the purchase was apparently completed on July 21, while the mortgage was given on July 22, but nothing was said of this difference of a day; instead what was emphasised by Lord Halsbury L.C. was that the transactions were between different parties - first, the infant and the vendor and secondly, the infant and the lender. (In paying some of the purchase money to the vendor the Society was taken to have been acting as agent for the infant.) The mortgage was given to secure repayment of moneys advanced by the Society from time to time and plainly the respondent could not be liable on the personal covenant for repayment of the money lent because such a contract was expressly made void by the Infants Relief Act. The liability of the respondent to make any payment at all to the Society arose only by virtue of the vendor’s lien to which the Society succeeded, a liability which arose independently of the covenant by the respondent (the infant) to repay money lent. With the infant’s covenant to repay made void by the statute, it is not surprising that the mortgage was declared void in toto and cancelled. A mortgage exists to secure the performance of a contract for repayment, and without any valid contract for repayment there was nothing for the mortgage to secure. It achieved nothing.
A number of observations may be made about the present relevance of this decision and the reasoning. First, the Society attempted to argue that the Building Societies Act 1874 authorised the respondent, as a member of the Society though an infant, to bind herself to the Society during infancy, for the repayment of money lent to her. That argument was firmly rejected by all Judges on the ground that the Building Societies Act intended no such thing. It was not even mentioned that the Infants Relief Act, also passed in 1874, was the later Act of the two and might therefore be supposed to have overridden the earlier. (This is an aspect to which I shall return.) Secondly, the whole mortgage was declared void notwithstanding the existence of the vendor’s lien, which seems to me to emphasise how important to the decision was the absence of any valid contract for the repayment of money. The mortgage was cancelled not because the Infants Relief Act rendered the mortgage itself void in so many words, but because it rendered void the contract for repayment underlying the mortgage - and, it may be added, the only contract underlying the mortgage. (In my opinion a like approach was taken by Hall V.-C. to the equitable mortgage under consideration in In re Onslow’s Trusts (1875) L.R. 20 Eq. 677.)
It is perhaps a nice question whether registration under the Transfer of Land Act serves in a case like the present to expose the appellant to liability on the personal covenants in the mortgage, but it is a question which was not argued. Section 46 of that Act does not apply; that operates only when land already subject to a mortgage is transferred to another. But s.75 implies personal covenants to pay and the like, unless (according to s.112) that implication is excluded "by express declaration in the instrument". I should have thought that such implication was sufficiently denied by the presence of express covenants to like effect in the mortgage instrument. By reason of s.49 of the Supreme Court Act the appellant is not liable on those express covenants, unless s.42 of the Transfer of Land Act operates to make him liable. Whether s.42 can be given that effect is a problem. Whilst s.42 is concerned only to confer a good title to an interest in land (and correspondingly to free the registered proprietor from claims in respect of the land), the title to a mortgagee's interest might be rather hollow if (as was the case in Thurstan) there is no underlying obligation on anyone to make repayment, in respect of which the mortgage can operate as security. On the other hand, it can be argued that the infant's contract to make repayment does not, in itself, create any interest in land: contrast Travinto Nominees Pty. Ltd. v. Vlattas (1973) 129 C.L.R. 1 at 16- 18 and Mercantile Credits Ltd. v. Shell Co. of Aust. Ltd. (1976) 136 C.L.R. 326 at 338-9. Here, the appellant's parents remained obligated to make repayment and the bank makes no claim to force personal liability on the appellant in the face of s.49; so the problem of the infant mortgagor who is the sole borrower need not be pursued. Indeed, it would be undesirable to pursue it when the argument before us was necessarily limited, not only because of the position taken up by the bank in respect of the appellant's personal liability, but also because the appellant himself was not represented by counsel.
Thus far, I conclude that registration of the mortgage under the Transfer of Land Act was sufficient, by virtue of s.42, to confer upon the bank a good title to a mortgagee's interest in the appellant's share in the land of which he was a co-owner, to secure performance by his parents of their continuing obligation to make repayment according to the mortgage covenants. What then might be argued on behalf of the appellant against this result? First, can it be successfully contended that s.42 of the Transfer of Land Act is displaced - impliedly repealed pro tanto - by s.49 of the Supreme Court Act so that in a case where both might otherwise apply the latter prevails? In this State the provisions of the Transfer of Land Act 1958 derive from the Real Property Act of 1862 (Act No.140) and its amendment by Acts No.180 and No.223 which led in turn to the consolidating and amending Transfer of Land Statute of 1866 (see A’Beckett, The Transfer of Land Statute (2nd ed., 1883) pp.11-12, Guest, Transfer of Land Act 1890 (1895) p.viii, Wiseman, The Transfer of Land Acts (1925) p.vii) and that legislation, at least in original form, preceded the Infants Relief Act 1909. (If it matters the same order may be seen in the modern equivalents enacted respectively in 1958 and 1986). Can it be said that the later Act prevails, according to the ordinary canon of construction leges posteriores priores contrarias abrogant (as to which see Pearce and Geddes, Statutory Interpretation in Australia (4th ed., 1996) para.7.9)? In some cases that might be a relevant consideration, but there are particular difficulties in its application on this occasion. Such conflict as might be said to exist between the two statutory provisions - s.42 on the one hand and s.49 on the other - derives much from the notion of immediate indefeasibility; without that the “conflict” is less apparent, if it exists at all. The doctrine of immediate indefeasibility was recognised, or at all events became established, only in comparatively recent times and the answer to the question which of the two statutes was adventitiously passed first and which second many years ago would then seem irrelevant.
Be that as it may, the question which statute is the earlier and which the later arises only if it is first established that there is between them such irreconcilable inconsistency as to require some resolution. Much of what I have already written suggests the contrary; for the one deals with contracts and the other with the registration of title to land (or title to land by registration). Their subject matter is very different which makes it the more difficult to discern the necessary statutory intent that the one should displace the other. As Gaudron, J. said in Saraswati v. The Queen (1991) 172 C.L.R. 1 at 17:-
"It is a basic rule of construction that, in the absence of express words, an earlier statutory provision is not repealed, altered or derogated from by a later provision unless an intention to that effect is necessarily to be implied. There must be very strong grounds to support that implication, for there is a general presumption that the legislature intended that both provisions should operate and that, to the extent that they would otherwise overlap, one should be read as subject to the other: see Butler v. Attorney-General (Vict.) [(1961) 106 C.L.R. 268, at p.276] per Fullagar J, and per Windeyer J [(1961) 106 C.L.R., at p.290]."
The question is whether there is such conflict between the provision made by s.49 of the Supreme Court Act in relation to the mortgage given by the appellant and the provision made in that regard by s.42 of the Transfer of Land Act that the Parliament can only have intended that one should operate to the exclusion of the other. Yet why should that be so? A statutory provision that an infant’s contract to repay money is void may perhaps result in the mortgage given by the infant also being void; but if so (and I stress the condition), it is but the consequence of the contract’s being void and not because s.49 so provides expressly. There is no conflict in terms between s.49 and s.42. Moreover, it is well-established by authority that a void instrument may be effective upon registration to confer title to land. Accordingly if that is the product of ss.49 and 42 acting in combination, it cannot be said to betoken irreconcilable inconsistency such that one section must yield to the other.
The position is not unlike that in Breskvar. In that case a submission was put that s.53(5) of The Stamp Act of 1894 (which rendered the instrument of transfer void) must prevail over The Real Property Act of 1877 which otherwise gave effect to the transfer upon registration. The submission was dispatched very shortly by Walsh, J. who said, at 406:-
“I am of opinion that the submission that s.53(5) of The Stamp Act should be regarded as effecting an implied repeal pro tanto or an implied amendment of any provisions of the Act which would otherwise operate to give validity to the registration of the transfer should not be accepted”.
Although in Breskvar only Walsh, J. even mentioned the point of inconsistent statutes, in Travinto Nominees Pty. Ltd. v. Vlattas (1973) 129 C.L.R. 1 at 34 what was said by Walsh, J. in Breskvar was referred to by Gibbs, J. with approval (although, as will be seen, his Honour sought to distinguish it from the case there in hand).
One case which is often cited in relation to inconsistency between statutes is South Eastern Drainage Board (S.A.) v. Savings Bank of South Australia (1939) 62 C.L.R. 603. That was a case of conflict between the Real Property Act 1886 (S.A.) establishing the Torrens system of land registration and later legislation which authorised the levying of drainage rates and made them a charge “upon the land in respect of which they are due”. This statutory charge was held to prevail over the general provisions of the Real Property Act making an owner’s title paramount save for the usual statutory exceptions of which this charge was not one. The context in which this was resolved, however, was somewhat special because the Real Property Act, in s.6, purported to make advance provision that future inconsistent legislation should be taken to have no application to land under the Act. Dixon, J. said at 627-8:-
"It follows, therefore, that the question upon which our decision must turn is whether in the enactments creating the statutory charges such a clear intention is expressed to include land under the Real Property Act and to give to the charges an absolute and indefeasible priority over all other interests that, notwithstanding sec. 6 of that Act, no course is open but to allow the intention so expressed in the later enactments to be paramount over the earlier Real Property Act.
In my opinion this question ought to be answered that such an intention so plainly appears that no other course is open."
That result is scarcely surprising; for the alternative was to hold that the legislation imposing drainage rates and making them a charge on land was ineffective in relation to all land under the Torrens system - a very arbitrary result. What is significant for present purposes is that both Acts purported to regulate title to land and in such a way that both could not be given effect according to their terms - and that element is missing here. (See generally in relation to overriding statutory charges affecting land: Whalan, The Torrens System in Australia (1982) pp.338-342 where the New Zealand case of Miller v. Minister of Mines [1963] A.C. 484 is considered, and Pratten v. Warringah Shire Council [1969] 2 N.S.W.R. 161, (1969) 90 W.N. (Pt 1) N.S.W. 134.)
If it be thought that s.3(1) of our Transfer of Land Act makes provision not unlike that made by s.6 of the Real Property Act considered in South Eastern Drainage Board, I say this of s.3. Like s.6, s.3 does provide that an inconsistent Act should be taken not to apply to Torrens system land so that the corresponding question under s.3 would appear to become, in this case, whether the Parliament can have intended s.49 to apply to Torrens system land, notwithstanding the anticipatory provision attempted by s.3. Yet the question, so framed, is difficult to pose sensibly in the context of a section like s.49 which deals with contracts, an altogether different subject matter from title to land and one not necessarily raising any conflict at all with the latter. In my view s.3 does not assist in the resolution of the present appeal. Certainly it would not appear to advance the case for the appellant.
Travinto Nominees Pty. Ltd. v. Vlattas is also a case which is often cited in relation to inconsistency between statutes. In Travinto a lease of certain business premises contained an option to renew which, as a contract to do certain things, was proscribed by the Industrial Arbitration Act 1940 (N.S.W.) for want of approval by a specific commission or committee. The making of the contract was subject to penalty and the contract itself was declared void. The High Court was unanimous that registration of the lease under the Real Property Act 1900 (N.S.W.) did not overcome the defect but the Court divided as to the reason. Barwick, C.J., McTiernan and Stephen, JJ. held that the option to renew, being unenforceable specifically, did not create an equitable interest in land which could be the subject of the indefeasibility of title provisions: contrast Mercantile Credits Ltd. v. Shell Co of Aust. Ltd. (especially at 338 per Barwick, C.J.). On that view, the Act of 1900 did not purport to have any operation in relation to the option struck down by the 1940 Act and so there was no conflict between statutes to be resolved. Gibbs, J. (with whom Menzies, J. agreed on this aspect) considered that there was conflict in that the Act of 1900 accorded effect to the lease upon registration while the Act of 1940 (as he saw it) rendered the whole lease void and illegal, and in that situation the later Act should prevail over the earlier.
Thus, if Travinto is relevant at all for present purposes, it is relevant only for the view of two of the five members of the Court. Secondly, Travinto is plainly distinguishable because the lease was not merely void; it was made both void and illegal, whereas there is nothing illegal in an infant’s contract made void by s.49 of the Supreme Court Act. Thirdly, on the analysis adopted by Gibbs, J. the conflict was direct; one Act made the lease void and the other made it not void. Here the contrast is between an Act which makes void the appellant’s contract for repayment and another Act which gives effect to a mortgage which, it is claimed by the bank, is to operate independently of the appellant’s contract to repay, a claim that had no counterpart in the context of the dispute in Travinto (for the lessee must have abandoned the field altogether, had it relied upon the lease without the option to renew).
In the course of his judgment, Gibbs, J. distinguished the two statutes considered in Breskvar in this way, at 34-35:-
"The two statutes there could stand together; the Stamp Act avoided the transfer but the Real Property Acts had the result that registration of the void transfer was effective to vest the title in the registered proprietor. In the present case the Industrial Arbitration Act renders void the lease itself and not merely some document or transaction from which the title of the lessee was derived. If the Real Property Act were held to have the effect of validating the lease, its provisions would be irreconcilable with those of s.88B which declares the lease to be void."
Here, the bank does not seek to rely upon any contract by the appellant for the repayment of money lent and so it may be said that Gibbs, J.’s approval of Breskvar is more important than his attempt to distinguish it. Moreover, in that respect Boyd seems to me closer to the present case than Travinto and as Boyd was expressly approved in Frazer v. Walker I think it should be held to govern here. It follows that (as was so in Breskvar) an instrument which is void according to one Act is upon registration capable of having effect by virtue of another Act and, if that is so, I cannot see that there is conflict in the present case between the two statutory provisions, whichever is to be regarded as the earlier and which the later. The canon of construction according to which the later statute should be taken to prevail is but a means of resolving inconsistency which otherwise cannot be resolved and in the circumstances of this case there is no such irreconcilable conflict.
Next, there is an argument that might be put on behalf of the appellant which derives from the enactment of s.28A and s.28B of the Property Law Act 1958. These two sections were introduced by the Property Law (Loans to Minors) Act 1961. The first conferred power on an infant (if not under 18 years of age) to execute "as if he were of full age" a first mortgage of land by way of security for any moneys borrowed by him from "any bank or life assurance society" for the purpose of purchasing or erecting a dwelling house for his own occupation. Obviously the need for this provision ceased when the age of majority was lowered from 21 to 18 years of age and so s.28A was repealed by the Age of Majority Act 1977 (Act No.9075). Section 28B remains still. It purported to validate contracts for the repayment of money lent, or to be lent, to an infant (of whatever age) by certain bodies including building societies, co-operatives, life assurance societies and banks. Such contracts were to be "as valid and binding on an infant for all purposes as if the infant were of full age at the time he entered into the contract" notwithstanding anything to the contrary in s.69 of the Supreme Court Act 1958 (now s.49 of the 1986 Act) "or in any rule of common law or equity". Moreover by s.28B(2), the infant was denied the right "on any ground relating to his infancy or former infancy" to avoid any obligation under the contract or an instrument executed by the infant to secure the repayment of the money lent. Such an instrument was declared by s.28B(3) to be "as valid and effectual for all purposes as if the infant were of full age and capacity at the time he executed the instrument". By s.28B(4), it mattered not that the contract was entered into by the infant with others, or that the moneys were lent to the infant and others, or that the instrument was executed by the infant with others. Thus, it was made plain that infancy was no defence in respect of those contracts and those instruments mentioned in s.28B.
The argument that might be put for the appellant based upon ss.28A and 28B is that these sections were scarcely necessary unless the then s.69 of the Supreme Court Act 1958 was understood by Parliament as rendering void not only the contracts mentioned in s.28B but also the mortgages mentioned in both ss.28A and 28B, even if registered. I am not at all sure that Parliament’s understanding of previous legislation is always compelling; see for example Transport Accident Commission v. Clarke [1994] 1 V.R. 117 at 121-2. Nor am I clear that the debates at the time bear out this assertion as to Parliament’s understanding of the effect of s.69: see Hansard, Legislative Assembly, 17 October 1961, vol. 264 pp.609-610, Legislative Assembly, 13 April 1965, vol.277 pp.3147-8 and Legislative Assembly, 2 March 1966, vol. 281 p.2722, where the debate appears to have focussed on the contract which was affected by s.69 rather than the mortgage. I simply observe that in 1965, when the mortgage was mentioned in debate more specifically, its position was distinguished from that of mere contract, the Minister going on to make reference to advice received differentiating between the contract aspect of a mortgage and its conveyancing aspect. Indeed, the debates tend to suggest that concern had arisen because the Registrar of Titles was refusing to register mortgages given by infants, and not because registration did not accord them validity. But none of this need be pursued; for quite independently of the content of the Parliamentary debates the enactment of ss.28A and 28B does not in my opinion justify that view of Parliament’s understanding upon which the argument for the appellant must depend.
I say that for a number of reasons. First, it cannot be surprising, if only in the light of Thurstan, that Parliament saw the need to enact ss.28A and 28B if infancy was to be denied as a defence to persons borrowing for certain specified purposes or from certain specified bodies. It does not follow that s.69 of the 1958 Act, must therefore have been taken to have the operation which the appellant would now accord to its successor, s.49 of the 1986 Act in the particular instance under appeal. Secondly, though Parliament was obviously concerned to deny effect to s.69 of the 1958 Act in relation to the contracts and instruments mentioned in ss.28A and 28B, those two sections might well have been intended to do no more than put the validity of such transactions beyond doubt. After all, the authorities on the operation of the Infants Relief Act 1874 and its successors were not easy to reconcile and those who would lend to infants were plainly at risk, to a greater or lesser degree depending upon the precise transaction, but in my opinion neither s.28A nor s.28B can be used to define the extent of that risk. Thirdly, and most importantly for present purposes, neither section adverts to the effect of registration under the Transfer of Land Act. Sections 28A and 28B may just as well be understood as directed to contracts and unregistered instruments; there is nothing in them to indicate acceptance of the view that registration under the Transfer of Land Act is insufficient to accord validity to what otherwise is void. And finally in a case like the present, if registration of the mortgage, although sufficient to accord validity to that aspect of the instrument which would charge the land, remains insufficient (which I need not decide) to expose the infant to personal liability on the covenants because of s.49, ss.28A and 28B would serve the very useful purpose of imposing that personal liability on the infant. In short, in my opinion there are a number of reasons for the enactment of s.28A and 28B which do not depend upon the view that registration of an instrument under the Transfer of Land Act was of no effect if that instrument was otherwise void for infancy, and so it cannot be concluded that that must have been the view of Parliament at the time.
Finally, although I have not so far mentioned it when contrasting the operation of s.49 of the Supreme Court Act and s.42 of the Transfer of Land Act, there is, I think, very good reason for not concluding that s. 49 overrides s.42 so completely as the argument for the appellant must suggest; for if s.49 does override s.42 in a case where both can operate, it must also override s.43 which protects the title of one dealing with the registered proprietor, and the consequences would then be considerable. Whether by the discredited notion of deferred indefeasibility or by the now preferred doctrine of immediate indefeasibility, it is generally accepted that under the provisions of the Transfer of Land Act a subsequent transferee, subject only to fraud, takes a clear and indefeasible title; nor was the contrary suggested here. Yet how could it be so if s.49 overrides ss.42 and 43 of the Transfer of Land Act? On the present hypothesis, s.49 of the Supreme Court Act strikes down not only the infant’s contract for repayment, but the whole mortgage transaction (at least so far as it purports to bind the appellant); it is void absolutely, without the need for any act on the part of the infant. If s.49 overrides s.42 and with it s.43, the invalidating effect of s.49 must endure notwithstanding the subsequent registration of the mortgage by the party with whom the infant (the appellant) has purported to deal and in consequence that party (the bank) obtains absolutely nothing by means of the registration. How then could the bank transfer title to another; how could a transferee from the bank justify title? As one cannot nowadays allow that the transferee from the bank gains title when the bank does not merely because the bank dealt directly with the infant (for that would seem to resort to the discredited doctrine of deferred indefeasibility), it seems necessary if the subsequent transferee is to have title to recognise that that result flows in favour of the bank also. It cannot be concluded, then, that s.49 prevails over either s.42 or s.43.
“Personal equity”
Accordingly, in my opinion s.49 of the Supreme Court Act does not override such indefeasibility of title as is otherwise accorded to the mortgage upon its registration by s.42 of the Transfer of Land Act; in a case like the present s.42 prevails if the mortgage was void as against the appellant before its registration. What, then, are the consequences, if any, of s.49 once registration has been achieved? It is tempting to characterise s.49 as giving rise to a right in personam, albeit a statutory right in personam, of the type recognised by their Lordships in Frazer v. Walker at 585: compare Robinson at p.39. But is that consistent with authority?
In Mercantile Mutual Life Ins. Co. Ltd. v. Gosper (1991) 25 N.S.W.L.R. 32 at 44-46 Mahoney, J.A. offered, I think, some resistance to the passing of the doctrine of deferred indefeasibility, in a passage to which his Honour later referred in Story v. Advance Bank of Australia Ltd. (1993) 31 N.S.W.L.R. 722 at 739-40. If Mahoney, J.A. was in truth regretting the passing of that doctrine, it is a view with which, if I may say so, I have some sympathy; for the doctrine of immediate indefeasibility appears to me to cast a heavy burden upon a registered proprietor to protect the title against the possibility of fraud without always according him or her a sufficient means for doing so. After all, the ways of the fraudster are infinite and varied and are the more likely to be effective the less they can reasonably be anticipated. In contrast, the means of protecting the title are necessarily limited and the most usual, that of personally keeping the duplicate certificate in safe custody, may not even be available if that document must for the time being be kept by another. The doctrine of deferred indefeasibility might be thought to have been well-suited for a case under s.49; for upon attaining adulthood an infant could then assert the claim to defeat a title registered adversely during infancy, subject only to the rights of any third parties which have intervened in the meantime. But the doctrine of immediate indefeasibility is now so firmly entrenched that the question what effect s.49 might have after registration of the mortgage in this case must be determined in the context of that doctrine.
A right which may be successfully asserted against a registered proprietor though not noted on the title is often dubbed a “personal equity”, although that term can perhaps be misleading; a “right in personam” (as used in Frazer v. Walker) might be the better description: see and compare Robinson at p.37. But by whatever name, the search is for a right which may be asserted against the registered proprietor of an interest in land and which will in the result impinge upon that title which is otherwise conferred by registration. Since Frazer v. Walker, there has been much debate about what precisely constitutes such a right, and what does not. Again Mahoney, J.A. in his comprehensive judgment in Gosper at 46, suggested that it was too late in the day to restrict the concept of a personal equity to a right arising out of the conduct of the registered proprietor, whether before or after registration, and that view has since been confirmed. Bradbrook, etc. para.4.68 treats the matter as none the less tolerably clear:
"The extent and limits of the in personam exception to indefeasibility have been analysed in a number of cases recently and have been the subject of considerable academic debate. Despite some uncertainty about its precise parameters the basic nature of the exception is clear, and has been clear from very soon after the commencement of the Torrens legislation. The exception, if indeed it is properly so called, acknowledges that the concept of indefeasibility of title enshrined in the Torrens legislation does not affect the personal obligations of the registered proprietor. A registered proprietor is subject to contracts he or she has entered into and also to trusts, whether express or implied, over the property. Thus, if a registered proprietor enters into a contract to sell the land the purchaser can seek specific performance of the contract if the registered proprietor refuses to complete."
On that approach, the bank in this case, after obtaining registration of the mortgage, had a title by registration not subject to defeasance by the appellant claiming by reference to s.49 of the Supreme Court Act. But whether what has just been quoted is exhaustive is perhaps another matter: see and compare Logue v. Shoalhaven Shire Council (1979) 1 N.S.W.L.R. 537 at 543ff, Bahr v. Nicolay [No.2] (1988) 164 C.L.R. 604, Story v. Advance Bank (1993) supra, Grgic v. Australia and New Zealand Banking Group Ltd. (1994) 33 N.S.W.L.R. 202, Pyramid Building Society (in liq.) v. Scorpion Hotels Pty. Ltd. supra (Court of Appeal, 4 February 1997) and Macquarie Bank Ltd. v. Sixty Fourth Throne Pty Ltd. (Court of Appeal, 28 October 1997, unreported), to cite but a few. (The High Court refused special leave to appeal in Macquarie Bank on 19 May 1998.)
At trial the existence of any unconscionable conduct of the part of the bank was expressly negatived by the Judge and that finding, though attacked on this appeal, cannot properly be disturbed. The claim to a right in personam therefore depends wholly upon s.49 of the Supreme Court Act and on balance I do not think that that section establishes in the appellant a right in personam which is sufficient to disturb the bank’s title by registration. Deriving from s.49 his “right” is neither more nor less than a claim to title which is adverse to that now asserted by the bank as registered mortgagee and as such it is pre-eminently a claim which is extinguished by the paramountcy accorded to the register. It is no more than a right to have the instrument set aside and as such it is not enough in itself: see, for instance, Gosper at 46-47, Vassos v. State Bank of South Australia [1993] 2 V.R. 316 at 322-3 per Hayne, J. in a passage quoted and applied by Gleeson, C.J. in Story at 736. Therefore s.49 does not avail the appellant now that the mortgage is registered. (Moreover, I might add, even if that were wrong as a matter of principle the appellant might find that if and in so far as he must resort to equity for his remedy, the remedy might be denied because of laches and acquiescence since his coming of age, or alternatively since the registration of the mortgage shortly thereafter.)
The conclusion that the appellant has no relevant right in personam deriving simply from s.49 of the Supreme Court Act seems confirmed by the very presence in the Transfer of Land Act of provisions which appear designed to protect an infant against loss of title during infancy. Thus, s.30 requires the Registrar, if recording a minor as registered proprietor, to state the age of such minor "so far as known to him", and s.106(a) empowers the Registrar to lodge a caveat "on behalf of Her Majesty or of any person under the disability of minority ..." to prohibit a transfer or dealing with the land. In the view of one commentator (Baalman, Torrens System in N.S.W. (2nd ed., 1974) p.31) both provisions are directed rather to the protection of those who would deal with the infant, than with the protection of the rights of the infant; but I am not so sure. To notify the infancy on the certificate of title or to lodge a caveat on the ground of that infancy may be directed to impeding the registration of any instrument purporting to originate with the infant; and if that is so, the opportunity is given to delay registration until the effect of infancy has been resolved. It may even be (as suggested in Robinson at 144) that, where the fact of infancy is notified on the title under s.30, that operates as a defect or “blot” to which registration is made subject (an assumption made in Coras v. Webb and Hoare at 70); and if that were so, the transferee of an interest from the infant would take subject to the infant’s privilege of repudiating the transaction - if not at any time thereafter, then at least within a reasonable time of turning 18.
Of course, the lodging of a caveat under s.106 could but delay registration: a caveat does not establish the interest claimed by the caveator, whatever it is - and in this case it would merely be the privilege to repudiate the transaction at some stage: see and compare Leros Pty Ltd v. Terara Pty Ltd. (1992) 174 C.L.R. 407. If, as I think, an infant has the capacity to transfer land or any interest in land although the transaction remains voidable at the instance of the infant within a reasonable time of becoming an adult, it makes sense that the Registrar should delay registration of any dealing lodged which is adverse to the interest of the infant, until the question of possible avoidance is resolved. The infant cannot expect that all dealings will be delayed until he or she attains adulthood; but it might be the scheme of things that a dealing which is inconsistent with the infant's privilege of repudiating a transaction entered into during infancy should not be registered so as to extinguish that privilege. Registration should be only on terms which recognise the continuation of the privilege to repudiate, at least so long as the infant remains a minor. Again, that is to treat minority as giving rise in the infant to a right in personam which is worth preserving, but by the same token it recognises that, unless preserved, registration of an inconsistent dealing might well serve to extinguish it.
Conclusion
For these reasons I consider that, if otherwise void by reason of s.49 of the Supreme Court Act, the mortgage was effective upon registration under the Transfer of Land Act to confer upon the bank a mortgagee’s interest in the appellant’s interest in the land of which he was one of the registered proprietors, although (in the absence of any submission to the contrary) the appellant was under no liability under the personal covenants in the mortgage and the bank’s interest as mortgagee stood as security only for the performance by the appellant’s parents of their obligations under the mortgage (which again were not challenged) to repay the money lent by the bank, both for the purchase of the land and its subsequent improvement. I consider also that the appellant had no relevant right in personam against the bank to disturb the effect of the registration of the mortgage.
If I were wrong altogether in the conclusions just expressed - that is, if the appellant could establish that the mortgage was void by reason of s.49 of the Supreme Court Act and that the bank’s title as mortgagee was no better after registration than before and that he had not lost his right to rely on s.49 by reason of delay or the like - I would agree with Tadgell, J.A. that the trial Judge’s decision on the basis of Thurstan should be upheld: that is, that the bank succeeded to the vendor’s lien and was accordingly entitled to regard the land as charged with the repayment of moneys advanced by it for the completion of the purchase of the land by the three co-owners. (Contrast Orakpo v. Manson Investments Ltd. [1978] A.C. 95 where the House of Lords refused to apply Thurstan to a case arising under the Moneylenders Act 1927.)
It is not altogether clear to me, with respect, how the trial Judge arrived at the result that the bank had only a vendor’s lien, in view of his holding also, in the course of his reasons for judgment, that the bank’s title was good upon registration by virtue of s.42 of the Transfer of Land Act and not subject to any adverse in personam claim by the appellant by reason of infancy. It is true that the latter appears to stand in contrast with the authenticated order which by para.3 declares the mortgage void as against the appellant, unless of course that was intended to reflect the position before registration - which would be consistent with para.1 of the order which declares that the appellant was not entitled to have registration of the mortgage “deleted from the register”. But if the mortgage was effective to confer a mortgage's interest on the bank upon its registration, even as against the appellant, what need for the vendors’s lien and why did that subrogated lien not merge in the mortgage?
Like the question of the appellant’s liability on the personal covenants in the mortgage, these details do not matter now because the bank seeks only to maintain the judgment under appeal and for more than one reason I am satisfied that it should succeed. The land has since been sold (and I assume a clear title given to the purchaser) and, although for the reasons I have given I would not myself have limited recourse by the bank to the appellant's interest in the land by restricting such recourse to its recovering the sum of $39,165 plus interest, that limitation must stand in the absence of a cross-appeal.
One final comment. Having given this matter much consideration, it seems to me that, whatever solution is adopted, it cannot be wholly satisfying. The foregoing leads to the enforcement of the mortgage as an interest in land, while the appellant remains free of liability on the personal covenants to make repayment. Of course the bank did not argue otherwise, yet while the appellant remains free of that liability the bank's position as registered mortgagee is not perhaps as indicated on the register; for while money may be owing under the mortgage one only of the mortgagors remains free of any obligation to make repayment, despite express covenants to the contrary: contrast Phillips where for the time being no-one was liable to make repayment. Moreover, the stand of the bank was made possible in this instance because the appellant was only one of three mortgagors and the mortgage could therefore constitute security over his interest in the land, if not for his liability under the personal covenants then for his parents’. That leaves open what might be the position had the appellant been the sole borrower and the sole owner of the land and so the sole mortgagor (as was so in Thurstan). In such a case it would seem to be unsatisfactory, particularly for a subsequent transferee from the bank, that s.49 should be taken to “override” altogether the provisions of the Transfer of Land Act, if that means not only that the infant mortgagor is freed of all personal liability to make repayment, but also that the bank, and subsequent transferees, are left with a title to nothing despite the register (which, in view of his immunity, an infant mortgagor might not feel impelled to correct). At the other end of the spectrum, if s.49 has no effect at all once the mortgage is registered and an infant mortgagor becomes thereby liable to make repayment by force of s.42 (and without any right, even for a reasonable time after registration, to dispute personal liability), it might be possible to argue that, although the one statute deals with contracts and the other with title to land, the sort of conflict envisaged by Gibbs, J. in Travinto has emerged: contrast Breskvar.
Because we are necessarily constrained by the position adopted by the parties, the solution to the problems just mentioned is no part of this appeal. But their very existence, and indeed the length of this judgment, should be sufficient to demonstrate how unsatisfactory is the position of infants in this State, if their liability continues to be governed by s.49 of the Supreme Court Act. In Greig & Davis, Law of Contract (1987), the position of infants in the various States of Australia and the Territories is canvassed at pp.774-793. It appears that the Infants' Relief Act 1874 is reflected in legislation only in Victoria and Tasmania, though elsewhere there is (or was) legislation reflecting s.5 of the Statute of Frauds Amendment Act 1828 (Lord Tenterden's Act). New South Wales has the Minors (Property and Contracts) Act 1970: compare the Minors Contracts (Miscellaneous Provisions) Act 1979 (S.A.). Of the former it is said in Greig & Davis at p.792:-
"If uniformity is a worthwhile objective, there is much to be said for the adoption of the New South Wales legislation as a model; it has been in operation for some 15 years and has apparently not yet arisen for interpretation by the courts. That fact alone may be some indication that it is not causing the widespread dissatisfaction which the Infants' Relief Act has brought for over a century. Further, the whole area of minors' contracts is one which is peculiarly sensitive to society's attitudes to its younger members, and the New South Wales legislation has the incomparable advantage of having been drafted in the light of values and attitudes current in the latter half of this century."
The experience of this appeal leads me to suggest, strongly if I may, that it is high time that the Victorian Parliament reviewed the position and decided whether ss.49-51 of the Supreme Court Act should now be repealed in favour, perhaps, of something like the New South Wales model.
I would dismiss the appeal.
3
0
0