Kibby v Registrar of Titles

In Kibby v Registrar of Titles, the plaintiff sought a declaration that the defendant was not entitled to be recorded as the proprietor of the Ferny Creek land. The dispute centered around whether the Ferny Creek land was held by the registered proprietors as trustees for an unincorporated association or its members. A secondary issue was whether the incorporated association was the successor of the alleged unincorporated association. The case hinged on whether an unincorporated association existed prior to the transferees taking a transfer of the Ferny Creek land in 1968, and if so, whether the transferees held the land as trustees for that association or its members. The plaintiff argued that the land was held on trust for the unincorporated association, while the defendant contended that the association was not established until after the transfer.

The court examined the evidence regarding the formation and activities of the group, including meetings in the "little chapel" on Dr. Raynor Johnson's property and the purchase of the Ferny Creek land. The plaintiff claimed that the Santiniketan Park Association began in approximately 1968, with membership at the discretion of "the teacher," Hamilton-Byrne, and without formal rules or a constitution. Other witnesses testified that membership was fluid and that there was a core group of regular attendees. The court needed to determine if the evidence supported the existence of an unincorporated association prior to the transfer in 1968 or at the latest by the date of registration in September 1968.

The court concluded that the defendant had not provided sufficient evidence to establish that an unincorporated association existed prior to the transfer of the Ferny Creek land. Therefore, the defendant's application to vest the land in it was unsuccessful. The court held that the defendant had not demonstrated any right, title, or interest in the land, rendering it an inappropriate defendant for the plaintiff's claims. The court issued a declaration that the defendant was not entitled to be recorded as the proprietor of the land and ordered the defendant to pay the plaintiff's costs and the first defendant's costs if any.