Mahony v Hosken

This case concerned an appeal to the High Court of Australia from a decision of the Supreme Court of Victoria. The appellants, John Joseph and Maria Cecilia Mahony, sought to register an instrument of charge over their land in favour of the Carlton Brewery Co. Ltd. The Registrar of Titles refused to register the instrument, leading to the legal dispute.

The central legal issues before the High Court were whether the instrument constituted a valid charge on land within the meaning of the *Transfer of Land Act 1890* (Vic.), and specifically, whether the purported "annuity" payable under the instrument qualified as an annuity for the purposes of the Act, and whether the Registrar was justified in refusing registration on the grounds that the instrument was not in the prescribed form, contained substantive variations, was in substance a tied house agreement rather than an annuity charge, or that the annuity was merely a penalty for non-performance of covenants.

The High Court, by majority, held that the instrument was a valid charge and that the Registrar was not justified in refusing registration. The Court reasoned that the sum payable, despite containing a defeasance clause contingent on the performance of covenants, fell within the definition of an "annuity" as a sum of money payable periodically and charged on land under section 4 of the Act. Furthermore, the Court found that the instrument was a charge within the meaning of section 113 and the Thirteenth Schedule of the Act, which expressly contemplated the inclusion of events on which an annuity might cease to be payable. The Court considered the case to be indistinguishable in principle from *Perpetual Executors and Trustees Association of Australia Ltd. v. Hosken*, and that the scheme of the Act was to facilitate, not hamper, dealings with land, allowing for lawful bargains that create an interest in land to be registered.

Consequently, the High Court allowed the appeal, discharged the order of the Supreme Court, and ordered the Registrar to register the instrument. The Registrar was also ordered to pay the costs of the application to the Supreme Court, and the respondent was ordered to pay the costs of the appeal to the High Court.