Noyce v Jeromel - [2021] SASCA 87

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
NOYCE v JEROMEL
[2021] SASCA 87
Judgment of the Court of Appeal
(The Honourable President Kelly, the Honourable Justice Livesey and the Honourable Justice Blue)
2 September 2021
SUCCESSION - FAMILY PROVISION - PROCEDURE - TIME FOR MAKING APPLICATION - GENERALLY - SOUTH AUSTRALIA
SUCCESSION - FAMILY PROVISION - PROCEDURE - TIME FOR MAKING APPLICATION - EXTENSION OF TIME - APPLICATION TO BE BEFORE FINAL DISTRIBUTION
The applicant seeks further provision out of the estate of Irene Jeromel pursuant to section 7 of the Inheritance (Family Provision) Act 1972 (SA). These reasons address a separate issue arising in the action referred to the Court of Appeal, namely whether the executor of the estate, who is also the principal beneficiary, (Paul Jeromel) distributed, within the meaning of subsection 8(5) of the Act, a property at Royal Terrace Royal Park or a property at Arnold Street Royal Park.
The Arnold Street property was owned by Irene Jeromel. The Royal Terrace property had been owned jointly by Irene and her late husband Ferdinand Jeromel, who had died in 2000, but no steps had been taken to transfer the title out of his name.
On 19 May 2020 Paul Jeromel signed a client authorisation authorising Donlan Lawyers to execute and lodge for registration certain instruments. On the same date, a solicitor at Donlan Lawyers executed an Application to Register Death by Survivor in respect of the Royal Terrace property, a Transmission Application for transmitting both properties into the name of Paul Jeromel as executor and a transfer transferring both properties by Paul Jeromel as executor to Paul Jeromel as beneficiary. The instruments were lodged for registration on that date.
The Registrar-General issued a requisition requiring amendments to the Application to Register Death. As at 2 June 2020, when the application by the applicant for further provision was served on the executor, the amendments had been initialled by the solicitor but the amended Application to Register Death had not been relodged with the Registrar-General.
Held (by the Court):
1The word “distribution” in subsection 8(5) of the Inheritance (Family Provision) Act 1972 takes its meaning from the text, context and evident purpose of that provision and does not merely import equitable concepts applying to executors and trustees or as to when gifts become effectual (at [75]).
2The Registrar-General was entitled and obliged to reject the Application to Register Death (at [84]).
3As the amended Application to Register Death had not been lodged as at 2 June 2020, and the Transmission Application and Transfer were dependent on registration of the Application to Register Death, neither the Royal Terrace property nor the Arnold Street property had been distributed as at 2 June 2020 (at [100] and [103]).
4Even if equitable principles as to when gifts become effectual applied to determine when property is distributed within the meaning of subsection 8(5), the gifts of the Royal Terrace property and the Arnold Street property had not become effectual in equity as at 2 June 2020 (at [104]-[105]).
5Separate issue so determined (at [110]).

Inheritance (Family Provision) Act 1972 (SA) ss 7, 8, 14; Real Property Act 1886 (SA) ss 20A, 64, 67, 69, 70, 96, 103, 188, 240A-240C, 249; Real Property Act 1900 (NSW) s 94; Income Tax and Social Services Contribution Assessment Act 1936 (Cth) s 216; Testator's Family Maintenance and Guardianship of Infants Act 1916 (NSW) s 5; Administration and Probate Act 1958 (Vic) ss 99, 99A, referred to.

NOYCE v JEROMEL
[2021] SASCA 87

THE COURT: In this action, the applicant, Danuta Noyce, seeks further provision out of the estate of Irene Johanne Jeromel deceased (Irene) pursuant to section 7 of the Inheritance (Family Provision) Act 1972 (SA) (the Act). The first respondent, Paul Jeromel (as executor of the estate of Irene Johanne Jeromel) (the Executor), is the executor of Irene’s estate. The second respondent, Paul Jeromel (Mr Jeromel), is the residuary beneficiary of Irene’s estate.
A property at Arnold Street Royal Park was owned by Irene. A property at Royal Terrace Royal Park had been owned jointly by Irene and her late husband Ferdinand Jeromel (Ferdinand), who had died in 2000, but no steps had been taken to transfer the title out of the name of Ferdinand.
On 19 May 2020 Paul Jeromel signed a client authorisation authorising Donlan Lawyers to execute and lodge for registration certain instruments. On the same date, a solicitor at Donlan Lawyers executed an Application to Register Death by Survivor in respect of the Royal Terrace property, a Transmission Application for transmitting both properties into the name of Paul Jeromel as executor and a transfer transferring both properties by Paul Jeromel as executor to Paul Jeromel as beneficiary. The instruments were lodged for registration on that date.
The Registrar-General issued a requisition requiring amendments to the Application to Register Death. As at 2 June 2020, when the application by the applicant for further provision was served on the Executor, the amendments had been initialled by the solicitor but the amended Application to Register Death had not been relodged with the Registrar-General.
A Judge ordered by consent that there be a separate trial of a preliminary issue and that the trial of the separate issue be heard and determined by the Court of Appeal. The separate issue is whether the Executor, by reason of the lodgement at the Lands Titles Office of specified dealings on 19 May 2020, distributed the Royal Terrace property or the Arnold Street property (as defined) within the meaning of subsection 8(5) of the Act.
The separate trial proceeded on the basis of uncontested documentary evidence, there being no dispute about the facts, and it essentially involves questions of law.
Background
Irene and Ferdinand had three children: Fred Jeromel (Fred), Danuta Noyce (Danuta) and Paul Jeromel (Paul).[1]
[1] We refer to Paul Jeromel regardless of whether he is the executor of Irene’s estate, residuary beneficiary of Irene’s estate or otherwise as Paul or Paul Jeromel. We refer to Paul Jeromel in his capacity as the executor of Irene’s estate as the Executor. We refer to Paul Jeromel in his capacity as the residuary beneficiary of Irene’s estate as Mr Jeromel.
In or before 1992 Irene became the owner of a property at 4 Arnold Street Royal Park (the Arnold Street property).
In 1993 Ferdinand and Irene became the owners as joint tenants of a property at 24 Royal Terrace Royal Park (the Royal Terrace property).
In February 2000 Ferdinand died. No grant of probate or letters of administration in respect of his estate was sought or made. His name remained on the certificate of title for the Royal Terrace property.
In November 2017 Fred died.
In March 2018 Irene made her last will (the Will). She appointed Paul as her executor and trustee. She left $2,000 to each of Irene and her two children. She left the residue to Paul.
In September 2019 Irene died. On 17 November 2019 probate of the Will was granted to the Executor. In addition to her interest in the Arnold Street and Royal Terrace properties, Irene owned furniture, household and personal effects and held money in two bank accounts valued in total at about $35,000.
On 17 May 2020 the prima facie time limit for an application for further provision out of Irene’s estate (the Estate) to be made under section 8 of the Act expired.[2]
[2] Inheritance (Family Provision) Act 1972 (SA) subsection 8(1). Subsection 8(2) confers on a court a power to extend the time for making an application provided that the application for the extension is made before the final distribution of the estate.
On 19 May 2020 Paul signed a Client Authorisation authorising Donlan Lawyers to do certain things (the Client Authorisation). The Client Authorisation was signed by a solicitor, Joel Siepmann, on behalf of Donlan Lawyers.
On 19 May 2020 Mr Siepmann signed three documents:
1an Application to Register Death by Survivor (the Register Death Application) in respect of the Royal Terrace property describing the applicant as:
Paul Jeromel of [address] as executor of the estate of the deceased proprietor vide Probate dated the 17 November 2019
2a Transmission Application by Personal Representatives (the Transmission Application) in respect of the Royal Terrace and Arnold Street properties describing the applicant as:
Paul Jeromel of [address] as executor of the estate of the deceased proprietor vide Probate dated the 17 November 2019
3a Transfer (the Transfer) of the fee simple in the Royal Terrace and Arnold Street properties describing the consideration as pursuant to the terms of a Will, the transferor as Paul Jeromel as executor of the estate of the deceased proprietor vide Probate dated the 17 November 2019 and the transferee as Paul Jeromel.
On 19 May 2020 Mr Siepmann lodged for registration the Register Death Application, Transmission Application and Transfer at Land Services SA. The documents were assigned Dealing Numbers 13303591, 13303592 and 13303593 respectively.
On 29 May 2020 Danuta instituted the action by filing an Originating Application supported by an affidavit sworn by her on 27 May 2020. The Originating Application sought an order for further provision out of Irene’s estate pursuant to section 7 of the Act and an extension of time in which to make the application pursuant to subsection 8(2) of the Act.
The Originating Application was accompanied by an interlocutory application seeking an injunction restraining the Executor from distributing any assets not already distributed from the Estate and that the application be made specially returnable and heard as a matter of urgency. The interlocutory application also sought an extension of time pursuant to subsection 8(2) of the Act in which to make the application for further provision out of the Estate.
On 1 June 2020 Mr Siepmann received from Ms Hadley on behalf of the Registrar-General a Requisition Notice dated 28 May 2020 (the Requisition). The Requisition required amendments to the description of the applicant in the Application to Register Death as shown below (the additional words have been underlined for identification):
Paul Jeromel of [address] as executor of the estate of the deceased proprietor Irene Johanne Jeromel vide Probate dated the 17 November 2019 who at the time of their decease was jointly with Ferdinand Jeromel, deceased.
On 1 June 2020 Mr Siepmann initialled the handwritten alterations made by Ms Hadley to the description of the applicant in the Application to Register Death.
On 2 June 2020 the Originating Application, interlocutory application and supporting affidavit were served on the Executor. The interlocutory application was listed for hearing at 10.00 am on 3 June 2020.
On the morning of 3 June 2020, a Master granted an interim injunction restraining the Executor from doing any further act to disburse, distribute or otherwise deal with any monies or any other assets of the Estate. In addition, the Registrar-General was restrained from doing any act to register any memoranda of transfer lodged by the Executor in respect of the Arnold Street or Royal Terrace properties. The injunction later became an interlocutory injunction having effect until further order.[3]
[3] By order made on 10 September 2021.
On the afternoon of 3 June 2020, a staff member at Donlan Lawyers lodged the amended Register Death Application with Land Services SA. Mr Seipmann was not aware that this occurred. Paul does not rely on this step having been taken, given the injunction that had already been granted at that time and given that the application by Danuta for further provision out of the Estate had already by then been made, within the meaning of subsection 8(6) of the Act, upon service of the originating application on 2 June 2020.
On 4 June 2020 Mr Seipmann sent an email to Ms Hadley informing her of the injunction.
On 10 September 2020 a Master heard argument on Danuta’s application for an extension of time under subsection 8(2) of the Act in which to make the application for further provision out of the Estate. Mr Jeromel opposed the application primarily on the ground that there was no utility in granting it because the Arnold Street and Royal Terrace properties had already been distributed within the meaning of subsection 8(5) of the Act and the remaining assets of the Estate were insufficient to justify the grant of an extension of time.
On 15 January 2021 the Master delivered reasons for judgment granting an extension of time within which to commence the action. The Master held that neither the Arnold Street property nor the Royal Terrace property had been distributed within the meaning of subsection 8(5) of the Act and the discretion should be exercised in favour of granting an extension of time.
On 5 February 2021 Mr Jeromel in both capacities filed a notice of appeal to a single Judge against the Master’s order on the ground that the Master erred in holding that the Arnold Street property and the Royal Terrace property had not been distributed within the meaning of subsection 8(5) of the Act.
On the hearing of the appeal, the question arose whether the appeal should be referred to the Court of Appeal. The parties agreed that it was desirable that the issue whether the properties had been distributed within the meaning of subsection 8(5) of the Act be decided directly by the Court of Appeal. However, the parties expressed concern that a decision on appeal would not give rise to issue estoppel because the order made by the Master was interlocutory in nature, being an extension of time, and the question whether the properties had been distributed was merely a factor in the exercise of the discretion. It was agreed that the preferable course was to identify that question as a preliminary issue to be determined at a separate trial and, on the basis that there were no disputed issues of primary fact, that the trial of the separate issue be heard and determined by the Court of Appeal. On 26 May 2021 an order was made to that effect.
The hearing
At the hearing, Paul tendered by consent an affidavit affirmed by Paul Jeromel on 24 July 2020; two affidavits sworn by Mr Seipmann on 7 August and 2 October 2020; three affidavits affirmed by Danuta on 27 May and 7 September 2020; and two affidavits sworn by Danuta’s solicitor on 3 June and 7 August 2020. The affidavits exhibited the relevant documents.
Paul contends that the Royal Terrace and Arnold Street properties had been distributed (within the meaning of subsection 8(5) of the Act) before 2 June 2020. Paul contends that Torrens System land is distributed within the meaning of subsection 8(5) at the point at which equity regards a gift as irrevocable, which in turn occurs when the legal personal representative has done everything necessary to enable the beneficiary to be registered as proprietor and the legal personal representative could not prevent or obstruct registration. Paul contends that this had occurred by 19 May 2020 (when the three documents were lodged for registration with Land Services SA) or in the alternative by 1 June 2020 when Mr Seipmann initialled the alterations to the Register Death Application.
Danuta contends that Torrens System land is only distributed within the meaning of subsection 8(5) of the Act when a transfer of the land is registered by the Registrar-General. Alternatively, if the test is as contended by Paul, the Executor had not by 1 June 2020 done everything necessary to enable Mr Jeromel to be registered as proprietor because the Executor had not lodged with the Registrar-General the altered Register Death Application in compliance with the Requisition and the Executor could prevent registration by not lodging it.
Paul contends, in turn, that the Register Death Application was registrable without complying with the Requisition; alternatively Mr Jeromel in his capacity as residual beneficiary and intended transferee could himself have lodged the altered Register Death Application in compliance with the Requisition; alternatively Mr Jeromel could have compelled the Registrar-General to register the documents in an action brought under section 64 of the Real Property Act 1886 (SA) (the Real Property Act); and alternatively the Arnold Street property was distributed within the meaning of subsection 8(5) even if the Royal Terrace property was not. Danuta takes issue with these contentions.
The statutory regimes
Inheritance (Family Provision) Act
Subsection 7(1) of the Act confers power on the Court to order that provision (or further provision) be made out of an estate in favour of a person entitled under section 6 to claim the benefit of the Act. It provides:
7—Spouse and persons entitled may obtain order for maintenance etc out of estate of deceased person
(1) Where—
(a)a person has died domiciled in the State or owning real or personal property in the State; and
(b)by reason of his testamentary dispositions or the operation of the laws of intestacy or both, a person entitled to claim the benefit of this Act is left without adequate provision for his proper maintenance, education or advancement in life,
the Court may in its discretion, upon application by or on behalf of a person so entitled, order that such provision as the Court thinks fit be made out of the estate of the deceased person for the maintenance, education or advancement of the person so entitled.
Section 8 imposes time limits on applications. It relevantly provides:
8—Time within which application to be made
(1)Subject to this section, an application shall not be heard by the Court at the instance of a person claiming the benefit of this Act unless the application is made within six months from the date of the grant in this State of probate of the will, or letters of administration of the estate, of the deceased person.
(2)The Court may, after hearing such of the persons affected as the Court thinks necessary, extend the time for making an application for the benefit of this Act.
…
(4)An application for extension of time pursuant to this section shall be made before the final distribution of the estate.
(5)Any distribution of any part of the estate made before the application for extension of time shall not be disturbed by reason of that application or any order made thereon.
(6)An application for the benefit of this Act shall be deemed to be made on the day when the summons by which it is instituted is served on the administrator of the estate.
…
Section 14 addresses the liability of the administrator (who is effectively defined by section 4 to mean the legal personal representative) who has distributed part or all of the estate. It provides:
14—Liability of administrators after distribution of estate
(1)An administrator of the estate of a deceased person who has lawfully distributed the estate or any part thereof shall not be liable to account for that estate or that part thereof, as the case may be, to any person claiming the benefit of this Act, unless the administrator had notice of the claim at the time of the distribution.
(2)For the purposes of this section, notice of the claim—
(a)shall be in writing signed by the claimant or his solicitor; and
(b)shall lapse and be incapable of being renewed unless, before the expiration of three months after the administrator receives notice of the claim a copy of an application by the claimant for the benefit of this Act has been served on him.
(3)Subsection (1) of this section shall not prevent the Court from ordering that any provision under this Act be made out of the estate, or any part thereof, after it has been distributed.
Real Property Act

Section 67 of the Real Property Act provides that an estate or interest in land registered under the Act (Torrens System land) only passes under an instrument registrable under the Act upon registration of the instrument. It provides:
67—Instruments not effectual until registration
No instrument registrable under this Act shall be effectual to pass any land or to render any land liable as security for the payment of money, but upon the registration of any instrument in manner herein prescribed, the estate or interest specified in such instrument shall pass, or, as the case may be, the land shall become liable as security in manner and subject to the covenants, conditions, and contingencies set forth and specified in such instrument or by this Act declared to be implied in instruments of a like nature.
Sections 69 and 70 provide that, subject to the exceptions set out in section 69, the title of a registered proprietor of Torrens System land is absolute and indefeasible.
Section 249 addresses equities. It provides:
249—Equities not abolished
(1)Nothing contained in this Act shall affect the jurisdiction of the Courts of law and equity in cases of actual fraud or over contracts or agreements for the sale or other disposition of land or over equities generally.
(2)And the intention of this Act is that, notwithstanding the provisions herein contained for preventing the particulars of any trusts being entered in the Register Book, and without prejudice to the powers of disposition or other powers conferred by this Act on proprietors of land, all contracts and other rights arising from unregistered transactions may be enforced against such proprietors in respect of their estate and interest therein, in the same manner as such contracts or rights may be enforced against proprietors in respect of land not under the provisions of this Act: Provided that no unregistered estate, interest, contract, or agreement shall prevail against the title of any bona fide subsequent transferee, mortgagee, lessee, or encumbrancee, for valuable consideration, duly registered under this Act.
Section 188 empowers the Registrar-General, amongst other things, to make an entry recording that, when a registered joint proprietor dies, the surviving registered joint proprietor of Torrens System land succeeds to the interest of the deceased joint proprietor. It provides:
188—Registration of survivor of joint proprietors, and of remainder-man entitled to estate in possession
Upon the death of any person registered together with any other person as joint proprietor of any estate or interest in land, … the Registrar-General shall, upon the application of the person entitled, and upon proof to his satisfaction of any such occurrence as aforesaid, make an entry thereof in the Register Book, and thereupon such person shall be the registered proprietor of the estate or interest to which he is entitled, as if the same had been transferred to him.
An Application to Register Death by Survivor is the form prescribed by the Registrar-General for making an application under section 188 in this respect.
Sections 175 to 178 empower the Registrar-General to register a transmission of an estate or interest in Torrens System land from the registered proprietor to their legal personal representative. They provide:
175—Transmission of estate of deceased persons
On the death of the registered proprietor of any estate or interest in land, his estate or interest shall be transmitted to his executor or administrator, or to the Public Trustee in any case where the Court shall make an order authorising the Public Trustee to administer the estate of the deceased registered proprietor.
176—Application to be made in such case
The executor, administrator or Public Trustee shall, before dealing with such estate or interest, make application in writing to the Registrar-General to be registered as proprietor, and shall produce to the Registrar-General the probate or letters of administration, or the order of the Court authorising the Public Trustee to administer the estate of the deceased registered proprietor, or a copy of the probate, letters of administration, or order, as the case may be.
177—Particulars of application to be recorded
The Registrar-General must record details relating to the application in the Register Book.
178—Effect of such entry
Upon such entry being made in the Register Book, the executor, administrator, or Public Trustee, as the case may be, shall be the registered proprietor of such estate or interest, and his title shall relate back to and take effect from the date of the death of the deceased registered proprietor.
A Transmission Application by Personal Representatives is the form prescribed by the Registrar-General for making an application under section 176.
Sections 96 and 103 empower the Registrar-General to register a transfer of an estate or interest in Torrens System land. They relevantly provide:
96—Transfers
(1)     If—
(a)     land is intended to be transferred; or
(b)     a right‑of‑way or other easement is intended to be created or transferred,
the transferor and the transferee must execute a transfer in the appropriate form to be lodged for registration in the Lands Titles Registration Office.
(2)     A transfer must include—
(a)     a description of the land intended to be dealt with (either by reference to the certificate of title for the land or by the inclusion of a description that clearly identifies the land); and
(b)     an accurate statement of the estate or interest intended to be transferred or created; and
(c)a statement indicating that—
(i)    the transferee; or
(ii)if the transferee is a child or a mentally incapacitated person (within the meaning of the Guardianship and Administration Act 1993)—the transferee's guardian or the administrator of his or her estate,
accepts the transfer or grant of the land, right‑of‑way or easement.
103—Registration of transfer hereunder
Upon the production of a transfer of the land duly executed in pursuance of any such order, the Registrar-General must register such transfer, and enter on the certificate a memorandum cancelling the same either wholly or partially, as the case may require, and shall issue to the transferee a certificate of the land comprised in such transfer, free from all encumbrances, charges, exceptions, qualifications, and conditions whatsoever other than those mentioned in the transfer.
Part 20A provides for client authorisations to a law practice or registered conveyancer to authorise the execution of instruments or doing of things. Sections 240A to 240C relevantly provide:
240A—Client authorisation
For the purposes of this Act, a client authorisation is a document—
(a) that is a client authorisation for the purposes of the Electronic Conveyancing National Law (South Australia); or
(b) —
(i)that is in the appropriate form; and
(ii)by which the client of a law practice, legal practitioner or registered conveyancer authorises the practice, practitioner or conveyancer to execute 1 or more instruments, or do 1 or more other things, on behalf of the client in connection with a specified transaction or for a specified period of time.
240B—Effect of client authorisation
(1)A properly completed client authorisation has effect according to its terms.
(2)If a client authorisation is properly completed, the requirements of any other law of this State relating to the execution, signing, witnessing, attestation or sealing of documents must be regarded as having been fully satisfied.
(3)This section does not apply in relation to a client authorisation under the Electronic Conveyancing National Law (South Australia).
Note—
Section 11 of the Electronic Conveyancing National Law (South Australia) deals with the effect of client authorisations under the Law.
240C—Termination of client authorisation
(1)A client authorisation terminates if a party to the authorisation advises the other party by notice in writing that the authorisation is terminated.
(2)Termination of a client authorisation has effect on receipt of the termination notice, or on the date and time or happening of an event specified in the termination notice, whichever occurs first.
Section 64 empowers a Court in a proceeding in respect of land, a transaction, contract, application or instrument to direct the Registrar-General to do such acts and make such entries as may be necessary to give effect to a judgment or order of the Court in the proceeding. It provides:
64—Power of court to direct cancellation of certificate or entry
In any proceeding in the Court respecting any land, or any transaction, contract, or application relating thereto, or any instrument or record affecting any such land, it shall be lawful for the Court to direct the Registrar-General to cancel, correct, record, substitute, issue, or make any certificate of title, or any memorial or entry in the Register Book, or otherwise to do such acts and make such entries as may be necessary to give effect to any judgment, decree, or order of such Court given or made in such proceeding, and the Registrar-General shall obey every such direction.
Gifts in equity
At common law, a gift of tangible goods is only effectual to pass title on delivery and a gift of an interest in land is only effectual on conveyance of title to the land, which in the case of Torrens System land, occurs on registration of a transfer of title to the land.
Equity may recognise that a gift is effectual if the donor has done everything necessary to be done by the donor to effect a legal transfer of the property and render the gift binding on themself.
In Milroy v Lord[4] Turner LJ said:
I take the law of this Court to be well settled, that, in order to render a voluntary settlement valid and effectual, the settlor must have done everything which, according to the nature of the property comprised in the settlement, was necessary to be done in order to transfer the property and render the settlement binding upon him.[5]
[4] [1861-1873] All ER 783.
[5] At 789.
In Anning v Anning[6] Griffith CJ said:
I think that the words "necessary to be done," as used by Turner L.J. in Milroy v. Lord, mean necessary to be done by the donor. Thus, in the case of shares in a company which are only transferable by an instrument of transfer lodged with the company, I think that the donor has done all that is necessary on his part as soon as he has executed the transfer. So, in the case of a gift of land held under the Acts regulating the transfer of land by registration, I think that a gift would be complete on execution of the instrument of transfer and delivery of it to the donee. If, however, anything remains to be done by the donor, in the absence of which the donee cannot establish his title to the property as against a third person, the gift is imperfect, and in the absence of consideration the Court will not aid the donee as against the donor. But, if all that remains to be done can be done by the donee himself, so that he does not need the assistance of the Court, the gift is, I think, complete.[7]
Isaacs J expressed the test in more demanding terms and Higgins J adopted an intermediate position.
[6] (1907) 4 CLR 1049.
[7] At 1057. (Footnotes omitted)
In Taylor v The Deputy Commissioner of Taxation of the Commonwealth of Australia[8] Harry Taylor and Marie Hawke were the executors of the will of Ernest Taylor. Ernest left a grazing property known as “Kellys” to Marie. Under section 94 of the Real Property Act 1900 (NSW), unlike the South Australian Real Property Act, a single instrument could be lodged for registration by a beneficiary under a will, with the consent of the executor, transferring the interest of the testator directly to the beneficiary. Such an instrument was executed on 24 January 1958 by Marie in her capacity as beneficiary/transferee and by Harry and Marie in their capacity as executors consenting to the transfer. Marie’s name was shown in the instrument as “Marie Hawke” but she signed it “M.T. Hawke”. Marie lodged the instrument for registration but a requisition was issued requiring her to disclose her second Christian name. She crossed out the “T” in her signature but this was not accepted by the Registrar-General, who required her to re-sign the instrument. The executors produced the probate to the Registrar-General and delivered to Marie the certificate of title to produce to the Registrar-General for registration of the instrument. On 16 July 1959 Marie re-signed the instrument but inadvertently showed the date as 16 July 1958. A further requisition was issued but Marie did not answer it until after the Deputy Commissioner issued an assessment of income tax against the estate. The High Court held that, on the proper construction of section 216 of the Income Tax and Social Services Contribution Assessment Act 1936 (Cth), executors of an estate are not liable beyond the assets in their hands at the time of the assessment.
[8] (1969) 123 CLR 206.
Barwick CJ, Taylor and Menzies JJ said:
On this aspect of the case it is unnecessary to go beyond the observations of Griffith C.J. in Anning v. Anning, and Dixon J., as he then was, in Brunker v. Perpetual Trustee Co Ltd. In the latter case Dixon J. referred to the statement in Milroy v. Lord to the effect that "The settler must have done everything which, according to the nature of the property comprised in the settlement, was necessary to be done in order to transfer the property and render the settlement binding upon him". Then he added:
"But, in applying that test to the present question, care must be taken to keep in mind what that question exactly is. It is not whether the intending donor has divested himself of his estate or interest in the land, or has done all that lies in his legal power to do so. For obviously it was within his legal power himself to cause the immediate registration of the transfer. The question is whether by his acts he has placed the intended donee in such a position that under the statute the latter has a right to have the transfer registered, a right which the donor, or his executors, cannot defeat or impair. That delivery of the transfer to the donee or the donee's agents is a condition which must be fulfilled before such a right will arise appears to me to be clear. It is only by the control or possession of the instrument that the transferee could effect registration without any liability to interference or restraint on the part of the transferor…”[9]
[9] At 213. (Footnotes omitted)
The Court concluded on the facts:
It seems to us clear enough that these facts bring the executors dealing with the property well within the principles as they are stated by Dixon J. The executors had given their consent in writing to the application as is required by s. 94 (1A) of the Real Property Act and they had delivered to the applicant for transmission the relevant certificate of title. Further they had caused the probate to be produced at the Registrar-General's office. Nothing, therefore, remained for them to do in order to enable the second appellant to become registered as proprietor. Equally, there was nothing the executors could do which would effectively revoke the consent which they had given, nor could they recall the document or in any other way prevent or obstruct registration.[10]
[10] At 214-215. (Citations omitted)
In Corin v Patton[11] the High Court considered what was the appropriate approach to determining when a gift was effectual in equity and whether the test expressed by Griffith CJ, Higgins J or Isaacs J was the appropriate test. A majority adopted the test articulated by Griffith CJ.
[11] (1990) 169 CLR 540.
Mrs Patton held a joint interest with Mr Patton in land. She and her brother Mr Corin executed a registrable transfer of her interest to her brother and he executed a deed of trust declaring that he held an interest in the land as trustee for her. This was done to sever the joint tenancy. The solicitor who prepared the documents on Mrs Patton’s instructions, Mr Smallwood, retained possession of the executed transfer. The State Bank of New South Wales held an unregistered mortgage over the land and held the duplicate certificate of title as security. Mrs Patton did not authorise the Bank to produce the duplicate certificate to enable registration of the transfer. Mrs Patton died a few days later.
Mason CJ and McHugh J held that the test expressed by Griffith CJ was the appropriate test:
But there is a distinction between the enforcement of a voluntary covenant to create a trust and the enforcement of a transfer by way of intended gift when the donor has done all that was within his power to vest title to the property in trustees for the donee or in the donee. In the first case, equity will not compel specific performance of the voluntary covenants, there being no completely constituted trust; in the second case, as the transaction is complete as far as the donor is concerned, no question of withholding specific performance can arise and equity will hold the donor to the completed transaction on the footing that title has been divested.
…
The rationale for refusing to complete an incomplete gift is that a donor should not be compelled to make a gift, the decision to give being a personal one for the donor to make. However, that rationale cannot justify continued refusal to recognize any interest in the donee after the point when the donor has done all that is necessary to be done on his part to complete the gift, especially when the instrument of transfer has been delivered to the donee. Just as a manifestation of intention plus sufficient acts of delivery are enough to complete a gift of chattels at common law, so should the doing of all necessary acts by the donor be sufficient to complete a gift in equity. The need for compliance with subsequent procedures such as registration, procedures which the donee is able to satisfy, should not permit the donor to resile from the gift. Once the transaction is complete so far as the donor is concerned, he has no locus poenitentiae. Viewed in this light, Griffith C.J.'s approach has the advantage that it gives effect to the clear intention and actions of the donor rather than insisting upon strict compliance with legal forms…
Accordingly, we conclude it is desirable to state that the principle is that, if an intending donor of property has done everything which it is necessary for him to have done to effect a transfer of legal title, then equity will recognize the gift. So long as the donee has been equipped to achieve the transfer of legal ownership, the gift is complete in equity. "Necessary" used in this sense means necessary to effect a transfer. From the viewpoint of the intending donor, the question is whether what he has done is sufficient to enable the legal transfer to be effected without further action on his part.
Although Griffith C.J. did not explicitly say so, his proposition implicitly recognizes that the donee acquires an equitable estate or interest in the subject matter of the gift once the transaction is complete so far as the donor is concerned.[12]
[12] At 557-558, 558, 559. (Citations omitted)
Mason CJ and McHugh J held that Mrs Patton had not taken all steps necessary to be taken on her part to transfer her interest in the land because she had not authorised the bank to produce the duplicate certificate to enable registration of the transfer.
Deane J also identified the question as being whether Mrs Patton had done all that was necessary by her to place the vesting of the legal title within the control of the donee. Deane J said:
In my view, Dixon J.'s judgment in Brunker should be accepted … as identifying the test for determining whether the stage has been reached when a gift of Real Property Act land under an unregistered memorandum of transfer is complete and effective in equity. That test is a twofold one. It is whether the donor has done all that is necessary to place the vesting of the legal title within the control of the donee and beyond the recall or intervention of the donor. Once that stage is reached and the gift is complete and effective in equity, the equitable interest in the land vests in the donee and, that being so, the donor is bound in conscience to hold the property as trustee for the donee pending the vesting of the legal title. In that regard, it is not a matter of equity ignoring the provisions of s 41 of the Act and treating the unregistered transfer as effective of itself to assign the beneficial interest in the land. It is simply that equity, acting upon the "fact or circumstance" that the donor has placed the vesting of the legal title within the control of the donee and beyond the donor's recall or intervention, looks at the substantial effect of what has been done and regards the gift as complete.
In the present case, the fact that Mrs Patton had taken no step to enable Mr Corin to procure the production of the duplicate certificate of title which was held by the bank meant that she had not done all that was necessary to place the vesting of the common law title within Mr Corin's control ... The plain fact remains, however, that registration of the transfer and vesting of the legal title could not be said to be within Mr Corin's control for so long as he was not entitled to procure production of the document of title.[13]
[13] At 582-583. (Citations omitted)

Brennan J and Toohey J each took a different, and stricter, approach than that taken by Mason CJ and McHugh J or by Deane J.
Distribution within the meaning of subsection 8(5)
Subsection 8(5) of the Act refers to “a distribution of any part of the estate”. It is evident that the noun “distribution” in that subsection has the same meaning as in subsection 8(4), which refers to “the final distribution of the estate”, and in section 14, which refers to “[a]n administrator … who has lawfully distributed the estate or any part thereof” and to “the time of the distribution”.
Paul contends that the concept of “distribution” in the Act is synonymous with the concept of a gift being effectual at common law or in equity. Danuta contends that the concept of “distribution” in the Act takes its meaning from the text, context and evident purpose of the Act and is a different and narrower concept than a gift being effectual in equity.
In In Re Anderson (deceased), Anderson v Williams[14] Mrs Anderson by her will appointed her daughter as executor and left her freehold property to that daughter. The daughter died and probate was granted to Williams (her executor and sole beneficiary). On 20 December 1955 Williams signed an application for transmission to him of the freehold property and a transfer from himself as executor to himself as beneficiary. These instruments, together with the certificate of title, were forwarded to solicitors in Wellington acting for Williams in his capacity as transferee. Mr Anderson (the testator’s second husband) made an out of time application for provision out of the estate under the Family Protection Act 1955 (NZ) before registration of the instruments. The New Zealand Court of Appeal held that the freehold property had already been distributed before Mr Anderson brought the application. Finlay, Hutchison, North, Henry and McCarthy JJ said:
We hold the view that the reference to “distribution” in the Statute raises an issue which is essentially one of fact. We think, for the purposes of this case, it is enough to say that once the transfer had been executed and sent with the relative certificate of title and the transmission to the Wellington solicitors for registration, then, in fact, the final distribution of this estate had been effected. To that extent we are in agreement with the judgment appealed from, but we leave open the question whether the test adopted by McGregor J in which he drew an analogy to gifts is not too stringent a test.[15]
[14] [1957] NZLR 401.
[15] At 402.
In Easterbrook v Young[16] John Easterbrook died intestate, survived by Mrs Easterbrook and two sons. One son applied for and was granted letters of administration and published notice of intention to distribute the estate in three equal parts to Mrs Easterbrook and the two sons (in accordance with their entitlements on an intestacy). He caused the title to a cottage owned by John Easterbrook to be transferred into his own name as administrator of the estate. Mrs Easterbrook subsequently made an application out of time for further provision out of the estate under the Testator’s Family Maintenance and Guardianship of Infants Act 1916 (NSW). The High Court held that there had been no “distribution” of the cottage within the meaning of subsection 5(2A)(a) of the New South Wales Act (which contained provisions in substantially the same terms as section 8 of the Act).
[16] (1977) 136 CLR 308.
Barwick CJ, Mason and Murphy JJ said:
It may be conceded at the outset that the reference to "the estate of" the deceased in s. 3 constitutes a limitation on the power of the court to make an order. At the same time, that estate is nominated as the source of any provision which may be made. It may also be conceded that the reference in s 5(2A) to a "final distribution of the estate" limits the court's jurisdiction to extend the time for making an application for an order for maintenance. But the question in the case is the meaning to be attributed to these expressions in the context in which they are found. The interpretation which they are to be given depends on the terms of the Act read in accordance with the purpose and policy of the Act as evidenced by its provisions. Testator's family maintenance legislation throughout Australia is in relevant respects in common form, the New South Wales Act being a typical example, with the consequence that the decision in this case will determine the meaning and effect of comparable provisions elsewhere in Australia.
…
The court, by the effect of its order, can alter the operation of the very dispositions of the will which might otherwise determine the capacity or power of the personal representative as well as the beneficial interests which would otherwise arise. ... The evident purpose of the Act is to place the assets of the deceased passing to the personal representative at the disposal of the court in the provision of maintenance for the nominated dependants of the deceased. Because the court's order has effect as a codicil, the property out of which provision may be ordered includes property which, but for the order, would have been beneficially owned either wholly or partly by donees under the will or next of kin under an intestacy. It is plain that the burden of an order is to be thrown on property to which persons are beneficially entitled under the will or on intestacy. ... Again, an actual distribution of the deceased’s property to persons beneficially entitled thereto shall not preclude the making of an order, even out of the distributed assets. Section 11(3) is explicable only on that footing. The Act in so providing assumes that the sub-section at least covers the case where executorial or administrative duties have already been fully performed before such distribution has taken place.
…
Further, that policy is already shown in the terms of s 5(2A). Because the application is out of time a final distribution, which clearly means a complete distribution, will prevent the extension of time: and thus the power to make an order. But if the distribution has only been partial, time may be extended: however, in contrast to the situation of an application made within time, the partial distribution which has taken place will not be disturbed by an order for maintenance made on an application made in the extended time. The contrast of s. 11(3) read with s. 3 and s. 5(2A) is, to us, eloquent of the policy of placing within the power of the court under s. 3 all that passed to the personal representative on the grant of probate or letters of administration. Bearing in mind the nature and purposes of such legislation, it is our opinion that the disabling circumstance in s. 5(2A) is the actual distribution of the estate, its removal from the hands or name of the personal representative and its placement in the hands or name of the testamentary or statutory beneficiary. There is nothing in the language or policy of the Act to suggest that the change in the capacity in which the personal representative holds assets he has received on the grant of probate or letters of administration constitutes either a removal of those assets from the power of the court under s. 3 or a relevant distribution of the estate.
… Further, the words "distribute" and "distribution" are used in the Act itself, not in the sense of a change in the capacity in which the personal representative held the asset, but clearly in the sense of a physical parting with that asset and its placing in the hands or name of an intended beneficiary: see ss. 11 and 12 of the Act. It is, in our opinion, only when the personal representative has parted with all the assets which came to his hands by the grant of probate or letters of administration that there has been a final distribution of the estate of the testator or intestate.
…
…when an extension of time is sought under that section..., only a complete removal of the whole of the assets of the deceased from the hands or name of the personal representative will prevent the court extending the time for making an application for an order of maintenance. An order made in consequence of an extension of time shall not disturb an actual distribution made before the extension of time was applied for.[17]
[17] At 314-315, 315-318. (Emphasis added)
The Court examined a line of New Zealand cases commencing with PublicTrustee v Kidd[18] and Australian cases that followed the same line. Those cases adopted as a criterion whether the executor had completed executorial duties and assented to the benefactions. That line of cases held that, if property was held on trust by a trustee (who was also the executor) for a beneficiary, there had been a distribution. The High Court disapproved that line of cases. The Court concluded:
It seems to us that in all the cases, except Keys' Case, insufficient attention has been given to the basic question of the construction of the words of the statute in the context in which they appear, including the evident purpose and policy of the statute. What is more, the cases do not contain any examination of the consequences which flow from an adoption of the views there expressed. We agree with the passage from Keys' Case to which we have referred. It is, in our opinion, incongruous to deny jurisdiction so soon as executorial duties are complete. To import into the construction of this legislation the technical considerations applicable to the determination of a personal representative's powers is, in our opinion, an unwarranted development because it involves a failure to give due weight to the purpose of the legislation and it results in a frustration, rather than a facilitation, of that purpose.[19]
[18] [1931] NZLR 1.
[19] At 324
In Re Largo, deceased[20] Mrs Largo by her will appointed two of her daughters as executors and left the residue of her estate (a farm property) in equal shares to those two daughters. She left a specific bequest of $10,000 to her third daughter, Mrs Bevilacqua. On 21 May 1984 the two sisters signed a transmission application and a transfer by themselves as executors to themselves as tenants in common in equal shares as beneficiaries in respect of the farm property. On 5 June 1984 solicitors acting on the instructions of the two sisters lodged those instruments, together with the duplicate certificate of title and a copy of the probate at the Titles Office for registration. On 22 June 1984 Mrs Bevilacqua brought an out of time application for provision out of the estate under section 99 of the Administration and Probate Act 1958 (Vic).
[20] [1984] VR 706.
Brooking J held that the farm property had been distributed within the meaning of sections 99 and 99A of the Administration and Probate Act 1958 (Vic). Brooking J referred to the decisions of the High Court in Easterbrook v Young and Taylor v The Deputy Commissioner of Taxation of the Commonwealth of Australia and then said:
In the present case the personal representatives had done all that it was necessary for them to do to enable themselves to become registered as proprietors as tenants in common, and as personal representatives they could not prevent or obstruct registration. If there had been a requisition requiring evidence that the gift of the whole estate to the husband of the testatrix had lapsed by reason of his predeceasing her, this evidence could have been furnished by the respondents without recourse to documents held by them in their representative capacity.[21]
[21] At 710.
Brooking J referred to the decision at first instance and the decision of the Court of Appeal in In Re Anderson (deceased), Anderson v Williams and followed that decision.
In Young v IOOF Australia Trustees Limited[22] Donald Young by his will appointed IOOF Trustees as his executor and left the whole of his estate equally to his daughters, Cherie and Wendy. Assets of the estate included a freehold property at Port Pirie and two registered mortgages over other properties securing in each case a principal of $250,000. On 7 January 1993 IOOF Trustees executed a transmission application in respect of the Port Pirie property and the two mortgages and a transfer to Cherie and Wendy of the Port Pirie property and the two mortgages, the transfer having been executed by Cherie and Wendy as transferees. IOOF Trustees instructed conveyancers to lodge the instruments for registration but, due to a mistake, they did not do so before 23 November 1993 when Donald’s adopted son brought an out of time application for provision out of the estate.
[22] (1995) 180 LSJS 302.
Lander J held that the Port Pirie property and the two mortgages had not been distributed to Cherie and Wendy. Lander J referred extensively to the decision of the High Court in Easterbrook v Young and observed that “[t]he facts and circumstances in Keys and Easterbrook v Young are not so much different from the facts in this case”. Lander J referred to a contention by Cherie and Wendy that the matter was not governed by Easterbrook v Young but by the earlier decision of the High Court in Taylor v The Deputy Commissioner of Taxation of the Commonwealth of Australia. Lander J observed that Taylor was not concerned with testator’s family maintenance provisions and had not been referred to in Easterbrook. Lander J distinguished Taylor in any event, saying;
The decision is not on all fours with the present case. In this case no application was made to register the transmission and transfer, nor had the documents been delivered to the beneficiaries. To that extent, the executor could have prevented registration.[23]
[23] At 319.
Lander J concluded:
Once it is accepted that an order for a provision operates as a codicil or a Will made immediately before death, and once it is accepted that the Act contemplate circumstances where an applicant can reverse a distribution already made, and these matters must, of course, be accepted, it cannot be said that there is any proposition or rule of law or legislative enactment that that leads to the conclusion that there has been distribution of the estate, where there has not been a registration of the transfer of an estate in freehold or an estate as mortgagee, or even delivery of that transfer to the beneficiary for the purpose of registration.[24]
[24] At 324-325.
In Dawson v Fitch[25] Frank Fitch by his will appointed his second wife, Coral, together with Mr Manuel and Mr McFarlane, as executors. By clause 4, Frank directed his executors to set aside $250,000, appointed them as trustees of the fund to be held on trust for his daughter by his first marriage, Mary, as to $100,000 subject to her attaining the age of 25 years and as to $150,000 subject to her attaining the age of 35 years. By clause 5, Frank made a mirror provision for his daughter by his second marriage, Leneve. When Frank died, Mary had already attained the age of 25 years and his executors paid $100,000 to her. They did not pay the balance to her because she did not attain the age of 35 years by the time of the proceeding. Nor did Leneve attain the age of 25 years by the time of the proceeding. By clause 6(ii), Frank created a testamentary trust in respect of half of the residue of his estate, appointed Coral and Public Trustee as trustees of that testamentary trust and directed them to stand possessed of it during Coral’s lifetime to pay the income to her and upon her death to stand possessed of it for Mary and Leneve. The executors transferred the company shares comprising the majority of the residue of the estate to Coral and Public Trustee as trustees of the testamentary trust. Frank’s three children from a de facto relationship between his two marriages then made an out of time application for provision out of the estate. The Full Court (Williams J dissenting as to the former) upheld a Master’s decision that there had been no distribution of the sum of $150,000 to Mary or of the sum of $250,000 to Leneve, but there had been a distribution of the company shares to Coral and Public Trustee as trustees of the testamentary trust.
[25] (2002) 84 SASR 20.
Lander J quoted extensively from the decision of the High Court in Easterbrook v Young and said:
There is no final distribution of the estate or any distribution of a particular asset of the estate unless there has been a complete delivery to the beneficiaries or beneficiary. In Young v IOOF Australia Trustees Ltd I said:
“It seems to me that whether distribution has or has not occurred is simply a matter of fact (Re Anderson) and the facts that have to be determined are whether there has been a removal from the hands of the personal representatives and a placement in the hands of the beneficiary.”
…
I also agree with the Master that there has not been a distribution of the $250,000 which has been deposited with the Adelaide Bank. The deposit is held in the name of the estate. While the account has been designated “A/C Leneve A. Fitch”, there has not been a removal from the hands of the personal representative and a placement of that asset in the name of the beneficiary. There has not been a complete delivery of that asset to the deceased’s daughter.
No documentation has been created to effect a transfer from the executors to the legatee’s trustees. This asset has not been dealt with in the same manner as the assets comprising the residue. There has been no physical transfer of the asset from executors to trustees.[26]
[26] At [62], [69]-[70]. (Citations omitted)
Wicks J also quoted from Easterbrook v Young and said:
It seems clear from Easterbrook v Young that so long as any asset remains in the hands of a personal representative, even though he may have become a trustee in respect of such asset, an application for an extension of time under the Act can be made.
…
In contrast is the situation where a will provides for one or more sets of trustees to administer the trusts of the will where the trustees are different persons from the executors. The creation of such a trust would require a physical parting with assets of the estate to constitute the trust fund by transfer of title. From the date of creation, a trust fund established pursuant to the will in this manner, would be entirely separate from the general estate of the deceased. The assets comprising the trust fund would have been “distributed” within the meaning ascribed to that expression by Easterbrook v Young.
…
In Young v IOOF Australia Trustees Ltd, Lander J had to consider whether property had been distributed within the meaning of s 8(5) of the Act. Having considered a number of cases His Honour said (at 323):
"It seems to me that whether distribution has or has not occurred is simply a matter of fact (Re Anderson) and the facts that have to be determined are whether there has been a removal from the hands of the personal representatives and a placement in the hands of the beneficiary."[27]
[27] At [163], [165], [167]. (Citations omitted)
The High Court made it clear in Easterbrook v Young[28] that the word “distribution” in the New South Wales equivalent of section 8 of the Act takes its meaning from the text, context and evident purpose of that provision and does not merely import equitable concepts applying to executors and trustees. We therefore reject Paul’s contention that there is necessarily a distribution within the meaning of section 8 of the Act merely because equity would regard a gift by the testator to the beneficiary as having become effectual.
[28] (1977) 136 CLR 308.
The High Court in Easterbrook v Young referred to:
·“an actual distribution of the deceased's property to persons beneficially entitled thereto”;
·“the actual distribution of the estate, its removal from the hands or name of the personal representative and its placement in the hands or name of the testamentary or statutory beneficiary”;
·“the words ‘distribute’ and ‘distribution’ [being] used in the Act … in the sense of a physical parting with that asset and its placing in the hands or name of an intended beneficiary”;
·“only a complete removal of the whole of the assets of the deceased from the hands or name of the personal representative will prevent the court extending the time for making an application for an order of maintenance”; and
·“[a]n order made in consequence of an extension of time shall not disturb an actual distribution made before the extension of time was applied for”.

The references made by the High Court to an “actual distribution” and to “removal from the hands or name of the personal representative and … placement in the hands or name of the … beneficiary” appear to entail that, in the case of a tangible asset, distribution requires physical delivery of the asset and, in the case of an intangible asset or land, distribution requires conveyance of the title to the asset to the beneficiary. However, as it is not necessary to decide that question in order to determine this case, it is preferable to leave that question to a case in which it necessarily arises.
In the present case, starting with the Royal Terrace property, there was no actual distribution of that asset to Mr Jeromel and there was no removal of the asset from the hands or name of the Executor to the hands or name of Mr Jeromel.
The registration of the Transfer of the Royal Terrace property lodged by Dolman Lawyers with the Registrar-General was contingent on registration of the Transmission Application in respect of that property, which in turn was contingent on registration of the Register Death Application in respect of that property.
The Register Death Application was lodged pursuant to section 188 of the Real Property Act. That section only applies if the registered proprietors hold their interest jointly. By contrast, the death of a co-registered proprietor who holds as a tenant in common has no effect on the interest of the surviving registered proprietor. A joint tenancy in existence when a property is acquired by co-registered proprietors can be severed by agreement between the parties, a unilateral act of one party or a course of dealing. On the death of Ferdinand in February 2000, Irene only became entitled to be registered as the sole proprietor of the property if the joint tenancy had not been severed. In addition, under section 188, an application to register death was required to be made by Irene (or her successors) and could not be made by Ferdinand (or his successors).
The Register Death Application as lodged on 19 May 2020 contained the following pro forma text and variable text (variable text italicised for identification):
APPLICATION TO REGISTER DEATH BY SURVIVOR
LAND DESCRIPTION
Whole of the land in CT Volume 6062 Folio 610
ESTATE & INTEREST
Fee Simple
DECEASED JOINT TENANT (Full name)
(a) Ferdinand Jeromel
who is one and the same person as the registered proprietor of the estate and interest and is named and described in the Register Book as:
(b) Ferdinand Jeromel
DATE OF DEATH
12/02/2000
APPLICANT – SURVIVING JOINT TENANT (Full name and address)
Paul Jeromel of [address] as the executor of the estate of the deceased proprietor vide Probate dated the 17 November 2019
THE APPLICANT APPLIES TO HAVE THE DEATH OF THE DECEASED REGISTERED ON THE LAND DESCRIBED
DATED 19/5/2020
CERTIFICATION * Delete the inapplicable
Applicant(s)
*The Certifier has taken reasonable steps to verify the identity of the applicant or his, her or its administrator or attorney.
*The Certifier holds a properly completed Client Authorisation for the Conveyancing Transaction including this Registry Instrument or Document.
*The Certifier has retained the evidence to support this Registry Instrument or Document.
*The Certifier has taken reasonable steps to ensure that the Registry Instrument or Document is correct and compliant with relevant legislation and any Prescribed Requirement.
Signed By:
[signature]
Joel Siepmann
Solicitor
for: Donlan Lawyers
on behalf of the Applicant
The Register Death Application identifies the applicant as Paul as the executor of the estate “of the deceased proprietor”. The document earlier referred to the deceased joint tenant, namely Ferdinand. The application therefore purported to have been made by Paul as executor of the estate of Ferdinand. The executor of the estate of Ferdinand would have had no standing to make the application. The Register Death Application was therefore fundamentally defective and not in registrable form.
In addition, the Register Death Application contained a certification that the certifier retained evidence to support the instrument and had taken reasonable steps to ensure that it was correct. The certification is required to encompass a certification that there had been no severance of the joint tenancy before Ferdinand’s death. However, this certification could not be relied upon by the Registrar-General given the ambiguity about the capacity in which Paul made the application.
Accordingly, the Registrar-General was not only entitled but obliged to reject the lodgement of the Register Death Application for registration and issue a requisition requiring identification of the capacity in which Paul was making the application (as executor of the estate of Irene).
In contrast to the Transfer, which was a bilateral document to which both the Executor and Mr Jeromel were parties, the Register Death Application was a unilateral document to which the Executor was the only party. Mr Jeromel was not a party to the instrument. In his capacity as beneficiary, Mr Jeromel had no entitlement to interfere in the wording or lodgement of the document and indeed no greater entitlement than the other beneficiaries (including Danuta) to do so.
The date at which it must be determined whether the Royal Terrace property had been distributed is 2 June 2020, when Danuta’s application for further provision out of the estate was served and taken under subsection 8(6) of the Act to have been made. As at 2 June 2020, there had been no distribution of the Royal Terrace property to Mr Jeromel within the meaning of the Act because an essential step, being a precondition to any distribution, remained to be taken, namely, the lodgement of the amended Register Death Application with the Registrar-General. The Executor could, and should, at that point have decided not to lodge the amended Register Death Application and this would necessarily have prevented registration of the succeeding documents, being the Transmission Application and Transfer.
Paul contends that the Register Death Application was registrable without complying with the Requisition. We reject that contention for the reasons given.
Paul contends, in the alternative, that Mr Seipmann on behalf of Mr Jeromel as the beneficiary, or Mr Jeromel himself as the beneficiary, could have answered the Requisition. We reject that contention.
We first address the ability of Mr Seipmann on behalf of Mr Jeromel as the beneficiary to answer the Requisition. Mr Seipmann and Donlan Lawyers were not authorised by the Client Authorisation to act on behalf of Mr Jeromel to submit the Register Death Application for lodgement with the Registrar-General or do anything else necessary for registration of the Register Death Application.
First, the Client Authorisation identifies the “Conveyancing Transactions” in respect of the Royal Terrace property (and indeed the Arnold Street property) as a “Transmission Application” and a “Transfer”. It makes no reference to an application to register death.
Secondly, assuming in favour of Paul that lodgement of an application to register death were authorised by the Client Authorisation as necessary for and incidental to completion of the Transmission Application, it is plain on the proper construction of the Client Authorisation that the authorisation to lodge the Transmission Application was only given to Donlan Lawyers by Paul in his capacity as the Executor: he had no ability in his capacity as a beneficiary to authorise lodgement of the Transmission Application or the Register Death Application: that lay within the exclusive province of the Executor.
Thirdly, even if Mr Jeromel in his capacity as beneficiary had purported to authorise Donlan Lawyers to submit the Register Death Application (or the Transmission Application), that would have been ineffective because in that capacity Mr Jeromel had no right to submit the document for lodgement.
Fourthly, Mr Seipmann did not in fact lodge the altered Register Death Application on behalf of Mr Jeromel as beneficiary before 2 June 2020, when Danuta’s application was treated as having been made and a distribution of the Royal Terrace property was required to have been completed, to put it beyond reach of her application.
Nor did Mr Jeromel himself in his capacity as beneficiary have an ability to answer the Requisition. First, the Register Death Application was lodged and certified by Mr Seipmann on behalf of the Executor. Mr Jeromel in his capacity as beneficiary had no right to obtain the document or lodge it with the Registrar-General.
Secondly, Mr Jeromel as beneficiary did not in fact lodge the altered Register Death Application before 2 June 2020, when Danuta’s application was treated as having been made and a distribution of the Royal Terrace property was required to have been completed, to put it beyond reach of her application.
Paul contends, in the further alternative, that Mr Jeromel as beneficiary could have compelled the Registrar-General to register the documents in an action brought under section 64 of the Real Property Act. We reject that contention.
Section 64 relevantly provides:
64—Power of court to direct cancellation of certificate or entry
In any proceeding in the Court respecting any land, or any transaction, contract, or application relating thereto, or any instrument or record affecting any such land, it shall be lawful for the Court to direct the Registrar-General to cancel, correct, record, substitute, issue, or make any certificate of title, or any memorial or entry in the Register Book, or otherwise to do such acts and make such entries as may be necessary to give effect to any judgment, decree, or order of such Court given or made in such proceeding, and the Registrar-General shall obey every such direction.
First, the section requires there to be a substantive proceeding between substantive parties respecting land etc and it requires that the Court give or make a substantive judgment or order in that proceeding. The section then confers an ancillary or incidental power on the Court to direct the Registrar-General to make, correct or cancel an entry in the Register Book etc. The section does not create a “standalone” cause of action against the Registrar-General.
Secondly, even if the Court had power under section 64 to make a standalone order against the Registrar-General, there is no basis on which such an order could be made on the merits. For the reasons given above, the Registrar-General was entitled, and indeed obliged, to reject lodgement of the Register Death Application for registration.
There had been no distribution of the Royal Terrace property as at 2 June 2020.
Turning to the Arnold Street property, Paul contends in the final alternative that it was distributed within the meaning of subsection 8(5) even if the Royal Terrace property was not. We reject that contention.
It is true that, if Mr Seipmann had lodged separate transmission applications and separate transfers in respect of the Royal Terrace and Arnold Street properties, the transmission application and transfer in respect of the Arnold Street property would not have been dependent on registration of the Register Death Application in respect of the Royal Terrace property. However, that is beside the point. The fact is that the one Transmission Application which was used was dependent on registration of the Register Death Application. As at 2 June 2020 no valid and effectual Register Death Application had been lodged with the Registrar-General. The Executor retained a choice about whether to proceed with the transactions and lodge the altered Register Death Application.
There had been no distribution of the Arnold Street property as at 2 June 2020.
Gift in equity
For the sake of completeness, we address the position on the assumption (contrary to our conclusion above) that Torrens System land is distributed within the meaning of subsection 8(5) when equity regards a gift as irrevocable, which in turn occurs when the legal personal representative has done everything necessary to enable the beneficiary to be registered as proprietor and the legal personal representative could not prevent or obstruct registration (as Paul contends).
As at 2 June 2020 the Executor had not done everything to enable Mr Jeromel to be registered as proprietor of the Royal Terrace or Arnold Street properties. The Executor remained in a position to prevent registration. Equity would not regard the gift as irrevocable.
Before Mr Jeromel could be registered as proprietor, it was necessary for the Executor to lodge the altered Register Death Application with the Registrar-General. The Executor had no obligation to do so and had the ability to prevent registration of Mr Jeromel as proprietor by not doing so.
The situation is distinguishable from that in Taylor v The Deputy Commissioner of Taxation of the Commonwealth of Australia,[29] where the executors had delivered to Marie in her capacity as beneficiary the executed transfer, duplicate certificate of title and probate. Marie needed nothing further to become registered as proprietor.
[29] (1969) 123 CLR 206.
The situation is distinguishable from that in In Re Anderson (deceased), Anderson v Williams,[30] where the executor had delivered an executed application for transmission and a transfer to Williams as beneficiary, together with the certificate of title, to solicitors acting for Williams in his capacity as transferee.
[30] [1957] NZLR 401.
The situation is distinguishable from that in Re Largo deceased,[31] where the executed transmission application, transfer to the beneficiaries, duplicate certificate of title and copy of the probate had all been lodged at the Titles Office for registration.
[31] [1984] VR 706.
Conclusion
As at 2 June 2020 the Royal Terrace and Arnold Street properties had not been distributed within the meaning of subsection 8(5) of the Act.
We determine the preliminary issue as follows:
1Paul Jeromel in his capacity as executor of the deceased estate of the late Irene Johanne Jeromel (“the Deceased”) did not, by reason of the lodgement at the Lands Titles Office on 19 May 2020 of Dealing 13303591, Dealing 13303592 and Dealing 13303593, distribute the land described and comprised in Certificate of Title Register Book Volume 6062 Folio 610 (“the Royal Terrace property”), being part of the estate of the Deceased, within the meaning of subsection 8(5) of the Inheritance (Family Provision) Act 1972 (the IFP Act).
2Paul Jeromel in his capacity as executor of the deceased estate of the Deceased did not, by reason of the lodgement at the Lands Titles Office on 19 May 2020 of Dealing 13303592 and Dealing 13303593, distribute the land described and comprised in Certificate of Title Register Book Volume 5686 Folio 188 (“the Arnold Street property”), being part of the estate of the Deceased, within the meaning of subsection 8(5) of the IFP Act.
We will hear the parties regarding the orders which it may be necessary to make, and as to costs.