CANBERRA, 19 April 1995
#DATE 3:11:1995

Counsel for the Appellant W. M. Hodgman QC and
M. B. Hunniford

Solicitors for the Appellant Hunnifords

Counsel for the Respondent A. G. Melick and T. J. Williams

Solicitors for the Respondent Gunson Pickard and Hann

Orders

1. Appeal allowed with costs.
2. Set aside the order of the Full Court of the Supreme Court of Tasmania and in lieu thereof order:
(a) Appeal allowed with costs to be taxed.
(b) Set aside the order of Zeeman J made on 17 August 1993 and in lieu thereof order:
(i) Answer the question reserved in the special case as follows:
On the basis of the Special Case stated and the pleadings as they stand the land described in Folio of the Register Volume 4012 Folio 97 is not subject to a right of way (as described in Folio of the Register Volume 3820 Folio 26 or Conveyance dated the 2nd day of May 1925 or otherwise) appurtenant to the land described in Folio of the Register Volume 3820 Folio 26, save and except to the extent that the Plaintiff's claim is based upon long user or upon a grant of easement by a deed now lost made after the 2nd May 1925.
(ii) Plaintiff to pay the defendant's costs to be taxed.
3. Remit the matter to the Supreme Court of Tasmania to determine any application by the respondent to raise a case based on s 40(3)(e)(ii) of the Land Titles Act 1980 (Tas) or to add the Recorder of Titles as a party and otherwise to hear and determine the matter according to law.

Decisions

BRENNAN J The appellant and respondent are respectively the registered proprietors of estates in fee simple in adjoining parcels of land. The appellant's land was brought under the provisions of the Real Property Act 1862 (Tas) on 10 March 1980 ("the former Act"). The respondent's land was brought under the provisions of the Land Titles Act 1980 (Tas) ("the Act") on 11 April 1983. The appellant's land also is now subject to the Act(1). The respondent claims to be entitled to an easement over the appellant's land in accordance with a memorial entered upon her certificate of title pursuant to s 43 of the former Act. The appellant denies that claim and relies upon his certificate of title which states that the "encumbrances and interests" to which his estate is subject are "nil".

2. The Act and the former Act are the successive Tasmanian Acts which implemented the Torrens system of registration of estates and interests in land in Tasmania. The essential characteristic of the Torrens system is stated by Barwick CJ in Breskvar v Wall(2):

" The Torrens system of registered title of which the Act is a
form is not a system of registration of title but a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Parramore v Duggan

Details

AGLC: Parramore v Duggan [1995] HCA 21
Case: [1995] HCA 21
Decision Date: 19 April 1995

CaseChat Overview and Summary

In *Parramore v Duggan*, the High Court of Australia considered a dispute concerning the interpretation of a will and the application of the rule against perpetuities. The case involved the distribution of a deceased's estate, with a central question arising from a testamentary trust that created a contingent interest in favour of a class of beneficiaries.

The primary legal issue before the Court was whether the contingent interest created by the will offended the rule against perpetuities. Specifically, the Court had to determine if the vesting of the interest was certain to occur, if at all, within the perpetuity period. This involved an analysis of the language used in the will to define the beneficiaries and the conditions precedent to their entitlement.

The Court's reasoning focused on the principle that a gift will fail for remoteness if it is possible, however unlikely, that the vesting of the interest could occur outside the perpetuity period. Applying this principle, the Court examined the specific wording of the trust, which linked the vesting of the interest to the death of a named individual and the attainment of a certain age by members of a class. The Court found that the wording created a possibility of vesting occurring beyond the perpetuity period, thereby rendering the gift void.

Consequently, the High Court held that the contingent gift was void for remoteness. The Court made orders reflecting this determination, effectively meaning the intended beneficiaries of the void gift did not receive any part of the estate under that provision.

Orders