Perpetual Executors & Trustees Association of Australia Ltd v Hosken (Registrar of Titles)

The case involved an appeal to the High Court of Australia concerning the registration of a mortgage under the Transfer of Land Act 1890 (Vic.). The appellant, Perpetual Executors and Trustees Association of Australia Ltd., sought to register a mortgage over land. The respondent was the Registrar of Titles, who had refused to register the mortgage. The dispute arose because the mortgage instrument, in addition to the standard covenants by the mortgagors (executors of a deceased estate), included a separate covenant by several beneficiaries of the estate, guaranteeing repayment of the mortgage money.

The central legal issue before the High Court was whether the Registrar was justified in refusing to register the mortgage solely on the grounds that it contained this additional guarantee clause by persons who were not the registered proprietors of the land. A secondary issue was whether a writ of mandamus was an appropriate remedy to compel the Registrar to register the instrument, notwithstanding a specific provision in the Act allowing the proprietor to summon the Registrar to justify his refusal.

The High Court, allowing the appeal, held that the Registrar was not justified in refusing registration. The Court reasoned that the Transfer of Land Act 1890, while providing forms for instruments, allowed for modifications under section 240, provided such alterations were not matters of substance. The addition of the guarantee clause was considered not to be a matter of substance that altered the fundamental character of the instrument as a mortgage. The Court applied the principle that the forms provided by the Act were intended to facilitate, not hinder, dealings with land, and that the addition of an irrelevant or collateral covenant did not invalidate the mortgage itself. Furthermore, the Court found that mandamus was an appropriate remedy, as the alternative remedy provided by section 209 of the Act was not as convenient, beneficial, or effectual as mandamus in this circumstance. The decision of the Supreme Court of Victoria was reversed, and the Registrar was ordered to register the mortgage.