Registrar-General (NSW) v Wood - [1926] HCA 43

THE REGISTRAR-GENERAL OF NEW

SOUTH WALES WOOD

RESPONDENT.

ON APPEAL FROM THE SUPREME COURT OF

NEW SOUTH WALES. Husband and Wife-Land held as tenants by entireties-Separate property of wife-

Transfer of wife's interest under writ of fieri facias-Registration of transfer- Married Women's Property Act 1901 (N.S.W.) (No. 45 of 1901), secs. 3, 5, 8, 26 -Conveyancing Act 1919 (N.S.W.) (No. 6 of 1919), sec. 26. Aug. 20, 23;

Held, by Isaacs, Rich and Starke JJ. (Knox C.J. and Higgins J. dissenting), that since the passing of the Married Women's Property Act 1893 (N.S.W.) a transfer of land in New South Wales to a husband and wife as tenants by entireties, of which land they become registered under the Real Property Act 1900 (N.S.W.) as tenants by entireties, confers upon the wife a separate estate and interest of which, under sec. 5 of the Married Women's Property Act 1901 (N.S.W.), she can dispose as if she were a feme sole; and therefore that the Registrar-General was bound to register a transfer by the sheriff, pursuant to a sale by him under a writ of fieri facias issued against the wife, of all the wife's estate and interest in such land.

Decision of the Supreme Court of New South Wales (Full Court) Ex parte Wood, (1925) 26 S.R. (N.S.W.) 1, affirmed.

APPEAL from the Supreme Court of New South Wales.

By memorandum of transfer dated 14th October 1918 there was transferred to Annie Wood and William Harry Wood, her husband, as tenants by entireties, by the said Annie Wood, who had acquired the same in February 1910 from one George Weeks, all the land

39 CLR 47

comprised in a certain certificate of title, being lots 28 and 29 on a certain plan, in the parish of Wilton and county of Camden and William Harry Wood and his wife were and had been since 26th November 1918 the registered proprietors as tenants by entireties of the said land. By memorandum of transfer dated 6th April 1914 there was transferred by the Nepean Estate Co. Ltd. to William Harry Wood and his wife as tenants by entireties all the land comprised in a certain certificate of title, being lot 27 on a certain plan, in the parish of Wilton and county of Camden, and William Harry Wood and his wife were and had been since 6th May 1914 the registered proprietors as tenants by entireties of the said land. On or about 18th March 1925 there was issued out of the Supreme Court of New South Wales a writ of fieri facias in an action in the said Supreme Court in which one Kenneth McDonald White was the plaintiff and the said Annie Wood was defendant, and on or about 19th March 1925 the said writ directed against the said lands of the said Annie Wood was lodged in the Department of the Registrar- General. The said writ bore a notification that it was intended to bind all the…

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.

Keep reading for free

Create a free CaseChat account to read Registrar-General (NSW) v Wood and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [1926] HCA 43
Decision Date: 12 November 1926

CaseChat Overview and Summary

The Registrar-General of New South Wales appealed to the High Court of Australia from a decision of the Supreme Court of New South Wales. The dispute concerned the registrability of a transfer of land by the Sheriff to William Harry Wood, the husband of Annie Wood. The land in question was held by Annie Wood and William Harry Wood as tenants by entireties. A writ of fieri facias had been issued against Annie Wood, and the Sheriff sold her interest in the land under this writ. The Registrar-General refused to register the transfer, asserting that a wife's interest in land held as tenant by entireties was not her separate property and thus not subject to execution.

The High Court was required to determine whether, following the enactment of the *Married Women's Property Act 1901* (NSW), a wife's interest in land held as tenant by entireties constituted her separate property, capable of being taken in execution. This involved considering whether the Act had abolished or altered the nature of tenancies by entireties, and if not, whether the wife's interest within such a tenancy was nonetheless her separate estate under the Act.

A majority of the High Court (Isaacs, Rich, and Starke JJ.) held that the *Married Women's Property Act 1901* conferred upon a wife a separate estate and interest in land acquired after its commencement, even if held as tenant by entireties. They reasoned that the Act's purpose was to emancipate married women regarding their property, enabling them to hold and dispose of it as if they were single. While acknowledging that tenancies by entireties still existed, they concluded that the wife's interest within such a tenancy was her separate property, distinct from her husband's, and therefore liable to execution. Knox C.J. and Higgins J. dissented, finding that the Act did not abolish tenancies by entireties and that, under such a tenancy, the wife had no separate interest capable of being severed or taken in execution.

The High Court, by majority, affirmed the decision of the Supreme Court. Consequently, the Registrar-General was bound to register the transfer by the Sheriff to William Harry Wood of Annie Wood's estate and interest in the land.

Orders