Sieminski v Brooks Nominees Pty Ltd
[1990] TASSC 58
•9 October 1990
Serial No 56/1990
List "A"
COURT: SUPREME COURT OF TASMANIA
CITATION: Sieminski v Brooks Nominees Pty Ltd [1990] TASSC 58; (1990) Tas R 236; A56/1990
PARTIES: SIEMINSKI
v
BROOKS NOMINEES PTY LTD
FILE NO/S: M 285/1990
DELIVERED ON: 9 October 1990
JUDGMENT OF: Zeeman J
Judgment Number: A56/1990
Number of paragraphs: 29
Serial No 56/1990
List "A"
File No M285/1990
SIEMINSKI v BROOKS NOMINEES PTY LTD
REASONS FOR JUDGMENT ZEEMAN J
9 October 1990
This is a vendor and purchaser application. By an agreement in writing made 8 March 1990 between the respondent as vendor of the one part and the applicant as purchaser of the other part, it was agreed that the respondent would sell and the applicant would purchase an unencumbered stratum title unit situate at 79 Springfield Avenue, Moonah, being Unit 2 shown on the plan attached thereto together with certain chattels.
The agreement contained the following terms:
"6It is a condition precedent to the completion of this Agreement that there are not at the date hereof any restrictions on the use of the property other than those specifically disclosed herein which shall hinder or prevent the Purchaser from using or enjoying the property for the purpose of a stratum title residential unit.
7The Vendor shall supply a good marketable documentary stratum title to the property free from any charges payable or to become payable to any Municipal or other Authority in respect of works done at this date and the Vendor indemnifies the Purchaser against any claim or demand to be made in that respect."
The terms of the agreement make it clear that at the time that it was entered into, the building, which was to be the subject of a registered stratum plan, had not yet been completed. The agreement contained provisions dealing with the completion of the construction of the unit which was to be purchased by the applicant. Completion of the purchase was to occur within twenty–one days of the issue of a stratum title to the property being sold.
It appears that a stratum plan was duly registered and that on 29 June 1990 the Recorder of Titles created a folio of the Register in respect of property described as "Flat No 2 on Stratum Plan No 2989 and one undivided ½ share in the common property shown in the said Stratum Plan." In fact, the copy of the stratum plan which is in evidence, suggests that there is no common property. It is common ground between the parties that the flat described in folio of the Register Volume 4676 Folio 97 is the flat which has been created as answering to the description of what the respondent agreed to sell to the applicant by the agreement for sale.
The principal relief sought is that contained in paragraph 1 of the application, which is in the following terms:
"A declaration that the Applicant's requirement that the reference to a stipulation that 'not more than one messuage shall be erected on each lot shewn in the said diagram hereon', contained in Certificate of Title Volume 4676, Folio 97 be removed therefrom or that evidence be provided that the said stipulation would not be enforceable against the Applicant as registered proprietor of land comprised in the said Certificate of Title is a valid requirement pursuant to clause 6 of the Contract of Sale of the said land made between the Applicant and the Respondent, dated 8th March 1990."
The stipulation referred to does not appear in those terms in folio of the Register Volume 4676 Folio 97. In that sense, the declaration is sought upon the basis of a false premise. However, in argument counsel for the applicant made it clear as to what was sought. The applicant's case is that there is a notation on the folio of the Register which suggests that the land therein described is subject to a stipulation or condition or covenant to the effect of the stipulation referred to in paragraph 1 of the application. I do not have a copy of the folio of the Register in evidence, but do have a copy of the relevant Certificate of Title. Having regard to the provisions of reg13(3) of the Land Titles Regulations 1981, I am prepared to infer that the particulars appearing in that Certificate of Title also appear in the relevant folio of the Register. The Certificate of Title in evidence is in the form prescribed by Schedule 1 to the Regulations (Form 6). The Second Schedule to the Certificate of Title notes a number of matters, including the following:
"128440 Fencing Condition and Other Conditions in Transfer".
It is that entry which is the subject of the first declaration sought in the application. It is necessary to look at the other evidence to see how it is asserted that the stipulation constitutes a reference to a stipulation that "not more than one messuage shall be erected on each lot shown in the said diagram hereon". A copy of Transfer 128440 discloses that that transfer was from The Southern Cross Assurance Company Limited to Rex Walter Norris and Ian Alfred James Howell of land described as "being portion of the land comprised and described in Certificate of Title Registered volume 375 Folio 106 and being Lot 594 in Plan Number 991 .... shown in the plan drawn hereon...." It is agreed that the land the subject of that transfer is the same land as that which is the subject of stratum plan 2989. The transfer was expressed as being "subject to the fencing conditions and stipulations therein mentioned." As to what was intended by the expression "therein mentioned" is somewhat obscure. However, I take it as being a reference to Certificate of Tile Volume 375 Folio 106. A copy of that Certificate of Title is in evidence. It is expressed as having been issued pursuant to Memorandum of Transfer No 77029 and Applications Nos 4096 and 4127. It declares The Southern Cross Assurance Company Limited as being the registered proprietor of the land therein described. A number of separate parcels are described in that Certificate of Title. One parcel is described as having an area of 2 roods 27 perches and one–tenth of a perch. It would appear from the plan drawn on that Certificate of Title that that parcel consisted of Lots 593, 594 and 595 on Plan 991. Other parcels, the subject of the transfer, likewise appear to consist of one or more lots on that plan. The Certificate of Title contains the following notation:
"Subject to the following stipulations namely:–
1No building shall be erected or made to extend on the said pieces of land nearer to any roadway (which includes paths) than twenty five feet.
2There shall not be erected on the said pieces of land any shop dwelling house or building of a less value (exclusive of stables or other outbuildings) than Five hundred pounds such value to be the actual cost in labour and materials only.
3Not more than one messuage shall be erected on each lot shown in the said diagram hereon.
4No quarry shall be mined or worked on the said pieces of land."
It is the third of those stipulations which gives rise to the present application.
A copy of Transfer 77029 is in evidence. Applications 4096 and 4127 are not in evidence. Transfer 77029 (which relates to lots other than Lot 594) is expressed to be subject to stipulations in the same terms as those which I have set out above.
By letter of 26 July 1990, the applicant's solicitors wrote to the respondent's solicitors drawing their attention to the stipulations contained in Certificate of Title Volume 375 Folio 106 and relating the chronology. Upon the basis of that material they asserted that those stipulations affected the land comprised in folio of the Register Volume 4676 Folio 97. They then raised a requisition in the following terms:
"We are concerned that the construction of the units in Stratum Plan No 2989 is a breach of stipulation No 3 above and require the removal of that stipulation or evidence that it is not a covenant which runs with the land."
An exchange of correspondence between the solicitors followed. It suffices to say that the stipulation has not been removed from the respondent's title nor has the respondent produced any unequivocal evidence that the stipulation is not a covenant which runs with the land. The respondent's position is that it is not required to satisfy this requisition.
I have evidence from the applicant's solicitor that he caused various searches and enquiries to be carried out and that subsequently he wrote to the Recorder of Titles detailing the searches made. That letter recorded the history of Certificate of Title Volume 375 Folio 106 (which history I infer was ascertained from the search information obtained) as being as follows:
"1Part thereof was derived pursuant to Transfer No 77029 which was a Transfer from Springfield Estates Ltd to The Southern Cross Assurance Company Ltd of part of Certificate of Title Volume 375 Folio 12 being Lots 384A, 550, 683, 659, 663, 776A, 608, 618, 213A, 267A and 495 on Plan 991. Lot 594 therefore was not transferred to Southern Cross by this Transfer and must therefore have been included in Certificate of Title Volume 375 Folio 106 pursuant to Application 4096 or 4127. Significantly however, Transfer 77029 notes that Springfield Estates Ltd was the registered proprietor of the said lots subject to the abovementioned stipulations.
2Applications 4096 and 4127 are applications to have the untransferred lots of the Springfield Estate subdivision brought under the Real Property Act, but no specific reference to Lot 594 or a parcel of land containing Lot 594 can be found.
3The Deeds Office records show that by Indenture of Conveyance 152814 F P Roberts and P R Seager conveyed to Springfield Estates Ltd two parcels of land containing respectively 163 acres (with exceptions thereout) and 50 acres 3 roods and 11 perches. This Conveyance must include Lot 594 as the only other conveyances to Springfield Estates Ltd refer to other specific lots on Plan 991 (159578, 164787, 164788, 164789, 164790). Neither Conveyance 152814 nor the Conveyances of specified lots mentioned above make any reference to the aforementioned stipulations or conditions.
4There is no record of Springfield Estates Ltd ever having conveyed Lot 594, or a parcel of land of which it formed part, to The Southern Cross Assurance Company Ltd or to any other party.
5However by an Agreement Registered No 176188 Springfield Estates Ltd agreed to sell and The Southern Cross Assurance Co Ltd agreed to purchase lands including Lot 594 subject however to the rights of the Purchasers thereof pursuant to Contracts previously entered into by Springfield Estates Ltd This Agreement is not however a Conveyance of the lands described therein, and there appears to have been no other Conveyance by Springfield Estates Ltd of Lot 594 or a portion of land containing the same.
6We note that prior to the application to bring the lands under the Real Property Act it was the practice of Springfield Estates Ltd to include in Conveyances of Lots of the subdivision a covenant in relation to the previously mentioned stipulations. As an example we refer you to Indenture of Conveyance No 153493 (copy of Memorial enclosed).
7It seems therefore that –
(a)the lands were owned by Springfield Estates Ltd (subject to the Registered Agreement with The Southern Cross Assurance Company Ltd);
(b)the Title of Springfield Estates Ltd to the land described in Certificate of Title Volume 375 Folio 12 was not subject to such stipulations which came into being in relation to that land upon a Transfer to Southern Cross;
(c)the Title of Springfield Estates Ltd to the lands held under the General Law System were not subject to such stipulations;
(d)the lands held under the General Law System were not conveyed to Southern Cross;
(e)pursuant to the Application the General Law lands were brought under the Real Property Act and Certificate of Title Volume 375 Folio 106 issued in respect thereof in the name of Southern Cross and subject to those stipulations."
It was an agreed fact before me that the agreement for sale No 176188 did not contain any reference to any stipulation as is mentioned in Certificate of Title Volume 375 Folio 106.
The conclusions I draw from the evidence are as follows:
(a)Insofar as the stipulations which appear in Certificate of Title Volume 375 Folio 106 relate to the lots transferred by Memorandum of Transfer No 77029 they derive from the stipulations expressed in that transfer which related to certain portions of the land comprised in Certificate of Title Volume 375 Folio 12. No part of the land comprised in that Certificate of Title had previously been subject to any such stipulation.
(b)It is not possible to ascertain the source of the stipulations which appear in Certificate of Title Volume 375 Folio 106 insofar as the balance of the land comprised therein (including lot 594) is concerned. The evidence points to the notation on the title as to such balance being an error. It appears that The Southern Cross Assurance Company Ltd agreed to purchase the fee simple of that land without having agreed to become bound by the provisions of that notation yet upon a Certificate of Title issuing to it that certificate indicated that it was so bound.
Counsel appeared to proceed upon the assumption that the source of those stipulations might be expected to be found in applications 4096 and/or 4127. I consider that to be most unlikely. I have no evidence as to the identity of the applicant. Bearing in mind the existence of agreement for sale registered No 176188, the application may have been made by Springfield Estates Ltd, it directing that title issue to The Southern Cross Assurance Company Ltd (see R v Registrar of Titles; ex parte Murray [1913] VLR 546) or it may have been made by The Southern Cross Assurance Company Ltd claiming the fee simple in possession in equity (see Real Property Act 1863, s4(2)(a)). The scheme of the Real Property Acts was such that I do not consider that it was possible for the relevant stipulations to have been created by way of the applications. It was the duty of the Recorder upon bringing the land under the Act to issue a Certificate of Title in the form of Form III contained in the First Schedule to the Real Property Act 1862. Section 32(2) of that Act required the Recorder to note on such certificate "the particulars of all unsatisfied mortgages or other incumbrances, and of any lease, or rent– charge to which the land may be subject." Whilst it may be doubted whether at the relevant time a restrictive covenant was capable of being lawfully noted at all (but see In re Cashmore's Application [1967] Tas SR 217 at p225), it seems plain that what was to be noted upon the Certificate of Title was to be an existing interest and that such an interest was not capable of being created by the application. Any interest created by any instrument registered pursuant to the provisions of the Registration Act 8 Geo IV No 5 (which was in force at all material times) was required to be recorded on the Certificate of Title, as was any interest created by an unregistered instrument brought to the knowledge of the Recorder.
This leads me to the conclusion that if the stipulations referred to in Certificate of Title Volume 375 Folio 106 were validly created in respect of the whole or any part of the land the subject of applications 4096 and 4127, then they must have been created prior to the land having been brought under the provisions of the Real Property Acts because that Certificate of Title appears to be the first certificate to have issued under the provisions of those Acts upon the land having been brought under those Acts. There is no evidence of the existence of any such instrument. The evidence suggests that there never was any such instrument. In fact, on the balance of probabilities I am satisfied that such an instrument does not exist from which I conclude that the stipulation the subject of this Application should not appear on folio of the Register Volume 4676 Folio 97 to the extent that it refers to "other Conditions", such conditions never having been made to apply to the land comprised in the Stratum Plan.
However in the event that I should be wrong about that, I consider the matter further upon the basis that the relevant notation appearing on Certificate of Title Volume 375 Folio 106 represents something lawfully created prior to the issue of that certificate. It might be taken as representing either a series of restrictive covenants affecting the land or a series of common law conditions or executory limitations.
If the notation is to be taken as representing restrictive covenants affecting the land, one needs to consider the provisions of s102 of the Land Titles Act 1980. So far as is relevant that section provides as follows:
"102 – (1) Except as provided in this Division, the burden of a covenant does not run with freehold registered land.
(2) Subject to subsection (3), the burden of the covenant runs with freehold registered land if –
(a) the covenant was –
(i)entered into before the land was brought under this Act or the repealed Act; or
(ii)included in a transfer which was registered before the proclaimed date;
and –
(iii)notice of the covenant is recorded on the folio of the Register constituting the title to the land intended to be burdened; and
(iv)the land intended to be benefited by the covenant is identified in the instrument containing the covenant;
....
(3) A covenant which runs with freehold registered land pursuant to subsection (2) may be enforced in equity notwithstanding any provision of this Act but has no greater operation or effect by the operation of this section than it would have if the land which it is intended to burden were not registered land and the registered proprietor of the land were effected in equity by express notice of the covenant."
In the first instance, it is appropriate to consider the provisions of s102(2)(a)(iii). Senior counsel for the respondent submitted that the notation upon folio of the Register Volume 4676 Folio 97, to which I have referred, falls short of being a notice of any covenant. In In re Cashmore's Application (supra), at p228, Neasey J referred with approval to the statement of principle by Orde J in Re Campbell and Cowdy [1928] 1 DLR 1034 at p1037 where his Lordship said:
"The whole object of the Act is to define the nature and extent of the title as registered, and so that the certificate of ownership shall disclose the full title of the owner with whatever charges liens or other encumbrances may be registered against it. A purchaser under such a certificate ought not to be put upon enquiry as to anything beyond what the certificate itself discloses ... To give to others rights which are not spread upon the face of the register is, in my opinion, quite opposed to the whole intention of the Act. And I think that when restrictive conditions are registered under s99 of the Act, if those who impose the conditions intend the benefit of these to attach to and run with other lands, those other lands ought to be clearly defined and set forth in the register and the certificate of ownership."
Reference might also be had to s40 of the Land Titles Act 1980 providing for the indefeasibility of title (a fundamental basis of the Torrens system of land registration) which provides that "'indefeasible', in relation to the title of a registered proprietor of land, means subject only to such estates and interests as are recorded on the folio of the Register or registered dealing evidencing title to the land." It can hardly be said that the relevant notation upon Certificate of Title Volume 4676 Folio 97 amounts to conditions "clearly defined and set forth in the register and the certificate of ownership," (in the words of Orde J) or to an interest "recorded on the folio of the Register" (in the words of s40). An application of principle suggests that there has been an insufficient statement to affect the relevant land. Nevertheless, I need to determine whether the notation constitutes "notice of the covenant" within the meaning of s102(2)(a)(iii).
The scheme of the Act and the apparent object of s102 suggest that the reference to "notice of the covenant" being recorded is intended to mean something more than that the folio of the Register contains some information or reference which puts the reader on notice that if he were to make further enquiries, he might locate a covenant purporting to bind the subject land.
A similar conclusion was reached by Lindley MR in Greenwood v Leather Shod Wheel Company [1900] 1 Ch 421 where in dealing with the prospectus disclosure provisions contained in the Companies Act, his Lordship said at p436:
"Considering the manifest object of this section, which is to compel the persons issuing prospectuses to afford to persons invited to take share the information required by the section, it is obvious that the words, 'unless he shall have had notice of such contract' mean a great deal more than 'unless he shall have some vague information which, if followed up, will lead to such notice.' Notice in the section means, not what is called 'constructive notice,' but actual notice, that is, notice which brings home to the mind of a reasonably intelligent and careful reader such knowledge as fairly, and in a business sense, amounts to notice of a contract. Any other construction would render the section perfectly useless."
In County Laboratories Ltd v J Mindel Ltd [1957] 1 Ch 295, Harman J considered s25 of the Restrictive Trade Practices Act 1956 (Imp) which inter alia provided for the enforceability of a condition as to the price at which a reseller might resell goods against "any person not party to the sale who subsequently acquires the goods with notice of the condition as if he had been party thereto". In that case, the defendant resold a product which it knew was subject to a condition requiring that that product be sold at a fixed retail price if it was a product that had been sold and manufactured after 2 November 1956. The defendant's argument was that it had no express notice of the condition because there was nothing to show to it the date on which the product had been initially sold or manufactured.
At p299, his Lordship said:
"'Notice' in my opinion means knowledge, and for the purposes of this motion I do not think that the plaintiffs have satisfied the court that the defendants had notice that this particular jar ... was sold subject to the condition, although they had notice, no doubt, of the existence of the condition, in that any articles put out subsequently to it were subject to it. They had not, nevertheless, knowledge that this jar ... was necessarily manufactured subsequent to the notice, and I think that they were entitled not to ask anything further, if that is what they chose to do."
The same statutory provision was considered in Goodyear Tyre and Rubber Co (Great Britain) Ltd v Lancashire Batteries Ltd [1958] 1 WLR 857. Lord Evershed MR said, at p863:
"So I come back to the first question (and the main question) which we have to decide: What is the scope or limit of the words 'with notice of the condition'? Prima facie, it would appear to me that if Parliament had meant that the retailer must know the actual term of the condition, ... Parliament would have said so. The word 'notice' to a lawyer, in my judgment, means something less than full knowledge. It means, no doubt, that the thing of which a man must have notice must be brought clearly to his attention. What, in different cases, may be sufficient notice is a matter which will be decided when those cases come before the courts; but in this case it seems to me that two things are clearly established: first, that the defendants had been told and knew (had been expressly told and clearly knew) that tyres which had been manufactured and supplied by the plaintiffs had had imposed upon them by the plaintiffs a condition as to price, including a condition that they should not be resold at other than the appropriate price which the manufacturer had prescribed. That is clear. They had, furthermore, been told ... that the details of the condition, that what was the appropriate price in any given case for the resale of those tyres, could be obtained on application to the manufacturer at the address which was stated in the same circular. In my judgment, that constituted in this case 'notice of the condition' within the requirement of section 25 (1)."
Those cases are illustrative of various approaches which have been taken. It might be thought that at least some fall short of what might be thought to be required to give effect to the objects and purposes of the Torrens system of land registration as expounded in Re Campbell and Cowdy (supra). I find it unnecessary to determine whether it is necessary that covenants must be defined and set forth in the register at least in substance. Certainly such a requirement can not be said to be of general application as it has been significantly modified by statute (eg s102(2)(b) of the Act). Nevertheless, I hold that for there to be "notice of the covenant recorded on the folio of the Register" within the meaning of s102(2)(a)(iii), as a minimum, what needs to be recorded on such folio is either the substantial effect of the covenant or a reference to the instrument creating the covenant where its terms may be found. It may be argued that the mere reference to such an instrument is insufficient, or is insufficient if such instrument is not registered under the Act. I do not need to consider such arguments in the light of the conclusions which I have reached. The notation the subject of the present application does not set forth any covenant. The only reference within it is to a transfer which, in its terms, does not purport to create any restrictive covenant but expresses that transfer as being subject to the stipulations "mentioned therein" in an apparent reference to Certificate of Title Volume 375 Folio 106. A reference to that Certificate of Title indicates that it is expressed to be subject to a number of stipulations, but it gives no indication as to how or when those stipulations were created. There is no reference upon the folio of the Register to the respondent's land which either directly or indirectly leads one to the instrument creating the covenant. I conclude that the notation on folio of the Register Volume 4676 Folio 97 does not constitute notice of any covenant recorded on the folio of the Register within the meaning of s102(2)(a)(iii). It has not been suggested that any covenant intended to be notified by the notation is enforceable by virtue of any provision of Part VI Division 8 of the Act other than s102(2)(a). It follows that if the notation upon the folio of the Register relating to the respondent's land is a reference to a restrictive covenant then s102(1) operates and the burden of such covenant does not run with the land.
Alternatively, I need to consider whether the notation upon the folio of the Register to the respondent's land could be construed as constituting notice of what are or may be common law conditions (in the sense of constituting an express qualification upon the whole of the registered proprietor's estate and interest in the land so that a breach of the condition makes the estate determinable by re–entry on the part of the grantor or his heirs) or of what are or may be notice of executory limitations (in the sense of rendering the fee simple liable to be defeated). A useful discussion of common law conditions appears in the judgment of Burbury CJ in Andrewartha v Cashmore [1967] Tas SR 1 at pp 6–9. Challis's Real Property 3rd ed expresses the position at pp219 – 220 in the following terms:
"At common law, a condition may be annexed to an estate of fee simple, by a breach of which, if it is a negative condition, or by the performance of which, if it is a positive condition, a right of entry accrues to the grantor or his heirs; and if an entry be made, the estate to which the condition is annexed is destroyed; whereby the fee reverts to the grantor or his heirs, in the same manner in all respects as before the grant of the estate subject to the condition. But the benefit of a common law condition cannot be reserved to a stranger; nor is the estate subject to the condition destroyed, until an entry has been made in pursuance of the right of entry. (Litt sect 347, and Lord Coke's comment.)
Moveover, the existence of executory limitations, which are of recent origin in comparison with the common law, renders it possible at the present day to vest an estate in fee simple in a tenant subject to a liability to be defeated, or shifted to another owner. The liability to defeasance by executory limitation differs in two respects from the liability to defeasance by a common law condition, – (1) the benefit of an executory limitation may be reserved to a stranger; and (2) an executory limitation takes effect without an entry made by the person entitled to the benefit of it."
For land to be subject to common law conditions it must have been granted with words of direct limitation which prima facie grant a fee simple but with further words of collateral limitation whereby the estate is liable to be determined upon the happening of a future event which by its nature may never occur. For land to be the subject of an executory limitation it must have been granted with words of direct limitation which grant a fee simple which will determine upon the happening of a specified event. As to the latter, the provisions of the Settled Land Acts have application (see s53(1)(b), Settled Land Act 1884). In my view the stipulations appearing in Certificate of Title Volume 375 Folio 106 ought not to be construed as being anything other than purported restrictive covenants for the following reasons:
(a)The Southern Cross Assurance Company Ltd contracted to purchase the relevant land for an estate which I infer was an estate in fee simple absolutely;
(b)That company is declared to be "seised of an estate in fee simple subject nevertheless to such encumbrances liens and interests as are notified by Memorial underwritten or endorsed hereon". The stipulations are endorsed on the certificate. In their terms they are not expressed as words of limitation appropriate to constitute either common law conditions or executory limitations;
(c)Upon a true construction of the whole of the certificate the stipulations at best purport to do no more than impose a contractual obligation upon the registered proprietor and its successors in title.
In any event, if the stipulations are to be construed as common law conditions or executory limitations then I consider them to be void and of no effect as offending the rule against perpetuities. I do not consider that s75A(4) of the Conveyancing and Law of Property Act 1884 can operate so as to reinstate provisions which were void as at the date upon which that provision came into force.
If the stipulations endorsed on Certificate of Title Volume 375 Folio 106 constitute common law conditions or executory limitations then in terms they are capable of operating to make the fee simple subject to a right of re–entry or the possibility of reverter or upon a stipulation being breached at any time in the future without limitation in time. The question is as to whether or not the rule against perpetuities would apply to such a condition. The learned authors of Morris and Leach on The Rule Against Perpetuities 2nd ed. express the view at p213 that "any decision that the Rule against perpetuities does apply is practically equivalent to a decision that determinable fees simple and fees simple subject to a right of entry for condition broken do not exist, or that there is no difference between them and a fee simple absolute." That may be too extreme a view, eg an executory limitation on failure of issue on the part of the grantee would not offend the Rule. In Hopper v Corporation of Liverpool (1944) 88 SJ 213, Bennett VC was concerned with the validity of a grant of land in fee simple for so long as the building erected thereon "shall be used and enjoyed for the purposes of the said institution called The Lyceum". His Lordship held that the possibility of reverter of a determinable fee simple was subject to the rule against perpetuities. Reference may also be had to Re Hollis' Hospital and Hague's Contract [1899] 2 Ch 540 where it was held that the rule against perpetuities applied to a condition for re–entry or a condition imposing a limitation. That case has been much criticised (see eg Challis's Real Property 3rd ed at p207 and following) as has Hopper's case (see 62 LQR at p222). However, it was followed in Re Smith [1967] VR 341 at p346. I am persuaded that I should follow it. Further support may be found in the cases referred to in Re Smith, namely Re Da Costa [1912] 1 Ch 337; Williams v Perpetual Trustee Co Ltd (1913) 17 CLR 469 at p485; and In the Will of Brett [1947] VLR 483 at p488. It follows that the respondent holds the fee simple free from any possible re–entry or reverter.
For these reasons, I conclude that the applicant was not entitled to have her requisition satisfied. The application is dismissed.
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