NEW SOUTH WALES. Vendor and Purchaser-Vendor's lien-Conflicting equilies-Transfer of mortgages-
Transfer of legal title completed by registration-Fraud of common agent-Claim by purchaser that vendor's conduct enabled fraud-Waiver or abandonment of Rien-Estoppel--Personal liability of purchaser.
Trustees of a settlement lent two sums of £600 each to G. on the security respectively of two memoranda of mortgage under the Real Property Act 1900 (N.S.W.) over land comprised in two certificates of title, each of which mort- gages was duly registered. Subsequently the trustees transferred the mortgages to the appellant, with a receipt for consideration money of £1,200 endorsed on the transfer, and the transfer was subsequently registered." At the time of the transfer no actual cash payment was in fact made by the appellant, but moneys exceeding the sum of £1,200 at that time were owed by the solicitor to the appellant, though such moneys had previously been misappropriated by him. The solicitor procured certain security to be given by his mother and his managing clerk to one of the trustees to cover the general shortage in respect of (amongst others) the investments which the trustees had made. The solicitor was declared bankrupt shortly after the mortgages were handed to the appellant. The present trustee of the settlement claimed that he was entitled, as unpaid vendor, to enforce a vendor's lien. The mortgages and the certificate of title were in the appellant's possession.
Held, by the whole Court, that (1) the present trustee was entitled to a lien in the nature of a vendor's lien over the mortgage security; (2) the lien was not in fact waived or abandoned (3) he was not in fact estopped
from asserting the lien. And by Rich, Dixon and McTiernan JJ. (Starke and Evalt JJ. dissenting), that the appellant was not personally liable for payment of the sum the subject of the lien.
Grant v. Mills, (1813) 2 Ves. &B. 306, at p. 309; 35 E.R. 335, at p. 336; Gordon v. James, (1885) 30 Ch. D. 249 Greenwood v. Martins Bank Ltd., (1933) A.C. 51; London Freehold and Leasehold Property Co. v. Baron Suffield, (1897) 2 Ch. 608; Wall v. Cockerell, (1863) 10 H.L.C. 229; 32 L.J. Ch. 276 11 E.R. 1013; Wrout v. Dawes, (1858) 25 Beav. 369; 53 E.R. 678 and Young v. White, (1844) 7 Beav. 506 13 L.J. Ch. 418; 49 E.R. 1162, considered,
Decree of the Supreme Court of New South Wales (Long Innes J.) Palmer V. Thompson, (1933) 33 S.R. (N.S.W.) 166 50 W.N. (N.S.W.) 45, affirmed, subject, by a majority, to a variation.
APPEAL from the Supreme Court of New South Wales.
A suit was brought in the Supreme Court in its equitable jurisdic- tion by Arthur Joseph Howard Palmer against Edna Anne Thompson in which the statement of claim was substantially as follows:-
1. The plaintiff is the sole trustee for the time being under a deed of settlement dated 1st April…
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.
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AGLC
Thompson v Palmer [1933] HCA 61
Case
[1933] HCA 61
Decision Date
CaseChat Overview and Summary
The case of *Thompson v Palmer* involved an appeal to the High Court of Australia from the Supreme Court of New South Wales. The dispute concerned a vendor's lien claimed by the respondent, the trustee of a settlement, over two registered mortgages. These mortgages, originally held by the trustees of the settlement, had been transferred to the appellant, Edna Anne Thompson, for a stated consideration of £1,200. The core of the disagreement lay in whether this purchase money had been paid, and if not, whether the respondent was entitled to enforce a vendor's lien against the appellant, who was the registered proprietor of the mortgages.
The legal issues before the High Court were whether the respondent was entitled to a vendor's lien over the mortgage securities, whether this lien had been waived or abandoned, and whether the appellant was estopped from asserting her claim to the mortgages free from such a lien. A further significant issue was whether the appellant was personally liable for the amount of the lien. The court was required to consider the effect of the fraud of a common agent, the nature of conflicting equities, and the principles of estoppel in the context of a transfer of registered mortgages.
The High Court, by majority, held that the respondent was entitled to a lien in the nature of a vendor's lien over the mortgage security, and that this lien had not been waived, abandoned, or defeated by estoppel. The reasoning focused on the fact that the purchase money of £1,200 had not been paid to the original vendors (the settlement trustees). While the appellant argued that the actions of the vendors, particularly the execution of a transfer acknowledging receipt of payment and handing the documents to a common solicitor, enabled the fraud and should preclude the lien, the majority found that the essential elements of estoppel were not met. Specifically, it was found that the appellant had not suffered detriment as a consequence of any representation made by the vendors, as her loss was largely irretrievable by the time any alleged representations were made.
By a majority decision, the High Court varied the decree of the Supreme Court by holding that the appellant was not personally liable for the payment of the sum subject to the lien. However, the appeal was otherwise dismissed, affirming the Supreme Court's declaration of a vendor's lien over the mortgage securities in favour of the respondent.