Watt v Lord

[2005] NSWSC 53

Reported Decision: 62 NSWLR 495
(2006) NSW ConvR 56-134

New South Wales

Supreme Court

CITATION:	Watt v Lord & Anor [2005] NSWSC 53
HEARING DATE(S):	31/01/05, 01/02/05
JUDGMENT DATE :	18 February 2005
JUDGMENT OF:	Gzell J
DECISION:	Claim by successor in title to vendors that transfer no longer effective for registration dismissed.

CATCHWORDS:	CONVEYANCING - Land Titles under the Torrens System - Transfers - Transfer and certificate of title handed to purchaser - Purchaser goes into occupation - Registration of transfer not sought for 43 years - Vendors and successors in title dead - Whether transfer can be registered - Whether purchaser guilty of unconscionable conduct - Whether purchaser guilty of laches - Whether relief barred by Limitation Act 1969
LEGISLATION CITED:	Real Property Act 1900 Limitation Act 1969 Transfer of Land Act 1915 (Vic) Bills of Sale Act 1891 (Qld) Real Property Act of 1877 (Qld) Conveyancing Act 1919 Real Property Act of 1861 (Qld) Real Estate (Limitation of Actions) Act, 1833 (Imp)
CASES CITED:	J A Westaway & Son Pty Ltd v Registrar-General (1996) 7 BPR 14,773 McVey v Denis (1984) 55 ALR 201 Davis v Willaims [2003] NSWCA 371 Tierney v Halfpenny (1883) 9 VLR (Eq) 152 National Trustees, Executors and Agency Co of Australasia Ltd v Boyd (1926) 39 CLR 72 Barry v Heider (1914) 19 CLR 197 Brunker v Perpetual Trustee Co (Ltd) (1937) 57 CLR 555 Anning v Anning (1907) 4 CLR 1049 Currey v Federal Building Society (1929) 42 CLR 421 O'Regan v Commissioner of Stamp Duties (1921) St R Qd 283 Breskvar v Wall (1971) 126 CLR 376 Cope v Keene (1968) 118 CLR 1 Corin v Patton (1989-1990) 169 CLR 540 In re Skinner (1894) 6 QLJ 68 Finucane v Registrar of Titles (1902) St R Qd 75 Wainewright v Elwell (1816) 1 Madd 627 (56 ER 231) Macedo v Stroud [1922] 2 AC 330 Blomley v Ryan (1956) 99 CLR 362 Real Estate (Limitation of Actions) Act, 1833 (8 Wm IV, No 3 & 4) Re The Australian Deposit and Mortgage Bank Ltd (1907) VLR 348 Peacocke & Peacocke v Auckland District Land Registrar (1901) 20 NZLR 81 Campbell v District Land Registrar, Auckland (1909) 28 NZLR Lindsay Petroleum Co v Hurd (1874) LR 5 PC 221 Hart v O'Connor [1985] 1 AC 1000 West v Read (1913) 13 SR (NSW) 575 Hogg, The Australian Torrens System, William Clowes & Sons Ltd, London, 1905 Francis, The Law and Practice Relating to Torrens Title in Australasia, Butterworths, Sydney, 1972 Baalman The Torrens System in New South Wales, 2nd ed, Law Book Co, Sydney, 1974 Whalan, The Torrens System in Australia, Law Book Co, 1982 Kerr, The Principles of the Australian Land Titles (Torrens) System, Law Book Co, Sydney, 1927 Francis, The Law and Practice Relating to Torrens Title in Australasia, Butterworths, Sydney, 1972
PARTIES:	Maxine Evelyn Watt - Plaintiff Colin Stanley Lord - First Defendant Registrar General Land & Property Information - Second Defendant
FILE NUMBER(S):	SC 2197/02
COUNSEL:	Mr W S Veitch - Plaintiff Mr G C Lindsay SC - First Defendant Submitting Appearance - Second Defendant
SOLICITORS:	Cox Wisemann & Davidson Lawyers Thomas & Bisley Solicitors

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

JUSTICE GZELL

FRIDAY 18 FEBRUARY 2005

2197/02 MAXINE EVELYN WATT v COLIN STANLEY LORD & ANOR

Introduction

1 More than 43 years after the execution of a memorandum of transfer of land under the Real Property Act 1900, the first defendant, Colin Stanley Lord, the transferee, lodged it and the certificate of title to the land with the Registrar-General, the second defendant. By that stage the registered proprietors, John Stephenson Holliday and Ann Holliday, had died. Mr Holliday senior gave his entire estate to Mrs Holliday who devised and bequeathed her estate to their son James Holliday. Mr Holliday junior also died having given his entire estate to his wife Iris May Davis Holliday.

2 About a year before lodging the memorandum of transfer for registration, Mr Colin Lord made an application for possessory title to the property. Mrs Holliday junior lodged a caveat opposing registration and, subsequently, Mr Colin Lord lodged a caveat. Having found the memorandum of transfer and certificate of title in his father’s belongings after his death, Mr Colin Lord withdrew his application for possessory title and sought registration of the transfer.

3 The Registrar-General having advised Mrs Holliday junior that her caveat did not prevent registration of the transfer and he proposed to register it unless the court otherwise ordered, Mrs Holliday junior commenced these proceedings. The Registrar-General entered a submitting appearance. Soon afterwards an order was made restraining him from registering the memorandum of transfer or from removing Mr Colin Lord’s caveat. Mrs Holliday junior subsequently died having given her entire estate to her daughter, Maxine Evelyn Watt who was appointed plaintiff in the stead of her mother.

4 The proceedings raise a number of issues. Can the memorandum of transfer be registered after the death of the registered proprietors? Does Mr Colin Lord have equitable title to the property by reason of its purchase? Is Mrs Watt estopped from asserting to the contrary? Is Mr Colin Lord entitled to assert possessory title to the property? Was Mr Colin Lord guilty of unconscionable conduct in entering into the contract for sale of the property? Was Mr Colin Lord guilty of laches in failing to lodge the memorandum of transfer for registration earlier? Is Mr Colin Lord barred from any remedy under the Limitation Act 1969? Were Mr and Mrs Holliday senior deemed to have given covenants for further assurances enforceable against Mrs Watt?

Background

5 In April 1958, Mr Holliday senior approached Mr Colin Lord’s uncle, Stanley Leonard Lord, and asked him whether he would purchase his property. He needed some money urgently. He was going to South Africa for a short period. Mr Stanley Lord had acted for Mr Holliday senior in the past through his real estate agency.

6 The meeting took place at the offices of the South Coast Times, a local Wollongong newspaper. Mr Colin Lord was a director and general manager of the newspaper. Mr Stanley Lord was the managing director.

7 Mr Stanley Lord said he was not interested but Mr Colin Lord might be. Mr Colin Lord asked Mr Holliday senior: “what’s the deal” to which Mr Holliday senior replied that he wanted £100 for the property. There was a mortgage on it that went back to the late 1920s and he had not paid any money under the mortgage. Mr Colin Lord agreed to pay £100. He regarded the price as acceptable, but not a bargain, because of the problem of the outstanding mortgage.

8 Mr Colin Lord was not aware of the ages of Mr and Mrs Holliday senior. They were 72 and 70 at the time. Mr Colin Lord knew they were elderly people. He did not regard himself as in a position of superiority to them. He had had considerable experience in investing in real estate in each case utilising the services of a solicitor to advise and act for him. Mr Colin Lord said that Mr Holliday senior came in and asked for a deal to be done and he got what he asked for. The Holliday seniors had only invested in real estate once, in the property in question.

9 The property was subject to a registered mortgage executed by Mr and Mrs Holliday senior in December 1927. The amount secured was £181/17/6.

10 Mr Colin Lord put the conveyance in the hands of his solicitor who produced a memorandum of transfer and a statutory declaration. The Holliday seniors returned to the newspaper office to execute the documents. Mr Stanley Lord witnessed the signatures of Mr and Mrs Holliday senior. He was not cross examined. The instrument was also executed by Mr Colin Lord. The statutory declaration was executed by Mr Holliday senior. He declared that the land was subject to a registered mortgage, he did not know whether any moneys had been paid off the mortgage, he had never received any notice from the mortgagee calling up the mortgage or threatening to sell the land because of default under the mortgage and he had never been sued for any moneys payable under the mortgage.

11 Upon completion of the documentation and payment of the purchase price, Mr Holliday senior handed over to Mr Colin Lord the memorandum of transfer and the certificate of title to the property and the key to the house. Neither Mr Holliday senior nor Mrs Holliday senior had anything further to do with the property. No claim to its entitlement was made by them during their lifetime nor by their son during his life.

12 There were some inconsistencies in the evidence of Mr Stanley Lord and Mr Colin Lord. Their recollections differed slightly and there were differences between their affidavits and earlier statutory declarations. I put these differences down to the passage of time. There is no doubt that Mr and Mrs Holliday senior sold their property for £100 to Mr Colin Lord and handed over the memorandum of transfer, certificate of title and key to the house.

13 Following settlement, Mr Colin Lord and his father who was his business partner inspected the property and decided that it needed refurbishment before being put out to lease. Mr Colin Lord gave the memorandum of transfer and certificate of title to the property to his father for safekeeping. After the refurbishment was carried out by Mr Colin Lord, his father and his uncle, the property was let from time to time by Mr Colin Lord and persons working for him or acting on his behalf.

14 Mr Colin Lord contacted the local council and Water Board and arranged to have notices sent to his address. Thereafter he paid the rates and charges. The notices continued to issue in the name of Mr Holliday senior.

15 The house was extensively damaged and again refurbished by Mr Colin Lord, his father and his uncle. It was subsequently occupied by Julie Maree Rasmussen who was put into occupation by a Mr Parish whom she knew had a business relationship with Mr Colin Lord. She was not required to pay rent as the property needed cleaning up. In the 10 years that she occupied the premises, Ms Rasmussen carried out repairs and improvements to the property. At the time of trial, a Mr O’Connell was the rent paying occupant of the property.

16 Mr Colin Lord made his application for possessory title of the property supported by statutory declarations by himself and Mr Stanley Lord in November 2000. He made this application because he had mislaid the memorandum of transfer and certificate of title. The application form stated that there were no documents evidencing title to the property in the possession or control of the applicant. He was taken to task in cross examination for failing to record the existence of a memorandum of transfer and a certificate of title which had been mislaid. He said he did not have any knowledge of where they were. I draw no conclusion adverse to Mr Colin Lord from this evidence.

Is the memorandum of transfer effective?

17 Mrs Watt submitted that the memorandum of transfer could not be registered because Mr and Mrs Holliday senior died before the instrument was lodged. Mrs Watt relied on J A Westaway & Son Pty Ltd v Registrar-General (1996) 7 BPR 14,773. That case dealt with a number of transactions. The one in question was the deceased’s execution of a memorandum of transfer of his half interest in land as a tenant in common to his co-owner. The co-owner found the document behind a wardrobe in their bedroom after he died. It was clear that at no stage prior to his death had he agreed to hand the document over. He thought it a waste of time because he thought the bank that had a mortgage over the property would never agree to the registration of the document. It was a case of an imperfect gift. By analogy with non-delivery of a deed, Young J concluded that the instrument was not capable of being registered. At 14,791, his Honour said:

“Accordingly, at no time prior to Con Maglaras’ death was there ever a semblance of a completed gift by the handing over of Transfer 85 and a certificate of title. The certificate of title was with the bank in any event.
Thus, we have the situation where prior to Mr Maglaras’ death he had signed Transfer 85 but had not delivered it or handed it over to Ms Armata. If the document had been a deed (which of course it isn’t, vide s 36(11) of the Real Property Act 1900), there would have been no delivery so the deed would never have taken effect. Unless there is a trust, or a perfect gift, or an underlying contract upon which someone can sue, it seems to me that a transfer which is signed by a registered proprietor but not handed over before the transferor dies, is a useless piece of paper. Indeed, even if the transfer had been handed over with the certificate of title, it itself would not be capable of being registered so as to transfer the title, though there may have been a claim in equity for registration.”

18 The last observation of his Honour was an obiter dictum.

19 His Honour referred to McVey v Denis (1984) 55 ALR 201. In proceedings for the dissolution of marriage, a husband agreed to transfer his joint interest in land to his wife. He executed a memorandum of transfer and had it and the certificate of title delivered to his wife’s solicitors on the express understanding that they should be held on loan until the decree had been made. Subsequently, a decree nisi was made that, upon and subject to the decree becoming absolute, the marriage was dissolved and by consent it was ordered that the husband transfer to the wife his interest in the property. Before the decree became absolute, the wife died. In a way that was unclear to the court, the transfer was registered. The Court of Appeal set aside the registration. The agreement and order were subject to the condition that the decree nisi became absolute, which it could not after the death of the wife. Hutley JA, with whom Glass JA agreed, stated a further reason for invalidity of the registration: it took place after the wife’s death. At 205 his Honour said:

“There is a further objection to the validity of the effectiveness of the registration. At the time it took place, Mrs McVey was dead. At common law, a person dead at the time of the execution of a deed could take no benefit under it: In Re Corbishley’s Trusts (1980) 14 Ch D 846; Re Tilt; Lampet v Kennedy (1896) 74 LT 163. Registration created an interest which was in the name of Mrs McVey in the same way as a registered forged dealing can create an indefeasible title: Frazer v Walker [1967] 1 AC 569; Breskvar v Wall (1971) 126 CLR 376. As there have been no dealings with the title since registration, the appellant is entitled to have the instrument treated as void and the register rectified in exactly the same way as any other voidable transfer can be set aside. It is exactly as though this was a deed which came into force after Mrs McVey’s death. On this ground, also, the appellant is entitled to have the transfer to Mrs McVey set aside.”

20 That observation must be understood in the context that there had been no handing over to the wife of the memorandum of transfer and certificate of title. They were held in escrow. Hence the analogy to a deed that does not take effect until delivery.

21 Priestley JA took the view that the agreement had merged in the decree nisi which ought to be construed as an order to transfer if the decree nisi became absolute which it did not and registration of the transfer could not affect the position in equity between the husband and the estate of his wife.

22 In Westaway at 14,792 Young J, having cited the above passage from Hutley JA, went on to conclude that in the absence of delivery by the transferor prior to his death the memorandum of transfer could not cause the Registrar-General to alter the register:

“If a transfer or other dealing is in favour of a transferee who dies before registration, the transfer cannot be used to alter the register. The transfer or its underlying agreement may be the basis of an application by the executor to procure a fresh transfer or to the court to make a vesting order, but the document itself cannot compel the Registrar-General to confer a benefit on the transferee. I think this follows from McVey’s case. Likewise, when a transferor dies before registration, my view is that the transfer ceases to be effective to operate as a command to the Registrar-General to alter the register. It may be that the Registrar-General will register the document without knowing that there may be an indefeasible title and no-one who can upset that indefeasible title by personal action, but the document of itself cannot have that effect. Again, it may be that the document is part of a case which will show that there is a perfect gift, or a trust, or a contract, but again the document itself will not alone be sufficient to consummate the gift, trust or contract.
In the instant case, as I have earlier related, Transfer 85 was executed before death but the transferor made it clear that because the bank was not going to agree to its registration, he was going to hold it back. It was never unconditionally delivered to Ms Armata before Con Maglaras’ death. Her finding it in the joint bedroom after death is not sufficient warrant to give it any greater efficacy than it had at the date of Con Maglaras’ death. The document in my view has ceased to be an instrument which could cause the Registrar-General to alter the register.”

23 I do not understand his Honour to have concluded that in all situations where a transferor or transferee dies, a memorandum of transfer executed before death is ineffective to require registration of the transfer. His Honour was concerned, as was the Court of Appeal in McVey, with a situation in which the memorandum of transfer and certificate of title had not been delivered to the transferee prior to death. That is not the case in the instant circumstances.

24 In Davis v Willaims [2003] NSWCA 371, a solicitor prepared a memorandum of transfer of land from the Housing Commission to a husband and wife as joint tenants and a further memorandum of transfer by the husband of his interest to himself to sever the joint tenancy. A registration clerk employed by the solicitor altered the transfer to husband and wife from joint tenants to tenants in common and lodged that instrument for registration, withholding the other memorandum of transfer. A majority of the Court of Appeal held that the registration clerk did not commit fraud within the meaning of the Real Property Act 1900, s 42 to deny the husband’s indefeasibility of title as a tenant in common.

25 In dealing with a submission that the court might set aside the registration of the husband but allow the transfer to himself to be registered, the husband having since died, Young J expressed the view that upon the death of a transferor a memorandum of transfer ceased to be a warrant to register a transfer. At [209] his Honour said:

“In J A Westaway & Son Pty Ltd v Registrar-General (1996) 7 BPR 14,773, 14,792 I held, relying on the decision of this Court in McVey v Denis (1984) 55 ALR 201, 205 that where a transferor dies, the warrant to the Registrar-General to alter the register constituted by that transfer ceases to have effect. This has, as I understand it, been considered to be the law in this State for many years.”

26 With that view, Hodgson JA agreed at [40]. Those observations were obiter dicta.

27 In Tierney v Halfpenny (1883) 9 VLR (Eq) 152, a testator had signed an instrument of transfer of two pieces of land in favour of three transferees. It was signed by only one of the transferees. It was argued that the transfer not having been registered under the Torrens system statute prior to death and not having been signed by two transferees, it was insufficient to vest the property in the transferees. At 157, in the course of argument, Molesworth J said: “I think that the transfer is valid enough.“ No further discussion of the question took place.

28 In National Trustees, Executors and Agency Co of Australasia Ltd v Boyd (1926) 39 CLR 72, a deed entitled the deceased to grant any lease of a hotel for a term not exceeding seven years. She executed a lease for seven years and an agreement whereunder the lessee would, annually, surrender any lease and she would replace it with a new seven year lease. The last lease granted by her was not registered under the Transfer of Land Act 1915 (Vic) before her death. In a joint judgment, Knox CJ, Gavan Duffy and Rich JJ concluded that the power to grant a lease encompassed equitable terms as well as legal terms and the unregistered lease created an effective equitable term. At 81-82, their Honours said:

“…the real point of this argument, [which] is that, inasmuch as the Transfer of Land Act does not allow the creation of a legal term of years of more than three years’ duration without registration, the instrument can operate only as a contract and not as a lease binding the remaindermen. The simple answer is that it operates, not merely to create contractual rights and duties, but to create an equitable term of years and a tenure by estoppel between the lessor and her privies and the lessee. The creation of an equitable term of years is as much within the power as a legal term. Moreover, it may be said, the remaindermen are privies to the estoppel.”

29 In a separate judgment, Isaacs J stated that the principle in Barry v Heider (1914) 19 CLR 197 applied. In this respect his Honour agreed with the approach in the joint judgment that notwithstanding the provisions of a Torrens system statute, in that case the Real Property Act 1900, an unregistered transfer of land confers upon the transferee an equitable claim or right to the land assignable by any appropriate means. In arriving at this conclusion, his Honour expressed the obiter dictum that the death of transferee or transferor does not render a memorandum of transfer ineffective at 84:

“As to the first objection, the power was, in my opinion, for the exercise by the execution of the instrument by Mary Sabelberg and the lessee. Registration is not the act of a party: it is the act of the State. Application to register may be made by any party interested, and the death of either or both the parties to a transfer is no necessary obstacle to registration ( Tierney v Halfpenny ).”

30 Higgins J dissented, construing the power to grant a lease as limited to a legal lease and not extending to the grant of an equitable term. His Honour did not deal with the issue of registration after death.

31 In Davis at [210] to [211], Young J mentioned Tierney and the observation of Isaacs J in Boyd, noted that Boyd had apparently not been cited to the Court of Appeal in McVey and concluded that he should continue to follow McVey and uphold what he had said in Westaway.

32 The issue has been discussed elsewhere, but there does not appear to be any case directly on point. The authorities in which observations as to registration after death occur are usually concerned with imperfect gifts. In Brunker v Perpetual Trustee Co (Ltd) (1937) 57 CLR 555, the deceased executed a memorandum of transfer of mortgaged land shortly before his death. The transfer did not mention the mortgage. The document was prepared by a law stationer and was handed to him after execution without any precise instructions. It was held that the transferee had no right to obtain an interest on registration because the memorandum of transfer had not been delivered to her. Two of the judges also said that the transfer was not a registrable instrument without the endorsement of a notification of the mortgage as required by the Real Property Act 1900, s 46.

33 In Anning v Anning (1907) 4 CLR 1049, the court held a deed of gift made by a deceased to be ineffective. The assignment of chattels in it required registration under the Bills of Sale Act 1891 (Qld) and the mortgage secured on land in New South Wales could be transferred only in the mode prescribed by the Real Property Act 1900. But the view was expressed that the assignment of any remaining chattels could be effected by registration after death.

34 In Currey v Federal Building Society (1929) 42 CLR 421, a transfer of land to the building society was registered although the Registrar of Titles had notice that the transfer was by way of security only. The former owner then sold her interest in the land to third parties, the transaction being effected by an unregistered transfer by the building society to itself at the direction of the former owner and the third parties. This process was repeated when the third parties sold their interest to another party. When she paid out the mortgage, the building society lodged for registration a memorandum of transfer from it to her. The Registrar of Titles insisted upon registration of the intervening transfers. It was held that the transfer of an unencumbered interest in the land from registered proprietor to transferee was registrable without the intervening transfers.

35 In Brunker, Latham CJ dealt with a contention that any authority to procure registration of the memorandum of transfer was revoked by death. Having pointed to observations with respect to registration after death in Anning, the Chief Justice concluded that a registrable transfer was not rendered ineffective by the death of the transferor. In 57 CLR at 584-585 his Honour said:

“When a transferee makes such an application he does not act in any way as the agent of or on behalf of the transferor - he acts on his own account. The production of an instrument transferring the land to him is all the evidence which the Registrar-General’s office is entitled to require of his right to become registered as the proprietor. These considerations answer the contention on behalf of the plaintiff that the “authority” to procure registration was revoked by Sellar’s death. In my opinion, no real question of authority arises at all. The idea of authority is irrelevant to the position of the transferee when the transferee asks the Registrar-General for registration. It may be observed that in Anning v Anning where a person executed a deed of gift relating to chattels in possession and died soon afterwards, it was clear that the assignment of the chattels in possession fell under the Bills of Sale Act 1891 of Queensland so that it was ineffectual unless registered. But Isaacs J definitely held (4 CLR at 1076), and semble per Griffith CJ (4 CLR at 1062), that the deed could be made effectual by registration after the death of the assignee as to such of the chattels as remained in specie. The deed of gift also covered a mortgage debt secured on land in New South Wales which could only be transferred by the method prescribed by the Real Property Act 1900 (NSW). It was held that the deed, not being in the prescribed form, was not effectual to convey the property in the mortgage debt, but it was not suggested in any of the judgments of the court that the death of the transferor determined some authority which had to continue to exist before a transfer could be registered. The practice of the profession, I understand, has never been based upon the view that, whenever a man signs a transfer and dies before the transfer is registered, it is necessary to secure re-execution of the transfer by his personal representatives. In Tierney v Halfpenny , Molesworth J held that an unregistered voluntary transfer could be effectively registered after the death of the transferor (see also National Trustees, Executors and Agency Co of Australasia Ltd v Boyd) . The principle enunciated by Knox CJ, Rich and Dixon JJ in Currey v Federal Building Society (1929) 42 CLR 421 at 431) is applicable to this case: the defendants’ “right to be registered as proprietor arises from the fact that she is the transferee of the registered proprietor under a proper instrument, and it depends upon nothing else. This right might be intercepted by extrinsic facts if they showed that the transfer was an impropriety but it is nothing but a confusion to treat facts which negative impropriety as part of the transferee’s title to registration”.”

36 In Brunker 57 CLR at 586-587, Latham CJ referred to O'Regan v Commissioner of Stamp Duties (1921) St R Qd 283 as supporting his conclusion and argued against an apparent contrary view by Isaacs J in Anning 4 CLR at 1069.

37 The question in O’Regan was whether succession duty was payable on gifts made less than two years before death. The deceased had executed memoranda of transfer and delivered them to the transferee’s solicitors more than two years before his death but they were registered within the two year period. The Full Court in (1921) St R Qd at 295 held that the transferees obtained on the date of execution and delivery of the transfers a statutory right or claim to registration.

38 It should be noted that the Real Property Act of 1877 (Qld), s 48 provided that every instrument signed by a proprietor of registered land should, until registered, be deemed to confer upon the person intended to take under the instrument or other persons claiming through or under him a right or claim to registration. But the section was said by Barwick CJ in Breskvar v Wall (1971) 126 CLR 376 at 388 to add little. Without the section, presentation of a memorandum of transfer and duplicate certificate of title would have entitled the transferee to registration.

39 In Cope v Keene (1968) 118 CLR 1, a memorandum of transfer executed by a deceased was signed by one transferee, taken away to obtain the signature of the other and returned to the deceased who gave it to his solicitor with instructions to register it. He died before registration was effected. At 6-7, after referring to Anning and Brunker, Kitto J said that in order to complete the gift to the transferees, it was necessary to deliver the memorandum of transfer to them to put them in the position of seeking registration:

“To complete the gift the testator had to do all that, according to the nature of the property as land under the provisions of the Real Property Act, was necessary to be done by him in order to transfer the property: Anning v Anning (1907) 4 CLR 1049. What this involved is shown by the judgment of Dixon J in Brunker v Perpetual Trustee Co (Ltd) (1937) 57 CLR 555 at 599-605. It involved at least that the memorandum of transfer should be delivered to the appellants by or on behalf of the testator with the intention on his part of there and then parting with it and with the property in it so that the appellants should be entitled as against him to cause the instrument to be registered. It probably involved also that the appellants should be enabled to produce or require the production of the certificate of title to the Registrar-General to have a memorial of the transfer entered upon it.
The necessary delivery of the memorandum of transfer was not in fact made.”

40 In Corin v Patton (1989-1990) 169 CLR 540 a joint tenant of land registered under the Real Property Act 1900 executed a memorandum of transfer of her interest to a trustee to be held in trust for her. The certificate of title was held by a mortgagee. She made no arrangements for the certificate of title to be handed to the trustee and died before registration. It was held that she had not severed the joint tenancy nor had she transferred any interest in the land to the trustee. Brennan J alone discussed registration after death. At 566 he referred to the authorities and said, in passing, that the better view was that a memorandum of transfer in registrable form executed and delivered to a proposed transferee could be registered after the death of the transferor:

“The argument that Mr Corin acquired an equitable estate or interest in the land when Mrs Patton delivered the instrument of transfer rests on the proposition that the instrument of transfer was registrable and could be registered without any further act on Mrs Patton’s part. The weight of authority supports the view that a transfer executed by a registered proprietor in registrable form and delivered to a proposed transferee may be registered after the death of the transferor ( Tierney v Halfpenny (1883) 9 VLR (Eq) 152 and National Trustees, Executors and Agency Co of Australasia Ltd v Boyd (1926) 39 CLR 72 at 84; Brunker v Perpetual Trustee Co Ltd (1937) 57 CLR 555 at 585 although, in Cope v Keene (1968) 118 CLR 1 at 7, Kitto J (with whom McTiernan J agreed) thought that a memorandum of transfer executed by the registered proprietor ceased to be a registrable instrument on the death of the registered proprietor. For reasons which will appear, it is not necessary to determine this question.”

41 In my view, judicial consideration of the question distinguishes between the situation in which the memorandum of transfer and the certificate of title have been delivered to the transferee who is thus armed with all that is necessary to obtain registration and those situations in which delivery has not taken place. In Cope, Kitto J concluded that the transferees had no right to registration because of a lack of delivery. There was no delivery in McVey, in Westaway, in Brunker, in Anning, in Cope or in Corin. In Currey and in O’Regan there was.

42 In the formative years of academic analysis of Torrens system legislation and thereafter, commentators have supported the view that the death of transferor or transferee before registration does not render the memorandum of transfer ineffectual where the transferor has provided the transferee with the certificate of title or made it available to the transferee. In Hogg, The Australian Torrens System, William Clowes & Sons Ltd, London, 1905 at 790-791 the author referred to Tierney, In re Skinner (1894) 6 QLJ 68, Finucane v Registrar of Titles (1902) St R Qd 75 and Wainewright v Elwell (1816) 1 Madd 627 (56 ER 231) and the express provision of the South Australian legislation validating registration subsequent to death of a transferor and contended that the death of a transferor should not invalidate a transfer:

“On principle it would seem that, apart from any such express enactment, the death of the person who executes the transfer is not in itself to be regarded as a revocation of the authority, impliedly conferred on the transferee by such execution, to have himself placed on the register as proprietor.”

43 In Skinner, a registered proprietor executed a will devising land to trustees. He subsequently executed a memorandum of transfer of the land by way of gift to his son. The memorandum remained in a draw in the testator’s house and was not registered. It was held that the gift was incomplete and the trustees were entitled to registration.

44 In Finucane it was held that a settlement of land under the Real Property Act of 1861 (Qld) not being in the prescribed form and incapable of registration, did not pass any estate or interest at law or in equity in the land.

45 And in Wainewright it was held that a testatrix took copyhold estates under her father’s will as a volunteer and not as heir at law and, not having been admitted, could not pass by her will the legal estate in the copyhold and the heir at law could not be forced to surrender.

46 In Kerr, The Principles of the Australian Land Titles (Torrens) System, Law Book Co, Sydney, 1927 at [587] it was stated, upon the authority of Tierney that a transfer executed by the transferor but not registered before death could nevertheless be registered after death when it would divest the estate of the transferor.

47 Francis, The Law and Practice Relating to Torrens Title in Australasia, Butterworths, Sydney, 1972 at 250 cited Tierney and Boyd as authority for the proposition that a transfer might be registered, notwithstanding the death of the transferor or of the transferee after its execution but before its presentation for registration.

48 In Macedo v Stroud [1922] 2 AC 330 the owner of land in Trinidad subject to Torrens system legislation, executed a memorandum of transfer in favour of his daughter by way of gift and delivered it to his solicitor with instructions not to register it. The Privy Council held that the memorandum, not having been registered nor delivered to the donee for that purpose, there was an imperfect gift to which equity would give no effect. That case, Tierney, Boyd and Anning were cited in Woodman and Grimes, Baalman The Torrens System in New South Wales, 2nd ed, Law Book Co, Sydney, 1974 at 235 for the proposition that the death of a transferor after having executed the transfer is not an obstacle to registration.

49 Whalan, The Torrens System in Australia, Law Book Co, 1982 at 154-155 propounds the view that the death of transferor or transferee before registration is not an obstacle to subsequent registration:

“If a transferor dies after the execution of a memorandum of transfer, this does not prevent its registration ( Tierney v Halfpenny (1883) 9 VLR (Eq) 152, The National Trustees, Executors and Agency Co of Australasia Ltd v Boyd (1926) 39 CLR 72). The reason for the principle is stated by Isaacs J in The National Trustees, Executors and Agency Co of Australasia Ltd v Boyd (1926) 39 CLR 72, 84 to be that “[r]egistration is not the act of the party: it is the act of the State. Application to register may be made by any party interested, and the death of either or both of the parties to a transfer is no necessary obstacle to registration”.
It could perhaps be argued that, as the Acts provide that no instrument is effectual to pass any estate or interest in land under the Act until registration (ACT s 57, NSW s 41, NT s 67, Qld s 43, SA s 67, Tas s 49, Vic s 40, WA s 58), the death of the transferor before the completion of registration would render the instrument a nullity. Serious practical difficulties could arise if this were the position. It is submitted that one reason why this is not so is that, although no statutory estate passes until registration of an instrument, rights are created in equity, and the act of registration merely completes the legal title in which the equitable rights, which exist inter partes, merge.
Although only Tasmania makes it specific, it is suggested that the converse also applies; that is, if a transferee dies before registration, the transfer can be registered and the registration will be quite valid (Tas s 43).”

50 There are arguments on both sides. Since the Real Property Act 1900, s 41(1) requires registration of a dealing before an effectual passing of legal title, it may be argued that upon death, there is no registered proprietor in respect of whom the dealing may be registered. On the other hand, a registered proprietor who provides a transferee with a duly executed memorandum of transfer in registrable form and the certificate of title or access to it for the purpose of registration, arms the transferee with all that is needed to effect registration and the supervening death of the registered proprietor should not affect the statutory act of recording the dealing which transfers legal title but merges the pre-existing equitable title created as a result of the dealing.

51 When a transferee, armed with a registrable memorandum of transfer and appropriate access to the certificate of title dies, the legal personal representative must give the instructions to lodge the instrument for registration. But if all the Registrar-General needs to carry out his statutory function is the instrument and the certificate of title, there is nothing on the face of the legislation that requires the added step of a new memorandum of transfer in favour of the personal representative. The transferee had all that was necessary to perfect the equitable interest. There is no need for a substituted conveyance if the personal representative is armed with the same documents upon which the Registrar-General may act.

52 The opposing view creates significant practical problems. In the first place the Registrar-General may not know that a transferor or transferee has died and may register the dealing. More importantly, settlement of conveyances occurs before registration and on the basis that instruments in registrable form obtained on settlement will, in due course, be lodged for registration. Mortgagees part with funds to purchasers to enable them to settle transfers to them upon securing the certificate of title and a mortgage by the purchaser in registrable form. If the death of the transferor thereafter renders the memorandum of transfer ineffective, the mortgagee is at risk because the mortgage given by the purchaser cannot be registered before registration of the transfer and there may be no impetus upon the personal representative of a paid-out vendor to substitute a new conveyance.

53 In my view it is no answer to say that the equitable title held by the purchaser would entitle a court to make a vesting order. Commercial activity should not be put through the unnecessary extra burden of such court proceedings.

54 In my view, I am not bound by authority to conclude that the memorandum of transfer in this case became ineffective upon the death of Mr and Mrs Holliday senior. They had armed Mr Colin Lord with an instrument in registrable form and the certificate of title and they took no further interest in the land. In my view, the memorandum of transfer remains an effective document and the Registrar-General is not precluded from registering the transfer by reason of the deaths of the registered proprietors.

The equitable title of the purchaser

55 It follows from what has been said that, subject to any competing equities, Mr Colin Lord obtained equitable title to the property upon payment for value and the arming of him with all that was necessary to perfect legal title. The issue requires no further analysis.

Estoppel against Mrs Watt

56 It was argued that Mrs Watt was a privy of Mr and Mrs Holliday senior, they put Mr Colin Lord into possession, took no further interest in the property and thereby induced him to act upon their representation that title to the property would pass to him. He acted to his detriment in that he expended moneys in refurbishing the property on two occasions.

57 In light of my view as to the registrability of the memorandum of transfer and my view with respect to equitable title, it is not necessary to deal with this issue.

Possessory title

58 The Real Property Act 1900, s 45D(1) provided that where a person was in possession of a whole parcel of land, the title of the registered proprietor would have been extinguished as against the person in possession under statutes of limitation and the land was comprised in an ordinary folio of the register the person in possession might apply to the Registrar-General to be recorded as the proprietor of the estate or interest in the land. It was under this provision that Mr Colin Lord made his application. If satisfied with the application the Registrar-General might grant a possessory application under s 45E(1).

59 I have found that Mr Colin Lord is entitled to registration of the memorandum of transfer subject to any competing equities of Mrs Watt. It is only if a competing equity denied Mr Colin Lord entitlement to persist with his application for registration of the transfer that any question of his entitlement to possessory title would arise. For reasons which appear below, I am of the view that Mr Colin Lord is not denied his right to persist with his application for registration and the question of possessory title does not arise.

Unconscionable conduct

60 Mrs Watt submitted that the agreement for sale between Mr and Mrs Holliday senior and Mr Colin Lord should be aside because they were at a serious disadvantage to him and he took advantage of them (Blomley v Ryan (1956) 99 CLR 362 at 405, 415). It was submitted that the age of Mr and Mrs Holliday senior, their apparent lack of experience in investments in real estate, the lack of independent advice to them and the disparity of the purchase price to the value of the property lead to this conclusion.

61 In the absence of direct evidence that advantage was taken of the relative inferiority of the Holliday seniors, I was invited to draw inferences. All that is known of Mr and Mrs Holliday senior is that they were in their seventies and the property was, apparently, their only investment in real estate.

62 Valuation evidence was tendered to the effect that the property was worth £2,000 at the time of purchase but that evidence was met by further expert evidence that the mortgage debt without reduction would have capitalised to in excess of £2,000 by April 1958. The solicitor retained by Mr Colin Lord to conduct the conveyance was clearly concerned at the outstanding registered mortgage. Hence his drafting of the statutory declaration for execution by Mr Holliday senior. With the possibility that a claim might be made for an amount in excess of £2,000, I am not satisfied that there was a disparity between the purchase price and the value of the land. It was an encumbered property and the encumbrance had the potential to exceed its unencumbered value.

63 The Imperial Real Estate (Limitation of Actions) Act, 1833 (8 Wm IV, No 3 & 4) was in force in New South Wales in April 1958. Section 40 provided that no action to recover any sum of money secured by mortgage charged on land at law or in equity could be brought after 20 years from the accrual of the right to receive the money unless in the meantime some part of the principal or interest was paid or some acknowledgment of the right to receive the money was given in writing. Section 2 provided that no person should make entry or bring an action to recover any land after 20 years from the accrual of the right and s 24 provided that no person claiming any land in equity should bring any suit to recover the land after any period applicable to a legal interest. It was submitted that the mortgage debt was statute barred in April 1958 with the consequence that the property had an unencumbered value greatly in disparity to the purchase price and that disparity was sufficient to ground a finding of unconscionability (Hart v O’Connor [1985] 1 AC 1000 at 1018).

64 But those provisions do not debar a mortgagee exercising a power of sale under the mortgage (and this mortgage contained such a power). The exercise of that power is neither an action to recover the land for the purposes of the Real Estate (Limitation of Actions) Act, 1833, s 2 and s 24 nor an action to recover any sum of money secured by mortgage for the purposes of s 40. In Re The Australian Depositand Mortgage Bank Ltd (1907) VLR 348, the Registrar refused to register a transfer on mortgagee sale after the expiration of the 20 year period specified in the equivalent to s 40. It was held that the reference to other proceedings was to be read ejusdem generis with action or suit and did not include the exercise of a mortgagee’s power of sale (see, also Peacocke & Peacocke v Auckland District Land Registrar (1901) 20 NZLR 81, Campbell v District Land Registrar, Auckland (1909) 28 NZLR 816 at 826).

65 If the mortgagee could exercise a power of sale, the value of the encumbrance was a real issue.

66 There is no suggestion that Mr Colin Lord was aware of the limitation periods. He was concerned by the existence of the mortgage as was his solicitor who drafted the statutory declaration for Mr Holliday senior to sign. In my view no basis for Mr Colin Lord or his solicitor insisting that Mr and Mrs Holliday senior should seek separate legal advice has been made out.

67 In my judgment, Mrs Watt has failed to make out a case of unconscionability on the part of Mr Colin Lord.

Laches

68 Laches is a defence to an equitable claim if a defendant can demonstrate that the plaintiff, by delaying the institution of proceedings, has acquiesced in the defendant’s conduct or caused the defendant to alter position in reasonable reliance upon the plaintiff’s acceptance of the status quo or otherwise permitted a situation to arise that it would be unjust to disturb (Lindsay Petroleum Co v Hurd (1874) LR 5 PC 221 at 239-240).

69 The passage of some 43 years before Mr Colin Lord lodged the memorandum of transfer for registration has given rise to difficulty in the prosecution of her case by Mrs Watt. A forensic examination of the memorandum of transfer was conducted but because of the paucity of examples of other signatures of Mr and Mrs Holliday senior, no conclusion as to the authenticity of the signatures on the memorandum of transfer was determined. However, the forensic expert recommended a non-invasive infrared examination of the instrument to determine whether more than one writing ink was used to sign the names on the document. That recommended course was not undertaken by Mrs Watt.

70 The short answer to this issue is that Mr Colin Lord is the defendant to Mrs Watt’s claim for a declaration that the memorandum of transfer is no longer effective to entitle registration of the transfer, a declaration that the property is held by her and an order vesting the property in her. In defence of those proceedings, Mr Colin Lord seeks no equitable relief. True it is that he has sought by way of cross claim a declaration that he is absolutely entitled in equity to the property, a declaration that Mrs Watt has no right, title or interest in the property and orders that Mrs Holliday junior’s caveat be withdrawn and an estate in fee simple be vested in him. But he needs relief only in relation to the caveat if Mrs Watt fails to establish her claim.

71 Furthermore, there was no conduct on the part of Mrs Watt or her predecessors in title in which Mr Colin Lord acquiesced. Nor did any of them alter their position in reliance on Mr Colin Lord’s acceptance of any situation created by them. Mr and Mrs Holliday senior quit the property upon execution of the memorandum of transfer and neither they nor their successors in title asserted any rights with respect to the property until Mrs Holliday junior lodged her caveat. Nor was the property abandoned by Mr Colin Lord. On two occasions he effected improvements to the property and he caused it to be occupied. At the time of trial a rent-paying tenant was in occupation. The fact that Mr Colin Lord allowed the status quo to remain – Mr and Mrs Holliday senior remained the registered proprietors - did not cause any person to alter their position in reliance upon that circumstance.

72 In my view, Mrs Watt’s raising of laches in her defence to the cross claim was misconceived.

Limitation period

73 In her defence to the cross claim, Mrs Watt raised the Limitation Act 1969. A similar analysis of the defence of laches applies to this defence. In Mrs Watt’s action, Mr Colin Lord asserted no cause of action to which the statute might apply. If Mrs Watt is unsuccessful in her claim, Mr Colin Lord does not need the relief sought in his cross claim, save for the removal of the caveat to which the statute does not apply. He does not ground his entitlement to the declarations in contract for the contract with Mr and Mrs Holliday senior was fully executed.

74 The Limitation Act 1969, s 47(1)(c) provided that an action or cause of action to recover trust property against a trustee or any other person was not maintainable after the expiration of 12 years from the accrual of the cause of action. But Mr Colin Lord’s claim to declarations does not fall within this provision. He has dominion over the certificate of title and the memorandum of transfer. Since 1958 he has asserted, without challenge, entitlement to the property. In the absence of an adverse claim, he has no cause of action against any person for recovery of the property.

Further assurances

75 Since I am of the view that the Registrar-General may register the transfer, Mr Colin Lord has no need to call upon further assurances.

76 The covenant as to further assurances implied by the Conveyancing Act 1919, s 78(1) by s 69 does not apply to land under the Real Property Act 1900. Section 75 of the Real Property Act 1900 provided that in every instrument creating or transferring any estate or interest in land under the provisions of the Act there should be implied a covenant for further assurances. It has been held that the section only operates from the time of registration (West v Read (1913) 13 SR (NSW) 575). Had I concluded that the Registrar-General was not entitled to register the memorandum of transfer, I would have made a vesting order. I note Mr Colin Lord’s formal submission that West was wrongly decided.

Conclusion

77 I will dismiss Mrs Watt’s further amended statement of claim. I will hear the parties on the appropriateness of granting any relief under the amended cross claim and, if so, the nature of that relief. I will hear the parties on costs. I direct the parties to bring in short minutes of orders reflecting these reasons.

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