Whittem v Arcadi; Nield v Whittem - [1993] HCATrans 72

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A20 of 1992
B e t w e e n -
BRUCE CORBETT WHITTEM

Applicant

and
ANTONIO ARCADI

Respondent

Office of the Registry

Adelaide No A21 of 1992
B e t w e e n -
HUGH COWELL NIELD

Applicant

and
BRUCE CORBETT WHITTEM

Respondent

Applications for special leave

to appeal

DEANE J
DAWSON J

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 12 MARCH 1993, AT 10.32 AM

Whittem

12/3/93

MR R.J. WHITINGTON: If it please the Court, I appear for

the applicant in the first matter, and for the

respondent in the second matter. (instructed by
Grope Hamilton)

MR G.B. HEVEY:

If it please the Court, I appear for with my

learned friend, MRS. BOLZON, for the respondent.
(instructed by Michell Sillar Lynch & Meyer)

MR D.M.J. BENNETT, QC: If it please the Court, I appear

with my learned friend, MR S.H. MILAZZO, for the

applicant in the second matter. (instructed by
Piper Alderman)

DEANE J:

Am I correct Mr Whitington, that if the

application in Neild succeeds, you wish to press on
with an application for leave in Whittem v Arcadi?

MR WHITINGTON: That it so.

DEANE J: But if the application in Neild fails you do not

wish to press on with your application for leave?

MR WHITINGTON:

Yes, that would be so.

DEANE J: If you just give us a moment. In that case, the

convenient course would seem to be to hear Mr
Bennett in the second matter. Yes, Mr Bennett.

MR BENNETT: If the Court pleases.

DEANE J:

You seem to be travelling around the country

wherever our video camera goes, Mr Bennett.

MR BENNETT:

Technology is wonderful when it enables one to

go from Sydney to Adelaide or Brisbane to appear

before Your Honours in Canberra. Your Honours,
when this Court decided Breskvar v Wall in 1971, it
resolved a long-standing controversy at law schools
and among legal academics and practitioners between
the deferred indefeasibility school and the

absolute indefeasibility school.
It resolved that dispute for six of the eight
jurisdictions in Australia because the provisions of the Real Property Act in Queensland which were
involved in that case were similar to those in all
the other States except South Australia and in the Australian Capital Territory. South Australia and the Northern Territory, however, have a totally
different form of a section concerning
indefeasibility and the issue which arose in this
case is whether there is absolute or deferred
indefeasibility where there is a forged or void
instrument under that section.

Whittem

12/3/93

That is an issue which has been considered by

four judges in this,State - two of the Supreme
Court and two of the Federal Court - and they have

divided two judges to two on that issue. The
point is a classic patent ambiguity. If
Your Honours…

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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Details

Case: [1993] HCATrans 72
Decision Date

CaseChat Overview and Summary

The proceedings before the High Court of Australia concerned applications for special leave to appeal in two matters: *Whittem v Arcadi* and *Nield v Whittem*. The applicant in the first matter was Bruce Corbett Whittem, and the applicant in the second matter was represented by Mr D.M.J. Bennett, QC. The dispute centred on the interpretation of provisions relating to indefeasibility of title under the Real Property Act, specifically in the context of forged or void instruments.

The central legal issue before the Court was whether the Real Property Act in South Australia, and by extension the Northern Territory, provided for deferred indefeasibility or absolute indefeasibility in circumstances where a certificate of title or instrument of title was obtained by forgery or was otherwise void. This question arose due to a perceived ambiguity in the relevant statutory provisions, which differed from those considered in the High Court's earlier decision in *Breskvar v Wall*.

Mr Bennett, appearing for the applicant in the second matter, argued that the South Australian and Northern Territory provisions, unlike those in most other Australian jurisdictions, created a "classic patent ambiguity" regarding the nature of indefeasibility. He referred to section 69 of the Real Property Act, highlighting subsections (I) and (II). Subsection (I) addresses fraud and provides an exception for bona fide purchasers, while subsection (II) states that a certificate or instrument of title obtained by forgery or through an insufficient power of attorney, or from a person under a legal disability, shall be void. The Court was to determine how this voidness interacted with the principle of indefeasibility.

Orders