partner absolutely entitled to partnership land-Outstanding interests-Endorse- ment of notification on certificates of title-Consent of interested persons-Real SYDNEY,

Property Act 1900 (N.S.W.) (No. 25 of 1900), secs. 94*, 95 (4)*, 101.* April 23, 24;

A partnership agreement between a father and son provided, inter alia, that upon the death of either partner the survivor should become absolutely entitled to the partnership assets, and should be liable for all the partnership debts and obligations, subject to the payment of a specified weekly sum to the widow of the deceased partner, and of a specified lump sum to his legal representative within five years from the date of his death. Certain lands under the Real Property Act 1900 (N.S.W.), forming part of the partnership assets, were not to be sold during the lifetime of the wives of the partners without their consent. The father was the registered proprietor of one parcel of land, and both partners * The Real Property Act 1900

the Registrar-General (N.S.W.) provides By sec. 94: " (1)

settlement under which such applicant Executors or administrators, or other

claims, or such evidence of his title as person claiming any estate of freehold in

the applicant is able to produce the land of a deceased proprietor, or

(4) Such application shall state the any person having a power of disposi-

nature of every estate or interest held tion over the fee simple of any such

by other persons at law or in equity in land, may apply

such land within the applicant's know- Registrar-General in the form of the Seventeenth Schedule hereto, to be

interests have been disclosed by or registered as proprietor of such estate. (2) Such applicant shall deposit with

deposited under this Act, or have been

51 CLR 301

were registered as proprietors as tenants in common of the other parcels. The father died in 1927. In 1933 the Registrar-General refused to register the son as proprietor of the lands by transmission without first endorsing on the relative certificates of title a notification of the abovementioned provisions of the agreement, although the son's application was consented to by the father's legal representative, and also by the wives of the partners, who agreed to the omission of any notification in respect of the agreement. There were not any partnership debts unpaid, but no part of the specified lump sum had been paid.

Held, by Rich and Evatt JJ., without deciding whether an application by way of transmission was appropriate herein, that the Registrar-General ought not to enter upon any certificate of title issued to the son a notification referring to the provisions of the agreement.

Held, by Starke J., that the son's application to be registered as proprietor of the lands as on a transmission was misconceived and should be dismissed.

Decision of the Supreme Court of New South Wales (Davidson J.): In re olfson, (1933) 51 W.N. (N.S.W.) 33, reversed.

APPEAL…

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.

Continue reading Wolfson v Registrar-General (NSW)

Details

AGLC: Wolfson v Registrar-General (NSW) [1934] HCA 29
Case: [1934] HCA 29
Decision Date: 7 August 1934

CaseChat Overview and Summary

In *Wolfson v Registrar-General (NSW)*, the appellant, Jacob Wolfson, sought to be registered as the proprietor of certain lands under the *Real Property Act 1900* (NSW) by way of transmission following the death of his father, Harris Wolfson. The dispute arose when the Registrar-General refused to register the transmission without endorsing the certificates of title with a notification referring to specific provisions of a partnership agreement between the father and son. The agreement stipulated that the surviving partner would become absolutely entitled to partnership assets, including the lands in question, subject to certain payments to the deceased partner's widow and legal representative, and that the lands were not to be sold during the lifetime of the partners' wives without their consent.

The primary legal issue before the High Court was whether the Registrar-General was justified in refusing to register the transmission of the lands to Jacob Wolfson without endorsing the certificates of title with a notification of the provisions of the partnership agreement. This involved determining whether these provisions created equitable interests or encumbrances on the land that necessitated such a notification, and whether the consents obtained from the deceased partner's legal representative and wives were sufficient to obviate the need for such a notification.

Rich and Evatt JJ. held that the Registrar-General was not entitled to endorse the certificates of title with a notification referring to the partnership agreement provisions. They reasoned that while the agreement might create equitable rights, the policy of the *Real Property Act* is to keep trusts off the register, and such rights should be protected by caveat rather than notification. They found that the consents obtained from the relevant parties provided sufficient warrant for the Registrar-General to ignore any potential lien or encumbrance. Starke J., however, concluded that the application by way of transmission was misconceived and should be dismissed, without definitively ruling on the Registrar-General's notification requirement.

The High Court allowed the appeal, setting aside the order of the Supreme Court. It was declared that the Registrar-General ought not to enter a notification referring to the provisions of the partnership agreement on any certificate of title issued to the appellant. The respondent was ordered to pay the costs in the Supreme Court and of the appeal.

Orders