Focus land law [Fourth edition.] 9780409336948, 0409336947

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FOCUS Land Law Fourth edition

Eileen Webb BA, LLB (Hons), LLM (QUT), Dip Ed (UQ), PhD (UWA) Professor, Faculty of Law, University of Western Australia

Margaret Anne Stephenson BA, LLB, LLM (UQ) Associate Professor, TC Beirne School of Law, The University of Queensland

LexisNexis Butterworths Australia 2015

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National Library of Australia Cataloguing-in-Publication entry Author: Title: Edition: ISBN: Series: Notes: Subjects: Other Authors/Contributors: Dewey Number:

Webb, Eileen. Land Law. 4th edition. 9780409336931 (pbk). 9780409336948 (ebk). Focus. Includes index. Land tenure — Law and legislation — Australia. Stephenson, Margaret Anne. 346.940432.

© 2015 Reed International Books Australia Pty Limited trading as LexisNexis. First edition 1997; second edition 2002 (Butterworths Tutorial Series — Land Law); third edition 2009; reprinted 2013. This book is copyright. Except as permitted under the Copyright Act 1968 (Cth), no part of this publication may be reproduced by any process, electronic or otherwise, without the specific writtenpermission of the copyright owner. Neither may information be stored electronically in anyform whatsoever without such permission. Inquiries should be addressed to the publishers. Typeset in ITC Slimbach Std and Helvetica Neue.

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Preface Focus — Land Law builds on the first and second editions of the Butterworths Tutorial Series — Land Law. The objective of this book is to provide a concise overview of the basic principles of land law. The book has been substantially rewritten and students will notice significant changes in the fourth edition. Having said that, students will find the checklists, reminders and worked examples of answers to problems remain. There are 22 chapters, covering subjects which the authors think form a logical order in a land law or property law course. References are made to major real property textbooks, journal articles and reports. The book is written for students in all Australian law schools and an attempt has been made to refer to cases and legislation in all states and territories. The authors thank Serena Cubie and Rochelle Ransom of LexisNexis for their patience during the writing and publishing process. Eileen wishes to thank Ben Travia for his invaluable research assistance and Robyn Honey of the School of Law, Murdoch University for her friendship and support (and much-appreciated advice regarding perpetuities). As always, Eileen dedicates her chapters to Tony, Tim, Madi and, of course, the menagerie. Margaret is appreciative of the research assistance from Jordan English and Ailsa McKeon in updating this book, and especially thanks her family for their encouragement and support. Responsibility for the preparation, writing and indexing of the fourth edition of the book was divided in the following manner: Eileen was responsible for Chapters 5, 8, 12–15 and 18–22, and Margaret for Chapters 1–4, 6, 7, 9–11, 16 and 17. Our work reflects the law as at 30 June 2014 with some ensuing developments incorporated where possible.

Eileen Webb Margaret Stephenson September 2014

Table of Cases References are to paragraphs A A&T Promotions Pty Ltd v Ikin [2009] QSC 119 …. 21.48 Abela v Public Trustee [1983] 1 NSWLR 308 …. 11.30, 11.47 Abigail v Lapin (1934) 51 CLR 58; [1934] AC 491 …. 15.17, 15.18, 15.23, 15.26, 16.26, 21.48 Abjornson v Urban Newspapers Pty Ltd [1989] WAR 191 …. 16.18 Abrahams v Shaw (1969) 72 SR (NSW) 225 …. 17.9 ACCC v Samton Holdings Pty Ltd [2000] FCA 1725 …. 18.67 —v— [2002] FCA 62 …. 18.67 Acegroup Enterprises Pty Ltd v Sheehan [2010] WASC 118 …. 3.41 Ackroyd v Smith (1850) 138 ER 68 …. 19.15 Adamson v Hayes (1973) 130 CLR 276 …. 5.22, 5.24 AF Textile Printers Pty Ltd v Thalut Nominees Pty Ltd (2007) 17 VR 334; [2007] VSC 73 …. 17.23, 17.24 AG Securities Ltd v Vaughan [1990] 1 AC 417 …. 16.36 AGC v De Jager [1984] VR 483 …. 13.13, 13.14, 13.63 Ahern v LA Wilkinson (Northern) Ltd [1929] St R Qd 66 …. 16.24 Akiba v Commonwealth (2013) 250 CLR 209 …. 4.16, 4.30, 4.51, 4.53 —v Queensland (2010) 204 FCR …. 4.53 Alamdo Holdings Pty Ltd v Australian Window Furnishings (NSW) Pty Ltd [2004] ANZ ConvR 351 …. 17.12

—v— (2007) NSW ConvR 56-167 …. 17.13 Alcatel Australia Pty Ltd v Scarcella (1998) 44 NSWLR 349 …. 17.22, 17.33 Alderson v White (1858) 44 ER 924 …. 20.7 Alderton v The Prudential Assurance Co Ltd (1993) ATPR 41-230 …. 20.45 Aldin v Latimer Clark [1894] 2 Ch 437 …. 17.28 Alfred F Beckett Ltd v Lyons [1967] Ch 449 …. 19.63 Allen v Roughley (1955) 94 CLR 98 …. 3.46 Allen v Snyder [1977] 2 NSWLR 685 …. 5.22 Allen, Re; Faith v Allen [1953] Ch 810 …. 6.35 Allfox Building Pty Ltd v Bank of Melbourne Ltd (1992) NSW ConvR 55-634 …. 21.34, 21.40 Alliance Acceptance Co Ltd v Ellison (1986) 5 NSWLR 102 …. 20.9 Allied Irish Banks Ltd v Glynn [1973] IR 188 …. 15.14 Allphones Retail Pty Ltd v Hoy Mobile Pty Ltd [2009] FCAFC 85 …. 18.68 Alyawarr v Northern Territory (2005) 220 ALR 431; 145 FCR 442 …. 4.24, 4.34, 4.55 American Express International Banking Corp v Hurley [1985] 3 All ER 564 …. 21.17 Amodu Tijani v Southern Nigeria Secretary [1921] 2 AC 399 …. 4.21 Anchor Brewhouse Developments Ltd v Berkley House (Docklands Development) Ltd (1987) 284 EG 625 …. 2.4 Anderson v Anderson [1957] VR 317 …. 11.39 —v Bowles (1951) 84 CLR 310 …. 16.29 Antoniades v Villiers [1988] 3 All ER 1058 …. 16.36

ANZ Banking Corp v Bangadilly Pastoral Co Pty Ltd (1978) 139 CLR 195 …. 21.19, 21.25, 21.31, 21.32, 21.40 ANZ Banking Group Ltd v Barns (1994) 13 ACSR 592 …. 12.30 —v National Mutual Life Nominees Ltd (1977) 15 ALR 287 …. 15.15 Apple Fields Ltd v Damesh Holdings Ltd [2004] 1 NZLR 721 …. 21.11 Appleby v Myers (1867) LR 2 CP 651 …. 2.14 Apriaden Pty Ltd v Seacrest Pty Ltd (2005) 12 VR 319 …. 18.46, 18.47 Arcadi v Whittem (1992) 59 SASR 51 …. 12.30, 13.19 Argyle Art Centre Pty Ltd v Argyle Bond and Free Stores Co Pty Ltd [1976] 1 NSWLR 377 …. 18.29 Arlone Pty Ltd v Teller Properties Pty Ltd (1995) FCA 1051 …. 17.35 Asher v Whitlock (1865) LR 1 QB 1 …. 3.3, 3.29, 3.46 Ashworth Frazer Ltd v Gloucester City Council [2002] 1 All ER 377 …. 17.18 Assets Co Ltd v Mere Roihi [1905] AC 176 …. 13.2, 13.10, 13.11, 13.63 Associated Alloys Pty Ltd v ACN 001 452 106 Pty Ltd (in liq) (2000) 74 ALJR 862 …. 20.7 Associated Newspapers Ltd v Bancks (1951) 83 CLR 322 …. 18.42 Attorney General (NT) v Minister for Aboriginal Affairs (1989) 25 FCR 345 …. 13.55 Attorney-General v Brown (1847) 1 Legge 312; 2 SCR (NSW) App 30 …. 2.28, 2.29 Auerbach v Beck (1985) 6 NSWLR 424 …. 19.6 Aussie Traveller Pty Ltd v Marklea Pty Ltd [1998] 1 Qd R 1 …. 17.25, 17.29, 17.30 Austerberry v Corporation of Oldham (1885) 29 ChD 750 …. 5.20, 22.25, 22.28, 22.41

Austin v Bonney [1999] 1 Qd R 114 …. 17.55 Australia & New Zealand Bank v Sinclair [1968] 2 NSWR 26 …. 20.25 Australia and New Zealand Banking Corporation Ltd v Karam (2006) ATPR 42,089 …. 20.51 Australian Competition and Consumer Commission v Allphones Retail Pty Ltd (No 2) [2009] FCA 48 …. 18.68 —v— [2009] FCA 17 … 18.68, 18.69 —v CG Berbatis (Holdings) Pty Ltd (2003) 214 CLR 51 …. 18.67, 20.57 —v Dataline.Net.Au [2006] FCA 1427 …. 18.68 —v Dukemaster [2009] FCA 682 …. 18.61, 18.63, 18.68, 18.69 —v Leelee Pty Ltd (1999) FCA 1121 …. 18.68 —v Simply No-Knead (Franchising) Pty Ltd (2000) 178 ALR 304 …. 18.68 Australian Hi-Fi Publications Pty Ltd v Gehl [1979] 2 NSWLR 618 …. 19.28, 19.47 Australian Property Buyers Pty Ltd v Kowalski [2006] VCAT 24 …. 18.48 Australian Provincial Assurance Co Ltd v Coroneo (1938) 38 SR (NSW) 700 …. 2.15, 2.31 Australian Securities & Investments Commission v Money for Living (Aust) Pty Ltd (admins apptd) (No 2) (2006) 155 FCR 349; [2006] FCA 1285 …. 9.4, 20.56 Australian Softwood Forests Pty Ltd v Attorney General (NSW) (Ex rel Corporate Affairs Commission) (1981) 148 CLR 121 …. 19.5, 19.63 Automasters Australia Pty Ltd v Bruness Pty Ltd (2003) ATPR (Digest) 46-229 …. 18.68 Avco Financial Services Ltd v Fishman [1993] 1 VR 90 …. 15.13 Averono v Mbuzi [2005] QCA 295 …. 19.62

B Bacon v O’Dea (1989) 88 ALR 486 …. 15.32 Bahr v Nicholay (No 2) (1988) 164 CLR 604; 78 ALR 1; 62 ALJR 268 …. 13.8, 13.44, 15.9 Bailey v J Paynter (Mayfield) Pty Ltd [1966] 1 NSWR 596 …. 17.14 Bain v Brand (1876) 1 App Cas 762 …. 2.22 Ball-Guymer v Livantes (1990) 102 FLR 327 …. 2.13 Ballard’s Conveyance, Re [1937] Ch 473 …. 22.13 Bank of New South Wales v Campbell (1886) 11 App Cas 192 (PC) …. 21.41 —v O’Connor (1889) 14 App Cas 273 …. 20.6 Bank of SA v Ferguson (1998) 192 CLR 248 …. 12.27, 13.18 Bank of Victoria v Forbes (1877) 13 VLR 760 …. 3.17 Bannerman Brydone Foster & Co v Murray [1972] NZLR 411 …. 20.21 Bannister v Bannister [1948] 2 All ER 133 …. 5.22 Baramon Sales Pty Ltd v Goodman Fielder Mills Ltd [2001] FCA 1672 …. 22.29 Barbour, Re [1967] Qd R 10 …. 10.12, 10.28 Barclays Bank Ltd v O’Brien (1993) 3 WLR 786 …. 20.50 Barnes v Addy (1874) LR 9 Ch App 244 …. 13.49 Barns v Queensland National Bank Ltd (1906) 3 CLR 925 …. 21.18 Barrow v Isaacs [1891] 1 QB 417 …. 17.18 Barry v Heider (1914) 19 CLR 197 …. 12.14, 12.20, 12.40, 13.46, 15.4, 15.10, 20.14, 21.48 Bashford v Bashford [2008] WASC 138 …. 15.38 Bates v Donaldson [1896] 2 QB 241 …. 17.18

Bathurst (Earl) v Fine [1974] 1 WLR 905 …. 18.38 Bathurst City Council v PWC Properties Pty Ltd (1998) 157 ALR 414 …. 5.5 Bathurst v Scarborow [2005] 1 P & C 4 (CA) …. 10.13 Batsford Estates (1983) Co Ltd v Taylor [2005] EWCA Civ 489 …. 3.14 Batson v De Carvalho (1948) 48 SR (NSW) 417 …. 18.23, 18.27 Baumgartner v Baumgartner (1987) 164 CLR 137 …. 5.5, 5.31, 10.20 Baxter v Four Oaks Properties Ltd [1965] Ch 816 …. 22.33 Bayport Industries Pty Ltd v Watson [2002] VSC 206 …. 3.17 Beardsley v Registrar of Titles [1993] 2 Qd R 117 …. 14.23 Beatty v ANZ Banking Group Ltd [1995] 2 VR 301 …. 13.13 Beca Developments Pty Ltd v Idameneo (No 92) Pty Ltd (1989) NSW ConvR 55-375 …. 18.58 Beck v Auerbach (1986) 6 NSWLR 454 …. 19.34 Beever v Spaceline Engineering Pty Ltd (1993) 6 BPR 13,270 …. 3.16 Behn v Registrar-General [1979] 2 NSWLR 496 …. 14.15 Belgrave Nominees Pty Ltd v Barlin-Scott Airconditioning (Aust) Pty Ltd [1984] VR 947 …. 2.14 Belgravia Insurance Co v Meah [1964] 1 QB 436 …. 18.38 Belize Estate & Produce Co Ltd v Quilter [1897] AC 367 …. 12.13 Bellgrove v Eldridge (1954) 90 CLR 613 …. 17.15 Belmore (CJ) Pty Ltd v AGC (General Finance) Ltd [1976] 1 NSWLR 507 …. 20.41 Belpiero v Linehaul Holdings Pty Ltd (2004) 89 SASR 185 …. 18.45 Bendal Pty Ltd v Mirvac Project Pty Ltd (1991) 23 NSWLR 464 …. 2.4 Benzlaw and Associates Pty Ltd v Medi-Aid Centre Foundation Ltd [2007] QSC 233 …. 21.32, 21.40

Beresford v Booth [1999] SASC 166 …. 11.4 Berndt (JC) Pty Ltd v Walsh [1969] SASR 34 …. 17.25, 17.30 Biggs v Hoddinot [1898] 2 Ch 307 …. 20.32 Birmingham v Renfrew (1937) 57 CLR 666 …. 5.5 Bishop v Bonham [1988] 1 WLR 742 …. 21.17 Biviano v Natoli (1998) 43 NSWLR 695 …. 11.4 Black v Garnock (2007) 230 CLR 438 …. 9.25, 12.15, 15.25, 15.29, 15.30 Blacks Ltd v Rix [1962] SASR 161 …. 22.31, 22.35 Blackwell v Davy (1889) 8 NZLR 129 …. 14.25 Blathwayt v Cawley [1976] AC 397 …. 6.35 Blomley v Ryan (1956) 99 CLR 362 …. 5.13, 20.46 Blulock Pty Ltd v Majic [2001] 10 BPR 19,143 …. 19.44 Bocardo SA v Star Energy UK Onshore Ltd [2011] 1 AC 380 …. 2.6 Bodney v Bennell (‘Noongar’) (2008) 167 FCR 84 …. 4.34, 4.39, 4.41 —v Westralia Airports Corporation Pty Ltd (2000) 109 FCR 178 …. 4.91 Bogdanovic v Koteff (1988) 12 NSWLR 472 …. 13.62 Bond v Rosling (1861) 121 ER 753 …. 16.22, 16.28 Bond v Weeks [1999] 1 Qd R 134 …. 17.55 Bondi Beach Astra Retirement Village Pty Ltd v Gora (2011) 82 NSWLR 665 …. 6.18, 6.25 Booker Industries Pty Ltd v Wilson Parking (Qld) Pty Ltd (1982) 149 CLR 600 …. 5.15 Booth v Federal Commissioner of Taxation (1987) 164 CLR 159 …. 5.16 Boss v Hamilton Island Enterprises Ltd [2008] QSC 274; [2010] 2 Qd R

115 …. 17.18 Boulter v Boulter (1898) 19 LR (NSW) Eq 135 …. 11.12 Bourke v Beneficial Finance Corp Ltd (1991) ANZ ConvR 473 …. 21.29, 21.40 Bowen Investments Pty Ltd v Tabcorp Holdings Ltd (2008) 166 FCR 494 …. 17.13 Boyd v Mayor of Wellington [1924] NZLR 1174 …. 12.25 BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266 …. 17.42 Brand v Chris Building Co Pty Ltd [1957] VR 625 …. 3.43 Bray v Bray (1926) 38 CLR 542 …. 11.39 Break Fast Investments Pty Ltd v PCH Melbourne Pty Ltd (2007) 20 VR 311 …. 3.38 Breskvar v Wall (1971) 126 CLR 376 …. 9.19, 12.26, 12.28, 12.39, 12.40, 13.56, 13.63, 15.17, 15.26, 16.26 —v— (1972) 46 ALJR 68 …. 12.26, 12.28, 12.39, 13.56, 13.63 Brian Stevens Pty Ltd v Clarke (1965) 83 WN (Pt 1) (NSW) 32 …. 6.32 Brickwood v Young (1905) 2 CLR 387 …. 11.4 Brilliant v Michaels [1945] 1 All ER 121 …. 16.43 Bromley Park Garden Estates Ltd v Moss [1982] 2 All ER 890 …. 17.18, 17.49 Brown v Heffer (1967) 116 CLR 344 …. 5.15 Browne v Flower [1911] 1 Ch 219 …. 17.25, 17.28, 17.30, 19.21 Bruton v London & Quadrant Housing Trust [2000] 1 AC 406 …. 16.36 Buchanan v Byrnes (1906) 3 CLR 704 …. 18.9 Buckinghamshire County Council v Moran [1990] Ch 623 …. 3.20, 3.22, 3.24, 3.46

Buckland v Butterfield (1820) 2 Brod & Bing 54; 129 ER 878 …. 2.10 Budd Scott v Daniel [1902] 2 KB 351 …. 17.30 Bull v Bull [1955] 1 QB 234 …. 10.13 Bunny Industries Ltd v FSW Enterprises Pty Ltd (1982) Qd R 712 …. 5.15, 9.25 Burger King Corporation v Hungry Jack’s Pty Ltd (2001) 69 NSWLR 558 …. 17.33 Burgess v Rawnsley [1975] Ch 429 …. 11.20 Burke v Yurilla SA Pty Ltd (1991) 56 SASR 382 …. 22.31 Bursill Enterprises Pty Ltd v Berger Bros Trading Co Pty Ltd (1971) 124 CLR 73 …. 2.5, 12.10, 15.7 Burton v Winters (1993) 1 WLR 1077 …. 19.52 Butland v Cole (1995) 87 LGERA 122 …. 3.42 Butler v Fairclough (1917) 23 CLR 78 …. 15.4, 15.22 Byrnes v Jakona Pty Ltd [2002] FCA 41 …. 17.25, 17.26

C Caboche v Ramsay (1993) 119 ALR 215 …. 6.19 Caboolture Park Shopping Centre v Edelsten (1987) Q ConvR 54-266 …. 16.43, 16.44 Calabro v Bayside City Council [1999] 3 VR 688 …. 13.55 Caldy Manor Estate Ltd v Farrell [1974] 3 All ER 753 …. 6.26 Callow v Rupchev (2009) 14 BPR 27,533; [2009] NSWCA 148 …. 11.4 Calverley v Green (1984) 155 CLR 242 …. 5.3, 10.13, 10.19, 10.31 Campbell v Hoyland (1877) 7 Ch D 166 …. 21.44 Canas Property Co Ltd v KL Television Services Ltd [1970] 2 QB 433 …. 18.35

Capebay Holdings Pty Ltd v Sands [2002] WASC 287 …. 3.41 Capell v Winter [1907] 2 Ch 376 …. 15.18 Capital Finance Australia Ltd v Bayblu Holdings Pty Ltd [2011] NSWSC 24 …. 9.32 —v Struthers [2008] NSWSC 440 …. 15.30 Cardwell v Walker [2004] 2 P & Cr 9 …. 19.19 Carpenter v Sheehan [1947] VLR 127 …. 11.39 Carr v Finance Corp of Australia Ltd (1982) 56 ALJR 730 …. 21.40 —v Lambert (1866) LR 1 Exch 168 …. 19.65 Carr-Glynn v Frearsons [1999] Ch 326 …. 10.5 Cartwright, Re; Avis v Newman (1889) 41 Ch D 532 …. 6.32 Case of Mines (R v The Earl of Northumberland) (1567) 1 Plow 310; 75 ER 472 (KB) …. 2.7 Cash Resources Australia Pty Ltd v BT Securities Ltd [1990] VR 576 …. 15.13 Cashmore’s Application, Re [1967] Tas SR 217 …. 22.34 Cavalier v Pope [1906] AC 428 …. 17.31 Cave v Cave (1880) 15 Ch D 639 …. 15.14 Ceedive Pty Ltd v May [2005] NSWSC 309 …. 13.46 Celsteel Ltd v Alton House Ltd [1985] 1 WLR 204 …. 19.48 Central Estates (Belgravia) Ltd v Woolgar (No 2) [1972] 1 WLR 1048 …. 18.35, 18.58 Central Mortgage Registry of Australia Ltd v Donemore [1984] 2 NSWLR 128 …. 21.52 Cervi v Letcher (2011) 33 VR 320 …. 3.23 Challenger Managed Investments Pty Ltd v Direct Money Corp Pty Ltd (2003) 59 NSWLR 452 …. 14.16

Chan v Cresdon (1989) 168 CLR 242 …. 5.15, 9.25, 9.32, 12.20, 16.23, 16.24, 16.25 —v— (1990) 64 ALJR 111 …. 12.15 —v Zacharia (1984) 154 CLR 178 …. 5.5 Chandra v Perpetual Trustees Victoria Ltd [2007] NSWSC 694 …. 12.37 Charalambous v Ktori [1972] 1 WLR 951 …. 17.43 Charmelyn Enterprises Pty Ltd v Klonis (1980) 2 BPR 9527 …. 20.40, 20.68 Chase Corporation (Australia) Pty Ltd v North Sydney Brick and Tile Co Ltd (1994) 35 NSWLR 1 …. 20.42 Chasfild Pty Ltd v Taranto [1991] VR 225 …. 12.25, 12.30 Chester v Buckingham Travel Ltd [1981] 1 WLR 96 …. 17.43 China and Southsea Bank Ltd v Ten Soo Gin [1990] 2 WLR 56 …. 21.17, 21.40 Chirabaglio v Westpac Banking Corp (1989) ATPR 40-971 …. 20.54, 20.68 Church Property Trustees, Diocese of Newcastle v Ebbeck (1960) 104 CLR 394 …. 6.18, 6.35 City Development Pty Ltd v Registrar General of NT (2000) 135 NTR 1 …. 19.21, 19.22 —v— [2001] NTCA 7 …. 19.21 City of Canada Bay Council v Bonaccorso [2007] NSWCA 351 …. 13.57, 14.4 City of Chicago v Troy Laundry Machinery Co 162 F 678 (1908) …. 2.6 City of Subiaco v Heytesbury Properties Pty Ltd (2001) 24 WAR 146 …. 17.31

Cityland and Property (Holdings) Ltd v Dabrah [1968] 1 Ch 166 …. 20.40, 20.68 Clark (WG) (Properties) Ltd v Dupre Properties Ltd [1992] Ch 297 …. 16.29 Clarke v Japan Machines (Australia) Pty Ltd (No 2) [1984] 1 Qd R 421 …. 21.34 —v Japan Machine Tools Pty Ltd [1984] 1 Qd R 404 …. 21.14 Claude Neon Ltd v Melbourne and Metropolitan Board of Works (1969) 43 ALJR 69 …. 16.34, 16.35, 16.44 Clayton v Corby (1843) 5 QB 415 …. 19.63 — v Ramsden [1943] AC 320 …. 6.35 Clement v Jones (1909) 8 CLR 133 …. 3.14, 3.17, 3.23, 3.46 Clifford v Dove [2003] NSWSC 938 …. 22.26 Climie v Wood (1869) LR 4 Ex 328 (Exch Ch) …. 2.22 Clos Farming Estates Pty Ltd v Easton (2001) 10 BPR 18,845; (2002) 11 BPR 20,605 …. 19.7, 19.14, 19.15, 19.22, 19.67 —v— (2002) 11 BPR 20,605 …. 19.7, 19.14, 19.22, 19.67 Clowes v Bentley Pty Ltd [1970] WAR 24 …. 17.9 Clyde Properties Ltd v Tasker [1970] NZLR 754 …. 21.15, 21.40 Coe v Commonwealth (1979) 53 ALJR 403 …. 4.2 Coffey, Re; Ex parte Bartel (1995) Q ConvR 54- 466 …. 9.22 Coggin v Telstar Finance Company (Q) Pty Ltd [2006] FCA 191 …. 18.68 Cohen v Cohen (1929) 42 CLR 91 …. 5.22 Colls v Home & Colonial Stores Ltd [1904] AC 179 …. 19.6 Commercial and Acceptance Ltd v Nixon (1981) 152 CLR 491 …. 21.16, 21.18, 21.21, 22.22, 21.40

Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447 …. 20.45, 20.67 —v Mehta [1991] 23 NSWLR 84 …. 20.54, 20.68 Commissioner of Stamp Duties (Queensland) v Jolliffe (1920) 28 CLR 178 …. 5.22 Commissioner of Stamp Duties v Livingston (1964) 112 CLR 12 …. 9.11 Commissioner of State Revenue (WA) v TEC Desert Pty Ltd [2009] WASCA 128; [2010] HCA 49 …. 2.22 Commonwealth v Registrar of Titles (Vic) (1918) 24 CLR 348 …. 19.7, 19.21 —v Verwayen (1990) 170 CLR 394 …. 5.9 —v Yarmirr (2001) 208 CLR 1 …. 4.22, 4.30, 4.37, 4.39 Commonwealth Bank of Australia v Baranjay [1993] 1 VR 589 …. 13.28 —v Hadfield [2004] NSWCA 350 …. 21.23 —v Horvath (Junior) [1999] 1 VR 643 …. 12.30 —v Serobian [2009] NSWSC 302 …. 20.67 Concept Projects Ltd v McKay [1984] 1 NZLR 560 …. 2.22 Concord MD v Coles (1906) 3 CLR 96 …. 19.63 Conlan (as Liquidator of Oakleigh Acquisitions Pty Ltd) v Registrar of Titles (2001) 24 WAR 299 …. 13.62 Conlan v Registrar of Titles (2001) 24 WAR 299 …. 13.48 —v— [2001] WASC 210 …. 12.20 Connolly v Noone [1912] St R Qd 70 …. 19.63 Consolidated Development Pty Ltd v Holt (1986) 6 NSWLR 607 …. 16.27, 18.35 Consolidated Trust Co Ltd v Naylor (1936) 55 CLR 423 …. 16.27

Cooke v Dunn (1998) 9 BPR 16,489 …. 3.33, 3.46 Cooper v Stuart (1889) 14 App Cas 286 …. 2.28 Copeland v Greenhalf [1952] Ch 488 …. 19.4 Coppin v Western Australia [1999] FCA 931 …. 4.76 Cordingley, Re (1948) 48 SR (NSW) 248 …. 11.38 Corin v Patton (1990) 169 CLR 540 …. 5.21, 11.20, 11.47 Corinne Court (Owners of) 290 Stirling Street Perth Strata Plan 12821 v Shean Pty Ltd (2000) 23 WAR 1 …. 19.16 Corporate Affairs Commission v ASC Timbers Pty Ltd (1989) 18 NSWLR 577 …. 19.63, 19.67 Costin v Costin (1997) NSW ConvR 55-811 …. 11.20, 11.47 Cottage Holiday Associates Ltd v Customs and Excise Commissioners [1983] QB 735 …. 16.29 Crabb v Arun District Council [1976] Ch 179 …. 5.9, 5.31 Creery v Summersell & Flowerdew Ltd [1949] Ch 751 …. 18.29 Crescendo Management Pty Ltd v Westpac Banking Corp (1988) 19 NSWLR 40 …. 20.51 Crocombe v Pine Forests of Australia Pty Ltd [2005] NSWSC 151 …. 6.33 Cruise v Mount [1933] Ch 278 …. 17.31 Cuckmere Brick Co Ltd v Mutual Finance Ltd [1971] Ch 949 …. 21.17, 21.18, 21.25, 21.40 Cuzeno Pty Ltd v Powercell Pty Ltd [1999] NSWCA 344 …. 16.25

D D’Eyncourt v Gregory (1866) LR 3 Eq 382 …. 2.12, 2.31 Dale v Moses [2007] FCAFC 82 …. 4.19, 4.34 Dalton v Angus & Co (1881) 6 App Cas 740 …. 19.6, 19.36

—v Ellis; Estate of Bristow (2005) NSWSC 1252 …. 22.7 Daniel v Western Australia [2003] FCA 666 …. 4.39 —v— (2004) 212 ALR 51 …. 4.55 Darby, Re [1999] 2 Qd R 350 …. 11.40 Darrington v Caldbeck (1990) 20 NSWLR 212 …. 11.41 Davenport v R (1877) 3 App Cas 115 …. 18.29 Daventry Holdings Pty Ltd v Bacalakis Hotels Pty Ltd [1986] 1 Qd R 406 …. 17.18 David Blackstone Ltd v Burnett’s (West End) Ltd [1973] 1 WLR 1487 …. 18.28, 18.35 David Jones Ltd v Leventhal (1927) 40 CLR 357 …. 17.25 Davies v Littlejohn (1923) 34 CLR 174 …. 5.3 Davis Contractors Ltd v Fareham Urban District Council (1956) AC 696 …. 18.12 De Campo Holdings Pty Ltd v Cianciullo [1977] WAR 56 …. 11.41 De Rose v South Australia (2003) 133 FCR 325 …. 4.34, 4.39, 4.41, 4.93 —v— (No 2) (2005) 145 FCR 290 …. 4.34, 4.39, 4.41, 4.93 —v— [2013] FCA 988 …. 4.88, 4.89 Dean, Re (1889) 41 Ch D 552 …. 8.9 Dee-Tech Pty Ltd v Neddam Holdings Pty Ltd [2010] NSWCA 374 …. 18.41 Delehunt v Carmody (1986) 161 CLR 464; 68 ALR 253 …. 10.15, 10.31 Delgamuukw v British Columbia [1997] 3 SCR 1010 …. 1.18 Delohery v Permanent Trustee Co of NSW (1904) 1 CLR 283 …. 19.37 Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31 …. 20.54, 20.68 Dempster v Richardson (1930) 44 CLR 576 …. 14.20

Dennerstein, Re [1963] VR 688 …. 22.33, 22.34 Dennis v Dennis (1971) 124 CLR 317 …. 10.1 —v McDonald [1982] 1 All ER 590 …. 11.4 Dennys Restaurants Pty Ltd, Re [1977] Qd R 92 …. 18.58 Denton v Phillpot (1990) NSW ConvR 55–543 …. 19.51 Deventer Pty Ltd v BP Australia Ltd (1983) Q ConvR 54-104 …. 12.13 Dewhirst v Edwards [1983] 1 NSWLR 34 …. 19.40, 19.47 Di Napoli v New Beach Apartments Pty Ltd [2004] NSWSC 52 …. 2.6 Diemasters Pty Ltd v Meadowcorp Pty Ltd (2001) 52 NSWLR 572 …. 14.17 Dillon v Nash [1950] VLR 293 …. 17.41 Dillwyn v Llewellyn (1862) 31 LJ Ch 658; 45 ER 1285 …. 5.9, 5.31 Dixon v Muckleston (1872) LR 8 Ch App 155 …. 15.17 DKLR Holding Co (No 2) Pty Ltd v Comr of Stamp Duties (NSW) (1982) 149 CLR 431 …. 9.10 Dobbie v Davidson (1991) 23 NSWLR 625 …. 19.46 Dockrill v Cavanagh (1944) 45 SR (NSW) 78 …. 16.21, 16.44 Doe & Lockwood v Clarke (1807) 103 ER 313 …. 16.29, 16.44 Dogan v Morton (1935) SR (NSW) 142 …. 18.25 Doherty v Allman (1878) 3 App Cas 709 …. 6.31, 6.35 Dolphin’s Conveyance, Re [1970] Ch 654 …. 22.33 Douglass v Lawton Pty Ltd [2007] NSWCA 89 …. 17.25 Downey v Turner [1951] 2 KB 112 …. 18.30 Downie v Lockwood [1965] VR 257 …. 13.27 Dowse v Wynyard Holdings Pty Ltd (1961) 79 WN (NSW) 122 …. 17.25

Doyle v Phillips (No 1) (1997) 8 BPR 15,523 …. 22.15 Drummond’s Settlement, Re [1988] 1 All ER 449 …. 8.16, 8.21 Duarte v Denby [2007] WASC 94 …. 3.26 Dugdale, Re; Dugdale v Dugdale (1888) 38 Ch D 176 …. 6.21 Duggan v Kelly (1848) 10 Ir Eq Rep 473 …. 6.18, 6.35 Dukart v District of Surrey (1978) 86 DLR (3d) 809 Dumpor’s Case (1601) 76 ER 1110 …. 18.31 Dunn (NH) Pty Ltd v LM Ericsson Pty Ltd (1979) 2 BPR 9241 …. 2.16 Durian (Holdings) Pty Ltd v Cavacourt Pty Ltd (2000) 10 BPR 18,099 …. 19.59

E Eastdoro Pty Ltd (No 2), Re [1990] 1 Qd R 424 …. 12.32, 17.49 Eastern Nitrogen Ltd v Commissioner of Taxation [1999] FCA 1536 …. 2.13 Eaton v Swansea Waterworks Co (1851) 17 QB 267 …. 19.35 Eckford v Stanbroke Pastoral Co Pty Ltd [2012] 2 Qd R 324 …. 3.10 Eddowes, Re [1991] 2 Qd R 381 …. 19.17, 19.62 Edgerton v Esplanade Hotels London Ltd [1947] 2 All ER 88 …. 18.27 Edmonds v Donovan [2005] VSCA 27 …. 15.2 Edward Kazas & Associates Pty Ltd v Multiplex (Mountain Street) Pty Ltd [2002] NSWSC 840 …. 17.28 —v— [2003] ANZ ConvR 302 …. 17.23, 17.28 Edward Street Properties Pty Ltd, Ex parte [1977] Qd R 86 …. 19.44 Edwards v Horrigan [1923] St R Qd 8 …. 16.20 Edwards v Sims 24 SW 619 (1929) …. 2.6 Elidock Pty Ltd v NB Stone & Associates Pty Ltd [2008] NSWSC 1278

…. 17.16 Ellaway v Lawson [2006] QSC 170 …. 6.18, 6.35 Ellenborough Park, Re [1956] 1 Ch 131 …. 19.8, 19.9, 19.13, 19.15, 19.18, 19.21, 19.22 Ellison v Vukicevic (1986) 7 NSWLR 104 …. 19.63 Elliston v Reacher [1908] 2 Ch 374 …. 22.33 Elton v Cavill (No 1) (1994) NSWConvR 55-701 …. 6.35 —v— (No 2) (1994) 34 NSWLR 289 …. 6.21, 6.25, 6.35 Elwes v Maw (1802) 102 ER 510 (KB) …. 2.23 English, Scottish & Australian Bank v Phillips (1937) 57 CLR 302 …. 18.10, 20.22 Enviro Remote Sensing Australia Pty Ltd v Bankstown Airport Ltd [2008] NSWSC 1001 …. 18.21 Eon Metals NL v Commissioner of State Taxation (WA) (1991) 91 ATC 4841 …. 2.13, 2.18, 2.31 Epic Feast Pty Ltd v Mawson KLM Holdings Pty Ltd (in liq) (1998) 71 SASR 161 …. 20.30, 20.40, 20.68 Errington v Errington [1952] 1 KB 290 …. 16.29, 16.34, 16.44 Esanda Finance Corporation Ltd v Spence Financial Group Pty Ltd [2006] WASC 177 …. 20.59 Esso Petroleum Co Ltd v Alstonville Properties Ltd [1975] 1 WLR 1474 …. 21.5 Euston Centre Properties Ltd v H&J Wilson Ltd (1982) 262 EG 1079 …. 16.23 Evanel Pty Ltd v Nelson (1995) 39 NSWLR 209 …. 19.6, 19.22 Evans v Enever [1920] 2 KB 315 …. 18.29 Expert Clothing Service v Hillgate House [1986] 1 Ch 340 …. 18.23

F Facchini v Bryson (1952) 1 TLR 1386 …. 16.38 FAI Insurances Ltd v Pioneer Concrete Services Ltd (1987) 15 NSWLR 552 …. 15.18 FAI Leasing Pty Ltd, Re[1994] 2 Qd R 482 …. 1.19 Fairclough v Swan Brewery Co Ltd [1912] AC 565 …. 20.35, 20.42 Fairless v Registrar of Title [1997] 1 VR 404 …. 14.15, 14.24, 14.36 Famous Makers Confectionery Pty Ltd v Sengos (No 2) (1993) 6 BPR 13,222 …. 17.27 Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 …. 13.3, 13.52, 13.63 Farley v Hawkins [1997] 2 Qd R 361 …. 2.16 Farrar v Farrars Ltd (1888) 40 Ch D 182 …. 21.11, 21.32, 21.40, 21.53 Federated Homes Ltd v Mill Lodge Properties Ltd [1980] 1 All ER 371 …. 22.14, 22.21, 22.41 Fejo v Northern Territory (1998) 195 CLR 96 …. 4.55, 4.57, 4.93 Figgins Holdings Pty Ltd v SEAA Enterprises Pty Ltd (1999) 196 CLR 245 …. 20.9 Findlay & Co Ltd’s Application, Re (1963) 15 P & Cr 94 …. 22.40 Fink v Robertson (1907) 4 CLR 864; [1907] VLR 610 …. 21.41 Finlayson (RF) Ltd v Elder Smith & Co Ltd [1936] SASR 209 …. 19.19 Finley v Russell Jones (1949) 49 SR (NSW) 96 …. 18.29, 18.35 Finucane v Registrar of Titles [1902] Qd SR 75 …. 14.25 Flexman v Corbett [1930] 1 Ch 672 …. 17.43 FMG Pilbara Pty Ltd v Cox (2009) 175 FCR 141 …. 4.76 Forestview Nominees Pty Ltd v Perpetual Trustees WA Ltd (1996) 133 ALR 465 …. 22.18

—v— (1998) 193 CLR 154 …. 22.4, 22.5 Forgeard v Shanahan (1994) 35 NSWLR 206 …. 11.2, 11.11, 11.15, 11.47 Forrest Trust, Re; Executors and Agency Co Ltd v Anson [1953] VLR 246 …. 20.9, 20.22 Forston Pty Ltd v Commonwealth Bank of Australia (2008) 100 SASR 162 …. 21.20, 21.29 Forsyth v Blundell (1973) 129 CLR 477 …. 9.20, 9.21, 21.16, 21.18, 21.19, 21.23, 21.37, 21.40 Foster v Robinson [1951] 1 KB 149 …. 18.9 Four Maids Ltd v Dudley Marshall (Properties) Ltd [1957] 1 Ch 317 …. 21.5 Frank Warr & Co Ltd v London County Council [1904] 1 KB 713 …. 19.63 Franklin, Re [2009] VSC 496 …. 3.10, 10.5 Frater v Finlay (1968) 91 WN (NSW) 730 …. 22.26 Frazer v Walker [1967] 1 AC 569 …. 12.18, 12.23, 12.25, 12.40, 13.44 —v— [1967] NZLR 1069 …. 12.12 French v Barcham [2009] 1 WLR 1124 …. 11.4 Friedman v Barrett [1962] Qd R 498 …. 13.7 Frieze v Unger [1960] VR 230 …. 11.25 Fung v Tong [1918] AC 403 …. 15.15 Fyfe v Smith [1975] 2 NSWLR 408 …. 21.9

G GA Investments v Standard Insurance Company [1964] WAR 264 …. 20.31 Gallagher v Rainbow (1994) 179 CLR 624 …. 19.17, 19.45, 19.61,

22.26 Gangemi v Watson (1994) 11 WAR 505 …. 19.37 Gapes v Fish [1927] VLR 88 …. 19.10 Garcia v National Australia Bank Ltd (1998) 194 CLR 395 …. 20.67 Gaskin v Balls (1879) 13 Ch D 324 …. 22.38 Georgeski v Owners Corporation SP49833 (2004) 62 NSWLR 534 …. 16.34, 16.44 Gerraty v McGavin (1914) 18 CLR 152 …. 18.22, 18.27 Ghilarducci v Ghilarducci [1993] ANZ ConvR 331 …. 3.34 Giacomelli v Simpson [2007] VSC 44 …. 13.38 Gibbs v Messer [1891] AC 248 …. 12.22 Gibson v Revenue and Customs Prosecution Office [2009] QB 348 …. 10.31 Gigi Entertainment Pty Ltd v Schmidt [2013] NSWCA 287 …. 18.46 Gilbert J McCaul (Aust) Pty Ltd v Pitt Club Ltd (1957) 59 SR (NSW) 122 …. 17.20, 18.58 Gill v Lewis [1956] 2 QB 1 …. 18.39 Gimtak Pty Ltd v Cathie (No 1) (2001) V ConvR 54-646 …. 17.13 Giumelli v Giumelli (1999) 161 ALR 473 …. 5.3, 5.12, 5.31 Glasshouse Investments Pty Ltd v MPJ Holdings Pty Ltd [2005] NSWSC 456 …. 17.23, 17.26, 17.30 Glemtham Pty Ltd v Luxer Holdings Pty Ltd [2002] WASC 80 …. 18.19 Golding v Tanner (1991) 56 SASR 482 …. 19.47 Goldsborough Mort v Quinn (1910) 11 CLR 674 …. 5.13 Goldsworthy Mining Ltd v Federal Commissioner of Taxation (1973) 128 CLR 199 …. 16.36, 16.44 Goodwin v Yee Holdings Pty Ltd (1997) 8 BPR 15,795 …. 19.44

Gordon v Lidcombe Developments Pty Ltd [1966] 2 NSWR 9 …. 17.28 Government Insurance Office (NSW) v K A Reed Services Pty Ltd [1988] VR 829 …. 22.26 Graham v KD Morris & Sons Pty Ltd [1974] Qd R 1 …. 2.4 —v Markets Hotel Pty Ltd (1942) 43 SR (NSW) 98 …. 17.11, 17.13 —v— (1943) 67 CLR 567 …. 17.11, 17.13 Grainger v Williams [2005] WASC 286 …. 17.34 Granada Theatres Ltd v Freehold Investment (Leytonstone) Ltd [1959] Ch 592 …. 17.45 Gration v C Gillan Investments Pty Ltd [2005] 2 Qd R 267 …. 17.55 Gray v Taylor [1998] 4 All ER 17 …. 16.34, 16.44 Great Western Railway Co v Smith [1876] 2 Ch D 235 …. 18.57 Greco v Swinburne Ltd [1991] 1 VR 304 …. 13.27 Greenslade v Halliday (1830) 130 ER 1326 …. 19.50 Grgic v Australia and New Zealand Banking Group Ltd (1994) 33 NSWLR 202 …. 12.37, 13.4, 13.48, 13.63 Griffiths v Northern Territory (2007) 165 FCR 391; 243 ALR 72 …. 4.24, 4.34 Grill v Hockey (1991) 5 BPR 11,421 …. 19.62 Grundel v Registrar-General (1990) 5 BPR 11,217 …. 16.29 Gumana v Northern Territory of Australia (‘Blue Mud Bay’) (2007) 158 FCR 349 …. 4.34, 4.39 Gumland Property Holdings Pty Limited v Duffy Bros Fruit Market (Campbelltown) Pty Limited (2008) 234 CLR 237 …. 16.7, 17.2, 18.41, 18.69, 22.13 Gurfinkel v Bentley Pty Ltd (1966) 116 CLR 98 …. 20.7

H

Hadfield v Hadfield [2010] NSWSC 561 …. 6.20 Hall v Busst (1960) 104 CLR 206 …. 6.22, 6.23, 6.25, 6.35 Halsall v Brizell [1957] Ch 169 …. 22.26 Halwood Corp Ltd v Chief Commissioner of Stamp Duties (NSW) (1992) 33 NSWLR 395 …. 1.19 Hamilton Island Enterprises Ltd v Croycom Pty Ltd (1998) Q ConvR 54-509 …. 16.33, 16.37, 16.44, 17.27 Hamilton v Geraghty (1901) 1 SR (NSW) Eq 81 …. 5.12 —v Iredale (1903) 3 SR (NSW) 535 …. 13.32 Hampshire v Wickens (1878) 7 Ch D 555 …. 17.43 Hanbury v Jenkins [1901] 2 Ch 401 …. 19.11 Harada v Registrar of Titles [1981] 1 VR 743 …. 19.4, 19.15 Harmer v Jumbil (Nigeria) Tin Areas Pty Ltd [1921] 1 Ch 200 …. 17.28 Harnett v Green (No 2) (1883) 4 LR (NSW) 292 …. 3.16, 3.19 Harrington-Smith on behalf of the Wongatha People v Western Australia (No 9) (2007) 238 ALR 1 …. 4.34, 4.36, 4.38 Harris v Flower (1905) 74 LJ Ch 127 …. 19.32 Harrison, Ainslie & Co v Lord Muncaster [1891] 2 QB 680 …. 17.23, 17.24 Hart, Re [1954] SASR 1 …. 6.33, 6.35 —v Windsor (1843) 152 ER 1114 …. 17.31 Harvey v McWatters (1949) 49 SR (NSW) 173 …. 21.34 —v Pratt [1965] 1 WLR 1025; 2 All ER 786 …. 16.43, 16.44 Harwood, Re (1887) 35 Ch D 471 …. 20.20 Haselhurst v Elliot [1945] VLR 153 …. 16.18 Haskell v Marlow [1928] 2 KB 45 …. 17.12, 17.13

Haslam v Money for Living (Australia) Pty Ltd (2008) 250 ALR 419 …. 13.28 Hawkesbury Nominees Pty Ltd v Battik Pty Ltd [2000] FCA 185 …. 17.30 Hawkins and Town of Mosman Park, Re (2006) 44 SR (WA) 381 …. 3.41 Hayne v Cummings (1864) 143 ER 1191 …. 16.22 Hayward v Skinner [1981] 1 NSWLR 590 …. 11.41 Haywood v Brunswick Permanent Benefit Building Society (1881) 8 QBD 403 …. 5.20, 22.2 Heid v Connell Investments Pty Ltd (1987) 9 NSWLR 628 …. 14.25 —v— (1989) 16 NSWLR 629 …. 14.15, 14.36 —v Reliance Finance Corp Pty Ltd (1983) 154 CLR 326 …. 5.3, 5.24, 15.12, 21.47, 21.48 —v— (1983) 57 ALR 683 …. 15.18 Hemmings v Stoke Poges Golf Club [1920] 1 KB 720 …. 18.33 Henderson v Eason (1851) 117 ER 1451 …. 11.7 Henderson’s Caveat, Re[1998] 1 Qd R 632 …. 9.32 Henry Roach (Petroleum) Pty Ltd v Credit House (Vic) Pty Ltd [1976] VR 309 …. 21.22 Heron v Broadbent (1920) 20 SR (NSW) 101 …. 14.35 Hewett v Court (1983) 149 CLR 639 …. 5.3 Hill v Harris [1965] 2 QB 601 …. 17.31 —v Kempshall (1849) 137 ER 386 …. 18.19 —v Short (1910) SASR 141 …. 18.22 —v Tupper (1863) 159 ER 51 …. 19.15 Hillcoat v Keymon Pty Ltd [2002] QCA 527 …. 17.55

Hilldon P/L v J Y Building Material & Construction P/L [2007] QSC 301 …. 19.62 Hillpalm Pty Ltd v Heaven’s Door Pty Ltd (2004) 220 CLR 472 …. 13.56 Hilton v Gray [2007] QSC 401 …. 13.6 Hinds v Uellendahl (1992) 107 FLR 254 …. 13.12 Hircock v Windsor Homes (Development No 3) Pty Ltd [1979] 1 NSWLR 501 …. 10.17, 10.25 Hobson v Gorringe [1897] 1 Ch 182 …. 2.13 Holding & Management Ltd v Property Holding & Investment Trust plc [1990] 1 All ER 938 …. 17.13 Holland v Hodgson (1872) LR 7 CP 328 …. 2.9, 2.31 Holroyd v Marshall (1862) 10 HLC 191 …. 5.16 Horsey Estate Ltd v Steiger [1899] 2 QB 79 …. 17.45, 18.21 Houlder Bros & Co v Gibbs [1925] Ch 575 …. 17.18, 17.49 Hovarth v Commonwealth Bank of Australia (1999) 1 VR 643 …. 13.54 Howard v Fanshawe [1895] 2 Ch 581 …. 18.39 Hoy Mobile Pty Ltd v Allphones Retail Pty Ltd (No 2) [2008] FCA 810 …. 18.68 Hughes Aircraft Systems International v Airservices Australia (1997) 76 FCR 151; (1997) 146 ALR 1 …. 17.33 Hulme v Brigham [1943] KB 152 …. 2.10 Hummelstad v Hicks (2006) NSW ConvR 56-150 …. 11.4 Hunter v Hunter (1936) AC 222 …. 21.12 Hutchinson v Lemon [1983] 1 Qd R 369 …. 19.47 Hyde Management Services Pty Ltd v FAI Insurances Ltd (1979) 24 ALR 435 …. 20.31

Hydra Pty Ltd v Holmes [2002] SASC 14 …. 16.36 Hyman v Rose [1912] AC 623 …. 6.31, 18.38

I IAC (Finance) Pty Ltd v Courtenay (1963) 110 CLR 550 …. 15.18 IGA Distribution Pty Ltd v King & Taylor Pty Ltd [2002] VSC 440 …. 15.20 Immer (No 145) Pty Ltd v Uniting Church in Australia Property Trust (NSW) (1993) 182 CLR 26 …. 2.5 In the Estate of Heys [1914] P 192 …. 11.28 In the matter of Cancer Care Institute of Australia Pty Ltd (admin apptd) [2013] NSWSC 37 …. 2.21 Ind, Coope & Co Ltd, Re; Fisher v Ind, Coope & Co [1911] 2 Ch 223 …. 20.24 Indian Taj v Gilany [2004] NSWSC 1193 …. 18.8 Industrial Acceptance Corp Ltd v Tarulli [1974] WAR 125 …. 21.4 Industrial Properties (Barton Hill) Ltd v Associated Electrical Industries Ltd [1977] QB 580 …. 16.29 Inglis v Commonwealth Trading Bank of Australia (1972) 126 CLR 161 …. 21.33 Inkhorn v Herbert [2000] WASC 333 …. 21.7 Inwards v Baker [1965] 2 QB 29 …. 5.10, 5.12 Isaac v Hotel de Paris (1960) 1 WLR 239 …. 16.35 Ives (ER) Investment Ltd v High [1967] 2 QB 379 …. 5.12

J J & C Reid v Abau Holdings Pty Ltd (1988) NSW ConvR 55-416 …. 18.35

J & H Just (Holdings) Pty Ltd v Bank of New South Wales (1971) 125 CLR 546 …. 5.24, 15.2, 15.25, 15.28, 15.29, 20.14, 21.48 JA McBeath Nominees Pty Ltd v Jenkins Development Corp Pty Ltd [1992] 2 Qd R 121 …. 17.18, 17.49 JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419 …. 3.20, 3.22, 3.24, 3.46 — v United Kingdom [2008] 46 EHRR 45 …. 3.46 Jack Butler and Staff Pty Ltd v Black (1991) 1 AC 494 …. 18.58 Jacobs v Platt Nominees [1990] VR 146 …. 15.18, 15.28 Jam Factory Pty Ltd v Sunny Paradise Pty Ltd [1989] VR 584 …. 18.39 James v Registrar General (1967) 69 SR (NSW) 361 …. 19.46 —v Stevenson [1893] AC 162 …. 19.47, 19.58, 19.62 Jango v Northern Territory (2006) 152 FCR 150 …. 4.88 —v (2007) 159 FCR 531; 240 ALR 432 …. 4.34, 4.88 Jessica Holdings Pty Ltd v Anglican Property Trust Diocese of Sydney (1992) 27 NSWLR 140 …. 9.32 Johnson v Buttress (1936) 56 CLR 113 …. 5.13 Johnson’s Will Trusts, Re [1967] Ch 387 …. 6.18 Jolly v Brown [1914] KB 109 …. 18.27 Jones v Bartlett (2000) 205 CLR 166 …. 17.22, 17.32, 17.55 —v Lavington [1903] 1 KB 253 …. 17.24 Jones, In re; Farrington v Forrester [1893] 2 Ch 461 …. 11.12, 11.47 Jones v Kernott [2011] UKSC 53 …. 10.31 Jopling v Jopling (1909) 8 CLR 33 …. 16.43, 16.44 Joyner v Weeks [1891] 2 QB 31 …. 17.13

K

Karacominakis v Big Country Pty Ltd (2000) 10 BPR 18,235 …. 12.34 Karaggianis v Malltown Pty Ltd (1979) 21 SASR 381 …. 17.28, 17.30 Kardiasmenos v Pioneer Management Pty Limited [2005] NSWSC 770 …. 15.19 Karpany v Dietman (2013) 303 ALR 216; 88 ALJR 90 …. 4.51, 4.54 Karynette Pty Ltd, ex parte [1984] 2 Qd R 211 …. 3.46 Katakouzinos v Roufir Pty Ltd (2000) 9 BPR 17,303 …. 19.44 Katsikalis v Deutsch Bank (Asia) AG [1988] 2 Qd R 641 …. 20.36 Kays Leasing Corp Pty Ltd v Burgess [1961] VR 703 …. 2.31 Keddell v Regarose Pty Ltd [1995] 1 Qd R 172 …. 14.36 Kelsen v Imperial Tobacco Co [1957] 2 QB 334 …. 2.4 Kennard v AGC (Advances) Ltd (1986) ATPR 40- 747 …. 20.56 Kennedy v De Trafford [1897] AC 180 …. 21.16, 21.40 Kenny v Preen [1963] 1 QB 499 …. 16.44, 17.23, 17.25, 17.26, 17.30 Kierford Ridge Pty Ltd v Ward [2005] VSC 215 …. 3.22 King v David Allen & Sons, Billposting Ltd [1916] 2 AC 54 …. 9.16 —v Smail [1958] VR 273 …. 13.61 King, Re [1963] 1 Ch 459 …. 17.46 King’s Trusts, Re (1892) 29 LR Ir 401 …. 6.13 Kirby v Cowderoy [1912] AC 599 …. 3.17 Kirk v Sutherland [1949] VLR 33 …. 3.35 KJRR Pty Ltd v Commissioner of State Revenue (Vic) [1000] 2 VR 174 …. 16.36, 16.37 Knightsbridge Estates Trust v Byrne (1939) 1 Ch 441 …. 20.33, 20.34, 20.42 Kogarah Municipal Council v Golden Paradise Corp (2007) BPR 23,651

…. 13.56 Kohua Pty Ltd v Tai Ping Trading Pty Ltd (1985) 3 BPR 9705 …. 17.23 Koorootang Nominees Pty Ltd v ANZ Banking Group Ltd [1998] 3 VR 16 …. 12.25, 12.30 Kreglinger v New Patagonia Meat and Cold Storage Co Ltd [1914] AC 25 …. 20.19, 20.21, 20.37, 20.38, 20.42 Kumarasamge v Rallis [2001] NSWSC 466 …. 17.40 Kuper v Keywest Constructions Pty Ltd (1990) 3 WAR 419 …. 15.32

L Lac Minerals Ltd v International Corona Resources Ltd (1989) 61 DLR (4th) 14 …. 5.5 Lace v Chantler [1944] KB 368 …. 16.29, 16.44 Lagan Navigation Co v Lambes Bleaching, Dyeing and Fishing Co (1927) AC 226 …. 19.50 Lagouvardis v Brett and Janet Cottee Pty Ltd (1994) 6 BPR 13,467 …. 18.44 Lake v Craddock (1732) 24 ER 1011 …. 10.13 Landlord Protect Ltd v St Anselm Development Co Ltd [2009] EWCA Civ 99 …. 17.18 Lang Parade Pty Ltd v Peluso [2005] QSC 112 …. 19.42, 19.44 Lapin v Abigail (1930) 44 CLR 166 …. 15.17, 15.24 Lardil Peoples v Queensland (1999) 95 FCR 14 …. 4.20 —v— [2004] FCA 298 …. 4.30 Laserbem Pty Ltd v Gainsville Investments Pty Ltd [2004] VSC 62 …. 16.18 Last v Rosenfeld [1972] 2 NSWLR 923 …. 5.22 Latec Investments Ltd v Hotel Terrigal Pty Ltd (1965) 113 CLR 265 ….

5.13, 9.15, 9.19, 9.21, 9.32, 15.12, 21.38, 21.40 Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 623 …. 16.44, 18.41 Lavender v Betts [1942] 2 All ER 72 …. 17.25 Le v Rawson [2009] NSWCA 332 …. 17.55 Leach, Re; Leach v Leach [1912] 2 Ch 422 …. 6.19, 6.35 Leaver, Re [1997] 1 Qd R 55 …. 10.28 Lehrer and the Real Property Act 1900, Re(1961) SR (NSW) 365 …. 2.5 Leichhardt Municipal Council v Montgomery (2007) 230 CLR 22 …. 17.32 Leigh v Dickenson (1884) 15 QBD 60 …. 11.4, 11.10, 11.47, 16.29 —v Taylor [1902] AC 157 …. 2.11, 2.31 Leitz Lee Holme Stud Pty Ltd v Robinson [1971] 2 NSWLR 54 …. 16.22, 16.28 Lend Lease Development Pty Ltd v Zemlicka (1985) 3 NSWLR 207 …. 17.28, 17.30 Lennon v Bell [2005] QSC 286 …. 11.32, 11.34 Leros Pty Ltd v Terara Pty Ltd (1992) 174 CLR 407 …. 13.29 —v— (1991) 106 ALR 595 …. 12.27 Lewis v Bell (1985) 1 NSWLR 731 …. 16.33, 16.36, 16.37, 16.44 —v Frank Love Pty Ltd [1961] 1 All ER 446 …. 20.34, 20.42 —v Keene (1936) 36 SR (NSW) 493 …. 18.10 LHK Nominees Pty Ltd v Kenworthy (2002) 26 WAR 517 …. 13.51 Lighting By Design (Aust) Pty Ltd v Cannington Nominees Pty Ltd [2007] WASC 88 …. 13.29 —v— [2008] WASCA 23 …. 16.25

Lind, Re [1915] 2 Ch 345 …. 5.16 Lion Nathan Australia Pty Ltd v Coopers Brewery Ltd [2006] FCAFC 144 …. 20.57 Lister v Lane [1893] 2 QB 212 …. 17.10 Littledale v Liverpool College [1900] 1 Ch 19 …. 3.24 Liverpool City Council v Irwin [1977] AC 239 …. 17.31, 17.42 LJP Investments Pty Ltd v Howard Chia Investments Pty Ltd (1989) 24 NSWLR 490 …. 2.4 Lloyd’s Bank Ltd v Margolis (1954) 1 All ER 734 …. 21.3 Logue v Shoalhaven Shire Council [1979] 1 NSWLR 537 …. 12.28, 13.46 Loke Yew v Port Swettenham Rubber Co Ltd [1913] AC 491 …. 13.8, 15.9 London & Blenheim Estates Ltd v Ladbroke Retail Parks Ltd [1994] 1 WLR 31 …. 19.6 London & County (A & D) Ltd v Wilfred Sportsman Ltd [1971] Ch 764 …. 18.28, 18.35 London and South Western Railway Co v Gomm (1882) 20 Ch D 562 …. 17.48 London CC v Allen [1914] 3 KB 642 …. 22.29 London City Council v Allen [1914] 3 KB 642 …. 5.20 Long v Michie [2003] NSWSC 233 …. 19.59 Loose Fit Pty Ltd v Marshbaum [2011] NSWCA 372 …. 17.55 Lord Advocate v Lord Lovat (1880) 5 App Cas 273 …. 3.15, 3.17 Lord Bernstein v Skyview & General Ltd [1978] QB 479 …. 2.3, 2.4 Luckass Investments Pty Ltd v Markaroff (1964) 82 WN (NSW) (Pt 2) 226 …. 21.39 Luke v Luke (1936) 36 SR (NSW) 310 …. 11.3, 11.47

Lurcott v Wakely & Wheeler [1911] 1 KB 905 …. 17.10, 17.13 Lyons v Lyons [1967] VR 169 …. 11.23, 11.26 Lysaght v Edwards (1876) 2 Ch D 449 …. 9.9, 9.25, 9.32

M Mabo v Queensland (No 1) (1988) 166 CLR 186 …. 4.3 —v— (No 2) (1992) 175 CLR 1 …. 1.18, 2.29, 3.4, 4.1, 4.2, 4.4, 4.7, 4.9, 4.14, 4.16, 4.17, 4.18, 4.19, 4.20, 4.21, 4.38, 4.39, 4.41, 4.43, 4.47, 4.48, 4.55, 4.56, 4.57, 4.58, 4.62, 4.85, 4.91, 5.1 McAdams Homes Ltd v Robinson [2004] EWCA Civ 214 …. 19.61 McBride v Sandland (1918) 25 CLR 69 …. 16.25 McCall v Abelesz [1976] QB 585 …. 17.26, 17.30 McCoy v Estate of Peter Anthony Caelli (2008) 13 BPR 25,515 …. 11.34 —v— (2010) 15 BPR 28,735 …. 11.35 McDrury v Luporini [2000] 1 NZLR 652 …. 18.28 McGrath v Campbell [2006] NSWCA 180 …. 19.47 McIntyre v Porter (1983) VR 439 …. 19.58, 19.62 McKean v Maloney [1988] 1 Qd R 628 …. 21.32, 21.36, 21.40 Macleay, Re (1875) LR 20 Eq 186 …. 6.21 McMahon v Ambrose [1987] VR 817 …. 16.25 —v— Public Curator (Qld) [1952] St R Qd 197 …. 11.4, 11.12 Macquarie Bank v Sixty-Fourth Throne Pty Ltd [1998] 3 VR 133 …. 13.48, 13.50, 13.53 Macquarie International Health Clinic Pty Ltd v Sydney South West Area Health Service [2008] NSWSC 738 …. 17.33 McWhirter v Emerson-Elliot [1960] WAR 208 …. 3.17

Macintosh v Bebarfalds Ltd (1908) 24 WN (NSW) 206 …. 18.54 Macrocom Pty Ltd v City West Centre Pty Ltd [2001] NSWSC 374 …. 2.19 Maddison v Alderson (1883) 8 App Cas 467 …. 9.8 Magill v Magill (1997) NSW ConvR 55-795 …. 11.31 Maironara and the Conveyancing Act, Re [1970] 1 NSWR 627 …. 19.12 Malayan Credit Ltd v Jack Chia-MPH Ltd [1986] AC 549 …. 10.14, 10.31 Malzy v Eichholz [1916] 2 KB 308 …. 17.24 Mancetter Developments Ltd v Garmanson Ltd [1986] QB 1212 …. 2.22 Manchester Ship Canal Co v Manchester Racecourse Co [1901] 2 Ch 37 …. 6.24 Mantonella Pty Ltd v Thompson [2009] 2 Qd R 524 …. 17.17 Margil Pty Ltd v Stegul Pastoral Pty Ltd [1984] NSWLR 1 …. 19.19, 19.60 Markham v Paget [1908] 1 Ch 697 …. 17.24 Marquis Cholmondeley v Lord Clinton (1820) 2 Jac & W 1 …. 3.7 Marriot v Franklin (1993) 60 SASR 457 …. 11.8 Marriott, Re[1968] VR 260 …. 19.58 Marshall v Snowy River Shire Council (1995) NSW ConvR 55-719 …. 18.35, 18.46 Martin v Croft (1987) ANZ ConvR 54 …. 17.13 Martins Camera Corner Pty Ltd v Hotel Mayfair Ltd [1976] 2 NSWLR 15 …. 17.23 Mason v Clarke [1955] AC 778 …. 5.15, 19.63 Mason v Tritton (1994) 34 NSWLR 572 …. 4.16, 4.51, 4.93

Massart v Blight (1951) 82 CLR 423 …. 18.15 Matthews v Smallwood [1910] 1 Ch 777 …. 18.28, 18.35, 18.46, 18.47, 18.58 Matzner v Clyde Securities Ltd [1975] 2 NSWLR 293 …. 21.9, 21.52, 21.53 Maurice Toltz Pty Ltd v Macy’s Emporium Pty Ltd (1969) 91 WN (NSW) 591 …. 19.19 May v Ceedive Pty Ltd (2006) 13 BPR 24,147; [2006] NSWCA 369 …. 2.13, 2.16 Mayer v Coe (1968) 88 WN (NSW) 549 …. 14.25 Meadow Springs Fairway Resort Ltd (in liq) v Balanced Securities Limited (ACN083 514 685) (No 2) [2008] FCA 471 …. 15.20 Medical Benefits Fund of Australia Ltd v Fisher [1984] Qd R 606 …. 13.36, 17.49 Melbourne Banking Corp Ltd v Brougham (1882) LR 7 App Cas 307 …. 20.30 Melbourne Pathology Pty Ltd v Health Insurance Commission (1997) 72 FCR 513 …. 16.37 Mercantile Credits Ltd v Australia and New Zealand Banking Group Ltd (1988) 48 SASR 407 …. 21.53 —v Shell Co (Aust) Ltd (1976) 136 CLR 326 …. 12.31, 12.32, 12.40, 16.27, 17.6, 17.45, 17.49 Mercantile Mutual Life Insurance Co Ltd v Gosper (1991) 25 NSWLR 32 …. 13.47, 13.63 Mercier v Mercier [1903] 2 Ch 98 …. 10.19, 10.31 Michael v Onisiforou (1977) 1 BPR 9356 …. 13.33 Midland Bank Trust Co Ltd v Green [1983] AC 513 …. 21.48 Midland Brick Pty Ltd v Welsh (2006) 32 WAR 287 …. 22.23

Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 …. 2.28, 4.2 Miller v Emcer Products Ltd [1956] Ch 304 …. 19.4 —v Evans [2010] WASC 125 …. 22.31 —v Minister of Mines [1963] AC 484 …. 15.32 Milroy v Lord (1862) 45 ER 1185 …. 11.20 Miscamble v Phillips [1936] St R Qd 136 …. 19.47 Mischel Holdings Pty Ltd v Mischel [2013] VSCA 375 …. 11.27 Modular Design Group Pty Ltd, Re (1994) 35 NSWLR 96 …. 20.28, 20.36, 20.42, 20.68 Moffett v Dillon [1999] 2 VR 480 …. 15.20 Monash City Council v Melville (2000) V ConvR 54-621 …. 3.17 Moody v Steggles (1879) 12 Ch D 261 …. 19.15 Moore v Dimond (1929) 43 CLR 105 …. 16.20, 16.29, 16.44 —v Ullcoats Mining Co Ltd [1908] 1 Ch 575 …. 18.35 Moore, Re [1901] 1 Ch 936 …. 8.9 Moraitis Fresh Packaging (NSW) Pty Ltd v Fresh Express (Aust) Pty Ltd (2008) 14 BPR 26,339; [2008] NSWCA 327 …. 6.21 Morris v Pinches (1969) 212 EG 1141 …. 3.13 Moses v State of Western Australia (2007) 160 FCR 148 …. 4.34 Mulcahy v Curramore Pty Ltd [1974] 2 NSWLR 464 …. 3.12, 3.28, 3.29, 3.46 Muller v Trafford [1901] 1 Ch 54 …. 17.49 Multiservice Bookbinding Ltd v Marden [1979] Ch 84 …. 20.68 Municipal District of Concord v Coles (1905) 3 CLR 96 …. 15.32 Munro v Stuart (1924) 41 SR (NSW) 203 …. 13.12 Murray v Dunn [1907] AC 283 …. 18.54

Muschinski v Dodds (1985) 160 CLR 583; 62 ALR 429 …. 5.5, 5.31, 10.19, 11.15

N Nashvying P/L v Giacomi [2007] QCA 454 …. 18.23 National Australia Bank v Blacker (2000) 104 FCR 288 …. 2.13, 2.16, 2.31 National Carriers Ltd v Panalpina (Northern) Ltd [1981] AC 675 …. 17.36, 18.12 National Dairies WA Ltd v Commissioner of State Revenue (2001) 24 WAR 70 …. 2.19, 2.31 National Executors and Trustees Co of Tasmania Ltd v Edwards [1957] Tas SR 185 …. 19.68 National Provincial and Union Bank of England v Charnley [1924] KB 431 …. 20.6 National Provincial Bank Ltd v Ainsworth [1965] AC 1175 …. 15.14 National Provincial Bank v Ainsworth [1965] AC 1175 …. 9.16 National Trustee, Executors and Agency Co of Australasia Ltd v Boyd (1926) 39 CLR 72 …. 13.27 —v Hassett [1907] VLR 404 …. 13.36 —v Long [1939] VLR 33 …. 19.47 Natural Gas & Oil Corp Ltd (in liq) v Byrne and Boyle (1951) 68 WN (NSW) 207 …. 16.29 Natva Developments Pty Ltd v McDonald Bros Pty Ltd [2004] NSWSC 777 …. 19.48 Natwest Markets Australia Pty Ltd v Tenth Vandy Pty Ltd [2008] VSCA 207 …. 16.7, 18.46, 18.47 Naval, Military and Airforce Club of South Australia (Inc) v Commissioner of Taxation (1994) 51 FCR 154 …. 1.19

Nelson v Hughes [1947] VLR 227 …. 19.47 —v Walker (1910) 10 CLR 560 …. 19.19 Nemesis Australia Pty Ltd v Commissioner of Taxation (2005) 150 FCR 152 …. 8.19 Neowarra v Western Australia [2003] FCA 1402 …. 4.24, 4.39, 4.55 Network Finance Ltd v Lane (1984) Q ConvR 54-132 …. 21.14 New South Wales Department of Housing v Hume (2007) Aust Torts Reports 81-879 …. 17.32 Ngalakan People v Northern Territory (2001) 112 FCR 148 …. 4.39 Nicholas v Andrew (1920) 20 SR (NSW) 178 …. 3.27 Nickerson v Barraclough [1981] Ch 426 …. 19.27 Nisbet, In re; and Potts Contract [1905] 1 Ch 391 …. 22.25 No Fuss Finance Pty Ltd v Miller [2006] NSWSC 630 …. 20.61 Noack v Noack [1959] VR 137 …. 11.11 Noakes & Co Ltd v Rice [1902] AC 24 …. 20.27, 20.39, 20.42 North Sydney Printing Pty Ltd v Sabemo Investment Co Pty Ltd [1971] 2 NSWLR 150 …. 19.31 North v Marina (2003) 11 BLR 21,359 …. 19.21 Northern Counties of England Fire Assurance v Whipp (1884) 26 ChD 482 …. 15.10, 21.46, 21.48 Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313 …. 17.31, 17.32, 17.55 Northern Territory v Alyawarr (2005) 145 FCR 442 …. 4.24, 4.39, 4.41 Northern Territory v Arnhem Land Aboriginal Land Trust (2008) 236 CLR 24 …. 4.30, 4.34, 4.39 Northside Developments Pty Ltd v Registrar- General (1987) 11 ACLR 513 …. 14.34

Norton v Dashwood [1896] 2 Ch 497 …. 2.31 NRMA Insurance Ltd v B & B Shipping and Marine Salvage Co Pty Ltd (1947) 47 SR (NSW) 273 …. 18.9 Nullagine Investments Pty Ltd v Western Australian Club Inc (1993) 177 CLR 635 …. 6.22, 6.23, 6.24, 11.47 NZI Capital Corp Pty Ltd v Child (1991) 23 NSWLR 481 …. 21.3

O O’Brien v Robinson [1973] AC 912 …. 17.55 O’Dea v Allstates Leasing Systems (WA) Pty Ltd (1983) 152 CLR 359; ANZ Conv R 44 …. 18.52, 20.41 Oakwood Constructions Pty Ltd v Wyndon Properties Pty Ltd [2010] QCA 323 …. 3.46 Oates v Oates [1949] SASR 37 …. 11.25 Ocean Estates Ltd v Pinder (Norman) [1969] 2 AC 19 …. 3.24 Old Grovebury Manor Farm Ltd v W Seymour Plant Sales and Hire Ltd (No 2) (1979) 1 WLR 1397 …. 18.26 Olex Focas v Skodaexport Co Ltd (1997) ATPR (Digest) 46-163 …. 18.67 Olympic Holdings Pty Ltd v Windslow Corporation Pty Ltd (in liq) [2008] WASCA 80 …. 20.36 Osmanoski v Rose [1974] VR 523 …. 15.28 Oughtred v IRC [1960] AC 206 …. 5.15 Overland v Lenehan (1910) 11 Queensland Law Journal 59 …. 13.31 Owen v Gadd [1956] 2 QB 99 …. 17.25, 17.26, 17.30 Owners of East Fremantle Shopping Centre West Strata Plan 8618 v Action Supermarkets Pty Ltd [2008] WASCA 180 …. 19.7

P

P & A Swift Investments v Combined English Stores Group plc [1989] AC 632 (Swift) …. 22.12 Palais Parking Ltd v Shea (1980) 24 SASR 425 …. 12.28 Palette Shoes Pty Ltd v Krohn (1937) 58 CLR 1 …. 5.16 Palmer v Hendrie (1859) 54 ER 136 …. 21.4 Palumberi v Palumberi [1986] NSW ConvR 55- 287 …. 2.11, 2.16, 2.31 Pan Australian Credits (SA) Pty Ltd v Kolim Pty Ltd (1981) 27 SASR 353 …. 2.31 Pannizutti v Trask (1987) 10 NSWLR 531 …. 11.40, 11.43 Paradine v Jane (1647) 82 ER 897 …. 17.36 Park v Lasrado [2005] QSC 211 …. 2.31 Parker Tweedale v Dunbar Bank Plc [1990] 3 WLR 767 …. 21.17, 21.40 Parker v Registrar-General [1976] 1 NSWLR 342 …. 14.35 —v— [1977] 1 NSWLR 22 …. 14.15, 14.34, 14.36 —v Webb (1693) 3 Salk 5; 91 ER 656 …. 22.13 Patmore v Upton (2004) 13 Tas R 95 …. 15.32 Payne v Webb (1874) LR 19 Eq 26 …. 10.28 Pearson v Aotea District Maori Land Board (1945) NZLR 542 …. 16.27 Pearson v Pearson [1961] VR 693 …. 10.31 Pegasus Gold Australia Ltd v Metso Minerals (Australia) Ltd (2003) 16 NTLR 54 …. 2.13 Peldan v Anderson (2006) 227 CLR 471 …. 11.34 Pendlebury v Colonial Mutual Life Assurance Society Ltd (1912) 13 CLR 676 …. 20.2, 21.11, 21.18, 21.23, 21.24, 21.25, 21.29, 21.32, 21.40 Penton v Barnett [1898] QB 276 …. 18.30

Perera v Vaniyar [1953] 1 All ER 1109 …. 17.25 Perman v Maloney [1939] VLR 376 …. 11.39 Permanent Custodians Ltd v El Ali [2008] NSWSC 1264 …. 12.37 —v Yazgi [2007] NSWSC 279 …. 21.53 Permanent Finance Corporation v Flavel; Ex parte Flavel [1968] Qd R 84 …. 20.24 Permanent Mortgages Pty Ltd v Cook [2006] NSWSC 1104 …. 20.61 Permanent Trustee Australia Ltd v Shand (1992) 27 NSWLR 426 …. 19.63, 19.67 Permanent Trustee Nominees (Canberra) Ltd v Coral Sea Resort Motel Pty Ltd, Re [1989] 1 Qd R 314 …. 11.45 Perpetual Trustee Co Ltd v Khoshaba [2006] NSWCA 41 …. 20.61 Perpetual Trustees v Tsai [2004] NSWSC 745 …. 12.37 Perpetual Trustees Victoria Ltd v English [2009] NSWSC 478 …. 12.37 —v Cipri [2008] NSWSC 1128 …. 12.37 —v Tsai (2004) 12 BPR 22,281 …. 21.53 Perrin v Lyon (1807) 9 East 170; 103 ER 538 …. 6.18, 6.35 Perry v Clissold [1907] AC 73; (1906) 4 CLR 374 …. 3.3 Perry-Herrick v Attwood (1857) 44 ER 895 …. 21.48 Person-To-Person Financial Services Pty Ltd v Sharari [1984] 1 NSWLR 745 …. 15.27 Petel v Humich [1999] 21 WAR 24 …. 19.38 Petkov v Lucerne Nominees Pty Ltd (1992) 7 WAR 163 …. 3.24 Pettey v Parsons [1914] 2 Ch 653 …. 19.48 Phillips v Phillips (1861) 4 De GF & J 208; 45 ER 1164 …. 9.18 Phipps v Pears [1965] 1 QB 76 …. 19.6, 19.21

Pianta v National Finance and Trustees Ltd (1964) 180 CLR 146 …. 9.30 Pico Holdings Inc v Wave Vistas Pty Ltd (formerly Turf Club Australia Pty Ltd) (2005) 214 ALR 392 …. 9.25, 20.16 Picwoods Pty Ltd v Panagopoulos (2005) NSW ConvR 56-120 …. 16.43, 16.44 Pieper v Edwards [1982] 1 NSWLR 336 …. 19.62 Pilch Pitcher v Rawlins (1872) LR 7 Ch 259 …. 21.48 Pimms Ltd v Tallow Chandlers Company [1964] 2 QB 547 …. 17.18, 17.49 Pioneer Gravels (Qld) Pty Ltd v T&T Mining Corp Pty Ltd [1975] Qd R 151 …. 18.36, 18.39 Pirie v Registrar-General (1962) 109 CLR 619 …. 22.29 —v Saunders (1961) 104 CLR 149 …. 16.43 —v The Registrar-General (1962) 109 CLR 619 …. 14.4 Pitcher v Rawlins (1872) 7 Ch App 259 …. 13.59 Platt v Ong [1972] VR 197 …. 18.38 Platzer v Commonwealth Bank of Australia [1997] 1 Qd R 266 …. 15.20 Plimmer v Mayor of Wellington (1884) 9 App Cas 699 …. 5.9 Pole-Carew v Western Counties & General Manure Co Ltd [1920] 2 Ch 97 …. 2.31 Post Investments Pty Ltd v Wilson (1990) 26 NSWLR 598 …. 22.39 Post Office v Aquarius Properties Pty Ltd [1987] 1 All ER 1055 …. 17.13 Powell v McFarlane (1979) 38 P & CR 452 …. 3.13, 3.18, 3.22, 3.24 Pralle v Scharka [1978] 2 NSWLR 450 …. 11.2 Prasad v Fairfield City Council (2001) 10 BPR 18,747 …. 17.28

Pratten v Warringah Shire Council [1969] 2 NSWLR 161 …. 13.55 Prior v Moore (1901) 1 Ch 936 …. 6.20 Pritchard v Racecage Pty Ltd (1997) 142 ALR 527 …. 18.67 Pro-Vision Developments Pty Ltd v Ku-ring-gai Municipal Council (2003) 131 LGERA 108 …. 19.48 Progressive Mailing House Pty Ltd v Tabali Pty Ltd (1985) 157 CLR 17; 59 ALJR 373 …. 16.4, 16.7, 17.36, 18.9, 18.46, 18.47, 18.58 Proudfoot v Hart (1890) 25 QBD 42 …. 17.9, 17.10, 17.13 Provident Capital Ltd v Printy [2008] NSWCA 131 …. 21.53 Prowse v Johnson [2012] VSC 4 …. 22.31 Prudential Assurance Co Ltd v London Residuary Body [1992] 2 AC 386 …. 16.44 —v [1992] 2 WLR 279 …. 18.11 Pryce v McGuinness [1966] Qd R 591 …. 19.47 PT Ltd v Maradona Pty Ltd (1992) 25 NSWLR 643 …. 12.31, 12.37 Public Trustee v Bellotti (1986) 4 BPR 9196 …. 3.46 Public Trustee (SA) v Paradiso (1995) 64 SASR 387 …. 12.30 Public Trustee v Pfeiffle [1991] 1 VR 19 …. 11.18, 11.27 Puntoriero, Re (1991) 104 ALR 523 …. 5.16 Purcell, ex parte (1983) Q ConvR 54–066 …. 19.48 Purefoy v Rogers (1671) 2 Saund 380; 85 ER 1181 …. 7.25 Pwllbach Colliery Co Ltd v Woodman [1915] AC 634 …. 19.30 Pyramid Building Society (in liq) Ltd v Scorpion Hotels Pty Ltd [1998] 1 VR 188 …. 12.25, 12.30

Q QGC Pty Limited v Bygrave (2011) 199 FCR 94 …. 4.83

Quach v Marrickville Municipal Council (No 2) (1990) 22 NSWLR 55 …. 3.26, 13.54 Queensland Premier Mines Pty Ltd v French (2007) 235 CLR 81 …. 12.36, 12.37 Queensland v Byers [2006] QSC 334 …. 3.33 Qurum Pty Ltd v Younger (1995) NSW ConvR 55–738 …. 21.32

R R v Sparrow [1990] 1 SCR 1075 …. 4.51 —v Toohey (1982) 158 CLR 327 …. 19.63 Radaich v Smith (1959) 101 CLR 209 …. 16.33, 16.34, 16.36, 16.38, 16.44 Radfor v Bellevue Apartments Pty Ltd [2008] WASC 291 …. 15.38 Ramsay v Trustees Executors and Agency Co Ltd (1948) 77 CLR 321 …. 6.18 Ramsden v Dyson (1866) LR 1 HL 129 …. 3.38, 3.43, 5.9 Rance v Elvin (1985) 49 P & Cr 9 …. 19.6 Rasmussen v Rasmussen (1995) 1 VR 613 …. 13.61 Rawlinson v Ames [1925] Ch 96 …. 9.8 Ray v Fairway Motors (Barnstaple) Ltd (1968) 20 P & Cr 261 …. 19.61 Redgrave v Hurd (1881) 20 Ch D 1 …. 5.13 Redhouse Farms (Thorndon) v Catchpole (1976) 244 EG 295 …. 3.18 Rees v Rees [1931] SASR 78 …. 11.4, 11.5 Reeve v Lisle [1902] AC 461 …. 20.30, 20.38 Refina Pty Ltd v Binnie [2009] NSWSC 914; (2009) 14 BPR 26,957 …. 3.17 Regent v Millett (1976) 133 CLR 679 …. 9.8, 16.25

Registrar of Titles (WA) v Franzon (1975) 132 CLR 611 …. 14.15, 14.17, 14.21 Registrar of Titles v Crowle (1947) 75 CLR 191 …. 14.34 —v Spencer (1909) 9 CLR 641 …. 14.5, 14.34 —v Behn (1981) 35 ALR 633 …. 14.33, 14.36 Registrar-General v Harris (1998) 45 NSWLR 404 …. 14.17 Reid v Bickerstaff [1909] 2 Ch 305 …. 22.33 Reid v Smith (1905) 3 CLR 656 …. 2.12 Reilly v Liangis Investments Pty Ltd (2000) 9 BPR 17,509 …. 17.12 Renard Constructions (ME) Pty Ltd v Minister for Public Works (1992) 26 NSWLR 234 …. 17.33 Rhodes v Stephens [1994] 2 WLR 429 …. 22.25 Rice v Rice (1852) 161 ER 646 …. 21.47, 21.48 Richard Frank Horton Berryman v Robert Sonnenschein [2008] NSWSC 213 …. 19.17 Riches v Hogben (1986) 1 Qd R 315 …. 9.25 Richmond v Savill [1926] 2 KB 530 …. 18.8 Riley v Pentilla [1974] VR 457 …. 3.17, 3.19, 3.20, 19.6, 19.8, 19.21, 19.62 Ripka Pty Ltd v Maggiore Bakeries Pty Ltd [1984] VR 629 …. 18.29 Risk v Northern Territory (‘Larrakia’) (2007) 240 ALR 74 …. 4.34, 4.55 Risk v Northern Territory [2006] FCA 404 …. 4.41 —v— (2007) 240 ALR 75 …. 4.41 Robbins v Jones (1863) 143 ER 768 …. 17.31 Robert, Re; Ex parte Brook (1878) 10 Ch D 100 …. 2.22 Roberts (DM) Ltd v Mudgway [2013] NZCA 187 …. 17.18

Roberts v Rose (1865) LR 1 Ex 82 …. 19.49, 19.50 Robertson v Fraser (1871) 6 Ch App 696 …. 10.11, 10.28 Robinson v Registrar-General (1982) 2 BPR 9634 …. 14.12, 14.25, 14.35, 14.36 Rochfoucauld v Boustead [1897] 1 Ch 196 …. 5.22 Rock v Todeschino [1983] 1 Qd R 356 …. 19.47 Rockingham City v PMR Quarries Pty Ltd (2001) 118 LGERA 93 …. 16.36 Rodgers v Moonta Town Corporation (1981) 55 ALJR 710 …. 16.20 Rogers v Hosegood [1900] 2 Ch 388 …. 22.11, 22.14, 22.15, 5.19 —v Resi-Statewide Corp Ltd (1991) 29 FCR 219 …. 12.30, 13.19 Rosa Investments Pty Ltd v Spencer Shier Pty Ltd [1965] VR 97 …. 18.34 Rose (dec’d), Re [1962] QWN 4 …. 10.12 Rosher, Re; Rosher v Rosher (1884) 26 Ch D 801 …. 6.21 Royal Botanic Gardens and Domain Trust v South Sydney City Council (2002) 240 CLR 45 …. 17.33 Royalene Pty Ltd v Registrar of Titles [2008] QSC 64 …. 13.6 Rufa v Cross [1981] Qd R 365 …. 22.26 Rugby School (Governors) v Tannahill [1935] 1 KB 87 …. 18.23, 18.24, 18.58 —v [1934] 1 KB 695 …. 18.58 Rule v Mallon (2000) 10 BPR 18,005 …. 10.16 Russell v Registrar-General (1906) 26 NZLR 1223 …. 14.35 —v Registrar of Titles [1906] AC 503 …. 14.25 —v Scott (1936) 55 CLR 440 …. 5.3 Russo v Bendigo Bank [1999] 3 VR 376 …. 13.5, 13.14, 13.63

Ryan v Dries (2002) 10 BPR 19,497; [2002] NSWCA 3 …. 11.6, 11.11 Ryan v Ryan [2012] NSWSC 636 …. 10.21

S Saade v Registrar-General (NSW) (1993) 179 CLR 58; 118 ALR 219 …. 14.15, 14.17, 14.31, 14.35, 14.36 Sablebrook Pty Ltd v Credit Union Australia Ltd [2008] QSC 242 …. 21.22 Sainsbury (J) plc v Enfeld London BC [1989] 2 All ER 817 …. 22.15 Sakoua v Williams (2005) 64 NSWLR 588 …. 17.32 Saleeba v Wilke (2007) ANZ ConvR 664 …. 11.32 Saliba v Saliba [1976] Qd R 205 …. 6.21 Sampi v Western Australia [2005] FCA 777 …. 4.39, 4.93 —v [2010] 266 ALR 537; [2010] FCAFC 26 …. 4.39, 4.93 Sampi v Western Australia (No 2) (‘Bardi Jawi — Brue Reef’) (2005) 224 ALR 358; [2005] FCA 1567 …. 4.55 Samuel v Jarrah Timber and Wood Paving Corp [1904] AC 323 …. 20.30 Sanderson v Berwick-upon-Tweed Corp (1884) 13 QBD 547 …. 17.25 Sandgate Corporation Pty Ltd (in liq) v lonnou Nominees Pty Ltd [2000] WASC 91 …. 21.42 Santley v Wilde (1899) 2 Ch 474 …. 20.4 Sardon Pty Ltd v The Registrar of Titles [2004] WASC 56 …. 21.42 Say v Smith (1563) Plowd 269; 75 ER 410 …. 16.42, 16.44 Say-Dee Pty Ltd v Farah Constructions Pty Ltd [2005] NSWCA 309 …. 13.51 Scala House Ltd v Forbes [1974] QB 575 …. 18.23 Scapinello v Scapinello [1968] SASR 316 …. 11.6, 11.15

Schleter t/as Cape Crawford Tourism v Brazakka Pty Ltd (2002) 12 NTLR 76 …. 2.4 Schnytzer v Wielunski [1978] VR 418 …. 11.39 Schultz v Corwill Properties Pty Ltd (1969) 90 WN (Pt 1) (NSW) 529 …. 13.15, 13.17 SE Drainage Board v Savings Bank of SA (1939) 62 CLR 603 …. 13.55 Seaforth Land Sales Pty Ltd, Re [1977] Qd R 317 …. 19.42, 19.44 Sebea v Territory of Papua (1941) 67 CLR 544 …. 2.22, 2.31 Secured Income Real Estate (Aust) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596 …. 17.18 Segal Securities Ltd v Thoseby [1963] 1 QB 887 …. 18.29 Seidler v Schallhofer [1982] 2 NSWLR 80 …. 6.18 Service Station Association Ltd v Berg Bennett & Associates Pty Ltd (1993) 45 FCR 84; 117 ALR 393 …. 17.33 7-Eleven Stores Pty Ltd v United Petroleum Pty Ltd [2010] QSC 469 …. 17.55 Shaw v Garbutt (1996) 7 BPR 14,816 …. 3.16, 3.17, 3.30, 3.46 Shaw v Wolf (1998) 83 FCR 113 …. 4.39 Shell Co of Australia v Zanelli [1973] 1 NSWLR 216 …. 18.7 Shevill v Builders Licensing Board (1982) 149 CLR 620 …. 17.2, 18.41, 18.42, 18.43, 18.47, 22.13 Shiloh Spinners Ltd v Harding [1973] AC 691 …. 18.36, 18.58 Short v Patrial Holdings Pty Ltd (1994) 6 BPR 13,996 …. 19.17 Showa Shoji Australia Pty Ltd v Oceanic Life Ltd (1994) 34 NSWLR 548 …. 17.45 Sibbles v Highfern Pty Ltd (1987) 164 CLR 214 …. 21.52 Sifton v Sifton [1938] AC 656 …. 6.20, 6.35

Silovi Pty Ltd v Barbaro (1988) 15 NSWLR 466 …. 5.12 Simmons v Lee [1998] 2 Qd R 671 …. 22.13 Simms v Lee (1945) 45 SR (NSW) 352 …. 16.29 Simpson v Forrester (1973) 132 CLR 499 …. 21.4, 21.53 Sinclair v Hope Investments Pty Ltd [1982] 2 NSWLR 870 …. 15.32 Small v Tomassetti [2001] NSWSC 1112 …. 12.37 Smith and Snipes Hall Farm Ltd v River Douglas Catchment Board [1949] 2 KB 500 …. 22.11, 22.17 South Coast Oils (Qld & NSW) Pty Ltd v Look Enterprises Pty Ltd [1988] 1 Qd R 680 …. 16.25, 16.43 South Sydney District Rugby League Football Club Ltd v News Ltd (2000) 177 ALR 611 …. 17.33 Southern Centre of Theosophy Inc v South Australia [1982] AC 706 …. 5.2 Southern Goldfields Ltd v General Credits Ltd (1991) 4 WAR 138 …. 21.29 Southwark London Borough Council v Mills [1999] 3 WLR 939 …. 17.25, 17.26, 17.30 Southwell v Roberts (1940) 63 CLR 581 …. 21.9 Sparta Nominees Pty Ltd v Orchard Holdings Pty Ltd [2002] WASC 54 …. 17.11, 17.20 Spathis v Hanave Investment Co Pty Ltd [2002] NSWSC 304 …. 17.23, 17.25, 17.26, 17.28 Spence v Federal Commissioner of Taxation (1967) 121 CLR 273 …. 10.13, 10.29 Spencer’s Case (1583) 77 ER 72 …. 17.45 Sprott v Harper (2000) Q ConvR 54-545 …. 11.33, 11.47 Squire v Rogers (1979) 27 ALR 330; 39 FLR 106 …. 11.8, 11.13

SS & M Ceramics Pty Ltd v Kin [1996] 2 Qd R 540 …. 19.45 St Edmundsbury and Ipswich Diocesan Board of Finance v Clark (No 2) [1975] 1 WLR 468 …. 19.26 Stack v Dowden [2007] 2 AC 432 …. 10.31 Standard Chartered Bank v Walker [1982] 1 WLR 1410 …. 21.17 Stanhope v Haworth (1886) 3 TLR 34 …. 18.39 State Bank of NSW v Berowra Waters Holdings Ltd (1986) 4 NSWLR 398 …. 12.28 State Electricity Commission (Vic) and Joshua’s Contract, Re [1940] VLR 121 …. 19.30 State of Queensland v Byers [2006] QSC 334 …. 14.8, 14.36 Steadman v Steadman [1976] AC 536 …. 9.8, 16.25 Steer v Hemmings [2010] QSC 460 …. 3.42 Stephenson Nominees, Re (1987) 76 ALR 485 …. 5.5 Stern v McArthur (1988) 165 CLR 489 …. 9.32 Stevens v Allan (1955) 58 WALR 1 …. 19.47 Stevenson v Yasso [2006] QCA 40 …. 4.93 Stilbo Pty Ltd v MCC Pty Ltd (in liq) (2003) 11 Tas R 63 …. 6.4 Stirling v Leadenhall Residential 2 Ltd [2001] 3 All ER 645 …. 16.36 Stone v Leonardis (2011) 110 SASR 503 …. 9.32 Stone v Owen [2001] 1 Qd R 419 …. 11.4 Stone, Re [1989] 1 Qd R 351 …. 11.36 Story v Advance Bank of Australia Pty Ltd (1993) 31 NSWLR 722 …. 13.47 Street v Mountford [1985] 2 All ER 289 …. 16.38 —v— [1985] AC 809 …. 16.34, 16.36

Strickland v Minister for Lands (WA) (1998) 85 FCR 303 …. 4.76 Stuart v Kingston (1923) 32 CLR 309 …. 13.7 Stuy v BC Ronalds Pty Ltd [1984] 2 Qd R 578 …. 19.47 Suhr v Michelmore [2013] VSC 284 …. 22.31 Sunny Corp Pty Ltd v Elkayess Nominees Pty Ltd [2006] VSC 314 …. 3.22 Sunny Corporation Pty Ltd v Elkayess Nominees Pty Ltd [2006] VSC 314 …. 3.24 Sunshine Retail Investments Pty Ltd v Rodney Wulff [1999] VSC 415 …. 13.38, 19.38 Supreme Court Registrar v Alexander Dawson Inc, Re [1976] 1 NZLR 615 …. 20.34, 20.42 Swanston Mortgage Pty Ltd v Trepan Investments Pty Ltd [1994] 1 VR 672 …. 9.32, 15.32 Swift v Macbean [1942] 1 KB 375 …. 16.43 Sze To Chun Keung v Kung Kwok Wai David [1997] 1 WLR 1232 …. 3.33

T Tabcorp Holdings Ltd v Bowen Investments Pty Ltd (2007) ANZ ConvR 297 …. 17.13, 17.14, 17.15 —v— (2008) 166 FCR 494 …. 17.14 —v— (2009) 236 CLR 272 …. 17.14 Tailby v Official Receiver (1888) 13 App Cas 523 …. 5.16 Tallon v The Proprietors of Metropolitan Towers Building Units Plan No 5157 [1997] 1 Qd R 102 …. 3.42 Tamsco v Franklins Ltd [2001] 10 BPR 19,077 …. 17.18 Tanwar Enterprises Pty Ltd v Cauchi (2003) 217 CLR 315 …. 9.9, 9.25,

9.32 Tara Shire Council v Garner [2002] QCA 232 …. 13.48 —v— [2003] 1 Qd R 556 …. 13.51 Taylor v Browning (1885) 11 VLR 158 …. 19.47 Taylor v London and County Banking Co [1901] 2 Ch 23 …. 15.16 Tecbild Ltd v Chamberlain (1969) 20 P & CR 633 …. 3.19 Teevan v Smith [1882] 2 Ch D 724 …. 20.34, 20.42 Tegg, Re [1936] 2 All ER 878 …. 6.35 Tehidy Minerals v Norman [1971] 2 QB 528 …. 19.65 Telstra Corporation Ltd v Capetan Pty Ltd (1996) 7 BPR 14,744 …. 17.41 Templeton v The Leviathan Pty Ltd (1921) 30 CLR 34 …. 12.19, 13.7 Tepper’s Will Trusts, Re; Kramer v Ruda [1987] Ch 358 …. 6.35 Tessman v Costello (1987) 1 Qd R 285 …. 20.11 Texaco Antiles Ltd v Kernchan [1973] 2 All ER 118 …. 22.39 The Owners of Corinne Court 290 Stirling Street Perth Strata Plan 12821 v Shean Pty Ltd [2000] WASC 181 …. 19.61 Thellusson v Woodford (1798) 11 Ves 112 …. 8.9 Theodore v Mistford Pty Ltd (2005) 221 CLR 612 …. 20.6, 20.15 Thirsty Mack’s Pty Ltd v Hasbeen Pty Ltd [2008] FCA 32 …. 16.27 Thomas v Sorrell (1674) Vaugh 330; 124 ER 1098 …. 16.39 Thorpe v Commonwealth (No 3) (1997) 71 ALJR 767 …. 4.91 Thrift v Thrift (1975) 10 ALR 332 …. 11.3 Thurgood, Re [1987] Q ConvR 54-239 …. 11.4 Thwaites v Ryan [1984] VR 65 …. 5.22 Tileska v Bevelon (1989) 4 BPR 9601 …. 19.22

Timpar Nominees Pty Ltd v Archer [2001] WASCA 430 …. 19.45 Todburn Pty Ltd v Taormina International Pty Ltd (1990) 5 BPR 11,173 …. 18.52 Todrick v Western National Omnibus Co Ltd [1934] Ch 561 …. 19.9 Tolley v Byrne (1902) 28 VLR 95 …. 14.25 Tolman’s Estate, Re (1928) 23 Tas LR 29 …. 11.6 Toohey v Gunther (1928) 41 CLR 181 …. 20.38, 20.39, 20.42 Torrisi v Magame Pty Ltd [1984] 1 NSWLR 14 …. 19.32 Tottenham Hotspur Football and Athletic Co Ltd v Princegrove Publishers Ltd [1974] 1 All ER 17 …. 5.15 Tramways Advertising Pty Ltd v Luna Park (NSW) Ltd (1938) 38 SR (NSW) 632 …. 18.42 Travinto Nominees Pty Ltd v Vlattas (1973) 129 CLR 1 …. 12.32 Treweeke v 36 Wolseley Road Pty Ltd (1973) 128 CLR 274 …. 19.6, 19.58, 19.62 Tricontinental Corporation Ltd v HDFI Ltd (1990) 21 NSWLR 689 …. 18.23 Trieste Investments Pty Ltd v Watson (1963) 64 SR (NSW) 98 …. 14.16 Trustees of the Property of Cummins v Cummins (2006) 227 CLR 278 …. 10.13, 10.31 Tse Kwong Lam v Wong Chit Sen [1983] 1 WLR 1349 …. 21.32, 21.40 Tuck’s Settlement Trusts, Re; Public Trustee v Tuck [1978] Ch 49 …. 6.35 Tulk v Moxhay (1848) 2 Ph 774; 41 ER 1143 …. 5.18, 22.24, 22.29, 22.41 Twidale v Bradley [1990] 2 Qd R 464 …. 16.25

U Ultimate Property Group v Lord (2004) NSW ConvR 56 092 …. 21.20 Unimin Pty Ltd v Commonwealth (1974) 2 ACTR 71 …. 19.63 Union Bank of Australia v Whitelaw [1906] VLR 711 …. 20.49 Union of London and Smith’s Bank Ltd’s Conveyance, Re [1933] Ch 611 …. 22.20 United Starr-Bowkett Co-op Building Society v Clyne [1968] 1 NSWLR 134 …. 13.21 Uniting Church in Australia Property Trust (NSW) v Immer (No 145) Pty Ltd (1991) 24 NSWLR 510 …. 2.5 Uniting Church in Australia Property Trust (NSW) v Immer (No 145) Pty Ltd (1991) 24 NSWLR 510 (CA) …. 1.19 —v— (1993) 183 CLR 26 (HC) …. 1.19 Upton v Tasmanian Perpetual Trustees Limited (2007) 158 FCR 118 …. 21.11, 21.16, 21.19, 21.21, 21.22, 21.24, 21.30, 21.32, 21.38, 21.40

V Vagg v McPhee (2013) 85 NSWLR 154 …. 10.5 Valbirn Pty Ltd v Powprop Pty Ltd [1991] 1 Qd R 295 …. 13.48 Valoutin v Furst (1998) 154 ALR 119 …. 13.61 Van Achterberg, Ex parte [1984] 1 Qd R 160 …. 3.42 Vane v Lord Barnard (1716) 23 ER 1082 …. 6.34, 6.35 Vasile v Perpetual Trustees WA Ltd (1987) NSW ConvR 55-345 …. 17.28, 17.30 Vasilikopoulos v New South Wales Land and Housing Corporations [2010] NSWCA 91 …. 17.55 Vassos v State Bank of South Australia [1993] 2 VR 316 …. 13.48

Vedejs v Public Trustee [1985] VR 569 …. 10.18, 10.31 Vellav Permanent Mortgages Pty Ltd [2008] NSWSC 505 …. 21.53 Vercorp v Lin [2007] 2 Qd R 180 …. 6.21 Verdugo, Re (1990) Q ConvR 54-347 …. 3.46 Verrall v Nott (1939) 39 SR (NSW) 89 …. 5.2 Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479 …. 1.17 Volley Investments Pty Ltd v Coles Myer Ltd [2005] WASCA 52 …. 17.24 Vopak Terminal Darwin Pty Ltd v Natural Fuels Darwin Pty Ltd [2009] FCA 742 …. 2.22 Voudouris v Registrar-General (1993) NSWLR 195 …. 14.16

W W v D (2012) 115 SASR 61 …. 11.4 Waimiha Sawmilling Co Ltd v Waione Timber Co Ltd [1926] AC 101 …. 13.12 Wainter Pty Ltd v Jermyn [2005] WADC 228 …. 18.8 Waldon v Bird (1974) VR 497 …. 20.4 Walker v Linom [1907] 2 Ch 104 …. 15.10, 21.48 Walley v Western Australia (1996) 67 FCR 366 …. 4.76 Wallis’s Cayton Bay Holiday Camp Ltd v Shell- Mex and BP Ltd [1975] QB 94 …. 3.20 Walsh v Lonsdale (1882) 21 Ch D 9 …. 5.15, 9.25, 9.27, 9.32, 16.23, 20.6, 20.14, 21.48 —v— (1882) 21 Ch D 254 …. 16.25 Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 …. 5.9, 5.11, 5.31

—v— (1990) 170 CLR 394 …. 5.31 Ward v Kirkland [1967] Ch 194 …. 19.6, 19.34 Warmington v Miller [1973] 2 All ER 372 …. 5.15 Warren v Caruana [1974] 2 NSWLR 301 …. 20.41 —v Keen [1954] 1 QB 15 …. 17.34 Waterhouse v Waugh [2003] NSWCA 139 …. 17.34 Watson v Delaney (1991) 22 NSWLR 358 …. 16.25 Wayella Nominees Pty Ltd v Cowden Ltd [2003] WASC 210 …. 19.37 Welch v Birrane (1974) 29 P & Cr 102 …. 18.28 West v Williams [1899] 1 Ch 132 …. 21.52 Western Australia v Brown (2014) 88 ALJR 461 …. 4.55, 4.63, 4.93 Western Australia v Commonwealth (1995) 183 CLR 373 …. 4.12, 4.47 —v Njamal People (1996) 134 FLR 211 …. 4.76 —v Sebastian (‘Rubibi’) (2008) 173 FCR 1 …. 4.34, 4.55 —v Ward (2000) 99 FCR 316 …. 4.39, 4.60 —v— (2002) 213 CLR 1 …. 4.1, 4.11, 4.16, 4.22, 4.24, 4.25, 4.26, 4.27, 4.32, 4.40, 4.41, 4.42, 4.51, 4.53, 4.55, 4.59, 4.60, 4.61, 4.62, 4.67, 4.68, 4.93 Westfield Holdings Ltd v Australian Capital Television (1992) 32 NSWLR 194 …. 20.28, 20.30, 20.42, 20.68 Westfield Management Pty Ltd v Perpetual Trustee Co Ltd (2007) 233 CLR 528 …. 22.31, 22.41 —v [2007] HCA 45 …. 19.17 Westminster Bank Ltd v Lee [1956] Ch 7 …. 15.14 Westminster City Council v Clarke [1992] 1 All ER 695 …. 16.36 Westpac Banking Co Ltd v Kingsland [1991] 26 NSWLR 700 …. 21.17

Westpac Banking Corp v Adelaide Bank Limited [2005] NSW ConvR 56-133 …. 21.52 Whaley, Re [1908] 1 Ch 615 …. 2.31 Wheeldon v Burrows (1879) 12 Ch D 31 …. 19.33, 19.47 Wheeler v Mercer [1957] AC 416 …. 16.29 Whelan, Ex parte [1986] 1 Qd R 500 …. 18.33 White v Taylor (No 2) [1968] 1 All ER 1015 …. 19.65 Whitlock v Brew (1968) 118 CLR 445 …. 16.43 Whittlesea City Council v Abbatangelo (2009) 259 ALR 56 …. 3.17, 3.24 —v— [2009] VSCA 188 …. 3.17 Wicklow Enterprises Pty Ltd v Doysal Pty Ltd (1987) 45 SASR 247 …. 12.24, 12.29 Wicks v Bennett (1921) 30 CLR 80 …. 13.7 Wik Peoples v Queensland (1996) 187 CLR 1 …. 2.30, 4.1, 4.13, 4.48, 4.55, 4.58, 4.59, 4.91, 4.93 Wilkes v Spooner [1911] 2 KB 473 …. 9.32, 13.59 William Aldred’s Case (1610) 77 ER 816 …. 19.21 Williams Bros Direct Supply Ltd v Raftery [1958] 1 QB 159 …. 3.22 Williams v Attorney-General (NSW) (1913) 16 CLR 404 …. 2.28 Williams v Hensman (1861) 70 ER 862 …. 11.34, 11.47 —v State Transit Authority of New South Wales (2004) 60 NSWLR 286 …. 19.38, 19.47 —v Wellingborough Borough Council (1974) 33 LGR 40 …. 21.11 Wilmott v Barber (1880) 15 Ch D 96 …. 5.9 Wilson v Anderson (2002) 213 CLR 401 …. 4.58 —v Meudon Pty Ltd [2006] ANZ ConvR 93 …. 16.44

Wily as Administrator of Macquarie Medical Holdings Pty Ltd v Endeavour Health Care Services Pty Ltd [2003] NSWCA 321 …. 20.30 Windmill Investments (London) Ltd v Milano Restaurant Ltd [1962] 2 QB 373 …. 18.29 Wollondilly Shire Council v Picton Power lines Pty Ltd (1994) 33 NSWLR 551 …. 6.21, 6.25, 6.35 Wong v Beaumont Property Trust Ltd [1965] 1 QB 173 …. 19.31 —v St Martins Properties (Aust) Pty Ltd (1991) NSW ConvR 55-566 …. 18.30 Wood Factory Pty Ltd v Kiritos Pty Ltd (1985) NSWLR 300 …. 18.46, 18.47 —v— [1985] 2 NSWLR 105 …. 18.9, 18.44 Wood v Browne [1984] 2 Qd R 593 …. 5.12, 16.34, 16.44 Wood, Re [1894] 3 Ch 381 …. 8.11 Woodall v Clifton [1905] 2 Ch 257 …. 17.45, 17.48 Woodberry v Gilbert (1907) 3 Tas LR 7 …. 15.32 Woodroffe v Box (1954) 92 CLR 245 …. 6.24 Woodward v Wesley Hazell Pty Ltd (1994) 3 Tas R (NC) N4 …. 3.15, 3.20 Woolley v Attorney-General (Vic) (1877) 2 App Cas 163 …. 2.7 Worimi (aka Gary Dates) v Worimi Local Aboriginal Land Council (2010) 181 FCR 320 …. 4.93 Wossidlo v Catt (1934) 52 CLR 301 …. 5.3 Wright v Gibbons (1949) 78 CLR 313 …. 10.23, 11.18

X Xstrata Coal Queensland Pty Ltd v Mark Albury (Karingbal No 2) and

Brendan Wyman (Bidjara People) [2012] NNTT 93 …. 4.76

Y Yanner v Eaton (1999) 201 CLR 351 …. 1.1, 1.12, 1.14, 4.16, 4.38, 4.51, 4.52 Yately Common (Hampshire), Re …. [1977] 1 WLR 840 …. 19.65 Yazgi v Permanent Custodians Ltd (2007) NSWCA 240 …. 12.35, 12.36 Yerkey v Jones (1939) 63 CLR 649 …. 20.67 Yorta Yorta Aboriginal Community v Victoria [1998] FCA 1606 …. 4.1, 4.22, 4.34, 4.93 —v— (2001) …. 4.34 —v— (2002) 214 CLR 422 …. 4.1, 4.16, 4.19, 4.21, 4.22, 4.34, 4.35, 4.36, 4.37, 4.38, 4.39, 4.40, 4.43 Young v Hoger [2001] QCA 253 …. 13.6, 13.16 —v Lamb (No 2) [2001] NSWSC 1014 …. 12.32

Z Zafiropoulis v Recchi (1978) 18 SASR 5 …. 20.9, 21.48 Zapletal v Wright [1957] Tas SR 211 …. 6.18

Table of Statutes References are to paragraphs Commonwealth Aboriginal Land Rights (Northern Territory) Act 1976 …. 4.31, 4.93 Acts Interpretation Act 1901 s 2B …. 2.2 s 15B(4) …. 4.30 Australian Consumer Law s 4 …. 18.61, 18.65 s 18 …. 17.53, 18.61, 18.62, 18.64, 18.69, 20.53 s 21 …. 17.53, 18.66, 18.67, 18.69 s 21 …. 17.53, 18.66, 18.69, 20.59 s 21(1) …. 18.69 s 21(1)(a) …. 18.68 s 22 …. 17.53 s 22(1) …. 18.68 s 29 …. 18.61 s 29(b) …. 18.63 s 29(g) …. 18.63 s 30 …. 18.61, 18.64 ss 232–236 …. 18.62 s 243 …. 18.62 Australian Securities and Investments Commission Act 2001 …. 20.52

s 12BAB(1)(a) …. 20.53, 20.68 s 12BF(1) …. 20.62 s 12BF(2) …. 20.62 s 12BF(3) …. 20.62 s 12BG(1) …. 20.62 s 12BG(2) …. 20.62 s 12BI(1)(a)–(c) …. 20.62 s 12BK …. 20.62 s 12BL …. 20.62 s 12CA …. 20.57 s 12CB …. 20.58 s 12CB(2) …. 20.57 s 12CB(5) …. 20.57 s 12CC …. 20.59 s 12DA(1) …. 20.53, 20.68 s 12DB …. 20.55 s 12DC …. 20.55, 20.68 s 12GD …. 20.56 s 12GF …. 20.56 s 12GLA …. 20.56 s 12GLB …. 20.56 s 12GM …. 20.56 Pt 2 Div 2 Subdiv D …. 20.68 Bankruptcy Act 1966 …. 5.26 Commonwealth Constitution

s 51(xxvi) …. 4.12 s 51(xxxi) …. 4.45, 4.87, 5.28 s 109 …. 4.12, 4.45 Competition and Consumer Act 2010 …. 17.53, 20.60 s 2 …. 18.60 Sch 2 …. 16.6, 17.53, 18.60 Corporations (Aboriginal and Torres Strait Islander) Act 2006 …. 4.29 Family Law Act 1975 …. 10.22 Land Fund and Indigenous Land Corporation (ATSIC Amendment) Act 1995 …. 4.10 Lands Acquisition Act 1989 s 16 …. 19.10 s 17 …. 19.10 Native Title Act 1993 …. 4.9 s 3(a) …. 4.44 s 11(1) …. 4.44, 4.45 s 12 …. 4.12 s 13 …. 4.32 s 14 …. 4.67 s 14(1) …. 4.70 s 15 …. 4.93 s 17(1) …. 4.86 s 17(2) …. 4.86 s 17(3) …. 4.86 s 19 …. 4.67 s 20 …. 4.86

s 22A …. 4.70 s 22B …. 4.93 s 22D …. 4.86 s 22E …. 4.86 s 22F …. 4.67 s 23A …. 4.64, 4.93 s 23A(2) …. 4.93 s 23A(3) …. 4.66, 4.93 s 23A(4) …. 4.64 s 23B …. 4.64, 4.93 s 23B(7) …. 4.62 s 23B(c)(ii) …. 4.93 s 23C …. 4.64, 4.93 s 23C(3) …. 4.63 s 23E …. 4.64 s 23F …. 4.64, 4.66, 4.93 s 23F(3) …. 4.63 s 23G …. 4.64 s 23G(2) …. 4.93 s 23G(3) …. 4.66 s 23I …. 4.64 s 23J(1) …. 4.86 s 23J(2) …. 4.87 s 23J(3) …. 4.87 s 24AA(2) …. 4.75, 4.93

s 24AA(3) …. 4.93 s 24AB(1) …. 4.82 s 24BA …. 4.77 ss 24BA–24BI …. 4.77 ss 24BA–24EB …. 4.75 s 24BB(e) …. 4.82 ss 24BG–24BI …. 4.83 s 24BG …. 4.83 s 24BI …. 4.83 ss 24CA–24CL …. 4.80 s 24CB(e) …. 4.82 s 24CD …. 4.80 ss 24CG–24CL …. 4.83 s 24CG(3)(a) …. 4.83 s 24CG(3)(b) …. 4.83 s 24CI …. 4.83 s 24DA …. 4.81 s 24DC …. 4.82 ss 24DH–24DM …. 4.83 s 24DH …. 4.83 s 24DJ …. 4.83 s 24DM …. 4.81 s 24EA(1)(b) …. 4.83 s 24EB(1)(c) …. 4.76 ss 24FA–24FE …. 4.72

s 24FA …. 4.32 …. 4.86 ss 24GA–24GE …. 4.75 s 24HA …. 4.75 ss 24IA–24IB …. 4.75 ss 24JA–24JB …. 4.75 s 24KA …. 4.75 s 24LA …. 4.75 s 24MD …. 4.72 s 24OA …. 4.75 s 25 …. 4.76 s 25(1)(b) …. 4.75 s 26 …. 4.76 s 26(1A) …. 4.75 s 26(1)(c)(iii)(A) …. 4.75 s 26(2) …. 4.82 s 26(2)(a) …. 4.76 s 26A …. 4.76 s 26B …. 4.76 s 26C …. 4.76 s 26D …. 4.75 …. 4.76 s 27 …. 4.76 s 27A …. 4.76 s 27B …. 4.76 s 28 …. 4.76 s 29 …. 4.76

s 47 …. 4.71 …. 4.93 s 47A …. 4.71, 4.93 s 47B …. 4.71, 4.93 s 51(1) …. 4.86 s 51(3) …. 4.86 s 51(6) …. 4.87 s 51A(2) …. 4.87 s 53 …. 4.87 s 53(1) …. 4.86 s 56(2)(c) …. 4.29 s 56(5) …. 4.19 s 56(6) …. 4.19 s 58 …. 4.29 s 61 …. 4.32 s 61(4) …. 4.29 s 79 …. 4.87 s 82 …. 4.93 ss 190A–190F …. 4.33 ss 203B–203BK …. 4.84 s 203BB(3) …. 4.84 s 203BE …. 4.83 s 211 …. 4.52, 4.54 s 223 …. 4.34, 4.93 s 223(1) …. 4.23 s 223(1)(a) …. 4.35, 4.37, 4.38, 4.39, 4.93

s 223(1)(b) …. 4.30, 4.40, 4.41, 4.42, 4.93 s 223(1)(c) …. 4.43, 4.93 s 223(2) …. 4.23, 4.24 s 225 …. 4.29, 4.32 s 226 …. 4.64, 4.75, 4.93 s 227 …. 4.64, 4.75, 4.93 s 228(2) …. 4.68, 4.93 ss 229–232 …. 4.69, 4.93 s 232A(2)(c) …. 4.93 s 232A(2)(e) …. 4.70 ss 232B–232E …. 4.70 s 233 …. 4.93 s 233(1)(a) …. 4.75 s 233(1)(b) …. 4.75 s 233(2) …. 4.75 ss 233B–232E …. 4.93 s 238 …. 4.71, 4.72, 4.93 s 240A …. 4.93 s 248B …. 4.93 s 253 …. 4.30, 4.73, 4.74, 4.86 Pt 2 Div 2 …. 4.93 Pt 2 Div 2A …. 4.93 Pt 2 Div 2B …. 4.93 Pt 2 Div 3 …. 4.72, 4.73, 4.93 Pt 2 Div 3 Subdiv B …. 4.77

Pt 2 Div 3 Subdiv C …. 4.77 Pt 2 Div 3 Subdiv D …. 4.77 Pt 2 Div 3 Subdiv E …. 4.77 Pt 2 Div 3 Subdiv P …. 4.76 Pt 11 Div 3 …. 4.84 Native Title Amendment Act 1998 …. 4.12, 4.13 Personal Property Securities Act 2009 s 8(1)(j) …. 2.21 s 10 …. 2.21 Racial Discrimination Act 1975 …. 4.3, 4.9, 4.11, 4.63, 4.92, 4.93 s 9 …. 4.85 s 10 …. 4.12, 4.45, 4.85 s 10(1) …. 4.67 Trade Practices Act 1974 s 45 …. 20.60 s 45B …. 20.60 s 51AA …. 18.66, 18.67, 20.57 s 51AB …. 18.66 s 51AC …. 18.67, 18.69, 20.59 s 51AC(1) …. 17.53 s 51AC(2) …. 17.53 s 52 …. 20.53 s 52A …. 18.66 s 53(i) …. 18.63 s 53A …. 20.68

Trade Practices Amendment (Operation of State and Territory Laws) Act 2001 …. 18.69

Australian Capital Territory Civil Law (Property) Act 2006 s 103(2) …. 21.43 s 201 …. 5.4, 5.8, 5.22, 5.31, 16.17, 20.5 s 201(1) …. 9.8 s 201(1)(a) …. 16.23 s 201(4) …. 9.4 s 202 …. 9.8 s 203 …. 9.4, 16.18 s 204 …. 5.14, 5.31, 9.8, 16.25, 20.5 s 206 …. 18.10 s 210 …. 10.15 s 210(2)(b) …. 10.17 s 211 …. 10.15 s 308 …. 21.7 s 426(1) …. 18.18 Land Titles Act 1925 s 12 …. 22.17 s 14(1)(d) …. 12.12 s 32 …. 15.34 s 43(1), 12.5 …. 12.7 s 43(2)–(5) …. 12.7 s 47 …. 12.9

s 48(4) …. 12.9 s 48(8) …. 12.10 s 54(1) …. 10.23 s 57(1) …. 5.14, 15.3 s 58 …. 12.19, 12.31, 20.11 s 58(1)(a) …. 13.34 s 58(1)(b) …. 13.38 s 58(1)(c) …. 13.33 s 58(1)(d) …. 9.4, 13.24, 16.28, 17.6 s 58(1)(f) …. 13.58 s 59 …. 12.19, 13.7, 15.9 s 60(2) …. 12.19 …. 13.7 s 69 …. 3.8, 3.38, 13.39 s 82 …. 16.26, 16.28, 17.6 s 83 …. 12.33, 16.27 s 84 …. 20.25 s 85 …. 9.4 s 86 …. 18.8 s 86(5) …. 18.8 s 92(2) …. 19.68 s 93 …. 20.9 s 94(1) …. 21.10 s 96 …. 20.9, 20.24, 21.6 s 103C …. 19.10 s 103D …. 19.20

s 103E …. 19.56 s 103G …. 19.66 ss 104–108 …. 15.2 s 105(2) …. 15.35 s 107 …. 15.35 s 109 …. 22.14, 22.16, 22.21 s 112 …. 17.35 s 119 …. 17.35, 17.40 s 119(b) …. 17.37 s 120 …. 17.35, 17.40 s 120(1)(a) …. 17.38 s 120(1)(d) …. 18.19, 18.20 ss 143–151 …. 14.12 s 143 …. 14.30, 14.36 s 145 …. 14.32 s 146 …. 14.32 ss 148–150 …. 14.4 s 152 …. 14.6, 14.36 s 154(1)(a) …. 14.14 s 154(1)(b) …. 14.14, 14.19 s 154(1)(d) …. 14.14, 14.16, 14.36 s 155 …. 14.20 s 159 …. 14.26 s 160 …. 12.12 s 170 …. 5.27

s 426 …. 18.21, 18.27 ss 427–428 …. 18.37 Leases (Commercial and Retail) Act 2001 …. 17.51 s 107 …. 18.48 Native Title Act 1994 …. 4.93 s 7 …. 4.11 Perpetuities and Accumulations Act 1985 …. 8.2 s 9 …. 8.19 s 10(3) …. 8.19 s 14 …. 8.3 s 16(1)(b) …. 8.3 s 18 …. 8.21 Residential Tenancies Act 1997 …. 17.7, 17.54 ss 43–65 …. 18.50

New South Wales Aboriginal Land Rights Act 1983 …. 4.93 Acts Interpretation Act 1987 s 21(1) …. 2.2 Agricultural Tenancies Act 1990 ss 6–10 …. 2.23 Commonwealth Power (De Facto Relationships) Act 2003 …. 10.22 Contracts Review Act 1980 s 4 …. 20.61 s 7(1) …. 20.67

s 9(2) …. 20.67 Conveyancing Act 1919 s 10 …. 18.10 s 12 …. 22.17 s 14 …. 5.14, 5.31, 9.3 s 19 …. 6.4 s 19A …. 6.4 s 23B …. 5.14, 5.31, 9.3, 20.5 s 23B(1) …. 16.17, 18.8 s 23C …. 9.8 s 23C(1)(a) …. 16.23 s 23C(1)(b) …. 5.22, 5.24 s 23C(2) …. 5.4, 5.8, 5.31, 9.4, 9.6 s 23D …. 9.4, 9.8 s 23D(2) …. 5.14, 5.31, 9.3, 16.18, 20.5 s 23E …. 9.4 s 25 …. 10.6 s 26 …. 10.15, 10.16 s 26(1) …. 10.25 s 26(2) …. 10.17, 10.26, 10.31 s 27 …. 10.15 s 36C(1) …. 22.7 s 38(3) …. 5.31 s 41 …. 5.14 s 46 …. 19.66

s 46A …. 19.66 s 46A(1) …. 19.60 s 47 …. 6.6, 19.66 s 47(2) …. 6.7 s 47(6) …. 19.56 s 47(6A) …. 19.56 s 47(7) …. 19.60 s 50(1) …. 7.15 s 54(1) …. 18.8 s 54A …. 5.14, 5.31, 9.8, 20.5 s 54A(1) …. 16.25 s 67 …. 2.20 s 70 …. 22.14, 22.16, 22.21 s 70A …. 22.29 s 74 …. 17.35 ss 84–85 …. 17.40 s 84 …. 17.35 s 84(1)(a) …. 17.36 s 84(1)(b) …. 17.37 s 85 …. 17.35 s 85(1)(a) …. 17.38 s 85(1)(b) …. 17.38 s 85(1)(c) …. 17.38 s 85(1)(d) …. 17.39, 18.19, 18.20, 18.58 s 88(1) …. 22.19, 22.35

s 88(3)(a) …. 22.31 s 88A(1A) …. 19.10 s 88AA(1) …. 19.63 s 88AB …. 19.63 s 88B …. 19.25, 22.39 s 88B(3) …. 19.20 s 88E …. 5.20, 22.29 s 88F …. 22.29 s 88K …. 19.41 s 89(1) …. 19.57, 19.59, 19.62, 19.65, 22.41 s 100 …. 21.4, 21.41 s 103(2) …. 21.43, 21.44 s 109(1)(c) …. 21.7 s 109(5) …. 21.7 s 111A …. 21.22 s 112(3) …. 21.40 s 112(9) …. 21.40 s 115(3) …. 21.7 s 117 …. 17.46 s 118 …. 17.46, 17.49 s 120 …. 18.31 s 123 …. 18.31 s 127(1) …. 16.21, 16.44, 18.6 s 129(1) …. 18.18, 18.21, 18.27 s 129(2) …. 18.37

s 129(6)(a) …. 18.18 ss 133–133G …. 17.20 s 133A(1) …. 17.13 s 133A(2) …. 17.13 s 133B(1) …. 17.17 s 133B(3) …. 17.16 s 164 …. 9.14 s 178 …. 19.39 s 179 …. 19.39 ss 184–184J …. 21.47 Crown Lands Act 1989 s 170 …. 3.10 s 171 …. 2.7 Encroachment of Buildings Act 1922 …. 3.38, 5.31 Imperial Acts Application Act 1969 s 8(1) …. 7.27 s 18 …. 18.33 Industrial Relations Act 1996 …. 20.52 s 106 …. 20.61 Interpretation Act 1987 s 21(1) …. 2.2 Landlord and Tenant Act 1899 s 8 …. 18.19 Limitation Act 1969 …. 3.8 s 27(1) …. 3.10

s 27(2) …. 3.10 s 27(4) …. 3.10 s 28 …. 3.10 s 38 …. 3.10 s 38(2) …. 3.30 s 38(3) …. 3.25 s 38(4)(a) …. 3.11 s 52 …. 3.34 s 53 …. 3.34 s 55 …. 3.34 s 56 …. 3.34 s 65 …. 3.10, 3.35, 3.46 Local Government Act 1933 ss 44–46 …. 13.57 Native Title (New South Wales) Act 1994 …. 4.93 s 19 …. 4.11 Perpetuities Act 1984 …. 8.2 s 7(1) …. 8.13, 8.21 s 8 …. 8.13, 8.19, 8.21 s 9(1) …. 8.19 s 9(4) …. 8.19 s 13 …. 8.3 s 17 …. 8.21 s 23A …. 8.5 Real Property Act 1900 …. 5.31

s 12(1)(d) …. 12.12 s 12(3) …. 12.12 s 31B(1) …. 12.7 s 31B(3) …. 12.5, 12.7 s 36(1A) …. 12.9 s 36(5) …. 12.9 s 36(6A) …. 12.9 s 36(11) …. 5.14, 12.10 s 41 …. 20.9 s 41(1) …. 15.3 s 42 …. 12.12, 20.11 s 42(1) …. 12.31 s 42(1)(a) …. 13.34 s 42(1)(a1) …. 13.38, 19.47 s 42(1)(c) …. 13.33 s 42(1)(d) …. 9.4, 13.21, 16.28, 17.6 s 43 …. 12.19, 13.7 s 43(1) …. 15.9 s 43A …. 12.19, 15.9, 15.36 s 43A(1) …. 12.40 s 43B(2) …. 13.58 s 45(1) …. 14.26 s 45(2) …. 14.26 s 45C …. 13.42 s 46 …. 6.6;

s 46A(1) …. 19.20 s 47(7) …. 19.20 s 49(2) …. 19.59 s 53 …. 17.6 s 53(1) …. 16.26, 16.28 s 53(3) …. 12.33, 16.27 s 53(4) …. 20.25 s 56(2) …. 19.68 s 57(1) …. 20.9 s 58 …. 21.10 s 60 …. 20.9, 20.24, 21.6 s 61(1) … 21.41 s 74B–74R, 15.2 s 74F(2), 15.32 s 74I, 15.34 s 74J, 15.35 s 74MA, 15.35 s 100(1) …. 10.24, 10.26 s 100(2)(a) …. 10.23 s 105B(2) …. 15.29 s 118 …. 14.6, 14.36 s 120 …. 14.12 s 120(1)(b) …. 14.14, 14.36 s 120(1)(c) …. 14.14, 14.16, 14.18 s 120(1)(d) …. 14.14

s 120(1)(g) …. 14.16 s 120(2) …. 14.30, 14.36 s 121 …. 14.4 s 122 …. 14.4 ss 128–135 …. 14.12 s 129(1)(b) …. 14.14, 14.20 s 129(1)(c) …. 14.14, 14.16, 14.20, 14.36 s 129(1)(d) …. 14.14, 14.18 s 129(1)(e) …. 14.14 s 129(2) …. 14.24, 14.36 s 131 …. 14.32 s 131(2) …. 14.23, 14.36 s 133 …. 14.30 s 135 …. 14.32 s 136 …. 12.12 Pt 6A …. 3.37, 13.40 Registration of Deeds Act 1935 …. 21.47 Residential Tenancies Act 1995 …. 17.7, 17.54 s 79, 18.50 Residential Tenancies Act 1997 s 53 …. 18.50 Residential Tenancies Act 2010 …. 17.7, 17.54 Retail and Commercial Leases Act 1995 …. 17.7 …. 17.51 s 20D …. 18.49 s 20J …. 18.48

Retail Leases Act 1994 …. 17.7, 17.51 s 44(1) …. 18.48 ss 62A–62B …. 17.53 s 62B(6) …. 18.49 Pt 7A Div 1 …. 17.53 Strata Schemes (Freehold Development) Act 1973 …. 2.5 Strata Titles Act 1988 …. 2.5 Succession Act 2006 …. 6.28 Unfair Contracts Act 1980 …. 20.52 s 4 …. 20.61 s 7 …. 20.61 s 9(2) …. 20.61 Wills, Probate and Administration Act 1898 …. 5.23 Wills Act 1936 …. 5.23, 6.28

Northern Territory Business Tenancies (Fair Dealings) Act 2003 …. 17.7, 17.51 s 60 …. 18.48 ss 76–81 …. 17.53 s 81(b) …. 18.49 Pt 10 …. 17.53 Encroachment of Buildings Act …. 3.38, 5.31 s 3 …. 3.44 s 13 …. 3.44 s 14 …. 3.44

Land Title Act 1994 s 57(1) …. 10.23 s 198 …. 3.8 Land Title Act 2000 s 6 …. 12.5 s 6(1) …. 12.7 s 6(2)–(4) …. 12.7 ss 16–26 …. 12.12 s 30 …. 12.7 s 41 …. 20.9 s 58 …. 10.23 s 65 …. 16.26, 16.28, 17.6 s 66 …. 16.26 s 67 …. 20.25 s 76 …. 20.9 s 80, 20.9 …. 21.6 …. 21.10 s 85(1) …. 21.41 s 86 …. 20.24 s 96 …. 21.6, 21.7 ss 116–124 …. 19.66 ss 132–136 …. 5.27 s 136 …. 14.36 ss 137–147 …. 15.2 s 138(1)(c) …. 15.32 s 142(3) …. 15.34

s 142(5) …. 15.34 s 143 …. 15.35 s 144 …. 15.35 s 171 …. 22.29 s 177 …. 12.9 s 179 …. 12.10 ss 180–181 …. 12.9 s 183 …. 13.60 s 184 …. 15.3, 20.9 s 188 …. 12.31 s 188(1) …. 20.11 s 188(2) …. 15.9 s 188(2)(a) …. 12.19, 13.7 s 188(2)(c) …. 14.26 s 189(1)(a) …. 13.45 s 189(1)(b) …. 13.30, 16.28, 17.6 s 189(1)(c) …. 13.38 s 189(1)(d) …. 13.34 s 189(1)(e) …. 13.37 s 189(1)(f) …. 13.33 s 189(2)(b) …. 13.30 s 189(3) …. 13.38 s 191 …. 14.8, 14.36 ss 192–196 …. 14.12 s 192(1)(a) …. 14.14

s 192(1)(b) …. 14.14, 14.18, 14.36 s 192(1)(c) …. 14.14, 14.16, 14.18 s 192(1)(d) …. 14.14 s 192(1)(e) …. 14.13 s 192(1)(g) …. 14.16 s 193(1)(a) …. 14.14, 14.18, 14.20, 14.36 s 193(1)(b) …. 14.14, 14.16, 14.18 s 193(1)(c) …. 14.14 s 193(1)(f) …. 14.16 s 194(1) …. 14.30, 14.36 s 195(1)(b) …. 14.24 s 196 …. 14.32 s 198 …. 13.39 Law of Property Act s 9 …. 5.14 s 9(1) …. 18.8, 20.5 s 9(2) …. 9.4 s 10 …. 5.4, 5.8, 5.22 s 10(1)(a) …. 9.8 s 10(2) …. 9.4 s 11 …. 5.31 s 11(2) …. 9.4, 16.18 s 12 …. 22.7 s 16 …. 18.10 s 22 …. 6.4

s 35(2)(b) …. 10.17 s 51 …. 17.35 s 56 …. 22.7 s 62 …. 5.14, 5.31, 20.5 s 71(4) …. 18.8 s 86(a) …. 21.10 s 95 …. 19.20 s 99 …. 21.43 s 117 …. 17.35, 17.37 s 118 …. 17.37 s 119 …. 17.35, 17.40 s 119(1)(a) …. 17.38 s 119(1)(d) …. 18.19, 18.20 s 120 …. 17.35 s 123(1) …. 17.13 s 123(2) …. 17.13 s 134(1) …. 17.17 s 134(6) …. 17.16 ss 137–138 …. 18.18, 18.20, 18.27 s 138 …. 18.37, 22.31 s 144 …. 18.6 s 155 …. 19.10 s 171 …. 22.14, 22.21 s 182 …. 22.16, 22.17 s 184 …. 5.14

s 187 …. 8.14, 8.21 s 188 …. 8.14, 8.21 s 189 …. 8.15 s 190 …. 8.19 s 191(4) …. 8.19 s 195 …. 8.3 s 197(b) …. 8.3 s 199 …. 8.21 s 201 …. 8.5 Pt XI …. 8.2 Law of Property Act 2005 s 31 …. 19.68 s 98 …. 19.56 s 177 …. 19.56 Limitation Act 1981 s 6(4) …. 3.10 Property Law Act s 9(1) …. 16.17 s 10(1)(a) …. 16.23 s 62 …. 16.25 s 144 …. 16.21 Residential Tenancies Act 2000 …. 17.7, 17.54 s 82 …. 18.50 Residential Tenancies and Rooming Accommodation Act 2008 …. 17.54 Validation (Native Title) Act 1994 …. 4.93

Pt 2 …. 4.11

Queensland Aboriginal Land Act 1991 …. 4.93 Acts Interpretation Act 1954 s 36 …. 2.2 Building Units and Group Titles Act 1980 …. 2.5 Commonwealth Power (De Facto Relationships) Act 2003 …. 10.22 Criminal Code 1898 s 277 …. 18.33 Fauna Act 1974 s 7(1) …. 4.52 Interpretation Act 1954 s 36 …. 2.2 Land Act 1910 …. 4.59 Land Act 1962 …. 4.59 Land Title Act 1994 s 8 …. 12.5, 12.7 s 11A …. 14.29, 20.12 s 11B …. 14.29 ss 15–18A …. 12.12 s 19 …. 12.12 s 27 …. 12.7 s 31 …. 12.10 s 42(2) …. 20.23

s 56(2) …. 10.23 s 57 …. 10.23 ss 60–61 …. 6.6 ss 64–65 …. 17.6 s 64 …. 16.26, 16.28 s 65 …. 16.26 s 66 …. 13.23, 20.25 s 74 …. 20.9 s 75 …. 20.14 s 75(1) …. 20.15 s 75(2) …. 20.15 s 78 …. 20.9, 20.24, 21.6 s 78(1) …. 21.10 s 78(2)(c)(ii) …. 21.41 s 86 …. 19.20 s 87 …. 19.20, 19.60 s 89 …. 19.10 ss 97E–97L …. 19.66 ss 98–108 …. 13.40 ss 116–120 …. 5.27 ss 121–131 …. 15.2 s 122 …. 22.31 s 122(1)(c) …. 15.32 s 126(2) …. 15.34 s 126(4) …. 15.34

s 127 …. 15.35 s 128 …. 15.35 s 141 …. 15.37 s 161 …. 5.14 s 173 …. 12.9 s 174 …. 12.9 s 176 …. 12.10 s 177(1) …. 12.9 s 180 …. 13.60 s 181, 5.14, 15.3, 20.9 s 183 …. 12.39 s 184 …. 12.31, 20.12 s 184(2) …. 15.9 s 184(2)(a) …. 12.19, 13.7 s 184(2)(b) …. 14.26 s 185(1A) …. 12.30, 20.12 s 185(1)(a) …. 13.45 s 185(1)(b) …. 9.4, 13.22, 16.28, 17.6 s 185(1)(c) …. 13.38 s 185(1)(d) …. 13.41 s 185(1)(e) …. 13.34 s 185(1)(f) …. 13.37 s 185(1)(g) …. 13.33 s 185(2)(a) …. 13.22 s 185(2)(b), 13.7 …. 13.22

s 185(3) …. 13.38 s 187 …. 14.8, 14.36 ss 188–190 …. 14.12 s 188(1)(a) …. 14.14 s 188(1)(b) …. 14.14, 14.18, 14.36 s 188(1)(c) …. 14.14, 14.16, 14.18 s 188(1)(d) …. 14.14 s 188(1)(e) …. 14.13 s 188(1)(g) …. 14.16 s 188(2) …. 14.30, 14.36 s 188A(1)(a) …. 14.14, 14.18, 14.20, 14.36 s 188A(1)(b) …. 14.14, 14.16, 14.18 s 188A(1)(c) …. 14.14 s 188A(1)(f) …. 14.14, 14.20 s 188C …. 14.23, 14.36 s 189(1)(ab) …. 14.24 s 189(1)(b) …. 14.24, 14.36 s 189(2) …. 14.24, 14.36 s 189(a) …. 14.29 s 189(b) …. 14.29 s 190 …. 14.32 s 203(a) …. 13.23 Limitation of Actions Act 1974 …. 3.8 s 6(4) …. 3.10 s 13 …. 3.10

s 14 …. 3.10 s 19 …. 3.10 s 19(1) …. 3.11 s 19(2) …. 3.25 s 24 …. 3.10 s 24(1) …. 3.35, 3.46 s 29 …. 3.34 s 29(2)(b) …. 3.34 s 38 …. 3.34 Mineral Resources Act 1989 s 8 …. 2.7 Native Title (Queensland) Act 1993 …. 4.93 s 19 …. 4.11 Property Law Act 1974 s 5 …. 5.14, 5.22, 5.24 s 7 …. 7.27 s 8 …. 5.14, 9.3, 20.5 s 9 …. 5.14, 5.22, 5.24 s 10 …. 5.14, 9.3, 20.5 s 10(1) …. 16.17, 18.8 s 10(2) …. 9.4 s 11(1)(a) …. 9.8, 16.23 s 11(2) …. 5.4, 5.8, 5.31, 9.4, 9.6 s 12(1) …. 9.8 s 12(2) …. 9.4, 16.18

s 13 …. 22.7 s 17 …. 18.10 s 19 …. 5.31 s 22 …. 5.31, 6.6 s 29 …. 6.6 s 29(1) …. 6.7 s 31 …. 7.15 s 34 …. 10.6 s 35 …. 10.15 s 35(2)(a) …. 10.17, 10.31 s 35(3) …. 10.30 s 36 …. 10.16 s 44(2) …. 21.43 s 45(2) …. 5.31 s 47 …. 5.31 s 53 …. 22.29 s 53(1) …. 21.44, 22.14, 22.16, 22.21 s 55(1) …. 22.7 s 59 …. 5.14, 5.31, 9.8, 16.25, 20.5 s 69 …. 18.8 s 77 …. 21.7 s 78 …. 21.3 s 81 …. 18.27 s 82 …. 21.52 s 83(1)(a) …. 21.10

s 83(1)(c) …. 21.7 s 84(1), 21.12 …. 21.40 s 85(1) …. 21.22 s 87 …. 21.40 s 92(1) …. 21.7 s 92(3) …. 21.7 s 99(2) …. 21.41, 21.44 ss 105–107 …. 17.20, 17.40 s 105(1)(b) …. 17.37 s 106 …. 17.37 s 107 …. 16.38 s 107(a)–(c) …. 17.38 s 107(d) …. 18.19, 18.20, 18.47 s 112(1)–(3) …. 17.13 s 117 …. 17.46 s 118 …. 17.46, 17.49 s 119 …. 18.31 s 121 …. 17.18 s 121(1) …. 17.17 s 121(3) …. 17.16 s 124(1) …. 18.18, 18.20, 18.21, 18.58 s 124(2) …. 18.37 s 124(3) …. 18.58 s 124(6)(a) …. 18.18 s 128 …. 17.20

s 129(1) …. 16.21, 16.44, 18.6 s 155 …. 2.23 s 176 …. 19.68 s 178 …. 19.39 s 179 …. 2.6 s 180 …. 19.41 s 180(1) …. 19.42, 19.44 s 180(2) …. 19.42 s 180(3)(a) …. 19.44 s 180(3)(b) …. 19.44 s 180(3)(c) …. 19.44 s 180(4) …. 19.44 s 181 …. 19.56, 19.57, 19.65, 22.41 s 181(1)(a)–(d) …. 19.62 s 182 …. 3.42 s 184 …. 3.42 s 184(1) …. 20.11 s 186 …. 3.42 ss 195–198 …. 3.44 ss 196–198 …. 3.46 s 196 …. 5.31 s 198A …. 19.39 s 198A(1) …. 19.39 s 199 …. 22.17 s 200 …. 22.17

s 209 …. 8.14, 8.21 s 210 …. 8.14, 8.19, 8.21 s 212 …. 8.15 s 213(3) …. 8.19 s 213(4) …. 8.19 s 215 …. 8.21 s 216 …. 8.5 s 218 …. 8.3 s 220 …. 8.3 s 239 …. 2.20 ss 241–249 …. 21.47 s 346 …. 9.14 Pt 11 …. 3.38, 5.31 Pt 11 Div 1 …. 3.42 Pt 11 Div 2, 3.46 Pt 14 …. 8.2 Queensland Coast Islands Declaratory Act 1985 …. 4.3 Real Property Act 1861 s 30 …. 5.24 Real Property Act 1877 s 48 …. 12.39 Residential Tenancies Act 1994 Ch 5 …. 18.50 Residential Tenancies and Rooming Accommodation Act 2008 …. 17.7 Retail Shop Leases Act 1994 …. 17.7, 17.51, 18.48

s 46A(3)(c) …. 18.49 ss 46A–46B …. 17.53 Pt 6 Div 8 …. 17.53 Succession Act 1981 …. 5.23, 6.28 Torres Strait Islander Land Act 1991 …. 4.93

South Australia Administration and Probate Act 1919 …. 6.28 Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 …. 4.93 Commonwealth Power (De Facto Relationships) Act 2009 …. 10.22 Encroachments Act 1944 …. 3.38, 5.31 Fisheries Act 1971 …. 4.54 Grantees of Reversions Act 1540 (Imp) …. 17.49 Landlord and Tenant Act 1936 …. 18.21, 18.31 s 4 …. 18.19 s 10 …. 18.18 Law of Property Act 1936 s 6 …. 21.7 s 8 …. 5.14, 5.31, 9.3, 20.5 s 10 …. 7.15 s 13 …. 18.10 s 15 …. 22.17 s 22 …. 19.39 s 24C …. 10.6 s 26 …. 5.14, 5.31, 9.8, 20.5

s 26(1) …. 16.25 s 28 …. 5.14, 5.31, 9.3, 20.5 s 28(1) …. 16.17, 18.8 s 29 …. 5.22, 5.24 s 29(1)(a) …. 9.8, 16.23 s 29(2) …. 5.4, 5.8, 5.31, 9.6 s 30(1) …. 9.8 s 30(2) …. 5.14, 5.31, 9.3, 9.4, 16.18 s 31 …. 9.4 s 32 …. 20.5 s 34 …. 22.7 s 36 …. 2.20 s 41 …. 5.31 s 41(4) …. 9.3 s 41A …. 19.10 s 41aa …. 5.31 s 44(2) …. 21.43, 21.44 s 47(1)(c) …. 21.7 s 53(3) …. 21.7 s 61 …. 8.2 s 61(1)(b) …. 8.5 s 62 …. 8.2 s 92 …. 21.7 s 117 …. 9.14 s 120 …. 18.8

ss 124–125 …. 17.40 s 125(b) …. 17.38 Limitation of Actions Act 1936 …. 3.8 s 4 …. 3.10 s 6 …. 3.10 s 25 …. 3.34 s 28 …. 3.10, 3.35, 3.46 s 45(3) …. 3.34 Maralinga Tjarutja Land Rights Act 1984 …. 4.93 Mining Act 1971 s 16 …. 2.7 Native Title (South Australia) Act 1994 …. 4.93 Pt 6 Div 2 …. 4.11 Real Property Act 1886 s 3 …. 2.2 s 10 …. 18.21 s 11 …. 18.37 s 47 …. 12.7 s 49 …. 12.7 s 51B …. 12.5, 12.7 s 55B(2) …. 20.35 s 56(1) …. 12.7 s 56A …. 12.9 s 57 …. 5.14, 12.10 s 60 …. 12.12

s 64 …. 19.56 s 67 …. 5.14, 15.2, 15.3, 20.9 s 69 …. 12.19, 12.31, 20.11 s 69(b) …. 13.19 s 69(c) …. 13.33 s 69(d) …. 13.38 s 69(e) …. 13.34 s 69(h) …. 9.4, 13.25, 16.28 s 69(i) …. 13.58 s 74 …. 10.23 …. 10.24 ss 80A–80I …. 13.40, 13.43 s 84 …. 19.47 s 90 …. 19.25 s 90C …. 19.20 s 96 …. 6.6 ss 105–110 …. 5.27 ss 116–117 …. 17.6 s 116 …. 16.26, 16.28 s 117 …. 12.33, 16.26, 16.27 s 118 …. 20.25 s 119 …. 13.25 s 120 …. 18.8 ss 124–125 …. 17.35 s 124(b) …. 17.37 s 125(c) …. 18.19, 18.20

s 128 …. 19.68 s 132 …. 20.9 s 133 …. 21.10 s 137 …. 20.9, 20.24, 21.6 s 140(1) …. 21.41 s 149 …. 5.24 s 186 …. 12.19, 13.7, 15.9 s 187 …. 12.19, 13.7, 15.9 s 191 …. 15.2, 22.31 s 191(d) …. 15.35 s 191(e) …. 15.34, 15.35 s 191(f) …. 15.34 s 191(fa) …. 15.34 s 191(g) …. 15.34 s 191(j) …. 15.2 s 192 …. 14.7, 14.36 ss 201–205 …. 14.12 s 203 …. 14.14, 14.16, 14.18, 14.36 s 205 …. 14.30 …. 14.36 ss 207–219 …. 14.12 s 207 …. 14.26 s 208 …. 14.14, 14.20, 14.30, 14.36 s 209 …. 14.36 s 210 …. 14.32 s 215 …. 14.23, 14.36

s 216 …. 14.24, 14.36 s 217 …. 14.32 s 220(4) …. 12.12 s 221 …. 14.4 s 249 …. 13.45 Pt 17 …. 14.7, 14.36

Tasmania Acts Interpretation Act 1931 s 46 …. 2.2 Australian Consumer Law (Tasmania) Act 2010 Pt 4 …. 17.7, 17.51 Commercial Tenancy (Retail Shops) Agreements Act 1985 s 13B(1) …. 18.48 Commonwealth Power (De Facto Relationships) Act 2006 …. 10.22 Conveyancing and Law of Property Act 1884 …. 2.5 s 5 …. 9.14 s 6 …. 2.20 s 10 …. 17.46 s 11 …. 17.46, 17.49 s 15(1) …. 18.18, 18.21, 18.27 s 21(1)(c) …. 21.7 s 26(1) …. 21.7 s 26(3) …. 21.7 s 27(2) …. 21.43, 21.44

s 36 …. 5.31, 9.6, 20.5 s 36(1) …. 16.25 s 38 …. 21.52 s 48(7) …. 12.10 s 49(1) …. 5.14 s 59 …. 5.14, 5.31, 9.3, 20.5 ss 60(1)–(2) …. 9.4 s 60(1) …. 5.14, 5.31, 9.3, 16.17, 18.8, 20.5 s 60(2) …. 5.4, 5.8, 5.22, 5.24, 5.31, 9.6 s 60(2)(a) …. 9.8, 16.23 s 60(3) …. 9.8 s 60(4) …. 9.3, 9.4, 16.18, 20.5 s 61 …. 5.27, 6.6, 22.7 s 61(2) …. 6.7 s 62 …. 10.6 s 65 …. 6.6 ss 66–67 …. 17.40 s 67(a) …. 17.38 s 71 …. 22.14, 22.21 s 71A …. 22.29 s 80(1) …. 7.15 s 84A …. 19.57, 19.62, 19.65 s 84C …. 19.65 s 84C(1) …. 22.41 s 84F …. 19.57, 19.62

s 84G …. 19.57, 19.62 s 86 …. 22.16, 22.17 s 90A(1) …. 19.10 s 91 …. 21.7 Fair Trading (Code of Practice for Retail Tenancies) Regulations 1998 …. 17.7, 17.51 s 3 …. 17.53 Landlord and Tenant Act 1935 s 26 …. 2.23 Land Titles Act 1980 s 15(2) …. 18.37 s 16 …. 18.31 s 23(2) …. 21.40 s 28 …. 21.3 s 33(1) …. 12.7 s 33(3) …. 12.7 s 33(3)(a) …. 12.5 s 33(6)(d) …. 10.23 s 33(8) …. 10.23 s 33(11) …. 12.9 s 40 …. 12.19, 12.31, 20.11 s 40(3)(b) …. 13.34 s 40(3)(d) …. 9.4, 13.26, 16.28 s 40(3)(e) …. 13.38 s 40(3)(f) …. 13.33 s 40(3)(g) …. 13.58

s 41 …. 12.19, 13.7 s 41(1) …. 15.9 s 41(2) …. 15.9 s 42 …. 14.26 s 44 …. 10.24 s 46 …. 13.41 s 48 …. 12.9 s 48A …. 15.37 s 49 …. 20.9 s 49(1) …. 15.3 s 56 …. 17.35 s 58 …. 6.6 s 60 …. 17.6 s 61 …. 5.27 s 64(1) …. 16.26, 16.28 s 64(2) …. 17.6 s 64(3) …. 20.25 s 65 …. 18.8 ss 66–67 …. 17.35 s 66(b) …. 17.37 s 67(b) …. 18.19, 18.20 s 72(b) …. 19.68 s 73 …. 20.9 s 78 …. 21.22 s 78(1) …. 21.10

s 82 …. 20.9, 21.6 s 85(1) …. 21.41 s 97(1) …. 21.41 ss 102–104 …. 22.31 s 102(2)(a)(iv) …. 22.34 s 103 …. 22.39 s 108(1) …. 19.56 s 108(3) …. 19.59 s 109 …. 19.20 s 110 …. 19.56 s 110(4)–(12) …. 19.41 ss 113–116 …. 6.4 ss 127–128 …. 14.12 s 128 …. 19.68 ss 133–138 …. 15.2 s 135 …. 15.35 ss 138T–138ZA …. 13.40 s 138Y …. 3.38 s 139(2)(a) …. 12.12 s 144 …. 14.4 s 146 …. 20.9, 20.24, 21.6 s 149 …. 14.6, 14.36 ss 150–159 …. 14.12 s 152(1)(a) …. 14.14 s 152(1)(b) …. 14.14

s 152(1)(c) …. 14.14, 14.19 s 152(1)(d) …. 14.14, 14.16, 14.36 s 152(8)(b) …. 14.30, 14.36 s 152(8)(c) …. 14.30, 14.36 s 153 …. 14.14 s 153(1)(a) …. 14.20 s 153(1)(b) …. 14.20, 14.30, 14.36 s 153(2) …. 14.36 s 155 …. 14.32 s 158(1) …. 14.23, 14.36 s 160 …. 12.12 s 163 …. 12.12 Pt IXB Div 5 …. 3.37 Limitation Act 1974 …. 3.8 s 10(1) …. 3.10 s 10(2) …. 3.10 s 11(1) …. 3.10 s 16 …. 3.10 s 16(1) …. 3.11 s 16(2) …. 3.25 s 21 …. 3.35, 3.46 ss 26–28 …. 3.34 s 32 …. 3.34 Mineral Resources Development Act 1995 s 6 …. 2.7

Native Title (Tasmania) Act 1994 …. 4.93 s 5 …. 4.11 Perpetuities and Accumulations Act 1992 …. 8.2 s 6 …. 8.14, 8.21 s 10 …. 8.15 s 11 …. 8.14, 8.21 s 11(3) …. 8.19 s 11(4) …. 8.19 s 12 …. 8.21 s 15 …. 8.3 s 17 …. 8.3 s 21 …. 8.5 Registration of Deeds Act 1935 Div 2 …. 21.47 Residential Tenancy Act 1997 …. 17.7, 17.54 s 37 …. 18.50 Wills Act 1840 …. 5.23 Wills Act 2008 …. 6.28

Victoria Aboriginal Lands Act 1970 …. 4.93 Administration and Probate Act 1958 …. 6.28 Commonwealth Power (De Facto Relationships) Act 2004 …. 10.22 Imperial Acts Application Act 1969 s 5 …. 7.27

Instruments Act 1958 s 126 …. 20.5 Land Act 1958 s 340 …. 2.7 Land Titles Validation Act 1994 …. 4.93 s 1 …. 4.11 Legal Profession Act 2004 s 3.5.2 …. 14.24, 14.36 Pt 3.6 …. 14.24, 14.36 Limitation of Actions Act 1958 …. 3.8 s 7 …. 3.10 s 8 …. 3.10 s 9(1) …. 3.10 s 14(1) …. 3.10 s 14(2) …. 3.25 s 15 …. 3.10 s 18 …. 3.10, 3.35, 3.46 s 20 …. 3.10 s 23(1)(c) …. 3.34 s 27 …. 3.34 s 158(1) …. 14.23, 14.36 Local Government Act 1989 s 187A …. 19.10 Perpetuities and Accumulations Act 1968 …. 8.2 s 5(1) …. 8.14, 8.21

s 5(3) …. 8.14, 8.21 s 6 …. 8.14, 8.19, 8.21 s 8 …. 8.15 s 9(3) …. 8.19 s 9(4) …. 8.19 s 11 …. 8.21 s 12 …. 8.5 s 15 …. 8.3 s 17 …. 8.3 Property Law Act 1958 s 19(1) …. 7.15 s 19A …. 7.27 s 28 …. 10.6 s 40 …. 20.5 s 40(1) …. 5.14 s 42 …. 20.11 ss 51–54, 9.3 s 51 …. 5.14, 5.31, 20.5 s 52 …. 5.14, 5.27, 5.31, 20.5 s 52(1) …. 16.17 …. 18.8 s 53 …. 5.22, 5.24 s 53(1)(a) …. 9.8, 16.23 s 53(2) …. 5.4, 5.8, 5.31, 9.4, 9.6 s 54 …. 5.14, 5.31, 20.5 s 54(2) …. 9.4, 16.18

s 55 …. 9.4 s 56(1) …. 22.7 s 60 …. 6.6 s 60(1) …. 6.7 s 62 …. 2.20 s 67 …. 17.35, 17.40 s 67(1)(c) …. 17.38 s 69(1) …. 18.8 s 73(2) …. 19.56 s 73A …. 5.31, 9.3 s 74(2) …. 19.62 s 78(1), 22.14, 22.16, 22.21 s 79 …. 22.29 s 84 …. 19.57, 19.62 s 84(1) …. 22.41 s 86 …. 21.7, 21.40 s 87 …. 21.41 s 91(2) …. 21.43, 21.44 s 94 …. 21.52 s 101(1)(c) …. 21.7 s 102 …. 21.7 s 104(2) …. 21.40 s 109(1) …. 21.7 s 109(3) …. 21.7 s 112 …. 17.35

s 121 …. 19.39 s 126 …. 5.14, 5.31, 16.25 s 134 …. 22.17 s 141 …. 17.46 s 142 …. 17.46, 17.49 s 143 …. 18.31 s 144(1) …. 17.17 s 146(1) …. 18.18, 18.21 s 147 …. 17.13 s 148 …. 18.31 s 154A …. 2.23 s 185 …. 18.10 s 195 …. 19.39 s 196 …. 19.39 s 199 …. 9.14 s 249 …. 6.4 s 301(1)(b) …. 21.7 Pt 1 …. 21.47 Residential Tenancies Act 1997 …. 17.7, 17.54 s 64, 2.23 ss 216–228 …. 18.50 Retail Leases Act 2003 …. 17.7, 17.51 s 64(2) …. 18.48 ss 76–80 …. 17.53 s 79(b) …. 18.49

Pt 9 …. 17.53 Subdivision Act 1988 …. 2.5 Supreme Court Act 1986 s 79 …. 18.19 Transfer of Land Act 1958 s 5(1)(d) …. 14.23, 14.36 s 27(1) …. 12.7 s 27(2) …. 12.5 s 27(2)–(12) …. 12.7 s 27(3) …. 12.5 s 27A …. 12.9 s 30(2) …. 10.23, 10.24 s 34(1) …. 12.9 s 40(1) …. 15.3 s 40(2) …. 12.10 s 42 …. 12.19, 12.31 s 42(1)(a) …. 13.34 s 42(1)(b) …. 13.33 s 42(2)(b) …. 13.41 s 42(2)(d) …. 13.38, 19.47 s 42(2)(e) …. 9.4, 13.27, 13.28, 16.28, 17.6 s 42(2)(f) …. 13.58 s 43 …. 12.19, 13.7, 15.9 s 44(2) …. 14.26 s 45 …. 6.6

ss 60–62 …. 13.40 s 62 …. 19.59 s 66 …. 17.6 s 66(1) …. 16.26, 16.28 s 66(2) …. 20.25 s 67(1)(b) …. 17.37 s 67(1)(d) …. 18.19, 18.20 s 73 …. 19.59 s 73A …. 19.59 s 77(1) …. 21.10 s 78 …. 20.9, 20.24, 21.6 s 79(1) …. 21.41 s 81 …. 20.9, 21.6 s 87 …. 21.4 s 88(1) …. 22.31 ss 89–91 …. 15.2 s 89A …. 15.35 s 90(1)(d) …. 15.2 s 90(2) …. 15.34 s 90(3) …. 15.35 ss 104–106 …. 12.12 ss 108–111 …. 14.12 s 109(3) …. 14.32 s 110 …. 14.19 s 110(1) …. 14.13

s 110(1)(a) …. 14.14 s 110(1)(b) …. 14.15 s 110(1)(c) …. 14.14, 14.15, 14.16, 14.20, 14.36 s 110(2) …. 14.30, 14.36 s 110(3) …. 14.36 s 110(3)(a) …. 14.24 s 110(4) …. 14.36 s 111 …. 14.32 s 116 …. 14.4 s 117 …. 21.3 s 118 …. 15.2 s 146(1) …. 18.27 s 146(2) …. 18.37 Pt IV Div 5, 3.37 Transfer of Land (Single Register) Act 1998 …. 21.47 Water Act 1989 s 136 …. 19.10 Wills Act 1958 …. 5.23 Wills Act 1997 …. 6.28

Western Australia Administration Act 1903 …. 6.28 Commercial Tenancy (Retail Shops) Agreements Act 1985 …. 17.7, 17.51 s 13B(1) …. 18.48 ss 15A–15F …. 17.53

s 15E(b) …. 18.49 Pt IIA Div 1 …. 17.53 Family Court Act 1997 …. 10.22 Interpretation Act 1984 s 5 …. 2.2 Land Administration Act 1997 s 147 …. 19.10 s 195 …. 19.10 Law Reform (Statute of Frauds) Act 1962 s 2 …. 20.5 s 4 …. 5.14 Limitation Act 1935 s 4 …. 3.10 s 5 …. 3.10, 3.25 s 30 …. 3.10 ss 30 …. 3.35, 3.46 ss 35–36 …. 3.34 s 38 …. 3.34 s 42(2) …. 3.34 s 52 …. 3.34 Limitation Act 2005 …. 3.8 s 19 …. 3.10 s 65 …. 3.10 s 65(2) …. 3.10 s 65(3) …. 3.10

s 66 …. 3.10 s 75 …. 3.35, 3.46 s 76 …. 3.10 Mineral Resources (Sustainable Development) Act 1990 s 9 …. 2.7 Property Law Act 1969 …. 19.57 s 9(2) …. 5.31, 9.3 s 9(4) …. 5.31, 9.3 s 11(1) …. 9.8, 22.7 s 18 …. 18.8, 18.10 s 20 …. 22.17 s 23 …. 6.4, 6.6 s 26 …. 7.15 s 29 …. 10.6 s 32 …. 5.14, 5.31, 9.3, 20.5 s 33 …. 5.14, 5.31, 9.3, 20.5 s 33(1) …. 16.17, 18.8 s 34 …. 5.22, 5.24 s 34(1)(a) …. 9.8, 16.23 s 34(2) …. 5.4, 5.8, 5.31, 9.4, 9.6 s 35(1) …. 9.8 s 35(2) …. 5.14, 5.31, 9.3, 9.4, 16.18, 16.25, 20.5 s 36 …. 9.4 s 37 …. 6.6 s 37(1) …. 6.7

s 41 …. 2.20 s 47 …. 22.14, 22.16, 22.21 s 48, 22.29 s 53, 21.41 s 55(2), 21.43, 21.44 s 57(1)(c) …. 21.7 s 58 …. 20.5, 21.7 s 60(2) …. 21.40 s 62 …. 9.8 s 65(1) …. 21.7 s 65(3) …. 21.7 ss 71–72 …. 16.21, 18.6 s 71 …. 16.44 s 77 …. 17.46 s 78 …. 17.46, 17.49 s 81 …. 18.21, 18.27 s 81(1) …. 18.8, 18.18 ss 92–93 …. 17.40 s 93(a) …. 17.38 s 101 …. 8.14, 8.21 s 102 …. 8.15 s 103 …. 8.14, 8.19, 8.21 s 105(1) …. 8.19 ss 106–107 …. 8.19 s 109 …. 8.21

s 110 …. 8.3 s 114 …. 8.5 s 115 …. 8.3 s 118(2) …. 7.15 s 121 …. 19.39 ss 122–123 …. 3.44 s 122 …. 5.31 s 122(1) …. 3.40 s 122(5a) …. 3.41 s 122(6) …. 3.41 s 122(7) …. 3.40 s 123 …. 3.38, 5.31 s 123(1) …. 3.45 s 123(2) …. 3.45 s 123(3)–(7) …. 3.45 s 123(8) …. 3.45 s 129C …. 22.41 s 136J(1) …. 19.56 Pt XI …. 8.2 Registration of Deeds Act 1856 ss 3–5 …. 21.47 Residential Tenancies Act 1987 …. 17.7, 17.54 Stamp Act 1921 …. 2.18 Strata Titles Act 1985 …. 2.5 Titles (Validation) and Native Title (Effect of Past Acts) 1995

s 5 …. 4.11 Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 …. 4.93 Transfer of Land Act 1893 s 48 …. 12.5, 12.7 s 48(1) …. 12.7 s 52 …. 12.9 s 53 …. 12.9, 21.4 s 58 …. 5.14, 15.3 s 60 …. 10.23, 10.24 s 68 …. 12.19, 12.31, 13.58, 17.6, 19.47, 20.11 s 68(1) …. 13.33, 13.34, 13.38, 13.41 s 68(1A) …. 9.4 s 68(3)(f) …. 13.29, 16.28 s 73 …. 18.31 s 76 …. 12.12 s 80(1) …. 17.17 s 81(2) …. 18.37 s 82 …. 6.6 …. 17.6 ss 83A–83E …. 17.20 s 85 …. 5.14, 12.10 s 91 …. 16.26, 16.28, 17.6, 20.25 s 92 …. 17.35 s 92(b) …. 17.37 s 93 …. 17.35 s 93(b) …. 18.19, 18.20

s 98 …. 18.8 s 106 …. 20.9 s 108 …. 21.10 s 111 …. 20.9, 20.24, 21.6 s 116 …. 20.9, 21.6 s 121 …. 21.42 s 121(1) …. 21.41 s 122 …. 21.41 s 123 …. 19.57 s 124 …. 19.57 s 129A …. 22.31 s 129C …. 19.62, 19.65 s 129C(1)(b) …. 19.56 s 131 …. 17.35 s 133 …. 5.27 s 134 …. 12.19, 13.7, 15.9 s 136H …. 19.20, 19.60 ss 136K–142 …. 14.36 s 137 …. 15.2 s 138 …. 15.34 s 138(2) …. 15.35 ss 138B–138D …. 15.35 s 140 …. 15.2 s 141A …. 15.35 s 167A …. 19.25

ss 188–193 …. 12.12 s 195 …. 14.32 s 199 …. 14.6, 14.36 s 201 …. 14.12, 14.14, 14.16, 14.19, 14.30, 14.36 s 202 …. 14.26 s 203 …. 14.4 ss 205–211 …. 14.12 s 205 …. 14.14, 14.20, 14.30, 14.36 s 208 …. 14.32 s 211 …. 14.23, 14.36 ss 222–223 …. 3.37 ss 222–223A …. 13.40 s 229A …. 19.59 s 230 …. 19.59 Transfer of Lands Act 1893 s 93 …. 16.38 Wills Act 1970 …. 5.23, 6.28

United Kingdom Crown Suits Act 1769 (Imp) …. 3.10 Law of Property Act 1925 s 36(2) …. 11.34 s 78(1) …. 22.21 Prescription Act 1832 …. 19.35, 19.63 Statute of Frauds 1677 …. 20.5

Statute of Quia Emptores 1290 …. 2.27 Statute of Uses 1535 …. 7.21, 7.24, 7.25

Abbreviations General law statutes ACT NSW NT Qld SA Tas Vic WA

Civil Law (Property) Act 2006 Conveyancing Act 1919 Law of Property Act Property Law Act 1974 Law of Property Act 1936 Conveyancing and Law of Property Act 1884 Property Law Act 1958 Property Law Act 1969

Torrens statutes ACT NSW NT Qld SA Tas Vic WA

Land Titles Act 1925 Real Property Act 1900 Land Title Act 2000 Land Title Act 1994 Real Property Act 1886 Land Titles Act 1980 Transfer of Land Act 1958 Transfer of Land Act 1893

Contents Preface Table of Cases Table of Statutes Abbreviations

PART 1 1

Concepts

Property Philosophical and social foundations of property The meaning of ‘property’ Classifications of property

2

Land and Tenure The meaning of ‘land’ Fixtures Tenure

3

Possessory Title and Adverse Possession Possessory title Adverse possession Encroachments Mistake of title

4

Native Title Recognition of native title Native title legislation Source, nature and content of native title Determination and proof of native title Extinguishment of native title Future dealings regime for native title land Compensation and fiduciary duty

Statutory land rights

5

Acquisition and Transfer of Proprietary Interests in Land Acquisition of original proprietary interests in land Acquisition of proprietary interests in land by consensual transactions Acquisition of proprietary interests in land by non-consensual transactions

PART 2 6

Successive Interests

Estates Categories of estates Creation of freehold estates Characteristics of freehold estates Rights of owners of freehold estates

7

Future Interests Classification of future interests Common law remainder rules The development of the use by equity Statutory modification

8

Perpetuities Rule against perpetuities Class gifts Consequences of infringing the rule against perpetuities

PART 3 9

Concurrent Interests

Legal and Equitable Interests The distinction between legal and equitable interests Equitable interests in the context of land Enforcement of equitable rights

10

Co-ownership 1

Categories of co-ownership Creation of co-ownership A four-step approach to problem-solving

11

Co-ownership 2 Rights of co-owners Severance of joint tenancy Partition or sale

PART 4 12

The Torrens System

The Torrens System and Indefeasibility The Torrens system Indefeasibility

13

Exceptions to Indefeasibility Fraud Short leases Wrong description of boundaries Earlier existing valid title Omitted easements Adverse possession In personam exception Overriding statutes Volunteers

14

Remedies Persons aggrieved by a decision of the Registrar Remedies for the deprivation of an estate or interest in land — recovery of land Remedies for the deprivation of an estate or interest in land — monetary compensation Major circumstances leading to compensation Major restrictions on compensation The other party to the claim Amount of compensation

15

Priorities and Caveats Priorities Caveats Protection between contract and settlement Protection from improper dealings

PART 5 16

Leases and Licences

Leases 1: The Nature of Leases, Terminology and Essential Characteristics The nature of leases Terminology Types of leases Essential characteristics of a lease

17

Leases 2: Covenants in Leases The nature of covenants The contents of a lease Express covenants Implied covenants The effect of an assignment or sublease Options Legislation specific to particular types of leases

18

Leases 3: Determination of Leases Determination of a lease Repudiation Determination of retail tenancy leases Determination of residential tenancy leases Remedies for breach of covenant

19

Easements, Profits and Rentcharges Easements Profits à prendre Rentcharges

20

Mortgages 1: General Principles and the Rights of

the Mortgagor Mortgages under the general law Mortgages under the Torrens system The rights of the mortgagor Clogs on the equity of redemption Vitiating factors The role of statute Guarantees

21

Mortgages 2: The Rights of the Mortgagee The rights and obligations of the mortgagee The power of sale Relevant factors in deciding whether the mortgagee’s duty has been discharged The role of the agent and/or close subsidiaries The mortgagor’s right to relief from the actions of the mortgagee Rights against a purchaser Foreclosure Priorities

22

Restrictive Covenants Parties to the covenant Transferring the benefit of the covenant Transferring the burden of a covenant The doctrine of building schemes Modification and discharge of restrictive covenants

Index

[page 1]

PART 1 Concepts

[page 3]

1 Property Introduction 1.1 In Yanner v Eaton (1999) 201 CLR 351, the High Court affirmed that the concept of ‘property’ is a key element in the Australian legal system. The law of property, although concerned with ‘things’, more importantly considers the relationship between society, the individual and things. Property is a comprehensive term which refers to the degree of control which the law recognises as exercisable by individuals over things. (The concepts of property and ownership are linked — and both are dependent for their existence on the law.) In a sense, property is illusory, because without the law property has no reality. Although many analogies can be drawn to describe property, the High Court in Yanner v Eaton accepted that ‘property’ consists primarily of control over access to things or to resources.

Philosophical and social foundations of property 1.2 The concept of property is institutionalised by rules of law and depends on the philosophy and the social conditions of a society at any given point in time. Macpherson wrote: ‘The actual institution, and the way people see it, and hence the meaning they give to the

word, all change over time … The changes are related to changes in the purposes which society or the dominant classes in society expect the institution of property to serve’: C B Macpherson (ed), Property: Mainstream and Critical Positions, University of Toronto Press, Toronto, 1978, p 1. This means that the categories of persons who are able to hold property have changed over time. For example, at common law, a married woman was in the past unable to keep property in her own name. The ‘objects’ of property may also change. In the distant past, only tangible forms of property were recognised; now, intellectual property (which is intangible) is considered a valuable form of property. It has even been argued that government payments in the modern welfare state, for example, pensions and subsidised services, are a form of wealth and therefore should be recognised as a new form of property: C A Reich, ‘The New Property’ (1964) 73 Yale Law Journal 733. When and why change occurs [page 4] depends on how a society at a given period decides to award access and control over things and resources.

Locke and Rousseau 1.3 John Locke (1632–1702) founded his theory of property on the biblical account of the creation of the world. He argued that God gave the world to men in common and no-one had private dominion of the earth and its resources except by appropriation through the labour and work of his body. By Locke’s estimate, 99 per cent of the useful products of land were the result of labour; therefore, labour gave rise to a right of property. But his concept of property went further than the ownership of physical objects. Property also encompassed the whole sphere of an individual’s interest including his life and freedom. An individual’s right to property of an unlimited amount was seen to be prior to the existence of government. Students should refer to

Chapter V of Locke’s Second Treatise of Government which is extracted in Macpherson. Locke’s life and times shaped his theory of property published in 1689. The English Revolution occurred in 1688, witnessing the end of privileges based on the hereditary ownership of land and the rise of a middle class. As Schlatter notes: … it was fitting that [Locke’s] theory should have been discovered just as the middle class, whose theory it was, achieved its first revolutionary triumph. For it was a theory which grew out of the everyday experience of the middle class. In the ancient and medieval worlds where labour was done by slaves, serfs and peasants, and its products were the property of masters and feudal magnates, Locke’s ideas about property would have been irrelevant. But to the large group of independent producers in the eighteenth century, men without masters or lords, who brought to market the things which they owned and had made, and whose fortunes were acquired by their own industry, the Lockean theory of property seemed self-evident. By the law of nature things belonged to the man who made them. Feudal customs and royal laws establishing privileged economic groups in effect deprived the unprivileged of that which belonged to them by natural right. Just laws secured to each man the fruits of his labour: see R Schlatter, Private Property: The History of an Idea, Russell & Russell, New York, 1973, pp 155–6; M Davies, Property — Meanings, Histories, Theories, Routledge-Cavendish, Great Britain, 2007, pp 86–96.

Locke’s views exerted a powerful influence on the American and French revolutions with his ideas appended to the United States Constitution. However, Locke’s theories were not universally accepted, with dissenting voices including Rousseau (1712–1778) and Bentham (1798–1832). Like Locke, Rousseau accepted that property was a natural right but argued that man’s original nature had been perverted by artificial wants resulting in an unequal distribution of private property. Thus, Locke’s call for unlimited property by individual appropriation of the world’s resources was thought to be unjustified. Only property of the limited amount that a man could work on by himself was a sacred right. The institution of the law, as viewed by Rousseau, was the means by which the possessors of property protected their position. Students should refer to Rousseau’s The Origin of Inequality, [page 5]

extracted in Macpherson, Property: Mainstream and Critical Positions, Chapter 3 and Davies, Property — Meanings, Histories, Theories, Chapter 4.

Bentham 1.4 Another critic of Locke, Jeremy Bentham (1748–1832), argued that rights of property rested on the principle of ‘utility’ or the greatest happiness of the greatest number. He rejected the Lockean theory of natural property arguing that property is merely an expectation, a mere concept of the mind. It is the law which defines what property is and therefore protects its existence. By the protection of property, the law facilitates human happiness by promoting security (assuring to the labourers the produce of their labour) which in turn promotes thrift and industry. Bentham recognised that inequality may derive from the distribution of property, so that when security and equality are in conflict, equality must yield. This was so because according to Bentham security was the foundation of life: subsistence, abundance, happiness, everything depended on it. Bentham wrote during the early 19th century, a time that was characterised by revolution, industrialisation and imperialism. For Dicey, Bentham: … exactly answered to the immediate want of the day. In 1825 Englishmen had come to feel that the institutions of the country required thoroughgoing amendment: but the Englishmen of all classes … distrusted the whole theory of natural rights …. The teacher who could lead England in the path of reform must not talk of the social contract, of rights of man, or of liberty, fraternity, and equality. Bentham and his disciples precisely satisfied this requirement; they despised and derided vague generalities, sentiments and rhetoric … : A V Dicey, Lectures on the Relation between Law and Public Opinion in England during the Nineteenth Century, 1962, quoted in J M Kelly, A Short History of Western Legal Theory, Clarendon Press, Oxford, 1992, p 316.

Bentham’s belief that the law should be codified and reformed in the spirit of utility greatly influenced other liberal philosophers, including Austin and Mill.

Hegel and Marx

1.5 Alongside the English, German philosophers made a lasting contribution in the 19th century. Georg Hegel (1770–1831), among others such as Immanuel Kant (1724–1804), saw private property as ‘an indispensable condition of human personality’: see G H Sabine, A History of Political Theory, 1973, cited in Kelly, A Short History of Western Legal Theory, p 334. Hegel’s view of property resulted from his view of society as a metaphysical entity which was distinct from, and superior to, the individuals that compose it. ‘Ideas’ to Hegel were more important than the world of physical sensations and the idea governing human history was that of ‘reason’. He aimed at showing how society was developing towards a higher form of political and cultural freedom. According to Hegel’s theory, the process of development of society is through a ‘dialectic’ method. This involves the resolution of two opposing ideas (thesis and antithesis) into a new revolutionary [page 6] synthesis: see generally M Salter, ‘Justifying Private Property Rights: A Message from Hegel’s Jurisprudential Writings’ (1987) Legal Studies 245; and Davies, Property — Meanings, Histories, Theories, pp 96–101, 103–9. Hegel’s historical analysis and dialectical method had much influence on Karl Marx (1818–1883). Marx applied Hegel’s method of reasoning to the material world because in his view it was the relationship between individuals and the means of production which formed the basis of society. Marx believed that division in society arose because of the differences between those who held the means of production and those who did not. Marx believed that as the mechanics of production changed, so did the composition of classes within society. The struggle between feudal lords and peasants led to the bourgeois revolution, and the ongoing struggle between the bourgeois and the proletariat (the majority of society) would lead to the communist revolution.

Marx analysed the institution of property from a historical perspective. He said that all property relations in the past have continually been subject to historical change consequent upon the change in historical conditions. The French Revolution, for example, abolished feudal property in favour of bourgeois property. Since bourgeois property led to the exploitation of the many by the few, Marx called for the abolition of private property which was held by the bourgeois. Indeed, for Marx, private property amounted to theft. Students should refer to the extract of Marx and Engel’s Manifesto of the Communist Party (the Communist Manifesto) in Macpherson, Property: Mainstream and Critical Positions, p 61, and Davies, pp 103– 4, 132–4.

Posner and other economic analysts 1.6 Although philosophers such as Bentham applied the theory of economics to criminal law, and there has been subsequent application to competition and tax law, it is only in the last 30 years that there has been a concerted effort to apply economic theories to all aspects of the legal system. The economic approach provides a different perspective for understanding the role of property in today’s society and perhaps provides new directions for the law. Economic perspectives assume that human beings rationally seek to achieve maximum satisfaction from life. Rationality does not necessarily mean that money is the sole object of human beings but that ‘people choose their own ends, which may include emotional satisfaction and altruistic endeavours’. The object of economics is to examine the implications of that assumption. The discipline of economics involves the study of scarce resources and the need to achieve an efficient allocation of those resources in a society where there are competing claims: F Easterbrook, ‘The Inevitability of Law and Economics’ (1989) 1 Legal Education Review 3 at 5.

Hardin’s tragedy of the commons

1.7 An economic analysis often starts by pointing out the overuse of resources in the absence of private property rights. As society is often complex, economists make assumptions to develop a simplified model as a starting point for analysis. Garrett Hardin (1915–2003) asked us to picture a field once open to all. Each villager could [page 7] graze his or her cattle on the field. The system worked because initial numbers of people and beasts were low. Eventually overgrazing occurred. However, each villager continued to maximise his or her own gain and added to his or her herd because the villager received all the proceeds from the sale of the additional animals. If one villager stopped increasing his or her herd, the others could seize the opportunity to further increase their herds, and so the freedom of the commons ‘brings ruin to all’: see G Hardin, ‘The Tragedy of the Commons’ (1968) 162 Science 1243. At present, this is true of resources such as fisheries, water and air, which used to be enjoyed in abundance, but are now in danger of depletion and pollution. What are the options? Perhaps selling off the resources as private property, or keeping them as public property but allocating rights by administrative grants: see G Hardin, ‘The Tragedy of the Commons’ at 1244; B Daniels, ‘Emerging Commons Tragic Institutions’ (2007) 37 Environmental Law 515; and, see contra, E Ostrom, Governing the Commons: The Evolution of Institutions for Collective Action, Cambridge University Press, Melbourne, 1990.

The Coase theorem 1.8 Another perspective which economic analysis brings is the importance that costs play in the allocation of resources. The proposition Ronald Coase (1910–2013) made is that in the absence of ‘transaction costs’, an efficient allocation of resources will result, irrespective of which party is assigned the property right: see R H

Coase, ‘The Problem of Social Cost’ (1960) 3 Journal of Law and Economics 1. Put another way, if transactions bear no cost then the initial assignment of a property right will not determine the ultimate use of the resource. One example used is that of a factory whose smoke causes damage to laundry hung outdoors by five nearby residents. The smoke causes each resident damage amounting to $75, a total of $375. There are two possible solutions: either install a smoke screen on the factory’s chimney at a cost of $150; or have each resident buy an electric dryer at the cost of $50 each, a total of $250. The cheaper (more efficient) alternative would be the purchase of the smoke screen: this example is found in A M Polinsky, An Introduction to Law and Economics, 3rd ed, Little Brown, Boston, 1989, pp 11–14. Coase first considered whether the efficient outcome would result in a scenario where there were no transaction costs. This term would include the costs of (say) identifying the parties with whom one has to bargain; meeting, and the process of bargaining; and enforcement of any bargain reached. If there were no transaction costs, and if the factory had a right to pollute, then the residents could either suffer the damages of $375, or buy the five dryers for $250, or buy a smoke screen for the factory for $150. The choice would be to buy a smoke screen for the factory. If there was a right to clean air then the onus would be on the factory to act. It could either pay damages to the residents, buy them dryers or install the smoke screen. Again, the choice would be the smoke screen. Thus, where there are zero transaction costs, whichever way the property right was assigned, the most efficient outcome would be achieved. However, the party bearing the cost of paying for the screen would be different, but that was considered a separate issue. [page 8] You may say that there are few, if any, occasions where zero transaction costs occur. Let us consider the situation where the cost of

the residents meeting is $60 each in terms of their time spent. If there was a right to clean air, because the factory bears no transaction costs, the factory faces the same three choices and will reach the same decision as in the first scenario, that is, to buy the smoke screen. If there was a right to pollute, each resident faces the choice of bearing the damage of $75, meeting to negotiate with the other residents at a transaction cost of $60 in order to collectively spend $150 on a smoke screen, or buying a dryer for $50. The decision will be to buy a dryer, which is not the efficient outcome. Thus where there are transaction costs, the Coase theorem works in a different way — the preferred legal rule (or the preferred property right) is the rule that minimises the effects of transaction costs. In this scenario a right to clean air is preferred.

Posner 1.9 Richard Posner (1939–) builds on the two arguments of the tragedy of the commons and Coase’s theory of costs discussed earlier, to strongly argue in favour of private property rights. Following a discussion of overgrazing of common pasture, Posner states that the creation of exclusive rights is a necessary condition for efficient use of resources. He argues three criteria are required for an efficient system of property rights: 1. Universality. Meaning that every valuable resource should be owned by someone. 2. Exclusivity. Arguing from the example of the tragedy of the commons, Posner states that ownership of the resource requires the unqualified power to exclude everyone else from using the resource. 3. Transferability. Posner gives an example of a farmer who plants corn on land he owns. If the farmer farms badly, his land would be more productive in someone else’s hands. ‘Efficiency requires a mechanism by which the farmer can be induced to transfer the property to someone who can work it more productively: a transferable property right is such a mechanism’: R A Posner,

Economic Analysis of Law, 7th ed, Wolters Kluwer, New York, 2007, pp 31–3. Posner asks us to then consider the influence that transaction costs have on exclusivity. The costs of transferring the farm to some other farmer, or for some other use, may be very high (think of legal fees, commissions to real estate agents and removalist charges). Transaction costs, and consequently exclusivity, may result in reducing rather than increasing efficiency.

The meaning of ‘property’ 1.10 From the above survey of the philosophical, social and economic theories of property it becomes clear that the concept of property is dynamic. Some other observations about the concept follow. [page 9]

Property is a relationship 1.11 Since Bentham, it has been recognised that property is the right to things and not the thing itself. There are certain consequences flowing from this concept. Since there may be several possible relationships by different persons to the object of property, conflicting claims may occur. For example, there may be claims over a piece of land by the owner, a tenant, the bank which has made a loan for the purchase of the property, or a neighbour who has a right of way over the land. Thus property law is almost always concerned with the relative merits of different claims. This relationship has a fundamental moral basis: society believes that property is a necessary human and natural right. At the same time, there is a political basis to the relationship: unless society (or in political terms, the state) enforces property claims, there is no

guarantee of the right.

Property relationships are relative and varied 1.12 The traditional view of ownership of property is a bundle of mutual rights and obligations which prevail between the ‘subject’ of the relationship in respect of a particular ‘object’. Some of the rights that make up this bundle are: Right to possess. Possession includes exclusive physical control of the thing owned, say private land. But that does not mean that everyone else is necessarily excluded from the land. A number of officials have the right to enter the land, for example, to read the electricity meter. Right to use, manage and the right to income from the object of property. ‘Use’ in the narrow sense means the right to use by the owners themselves. ‘Manage’ would be the right to decide how and by whom the thing owned shall be used; for example, the right to rent out shops in a complex to a range of tenants. Right to capital. This is a right to transfer (alienate), consume, destroy or modify the thing owned. Most people do not wilfully destroy permanent assets; therefore, the power to transfer is the more important aspect of the owner’s right to capital. Right to security. An owner should be able to look forward to remaining owner indefinitely. When expropriation takes place there should be adequate compensation. Right to transmit. A right to make a will disposing of the thing owned. Any one of the rights may be separated and dealt with individually. For example, one may relinquish the right to possession by leasing the land to another. It is also recognised that each of these rights may be subject to limitations. Property law governs the web of these relationships by parcelling out rights among a host of competing

resource users. The right to capital may belong to one person but the right to income may belong to someone else. This is so especially for land. The analogy of property as a ‘bundle of rights’ is recognised as having certain limitations. In Yanner v Eaton (1999) 201 CLR 351, Gleeson CJ, Gaudron, Kirby and [page 10] Hayne JJ stated (at 366): ‘The concept of “property” may be elusive. Usually it is treated as a “bundle of rights”. But even this may have its limits as an analytical tool or accurate description’. This is because an infinite variety of rights, and limitations and conditions placed on those rights, may be possible. The majority’s decision in the High Court case of Yanner v Eaton accepted that the amount of control over things and resources can vary, and therefore can give rise to many kinds of relationships. It is not of ‘standard content and invariable intensity’: Yanner v Eaton at 366. There may be gradations of ‘property’ over a resource: K Gray and S F Gray, ‘The Idea of Property in Land’ in S Bright and J Dewar (eds), Land Law: Themes and Perspectives, Oxford University Press, Oxford, 1998. 1.13 If you are still a little confused about the concept of property, it may be useful to recognise that the various approaches fall into four categories: 1. the labour approach; 2. the social utility approach; 3. the Marxist approach; and 4. the economic analysis approach. A definition of property is not easily reached and may not be all that helpful given that the concept is one that has changed over time and is still in a state of change. It is noteworthy that while previous constructions of property were focused on the traditional rationales and justifications for private ownership, modern methodologies focus

on a more contextual and polarised range of individual and social rights, and the deconstruction of established property discourses: J Butler, ‘The Pathology of Property Norms: Living Within Nature’s Boundaries’ (2000) 73 Southern California Law Review 927; S Hepburn, Australian Principles of Property Law, Routledge-Cavendish, Coogee, 2006, para 1.4.4.

Classifications of property 1.14 Having come to some conclusions about the meaning of property, let us examine the classifications of property. Often we tend to think of property in terms of private property. This should not be the case. (The High Court in Yanner v Eaton (1999) 201 CLR 351 referred to classifications of property which were quite complex.) Historically under Roman law, apart from things privately owned, there were at least four categories of things not privately owned. The first of these was res communes, which referred to things which existed in a state of abundance and purity, such as the air and the sea and running water in streams. These were regarded as common to all who wished to use them. Control and regulation, therefore, were unnecessary: see generally The Institutes of Justinian, Book II, Title 1, in J A C Thomas, The Institutes of Justinian: Text, Translation and Commentary, Juta & Co, Cape Town, 1975, p 65. Res publicae, or state/public property, also existed over natural resources. It was similar to common property but ownership was given to the state, not to private individuals. The third category was res [page 11] universitatis, or corporate property, where theatres and racecourses were vested in the township where they stood. This category embraced built capital rather than natural resources. The last category of non-private property was res nullius (nobody’s property) which

often referred to wild animals, birds or fish. Roman juries, however, did not state clearly how to differentiate between the first three types of non-private property: see J Getzler, ‘Roman Ideas of Landownership’ in S Bright and J Dewar (eds), Land Law: Themes and Perspectives, Oxford University Press, Oxford, 1998, pp 81, 88. The English common law elevated private property rights because its concept of property developed in a social environment of capitalism where there was emphasis on bargain and exchange: K Gray, ‘Property in Thin Air’ (1991) 50 Cambridge Law Journal 252 at 293. In other words, the legal institution of property began to take its meaning from property which could be bought or sold. In this time, under the common law, the concept of common property began to take on the meaning of private property. The term ‘common property’ is now used to refer to property rights held by a group of individuals who hold it in common, instead of the usage under Roman law that referred to a resource to which all in the community had free access. (Australian cases have yet to clarify the concept of common property.) Under Australian common law, private property may be held by individuals or groups of individuals, or the state. But the state may also hold property rights which are less than the rights of full beneficial or ‘absolute’ ownership. This category of rights, termed ‘public/state property’, consists of rights created and enforced by the state, and reserved for the common good of the people. For example, in Yanner v Eaton it was recognised that property in fauna was vested in the state. In the leading judgment, Gleeson CJ, Gaudron, Kirby and Hayne JJ quoted at length the explanation by Roscoe Pound for public ownership of resources: … the so-called state ownership of res communes and res nullius is only a sort of guardianship for social purposes. It is imperium and not dominium. The state as a corporation does not own a river as it owns the furniture in the state house. It does not own wild game as it owns the cash in vaults of the treasury. What is meant is that conservation of important social resources requires regulation of the use of res communes to eliminate friction and prevent waste, and requires limitation of the times when, places where, and persons by whom res nullius may be acquired in order to prevent their extermination. Our modern way of putting it is only an incident of the nineteenth-century dogma that everything must be owned: R Pound, An Introduction to the Philosophy of Law, Yale University Press, New Haven, 1922 (reprint 1994, W M Gaunt & Sons), p 199, quoted in Yanner v Eaton at 370.

Yanner v Eaton confirms that the state can hold property as in the sense of ‘dominium’, which is akin to ownership in the private sense, or in the sense of ‘imperium’, which is a legal way of stating its guardianship of resources.

Traditional classifications under common law 1.15 Traditional classifications under English common law resulted in very specific terms being applied to different objects of property. Technical rules applied to each classification. Although much of the significance of the classifications has been [page 12] removed by legislation, the terminology has survived. Property was viewed as falling into two classes: real or personal. Real property was regarded as being interests in land other than leasehold interests and was often called ‘realty’. Personal property was regarded as movable property (chattels or personalty), together with leasehold interests in land (called ‘chattels real’). The distinctions between the two classes were based on historical factors. B Edgeworth, C Rossiter, M Stone and P O’Connor explain it thus: The origins of the dichotomy between real and personal property lie in the remedies available at common law for the recovery of tangible objects. If a person dispossessed of an object could recover that object (the res) as of right it was classified as real property. The distinguishing characteristic of real property was the quality of being specifically recoverable in a ‘real’ action. Objects not so recoverable were regarded as personal property. A person dispossessed of such objects had a ‘personal’ action for damages against the wrongdoer, but was not entitled to an order requiring the wrongdoer to deliver the actual object. Since only land was specifically recoverable under the early common law, it followed that the category of real property was limited to land. Things other than land, such as goods, fell within the category of personal property: Sackville and Neave Australian Property Law, 9th ed, LexisNexis Butterworths, Sydney, 2013, at para 1.72.

Leasehold interests were regarded as personal property since they were considered personal commercial arrangements and outside the

feudal system of tenure. In the past, a leaseholder who was wrongfully put out of possession of land could not recover possession but could only sue for damages. The present position is discussed in Chapter 16. The term ‘hereditaments’ means property interests which can be inherited. In the past, certain property interests could not be inherited. Incorporeal hereditaments are intangible rights such as an easement or right of way to pass over someone else’s land. Corporeal hereditaments comprise substantial and permanent objects which are part of, or connected to, the land such as buildings, trees and fixtures. The doctrine of fixtures (which is discussed in Chapter 2) illustrates how the traditional classifications of property may be significant. By operation of that doctrine, goods which are attached to the land in a certain manner and in certain circumstances are considered at law as becoming part of the land, thus adopting the character of real property.

Novel proprietary interests 1.16 There has been criticism of the traditional classifications because the analysis focuses on the objects of property and not on tests of property. The classifications have not helped in answering the difficult question of when a property relationship arises. What happens when the objects do not fall within the traditional classifications?

Property in a spectacle 1.17 The High Court in Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479 considered whether there was ‘property in a spectacle’. The plaintiff carried on the business of horse racing at Victoria Park. The defendant [page 13] owned neighbouring land and erected a platform on his land to see the

races. Commentary was carried on from the platform and broadcast by a radio station thereby affecting the number of people going to the races. Naturally the plaintiff wanted the broadcasting stopped. Latham CJ ruled (at 496): It has been argued that by the expenditure of money the plaintiff has created a spectacle and that it therefore has what is described as quasi-property in the spectacle which the law will protect. The vagueness in this proposition is apparent on its face. What it really means is that there is some principle (apart from contract or confidential relationship) which prevents people in some circumstances from opening their eyes and seeing something and then describing what they see … I find difficulty in attaching any precise meaning to the phrase ‘property in a spectacle’. A ‘spectacle’ cannot be ‘owned’ in any ordinary sense of that word.

It has been said that this decision ‘throws up critical clues to the identification of the “propertiness” of property’: K Gray, ‘Property in Thin Air’ (1991) 50 Cambridge Law Journal 253 at 266. The majority judgments in Victoria Park refused to accept that the spectacle was property because it was not possible to exclude strangers from the spectacle. The spectacle could not be physically excluded except at great financial cost by erecting a roof and walls over the horse track. In other words, one of the criteria for a property relationship is that the person claiming control must be able to exclude others from the object of property. The exclusion must not only take a physical form but must also be justified on moral grounds. Gray writes that, morally, non-excludable resources are those that are so: … central or intrinsic to constructive human coexistence that it would be severely antisocial that these resources should be removed from the commons … . In setting the moral limits of ‘property’, the courts effectively recognise that there is some serial ranking of legally protected values and interests: claims of ‘property may sometimes be overridden by the need to attain or further more highly rated social goals’.

Some of these morally non-excludable resources would be ideas, knowledge and truth. The law has conferred the status of property on some of these resources through copyright, trademark and patent legislation. This concept of exclusion has arguably been extended in more recent cases, enabling celebrities to take action to protect against the unauthorised use of their image or name. In essence, the courts are accepting a form of proprietary interest in one’s personality: L Griggs,

‘The Concept of Property: Unresolved Tensions between the Individual and the Collective’ (1999) 7 Australian Property Law Journal 143.

Are Aboriginal land rights considered proprietary rights? 1.18 Cases discussed in Chapter 4 have confirmed that native title rights are property rights. This may appear to support the view that common property refers to the relationship between specified groups within society to resources. But the Australian High Court in Mabo v Queensland (No 2) (1992) 175 CLR 1 was careful to avoid the application of traditional legal concepts of property to native title, which was considered sui generis or unique. This should be contrasted with the Canadian position where the proprietary nature of native title has been confirmed [page 14] as an ‘interest in land’ and a ‘right to land itself’: Delgamuukw v British Columbia [1997] 3 SCR 1010 at 1081–2.

Development rights 1.19 When a building is protected under heritage legislation because of its historic significance, no development over the land on which it stands is permitted without consent from a regulatory body. There are commercial implications, especially if the land is located in a densely built-up area in the city, because of the limits placed by local regulations on the site area. For example, a heritage building may stand only two storeys while a modern building on the same land may be built up to 20 storeys. That building right which accrues to a specified plot of land on which the heritage building is built is variously called ‘floating floor space right’ (Uniting Church in Australia Property Trust (NSW) v Immer (No 145) Pty Ltd (1991) 24 NSWLR 510

(CA); (1993) 182 CLR 26 (HC)), ‘transferable floor space’ (Halwood Corp Ltd v Chief Commissioner of Stamp Duties (NSW) (1992) 33 NSWLR 395; Naval, Military and Airforce Club of South Australia (Inc) v Commissioner of Taxation (1994) 51 FCR 154) and ‘transferable site area’ (Re FAI Leasing Pty Ltd [1994] 2 Qd R 482). The right is capable of transfer to another landowner to be utilised to increase the built-up area of another piece of land. Is such a development right considered a proprietary right? Meagher JA in Uniting Church in Australia Property Trust (NSW) v Immer (No 145) Pty Ltd (at 511) said: ‘They are transferable, and I assume transmissible; they are of large commercial value; and I see no reason why they are not “proprietary” rights in the same way as goodwill, patents or shares in the capital of a company are “proprietary” rights’.

Further discussion Further readings are suggested for those who would like to explore the concepts discussed in this chapter. For those who would like to read more on the social and philosophical foundations of property, see C B Macpherson (ed), Property: Mainstream and Critical Positions, University of Toronto, Toronto, 1987. For a persuasive comment, read K Gray and S F Gray, ‘The Idea of Property in Land’ in S Bright and J Dewar (eds), Land Law: Themes and Perspectives, Oxford University Press, Oxford, 1998. Margaret Davies provides an interesting and distinctive examination of property within a cultural, symbolic and historical framework in Property — Meanings, Histories, Theories, Routledge-Cavendish, Great Britain, 2007. For recent analyses of property theories, see G Alexander, E M Penalver, J W Singer and L S Underkuffler, ‘A Statement of Progressive Property’ (2009) 94 Cornell Law Review 743 and D H Cole, ‘The Law and Economics Approach to Property’ (2014) 3 Property Law Review 212.

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2 Land and Tenure Introduction 2.1 We have considered the traditional classifications of property at common law and realised that land (real property) was one of the primary classifications. It is useful to keep the study of land apart from other kinds of property because land is indestructible, and capable of division. Because of land’s importance even in very early times, elaborate rules have developed to resolve conflict over land. This chapter will focus on the legal concept of land; on how the law of fixtures changes the character of some items placed on land from personal property to real property; and on one of the fundamental principles underlying the concept of land, the doctrine of tenure.

The meaning of ‘land’ 2.2 The question to consider here is what the law understands as the meaning of ‘land’. Section 2B of the Acts Interpretation Act 1901 (Cth) has defined ‘land’ to ‘include messuages, tenements and hereditaments, corporeal and incorporeal, of any tenure or description, whatever may be the estate or interest in them’. State legislation has generally followed the approach of the Commonwealth in this regard: Interpretation Act 1987 (NSW) s 21(1); Acts Interpretation Act 1954 (Qld) s 36; Real Property Act 1886 (SA) s 3; Acts Interpretation Act

1931 (Tas) s 46; Interpretation Act 1984 (WA) s 5. The definition is complicated and tells the uninitiated very little. What are hereditaments? Tenure? Estates? The Australian definition of ‘land’ adopts that of the common law and these concepts are discussed later in this book. At this point you need to know that land includes: the soil and surface layer of the earth and all physical things which are attached to, or are inherent in, the ground (referred to as ‘corporeal hereditaments’). In this category would be buildings, trees, minerals, and other substantial and permanent objects; and the intangible rights which can be enjoyed over the land (incorporeal hereditaments). A simple example is a right of way (or easement) that one landowner, A, gives over their land to B, a neighbouring landowner. The common law takes the view that B has an interest in A’s land. [page 16]

Physical limits of land 2.3 The maxim cuius est solum est usque ad coelum et ad inferos (they who own the land own everything reaching up to the very heavens and down to the depths of the earth) has often been applied to describe the physical limits of land. However, this maxim has been dismissed as a ‘colourful phrase’ (Lord Bernstein v Skyview & General Ltd [1978] QB 479 per Griffiths J at 485) and is far from true today due to the many qualifications.

Airspace 2.4

The issues in this context are:

What rights does the owner of the land have to use the airspace?

What remedies does the landholder have for intrusions in the airspace? Is the airspace land? On the basis of case law, the aerial extent of the scope of the Latin maxim referred to above is unsettled: refer to A J Bradbrook, ‘The Relevance of the Cujus Est Solum Doctrine to the Surface Landowner’s Claims to Natural Resources Located Above and Beneath the Land’ (1988) 11 Adelaide Law Review 462; A J Bradbrook, S V MacCallum, A P Moore and S Grattan, Australian Real Property Law, 5th ed, Thomson Reuters, Sydney, 2011, para 16.130; P Butt, Land Law, 6th ed, Thomson Reuters, Sydney, 2010, paras 2 08–2 14. It is, however, generally agreed that a landowner’s rights in the airspace above his or her land are not limitless. Griffith J in Lord Bernstein v Skyviews & General Ltd rejected a claim that an aerial photographer taking photos of Lord Bernstein’s property committed a trespass, as there had been no direct invasion of the airspace at a height which was necessary for the ordinary use and enjoyment of the land in question. In considering a landowner’s rights in the airspace immediately above the ground, Griffith J stated (at 487–8): The problem is to balance the rights of an owner to enjoy the use of his land against the rights of the general public to take advantage of all that science now offers in the use of airspace. This balance is in my judgment best struck in our present society by restricting the rights of an owner in the airspace above his land to such height as is necessary for the ordinary use and enjoyment of his land and the structures upon it, and declaring that above that height he has no greater rights in the airspace than any other member of the public.

In cases relating to permanent interference with airspace by advertising signs (Kelsen v Imperial Tobacco Co [1957] 2 QB 334), flights of aircraft (Schleter t/as Cape Crawford Tourism v Brazakka Pty Ltd (2002) 12 NTLR 76), parts of building cranes (Graham v KD Morris & Sons Pty Ltd [1974] Qd R 1; Anchor Brewhouse Developments Ltd v Berkley House (Docklands Development) Ltd (1987) 284 EG 625), and other structures (Bendal Pty Ltd v Mirvac Project Pty Ltd (1991) 23 NSWLR 464), current Australian cases adopt a reasonable and practical approach to the principle of cuius est solum. In LJP

Investments Pty Ltd v Howard Chia Investments Pty Ltd (1989) 24 [page 17] NSWLR 490, Hodgson J took the view that landowners are entitled to the exclusive use of the airspace above the land to the extent necessary for the reasonable use and enjoyment of the land. During the course of commercial development by the defendant, scaffolding was erected which protruded over adjacent land. The scaffolding began at about 4.5 metres above ground level and extended about 1.5 metres into the airspace above the plaintiff’s land. After a review of the case, Hodgson J stated (at 495–6): I think the relevant test is not whether the incursion actually interferes with the occupier’s actual use of land at the time, but rather whether it is of a nature and at a height which may interfere with any ordinary uses of the land which the occupier may see fit to undertake. Such a rule has the advantages stated by Griffith J in Lord Bernstein v Skyviews & General Ltd [1978] 1 QB 479 at 486: ‘Adjoining owners then know where they stand; they have no right to erect structures overhanging or passing over their neighbours’ land and there is no room for argument whether they are thereby causing damage or annoyance to their neighbours about which there may be much room for argument and uncertainty’.

2.5 The High Court has confirmed that airspace can be considered part of land and may be conveyed to another separately, at common law, from the soil on which the building stands. In Bursill Enterprises Pty Ltd v Berger Brothers Trading Co Pty Ltd (1971) 124 CLR 73, the High Court accepted that the transaction in issue was a transfer of airspace 12 feet above the ground: see also Re Lehrer and the Real Property Act 1900 (1961) SR (NSW) 365; Uniting Church in Australia Property Trust (NSW) v Immer (No 145) Pty Ltd (1991) 24 NSWLR 510; Immer (No 145) Pty Ltd v Uniting Church in Australia Property Trust (NSW) (1993) 182 CLR 26. Commentators, such as Bradbrook et al, Australian Real Property Law, 5th ed, (see para 16.125), are of the opinion that a person who has title to airspace may apply for a certificate of title under the Torrens system: see Chapter 12 of this book. Certainly express provisions in each state allow for strata titles

as land is considered capable not only of vertical but also horizontal division: Strata Schemes (Freehold Development) Act 1973 (NSW); Subdivision Act 1988 (Vic); Building Units and Group Titles Act 1980 (Qld); Strata Titles Act 1988 (SA); Strata Titles Act 1985 (WA); Conveyancing and Law of Property Act 1884 (Tas). Therefore, a strata title relates to a slice of defined space or area which is not on the earth’s surface but in its airspace.

Rights below the surface 2.6 The precise extent of a landowner’s rights to sub-surface land is uncertain. It is clear that a landowner’s rights in the subsoil extend downwards to a sufficient depth to prevent trespass by another who excavates a tunnel (City of Chicago v Troy Laundry Machinery Co 162 F 678 (1908)), or inserts rock anchors below the landowner’s land (Di Napoli v New Beach Apartments Pty Ltd (2004) 11 BPR 21,493 or uses a cave entrance some 350 feet below the surface of the landowner’s land (Edwards v Sims 24 SW 619 (1929)). A landowner has been said to have significant [page 18] control below his or her land to a ‘considerable depth’: Di Napoli v New Beach Apartments Pty Ltd (2004) 11 BPR 21,493 at 21,495 [18]. It might be argued that a landowner would have the right to use the soil to such a depth as is appropriate for the reasonable use and enjoyment of the land applying the Bernstein airspace principle (see 2.3). In a United Kingdom Supreme Court decision, however, the principles applied to airspace were found to differ from those applied to sub-strata land and the maxim cuius est solum was determined to be relevant to sub-surface rights: Bocardo SA v Star Energy UK Onshore Ltd [2011] 1 AC 380. In Bocardo’s case, Star Energy held a licence to obtain petroleum and three wells were drilled on the neighbouring land on a diagonal to reach substantial depths, between around 800 to

2900 feet, below the surface of Bocardo’s land. Drilling petroleum wells at these depths under the land owned by another, without the title owner’s permission, was found to be trespass actionable by the landowner on the basis of the cuius est solum maxim. Accordingly, as the owner of the surface land was also the owner of the strata beneath, the court decided that Bocardo’s title extended down to the strata through which the three wells passed. Lord Hope acknowledged that ‘there must obviously be some stopping point, as one reaches the point at which physical features such as pressure and temperature render the concept of the strata belonging to anybody so absurd as to be not worth arguing about’: at [27]. On the facts, the wells were not so deep as to reach the point of absurdity. For further comment, see L Griggs, ‘Cujus Est Solum — An Unfortunate Scrap of Latin, Doctrine in Disarray or a Brocard of Relevance? Its Applicability to the Subterranean and the United Kingdom Supreme Court Decision in Star Energy v Bocardo’ (2011) 19 Australian Property Law Journal 155. A landowner’s right to excavate his or her land is subject to the neighbour’s right to lateral support of the land at common law. The common law did not provide a right of support for buildings but this has been extended by statute in certain jurisdictions: see, for example, Property Law Act 1974 (Qld) s 179.

Minerals 2.7 At common law, the owner of the surface of the land owns all the minerals beneath the surface except precious metals. In the 16th century it was established that precious metals, such as gold and silver, lying beneath privately owned land belonged to the Crown and title to such minerals would pass into the private landowner’s hands only if ‘apt and precise words’ were found in the original Crown grant: Case of Mines (R v The Earl of Northumberland) (1567) 1 Plow 310; 75 ER 472 (KB). The common law prerogative right of the Crown is part of the law in Australia: Woolley v Attorney-General (Vic) (1877) 2 App Cas 163. Since the latter part of the 19th century, legislation in each of the states has provided that the right to minerals under the surface of the land is reserved in the Crown. The position in all the states is

similar but not the same: see Crown Lands Act 1989 (NSW) s 171; Mineral Resources Act 1989 (Qld) s 8; Mining Act 1971 (SA) s 16; Mineral Resources Development Act 1995 (Tas) s 6; Land Act 1958 (Vic) s 340; Mineral [page 19] Resources (Sustainable Development) Act 1990 (Vic) s 9; (WA) s 9. See Bradbrook et al, Australian Real Property Law, 5th ed, paras 16.155–16.205.

Fixtures 2.8 The law on fixtures determines how and when an object of personal property loses its character as a chattel and becomes recognised as being part of the land. Conflicting claims to the item may arise in relation to an assessment of stamp duty on land transfers under state or territory legislation, as well as between the following parties: a landlord and tenant; a vendor and purchaser of land (although the contract of sale between the parties frequently deals with this question); a bank who has lent money which is secured by a mortgage over the land (mortgagee) and the owner of the land (mortgagor); a life tenant and a remainderperson or reversioner; a devisee and the personal representatives of an estate; and a lessor and lessee of chattels. For example, a tenant erects a shed in the back garden of a house he or she is renting. When the tenant moves, can the shed be taken away, or does it become a part of the land and thus belong to the landlord?

2.9 Where the parties to a dispute have entered into a contract, the conflicting claims may be resolved if there is an express term on the matter. In the absence of such an express term, the general law of fixtures applies. The maxim applicable is quicquid plantatur solo, solo credit (what is attached to the land becomes part of the land). Case law has formulated two tests in determining whether the object has become a fixture: (a) the degree of annexation; and (b) the purpose of annexation. As Blackburn J explained in Holland v Hodgson (1872) LR 7 CP 328 at 334–5: There is no doubt that the general maxim of the law is, that what is annexed to the land becomes part of the land; but it is very difficult, if not impossible, to say with precision what constitutes an annexation sufficient for this purpose. It is a question which must depend on the circumstances of each case, and mainly on two circumstances, as indicating the intention, viz, the degree of annexation and the object of annexation. When the article in question is no further attached to the land than by its own weight it is generally to be considered a mere chattel … But even in such a case, if the intention is apparent to make the articles part of the land, they do become part of the land.

[page 20] In other words, these two tests are related in the sense that the degree and purpose of the annexation indicate the intention of the annexor.

The degree of annexation 2.10 The degree of physical attachment between the object and the land or to a building on the land is very important. Two presumptions have developed from the cases. Though not conclusive, these presumptions are a useful guide in determining which party has the onus of proof: 1. If an object is attached (for example, by screws) to the land other than by its own weight then it is prima facie a fixture. The more

2.

securely an object is attached to the land or building, the more likely it is to be classified as a fixture. The onus of proving any attached object is not a fixture lies on the person who wants the object moved. On this basis the courts have found that the following objects attached to land are fixtures: — spinning looms bolted to the floor of a mill (Holland v Hodgson); and — a verandah attached to a house (Buckland v Butterfield (1820) 2 Brod & Bing 54; 129 ER 878). If an object rests unattached on the ground, prima facie it is not a fixture even if it has become embedded in the ground. The onus of proof that it is a fixture lies on the person wanting the object to remain on the land. An example of the application of this presumption is where a printing press attached by its own weight to the ground was found not to be a fixture: Hulme v Brigham [1943] KB 152.

The purpose of annexation 2.11 Recent decisions have highlighted the decreasing importance of the first test and the increasing significance of the purpose or intention of annexation test. In Palumberi v Palumberi [1986] NSW ConvR 55287 the court noted (at [13]) ‘there has been a perceptible decline in the comparative importance of the degree or mode of annexation, with a tendency to greater emphasis being placed upon … the intention with which the item is placed upon land’. Under the intention test, an object becomes a fixture if it has been attached to, or placed on, the land as an improvement to the land or as part of the architectural design or layout. If the object was affixed to the land as a temporary measure or for the purposes of display then the object will not be a fixture. In the case of Leigh v Taylor [1902] AC 157, a tapestry which was securely affixed by nails to the walls of a house was held not to be a fixture. The annexation was for the purpose of enjoying the viewing of the tapestry and there was no intention to benefit the value of the real estate.

2.12 Where objects are not affixed, but the circumstances show that the objects were intended to become part of the land or were intended for the better use and enjoyment of the land, these will be regarded as fixtures by application of the purpose of annexation test. Objects in this category would include heavy [page 21] marble statues and substantial garden ornaments which were an integral part of the architectural design: D’Eyncourt v Gregory (1866) LR 3 Eq 382. One obvious Australian example is that of a wooden Queensland house resting by its own weight on stumps or piers. In Reid v Smith (1905) 3 CLR 656 at 668, Griffith CJ said that in such a situation, the onus would lie on the person claiming the house as real property to show that the building was erected with the intention that it become part of the real property. The onus was discharged by showing that the object was an ordinary dwelling house on a town allotment. Additionally, Griffith CJ noted (at 666) that in considering the objective intention of the parties the court should take into account the prevailing community practice and the taste and fashion of the day. In this case timber dwellings were not affixed except by their own weight. 2.13 The purpose of annexation test is an objective one and the intention of the person affixing the item is to be determined from all the circumstances of the case, including the nature of the chattel and the relationship of the parties. As was explained in Hobson v Gorringe [1897] 1 Ch 182 at 193: In Holland v Hodgson, Lord Blackburn when dealing with the ‘circumstances to shew intention’, was contemplating a referring to circumstances which shewed the degree of annexation and the object of such annexation which were patent for all to see, and not to circumstances of a chance agreement that might or might not exist.

However, in National Australia Bank v Blacker (2000) 104 FCR 288, Conti J noted that some modern authorities suggest that the actual

(that is the subjective) intention of the fixer, may be relevant in indicating the time the object is intended to remain in position and the purpose of its annexation: at 294. In Ball-Guymer v Livantes (1990) 102 FLR 327, Miles CJ considered that ‘the test is a subjective one, that is to say one has regard to the intention accompanying the fixing’: at 330. Similarly, in Pegasus Gold Australia Ltd v Metso Minerals (Australia) Ltd (2003) 16 NTLR 54 at [21], Mildren J stated that ‘sometimes it is appropriate to take into account the subjective intention of a party fixing a chattel to land …’. See also Eon Metals NL v Commissioner of State Taxation (WA) (1991) 91 ATC 4841 and Eastern Nitrogen Ltd v Commissioner of Taxation [1999] FCA 1536. Butt also questions why the courts should totally disregard the affixer’s actual (subjective) intention regarding the status of an object, except in the case where third parties are involved. In such circumstances, Butt suggests that recourse to subjective intention, if allowed, should not be permitted to prejudice the rights of third parties who would be unaware of such intentions: see P J Butt (1997) 71 Australian Law Journal 816 at 821; Land Law, 6th ed, para 3 07. Clearly, agreements made between the item’s owner and the landowner as to whether an item is a fixture or chattel will not affect third parties with an interest in the land: Hobson v Gorringe [1897] 1 Ch 182. 2.14 Application of the objective test of intention can be found in the case of May v Ceedive Pty Ltd (2006) 13 BPR 24,147; [2006] NSWCA 369. Here the plaintiff entered into a contract to purchase a house, but not the land on which it was situated. The land was owned by the defendant and leased to the purported vendor of the house. [page 22] A practice had developed in this mining community whereby miners retained ownership of the houses they built on leased land. The New South Wales Court of Appeal found the house to be a fixture and in reaching this finding attributed greater weight to evidence that removal

of the house would involve significant, if not total, destruction of the house, than to evidence of the subjective intention of the parties. An additional significant factor in the court’s determination was that the house was objectively intended to remain in position permanently, or for a definite or substantial period, as evidenced by the fact that the house had been on the same land since 1910 (nearly 100 years) and that the mining operation had ceased. However, Santow JA reflected that although Australian authorities favour the view ‘that the original affixer’s actual intention is determined objectively’, they also ‘allow the possibility that the original affixer’s actual (subjective) intention may have a limited bearing … at least to the extent that it helps to indicate such matters as the period of time the item was intended to remain in position and the function to be served by its annexation’: at [68]. Another illustration of the objective nature of this test is found in Belgrave Nominees Pty Ltd v Barlin-Scott Airconditioning (Aust) Pty Ltd [1984] VR 947. As a subcontractor, the defendant had affixed airconditioning plants to the roofs of the plaintiffs’ buildings. The plants stood on their own weight on a platform and were connected to the water pipes and electric supply cables of the buildings. The defendant later removed the air conditioning plants and the plaintiffs sought the return of the equipment. Relying on the contract between themselves and the main contractors for the work, the defendant alleged that a provision in the contract allowed the defendant to remove the plants for repairs. Further, the defendant submitted on the authority of Appleby v Myers (1867) LR 2 CP 651 that the materials did not become annexed to the land before the contractual maintenance period for repair had expired. This submission was rejected by Kaye J, who ruled that the distinguishing feature of Appleby v Myers was the contractual relationship between the plaintiff and the defendant. There was an absence of any such relationship between the parties in the present action. He considered that even slight fixing to the land is sufficient to raise the presumption that a chattel is a fixture. In those circumstances, the onus of proving otherwise rests upon the party so contending to show objectively, from the relevant circumstances, that

it was intended that the article should remain a chattel.

The intended time of annexation 2.15 Australian Provincial Assurance Co Ltd v Coroneo (1938) 38 SR (NSW) 700 has often been relied upon by Australian courts as setting out the law relating to fixtures in this country. Coroneo built a theatre on land which was the subject of a mortgage. Equipment and plant were installed in the theatre, including chairs which were fastened together in rows and fixed to the floor when in use. These chairs could be easily unfixed and moved around to accommodate the different uses to which the building was put. Coroneo, with the consent of the mortgagees, leased the theatre and the equipment in it to Smythe, who subsequently transferred the lease to other parties. The mortgagees exercised their power of sale and the [page 23] building was sold. The plaintiff, Coroneo, claimed for the return of the chairs and other objects on the grounds that they were chattels. After adopting the two tests, outlined in 2.9, Jordan CJ elaborated on the test of purpose of annexation at 712–3: The test of whether a chattel which has been to some extent fixed to land is a fixture is whether it has been fixed with the intention that it shall remain in position permanently or for an indefinite or substantial period (Holland v Hodgson), or whether it has been fixed with the intent that it shall remain in position only for some temporary purpose: Vaudeville Electric Cinema Ltd v Muriset. In the former case, it is a fixture, whether it has been fixed for the better enjoyment of the land or building, or fixed merely to steady the thing itself, for the better use or enjoyment of the thing fixed … if it is proved to have been fixed merely for a temporary purpose it is not a fixture: Holland v Hodgson; Vaudeville Electric Cinema Ltd v Muriset. The intention of the person fixing it must be gathered from the purpose for which and the time during which use in the fixed position is contemplated: Hobson v Gorringe; Pukuweka Sawmills Ltd v Winger. If a thing has been securely fixed, and in particular if it has been so fixed that it cannot be detached without substantial injury to the thing itself or to that to which it is attached, this supplies strong but not necessarily conclusive evidence that a permanent fixing was intended: Holland v Hogson; Spyer v Phillipson. On the other hand, the fact that the

fixing is very slight helps to support an inference that it was not intended to be permanent. But each case depends on its own facts.

Among the objects in dispute were a switchboard and a generating set. They were securely fastened to the building by screws and bolts, and had remained in position though the building had been variously used as a movie theatre, for concerts or been hired out for other events. The court considered that the objects were evidently intended to remain in position permanently and were clearly fixtures. The chairs were moved back and forth (the best seats were put at the back when the building was used as a picture hall and the reverse when used as a concert hall), sometimes stacked at the sides of the hall to make room for tables and at other times hired out and taken from the building. Having regard to the purposes for which they were used and the extent and reason for their fixation on the occasions when they were affixed, the court found that the chairs were chattels. However, because the equipment had been leased to Smythe, Coroneo did not have a right to their possession until the expiry of the lease in October 1936. As the alleged act of conversion relied upon occurred in January 1936, Coroneo’s claim failed notwithstanding the finding that the chairs were chattels.

Modern approach — all circumstances 2.16 In Palumberi v Palumberi [1986] NSW ConvR 55-287 at 56,671, Kearney J said that although both the degree of annexation and the purpose of annexation are relevant, neither is conclusive. The modern approach to determining whether an object has become a fixture is to consider all the circumstances of the case. As Conti J observed in National Australia Bank v Blacker (2000) 104 FCR 288 (at 296): … there is no single test which is sufficient to determine whether an item of property is a chattel or a fixture. It is clear that the Court ought to have regard to all the

[page 24]

circumstances of the case in making its determination … No particular factor has primacy and each case depends on its own facts …

This view has also been adopted in a number of cases including May v Ceedive Pty Ltd (2006) 13 BPR 24,147; [2006] NSWCA 369; Farley v Hawkins [1997] 2 Qd R 361; NH Dunn Pty Ltd v LM Ericsson Pty Ltd (1979) 2 BPR 9241. 2.17 While no single test will be sufficient to determine whether an item is a fixture or a chattel, the intention with which the object was attached to, or placed on, the land remains an important consideration. Intention must be inferred from all the circumstances including the: mode and extent of annexation (whether the item can be removed without substantial damage to itself or the fabric of the building or land to which the object is attached, as well as the cost of the removal); function or purpose to be served by the annexation; contemplated period of time during which the object was to remain in this position (whether the intention was to make the object a permanent part of the land or whether the fixing was for a temporary purpose); purpose for which the object was fixed (whether the annexation was for the better use and enjoyment of the land in the sense of improving or utilising the land or whether it was for the better use and enjoyment of the object itself); nature of the object; contemplated use of and what is to be done with the object; consideration of the object as an ‘integrated whole system’; consideration of the object as a part of the ‘architectural design’ of a property; relation and situation of the party making the annexation vis-à-vis the owner of the freehold or the person in possession, that is the

status of the fixer; economic consequences of holding that a chattel has become a fixture; and taste and fashion of the day (ie, the prevailing community standard). While the principles to be applied are certain, no standard solution is to be found and each case depends upon its individual facts and the evidence introduced to prove those facts. The same object may be found to be a fixture in one set of circumstances and a chattel in another set of circumstances. 2.18 The case of Eon Metals NL v Commissioner of State Taxation (WA) (1991) 91 ATC 4841 is an example of how the circumstances of the case may determine whether objects remain chattels or become fixtures. The issue was whether stamp duty on an agreement for the sale of mining plant and equipment should be exempted under the Stamp Act 1921 (WA). No stamp duty was payable for chattels whereas duty would be payable for an estate or interest in property if the objects were fixtures. Ipp J, in deciding that some of the objects were chattels, considered all [page 25] the circumstances of the case. Pumps and transformers were lightly attached to the land and could be removed without damage to themselves or anything else. Factors taken into consideration included the limited life of the mine, the transportable character of the objects and that it was in the best commercial interest to remove them. The length of time for which the equipment was intended to remain on the land was not considered an overriding factor. 2.19 This approach has been confirmed in subsequent cases, for example, National Dairies WA Ltd v Commissioner of State Revenue (2001) 24 WAR 70, Full Court (WA). The case involved the payment of stamp duty on a transfer of a large variety of dairy processing

equipment in a factory. Under the stamp duty legislation in force in Western Australia at that time, if this equipment was found to be a fixture and thus passing with the land, stamp duty would be payable on the value of the equipment. The equipment in question included tanks and vats, boilers, butter printers, hot water softeners, water cooling towers, refrigerating plant, different types of machines to make bottles and containers and other things. Generally, these items were not fixed other than by their own weight. The water cooling towers were bolted to water pipes and the pumps sat on frames outside the factory building. All the machinery was connected to the power source of the factory. Further, most equipment was connected to a piping system for water or refrigeration, but the degree of annexation was slight. In the leading judgment, Malcolm CJ decided that the various pieces of equipment were fixtures on the following basis: The interconnection of the objects made them into an integrated whole. Although the objects could be easily removed without material damage to the structure to which they were annexed, they were installed for an indefinite period. There may have been an intention formed that each item of equipment was to be capable of being removed and relocated but there was no evidence that this was the intention at the time that the equipment was originally installed. In the circumstances, the equipment was installed for the purpose of the better enjoyment of the land as a dairy processing plant. All the items were incorporated into the plant in a complex way and played a part in an integrated system of milk processing. See also Macrocom Pty Ltd v City West Centre Pty Ltd (2001) 10 BPR 18,631; Agripower Barraba Pty Limited v Blomfield [2013] NSWSC 1598; In the matter of Cancer Care Institute of Australia Pty Ltd (admin apptd) (2013) 16 BPR 31,529.

Removal of fixtures

2.20 A chattel may be removed from the land at any time by the owner of the chattel, subject to any term of the contract between the parties. Owners of land who attach fixtures to their own land may remove them at any time before a contract to sell the land is entered into. Where there is a mortgage, fixtures, whether annexed before or after the date of the mortgage, are considered part of the security secured by the mortgage and may not be removed: see Conveyancing Act 1919 (NSW) s 67; Property Law Act 1974 (Qld) s 239; Law of Property Act 1936 (SA) s 36; Conveyancing [page 26] and Law of Property Act 1884 (Tas) s 6; Property Law Act 1958 (Vic) s 62; Property Law Act 1969 (WA) s 41.

Personal property securities legislation and fixtures 2.21 The Personal Property Securities Act 2009 (Cth) (PPSA) is designed to provide a national law applicable to security interests over personal property in Australia. The Act establishes a priority regime depending on, inter alia, the type of security and whether it has been registered on the Personal Property Securities Register. Several significant exclusions from the scope of the PPSA have been made and one of these is fixtures: PPSA s 8(i)(j). Accordingly, the PPSA applies only to personal property and has no application to fixtures. A registered security interest will be ineffective in the case of a fixture. ‘Fixtures’ are defined in s 10 of PPSA to mean ‘goods … that are affixed to land’. The PPSA fixtures definition differs from the common law assessment of a fixture which requires consideration of the intention of the affixing and would appear to exclude from the PPSA’s operation any chattel which has been fixed or annexed to land whether or not it becomes, in law, a fixture. Recently, Black J In the matter of Cancer Care Institute of Australia Pty Ltd (admin apptd) (2013) 16 BPR 31,529 applied the common law fixture tests (at 2.9), in

determining whether certain medical equipment, over which a purchase money security interest (PMSI) was registered under the PPSA, had become a fixture. Black J found that the equipment remained a chattel.

Tenants’ fixtures 2.22 Where the object has been annexed by tenants, an exception has been granted by the common law. Notwithstanding that the object may have been a fixture by application of the two tests, the tenants may have a right to remove the object although they are not under a duty to do so: see for example Commissioner of State Revenue (WA) v TEC Desert Pty Ltd [2009] WASCA 128 (reversed by the High Court on other grounds: [2010] HCA 49). The common law right is subject to certain limitations: The right applies only between landlords and tenants or life tenants and their remainderpersons: Climie v Wood (1869) LR 4 Ex 328 (Exch Ch). The exception applies only to certain types of fixtures: those which have been attached for trade, ornamental or domestic purposes. These are ‘tenant’s fixtures’: Bain v Brand (1876) 1 App Cas 762; Vopak Terminal Darwin Pty Ltd v Natural Fuels Darwin Pty Ltd (2009) 258 ALR 89 at 101 [67]. The tenants have a duty to make good any damage caused by the removal of the fixtures or be liable for damages: Mancetter Developments Ltd v Garmanson Ltd [1986] QB 1212. The tenants cannot remove items which are so extensively fixed that removal would destroy their character or value or significantly damage the realty. These are ‘landlord’s fixtures’. This is the position even if the tenants brought [page 27]

these objects onto the land for trade, ornamental or domestic purposes: Sebea v Territory of Papua (1941) 67 CLR 544 at 553–4. The right should be exercised during the tenancy: Re Robert; Ex parte Brook (1878) 10 Ch D 100. Where there is a dispute about the tenancy and the tenants are in possession with a genuine claim to a right to possession, then the right to removal extends to a reasonable time after the legal dispute has been resolved: Concept Projects Ltd v McKay [1984] 1 NZLR 560. Where the tenancy has been terminated by forfeiture or surrender (in other words, for reasons other than expiry of the contract by passing of time), then the right of removal must be exercised during the tenancy: see Butt, Land Law, 6th ed, paras 15 254–15 255. Differences between each state lie in the relevant tenancy and residential tenancy legislation. See generally Bradbrook et al, Australian Real Property Law, 5th ed, paras 16.75–16.95; Butt, Land Law, paras 15 248–15 256.

Agricultural tenant’s fixtures 2.23 At common law, tenants are not permitted to remove agricultural fixtures: Elwes v Maw (1802) 102 ER 510 (KB). However, the common law position has been altered by state legislation. Certain states (eg, New South Wales, Queensland, Tasmania and Victoria) have enacted legislation allowing property in fixtures used for agricultural purposes to remain with the tenant who may remove them within a specified period after the expiry of the tenancy. Other conditions such as the consent of the landlord to the annexation of the fixture and the giving of notice of removal to the landlord must be met: Agricultural Tenancies Act 1990 (NSW) ss 6–10; Property Law Act 1974 (Qld) s 155; Landlord and Tenant Act 1935 (Tas) s 26; Residential Tenancies Act 1997 (Vic) s 64; Property Law Act 1958 (Vic) s 154A. In South Australia, Western Australia, the Australian Capital Territory and the Northern Territory, the common law position applies. See Bradbrook et al, Australian Real Property Law, para 16.100.

A word of advice … Students usually understand the principles to be applied to determine whether a certain object has become a fixture. Application of the two tests (at 2.9) to the facts may prove a little difficult. Therefore, when you apply the tests: 1. Determine the relationship between the claimants. Is there an express contractual provision in relation to the conflicting claim? 2. Consider all the circumstances of the case to ascertain whether the object was installed for the better enjoyment of the land itself. As part of this exercise to determine the intention of the party affixing the object, consider these two factors: (a) the degree of annexation — what is the presumption and where does the onus of proof lie? [page 28]

3.

(b) the purpose of annexation — is this an objective or subjective test? Remember that in the modern approach the cases have relied more heavily on this factor to determine the intention of the party. Consider removal of the fixture. Determine the common law right and also check the express legislative provisions.

Tenure 2.24 The doctrine of tenure formed the basis of land ownership in England. The roots of the doctrine grew in feudal England and very little of the theoretical basis of tenure concerns modern land law in England or Australia. However, it is still significant in that no-one ‘owns’ land, as all land is thought to be held by the Crown. We will

discuss the historical basis of tenure and the recent developments in Australia that have qualified the doctrine of tenure.

Historical basis 2.25 Following the Norman invasion of England in 1066, the King considered himself to be owner of all land in England. In accordance with this doctrine, land was granted by the Crown to various subjects conditional upon the performance of certain services. Land was not granted outright, therefore there was no absolute ‘ownership’ of land. All occupiers of land were regarded as ‘tenants’ and the landholding structure was in the form of a feudal pyramid with the apex representing the King, below whom were lords who rendered services of perhaps providing horsemen for battle. 2.26 Depending on the types of services rendered, different types of tenure developed — one of them being the socage where nominal services were required. At the base of the pyramid would be the actual occupiers of the land. Theoretically there was no limit to the number of layers on the feudal pyramid and this process of infinite extension of the pyramid was known as ‘subinfeudation’. Tenants could transfer their tenancy only with their lord’s consent. 2.27 Legislation was passed in 1290 to abolish the process of subinfeudation: Statute of Quia Emptores. It enabled every person to alienate (or transfer) his or her interest in the whole or part of his or her land without consent. If A sold land to B, the effect of this alienation was to substitute B in A’s tenurial position and no new relationship of lord and tenant was created. Another development was the change from socage to free socage — tenure with no obligations at all. This form of tenure is now called ‘freehold’.

Modification of doctrine 2.28 The system of freehold tenure was brought by the early English settlers to Australia and an early Privy Council decision affirmed that

the system of tenure was the basis of land law in Australia: AttorneyGeneral v Brown (1847) 2 SCR [page 29] (NSW) App 30. The Crown was the holder of all Australian land, and therefore title to all land which had not been granted to settlers or others remained with the Crown: Williams v Attorney-General (NSW) (1913) 16 CLR 404. This position stemmed from the view that Australia was a territory acquired by settlement, where the natives were regarded as barbarous and without settled law: Cooper v Stuart (1889) 14 App Cas 286; Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141. As such, English law would be enforced in its entirety. The land was also considered terra nullius, land belonging to no-one. 2.29 The view that Australia was terra nullius had been accepted (but not without criticism) until the High Court decision in Mabo v Queensland (No 2) (1992) 175 CLR 1 (Mabo (No 2)). The members of the High Court all accepted that the acquisition of sovereignty by the Crown could not be challenged in a domestic court. Further, the majority accepted that the land was inhabited at the time of settlement, and therefore the Crown merely acquired a radical title to land and not full absolute and beneficial ownership. The Crown’s radical title is subject to unextinguished native title which exists as a burden on the Crown’s title: see Chapter 4 for discussion of the decision and the concept of native title. As for the doctrine of tenure, Brennan J observed (at 47): It is not surprising that the fiction that land granted by the Crown had been beneficially owned by the Crown was translated to the colonies and that Crown grants should be seen as the foundation of the doctrine of tenure which is an essential principle of our land law. It is far too late in the day to contemplate an allodial or other system of land ownership. Land in Australia which has been granted by the Crown is held on a tenure of some kind and the titles acquired under the accepted land law cannot be disturbed. If the land were desert and uninhabited, truly a terra nullius, the Crown would take an absolute beneficial title (an allodial title) to the land for the reason given by Stephen CJ in Attorney-General v Brown (1847) 1 Legge 312, at 317–18): there would be no other

proprietor. But if the land were occupied by the indigenous inhabitants and their rights and interests in the land are recognised by the common law, the radical title which is acquired with the acquisition of sovereignty cannot itself be taken to confer an absolute beneficial title to the occupied land. Nor is it necessary to the structure of our legal system to refuse recognition to the rights and interests in land of the indigenous inhabitants. The doctrine of tenure applies to every Crown grant of an interest in land, but not to rights and interests which do not owe their existence to a Crown grant.

2.30 In Wik Peoples v Queensland (1996) 187 CLR 1, the majority of the High Court questioned the contemporary significance of property concepts which were based in the English feudal system and emphasised the common law and statutory developments in real property law in Australia.

Summary 2.31 We have discussed the related concepts of land and tenure. You should remember the following: Notwithstanding the maxim cuius est solum, there are physical limits to the scope of land in relation to both airspace and minerals. [page 30] The law on fixtures determines whether chattels which have been placed on land may be considered legally part of the land. While the doctrine of tenure forms the theoretical basis of how land is held, in practical terms it has very little significance. Since the decision in Mabo (No 2), the Crown’s title is construed as merely a radical title and not absolute beneficial ownership of land.

Problem 1 Hip-hop, a company which processes kangaroo meat for the

local and export markets, leased an area of land for five years from Superfund, an investment company. The land was located next to Mountain Creek National Park and had previously been used to graze cattle. There was a problem with excessive numbers of kangaroos in the park and Hip-hop was granted a licence from the government to hunt specified numbers of the animal. The licence was for five years and renewable upon expiry, subject to new conditions being imposed. A small dilapidated cottage was located on the leased land. At the cost of $55,000 Hip-hop renovated the cottage to convert it to a retail outlet to sell their produce to the public. Hip-hop installed a refrigerated shop counter bolted to the floor as well as downlights. In addition, a large woven tapestry depicting kangaroos was made by a local artist to cover the full length of one internal wall. This tapestry was securely fixed to the brickwork to hide the unrenovated part of the wall. It fitted in well with the kangaroo-themed decor. The company also built a freezing and storage facility on the land. The freezing and storage facility comprised a prefabricated shed which took one week to assemble on site. It stood bolted to permanent concrete foundations and was connected to power and water supplies. It was necessary to apply for the local council’s consent before the building could be erected. The council agreed to the building on condition that any buildings erected be removed from the site at the end of the lease and the area be returned to pastoral use. Hip-hop’s lease will expire in six months time and the potential buyers of the land have indicated their unwillingness to enter into a new lease. If a new lease is not negotiated, Hip-hop is planning to hire a crane and transporter to relocate the freezing and storage facility and intends to also remove the refrigerated shop counter, light fittings and tapestry.

Answer plan Hip-hop’s right to remove the items brought onto the land depends on whether these items are ‘tenant’s fixtures’ and thus removable. This requires a two-part analysis. First, it is necessary to ascertain if the items are fixtures (and part of the real property) or whether they remain chattels (personal property). If the items remain chattels [page 31] they are Hip-hop’s personal property and are removable. Second, it is necessary to ascertain whether items that are fixtures were affixed for trade, ornamental or domestic purposes. If they were then Hip-hop can remove these items as ‘tenant’s fixtures’. If the fixtures were not affixed for these purposes then Hip-hop cannot remove them and they remain the property of the landlord. Are the items fixtures? The law on fixtures generally provides that what is attached to the land becomes part of the land: Holland v Hodgson (1872) LR 7 CP 328. A contractual relationship exists between Superfund and Hip-hop as lessor and lessee. There is no indication that there is any specific provision in the lease referring to the major item, which is the freezing and storage shed facility, nor the new shop fittings including the refrigerated shop counter bolted to the floor, downlights and the hanging tapestry. Following Holland v Hodgson, even a slight fixing to the land will raise the presumption that the items are fixtures. The mode of annexation of each of the items will now be considered:

(i)

The freezing and storage shed facility is substantially attached to the land. It is annexed to concrete foundations by bolts and is also connected to power lines and water connections, which would indicate a significant degree of annexation. While the shed is prefabricated, it is not light and easily portable, nor is it designed for easy transportation. Removal and transportation of the shed would be difficult. (ii) The refrigerated shop counter and downlights are securely attached to the house. The downlights and shop counter are not easy to remove without causing significant damage to the floor and ceiling respectively. (iii) The hanging tapestry is attached to a brick wall of the house and may not be easily removed without damage to the fabric of the tapestry itself. Because of the degree of annexation, the onus to prove that all the items are chattels thus lies on Hip-hop: Holland v Hodgson. However, the mode of annexation is not conclusive: Australian Provincial Assurance Co Ltd v Coroneo (1938) 38 SR (NSW) 700; Palumberi v Palumberi [1986] NSW ConvR 55-287. Decisions such as National Australia Bank v Blacker (2000) 104 FCR 288, Eon Metals NL v Commissioner of State Taxation (WA) (1991) 91 ATC 4841 and National Dairies WA Ltd v Commissioner of State Revenue (2001) 24 WAR 70 indicate the growing importance of the purpose or intention of annexation test. The intention of the person affixing the object must be gathered from the purpose for which the object was affixed, the time for which the purpose is contemplated, and the ease of removal from the land. Since the decisions in Palumberi v Palumberi and National Australia Bank v Blacker, all the circumstances of the case must be considered. The purpose of annexation and other circumstances will now be

considered: (i) The refrigerated shop counter and downlights can be contrasted with the shed in that the tenant installed them as improvements to the pre-existing property for the better enjoyment of the building as a shop. Both improve the functional aspects of the shop. Both items have been securely fixed to the existing property and do not have to be removed according to the council [page 32]

(ii)

permit. The nature of the refrigerated shop counter and downlights is that they are permanent additions. In Holland v Hodgson (1872) LR 7 CP 328, Blackburn J suggested that a shop counter is intended to be permanent. The downlights have none of the ornamental character of the chandelier in Park v Lasrado [2005] QSC 211. It follows that the shop counter and downlights have become fixtures annexed to the land and Hip-hop cannot remove them. The tapestry has been substantially affixed to a brick wall which would indicate that the intention was that the tapestry be permanently affixed as part of the building as in Norton v Dashwood [1896] 2 Ch 497. In this case, the substantial affixing meant that removal of the tapestries would have damaged the brickwork and torn the fabric of the tapestries. Leigh v Taylor [1902] AC 157 is distinguishable as the affixing of the tapestries to the walls was the only way they could be enjoyed as ornamental objects and, given this ornamental character, they could not have been more slightly attached; thus the tapestries were found to

remain as chattels. Additionally, it could be argued that the purpose of the tapestry was to decorate the kangaroo-themed room in which it was situated rather than to enhance the independent character of the tapestry; thus it is likely that a permanent fixing was intended and the tapestry would be a fixture as in the case of Re Whaley [1908] 1 Ch 615. Given the substantial affixing and given that the purpose of the fixing was to hide an unsightly wall, it is arguable that a permanent attachment was intended. Therefore, this would suggest that the tapestry is a fixture, and thus not removable by Hip-hop. Are the items ‘tenant’s fixtures’? For the items classed as fixtures above (eg, the refrigerated shop counter, the downlights and tapestry) the following applies. The common law will permit tenants to remove fixtures if the fixtures can be characterised as being for trade, domestic or ornamental purposes. It is likely that the freezing and storage facility (if it is held to be a fixture) and the refrigerated shop counter and the downlights would be characterised as being for trade, and the tapestry could be classed as being for ornamental purposes. It follows that Hiphop can remove these items, making good any damage during removal. However, the tenant cannot remove the downlights because they are so firmly affixed that they are incapable of removal without losing their essential character or value, or without causing substantial damage to the realty, even though the tenant may have brought them onto the land for a trade purpose. These are ‘landlord’s fixtures’ and cannot be removed: see Pole-Carew v Western Counties & General Manure Co Ltd [1920] 2 Ch 97 and Sebea v Territory of Papua (1941) 67 CLR 544 at 558–9. In summary, applying the law of fixtures, Hip-hop is likely to

be able to prove that the freezing and storage facility is a chattel, and that the shop counter and tapestry are trade fixtures. Thus Hip-hop will be able to remove these items during the term of the lease.

[page 33]

Problem 2 The facts are as above, but Hip-hop decides that as business has grown well over the last years and Hip-hop has negotiated a long-term licence in relation to the kangaroos, it will purchase the fee simple from Superfund. To finance this purchase Hip-hop borrows money from No Excuses Bank and, as security for the loan, the land is mortgaged to No Excuses Bank. After purchasing the land Hip-hop has a heavy metal kangaroo statue that is three metres tall built on the land. The giant kangaroo sits at the entrance to the property, resting by its own weight on a purpose-built cement slab, as a marketing ploy to attract passing trade. Hip-hop experiences severe liquidity problems in the recession and cannot meet repayments to the loan. No Excuses Bank is now in the process of placing an order for sale of the land. There are several interested buyers. Hip-hop has hired a crane and transporter to relocate the big kangaroo and the freezing and storage facility. The company is also planning to remove the refrigerated shop counter, storage cabinets, light fittings and tapestry. No Excuses Bank has threatened to apply for an injunction to stop the removal of all of the above items. Advise Hip-hop in respect of its right to remove items it has brought onto the land.

Answer plan The general rule is that the mortgagee, No Excuses Bank, is entitled, along with the land, to sell all fixtures which are on the land at the time of the mortgage and also any fixtures which are attached later: Pan Australian Credits (SA) Pty Ltd v Kolim Pty Ltd (1981) 27 SASR 353; Kays Leasing Corp Pty Ltd v Burgess [1961] VR 703. Therefore, No Excuses Bank is entitled to all the items which are fixtures, whether they are attached before or after the mortgage. Is the kangaroo a fixture? The heavy metal kangaroo rests by its own weight and is not attached to the land. It would be reasonably difficult to remove and transport because of its size and weight and this indicates that a permanent affixing was intended. The kangaroo has been placed on the land for the better use and enjoyment of the property as a business. Additionally, it is arguable that it is now part of the overall design of the premises: D’Eyncourt v Gregory (1866) LR 3 Eq 382 at 369. It follows that the kangaroo would be likely to be regarded as a fixture. Therefore, as determined above, Hip-hop could remove only those items that are chattels (arguably the shed) and No Excuses Bank is entitled to all fixtures including the kangaroo, the shop counter, the downlights and the tapestry.

Further discussion You have seen that the High Court in Mabo (No 2) found that the theory of tenure was part of the skeleton of the common law of Australia, albeit a modified version

[page 34] of tenure. Several states of the United States of America have reversed the doctrine of tenure without apparent ill effect. Consider whether the doctrine of tenure is an appropriate basis for Australian real property law today. Consider the following additional readings in relation to the doctrine of tenure: S Hepburn, ‘Disinterested Truth: Legitimisation of the Doctrine of Tenure Post Mabo’ (2005) 29 Melbourne University Law Review 1; S Hepburn, ‘Feudal Tenure and Native Title: Revision an Enduring Fiction’ (2005) 27 Sydney Law Review 49; U Secher, ‘The Doctrine of Tenure in Australia Post-Mabo: Replacing the “Feudal Fiction” with the “Mere Radical Title Fiction” — Part 1’ (2006) 13 Australian Property Law Journal 107; and U Secher, ‘The Doctrine of Tenure in Australia Post-Mabo: Replacing the “Feudal Fiction” with the “Mere Radical Title Fiction” — Part 2’ (2006) 13 Australian Property Law Journal 140.

[page 35]

3 Possessory Title and Adverse Possession Introduction 3.1 It follows from the concept of tenure discussed in Chapter 2 that land is not considered ‘owned’ by private individuals. We refer to ‘title’ to land rather than ‘ownership’ of land. The common law has long recognised that there is no absolute ownership of land. In a dispute between two parties, the courts were concerned as to who had the better right to possession, not who was the absolute owner. Therefore, title to land was relative. It was not until the 17th century that ownership became a legal concept. Now ownership is regarded as the largest possible bundle of rights in relation to both land and personal property.

Possessory title 3.2 Initially, possession of land was called ‘seisin’. Paradoxically, although the common law was not concerned with absolute ownership of land, the remedies developed by the common law protected seisin against all the world: see B Edgeworth, C Rossiter, M Stone and P O’Connor, Sackville and Neave Australian Property Law, 9th ed, LexisNexis Butterworths, Sydney, 2013, para 2.46; and see P J Butt,

Land Law, 6th ed, Thomson Reuters, Sydney, 2010, paras 5 04–5 19 for a description of the writs available in feudal times. Later, to overcome legal difficulties stemming from the artificial notions of what was or was not seisin, the courts developed the action of ejectment. This remedy permitted an occupant of land under a lease (one who did not hold land under a freehold and who therefore did not have seisin) to recover land. Ironically, because remedies for the protection of seisin had become so complicated and prolonged, this new remedy of ejectment was made available to freeholders through a legal fiction: see Edgeworth et al, Sackville and Neave Australian Property Law, 9th ed, paras 2.47–2.54 and Butt, Land Law, 6th ed, para 5 18 for an account of the legal fiction. Megarry and Wade observe that the action of ejectment shifted ‘the basis of [page 36] title from the feudal concept of seisin to the modern concept of adverse possession’: C Harpum, S Bridge and M Dixon, Megarry and Wade: The Law of Real Property, 8th ed, Sweet & Maxwell, London, 2012, para 4-022.

The importance of possession 3.3 The leading case which established that possession could give rise to title is Asher v Whitlock (1865) LR 1 QB 1. In that case, A had a paper title in land but was dispossessed by B. It was held that B’s successor-in-title had sufficient proprietary interest in the land to recover the land from C who had in turn occupied the land. The Privy Council in Perry v Clissold [1907] AC 73; (1906) 4 CLR 374 established that possessory title applied in Australia. Clissold had taken possession of land in 1881. In 1891, the Crown compulsorily acquired the land to build a school. Although Clissold had no proper documentary title, the Privy Council ruled that he had possessory title to the land and was entitled to compensation from the Crown. Lord Macnaghten (at 79)

stated the law in simple terms: ‘It cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner’.

Possessory title in Mabo (No 2) 3.4 In Mabo v Queensland (No 2) (1992) 175 CLR 1 (hereinafter Mabo (No 2)), Toohey J considered the plaintiffs’ claim that they acquired a possessory title in the land on the ground of possession at common law. While the other members of the High Court did not address this matter, Toohey J examined the principles relating to the issue (at 209): So long as it is enjoyed, possession gives rise to rights, including the right to defend possession or to sell or to devise the interest. A defendant in possession acquires seisin even if possession is tortiously acquired. That is, a person in possession has an estate in fee simple in the land; it is this interest on which a defendant in an action for ejectment could rely. The disseisee loses seisin and acquires a right of entry in its stead. A possessor acquires a fee simple estate because the fullest estate known to the law is presumed until a lesser estate is proved.

3.5 Toohey J in Mabo (No 2) was open to the plaintiffs’ argument that the Crown did not acquire possessory title at the time of annexation on the grounds that: the land was physically occupied by indigenous inhabitants; and the fiction of a lost Crown grant rebutted the fiction of original Crown ownership. He tentatively accepted that the Crown cannot, on the strength of its fictitious original title, require a person who is in possession of land to prove his or her right by producing a royal grant, for in most cases no grant exists. The grant is deemed in law (by the fiction of a lost Crown grant) to have been made, if not to a predecessor of the present possessor then to someone else. Therefore, if the fiction that all land was originally owned by the Crown was to apply, as argued by the defendants, it could not operate without also according fictitious grants

to the indigenous occupiers: at 212. [page 37] 3.6 The Meriam people who were in occupation could be presumed to be in possession despite the fact that possession is a ‘conclusion of English law’ which did not apply before annexation. This was due to the fact that there was no evidence showing possession in another person and furthermore that the creation of a reserve in 1882, or subsequently in 1912, did not affect the Meriam people’s common law possession, since it did not diminish their enjoyment of the land but ensured that it remained with the people: at 213. It was on this basis that Toohey J came to a tentative conclusion that the Meriam people may have acquired possessory title upon annexation. It must be noted that Toohey J expressly refrained from making a firm decision on this issue and the other members of the High Court did not address this argument (at 214). Brennan J did, however, make some often forgotten comments concerning the possibility of native title amounting to possessory or proprietary title. According to Brennan J, ‘Whether or not land is owned by individual members of a community, a community which asserts and asserts effectively that none but its members has any right to occupy or use the land has an interest in the land that must be proprietary in nature: there is no other proprietor’: at 51.

Limitation of actions 3.7 The concept of possession is qualified by another legal concept — that of limitation of actions. When A, a person who holds title in land, is dispossessed by B, A’s right to sue B for possession of the land is extinguished by statute after a certain time has passed; at which point B will obtain title good against the whole world. In an explanation of the rationale of the concept of limitation of actions, the judge in an early case, Marquis Cholmondeley v Lord Clinton (1820) 2

Jac & W 1, said (at 140): The public have a great interest, in having a known limit fixed by law to litigation, for the quiet of the community, and that there may be a certain fixed period, after which the possessor may know that his title and right cannot be called in question. It is better that the negligent owner, who has omitted to assert his right within the prescribed period, should lose his right than that an opening should be given to interminable litigation, exposing parties to be harnessed by stale demands, after the witnesses of the facts are dead, and the evidence of the title lost. The individual hardship will, upon the whole, be less, by withholding from one who has slept upon his right, and never yet possessed it, than to take away from the other what he has long been allowed to consider as his own.

See also Edgeworth et al, Sackville and Neave Australian Property Law, 9th ed, paras 2.67–2.70; L McCrimmon, ‘Whose Land is it Anyway? Adverse Possession and Torrens Title’ in D Grinlinton (ed), Torrens in the Twenty-First Century, LexisNexis New Zealand Ltd, Auckland, 2003, pp 157–9.

Adverse possession 3.8 The dual concepts of acquiring title by possession together with that of limitation of actions are the basis for the recognition of adverse possession. Statutes in all states now provide that possessory title can become the ‘best’ title to land after a period [page 38] of time has elapsed: Limitation Act 1969 (NSW); Limitation of Actions Act 1974 (Qld); Limitation of Actions Act 1936 (SA); Limitation Act 1974 (Tas); Limitation of Actions Act 1958 (Vic); Limitation Act 2005 (WA). (Note that the Western Australia legislation is applicable to causes of action arising on or after 16 November 2005. Events prior to this date would be assessed pursuant to the Limitation Act 1935 (WA).) However, in the Australian Capital Territory and Northern Territory, the title of the registered proprietor cannot be extinguished by adverse possession: (Torrens statutes) Land Titles Act 1925 (ACT) s

69; Land Title Act (NT) s 198. 3.9 The rationale behind the recognition of possessory title after a certain period of time is the fact that possession should be recognised as the status quo, and that as in all other rights, owners of rights over land should be given a limited period of time to protect their paper rights. The concept of adverse possession is not difficult, but there are many elements which one has to consider to determine whether adverse possession has been successfully established. The rest of the chapter will outline the stages of evaluating a claim (commencement of period, running of time, lapse of time) and related questions that should be asked at particular stages.

Commencement of limitation period 3.10 The principal limitation period for an action to recover land is 12 years in New South Wales, Queensland, Tasmania and Western Australia, and 15 years in South Australia and Victoria: (Limitation statutes) NSW ss 27(2) and 65; Qld ss 13 and 24; Tas s 10(2); SA ss 4 and 28; Vic ss 8, 15, 18, 20; WA s 19 (ss 4 and 30 of the 1935 legislation). With regard to present interests in land, a right of action to recover land accrues if: the person had been in possession and discontinued or lost possession: (Limitation statutes) NSW s 28; Qld s 14; SA s 6; WA s 66 (s 5 of the 1935 legislation); Tas s 11(1); Vic s 9(1); and another person has taken adverse possession of the land: (Limitation statutes) NSW s 38; Qld s 19; WA s 65 (s 5 of the 1935 legislation); Tas s 16; Vic s 14(1). For a discussion on the position in South Australia, see A J Bradbrook, S V MacCallum, A P Moore and S Grattan, Australian Real Property Law, 5th ed, Thomson Reuters, Sydney, 2011, para 3.65. Unless both these conditions are present, the period of limitation does not commence. What constitutes discontinuance or loss of possession, and the taking of possession by another person, are

questions of fact for the courts to decide and are often the main issues in a problem for students. Different considerations apply in respect of limitation periods for future interests, trusts, leasehold estates and mortgages. For discussion of these considerations refer to A Wallace, M Weir and L McCrimmon, Real Property Law in Queensland, 4th ed, Thomson Reuters (Professional), Sydney, 2014, paras 10.440–10.450; Bradbrook et al, Australian Real Property Law, 5th ed, paras 3.185–3.265; Butt, Land Law, 6th ed, paras 22 05–22 06. Legislation in Queensland, Victoria, Western Australia and the Northern Territory prevents title to ‘Crown lands’ being acquired by adverse [page 39] possession: Limitation Act 1981 (NT) s 6(4); Limitations of Actions Act 1974 (Qld) s 6(4); Limitations of Actions Act 1958 (Vic) ss 7; Limitation Act 2005 (WA) s 76. In New South Wales, Tasmania and South Australia, adverse possession may be claimed against land owned by the Crown in certain circumstances but the relevant period may be longer: for example, 30, years under the Limitation Act 1969 (NSW) s 27(1), (4); Crown Lands Act 1989 (NSW) s 170; Limitation Act 1974 (Tas) s 10(1); while in South Australia the period is 60 years: Crown Suits Act 1769 (Imp); see Butt, Land Law, 6th ed, para 22 04. In Queensland, an action for adverse possession of land held under a pastoral lease has been found to be maintainable: Eckford v Stanbroke Pastoral Co Pty Ltd [2012] 2 Qd R 324. Refer to the discussion in Chapter 10 at 10.5 regarding co-owners and adverse possession: Re Franklin [2009] VSC 496.

Elements of possession 3.11 The Limitation statutes in the states and territories do not have a comprehensive definition of adverse possession. In New South Wales, Queensland and Tasmania, the term ‘adverse possession’ is

defined merely as possession in whose favour the limitation can run (NSW s 38(4)(a); Qld s 19(1); Tas s 16(1)), whereas in South Australia, Victoria and Western Australia there is no legislative definition at all — we look to the common law. For possession to be adverse, two elements must be established: (a) factual possession; and (b) intention to possess.

Factual possession 3.12 For time to commence under the Limitation statutes, factual possession requires the adverse possessor to demonstrate a degree of physical control that is ‘open, not secret; peaceful, not by force; and adverse, not by the consent of the true owner’: Mulcahy v Curramore Pty Ltd [1974] 2 NSWLR 464 at 475 per Bowen J. 3.13 Possession must be exclusive to the claimant Possession must be exercised by a single claimant. It may not be exercised at different times by several members of one family on behalf of one of those family members alone: Morris v Pinches (1969) 212 EG 1141. However, Slade J in Powell v McFarlane (1979) 38 P & CR 452 observed that there could be a single possession exercised by, or on behalf of, several persons jointly. 3.14 Possession must be adverse to the documentary owner Possession must be adverse in the sense that it must be without the consent of the documentary owner. Therefore, a claimant who is in possession under a lease or licence from the documentary owner is not in adverse possession, nor is a claimant who exercises concurrent possession with a documentary owner: Clement v Jones (1909) 8 CLR 133. The limitation period may only commence when the owner’s permission has either ceased or has been withdrawn and the claimant remains without consent. Such permission may be implied where a reasonable person would believe the occupation occurred with the owner’s permission: Batsford Estates (1983) Co Ltd v Taylor [2005] EWCA Civ 489.

[page 40] 3.15 Possession must be open The claimant’s possession must be open, notorious and unconcealed: Lord Advocate v Lord Lovat (1880) 5 App Cas 273 at 291, 296. This requirement of visibility ensures that the documentary owner has the opportunity to challenge the possession before it is established as adverse possessory title through the statutory period of limitation. Openness is a criteria, hostility is not. A title may be acquired through adverse possession even though the claimant occupied and used the land in the mistaken belief that he or she had paper title to the land, and the use was known to the actual paper owner. In Woodward v Wesley Hazell Pty Ltd (1994) 3 Tas R (NC) N4, the intention to exclude all others including the owner was well established as the claimant had thought the land was his. 3.16 ‘Peaceful’ possession means that it is undisturbed The requirement that possession must be peaceful and not by force was in issue in Shaw v Garbutt (1996) 7 BPR 14,816. The plaintiff claimed possessory title to land in rural New South Wales. She was in occupation of the land with her de facto husband. On several occasions, her husband brandished a rifle and frightened Garbutt, the documentary owner, when he came to the land to warn the plaintiff to get off the land. Although the plaintiff was present on at least one of these occasions, Young J found there was no evidence that she had authorised her husband to act in this way, nor was she in a position to control his conduct. After reference to Indian, Canadian and United States cases, Young J ruled that the requirement for adverse possession to be ‘peaceful’ meant only that possession had to be continuous and exclusive, physically uninterrupted and not disturbed by the commencement of legal action for possession: at 14,829–33. Possession did not require an absence of violence or force. The word ‘dispossession’ used in the Limitation statutes refers to driving others out of possession, which could include the use of force. Young J’s view was supported by two New South Wales cases,

where the conduct of a claimant in warning people off the land had been characterised as an act which helped in establishing physical possession of the land: see Harnett v Green (No 2) (1883) 4 LR (NSW) 292; and see Beever v Spaceline Engineering Pty Ltd (1993) 6 BPR 13,270 where the claimant used a shotgun to warn a surveyor off the land. 3.17 Physical control over the land must be found What sort of actions will constitute a sufficient degree of possession will depend on the character and value of the land, the suitable and natural manner of using it, and the circumstances of each case: Lord Advocate v Lord Lovat (1880) 5 App Cas 273 at 288; see also Kirby v Cowderoy [1912] AC 599; McWhirter v Emerson-Elliot [1960] WAR 208. Therefore, it is useful to note the specific facts of cases. Often the act of fencing by the claimant to adverse possession is considered significant of possession: Riley v Penttila [1974] VR 547; Monash City Council v Melville (2000) V ConvR 54-621; Bayport Industries Pty Ltd v Watson [2002] VSC 206; (2006) V ConvR 54-709. But the opposite is not true — absence of fencing need not necessarily prove lack of possession. However, the courts will examine all the circumstances; for example, where fencing had been put up over the defendants’ land by the plaintiff to allow his cattle to graze over the land, the High Court considered the act of fencing as equivocal: Clement v Jones (1909) 8 CLR 133. [page 41] Also strongly indicative of possession is the payment of rates by the adverse possessor who is in occupation: Bank of Victoria v Forbes (1877) 13 VLR 760. Where the alleged adverse possessor is not in actual occupation, the payment of rates in itself is sufficient possession only in exceptional circumstances; for example, where the land is wild and uninhabitable. In Kirby v Cowderoy [1912] AC 599, a possessory title was upheld despite the land being unfenced, the possessor having paid rates and visited the land from time to time. But a failure to pay the rates does not preclude a claim to adverse possession: Shaw v

Garbutt (1996) 7 BPR 14,816. In that case, the claimant to possessory title had been willing to pay the rates and had approached the local council to do so. But the documentary owner had consistently been paying rates. In these circumstances, who had paid the rates was not relevant to establishing possession. See also Refina Pty Ltd v Binnie (2009) 14 BPR 26,957 at 26,962 [25]; [2009] NSWSC 914 at [25] Whittlesea City Council v Abbatangelo (2009) 259 ALR 56; [2009] VSCA 188. 3.18 A variety of acts have been found to be sufficient to constitute factual possession including: shooting over land too marshy and overgrown for agricultural use (Redhouse Farms (Thorndon) v Catchpole (1976) 244 EG 295); and erecting ‘no trespassing’ signs on the land (Powell v McFarlane (1979) 38 P & CR 452 at 478). 3.19 Some acts which were found to be inadequate evidence of adverse possession are: enclosing land for use as a tennis court but allowing adjoining landowners to use the court (Riley v Penttila [1974] VR 547); weekly walking over 18 acres of unfenced bushland, occasionally warning off visitors and harvesting timber (Harnett v Green (No 2) (1883) 4 LR (NSW) 292) — the act of warning persons was treated as an act of possession but did not institute adequate control given the size of the land; and allowing children to play, and tethering and exercising family ponies over land (Tecbild Ltd v Chamberlain (1969) 20 P & CR 633). 3.20 There have been cases in the past that required the alleged possessor’s acts of user to be inconsistent with the purposes to which the true owner intends to use the land: see Riley v Penttila [1974] VR 547. To overcome this requirement in cases where the true owner had only a future intended use for the land, a legal fiction was created to

protect the land from adverse claim — it was implied that the alleged possessor was using the land with the licence of the true owner: Wallis’s Cayton Bay Holiday Camp Ltd v Shell-Mex and BP Ltd [1975] QB 94 at 103. However, this requirement has been conclusively dismissed as being a wrong statement of the law by the English Court of Appeal in Buckinghamshire County Council v Moran [1990] Ch 623 at 637–40: see also JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419. It is very likely that Australian courts will adopt the reasoning of Moran. Indeed, in Woodward v Wesley Hazell Pty Ltd (1994) 3 Tas R (NC) N4, Underwood J expressed [page 42] support for the Moran view. His Honour went on to state (at [26]) that ‘[e]ven if the Shell-Mex case … were binding upon me [it] should no longer be regarded as good law’.

Intention to possess 3.21 On the part of a documentary owner, the intention to possess (animus possidendi) is easily established by an act however trivial or minor such that a discontinuance of his or her own possession is negated. The reverse is true for a claimant whose intention is not easily established. 3.22 Clear and affirmative evidence required The alleged possessors require clear and affirmative evidence that they had the intention to exclude the documentary owner as well as other people: Sunny Corporation Pty Ltd v Elkayess Nominees Pty Ltd [2006] VSC 314. It is the intention of the alleged possessor which is relevant, not the true owner: Buckinghamshire County Council v Moran [1990] Ch 623 at 645; JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419. An objective, not subjective, test of intention is applied: Powell v McFarlane (1979) 38 P & CR 452 at 476. Express avowals of the requisite intention by the alleged possessor

have been given little weight by the courts: see Bradbrook et al, Australian Real Property Law, para 3.130. For example, in Kierford Ridge Pty Ltd v Ward [2005] VSC 215, Slade J placed very little evidential value on statements by the possessor that they intended to take exclusive possession. However, if the alleged possessor himself or herself denies having the intention to possess, the lack of intention will be relevant: Williams Bros Direct Supply Ltd v Raftery [1958] 1 QB 159. 3.23 Where the acts relied upon are by themselves equivocal, the intention with which they are done is all-important. For example, in Clement v Jones (1909) 8 CLR 133, the appellants claimed they had been in continuous possession of 80 acres of the respondents’ land. The High Court held that the act of running cattle over the property, and the enclosure by one fence of two blocks of land with separate owners (the appellants and the respondents), were equivocal. Griffith CJ went on to consider whether the appellants’ use of the land was exclusive of the rights of the respondents by examining the intention with which the acts were performed: at 140. During the period when the appellants claimed to be in adverse possession they had made offers to purchase the property from the respondents; had not complained that the respondents came onto the land to cut down and take firewood from the property; had continually made distinctions between their property and the property of the respondents; and had only realised the potential for an action for adverse possession upon the proposal by the respondents to fence the boundary between the respective parties’ land. The High Court unanimously found that exclusive possession had not been proved by the plaintiffs. See also Cervi v Letcher (2011) 33 VR 320. 3.24 Who is to be excluded? Should there be a specific intention to exclude the true owner, or is it sufficient to exhibit an intention to generally exclude the world? Earlier English and Australian cases require that there must be an intention to exclude the true owner specifically: Littledale v Liverpool College [1900] 1 Ch 19; Clement v Jones. However, it has since been accepted by the English Court of

[page 43] Appeal in Ocean Estates Ltd v Pinder (Norman) [1969] 2 AC 19 that the more liberal test should be applied, viz that the nature of the intention should be to possess the land to the exclusion of all others. In Powell v McFarlane (1979) 38 P & CR 452, Slade J considered that ‘an intention, in one’s own name and on one’s own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the processes of the law will allow’. This was approved by the House of Lords in JA Pye (Oxford) Ltd v Graham [2003] 1 AC 410 at 436, 437 and in Whittlesea City Council v Abbatangelo (2009) 259 ALR 56 at 60. See Bradbrook et al, Australian Real Property Law, 5th ed, para 3.140 and Petkov v Lucerne Nominees Pty Ltd (1992) 7 WAR 163; and see generally M S Dockray, ‘Why Do We Need Adverse Possession?’ (1985) Conveyancer 272. In Buckinghamshire County Council v Moran [1990] Ch 623, the council was the documentary owner of the disputed plot. The alleged possessor, Moran, wrote a letter to the council indicating that he knew that the council had acquired the plot of land with the specific intention of building a road across it at some future date. Moran used the plot as a garden and Slade J found that the element of factual possession was proven, but considered the more difficult question of animus possidend. Moran placed a new lock, chain and gate on a fence on the land and made sure access to the land could only be obtained through his own adjoining land. He thereby showed sufficient intention to possess the land to the exclusion of all others, and that, Slade J held, was the requisite nature of the intention: at 643. His view has been recently accepted in Australia by Murray J in Petkov v Lucerne Nominees Pty Ltd (1992) 7 WAR 163 at 168. Further in Whittlesea City Council v Abbatangelo at 81, the court confirmed that the requisite intention was to possess. See also Sunny Corporation Pty Ltd v Elkayess Nominees Pty Ltd (2006) V ConvR 54-724.

Running of the limitation period 3.25 The Limitation statutes have the effect that for a claimant to succeed in ousting the title of the paper owner, possession must be for a continuous and uninterrupted period: (Limitation statutes) NSW s 38(3); Qld s 19(2); Tas s 16(2); Vic s 14(2); WA s 5. The position in South Australia arises by implication: see Bradbrook et al, Australian Real Property Law, 5th ed, para 3.65. 3.26 Whether or not the requisite period of adverse possession has been established is a question of fact: Quach v Marrickville Municipal Council (No 2) (1990) 22 NSWLR 55. Four situations should be considered: (a) where there is abandonment of possession; (b) where there is a series of possessors; (c) where there are relative claims to possession; and (d) where the documentary owner regains possession. For an example of circumstances where the period of time had not, on the evidence, elapsed, see Duarte v Denby [2007] WASC 94. [page 44]

Abandonment of possession 3.27 Clearly, if the alleged possessors abandon their possession of the land before the full period of limitation has run, they will have lost their right to possessory title. On abandonment of the land, any rights accumulated by the alleged possessors will not be effective as between themselves and the true owner. What constitutes abandonment is a question of fact and is decided in accordance with the principles that are used to determine factual possession. In Nicholas v Andrew (1920) 20 SR (NSW) 178, the Full Court decided that mere non-use was not conclusive evidence of abandonment of possession. The land in question was farmland leased to numerous tenants by one John Quigg

until his death. Documentary title to the land was held by the defendant. There were intervals between the leases in which no-one was in actual occupation — the maximum interval lasted for two or three months. The plaintiff as beneficiary of Quigg’s estate claimed title by adverse possession. Gordon J in delivering the judgment of the Full Court said that no inference of abandonment could be drawn from these facts (at 187) and gave an example of where not using farmland during drought did not constitute abandonment (at 184). 3.28 In Mulcahy v Curramore Pty Ltd [1974] 2 NSWLR 464, because of a gap of six years in the adverse possessor’s use of the land, the Court of Appeal found that he had abandoned possession. The facts concerned an adverse possessor who moved away from the relevant land. During his absence, a bushfire burnt down the house and the fencing was left in disrepair. The court decided that an adverse possessor is expected to act as a true owner would act, and therefore he or she may decide not to reside on, or use, the land for a time. The court noted that ‘[t]here are various ways of demonstrating possession and ownership’: at 479. If a person is in possession for less than the limitation period and then abandons the property, ‘he leaves no cloud on the true owner’s title, which is then restored to its pristine force, and another person … who later enters into adverse possession of the property, cannot add the period of [the earlier possessor’s] possession to his own so as to extinguish the title of the true owner …’. The facts in Mulcahy v Curramore demonstrate that considerable weight of evidence is required before possession is found to be abandoned.

Series of possessors 3.29 A possessor of land acquires a proprietary interest in land: Asher v Whitlock (1865) LR 1 QB 1. This right is capable of being disposed of to a third party by sale, gift or by will. Even in the absence of any formal or informal assignment of the possessory right, possessory title is capable of being acquired: Mulcahy v Curramore [1974] 2 NSWLR 464 at 471. At common law, if there are a series of possessors whose occupation is continuous and who can base their

claim on the original adverse possessor, their period of possession can be accumulated to fulfil the period of limitation. In that situation, possessory title will be acquired by the person in possession when the statutory period expires: Mulcahy v Curramore at 476. 3.30 Even if the series of adverse possessors do not claim title one from the other but as successive independent trespassers who nevertheless are in continuous adverse [page 45] occupation against the documentary owner, their possession is effective at common law to establish adverse possession upon the expiry of the limitation period. In Australia, emphasis is upon continuous possession; there is no requirement for the consensual regulation of that possession: Shaw v Garbutt (1996) 7 BPR 14,816. The common law position has been confirmed by statute in New South Wales and Western Australia: (Limitation statutes) NSW s 38(2); WA s 65(2) and (3). Other states do not have equivalent provisions.

Relative claims to possession 3.31 The problem of establishing who has better possessory title arises where there is a series of persons (say A, B, C, D and E) who have been in successive adverse possession continuously for the necessary period of time. Bowen CJ in Mulcahy v Curramore said that the better view appears to be that the best possessory title exists in the first of the successive trespassers. E, the person in possession at the time when the paper title is extinguished, would by virtue of his or her possession have a title good against all the world except A, B, C and D. In Bowen CJ’s opinion, if A brought proceedings to eject E, and E could prove that A had abandoned possession, then E could successfully resist A and on the same ground could resist B, C and D. 3.32

However, if A had been in possession for the statutory period

of limitation and had been in possession at the time when the paper title was extinguished and is subsequently dispossessed by B, C and others who have not accumulated a second period of limitation against A, then A would have better title than B and C as well as the documentary owner.

Documentary owner regains possession 3.33 Time stops running if the documentary owner regains possession of the land in dispute. Oral or written protests over the adverse possession are not sufficient. Merely realising that the land is owned by another and so cancelling a licence is not an acknowledgement of the rights of the owner: Sze To Chun Keung v Kung Kwok Wai David [1997] 1 WLR 1232. It is necessary for the documentary owner to regain possession by commencing court proceedings or resuming physical or legal possession of the land: Cooke v Dunn (1998) 9 BPR 16,489. The five plaintiffs in this case were administrators of the estate of Mrs L, who died in 1939, leaving a house and land in Chippendale, New South Wales. The house fell into disrepair and Dunn moved into possession in 1981. His physical possession of the land was established by moving into one of the bedrooms, cleaning up and making the house more habitable, including painting and renovations. Although Dunn did not at any time give the authorities, including the tax office, the house address as his ‘official’ residence, Santow J accepted that his possession of the premises was open. The key aspect of openness is to be considered in relation to the documentary owners, not the authorities. Dunn occupied the house with others, including a friend named Whitney. In 1985, one of the plaintiffs visited the house and entered into an arrangement with Whitney. In exchange for living in the premises with Dunn and others, Whitney agreed to maintain the house and land, and pay water and council rates. The court [page 46]

accepted that this arrangement amounted to a licence agreement. Dunn was not a party to the agreement and Whitney was not acting as Dunn’s agent. Despite these facts, the court accepted that: (i) the agreement had the effect of putting the owners back in possession of the house and land; and (ii) Dunn had acquiesced in Whitney’s position as a licensee. From the time Whitney became the licensee of the documentary owners, Dunn’s occupation was no longer adverse. He therefore failed to establish the requisite period of adverse possession. However, Dunn was able to obtain some amount in restitution for the work he had done on the house: at 16,511–512. Students should also refer to the case of Queensland v Byers [2006] QSC 334.

Lapse of time 3.34 In all states, the Limitation statutes provide for an extended limitation period in certain circumstances. These include disability (Limitation statutes: NSW ss 52, 53; Qld s 29; SA s 45; Tas ss 26–28; Vic s 23; WA ss 35–36, 42, 52), fraud and fraudulent concealment: (Limitation statutes) NSW ss 55, 56; Qld s 38; SA s 25; Tas s 32; Vic s 27; WA s 38. The legislation imposes absolute limits on the extension of time for a person suffering from a disability (Limitation statutes: Qld s 29(2)(b); SA s 45(3); Tas s 26(4); Vic s 23(1)(c); WA ss 36(3), 42(2); and, except for South Australia and Western Australia, for mistake. Such limits apply generally in New South Wales: (Limitation statute) NSW s 51. For a more detailed discussion, see J G Tooher and B M Dwyer, Introduction to Property Law, 5th ed, LexisNexis Butterworths, Sydney, 2008, paras 4.18–4.20; Bradbrook et al, Australian Real Property Law, 5th ed, paras 3.280–3.285. In the Western Australian case of Ghilarducci v Ghilarducci [1993] ANZ ConvR 331, both appellants and respondents mistakenly believed that a bore which was sunk by the appellants was on property belonging to the appellants. Malcolm CJ ruled that an owner of land who permits a neighbour to take adverse possession of part of his or her land because of a mistake about the boundary may not rely on the mistake to prevent time

running under the Limitation Act. 3.35 Statutes provide that upon the end of the limitation period, the right of action of the documentary owner lapses, and paper title is also extinguished: (Limitation statutes) NSW s 65; Qld s 24(1); SA s 28; Tas s 21; Vic s 18; WA s 75 (s 30 of the 1935 legislation). In Kirk v Sutherland [1949] VLR 33, the rights of an adverse possessor who had been in possession for a period in excess of the statutory period were upheld against the documentary owner. This was so despite the adverse possessor not remaining in possession for seven years before the dispute arose.

Adverse possession and the Torrens system 3.36 The legislative response to recognise the concept of adverse possession under the Torrens system has been inconsistent: see Chapter 12. Another perplexing issue is that, as the object of the Torrens system is to provide certainty of title, the concept of adverse possession is contrary to the rationale of the system. Indeed, in many states, amendments to the original Torrens statutes were necessary to introduce the concept; for example, Queensland in 1952 and New South Wales as [page 47] recently as 1979. For further discussion see F Burns, ‘Adverse Possession and Title-by-Registration Systems in Australia and England’ (2011) 35 Melbourne University Law Review 773 at 791–803. 3.37 Despite inconsistencies in the substantive aspects relating to adverse possession, the procedural aspects are broadly similar in all states: Real Property Act 1900 (NSW) Pt 6A; Land Title Act 1994 (Qld) Pt 6 Div 5; Real Property Act 1886 (SA) Pt 7A; Land Titles Act 1980 (Tas) Pt IXB Div 5; Transfer of Land Act 1958 (Vic) Pt IV Div 5; Transfer of Land Act 1893 (WA) ss 222–223. The steps are:

1. 2. 3.

4.

5.

Adverse possessors may apply to the Registrar of Land Titles for issue to them of certificates of title to the land. The Registrar may either reject the application altogether or may proceed further. The Registrar may direct that notice of the application be published in the prescribed manner giving a time by which any person with any interest or estate in the land should lodge a caveat against the land. If no caveat is lodged within the given time, or a caveat is lodged but subsequently expires without further proceedings being taken, then the Registrar will grant the application if satisfied that the applicant is an adverse possessor. If a caveat is lodged then the Registrar may either: (a) refuse the application; or (b) direct that court proceedings be brought by the parties.

Problem-solving checklist 1. 2.

3.

4. 5.

What are the issues in an adverse possession problem? What are the sub-issues? Describe what is meant by ‘adverse possession’. If you can establish adverse possession on the facts, what will the consequences be? Draw a diagram that indicates the time line of the material events. Note when you think the adverse possession commenced. Note the end of the limitation period. What has happened in between? Now start to analyse the issues. As the old rule says — state the law, apply the law and conclude. To establish adverse possession, it is necessary to discuss the following questions: (a) Was the adverse possessor (AP) in possession? This requires us to make two inquiries. First, did the AP have

factual possession? If so, did the AP have an intention to possess? For factual possession, it is necessary to discuss four points: (i) Was the AP’s possession exclusive? (ii) Was the AP’s possession adverse? [page 48] (iii) Was the AP’s possession open? (iv) Did the AP exercise physical control? For intention to possess, it is necessary to discuss two points: (i) Was there a clear and affirmative intention to possess? (ii) Is it necessary to exclude just the title holder or all of the world? Conclude on the issue of possession and move on. (b) Was the AP in possession of the land for the requisite limitation period? State the relevant statutory provisions. (i) When does the relevant statutory limitation period commence? (ii) What is the period of time stipulated? (iii) What is the availability for an extension? On your facts: (i) Has the title holder been in possession, and has such possession been discontinued, abandoned or lost? (ii) Has the AP entered into possession? (This has been discussed above. Deal with it quickly and concentrate on the date the adverse possession commenced.) (iii) Was the AP in possession for the whole limitation period or were there successive adverse possessors?

6.

7.

(iv) Are there circumstances which justify the extension of the limitation period? After considering these points, conclude whether adverse possession has been established. If the AP has been in possession for the requisite limitation period, state the consequences. What is the procedure for the AP to acquire title under the Torrens system? Conclusions.

Encroachments 3.38 Sometimes, because of mistakes regarding boundaries, buildings or structures may encroach on neighbouring land. The issue then is how to remedy such a situation when it occurs. Will the party whose building is encroaching lose his or her rights to that property? If not, can the neighbouring owner be compensated for the loss of some of his or her land as a result of the encroachment? Some states and territories have introduced legislation to address problems associated with buildings or structures encroaching on neighbouring land. Generally where a building is erected which encroaches onto the adjoining land, legislation in New South Wales, Queensland, South Australia, Western Australia and the Northern [page 49] Territory allows the courts to make just orders, such as the payment of compensation, the removal of the encroachment or the transfer of the land to the builder of the encroaching building: Encroachment of Buildings Act 1922 (NSW); Encroachment of Buildings Act (NT); Property Law Act 1974 (Qld) Pt 11; Encroachments Act 1944 (SA); Property Law Act 1969 (WA) s 123. For a detailed discussion of this area see Bradbrook et al, Australian Real Property Law, 5th ed, paras 16.280–16.315; Butt, Land Law, 6th ed, paras 3 29–3 35.

In Victoria, Tasmania and the Australian Capital Territory, there are no specific legislative provisions which deal with encroachments. In these jurisdictions, questions are resolved by common law principles and the encroaching owner could be liable to an action in trespass, except where an estoppel can be raised: Ramsden v Dyson (1866) LR 1 HL 129. For an example of an order designed to alleviate the harshness of the consequences of a minor encroachment, see Break Fast Investments Pty Ltd v PCH Melbourne Pty Ltd (2007) 20 VR 311, where an award of damages in lieu of an injunction to remove a trespass was made. In Victoria, an encroaching owner may assert a claim for adverse possession of land the subject of an encroachment, provided the requirements of adverse possession are satisfied. Such a claim will not be possible in Tasmania or the Australian Capital Territory. In Tasmania, adverse possession cannot be claimed over part of a lot: Land Titles Act 1980 (Tas) s 138Y. In the Australian Capital Territory, the acquisition of title to land by possession adverse to the registered proprietor is not permitted: Land Titles Act 1925 (ACT) s 69.

Relief in instances of encroachment 3.39 The Western Australian and Queensland encroachment provisions are particularly comprehensive and it is instructive to examine these provisions in some detail.

Western Australia 3.40 Pursuant to s 122 of the Property Law Act 1969 (WA), special relief can be granted in cases of encroachment. Therefore, where any building on land encroaches on a part of the adjoining land, whether the building was erected by the owner of the first mentioned land (the encroaching owner) or by any of his or her predecessors in title, either the encroaching owner or the owner of the adjoining land may apply to the court to make an order in accordance with s 122: s 122(1). ‘Building’ is defined as including any structure, and ‘land’ includes the surface and the sub-surface of the land as well as the airspace above the land: s 122(7).

3.41 If it is proved to the satisfaction of the court that the encroachment was not intentional and did not arise from gross negligence, or that the building was not erected by the encroaching owner, and, if in the opinion of the court, it is just and equitable in the circumstances, relief may be granted to the encroaching owner or any other person. In such a case it may be unnecessary for the encroaching owner or any other person to give up possession of the piece of land encroached upon or to pay damages. The court may make various orders including vesting in the [page 50] encroaching owner or any other person any estate or interest in any part of the adjoining land; creating in favour of the encroaching owner or any other person any easement over any part of the adjoining land; and giving the encroaching owner or any other person the right to retain possession of any part of the adjoining land. Such orders may be made upon, and be subject to, such terms and conditions as the court thinks fit. Payment of compensation by the encroaching owner may be required. The encroaching owner may also have to execute and appropriate instruments such as a mortgage, lease or easement. Students should refer generally to s 122(1)–(4) of the Property Law Act 1969 (WA); and see Capebay Holdings Pty Ltd v Sands [2002] WASC 287; Acegroup Enterprises Pty Ltd v Sheehan [2010] WASC 118. It should be noted, however, that the court shall not make an order without the prior consent of the Western Australian Planning Commission and the local government of the district in which the land that the order will relate to lies: s 122(6); Re Hawkins and Town of Mosman Park (2006) 44 SR (WA) 381. Certain rights are also available to persons having any estate or interest in the adjoining land: s 122(5A).

Queensland

3.42 Similarly in Queensland, special relief can be granted in cases of encroachment under Pt 11 Div 1 of the Property Law Act 1974 (Qld). Accordingly, where any building on land encroaches on the adjoining land, either the encroaching owner or the owner of the adjacent land may apply to the court for relief: s 184. ‘Building’ is defined to include ‘a substantial building of a permanent character, and includes a wall’: s 182. The section has been interpreted as dealing ‘with encroachments which are man-made, with the building materials of the day, which are of a substantial and lasting character, which are brought into existence for domestic or industrial purposes …’: Ex Parte Van Achterberg [1984] 1 Qd R 160 per Carter J at 162. A court has a wide discretion to give a broad range of orders ‘as it may deem just’ which include the payment of compensation, a conveyance, transfer or lease of the subject land or removal of the encroachment: s 185. See Steer v Hemmings [2010] QSC 460. Orders are restricted to the land the subject of the encroachment: Tallon v The Proprietors of Metropolitan Towers Building Units Plan No 5157 [1997] 1 Qd R 102. In cases where the intrusion is minor and no loss or damage occurs to either party, courts may not make any order, despite the fact that jurisdiction under the encroachment provisions can be invoked: Butland v Cole (1995) 87 LGERA 122. The minimum compensation awarded is assessed as the unimproved capital value of the subject land: s 186. Where it is determined that the encroachment was intentional or arose from negligence, then the minimum compensation will be increased to three times the unimproved capital value of the land.

Mistake of title 3.43 At common law, improving another’s property generally gave no remedy for the work carried out. A person who erects a building on the land of another under [page 51]

the mistaken belief that the land is theirs will not be able to prevent the owner of the land from asserting title to that land, which, in accordance with the doctrine of fixtures, will include anything which is attached to it: Brand v Chris Building Co Pty Ltd [1957] VR 625. However, if the owner of the land knew of the mistake and allowed the building to continue, the owner could be estopped from asserting title to the land: Ramsden v Dyson (1866) LR 1 HL 129.

Relief in instances of mistake as to boundaries or identity of land 3.44 In Western Australia, Queensland and the Northern Territory, legislation provides for statutory relief in cases of mistake of title: Property Law Act 1969 (WA) ss 122–123; Property Law Act 1974 (Qld) ss 195–198; Encroachment of Buildings Act (NT) Part III ss 3, 13, 14. In the remaining jurisdictions, mistakes of title will be dealt with in accordance with the common law principles outlined above.

Western Australia 3.45 Section 123 of the Property Law Act 1969 (WA) may provide relief in cases of mistake as to the boundaries or identity of land. The provisions are quite complex but, in summary, where a person who has or had an estate or interest in any piece of land (referred to as the ‘original piece of land’) mistakenly erects a building on any other piece of land that person, or any other person for the time being in possession of the building or having an estate or interest in either the original piece of land or the piece of land wrongly built upon, or certain other persons (including the relevant local authority), may apply to the court to make an order in accordance with the section. If in the opinion of the court it is just and equitable in the circumstances that relief should be granted to the applicant or any other person, the court may, if it thinks fit, make an order such as: vesting the piece of land wrongly built upon in the person or persons specified in the order; allowing any person or persons specified in the order to remove

the building and any chattels and fixtures from the piece of land wrongly built upon; allowing possession of the building to any person or persons having an estate or interest in the piece of land wrongly built upon; requiring all or any of the persons having an estate or interest in that piece of land to pay compensation in respect of the building and other improvements to the piece of land wrongly built upon to such person or persons as the court may specify in the order; or giving the person who erected the building or any person or persons claiming through him the right to possession of the piece of land wrongly built upon for such period and on such terms and conditions as the court may specify in the order. Students should refer generally to s 123(1) and (2) of the Act. Where appropriate, the court may make any such order without ordering the applicant or any other person to give up possession of the piece of land wrongly built upon, or to pay damages, and without granting an injunction: s 123(3)–(7). Like s 122 of the Act, such orders cannot be made unless the prior consent of the Western Australian Planning Commission and the relevant local authority have been obtained: s 123(8). [page 52]

Queensland 3.46 In Queensland, Pt 11 Div 2 of the Property Law Act 1974 (Qld) may provide relief in the case of mistake as to the boundaries or identity of land. An application may be made to the Supreme Court for relief where a lasting improvement is made to land owned by another and the improvement is made under the genuine but mistaken belief that the improver owned the land or was doing the work for the owner: s 196. The test for determining the existence of the mistaken belief is subjective: Ex parte Karynette Pty Ltd [1984] 2 Qd R 211, 212. An application may be made by a wide range of parties including the improver or possessor of the improvement, an interested party, an

owner of or person claiming an interest in land on which the improvement was made, or the local authority: s 198. Once the threshold requirements have been met, the court has discretion to make any orders listed in s 197 of the Property Law Act that are considered just and equitable. Possible orders include vesting (transferring) an interest in land, removal of the improvement, compensation, granting possession of the land or improvement upon such terms and conditions as the court may specify. The court’s discretion has included offering a respondent party a choice of alternative remedies: Re Verdugo (1990) Q ConvR 54-347; see also Oakwood Constructions Pty Ltd v Wyndon Properties Pty Ltd [2010] QCA 323 where a transfer of land was ordered.

Problem 1 Mr B, an old bachelor, owns land and a house. In 2000, Mrs C was employed as a live-in housekeeper. Mr B died in 2003 without leaving a will or any next of kin. Mrs C continued to live in the house. Her daughter, Charlie, moved in to live with her in 2005. Mrs C died in 2010 and Charlie continued in possession. The Public Trustee claimed the land under intestacy laws and in 2014 commenced legal proceedings to evict Charlie. Charlie would like advice on whether she can claim possessory title.

Answer plan To succeed against the Public Trustee, who is the documentary owner, Charlie would have to establish that: (i) she was in possession for the necessary period of time under the Limitation Acts; and (ii) her possession was adverse to the documentary owner. It is likely that the two elements of adverse possession (physical possession and the intention to possess) are not difficult to establish. Briefly, Charlie and part of her mother’s possession have been exclusive, open and

undisturbed, thus establishing physical possession. Because their acts have been unequivocal, an intention to possess the land to the exclusion of all others should not be difficult to establish. It is only where the acts of physical possession are equivocal that the intention element becomes crucial: Clement v Jones (1909) 8 CLR 133. The key issues to ascertain in this problem are: (i) when that period of adverse possession started; and (ii) whether the necessary limitation period has run. [page 53] It is relevant to the first issue that Charlie moved into the house only in 2005. Her own possession is for nine years and she will need to accumulate her time with her mother’s period of possession. It is not essential that Charlie should prove that her mother has either formally or informally assigned possessory rights: Mulcahy v Curramore [1974] 2 NSWLR 464. Periods of possession may be accumulated since their possession is continuous. Whether the necessary limitation period has run depends on the start of the period of adverse possession. Mrs C moved into the house in 2000, but at that time she occupied the house as a licensee. In Public Trustee v Bellotti (1986) 4 BPR 9196, the New South Wales Supreme Court held (on facts which were roughly similar) that a licence to occupy terminated on the death of the documentary owner, in this case Mr B. Therefore the limitation period starts running in 2003. The period stops running when the new documentary owner, the Public Trustee, files legal action: Cooke v Dunn (1998) 9 BPR 16,489. Therefore, Charlie has 11 years of possession and is unable to satisfy the requisite period under the

Limitation statutes.

Problem 2 Pat had a block of vacant land left to him by his grandmother in 1985. He lived interstate and seldom visited the land. Goran lived in a rented house next door. Since 1995, Goran has used the land in several ways. Initially he raised five pairs of geese on the land. To do so, he erected a low wire fence of about 10 square metres immediately next to his rented block. This was to keep the geese from running away. However, after two years, Goran abandoned raising geese because of complaints from neighbours and the fence eventually fell into disrepair. Then in 1998, Goran dug a vegetable patch on the land which he tended once a week at first, but soon he lost interest. When he started a tree-lopping business in 1999 he sawed and stored firewood on the land. By 2001, his business expanded and he began to park a business vehicle on the land. He then made enquiries to the local authority to find who the documentary owner was in order to purchase the land. These inquiries led nowhere. In 2004, Goran built a carport and a shed on the land to store his machinery. Since then he has warned others off the land, erected a prominent signboard advertising his tree-lopping business and made frequent claims to the land in the presence of his neighbours. Goran commenced a claim for adverse possession of the land in 2014. Pat has opposed the claim. What is the likelihood of the success of the claim?

Answer plan The critical issue is whether Goran’s use of the land has been

sufficient for him to maintain that the land has been in adverse possession for the requisite period. The answer must then address: (i) at what point in time can Goran establish both the act of physical possession and the intention to possess; and (ii) whether the requisite limitation period can be satisfied. [page 54] At this point, a time line becomes useful. 1985

Pat acquires title

1995 Goran raises geese but stops in 1997

1998

2001

Goran grows vegetables

Goran starts parking on land and makes enquiries to buy land

2004

2014

Goran Goran builds commences carport and claim shed

Goran may point to use of land as long ago as 1995 when he started to raise geese on the claimed land. He enclosed part of the land with a fence. The act of fencing is often seen as a deliberate act of control over the land. However, in Clement v Jones (1909) 8 CLR 133, the High Court examined all the circumstances in the case, and came to the conclusion that fencing land to allow cattle to graze was an equivocal act. On these facts it could be similarly argued that physical control over all of the land was not exercised at this time. First, the fencing was specifically for keeping his geese enclosed. Second, it was over a limited area (10 square metres) and not over the whole of the land. Third, the fencing was not maintained but allowed to fall into disrepair after the geese were removed. In short, fencing was a short-term practical measure for raising geese. The acts of starting a vegetable patch (1998), storing firewood (1999) and parking his car (2001) are sporadic and likely to be

seen as being discontinuous and inconsistent actions. Although these acts are open, done without Pat’s permission, the documentary owner, and therefore adverse to Pat, they are unlikely to satisfy the test of exercising physical control over the land: Buckinghamshire County Council v Moran [1990] Ch 623. Goran builds a carport and a shed to store machinery only in 2004. Together with his other actions it is likely that the courts will view these acts as evidence of physical control over the land. Goran must also show the required intention to possess the land. He requires clear and affirmative evidence that he intends to exclude the documentary owner and the world at large: Buckinghamshire County Council v Moran. In 2001, Goran made enquiries about purchasing the land, an act which affirms the rights of the documentary owner: Clement v Jones. There is no evidence of the required animus possidendi until Goran builds a carport and warns people off the land. By this time (2004) Goran has also publicly claimed ‘ownership’ of the land. Although express avowals of the requisite intention by the adverse possessor are given little weight by the courts, and the test of intention is an objective not a subjective test, it is likely that in 2004 he has formed an unequivocal intention to possess the land against all the world. Students should go on to consider whether the requisite limitation period has run. Goran may safely rely on the period between 2004 to 2014 to support his claim. This does not satisfy the relevant limitation periods, and therefore his claim will not succeed.

[page 55]

Problem 3 Bonnie and Clyde lived in a unit bought by Bonnie. She paid for all outgoings for the unit until Clyde became increasingly abusive and threatening. Their relationship broke up in 2000 when Clyde physically threw Bonnie out. She was excluded from the unit and was not allowed to collect her clothes or other belongings. Clyde made abusive phone calls to Bonnie, threatened to harm her and members of her family, and warned her about going to the law to recover her unit. As he had criminal links Bonnie took these threats seriously. In 2014, Clyde applied for possessory title for the unit. Advise Bonnie.

Answer plan It is clear that the elements of physical possession and the intention to possess are found. The critical issue is whether possession has been open, not secret; peaceful, not by force; and adverse, not by the consent of the true owner: Mulcahy v Curramore [1974] 2 NSWLR 464. In other decisions, the use of force has been regarded as a factor in establishing acts of adverse possession. For example, in Shaw v Garbutt (1996) 7 BPR 14,816 where the documentary owner had been warned off the land by a man with a shotgun, it was held that the requirement of peaceful dispossession could be fulfilled. Butt (in Land Law, 5th ed, para 22 17) states that s 28 of the New South Wales Limitation Act implicitly recognises that adverse possession may begin to run with the use of force and that it would be anomalous if force could be used to begin adverse possession but not to maintain it.

Problem 4

Answer both parts: (a) A enters into adverse possession and stays in possession for six years then subsequently sells his rights in the land to B. After five years, B dies and, in accordance with B’s will, his granddaughter C comes into possession. Five years after C arrives, Really Big Pastoral Company (RBP Co), the paper owner of the land, claims possession from C. Who has better title? (b) The following then occurs: RBP Co sends in security personnel and physically evicts C soon after she moves into the farmhouse. They remove all her goods from the house, change the locks on the doors, and ensure that C leaves the land. At sunset after the security personnel leave, C breaks into the house and moves her belongings in. Due to an administrative error (a junior clerical staff lost the file), RBP Co does not follow up until another five years have passed. In the meantime C has lodged a claim for possessory title. How, if at all, would your answer differ from your advice above? Advise RBP Co.

[page 56]

Answer plan Students are encouraged to draw a time line to see the time periods more clearly. A enters possession

B buys rights

Start of period 6 years + +

B dies and C enters possession

RBP Co claims possession

5 years +

5 years

(a) The issue concerns the running and lapse of time. By his occupation of the land, A has title to the land in the nature of a fee simple, and this is good as against all the world except the paper owner. Thus A’s title may be conveyed to B. Similarly, B by his possession of the land has title which may be willed to his granddaughter: Asher v Whitlock (1865) LR 7 QB 1. Here the series of adverse possessors derive title from each other: Allen v Roughley (1955) 94 CLR 98. Their possession has also been continuous for 15 years, thus the paper title of the RBP Co would be extinguished: Limitation statutes (NSW) s 65; (Qld) s 24(1); (SA) s 28; (Tas) s 21; (Vic) s 18; (WA) s 75 (s 30 1935 legislation). C would have the best title to the land and would need to make an application under Torrens legislation for documentary proof of that title. (b) On the alternate facts, the critical issue is to determine the effect of the break in possession on C’s claim. When RBP Co physically evicts C, they have recovered legal and physical possession of the land: Cooke v Dunn (1998) 9 BPR 16,489. Even though C has lost possession only for a few hours there has been a break in the running of the limitation period. When RBP Co recovers possession, C has only accumulated a possessory period of 11 years. This is less than the limitation period specified in all state legislation. In Mulcahy v Curramore [1974] 2 NSWLR 464, it was held that if there is abandonment of possession by the claimant then the true owner’s title is restored to ‘its pristine force’. The effect is the same whether it is the claimant who abandons possession or the true owner who has regained possession. Because the limitation period has not run, RBP Co’s title in the land has not been extinguished. The break in the period of adverse possession means that C has to build up another requisite period of possession (whether 12 or 15 years depends on state Limitation Acts) before she is able to

satisfy the requirements of possessory title under the Torrens system. Her claim to possessory title will not succeed.

Further discussion Article 1 of Protocol 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms states: Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No-one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property

[page 57] in accordance with the general interest or to secure the payment of taxes or other contributions of penalties.

In your opinion, how would such a provision operate alongside a Limitation statute similar to those discussed in this chapter? Read JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419 and the subsequent decision on appeal to the European Court of Human Rights: JA Pye (Oxford) Ltd v United Kingdom [2008] 46 EHRR 45.

[page 59]

4 Native Title Introduction 4.1 Previous chapters have referred to some of the legal implications of the settlement of Australia and the observations by the High Court in Mabo v Queensland (No 2) (1992) 175 CLR 1 (hereinafter Mabo (No 2)). That decision recognised the existence of common law native title in Australia. Through an examination of Mabo (No 2) and subsequent decisions including Wik Peoples v Queensland (1996) 187 CLR 1, Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422, Western Australia v Ward (2002) 213 CLR 1, together with reference to the Commonwealth Native Title Act 1993, this chapter will consider: recognition of native title; native title legislation; source, nature and content of native title; determination and proof of native title; extinguishment of native title; future dealings regime for native title land; compensation and fiduciary duty; and statutory land rights.

Recognition of native title Background to Mabo (No 2) 4.2 Mabo (No 2) is a belated recognition in Australia of a concept which has long been recognised in other common law countries.1 Prior to the decision in Mabo (No 2), claims by Aboriginal people in Australia for recognition of their native title [page 60] failed: see Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 14; Coe v Commonwealth (1979) 53 ALJR 403. 4.3 Then, in 1982, the plaintiffs in Mabo v Queensland (No 1) (1988) 166 CLR 186 (Mabo (No 1)) claimed traditional native title on their own behalf and on behalf of their respective family groups to portions of the Murray Islands which are situated in the Torres Strait. Before the case was determined, Queensland passed the Queensland Coast Islands Declaratory Act 1985 (Qld). This Act purported to declare that annexation of the Murray Islands to Queensland in 1879 vested proprietary rights to the Islands in the Crown free from all other rights, interests and claims of any kind whatsoever. Further, the Act declared that no compensation was payable in respect of any rights that existed prior to annexation. In Mabo (No 1), the High Court ruled that the 1985 Queensland Act contravened the Racial Discrimination Act 1975 (Cth). Assuming that the plaintiffs had traditional legal rights over the land, the majority said that the attempt in the 1985 Queensland Act to extinguish the rights of the Meriam people had failed because it attempted the arbitrary deprivation of those rights.

The facts 4.4

The Murray Islands were settled for some generations prior to

early European contact. At the time of European contact the Islanders had a complex and intricate social structure, although it was impossible to identify precise systems or rules regarding title, inheritance or alienation of land. Gardening was of profound importance to the Islanders prior to, and at the time of, European contact. All village and garden land was divided into plots owned either by individuals or family groups. The relationship of the Islanders to the land and sea was strong and enduring. For a summary of the facts, see Mabo (No 2) (1992) 175 CLR 1 per Brennan J at 22–5; Deane and Gaudron JJ at 115–6; Toohey J at 190–2.

The issue 4.5 Put simply, the main issue in the case was whether the annexation of the Murray Islands by Queensland had the effect of vesting in the Crown absolute ownership of all land in the Murray Islands.

The decision 4.6 The majority of the High Court (6:1) decided that when sovereignty was acquired by the settlement of Australia, the Crown acquired radical title to the part that was settled. Because the Murray Islanders’ native title and rights in relation to land existed at the time, and their title had not been extinguished, the common law recognised those rights as a burden on the radical title of the Crown. However, native title would be recognised only if it did not ‘fracture’ any skeletal or fundamental principles of the Australian legal system. Brennan J (with whom Mason CJ and McHugh J agreed) is recognised as writing the leading judgment. Deane and Gaudron JJ delivered a joint judgment, with which Toohey J, though delivering a separate judgment, was in general agreement. The bases of the majority judgments will be discussed in a little more detail. [page 61]

Application to mainland Australia 4.7 The claim in Mabo (No 2) was made by Murray Islanders but the High Court specifically declared that the recognition of common law native title was not restricted to the Torres Strait Islands but also applied to mainland Australia: Mabo (No 2) (1992) 175 CLR 1 per Brennan J at 68–9; Deane and Gaudron JJ at 120; Toohey J at 179. It has been accepted in several later cases that the principles of law set out in Mabo (No 2) are applicable to the Australian mainland. The most important of these are discussed in this chapter.

Postscript 4.8 In June 2001, native title over the two Murray Islands of Dauer and Waier was conferred on the claimants through a negotiated settlement with the state of Queensland.

Native title legislation 4.9 In response to the widely conflicting public perceptions of the implications that Mabo (No 2) would have, the Commonwealth enacted the Native Title Act 1993 (hereinafter Native Title Act). The Native Title Act is extremely complex and it is beyond the scope of this chapter to provide a fully detailed discussion of all aspects. The main objectives of the Act are set out in s 3 which provides for the: recognition and protection of native title; manner and extent to which future acts may affect native title; mechanism for determining claims to native title; and validation of past acts and intermediate period acts which have been affected by the existence of native title and which have potentially been invalidated by the Racial Discrimination Act 1975 (Cth). 4.10

The Native Title Act was intended to be supported by a fund

for the purchase of land for those traditional owners who were unable to assert native title rights because they had been dispossessed of their traditional lands. This eventuated in the Land Fund and Indigenous Land Corporation (ATSIC Amendment) Act 1995 (Cth) which established a land fund and a new body, the Indigenous Land Corporation, to acquire and manage land for the benefit of indigenous peoples in Australia. 4.11 It was uncertain after the Mabo decisions as to the effect of the Racial Discrimination Act 1975 (Cth) on grants of title and other interests in land made after the enactment of that Act on 31 October 1975. It was possible that inconsistent grants by government (ie, freehold or leasehold) made since 1975 over land in which native title exists would be invalid. Furthermore, it was possible that grants by the Commonwealth Government over land in which native title exists would, if such acts amounted to an ‘acquisition’ in breach of the constitutional requirement to pay ‘just terms’ compensation, also be invalid. It was only in 2002 that the High Court [page 62] clarified the interpretation of the Racial Discrimination Act 1975 (Cth) and the effect of invalidity. The majority in Western Australia v Ward (2002) 213 CLR 1 found that if government action (including legislation or grants of title) dealt with native title rights and interests differently from other forms of title, then the government action would be invalid. However, if the government action simply failed to bestow on native title holders the same rights as other title holders enjoyed, then the native title holders would be deemed to enjoy the same rights. In the latter case, government action would not be invalid: at 106. Therefore, the test of invalidity is: does the government action single out native title for detrimental treatment? If it does — for example, by denying native title holders the same safeguards against loss of title as are enjoyed by other title holders — then the grant of title or the legislation will be invalid.

Additionally, the Ward High Court decision confirmed that for the purpose of the Racial Discrimination Act 1975 (Cth) native title is to be considered as property and in this context any differences between native title and other forms of property are irrelevant: Ward at 105. The Commonwealth Native Title Act validates previous titles and acts undertaken by the Commonwealth Government where those previous actions were invalidated because of the existence of native title. Stategranted titles or acts are not automatically validated by the Commonwealth legislation. The Native Title Act establishes a nationwide scheme in which the states must enact complementary legislation, following the terms of the Commonwealth Native Title Act, in validating previous state-granted titles and acts: Native Title Act 1994 (ACT) s 7; Native Title (New South Wales) Act 1994 (NSW) s 19; Validation (Native Title) Act 1994 (NT) Pt 2; Native Title (Queensland) Act 1993 (Qld) s 19; Native Title (South Australia) Act 1994 (SA) Pt 6 Div 2; Native Title (Tasmania) Act 1994 (Tas) s 5; Land Titles Validation Act 1994 (Vic) s 1; Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) s 5. 4.12 The validity of the Native Title Act was challenged in Western Australia v Commonwealth (1995) 183 CLR 373. In an unanimous decision, the High Court confirmed that the Act (except for the then s 12) was a valid exercise of Commonwealth legislative power to make laws under the ‘race power’ of the Constitution: Commonwealth Constitution s 51(xxvi). Section 12 of the Native Title Act declared that native title had the force of a law of the Commonwealth from 6 June 1993, and may not be extinguished except in accordance with the Act. The High Court took the view that s 12 purported to make the common law immune from state law. The implication being that any state law attempting to extinguish native title would be in direct conflict with the Native Title Act, and therefore would be rendered invalid by the operation of s 109 of the Commonwealth Constitution. This, along with other constitutional arguments that s 12 resulted in the destruction of the legislative power of the state, led the court to hold s 12 invalid. However, the invalidity of s 12 did not affect the validity of any other provision of the Native Title Act. In fact, the High

Court ruled that the whole of the Western Australian legislation (enacted just after the Native Title Act) was inoperative in any case because of s 109 of the Constitution: first, the state legislation was inconsistent with s 10 of the Racial Discrimination Act 1975 (Cth); and second, it was inconsistent with the remaining provisions of the Native Title Act. Section 12 was repealed by the Native Title Amendment Act 1998 (Cth). [page 63]

Native Title Amendment Acts 4.13 The Commonwealth Government’s legislative response to the High Court’s 1996 decision in the Wik Peoples v Queensland (1996) 187 CLR 1 (discussed below at 4.57) was to formulate the ‘Ten Point Plan’ and in 1998 to substantially amend the original Native Title Act. These amendments included, inter alia, changes to extinguishment of native title, the threshold test for the registration of native title claims, restrictions on the right to negotiate and also incorporated overdue amendments in relation to the Constitution and the functions of the National Native Title Tribunal. The Native Title Amendment Act 1998 (Cth) came into operation on 30 September 1998. Subsequently, amendments to improve the efficacy of the Act were enacted. In 2007, amendments focused on improving the mediation of claims and the right to negotiate in good faith: Native Title Amendment Act 2007 (Cth). In 2009, further amendments were designed to encourage negotiated settlements and to enable the Federal Court to take responsibility for managing claims and for determining the appropriate entity to mediate claims, that is, the court, the National Native Title Tribunal, or an alternative organisation or person: Native Title Amendment Act 2009 (Cth). In August 2013, the Australian Law Reform Commission (ALRC) commenced an inquiry into specific areas of native title law. The Commission’s Report is due to be released in 2015: see ALRC, Review of the Native Title Act 1993, Issues Paper 45,

Commonwealth of Australia, Sydney, 2014.

Source, nature and content of native title 4.14 The recognition of native title did not mean that interests held under a customary system were required to correspond conceptually to common law interests. The High Court in Mabo (No 2) (1992) 175 CLR 1 decided that the source of native title was not the common law but the ‘traditional laws and customs’ of the indigenous peoples. Because native title is recognised by the common law and not sourced in the common law, the common law will not provide the content of native title. Brennan J stressed: Native title has its origin in and is given content by the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants of a territory. The nature and incidents of native title must be ascertained as a matter of fact by reference to those laws and customs: Mabo (No 2) at 58.

4.15 The common law definition of ‘native title’ will be reviewed prior to considering native title under the Native Title Act as it is these assumptions that underlie the Act.

Native title at common law Content of native title 4.16 The content of native title — that is, the rights that relate to the use of the land and its resources — must be ascertained by reference to the traditional customs and practices of the particular group: Mabo (No 2); Yanner v Eaton (1999) 201 CLR 351 at [38]–[40]. Thus the nature and incidents of native title must be ascertained as a [page 64] matter of fact by reference to those laws and customs: Mabo (No 2) at

58. Native title rights include the traditional rights of a hunter-gatherer society, for example, gathering and hunting (Yanner v Eaton) as well as fishing rights: Mason v Tritton (1994) 34 NSWLR 572. The content and incidents of native title have been considered by the courts in many cases which reflect the great diversity in the nature of native title. Could native title evolve to include present and future uses of the land? Earlier decisions indicate that native title is restricted to those rights and interests which can be sourced in the traditional laws and customs: Western Australia v Ward (2002) 213 CLR 1; Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422 (Yorta Yorta). Gummow J, in Wik Peoples v Queensland (1996) 187 CLR 1 at 169, noted that: The content of native title, its nature and incidents, will vary from one case to another. It may comprise what are classified as personal or communal usufructuary rights involving access to the area of land in question to hunt for or gather food, or to perform traditional ceremonies … At the opposite extreme, the degree of attachment to the land may be such as to approximate that which would flow from a legal or equitable estate therein.

Certainly, native title rights can be exerted in a commercial context. The question of commercial exercise of native title rights was clarified in the 2013 High Court decision in Akiba v Commonwealth (2013) 250 CLR 209. At first instance in Akiba, the native title rights and interests originally determined to exist included ‘the right to access resources and to take for any purpose resources in the native title areas’: Akiba v Queensland (No 2) (2010) 270 ALR 564. Neither this nor any other right or interest found was exclusive. In the High Court, Hayne, Kiefel and Bell JJ noted that ‘[t]he relevant native title right that was found to exist was a right to access and to take resources from the identified waters for any purpose. It was wrong to single out taking those resources for sale or trade as an “incident” of the right that had been identified’: at 932 [66]. French CJ and Crennan J emphasised that the taking of marine resources for a commercial purpose was no more than a particular mode of enjoying the right ‘to take for any purpose resources in the native title areas’: at 919 [5]. Accordingly, no specific or discrete native title right to fish or trade commercially was

established. The native title right recognised was the ability to take fish and marine resources for any purpose (and the exercise of such right included commerce and trade purposes): at [66]–[67]. The High Court in Akiba found that reciprocal rights, on the basis of personal Islander relationships with the holders of the primary rights for that area, were not native title rights in relation to waters which could be construed as native title rights.

Communal title 4.17 Native title was found by the High Court in Mabo (No 2) to be a communal title and the rights under it to be communal rights enjoyed by the whole community. However, it is possible to recognise individual rights that are derived from the community laws and customs and that are dependent on the community title: Mabo (No 2) per Brennan J at 52; per Deane and Gaudron JJ at 85, 88, 109–10. [page 65]

Proprietary title 4.18 Native title is a proprietary title in many cases. Native title is also capable of supporting non-proprietary usufructuary personal rights: Mabo (No 2) per Brennan J at 51. Deane and Gaudron JJ considered that native title rights were of a personal nature in that they were inalienable but that native title could constitute valuable property rights: at 88–9. The better approach is to note that native title is outside our known property system and that it is sui generis (the only one of its kind or peculiar to itself).

Non-alienability of native title 4.19 Native title is generally not alienable under common law. The reason for this restriction is that native title is not based in the common law but is recognised by the common law. Its alienability

depends on the laws from which it is derived and those laws have traditionally forbidden alienation: Mabo (No 2) per Brennan J at 59– 60; Deane and Gaudron JJ at 88. There are two exceptions to this. First, native title may be surrendered to the Crown (which is also known as the Crown’s right of pre-emption): Mabo (No 2) at 60. Second, native title may be transmitted to another indigenous group in accordance with the laws and customs of that group but only where the groups have formed a ‘cognatic kin group’: Dale v Moses [2007] FCAFC 82 at [15], [36], [117]; Yorta Yorta (2002) 214 CLR 422 per Gleeson, Gummow and Hayne JJ at 443. The Native Title Act reflects the common law position in that in certain circumstances native title interests can be immune from creditors: s 56(5), (6).

Enforcement by legal and equitable remedies 4.20 Provided customary laws are not repugnant to natural justice, equity and good conscience, then the judicial sanctions of the common law and equity may be used to protect native title: Mabo (No 2) per Brennan J at 61; Deane and Gaudron JJ at 113; Toohey J at 205. Native title applicants (where native title has not been determined) who request equitable relief may need to establish a prima facie case as to the existence of native title: Lardil Peoples v Queensland (1999) 95 FCR 14 at 23.

A burden on the radical title of the Crown 4.21 The Privy Council’s judgment in Amodu Tijani v Southern Nigeria Secretary [1921] 2 AC 399 at 403, 410, was expressly adopted in Mabo (No 2) by Deane and Gaudron JJ in that the legal title of the Crown was qualified and reduced by common law native title: Mabo (No 2) at 92. Brennan J (at 52), took a similar view that native title was a burden on the radical title of the Crown. See also the majority in Yorta Yorta at [38].

Native title under the Native Title Act

Statutory definition of native title 4.22 In Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422, the majority found that native title encompassed what was defined and described by the Native Title Act and that native title was neither a creature of the common law nor of statute. This interpretation requires that the nature and content of native title [page 66] must be ascertained by reference to the traditional laws, customs and practices of the particular indigenous community and that the common law principles of native title will have limited application. A claim for native title is therefore a claim for recognition of the rights defined in the Act: Yorta Yorta at 440; Ward (2002) 213 CLR 1 at [65]–[66]; Commonwealth v Yarmirr (2001) 208 CLR 1 at [15]. 4.23 The definition of ‘native title’ is contained in the Native Title Act in s 223. Section 223(1) reads: The expression ‘native title rights and interests’ means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where: (a) the rights and interests are possessed under the traditional laws acknowledged and the traditional customs observed by the Aboriginal peoples or Torres Strait Islanders; and (b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and (c) the rights and interests are recognised by the common law of Australia.

Rights of hunting, gathering or fishing are included in rights and interests comprising native title: s 223(2).

Rights 4.24 In claiming native title under the Act, the relationship which the traditional owners have with the land must be ‘translated’ into rights: Ward at 65–7. Native title rights must be rights and interests in

either ‘land’ or ‘waters’ as per the definition in s 223. An exclusive native title right is generally referred to as a right to occupation, use and enjoyment of land or waters: Neowarra v Western Australia [2003] FCA 1402 at [376]; Griffiths v Northern Territory (2007) 165 FCR 391. Where any native title rights have been impaired (but native title has not been extinguished), then it is necessary to identify the incidents of the fragmented native title rights which remain. For example, these may include, inter alia, rights to hunt, fish and gather (s 223(2)) as well as rights to live on the land and rights to protect significant sites: Northern Territory v Alyawarr (2005) 145 FCR 442.

Bundle of rights 4.25 The majority of the High Court in the Ward decision approved the view that native title, as defined in the Act, is a bundle of rights, stating ‘[i]t is a mistake to assume that what the [Native Title Act] refers to as “native title rights and interests” is necessarily a single set of rights relating to land that is analogous to a fee simple’: at 91. Thus, the majority in Ward endorsed a narrow interpretation which failed to recognise native title as equivalent to full ownership of land.

Minerals 4.26 The majority of the High Court in Ward found no evidence of traditional or customary native title to subsurface resources (except ochre) and decided that native [page 67] title did not include mineral resources. The High Court noted that any resource rights of the traditional owners would have been extinguished by state legislation.

Cultural property

4.27 Claims to protection of cultural knowledge and intellectual property rights could not be included as native title rights within the definition of the Act as rights of information are neither land nor water rights. Therefore, they are not protected by the Native Title Act: Ward at 84.

Section 211 of the Native Title Act 4.28 This section affords native title holders the right to pursue traditional activities (including hunting, fishing, gathering and cultural or spiritual activities for personal, domestic and non-commercial needs), notwithstanding laws which prohibit or restrict such activities. Thus native title rights can be carried out despite the lack of a licence or permit as required under such legislation.

Holders of native title 4.29 As noted above, native title is a communal title and both at common law and under the Native Title Act the emphasis is on the collective society. The native title claimant group and its members will require some identification. First, all members of the native title claim group must be named in an application for a determination of native title: s 61(4). Second, the Federal Court must also determine who holds native title at the same time as it determines the existence of native title: s 225. To some extent the issue of identification of the precise group can be avoided as the Native Title Act allows the native title holders to choose between vesting title in a prescribed body corporate acting as trustee for the common law holders or vesting native title in a prescribed body corporate (the common law holders themselves): s 56. If the native title holders choose to hold native title themselves then it is possible (under regulations) that a prescribed body corporate could be appointed to act as agent for the common law holders: ss 56(2)(c), 58. For the role and functions of prescribed bodies corporate, see Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth).

Native title offshore 4.30 Section 223(1)(b) of the Native Title Act refers to native title rights and interests extending over ‘land’ or ‘waters’. In Commonwealth v Yarmirr (2001) 208 CLR 1 (Yarmirr), the High Court confirmed that native title rights can exist in offshore waters over the territorial sea and seabed. A claim had been made over the territorial sea which extended from the low-water mark to a 12 nautical mile limit to the Croker Island region of the Northern Territory.2 The High Court accepted that ss 223 and 253 of the Act, read together with s 15B(4) of the Acts Interpretation Act 1901 (Cth), allowed the protection of native title to the territorial sea to the extent recognised by the common law: at [122], [131]. The High Court decided that there was no necessary [page 68] inconsistency between the continued recognition of native title rights and interests and the proclamation of sovereignty in 1824, except for two sets of fundamental common law public rights — navigation and fishing, and the international right of innocent passage through the seas: at [61], [97]–[98]. The High Court found that the common law public rights of navigation and fishing together with the right of innocent passage (brought to the colony at the time of settlement) were part of the common law in Australia and that native title was thus diminished (not extinguished) by these inconsistent common law rights. Therefore, native title rights and interests did not confer exclusive possession and occupation of the claimed area. See also Lardil Peoples v Queensland [2004] FCA 298 and Northern Territory v Arnhem Land Aboriginal Land Trust (2008) 236 CLR 24 which were consistent with the Yarmirr decision. As discussed in 4.16, in Akiba v Commonwealth (2013) 250 CLR 209 the High Court recognised a nonexclusive right to take fish and marine resources that could be exercised for commercial or trading purposes.

4.31 The High Court in Arnhem Land Aboriginal Land Trust recognised that a grant under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) to the Aboriginal owners of an estate in fee simple, which extended to the low-water mark, included exclusive rights to tidal waters (between the low and high-water mark). Thus, in the Northern Territory, Aboriginal title holders of statutory title under the Aboriginal Land Rights (Northern Territory) Act have the right to control fishing in the inter-tidal zone.

Determination and proof of native title Determination of claims 4.32 A determination of native title under the Native Title Act decides whether or not native title exists, who the persons holding the title are, the nature and extent of their rights and interests, and the relationship between the native title rights and interests and other interests over the area: s 225. Applications for native title can be made to, and determined by, the Federal Court. The Federal Court and the High Court can both make an ‘approved determination’ of native title: s 13. Other courts that have jurisdiction can hear native title claims, for example, state Supreme Courts, but these courts cannot make an ‘approved determination’ of native title. An ‘approved determination’ of native title does not simply establish native title between the parties to the application, but operates ‘in rem’ to advise the standing of native title to the whole world: Ward (2002) 213 CLR 1 at 71–2. Thus determinations of native title by courts other than the Federal Court and the High Court will operate ‘in personam’ and bind only the parties to the action. Non-claimant applications may be made by governments and those holding interests over land in order to ascertain whether native title exists in relation to land or waters: ss 61 and 24FA.

Registration of claims

4.33 A registration test is applied to claims: ss 190A–190F. The purpose of the test is to ensure that only those claims with merit are registered: see the criteria in [page 69] ss 190B and 190C. An unregistered claim may still proceed towards determination but is not accorded the important ‘right to negotiate’. This right will be discussed later at 4.76. The test comprises both procedural and substantive aspects: for details, see Bullen v Western Australia (1999) 96 FCR 473 at [15]–[21]. The substantive aspects include whether the information given states the boundaries of the claimed areas with reasonable certainty; whether the persons in the group are described sufficiently clearly to determine the scope of the group; whether there are sufficient facts to support the existence of native title, in particular the association of the group with the area, the existence of traditional laws and customs, and their continuance; prima facie, whether at least some of the native title rights and interests can be established; and whether at least one member of the group has, or had, a traditional physical connection with any part of the area: s 190B. The last requirement is subject to ‘locked gate’ or ‘stolen generations’ exceptions, which allow waiver of physical connection for those forcibly removed from the land.

Proof of native title 4.34 The foundation of any native title claim is establishing proof that by the traditional laws and customs of the claimant group they have a connection with the traditional land or waters in accordance with the definition of native title in s 223 of the Native Title Act. In 2002, in Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422, the High Court majority confirmed that the claimants must prove the elements contained in s 223 of the Native Title Act, focusing on establishing a claimant society with continuity in the observance of

traditional laws and customs and in their connection with the traditional lands and waters. The Yorta Yorta Aboriginal community claimed native title on lands in the Murray River valley in Victoria and New South Wales. Due to pressures of European settlement their society had changed significantly. Olney J in the Federal Court (Members of the Yorta Yorta Aboriginal Community v Victoria [1998] FCA 1606 at [129]) found that at some time prior to the end of the 19th century, the Yorta Yorta ancestors had ‘ceased to occupy their traditional lands in accordance with their traditional laws and customs’ and at this time native title ceased to exist. Olney J rejected the contemporary practices of the Yorta Yorta peoples as the acknowledgment of their laws and traditions because such practices were not undertaken by the pre-sovereignty society and thus lacked a traditional character. His Honour found that on the evidence presented the Yorta Yorta had lost their status as a traditional society. Olney J had placed great emphasis on the historical evidence. He considered that credible information about the community’s traditional laws and customs was to be found in the writings of the pastoralist, Curr, and a missionary, Daniel Matthews. Both had written about the disruption of the community’s traditional life and the suppression of their language and the lack of observance of traditional practices (in the mid-1800s). The Full Federal Court also found that the claim was unsuccessful: Members of the Yorta Yorta Aboriginal Community v Victoria (2001) 110 FCR 244. The High Court reached the same conclusion. Both the Federal Court on appeal and the High Court considered Olney J’s approach to tracing pre-contact activities through to the present to be a wrongly conceived inquiry. However, for different reasons, both [page 70] courts agreed with the conclusion of Olney J that the Yorta Yorta had lost their status as a ‘traditional Aboriginal society’. The High Court found that the Yorta Yorta people no longer observed the same normative system that burdened the Crown’s acquisition of

sovereignty. Despite the group’s genealogical and physical continuity, and despite its existence as an indigenous community who regarded itself as bound by rules of normative content, the group who asserted native title was a different Yorta Yorta ‘society’ from the society that once held native title: Yorta Yorta (2002) 214 CLR 422 at [96]. This was because the contemporary rules had no source in the normative system of the original Yorta Yorta people from whom the group was directly descended. In relation to the post-Yorta Yorta cases regarding proof of native title, see Bodney v Bennell (‘Noongar’) (2008) 167 FCR 84; Western Australia v Sebastian (‘Rubibi’) (2008) 173 FCR 1; Risk v Northern Territory of Australia (‘Larrakia’) (2007) 240 ALR 75; Griffiths v Northern Territory (2007) 243 ALR 72; Moses v State of Western Australia (2007) 160 FCR 148; Dale v Moses [2007] FCAFC 82; Harrington-Smith on behalf of the Wongatha People v Western Australia (No 9) (‘Wongatha’) (2007) 238 ALR 1; Gumana v Northern Territory of Australia (‘Blue Mud Bay’) (2007) 158 FCR 349; Northern Territory v Arnhem Land Aboriginal Land Trust (2008) 236 CLR 24; Jango v Northern Territory (2007) 240 ALR 432; Alyawarr v Northern Territory (2005) 145 FCR 442; De Rose v State of South Australia (No 2) (2005) 145 FCR 290 (De Rose (No 2)); De Rose v State of South Australia (2003) 133 FCR 325. The burden of proof to be met to establish a claim for native title has been widely viewed as onerous: see, for example, R H Bartlett, Native Title in Australia, 3rd ed, LexisNexis Butterworths, Sydney, 2015, Ch 7; P Keating, ‘Lowitja O’Donoghue Oration’, Don Dunstan Foundation, University of Adelaide, 31 May 2011. The main elements in relation to proof of native title are contained in s 223(1) which will now be examined.

Section 223(1)(a): The native title rights and interests must be possessed under the traditional laws acknowledged, and the traditional customs observed, by the claimant group 4.35

Traditional laws and customs Section 223(1)(a) requires that

the claim group (as a whole) demonstrate a normative body of laws and customs (the traditional laws and customs) in accordance with which native title rights and interests in relation to land and waters are possessed in the claim area: Yorta Yorta at [85]–[86]; De Rose (No 2) at [57]–[58]. In Yorta Yorta, the majority of the High Court regarded ‘traditional’ as meaning pre-sovereignty, as it was considered that ‘traditional’ conveyed an understanding of the age of the traditions: (2002) 214 CLR 422 at [44], [46]. The key question is whether the law and custom can still be seen to be traditional law and traditional custom: Yorta Yorta at [77]. That is, the laws and customs that are currently observed by the claimants must be sourced in the body of laws and customs that were observed by their ancestors prior to the Crown asserting sovereignty over the claim area. Thus, the only rights and interests recognised as native title will be those that have their origin in the pre-sovereignty system of laws and customs: Yorta Yorta at 441–4. Creation of new rights after the acquisition of sovereignty is not possible: Yorta Yorta at 443–4. For example, [page 71] although fishing was a pre-sovereignty activity, if the selling of fish was not a traditional custom in pre-sovereignty times, it could not be a native title right today. 4.36 Normative content of laws and customs It is not sufficient for the laws and customs under which the rights and interests are held to be merely patterns of behaviour; they must have a normative content: Yorta Yorta (2002) 214 CLR 422 at [42]. Thus, the body of laws and customs must provide a standard which regulates the way the society lives. For example, in Harrington-Smith on behalf of the Wongatha People v Western Australia (No 9) (2007) 238 ALR 1, Lindgren J stated that: … whether residence within a Claim area and hunting by an individual are probative of a standard or norm will require close attention to the reasons why the individual resides in the Claim area or hunts … ’: at [332]. Lindgren J noted that the reasons given by the

claimants for hunting — such as inexpensive recreation, socialising with family and friends, passing on knowledge and skills gained from previous generations to children and grandchildren, and obtaining supplements to their food supply — did not constitute evidence of the observance of traditional laws and customs: at [953]. Further, it should be remembered that ‘traditional laws and customs’ must also define and regulate rights and interests in land and/or waters. 4.37 Continuity of observance of traditional laws and customs Section 223(1)(a) requires that the system of laws and customs have a continuous existence and vitality since sovereignty. If the system of laws and customs ceases to operate for any period then the rights and interests that owe their existence to that system will cease to exist: Yorta Yorta (2002) 214 CLR 422 per Gleeson CJ, Gummow and Hayne JJ at 443–4, Gaudron and Kirby J at 463; Yarmirr (2001) 208 CLR 1 at 443–4. Any attempt to revitalise the system would not reconstitute the traditional laws and customs and would not amount to native title under the Act: Yorta Yorta at [77]. Therefore, the native title claimants must have continued, substantially uninterrupted, to observe the traditional laws and customs since pre-sovereignty times. 4.38 Change and adaptation How much change is possible and how far can native title evolve and yet still be ‘traditional’? In Mabo (No 2) (1992) 175 CLR 1 it was recognised that in time the laws and customs of any peoples will change and that native title would not be ‘frozen’ at the time of the settlement of Australia: per Brennan J at 60–1; Deane and Gaudron JJ at 110; Toohey J at 192. Adaptations and changes to traditional laws and customs were not considered by the Yorta Yorta High Court to be fatal to proving a native title claim under s 223(1)(a) provided that the claimant’s rights and interests could be shown to have their source in traditional laws: Yorta Yorta (2002) 214 CLR 422 at [83]. The key question is whether the law and custom can still be seen to be traditional law and traditional custom: at [77]. Thus, the use of contemporary means to undertake traditional activities will not, of itself, mean a loss of native title. For example, in Yanner v Eaton (1999) 201 CLR 351, Gummow J considered that using a motorised boat in which to carry out traditional hunting and fishing was an

‘evolved or altered form of traditional behaviour’ and thus it was an exercise of a native title right: at [68]. In Harrington-Smith on behalf of the Wongatha People v Western Australia (No 9) (2007) 238 ALR 1, Lindgren J stated that: ‘I have no difficulty in regarding the changes from residence in wiltjas [page 72] (Aboriginal bough shelters) to residence in houses, from hunting on foot with spears to the use of motorised transport and rifles, and from the use of sharp stones to razor blades in the ceremony of male initiation, as adaptations’: at [332]. It is important to ensure that the modified activities are sourced in the traditional laws and customs of the group. Furthermore, an interruption in the observance of the traditional laws and customs will not be regarded as simply an adaptation: Yorta Yorta at 455, 456. 4.39 The claimant society It was considered by the Yorta Yorta High Court that s 223(1)(a) inherently required the existence of ‘a body of persons united in and by its acknowledgment and observance of a body of laws and customs’: Yorta Yorta (2002) 214 CLR 422 at [49], [55]. Accordingly, a pre-sovereignty society with a normative system — that is, a system of laws and customs — must have existed prior to colonisation. It must also be demonstrated that this presovereignty society has substantially maintained its character and continuance from generation to generation, in accordance with the traditional laws and customs, through to the present time: at 443–4 [47]–[56], [89], [95]. Additionally, the claim group today, as a whole, must establish that it acknowledges and observes the traditional laws and customs: at [85]–[89]; De Rose (No 2) at [57]–[58]. Native title will not be claimable if the society from whom those laws derive no longer exists, or if the form of that society has extensively changed from the time of sovereignty, or if the laws and customs are no longer observed see Yorta Yorta at [49]–[57]; Sampi v Western Australia [2005] FCA 777 at [1046]; Sampi v Western Australia (2010) 266 ALR 537; Bodney

v Bennell (‘Noongar’) (2008) 167 FCR 84. In Mabo (No 2), Brennan J considered that the rights and interests of native title may be held only by indigenous inhabitants and their descendants: (1992) 175 CLR 1 at 70. However, the need for strict biological descent from the pre-sovereignty society may not be essential if the ‘community’ of native title holders has continued the connection with the land through observance of traditional laws and customs: Western Australia v Ward (2000) 99 FCR 316 (Ward FFC) at 380–1; Neowarra v Western Australia [2003] FCA 1402 (Neowarra) at [48]; regarding group membership, see also Ngalakan People v Northern Territory (2001) 112 FCR 148; Northern Territory v Alyawarr (2005) 145 FCR 442 at [94], [113]–[117]; Shaw v Wolf (1998) 83 FCR 113 at 118; Gumana v Northern Territory of Australia (‘Blue Mud Bay’) (2007) 158 FCR 349 at [135] (Gumana). Given the diverse nature of indigenous societies it may not always be appropriate for claimants to classify themselves as a specific grouping. For example, it is possible for individuals and small groups to hold native title in their own right without constituting a society or community: De Rose v South Australia (2003) 133 FCR 325 at [223]; De Rose v South Australia (No 2) (2005) 145 FCR 290 at [63]. It is also possible for a ‘society’ made up of multiple ‘clans’ to claim communal native title. In such a case native title can be held by the society as a whole (as opposed to limited rights over limited areas of land being allocated to individual clans). For example, see Ward where the Miriuwung and Gajerrong groups were found to be a composite community, and Yarmirr where the applicants were members of five different estate groups but their members saw themselves as a single community. In determining the ‘society’ under the Native Title Act, evidence demonstrating that a body of laws and customs exist and that members of the community or society abide by those laws and customs together with evidence [page 73] showing the continuance of that society in adhering to those laws and

customs is required: Yorta Yorta at 464–5. Where this evidence is established the courts appear to be taking a flexible approach to interpreting ‘society’: see Gumana; Northern Territory v Arnhem Land Aboriginal Land Trust (2008) 236 CLR 24; Neowarra; Northern Territory v Alyawarr (2005) 145 FCR 442; Sampi v Western Australia [2005] FCA 777 at 969–71; Sampi v Western Australia (2010) 266 ALR 537.

Section 223(1)(b): The claimant group, by the traditional laws acknowledged and the traditional customs observed, have a connection with the land or waters claimed 4.40 Connection Section 223(1)(b) of the Native Title Act requires that the claimants establish a ‘connection’ with the land or waters claimed and establish that connection exists ‘by the laws and customs’. Occupation of the land will not, of itself, establish a connection (Ward FFC at [93]); and neither is connection associated with the use Aboriginal people make of the land: Yorta Yorta (2002) 214 CLR 422 at 455; Ward at [64]. 4.41 In Mabo (No 2) (1992) 175 CLR 1, the High Court took different interpretations of the ‘connection’ requirement at common law. Brennan J (at 59) noted that a ‘traditional connection’ with the land was required. Deane and Gaudron JJ highlighted ‘occupation and use’ and recognised that use of the land must be of sufficient significance to establish a locally recognisable special relationship with the land: at 86. Toohey J took the view that occupancy of the land and a ‘physical presence’ was the foundation of title, although his Honour considered that presence on land need not amount to possession at common law in order to amount to occupancy. Certainly in Mabo (No 2), in the case of the Murray Islanders, a physical connection with the land was easily established. Precisely what connection with the land was required at common law was not clear. Nothing in s 223(1) (b) requires a physical connection. A ‘connection’ with land or waters may be established

without a current physical connection and, in some cases, without a continuous physical presence on the land: Ward at 85 [64].3 As the High Court in Ward noted, ‘… the absence of evidence of some recent use of the land or waters does not, of itself, require the conclusion that there can be no relevant connection’: at 85. Thus historical and even contemporary presence on the land, though not continuous, may be relevant, but will not be determinative in establishing native title. Interruptions in the claimant’s presence in an area could, however, affect the continued observance and enjoyment of traditional laws and customs and thus the necessary connection will be lost: Risk v Northern Territory [2006] FCA 404; affirmed (2007) 240 ALR 75. While spiritual rights cannot be native title rights themselves, they may be evidence of native title rights or evidence of a connection to the land or waters: Ward at 84 [59].4 [page 74] 4.42 Connection by traditional right and interests In Ward, the majority of the High Court stated that s 223(1)(b) requires consideration of whether, by the traditional laws acknowledged and the traditional customs observed by the peoples concerned, they have a ‘connection’ with the land and waters: (2002) 213 CLR 1 at 85 [64]. First, this requires that the indigenous claimants identify the content of traditional laws and customs. That is, the claimants must particularise the content of the rights and interests held pursuant to those traditional laws and customs. It is clear that a connection cannot be established without demonstrating the existence of a traditional system of laws and customs. Second, the majority in Ward stated that the indigenous claimants must characterise the effect of those laws and customs as constituting a ‘connection’ of the peoples with the land or waters in question: at 85 [64]. That is, the claimants must demonstrate what the laws and customs say about their relationship with the land and thus show that by those laws and customs they have native title rights and interests in the claimed land. In others words, they must

show that they have a connection with the land. In this way evidence of the existence of traditional laws and customs will be relevant in establishing a connection. Such evidence could include, for example, evidence of ceremonies, using the land in obtaining traditional foods, kinship relationships between the people and the traditional land: at [18]. Reports of historical occupation could also be significant in ascertaining ‘connection’ where an implication of continuity can be made. Once the connection with the land is lost it cannot be revived: Mabo (No 2) at 60, 70; Ward at [59].

Section 223(1)(c): Recognition by the common law 4.43 Under s 223(1)(c), native title rights and interests must be ‘recognised’ by the common law. First, this section reflects the common law requirement that native title rights and interests which ‘are antithetical to the fundamental tenets of the common law’ are refused recognition: Yorta Yorta (2002) 214 CLR 422 at [55], [79]; Mabo (No 2) (1992) 175 CLR 1 at 45. Second, the reference in this section to the rights or interests being recognised by the common law cannot be understood as a form of drafting by incorporation, by which some pre-existing body of the common law that defines the rights or interests known as native title is brought into the Act: Yorta Yorta at [76]. Third, if native title has been validly extinguished in the past then it will be incapable of being ‘recognised’ by common law. Extinguishment is discussed below.

Extinguishment of native title Recognition and protection 4.44 As stated earlier, the first of the enacted object of the Native Title Act is to provide for the recognition and protection of native title: s 3(a). In the words of the High Court: This object is achieved by a statutory declaration that native title is not able to be extinguished contrary to this Act. The protection given to native title by this provision

removes its vulnerability to defeasance at common law by providing a prima facie sterilisation of all acts which would otherwise defeat native title. By

[page 75] that prima facie sterilisation, s 11(1) ensures that the exceptions prescribed by other provisions of the Act which permit the extinguishment or impairment of native title constitute an exclusive code. Conformity with the code is essential to the effective extinguishment or impairment of native title. The Native Title Act thus governs the recognition, protection, extinguishment and impairment of native title: Western Australia v Commonwealth (1995) 183 CLR 373 at 453.

Limitations on the power to extinguish 4.45 The power to extinguish native title lies in the Commonwealth, the states and the territories. The Commonwealth is limited by s 51(xxxi) of the Commonwealth Constitution to pay just terms where it acquires property. The major limitation placed on the states and territories is that of inconsistency with valid Commonwealth law under s 109 of the Commonwealth Constitution. In particular, the Racial Discrimination Act 1975 (Cth) and now the Native Title Act provide the basis for a s 109 inconsistency. Thus a state’s attempts to extinguish or impair native title will be subject to both Acts. Section 10 of the Racial Discrimination Act 1975 (Cth) demands that native title holders be treated with equality and thus they must be treated in exactly the same manner as are other members of society. Under s 11(1) of the Native Title Act is the guarantee that native title cannot be extinguished contrary to the Act. Both Acts offer different forms of security. 4.46 While extinguishment is mostly regulated by the Native Title Act, the common law rules remain applicable where the Act either specifies that the principles of extinguishment at common law apply (such as the inconsistency of incidents test) or where the Act is silent on specific instances of potential extinguishment. Extinguishment at common law and under the Native Title Act is subject to different rules, thus extinguishment under each regime will be examined

separately below.

Extinguishment at common law 4.47 Extinguishment is the termination of native title. The High Court in Mabo (No 2) considered that government action can have the effect of extinguishing or impairing native title without the consent of the native title holders and without compensation being paid. The concept of extinguishment was viewed by the Mabo (No 2) High Court as an incident of the Crown’s sovereignty. Native title is most at risk from extinguishment by the Crown. The High Court in the joint judgment of Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ in Western Australia v Commonwealth (1995) 183 CLR 373 at 452–3, acknowledged the precarious position of native title. Native title can not only be extinguished by legislation but it can also be extinguished by non-statutory executive action, such as Crown grants, alienations or appropriations. 4.48 Both in Mabo (No 2) and Wik Peoples v Queensland (1996) 187 CLR 1, the High Court considered that at common law, extinguishment of native title could occur by legislation which showed a ‘clear and plain intent’ to extinguish native title. In Western Australia v Ward, the majority approved of the extinguishment of native title by the ‘inconsistency of incidents test’; however, the court did not specify a [page 76] requirement for a ‘clear and plain intention’. In Akiba v Commonwealth (2013) 250 CLR 209, French CJ and Crennan J considered that for both ‘legislative and executive action, a clear and plain intention was required’ prior to any extinguishment of native title: at [24]. In Mabo (No 2) (1992) 175 CLR 1, Brennan J (with whom Mason CJ and McHugh J agreed) considered that on the basis that there were serious consequences to the indigenous peoples arising from the extinguishment of their title, regardless of whether

extinguishment was by legislative or executive action, the test was one of a ‘clear and plain intention to extinguish’: at 64. Such an intention is not to be gleaned from inquiry into the state of mind of legislators or of the executive officer. Intention is to be read in an objective manner from words of the relevant law or the nature of the executive act and the power supporting it. To establish a ‘clear and plain intention’ it must be impossible for the legislative scheme to coexist with native title. It is not essential that the legislation expressly provides that native title will be extinguished nor does it mean that the executive must demonstrate the existence of an actual intention to extinguish title. Brennan J said: A Crown grant which vests in the grantee an interest in land which is inconsistent with the continued right to enjoy a native title in respect of the same land necessarily extinguishes the native title. The extinguishing of native title does not depend on the actual intention of the Governor in Council (who may not have adverted to the rights and interests of the indigenous inhabitants or their descendants), but on the effect which the grant has on the right to enjoy the native title: at 68.

4.49 Extinguishment may occur in several circumstances: (a) ‘Bare’ extinguishment — laws which simply extinguish native title; (b) Extinguishment by inconsistent rights — laws or executive acts which create rights in third parties over land previously subject to native title; and (c) Crown resumptions, public works, vestings and reservations — laws or acts by which the Crown acquires full beneficial ownership in that land, such as by compulsory acquisition, and also the impact of public works.

‘Bare’ extinguishment 4.50 Laws enacted prior to 1992 are unlikely to contain any express intention to extinguish native title (native title not being recognised until Mabo (No 2)). 4.51 Regulation is not extinguishment Laws enacted prior to 1992 which regulate the use or occupation of Crown lands to such an extent

that the exercise of inconsistent native title rights would be prevented exhibit an intention to extinguish native title. For example, water management legislation by-laws, which prohibited taking flora and fauna within a fixed distance of reservoirs, were found to be totally inconsistent with native title rights of hunting and gathering, and thus extinguished those rights: Western Australia v Ward (2002) 213 CLR 1 at 153 [268]. The mere regulation of the usage of land or resources, and thus the enjoyment of native title, will not necessarily amount to extinguishment of native title: Mason v Tritton (1994) 34 NSWLR 572; Yanner v Eaton (1999) 201 CLR 351; Akiba v Commonwealth [page 77] (2013) 250 CLR 209. For example, extensive legislative controls on fishing will not necessarily extinguish a native title right to fish: R v Sparrow [1990] 1 SCR 1075 at 1097; Akiba; Karpany v Dietman (2013) 303 ALR 216. However, legislation that purports to vest ownership of resources (such as minerals, water, fish or wildlife) in the Crown could potentially extinguish native title. Whether such legislation will actually have this effect will depend on how such legislation is interpreted. Legislation which is inconsistent with exclusive native title rights may extinguish the exclusive quality of the native title right: Ward at [268]. 4.52 Yanner v Eaton concerned the hunting of crocodiles in northern Queensland. Yanner, a member of the Gunnamulla clan, used a traditional harpoon-type weapon from a dinghy powered by an outboard motor to hunt and kill two crocodiles for food. He was charged with an offence under the Fauna Conservation Act 1974 (Qld) (Fauna Act) for taking fauna without a licence. The High Court considered that: (i) the Fauna Act did not extinguish Yanner’s native title rights to hunt crocodiles; and (ii) the action was protected by s 211 of the Native Title Act. Section 211 provides that a law which ‘prohibits or restricts persons’ from fishing or gathering ‘other than in accordance with a licence, permit or other instrument granted or

issued to them under the law’ does not prohibit or restrict the carrying on of that activity in certain circumstances. It was argued that the Fauna Act created a legal regime that was inconsistent with the rights of native title holders in Queensland. The inconsistency was said to lie in the creation of property rights in the Crown that were inconsistent with the continued existence of the native title rights. Section 7(1) of the Fauna Act provided that all fauna, except for that taken during an ‘open season’, was the property of the Crown. The High Court’s comments on the concept of property were discussed in Chapter 1. The court considered the two purposes for which legislation vested property in fauna in the Crown: (i) to impose a royalty or fee on those who killed fauna for skins; and (ii) to impose a penalty on those who infringed the Act’s provisions: at [101]. Thus, the statutory vesting of property in fauna was an expression of the state’s power to preserve and regulate the exploitation of an important resource. The vesting of property in the Crown conferred less than the rights of full beneficial or absolute ownership (at [30]) and did not extinguish Yanner’s native title rights to hunt crocodiles. The leading judgment by Gleeson CJ, Gaudron, Kirby and Hayne JJ at ([37]–[38]), declared: … Regulating the way in which rights and interests may be exercised is not inconsistent with their continued existence. Indeed, regulating the way in which a right may be exercised presupposes that the right exists. No doubt, of course, regulation may shade into prohibition and the line between the two may be difficult to discern.

4.53 In Akiba v Commonwealth (2013) 250 CLR 209, the native title claimants sought a determination of native title over a large area of waters in the Torres Strait. At issue was the impact of successive statutory regimes in the Torres Strait prohibiting commercial fishing without the relevant licence. Finn J, at first instance, determined that legislation which prohibited a person from engaging in commercial fishing without a licence was regulatory not prohibitive: Akiba v Queensland (2010) 204 FCR 1 at 190 [765]. The Full Court of the Federal Court allowed an appeal, finding that the successive fisheries legislation had extinguished any right to take [page 78]

fish and other aquatic life for commercial purposes: Commonwealth v Akiba (2012) 204 FCR 260. Keane CJ and Dowsett J (in the majority) emphasised the orthodox approach to the extinguishment of native title — to assess whether the native title rights under question are consistent with legislation regulating that activity. Their Honours noted that while the particular licensing regimes did not explicitly extinguish native title, those regimes manifested a clear intention to extinguish all common law rights: at 287 [64]. Accordingly, the Full Court found that ‘a right to fish for commercial purposes cannot survive the enactment of law which prohibits the unlicensed taking of fish for commercial purposes’: at 295–6 [87]. On appeal, the High Court found that no native title right had been extinguished by the relevant successive fisheries legislation which was found to be regulatory. French CJ and Crennan J noted that ‘a particular use of a native title right can be restricted or prohibited … without that right or interest itself being extinguished’: 227 [26]. In determining inconsistency, their Honours found that the question is not whether there was inconsistency of competing rights, but ‘whether successive statutory regimes were inconsistent’ with the recognition by the common law of native title: at [35]–[39]. Hayne, Kiefel and Bell JJ, agreeing on generally related reasoning, reiterated that the test of inconsistency laid down by the High Court in Western Australia v Ward (2002) 213 CLR 1 is an objective one. Their Honours stated that regulation of a native title right to take resources does not sever the connection between the people and the land or waters, nor will it extinguish native title (ie, lead to the cessation of the recognition of those rights by the common law). Despite observing that ‘regulation may shade into prohibition’, their Honours stated (at 240–1 [64]): … the central point made in Yanner and reflected in each of Wik, Fejo, Yarmirr and Ward, is that a statutory prohibition on taking resources from land or waters without a licence does not conclusively establish extinguishment of native title rights and interests of the kind found to exist in this case: ‘the rights to access, to remain in and to use the native title areas’, and ‘the right to access resources and to take for any purpose resources in the native title areas’.

And (at [67]): The prohibition of taking fish for sale or trade without a licence regulated the exercise of the native title right by prohibiting its exercise for some, but not all, purposes without a licence, It did not extinguish the right to any extent.

4.54 In Karpany v Dietman (2013) 88 ALJR 90, two Narrunga men sought to rely on s 211 of the Native Title Act as a defence to charges brought under the Fisheries Act 1971 (SA) for being in possession of undersize abalone. On appeal, it was argued that the Fisheries Act 1971 was inconsistent with the continued existence of native title, and therefore had extinguished the native title right to take fish. The High Court rejected this argument applying Akiba, and found that the Act regulated, but was not inconsistent with, the continued enjoyment of native title rights. Accordingly, s 211 provided a defence and the Narrunga men could exercise their native title rights. [page 79]

Extinguishment by inconsistent rights 4.55 In both Mabo (No 2) and Wik Peoples v Queensland (1996) 187 CLR 1 (Wik), the majority view was that native title could be extinguished by an ‘inconsistent grant’ under a statutory authority provided that a clear and plain intention to extinguish is demonstrated. In Western Australia v Ward [2002) 213 CLR 1, the majority view emphasised that extinguishment of native title would occur by the ‘inconsistency of incidents test’. This involves undertaking an objective inquiry which requires identification of, and comparison between, the legal nature and incidents of the two sets of rights (at 78), and an assessment made as to whether the rights granted to the third party are ‘necessarily inconsistent’ with the continued existence of the native title rights: see further Western Australia v Sebastian (‘Rubibi’) (2008) 173 FCR 1; Risk v Northern Territory (‘Larrakia’) (2007) 240 ALR 74; Sampi v Western Australia (No 2) (‘Bardi Jawi — Brue Reef’) (2005) 224 ALR 358; [2005] FCA 1567; Alyawarr v Northern Territory (2005)

220 ALR 431; Daniel v Western Australia (2004) 212 ALR 51; Neowarra v Western Australia [2003] FCA 1402; Western Australia v Brown (2014) 88 ALJR 461. If the native title rights cannot be exercised without abrogating the statutory rights, then the native title rights will be extinguished to the extent of inconsistency and the statutory rights will prevail. If the statutory rights granted are consistent with the exercise of native title rights, then it is possible that the statutory grants may still impair native title. Impairment of native title rights will mean that native title cannot amount to complete ownership of the land and that no exclusive native title rights exist: Ward at 165–6 [308]–[309]. This interpretation is based on the view of native title as a bundle of rights (discussed above at 4.25). Where inconsistency between the rights exists at the date of the grant then any extinguishment of native title will occur at that time. This will not change even where the statutory rights are exercised at a later date after the original grant or where the statutory rights are forfeited without the grantee entering into possession of the land: Ward at 308; Fejo v Northern Territory (1998) 195 CLR 96 at 131, 152. Both the Wik and Ward High Court decisions rejected the ‘factual inconsistency’ (or ‘operational inconsistency’) approach — that is, the reliance on the use of the land — to determine extinguishment. It is not the manner of the exercise of the rights or the use of the land which extinguishes or impairs native title but rather the legal nature of the rights and interests granted that is determinative of inconsistency: Wik at 87, 238; Ward at [78]. The issue of inconsistency was re-examined by the High Court in Western Australia v Brown (2014) 88 ALJR 461. The case concerned the grant of two mineral leases prior to both the Racial Discrimination Act 1975 (Cth) and the Native Title Act. Accordingly, the issue, whether native title rights had been extinguished by the grant of the mining leases or alternatively by the exercise of rights conferred by the mining leases, was to be determined with regard to common law principles. (Under the mining leases the joint venturers had the right to mine and build improvements anywhere on the land.) The High Court, applying the tests of inconsistency from Ward, unanimously held that

the grant of mining leases did not extinguish native title. In reaching this decision, the court rejected the proposition that native title would be extinguished when the rights to mine and build improvements were exercised (and found that De Rose (No 2) was incorrectly decided on this point). This proposition would have [page 80] amounted to practical or ‘operational inconsistency’ which had been rejected in the Wik and Ward decisions. The High Court in Brown confirmed that the question of inconsistency must be decided objectively ‘by reference to the nature and content of the rights as they stood at the time of the grant’: at [37]. To hold otherwise would shift the focus from the nature and content of the rights, as required by Ward and Wik, to the manner of exercise of those rights. The test of inconsistency is stringent and requires a situation where ‘the existence of one right necessarily implies the non-existence of the other’: Brown at 468 [38]. A generally coherent approach to the standard of inconsistency has been taken by the High Court in Wik, Ward, Brown and Akiba (ie, conclusively, necessarily or absolutely inconsistent). At common law, the temporary suspension of native title is not possible, and once native title is extinguished it cannot be revived: Fejo at 146; Ward at [75]–[76]. R H Bartlett, in Native Title in Australia, 3rd ed, LexisNexis Butterworths, Sydney, 2015, Ch 7, notes that a mining activity which is ‘operationally incompatible’ may suspend rather than extinguish native title: pp 421–2. In Western Australia v Brown, the High Court found that while the joint venturers exercised, their rights under the mining leases, mining rights would necessarily take priority over the native title rights. However, once rights granted under the mining lease ceased to be exercised the native title rights would remain unaffected: at [64]. 4.56 Under this inconsistency of incidents test, grants of freehold and other exclusive possession interests will extinguish native title but lesser grants of nonexclusion possession interests may be consistent

with the continued existence of native title: Mabo (No 2) (1992) 175 CLR 1 at 63–4, 116–8. The grants of fee simple and exclusive and nonexclusive possession leases will now be examined to determine their effect on native title. 4.57 Fee simple The grant of a fee simple will be inconsistent and incompatible with the continuance of any native title rights and will extinguish native title. It was accepted in Mabo (No 2) that valid freehold grants would completely extinguish native title: at 89, 110, 195. This was confirmed by the High Court in Fejo v Northern Territory (1998) 195 CLR 96 where it was held that once native title had been extinguished it was necessarily at an end and could not revive even if the land came to be held again by the Crown. This conclusion follows from the effect that the fee simple has on native title. The rights of a holder of an estate in fee simple, subject to qualifications imposed by common law or legislation, include the right to exclude any and every one from access to the land and to use of the land as the holder of the fee simple determines. This type of grant is therefore totally inconsistent with the continued existence of native title: see joint judgment of Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ in Fejo at 128. 4.58 Exclusive possession leases It was accepted by the majority judgments in Mabo (No 2) (at 69, 70, 110, 158), and confirmed in Wilson v Anderson (2002) 213 CLR 401, that the grant of leasehold interests extinguishes native title. This is because a grant of a lease confers rights of exclusive possession on the tenant and such leasehold rights are necessarily inconsistent with the exercise of native title rights: Wik Peoples v Queensland (1996) 187 CLR 1 at 88–90; Mabo (No 2) at 68. [page 81] In Wilson v Anderson, the High Court found that a ‘lease in perpetuity’, granted pursuant to New South Wales legislation, gave the

leaseholder exclusive possession over land and thus extinguished any native title in that land. 4.59 Exclusive possession leases Non-exclusive possession ‘leases’ — for example, pastoral, agricultural and mining leases — will not necessarily extinguish native title at common law: Wik, Ward and Brown. In the Wik case, the Wik and Thayorre clans claimed land in northern Queensland, part of which had been subject to leases for ‘pastoral purposes only’ issued under the Land Act 1910 (Qld) and the Land Act 1962 (Qld). Both Acts provided for the content and limits of leaseholders’ rights, including provisions about reversion to the Crown of prematurely terminated leases. All pastoral leases reserved mineral rights to the Crown and authorised access to the land to people other than the lessees. It was significant that none of the pastoral leases expressly reserved any rights for indigenous peoples. In Wik’s case, the High Court considered preliminary questions of law referred by the Federal Court for decision. No evidence of finding of fact was in question before the court. The High Court decided that pastoral leases under the 1910 and 1962 Acts, unlike leases under the common law, did not confer exclusive possession on lessees: at 118, 152, 176, 224. The presence of these pastoral leases did not necessarily and automatically extinguish any native title that may have existed. The test used to determine if a particular exercise of power extinguished native title was whether the action was inconsistent with the continued enjoyment of native title. This test was described by Kirby J as the ‘inconsistency of incidents’ test: Wik at 221 (emphasis in original). The test requires a comparison between the legal nature and incidents of the existing native title and of the statutory grant. If the native title rights cannot be exercised without infringing on rights created by the grant, then native title rights will give way and will yield to the later grant. This is so even if rights under the grant have not been exercised. What is important is whether rights are legally capable of being exercised: per Brennan CJ at 87; Kirby J at 238. As discussed above, extinguishment occurs at the time of grant. Where the alienation or appropriation is only partially inconsistent with a continuing right to enjoy native title, the native title is extinguished

only to the extent of the inconsistency.

Non-exclusive possession ‘leases’ 4.60 Questions of extinguishment were further clarified in the High Court decision in Western Australia v Ward (2002) 213 CLR 1. Land and waters in the East Kimberley District in Western Australia and adjoining land in the Northern Territory were claimed by the Miriuwung and Gajerrong community. The claim included part of some towns, part of the Ord River irrigation scheme, Argyle Diamond mine, some vacant Crown land, and Crown land that had been leased at various times or reserved for various purposes. These included pastoral and mining leases and the Keep River National Park. The trial judge found that native title was proved to exist over most of the area claimed. Only minimal extinguishment had occurred. The Full Federal Court in 2000 found that the claimants had proven their connection to the land, but that the trial judge had not correctly applied the tests regarding extinguishment: Western Australia v Ward (2000) 99 FCR 316 (Ward FFC). The majority judgments of Beaumont and von [page 82] Doussa JJ in that case found that: (i) native title was wholly extinguished over areas covered by the Ord and Argyle projects and mining leases; and (ii) native title was partially extinguished over pastoral leases which contained ‘reservation clauses’ that protected Aboriginal peoples’ rights to access and use land under lease. 4.61 In 2002, the High Court majority’s decision in Ward altered the Full Court’s decision slightly and all sides, to some degree, had some success on the appeal. Certain matters were remitted to the Federal Court for determination. In relation to extinguishment on pastoral leases, the Ward High Court followed the Wik decision and found that these statutory interests did not necessarily extinguish all native title in the lease area. The High Court extended the principles in Wik to apply

to mining leases and found that a grant of a mining lease would not necessarily extinguish all native title rights: see further Western Australia v Brown (2014) 88 ALJR 461 (discussed at 4.55). However, the grant of non-exclusive leases and mining leases will extinguish any exclusive native title rights. Thus, the right to control access to or use of the land will be extinguished on the grant of non-exclusive possession leases, but non-exclusive native title rights to use the land for hunting, fishing and gathering and for ceremonial purposes will not necessarily be extinguished by the grant: Ward (2002) 213 CLR 1 at 165–6 [308]–[309].

Crown resumptions, public works, vestings and reservations 4.62 At common law if native title is acquired by the Crown, either under a surrender or a compulsory acquisition or resumption, then native title will be extinguished because the Crown has acquired the full beneficial interest in the land: Mabo (No 2) (1992) 175 CLR 1 at 68. Any acquisition by the Crown of an estate in fee simple will also extinguish the native title interest in that land. However, a resumption of a pastoral lease by the Crown will not result in the extinguishment of the native title interest: Ward at [208]. At common law, the Crown’s use of land for permanent public works will demonstrate control over the land inconsistent with the enjoyment of native title rights and native title will be extinguished: Ward at [215]. Public works are dealt with under the Native Title Act: s 23B(7). A reservation of land by the Crown for public purposes will not necessarily extinguish native title, although any native title rights to control access to or use of the land will be inconsistent with the power to reserve the land and will thus be extinguished: Ward at 136 [214], [217]. Other traditional non-exclusive native title rights could continue to be exercised, subject to the particular rights created by the reservation. If, however, the reservation has been by a transfer of land in fee simple, then the inconsistent rights will result in a complete extinguishment of native title: at [146]–[147]. Vesting of lands in trust

for the Crown or a statutory authority — for example, for use of that land as a road or railway — will, on the High Court majority judgment view in Ward, extinguish native title because the vesting in that body will be inconsistent with the continued exercise of native title: at [219], [249].

Extinguishment under the Native Title Act 4.63 Extinguishment of native title under the Native Title Act is complicated. It is necessary to consider extinguishment under several time frames as the law applies [page 83] differently depending on the type of grant or action made by government and the time when that grant or action was made or undertaken. When the Native Title Act was first enacted, extinguishment was included only in the context of the results of the validation of potentially invalid legislation and grants (Divs 2 and 2A of Pt 2 — the ‘validation’ provisions). As noted previously, as the Native Title Act validates only Commonwealth actions, complementary legislation by states was essential for the validation of state actions: see 4.11. The validation provisions were generally limited in their application to the legislation and grants occurring after 1975 — after the date of the passage of the Racial Discrimination Act 1975 (Cth). Following the Wik case, the Native Title Act was amended to ‘confirm’ the extinguishing effect of laws and grants, whenever they occurred (Div 2B of Pt 2 — the ‘confirmation of extinguishment’ provisions). The validation provisions and the confirmation provisions operate together in relation to extinguishment, but ss 23C(3) and 23F(3) provide that the validation provisions do not apply to acts to which the confirmation provisions apply. Thus the confirmation provisions must be the point of commencement for determining whether extinguishment of native title has taken place. Common law

extinguishment will remain relevant for actions and grants that are not covered by the confirmation of extinguishment or validation provisions of the Native Title Act. See an example of common law extinguishment and mining leases in Western Australia v Brown (2014) 88 ALJR 461.

The confirmation of extinguishment provisions 4.64 The Native Title Act confirms the past extinguishment of native title by acts which occurred prior to 1996 and which were undertaken by the Commonwealth: Pt 2 Div 2B. States and territories are authorised to legislate for extinguishment and partial extinguishment on the same basis: ss 23A(4), 23E, 23F, 23G, 23I. An ‘act’, in the context of affecting native title, is defined widely in s 226 to include most methods for the creation of rights and interests in land. It includes, inter alia, the making of legislation and the granting of licences, permits, authorities and instruments by the Crown or any other person. An act will ‘affect’ native title if it ‘extinguishes the native title rights and interests or if it is otherwise wholly or partly inconsistent with their continued existence, enjoyment or exercise’: s 227. 4.65 ‘Previous exclusive possession acts’ (PEPAs) ‘Previous exclusive possession acts’ permanently extinguish native title: ss 23A, 23C. They are defined in s 23B as: valid acts or validated acts (validated acts include both ‘past acts’ and ‘intermediate period acts’ which have been made valid under the validation provisions in Divs 2 and 2A of Pt 2 of the Native Title Act: see the discussion at 4.67–4.70 below); acts which occur on or before 23 December 1996 (the date of the Wik decision); acts which come within the type of tenures and grants specified: — scheduled interests (Sch I lists a number of interests, mostly leasehold interests, on a state-by-state basis, which comprise the scheduled interests);

—

private freehold; [page 84]

— —

leasehold interests conferring a right to exclusive possession; and construction of public works commenced on or prior to 23 December 1996.

4.66 ‘Previous non-exclusive possession acts’ (PNEPAs) ‘Previous non-exclusive possession acts’ extinguish native title only to the extent of inconsistency: ss 23A(3), 23G. They are defined in s 23F as: valid acts or validated acts (validated acts include both ‘past acts’ and ‘intermediate period acts’ which have been made valid under the validation provisions in Divs 2 and 2A of Pt 2 of the Native Title Act: note s 23G(3)); acts which take place on or before 23 December 1996 (the date of the Wik decision); and acts consisting of grants of non-exclusive pastoral and non-exclusive agricultural leases.

Validation of ‘past acts’ and ‘intermediate period acts’ 4.67 The Native Title Act provides for the validation of ‘past acts’ and ‘intermediate period acts’ that affected native title, that were done after the commencement of the Racial Discrimination Act 1975 (Cth), and that were invalid: Native Title Act Pt 2 Divs 2 and 2A ss 13A–22H. From the High Court’s interpretation in Ward, three possible scenarios could result from the impact of the Racial Discrimination Act 1975 (Cth) on government acts that affected native title and the subsequent validation by the Native Title Act. First, if a law is expressed in general terms, which remove the enjoyment of a human right or fundamental freedom in such a way

that the burden falls upon all racial groups equally, then there will be no discrimination and s 10(1) of the Racial Discrimination Act 1975 (Cth) is not invoked. No question of invalidity arises in this case and the validating provisions of the Native Title Act are not invoked. Second, if a law provides for the extinguishment or impairment of all property rights but only provides compensation for non-native title holders, such law will be discriminatory because it fails to confer the benefit of compensation in equal ways. In this case the Racial Discrimination Act 1975 (Cth) will confer the same rights (to compensation) on those whose native title was extinguished as the law does on those who held non-native title rights. Thus the Racial Discrimination Act 1975 (Cth) will operate to confer the benefit equally. Therefore, no invalidity results and the extinguishing act will be valid. Third, if the law extinguishes or impairs only native title but leaves other titles intact and unaffected, then this law will infringe upon the native title holders’ enjoyment of the fundamental right to be immune from arbitrary deprivation of property rights. Such a law will be discriminatory and invalid and any act done pursuant to that law will also be invalid. The Native Title Act will apply to validate such acts. Once validated, the Native Title Act prescribes the effect on native title. Past acts and intermediate period acts of the Commonwealth are validated by s 14. Sections 19 and 22F allow each state and territory to validate its past acts and intermediate period acts on the same basis. [page 85] 4.68 ‘Past acts’ The term ‘past acts’ has been defined to include the making, repeal or amendment of legislation before 1 July 1993 or any other act before 1 January 1994 where those acts have been invalid because of the existence of native title: s 228(2). Invalidity is generally brought about by inconsistency with the Racial Discrimination Act 1975 (Cth). As a rule of thumb, state actions pre-1975 are generally valid regardless of whether or not compensation has been provided for

extinguishment of native title. For Commonwealth actions to be valid, compensation has to be made under the ‘just terms’ provision in the Commonwealth Constitution. Again, as a general rule, all Commonwealth actions which extinguish native title without just terms are invalid acts. The definition of ‘past act’ has two elements: that of a cut-off date and that of invalidity. Thus, acts which have occurred in the past (prior to the cut-off dates, 1 July 1993 in the case of legislation and 1 January 1994 in the case of other acts, and after 1975) but which are valid under common law do not come within the definition of ‘past act’ and do not need to be validated. The implications of such valid acts on the extinguishment of native title are to be determined under the confirmation of extinguishment provisions and not the validation provisions of the Native Title Act: see Western Australia v Ward (2002) 213 CLR 1 at 111 [139]. Where acts are not dealt with under these provisions of the Native Title Act then the common law rules of extinguishment will apply. Some acts which may occur in the future may also come within the definition of ‘past act’. They are: options exercised on or after 1 January 1994 in exercise of a legally enforceable right created before the two earlier dates (ie, 1 July 1993 or 1 January 1994), whichever is relevant; and extensions or renewals or grants on or after 1 January 1994 of rights or titles arising from an earlier past act: s 228. 4.69 A categorisation of past acts is provided on a four-part system and the effect that the validation of a past act has on native title is determined by this: ss 229–232. The non-extinguishment principle applies to certain categories of acts. This principle provides that if an act is wholly inconsistent with native title, the native title remains in existence but is ineffective while the act is in operation; put simply, native title is totally frozen or suspended by a wholly inconsistent act but can revive once the act ends. If the act is only partly inconsistent with native title, then native title continues in existence in its entirety

but its effect is limited by the inconsistency; put simply, it is partially frozen or suspended by an inconsistent act: s 238. Table 4.1 is a simple representation of the categories of validation and the effect the past act has on native title. Table 4.1 Interest Category A past act: s 229 Grant of freehold; a commercial, agricultural, pastoral or residential lease; or the construction of a public work

Effect of Native Title Act Native title extinguished: s 15(1) (a), (b)

[page 86] Any grant to the Crown in any capacity, or legislation for the benefit of indigenous peoples or of a prescribed kind cannot be a category A past act Category B past act: s 230 Grant of a lease other than those in category A such as community or sporting group leases: s 230

Native title extinguished only to the extent of the inconsistency the lease may have with native title: s 15(1)(c)

Category C past act: s 231 Mining leases

No extinguishment of native title which has full effect after the expiry of the lease: s 15(1)(d)

Category D past act: s 232 Any other past act

No extinguishment of native title: s 15(1)(d)

4.70 ‘Intermediate period acts’ Amendments in 1998 inserted s 232A which created and validated a new category: the intermediate

period acts. There are three elements to the intermediate period acts. They must be: non-legislative acts; acts which took place between 1 January 1994 (the commencement of the original Native Title Act) and 23 December 1996 (the date of the Wik decision); and acts which adversely affected native title. This new category was thought necessary because of the 1996 Wik decision where the High Court decided that native title was not necessarily extinguished by pastoral leases. Prior to Wik certain actions were made under the mistaken notion that all leases extinguished native title. This meant that certain actions between the period after the enactment of the Native Title Act and before the Wik decision over land, where statutory leases had been previously granted, might not have complied with the provisions of the ‘future act regime’ and therefore might be invalid. This category of acts is restricted to acts done over lands that were previously subject to a valid grant of a freehold estate, a lease or the construction of a public work: s 232A(2)(e). This category of acts does not extend to land subject only to mining leases or acts done in relation to vacant Crown land: R H Bartlett, Native Title in Australia, 3rd ed, LexisNexis Butterworths, Sydney, 2015, p 561, para 21.10. Validation of intermediate period acts means that these acts are considered as valid and always to have been valid: ss 14(1), 22A. Classifications A to D of interests discussed in relation to past acts are similar to those for intermediate period acts. The main difference is that non-exclusive pastoral and agricultural leases are excluded from being category A intermediate period acts: s 232B. Any such nonexclusive lease would then fall into the category B intermediate period acts and extinguish native title to the extent of the inconsistency. The effect of validation is either to extinguish or suspend native title, depending on which classification applies: ss 232B–232E.

[page 87]

Prior extinguishment disregarded 4.71 Section 47 of the Native Title Act permits prior extinguishment to be disregarded in certain cases when native title is claimed. The cases where extinguishment will be disregarded include the following: Pastoral leases which are currently held by any of the native title claimants (or held on trust for any of the claimants or held by a company whose only shareholders are any of the claimants) who apply for a determination of native title. The ‘non-extinguishment principle’ (s 238 — discussed at 4.72 below) will apply to the grant of the lease or any prior dealing with the leased land if the claimants are found to have native title. Aboriginal freehold or Aboriginal leasehold land which is vested or reserved for Aboriginal or Torres Strait Islander peoples and is occupied by at least one of the native title claim group at the time the application is made for native title. Again the nonextinguishment principle (s 238) applies but the previous grants remain valid: s 47A. Vacant Crown land which is occupied by at least one of the native title claim group at the time the application is made for native title. This land must not be subject to a freehold or leasehold estate, any reservation, dedication or authority for public purposes or for other purposes or the subject of a resumption. Again the nonextinguishment principle (s 238) applies: s 47B.

Extinguishment in the ‘future dealings’ regime 4.72 The future dealings regime (discussed at 4.73 below) regulates legislation enacted after mid-1993, and other action taken after 1 January 1994. Extinguishment within this time frame is controlled by the Native Title Act. The general principle in the future dealings

regime is described as the non-extinguishment principle: s 238. Although an act is totally or partially inconsistent with native title, native title will continue and is suspended for the term of the interest. Once the interest ends native title revives and has full effect. The nonextinguishment principle applies to all permissible future acts. Extinguishment of native title in the future is restricted to: an agreed extinguishment with the native title holders, for example, in an indigenous land use agreement (Pt 2 Div 3); compulsory acquisition (s 24MD); future acts that are undertaken after an unopposed non-claimant application (ss 24FA–24FE); and acts pursuant to the confirmation of extinguishment provisions (Pt 2 Div 2B).

Future dealings regime for native title land Future dealings 4.73 The Native Title Act introduced a new regime to regulate future dealings with native title land where those dealings occurred after the enactment of the Act: [page 88] Pt 2 Div 3. In 1998, the amendments passed brought about significant changes to this regime. These changes allowed certain future grants and actions to prevail over native title; a reduction in the procedural rights of native title holders; and new limits to the right to negotiate.

‘Freehold test’ 4.74 A feature of the future dealings regime is the freehold equivalence status of native title. The freehold test enables ‘future acts’ (defined at 4.75 below) over native title land to be valid (subject to any right to comply with the right to negotiate — discussed at 4.76 below) if such acts could also be done over freehold, and similar procedural standards are met. Therefore, governments must deal with native title land in the same way that they deal with ‘ordinary title’; that is, freehold: s 253. Future acts which pass the freehold test include the compulsory acquisition of interests in land and the grant of mining or petroleum interests (as well as those specified in the Native Title Act). Any acts that fail to meet the freehold test must be validated by an agreement with the native title holders unless validated by a provision of the Native Title Act.

‘Future acts’ 4.75

The term ‘future act’ is defined to mean:

the making, amendment or repeal of legislation before 1 July 1993; acts that take place on or after 1 January 1994: Div 3 of Pt 2, ss 226 and 233(1)(a); and acts that affect or impact on native title to land or waters: s 233. (An act affects native title if it extinguishes native title rights or is wholly or partly inconsistent with the continued existence of native title: s 227.) Acts validated as ‘past acts’ and ‘intermediate period acts’ are by definition not future acts: s 233(1)(b), (2). Future acts are valid if they are permitted by the Native Title Act. If a future act affects native title, it will be valid if it is covered by the provisions of the Native Title Act and invalid if it is not covered by the Act: s 24AA(2). A future act will be invalid only to the extent that it affects native title. Legislative and executive actions will be valid

provided they requirements:

satisfy

the

following

‘permissible

future

act’

They must be non-discriminatory. There must be public notification of the act. A right to negotiation must be provided in certain circumstances, for example, the compulsory acquisition of native title for the purposes of conferring rights on a third party: ss 26(1)(c)(iii)(A) and 25(1)(b). Compensation must be paid. Except for permissible future acts, all other future acts are invalid to the extent that they affect native title. For all other purposes, these ‘impermissible’ future acts are valid: s 24OA. [page 89] Specific types of valid permissible future acts include: indigenous land use agreements (ss 24BA–24EB) (see 4.77); ‘pre-existing rights-based acts’ which refer to renewals and extensions of legally enforceable rights or arrangements entered into in good faith and either granted or made before 23 December 1996: ss 24IA–24IB. ‘Permissible lease renewals’, that is, renewals, regrants or extensions of a lease, licence, permit or authority (other than a mining lease (ss 26(1A), 26D)), where the original lease was granted on or before 23 December 1996: ss 24IA, 24IC, 24ID. The renewal must not create a larger proprietary interest or alter the character of the interest earlier created. For example, an earlier grant of a licence may not be ‘renewed’ in 1998 as a lease; building of public infrastructure such as roads and railways provided native title holders have reasonable access and sites of particular traditional significance are protected by law (s 24KA);

management of water, airspace and offshore resources (s 24HA); certain ‘primary production activities’ (ss 24GA–24GE and s 24GD); future acts involving the construction of public housing or other public facilities (s 24JAA introduced by the Native Title Amendment Act (No1) 2010); acts in reserved areas or in areas set aside for particular purposes (ss 24JA–24JB); low-impact future acts (s 24LA); certain offshore future acts: s 24NA; and future acts that have met the ‘right to negotiate’ process: discussed at 4.75.

Right to negotiate 4.76 The right to negotiate found in Pt 2 Div 3 Subdiv P of the Act is a special measure to advance the human rights of those who historically have been disadvantaged groups. Registered native title holders and registered claimants have the right to negotiate with government (and the proposed grantee party) before governments perform certain types of future acts over native land: see Pt 2 Div 3 Subdiv P ss 25–29. The right occurs in essentially two situations: where a right to mine in an onshore place is created or extended, unless it is extended under an option to renew. This provision relates to grants of rights of exploration, extraction and quarrying; and where there is compulsory acquisition of native title and interests for the purposes of conferring rights in favour of non-government parties. The legislative framework for the right to negotiate is extremely complicated and students are not expected to know the details. An

important aspect of the right is [page 90] that all parties must negotiate ‘in good faith’: ss 31, 31(1); see also Walley v Western Australia (1996) 67 FCR 366; Coppin v Western Australia [1999] FCA 931; Strickland v Minister for Lands (WA) (1998) 85 FCR 303 at 320; FMG Pilbara Pty Ltd v Cox (2009) 175 FCR 141; Xstrata Coal Queensland Pty Ltd v Mark Albury (Karingbal # 2) and Brendan Wyman (Bidjara People) [2012] NNTT 93. A government party is obliged within a certain time to commence negotiations, provide information to the native title claimants of the proposed activity, and respond in a reasonable time to communications: see Coppin at [21]; Western Australia v Njamal People (1996) 134 FLR 211 at 224. The right to negotiate does not apply to actions taken under an indigenous land use agreement, or other acts validated under the Native Title Act; for example, the provision of public infrastructure: ss 24EB(1)(c), 26(2)(a).

Indigenous land use agreements (ILUAs) 4.77 The Native Title Act (as originally enacted) provided for agreements between native title holders and others seeking to use land. In 1998, amendments to the Act provided for increased legislative certainty for indigenous land use agreements: Pt 2 Div 3 Subdivs B s 24BA, C, D, E.

Types of ILUAs 4.78 A number of types of ILUAs can be reached. These each have their own procedure and are termed: (a) body corporate agreements; (b) area agreements; and

(c) alternative procedure agreements.

Body corporate agreements 4.79 These agreements are to be used where native title has been determined over the whole of an area and all native title holders are identified. There is usually no difficulty in entering into an agreement where native title has been determined, and a registered body corporate is able to negotiate on behalf of native title holders. These agreements can deal with any native title matter including the extinguishment or suspension of native title: ss 24BA–24BI.

Area agreements 4.80 These agreements may be entered into where native title has not yet been determined. The procedure is to ensure that as far as possible indigenous peoples are appropriately represented. If registered native title claimants or native title bodies corporate exist, then they are to be party to the agreement. Otherwise, claimants who are not registered or the Native Title Representative Body (discussed at 4.84 below) for the area must be parties: s 24CD. These agreements can deal with extinguishment or suspension of native title as well as other native title matters such as altering the effects of the validation provisions or the grant of a lease over native title land: ss 24CA–24CL. [page 91]

Alternative procedure agreements 4.81 These agreements are to be used where native title has not yet been determined. Where arrangements are large-scale or regional, the alternative procedure agreements are appropriate. It may not be practicable to identify all persons who may hold native title within the region. To safeguard indigenous interests, all registered native title body corporates and all Native Title Representative Bodies must be

parties. These agreements cannot be used to extinguish native title as not all possible native title holders are parties. Such agreements can be used to guarantee that indigenous peoples are on a board of management or that there is a framework for the making of other agreements about native title: ss 24DA and 24DM.

Types of matters in an ILUA 4.82 An ILUA generally must relate to matters involving native title, although it could include any conditions that are not illegal. An ILUA can include the manner of exercise of any native title rights in the area, compensation, the doing of future acts, the validation of future acts and the extinguishment or surrender of native title. Only the first two types of agreements (see 4.79 and 4.80 above) are able to extinguish native title through express surrender: ss 24BB(e), 24CB(e), 24DC. A number of advantages come with reaching an ILUA. The terms of an ILUA can prevail over provisions in the Native Title Act that deal with the validity of future acts: s 24AB(1). For example, an ILUA will enable a mining lease to be validly granted without undertaking the right to negotiate process: s 26(2). Additionally, a registered ILUA can validate future acts which have been invalidly undertaken.

Registration of ILUAs 4.83 The details of the ILUA must be entered onto the Register of Indigenous Land Use Agreements administered by the Registrar of the National Native Title Tribunal before the agreement gains the benefits of the Native Title Act, for example contractual effect, legal certainty, and validation of previous and proposed acts: s 24EA. All three types of agreements must be registered. A party to an ILUA may, subject to the agreement of the other parties, apply to the tribunal to have the agreement registered: ss 24BG, 24CG, 24DH. Generally, public notice must be given of the proposed registration of the agreement. The Native Title Act permits objections against the registration of the ILUA

on certain grounds: ss 24BI, 24CI, 24DJ. A limited right to object for the first two types of ILUA agreement exists; however, the scope of objections is broader for the third type of ILUA. Unless the National Native Title Tribunal is satisfied those grounds are made out, it cannot register the ILUA. The Registrar may refuse registration of an Area ILUA unless the ILUA has been certified by all the representative bodies for the area (s 24CG(3)(a)), or a statement that all reasonable efforts to identify all native title holders have been made is included in the application for registration (s 24CG(3) (b)). Additionally, those identified as holding or potentially holding native title must authorise the making of the agreement through traditional or agreed decisionmaking methods: ss 24CG, 203BE. On the question of authorisation, see QGC Pty Limited v Bygrave (2011) 199 FCR 94. Once registered, an ILUA is legally binding: s 24EA. Registration means that the ILUA has contractual effect on the parties to the agreement. [page 92] While registered, the agreement will also bind all native titleholders in the area covered by the agreement whether they are parties to the agreement or not: s 24EA(1)(b). See generally regarding registration of ILUAs: ss 24BG–24BI; 24CG–24CL; 24DH–24DM.

Native Title Representative Bodies (NTRBs) 4.84 When the Native Title Act was passed it was recognised that there was a need for an indigenous organisation to have a role in the managing of native title claims and the processes under the Act, but not to be involved in the administration of the land itself. The Native Title Act provides for the appointment and unique role of the Native Title Representative Bodies (NTRBs) in relation to native title matters: Pt 11 Div 3. A number of NTRBs have been recognised under the Native Title Act and these bodies can act with respect to matters that relate to land or waters within the area for which the body is

recognised: s 203BB(3). These NTRBs have a number of functions and powers under the Act. NTRBs prepare and research native title claims including taking a role in the notification and identification of claimants, coordinating claims, assisting in resolving any disagreements among claimants, minimising overlapping claims and certifying applications for determinations. The latter involves ensuring that the native title claimant has authority to make the application and that the application identifies all persons in the native title claim group. Once the claim is prepared, NTRBs can represent Aboriginal people in negotiations with industry bodies and government agencies. Additionally, NTRBs are required to be parties to most of the ILUAs that are signed in their area: ss 203B–203BK. NTRBs also have accountability, administration and organisational roles.

Compensation and fiduciary duty Compensation at common law 4.85 The majority of the court (4:3) in Mabo (No 2) (1992) 175 CLR 1 decided that compensation would not be payable prior to the Racial Discrimination Act 1975 (Cth): per Brennan J (with Mason CJ and McHugh J concurring and Dawson J dissenting) at 15. The minority judges were of the view that where extinguishment was wrong, compensation was required regardless of whether it occurred prior to the Racial Discrimination Act 1975 (Cth) or not: per Deane and Gaudron JJ at 92, 111–12, Toohey J at 193–6. Consequently, the Racial Discrimination Act 1975 (Cth) is now the main justification for the argument for compensation. The operation of ss 9 and 10 of the Act provides protection to native title holders equal to that of other title holders of land, regardless of race.

Compensation under the Native Title Act (Cth) 4.86 The Native Title Act expressly provides for a right to compensation upon extinguishment, loss, diminution or impairment of

native title, in accordance with the provisions in Pt 2 Div 5: s 51(1). Compensation on ‘just terms’ is payable under Pt 2 Div 5 of the Native Title Act for the extinguishing effects of the confirmation provisions. However, compensation under the confirmation provisions will be paid [page 93] only to the extent (if any) that native title rights and interests have not previously been extinguished at common law: s 23J(1). Validation of past acts or intermediate period acts which extinguish or impair native title generally gives rise to compensation: ss 48–54. Compensation for past acts and intermediate period acts in Categories A and B will be payable on ‘just terms’: ss 17(1), 20, 51, 22D, 22E. Compensation for past acts and intermediate period acts in Categories C and D will be paid on one of two grounds. First, if compensation would have been payable under the current law if ‘ordinary title’ was held, then it will be paid on the assumption that the rights held by native title holders to land or waters are equivalent to rights under ordinary title: ss 17(2), 20, 51(3), 253. In this case, a test of ‘similar compensable interest’ must be satisfied: s 240. Second, compensation will be on the basis of ‘just terms’ if the act could not have been done over ‘ordinary title’: ss 17(2)(a), 17(3), 20, 53(1). Permissible future acts, which have not occurred through compulsory acquisition of native title, are also subject to compensation: see, for example, s 24FA. 4.87 The maximum compensation payable on the extinguishment of native title is capped at the equivalent payable on the compulsory acquisition of a freehold estate over the same land or waters: s 51A. Despite this freehold compensation cap, s 51A(2) provides that s 51A is subject to s 53 which stipulates the Commonwealth constitutional ‘just terms’ compensation requirement: Commonwealth Constitution s 51(xxxi). Compensation may be both monetary and non-monetary. Non-monetary compensation may take the form of the transfer of property or the provision of goods or services: ss 51(6) and 79. Any

compensation payable under the Native Title Act will be paid by the government (either Commonwealth, state or territory) to which the act is attributable: s 23J(2), (3). 4.88 Prior to the Federal Court handing down judgment in De Rose v State of South Australia [2013] FCA 988, no Australian court had awarded compensation in relation to the loss, extinguishment or impairment of native title under the Native Title Act. In the first compensation case for extinguishment of native title under the Native Title Act (Jango v Northern Territory (2006) 152 FCR 150; on appeal (2007) 159 FCR 531), the claimants failed to meet the evidentiary requirements of proving native title itself, thus no compensation was determined. 4.89 The first case in Australia to award compensation for the loss, extinguishment or impairment of native title, De Rose v State of South Australia [2013] FCA 988, unfortunately provides little guidance on how compensation is calculated. In that case the parties applied for a consent determination, having agreed by way of settlement as to the amount of compensation. Mansfield J in granting the orders did not reveal the amount of compensation, instead including a confidential copy of the compensation agreement. His Honour, in explaining his reasons for redacting the agreement, noted (at [82]): The disclosure of that figure, where there are presently no decisions addressing in a reasoned way how compensation under the [Native Title Act] is to be assessed, may create expectations either on the part of other applicants or on the part of other States or Territories in other matters which private consensual agreement should not produce. In addition, the disclosure of that figure may be seen to set a tariff for

[page 94] other compensation claims that it would be quite inappropriate to set as each set of circumstances will necessarily be different.

Fiduciary duty

4.90 A fiduciary duty arises from a relationship recognised and enforced by equity. In the United States and in Canada, the courts have identified native title as a source of fiduciary obligations owed by governments to groups of indigenous inhabitants of those countries: see R Blowes, ‘Governments: Can you Trust Them with your Traditional Title?’ in Essays on the Mabo Decision, Law Book Co, Sydney, 1993, p 134. 4.91 Whether a fiduciary duty or trust obligation is owed by the Crown to native title holders has yet to be determined in Australia. Most of the members of the majority in Mabo (No 2) (1992) 175 CLR 1 referred to equitable enforcement of native title only in passing. Only Toohey J explored the issue in detail and found that a fiduciary duty arises on two grounds: at 203–5. First, on the basis that the Crown has the power to alienate land subject to native title and that native title is inalienable except to the Crown; ‘the power and the corresponding vulnerability’ give rise to a fiduciary obligation on the part of the Crown. Second, the assumption by the Crown of the responsibility for the welfare of the Meriam people, for example, by the creation of reserves, was a source of fiduciary duty. There are indications that the High Court is unwilling to find a general fiduciary duty on the part of the Crown. In Wik Peoples v Queensland (1996) 187 CLR 1 (Wik), it was argued that the Queensland Government was in breach of fiduciary duties it owed to the native title holders by entering into the ‘Comalco Agreement’ and by granting a mining lease pursuant to that agreement. The High Court in Wik did not settle the issue of fiduciary obligations, except arguably in the case of agreements and activities which were the subject of the Wik litigation. Brennan J in Wik (at 83) considered that ‘the proposition that the Crown is under a fiduciary duty to the holders of native title to advance, protect or safeguard their interests while alienating their land is self-contradictory. The sovereign power of alienation was antipathetic to the safeguarding of the holders of native title’. However, in Thorpe v Commonwealth (No 3) (1997) 71 ALJR 767 at 774, Kirby J stated that ‘whether a fiduciary duty is owed by the Crown to the indigenous peoples of Australia remains an open

question’. Also in Bodney v Westralia Airports Corporation Pty Ltd (2000) 109 FCR 178 at [66], Lehane J considered that the failure of Australian courts to find a fiduciary duty ‘does not mean that circumstances will not arise in which the Crown has fiduciary duties, owed to particular indigenous people, in relation to the alienation of land over which they hold native title’. French CJ also considered that an interpretive principle, under which laws impacting on the rights of indigenous people should be construed by reference to fiduciary considerations, where such a construction is open, is possible.5 4.92 If a fiduciary duty is recognised, then any breach of such duty raises the question of a suitable remedy. One commentator suggests that a failure to recognise [page 95] a fiduciary duty does not adversely affect the position of indigenous Australians as a fiduciary duty will not extend the protection already found in the Racial Discrimination Act 1975 (Cth): see comments by F Brennan, ‘Mabo and the Racial Discrimination Act’ in Essays on the Mabo Decision, pp 95–7.

Statutory land rights 4.93 Another scheme of indigenous land holding exists in Australia. This is known as ‘land rights legislation’ or ‘statutory title’ and is different from, and generally independent of, native title. Land rights legislation provides statutory schemes for the transfer of land to Aboriginal peoples. Prior to the recognition of native title in Australia, the first major land rights legislation had been enacted by the Commonwealth Government; this was the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). Most Australian states have enacted land rights legislation: Aboriginal Land Rights Act 1983 (NSW); Aboriginal Land Act 1991 (Qld); Torres Strait Islander Land

Act 1991 (Qld); Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA) (formerly Pitjantjatjara Land Rights Act 1981); Maralinga Tjarutja Land Rights Act 1984 (SA); Aboriginal Lands Act 1970 (Vic). Some land rights legislation allows specific grants of land to be made to Aboriginal groups, while other land rights legislation provides for a system for the making of Aboriginal claims to land. The grounds on which indigenous title can be granted vary in the different legislative models and range from traditional, cultural and spiritual connection, to historical association and economic needs, and to availability of land.

Problem (The following problem is based on a totally fictional group of people and places.) In 2014, the Trunukel peoples, a group of indigenous Australians, lodged an application for determination of native title pursuant to the Native Title Act 1993 (Cth) over some 2000 hectares of land and waters around Murky Waters, a small coastal town in the state in which you live. The group has traditionally used the land and waters for hunting, gathering food and fishing. Although they moved over the land on a seasonal basis, in the wet months they established settlements near the mouths of rivers on the land. Their dreamtime stories relate to many specific sites on the land and to sea areas around Murky Waters. In the 1940s, the Trunukel peoples were removed from the land into a settlement about 50 kilometres north except for a group of families who moved to the town of Murky Waters and a few who worked as stockmen in the pastoral industry. Although removed from the land, the Trunukel peoples maintained a strong spiritual connection to the land through their dreamtime stories and songlines, and continued to pass on their laws and customs to each new generation. Each year the Trunukel elders, including the elders from both the settlement and the town of Murky Waters, meet on the sacred sites in the claim area for ceremonies and initiations. The group of families in

[page 96] Murky Waters have regularly continued their traditional activities over the land and always supplemented their diet with bush food and the products of their hunting and fishing on their traditional lands. The Trunukel peoples living in the settlement have also revisited the traditional lands at certain times of the year for seasonal fishing and hunting. Today the Trunukel peoples cross their traditional lands in four-wheeldrive vehicles, hunt kangaroos with guns and have traded spears for modern fishing nets. The local Murky Waters historical society holds a series of letters dating from 1830 to 1839 by the first pastoralist who lived in the area. The pastoralist described in some detail the daily lives of an Aboriginal society including their hunting practices, the making of dugout canoes, fishing, burial practices, their ‘midens’ and corroborees. This Aboriginal society lived close to the river estuaries in the area that the Trunukel peoples have identified as their traditional lands. The western part of the land claimed is subject to a pastoral lease granted in 1922 for ‘pastoral purposes only’. This lease, which is currently held by the Wilber family, is of a similar kind to the Holroyd and Mitchellton pastoral leases in the Wik case. The lease is for a period of 99 years and will expire in 2021 when the land will revert to the Crown. As a condition of the lease a wool spinning factory was built on about one hectare of land. Because of the marginal nature of the land and today’s low wool price, the leaseholders are not expected to desire renewal of the lease. There are a few sacred sites situated on this part of the land, which all the Trunukel peoples have visited from time to time. Part of the land claimed includes 55 hectares to the south of Murky Waters. In 1976, this parcel of land was subject to a grant in fee simple to Drover. Thirteen years later, under state

land acquisition legislation, the Crown acquired the land granted to Drover for the purposes of a quarantine station. This station was not built. Then in 2008, before the application was lodged, the land was subdivided by the state into 550 parcels. A Crown lease was granted over each of those parcels to Terra Firma, a development company. Discuss the potential for success of the claim in a native title determination under the Native Title Act 1993 (Cth), and advise the claimants on the difficulties of proving their claim.

Answer plan The following answer is couched in general terms to enable discussion by students in all states. References to legislation are to the Commonwealth Native Title Act 1993 and, where relevant, it is expected that you will incorporate in your answer references to relevant state legislation: Native Title Act 1994 (ACT); Native Title (New South Wales) Act 1994 (NSW); Validation (Native Title) Act 1994 (NT); Native Title (Queensland) Act 1993 (Qld); Native Title (South Australia) Act 1994 (SA); Native Title [page 97] (Tasmania) Act 1994 (Tas); Land Titles Validation Act 1994 (Vic); Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA). 1. Has native title been extinguished over the lands in question? If native title has been validly extinguished in the past then it will be incapable of being ‘recognised’ by common law which is a requirement of s 223(1)(c) of the Native Title Act. Thus the

claimants should first undertake a tenure history review of the claim area to determine if any tenures extinguished or impaired any native title rights. The question then is what effect, if any, on native title have the following tenures had — the pastoral lease and the fee simple granted to Drover? Pastoral lease granted in 1922 To determine whether the pastoral lease extinguishes or impairs native title first consider the effect of the Confirmation of Extinguishment provisions of the Native Title Act: Pt 2 Div 2B. Will this pastoral lease meet the definition of a previous nonexclusive possession act (PNEPA) in s 23F of the Native Title Act? Section 23F defines a PNEPA as: A valid act. The pastoral lease is a valid act as the grant was made prior to the Racial Discrimination Act 1975 and therefore not subject to the validation regime in Divs 2 and 2A of Pt 2 of the Native Title Act. An Act which takes place on or before 23 December 1996. This lease was granted in 1922. An act which consists of the grant of a non-exclusive pastoral lease as defined in s 248B. This lease is similar to the Holroyd and Mitchellton pastoral leases in Wik Peoples v Queensland (1996) 187 CLR 1. The High Court in Wik determined that unlike common law leases, statutory leases did not always confer exclusive possession on lessees. Despite the terminology of the grant, pastoral leases are statutory interests which are limited to giving the grantees security of tenure over large tracts of land while ensuring that these areas are not locked up in freehold grants: at 110, 152, 172, 229. Thus, the lease in this case is a nonexclusive pastoral lease as it would not have involved a grant of exclusive possession. Therefore, this pastoral lease would meet the definition of the

PNEPA. A PNEPA will extinguish native title to the extent of inconsistency: ss 23A(3), 23G. To determine the meaning of the ‘extent of inconsistency’ refer to the common law interpretations: Wik and Western Australia v Ward (2002) 213 CLR 1. The test to determine whether a particular exercise of power has extinguished native title is to compare the legal nature and incidents of the existing native title and the rights that have been granted by the pastoral lease. This is the ‘inconsistency of rights’ test proposed by Kirby J in Wik and accepted by later decisions, for example, Ward. If there is any inconsistency between the lease and native title rights, the rights created by the statute/lease will prevail to the extent of the inconsistency. The grant of a non-exclusive pastoral lease will extinguish any exclusive native title rights, including a native title right to control access to or use of the land: Ward at 165–6. As rights under the granted lease were clearly limited to those ‘for pastoral purposes only’, it is likely that native title rights such as hunting (except for farmed animals [page 98] such as cattle or sheep), gathering food, fishing, and use of the land for ceremonial purposes are not extinguished and the native title application will succeed. In Wik, the leases were also expressed to be ‘for pastoral purposes only’. However, the 1922 lease contains a condition that a wool spinning factory be built on one hectare of land. Extinguishment questions must be determined by measuring whether ‘the rights are inconsistent’ (Ward at [78], [82]; Western Australia v Brown (2014) 88 ALJR 461). The ‘inconsistency of incidents test’ determines whether a grant of rights to a third party extinguishes native title rights. If two sets

of rights, that is the rights granted and the native title rights and interests, are inconsistent then native title rights are extinguished to the extent of inconsistency. For there to be inconsistency, the existence of one set of rights would necessarily have to imply the non-existence of the other set of rights. The question of inconsistency is to be determined at the time of the grant of the relevant mineral lease. No degrees of inconsistency of rights exist. This is the standard by which extinguishment will be assessed at common law. Could native title continue to exist over the specific portion of land where the wool spinning factory has been built? The question is whether subsequent development extinguishes native title? Previously the Full Federal Court in De Rose v South Australia (No 2) (2005) 145 FCR 290 applied the inconsistency of incidence test and found that because pastoral lease granted rights to construct houses, sheds and other improvements that (when exercised) were inconsistent with native title rights and interests, the grant of those rights should be taken to have extinguished the native title rights and interests. The High Court in Brown unequivocally held that the decision in De Rose (No 2) should not be followed. The question is not the manner in which a right is exercised, but the right itself; that is the crucial issue. The subsequent exercise of rights under a statutory grant cannot effect extinguishment. Thus native title rights have not been completely extinguished by the grant of the pastoral lease. Following the High Court’s reasoning in Brown, the rights of the native title holders may be impaired but are not extinguished by the exercise of the rights pursuant to the building of a wool spinning factory. Accordingly, a native title application over the pastoral leased lands will be allowed. Grant in fee simple in 1976 To determine the extinguishing effect of this grant, first consider the effect of the confirmation of extinguishment

provisions of the Native Title Act: Pt 2 Div 2B. Will this fee simple meet the definition of a previous exclusive possession act (PEPA) in s 23B of the Native Title Act? Section 23B defines a PEPA as: A valid act. The fee simple is a valid act as ‘valid’ includes validation under Divs 2 and 2A of Pt 2 of the Native Title Act. The grant of fee simple has been validated as a ‘past act’ in category A: ss 15(1), 229. This is because the grant of a fee simple in 1976 is a ‘past act’ as it took place post 1975 and prior to 1 January 1994 and it would have been valid if native title did not exist: Div 2 ss 15, 228(2). Invalidity occurs due to inconsistency with the Racial Discrimination Act 1975 (Cth). An act which takes place on or before 23 December 1996. The grant was made in 1976. [page 99] An act which consists of a freehold estate: s 23B(c)(ii). Thus the fee simple will meet the definition of a PEPA. Any native title interests on the fee simple land will be completely extinguished by this PEPA: Native Title Act ss 23A(2), 23C. (Note that because s 23C applies then s 15 — dealing with the effect of the validation on native title — is not applicable to this grant: s 23C(3).) The High Court in Fejo v Northern Territory (1998) 195 CLR 96 held that once native title was extinguished it was necessarily at an end and could not be revived if that land came to be held again by the Crown. This is so even if the traditional owners in fact continue with their traditional connection with the land and continue to observe and acknowledge their traditional laws and customs. Therefore, the continued use of the land by the Trunukel

peoples is not relevant. Because native title has been extinguished over the 55 hectares, the subdivision of the land and Crown leases over the subdivided land to Terra Firma are not subject to any native title claim. No native title can be claimed over this parcel of land. Conclusion In none of the above situations does there appear to be evidence to justify disregarding any prior extinguishment of native title in accordance with ss 47, 47A and 47B of the Native Title Act. Accordingly, the native title claim area could include land subject to the pastoral lease together with any vacant Crown land. (The above is subject to all of the grants being valid at law, apart from the existence of native title.) 2. Can native title be proven to exist where it has not been extinguished? The foundation of any native title claim is establishing proof that the claimant group has by its traditional laws and customs a connection with the traditional land or waters in accordance with s 223 of the Native Title Act as interpreted by the High Court in Yorta Yorta Aboriginal Community v Victoria [1998] FCA 1606. In relation to the ‘claim area’ the native title claimant group must establish certain matters to prove native title and this can be achieved with the assistance of expert evidence from anthropologists, historians and linguists: see also s 82. The elements to be established include: Society. The claimants must establish that there was a society, group or clan — that is, ‘a body of persons united in and by its acknowledgment and observance of a body of laws and customs’: s 223(1)(a); Yorta Yorta at [49]. Traditional laws and customs. The claimants must establish a normative body of laws and customs (the traditional laws

and customs) pursuant to which native title rights and interests are held in the claim area: s 223(1)(a); Yorta Yorta at [44]. It will not be sufficient for the laws and customs under which the rights and interests are held to be merely observable patterns of behaviour. The laws and customs must have a normative content; that is, they must provide a standard which regulates the way the society lives: Yorta Yorta at [42]. Connection to the land and the nature and content of the rights and interests. The claim group must demonstrate that by the traditional laws acknowledged and the traditional customs observed by the peoples concerned, they have a ‘connection’ with the land and waters: s 223(1)(b); Ward at [64]. This requires [page 100] that the claimants: (i) particularise and identify the nature and content of the traditional rights and interests held pursuant to the traditional laws and customs; and (ii) demonstrate how through the traditional laws and customs the claim group has a connection with the land: Yorta Yorta at [56], [79], [83]–[89]. All of the above elements must be demonstrated to have existed in pre-sovereignty times, have continuity from sovereignty to the present and still exist today. Pre-sovereignty times In this period it is essential to show that at the time of sovereignty there was a society which was united in observing the ‘traditional laws and customs’. The nature and content of these traditional laws and customs will require identification as will the nature and content of the native title rights and

interests held at this time. If traditional use of the land can be found in early times but cannot be traced to sovereignty in 1788 (or the relevant date of sovereignty), then use of the land back to the date of sovereignty may be inferred: Mason v Tritton (1994) 34 NSWLR 572 at 583, 588–9. On the facts there appears to be evidence in a series of letters by the first pastoralist of the Aboriginal society living in the claim area as far back as the 1830s. The High Court in Yorta Yorta certainly placed reliance on the available historical evidence. Arguably, because of the evidence of the Aboriginal society in the letters, the courts will draw inferences that this society was in existence at the time of sovereignty. Continuity from sovereignty to present times In this time frame it is important to show that the society from pre-sovereignty times has continued its identity and existence from generation to generation, in accordance with the traditional laws and customs, to present times. It is also essential to establish that every succeeding generation has continued to observe and acknowledge the traditional laws and practices and that this observance and acknowledgment has been ‘substantially uninterrupted’ since sovereignty. On the facts there would seem to be evidence of generations of elders meeting for ceremony and visiting sacred sites. There is also evidence that generations of the members of the society have continued to observe and acknowledge their traditional laws and customs and carry out traditional activities on the traditional lands. The present day The native title claim group must establish that the society still exists today and that the claimant group, as a whole, continues to acknowledge and observe the traditional laws and customs. It is possible for native title to be held by one community comprising multiple groups: De Rose v State of

South Australia (2003) 133 FCR 325 at [223]; De Rose (No 2) at [63]. It is possible that multiple groups, living in different locations, form part of the same society where the members of the society abide by the same laws and customs: Sampi v Western Australia [2005] FCA 777; Sampi v Western Australia (2010) 266 ALR 537. The native title claim group must identify and particularise the nature and content of the traditional laws and customs observed by the members of the claim group; for example, demonstrating a shared body of beliefs, songs and dreamtime stories, [page 101] shared sacred rituals and ceremonies. These laws and customs must be shown to have a normative content; that is, they must provide a standard which regulates the way the society lives. Simply hunting or fishing to obtain supplements to their food supply does not constitute evidence of the observance of traditional laws and customs. The claim group must show that the traditional laws and customs, which support the native title rights, are presently acknowledged and observed in substantially the same form. Adaptations and changes in the manner of carrying out these traditional laws and customary practices are permissible. For example, it is irrelevant that vehicles are used to traverse the land and that guns are used to hunt kangaroos: Daniel v Western Australia [2003] FCA 666. The use of a modern fishing net will not prevent a claim of traditional Aboriginal fishing: Stevenson v Yasso [2006] QCA 40 at 49. The claim group must establish that by those laws and customs still observed today they have a connection with the land. The relocation of the community will not destroy their

connection with the land as such connection is not dependent on continuing physical occupation. Nothing in s 223(1)(b) requires a physical connection: Ward at [64]; Worimi (aka Gary Dates) v Worimi Local Aboriginal Land Council (2010) 181 FCR 320, at 337 [87] confirming ‘that: connection may be mainly spiritual rather than physical; it may have evolved over time to a less specific use of all or many parts of that land; it may not involve physical access to each and every part of the land’. The claimant group must also show that by the traditional laws and customs that are still observed the claim group has rights and interests in the claim area. This requires them to identify their native title rights and interests such as hunting, gathering and fishing and ceremonial native title rights. Finally, it should be shown that native title has not been extinguished (see the discussion above) and that it is not otherwise recognisable at common law: s 223(1)(c). Conclusion Where the evidence substantiates the above then the elements of proof will be satisfied. In relation to the claim area lands where native title has not been extinguished, a native title determination under the Native Title Act is likely to succeed.

Further discussion Application of the rules regarding extinguishment is complex. The following extinguishment flow chart and notes in Figure 4.1 may assist in determining the effect of certain dealings, acts or grants in relation to native title. [page 102]

Figure 4.1

Notes 1. Review the ‘dealing’ Is it a Commonwealth or state dealing? (Note: The word ‘dealing’ is used here to include all ‘acts’ within s 226 of the Native Title Act such as legislation and grants.) — If it is a Commonwealth dealing, then apply the Native Title Act. — If it is a state dealing, then apply the complementary state legislation (see 4.67 above). (Note: references in these notes are to the Native Title Act only and references to your relevant state will need to be incorporated.) Note the date on which the dealing occurred: — If the dealing took place after 23 December 1996 (the date of the Wik decision), then refer to the future dealings regime provisions.

—

If the dealing took place prior to 23 December 1996, then refer directly to the confirmation of extinguishment provisions.

2. Future dealings regime Refer to Pt 2 Div 3 of the Native Title Act (see 4.73–4.75 above). Review the Native Title Act to determine if dealings occurring on or after 1 January 1994 are valid or invalid. [page 103] Future acts are valid if permitted by the Native Title Act. Future acts will be invalid to the extent they affect native title and are not covered by the Native Title Act but valid for all other purposes: ss 24AA(2), 24OA, 233, 227. Note that an invalid future act could be validated pursuant to an ILUA: s 24AA(3). The non-extinguishment principle generally applies to native title in the future dealings regime: s 238.

3. Confirmation of extinguishment provisions Refer to Pt 2 Div 2B of the Native Title Act and see 4.64 above. (a) PEPA (previous exclusive possession act) (see 4.65 above) Does the dealing meet the definition of a PEPA: s 23B? — Is it valid or validated? (See valid/invalid but validated below.) — Did it take place on or before 23 December 1996? — Is it a scheduled interest? — Is it a private freehold, exclusive leasehold or public works? If it is a PEPA, then the dealing will totally extinguish native

title: Native Title Act ss 23A, 23C. (b) PNEPA (previous non-exclusive possession act) (see 4.65 above) Does the dealing meet the definition of a PNEPA: s 23F? — Is it valid or validated? (See valid/invalid but validated below.) — Did it take place on or before 23 December 1996? — Is it a non-exclusive possession pastoral or agricultural lease? If it is a PNEPA then the dealing will extinguish native title to the ‘extent of inconsistency’: ss 23A, 23G. Review what is meant by the ‘extent of inconsistency’ at common law: Wik, Ward and Brown. Exception: A pastoral lease validated as a category A past act (Pt 2 Div 2 ss 15, 229) totally extinguishes native title: s 23G(2).

4. Neither a PEPA nor PNEPA The confirmation of extinguishment provisions in the Native Title Act do not apply. Determine if the dealing is valid or invalid (but could be validated under the Native Title Act).

5. Valid and invalid dealings To determine if the dealing is valid or invalid, review the High Court’s test regarding validity in Ward regarding the application of the Racial Discrimination Act 1975 (Cth). (See above at 4.67.) [page 104]

Note the date when the dealing occurred — whether prior to or after 31 October 1975 (the date of the Racial Discrimination Act 1975 (Cth)). (a) Valid dealings Dealings occurring prior to 1975 will generally be valid, despite the existence of native title. The validation provisions of the Native Title Act (Pt 2 Divs 2 and 2A) do not apply to valid grants. If the dealing is a PEPA or PNEPA, then its effect on native title will be determined by the confirmation of extinguishment provisions: ss 23C, 23G. If the dealing is neither a PEPA nor a PNEPA, then its effect on native title will be determined by the common law. (See, for example, Brown in relation to mining leases.) (b) Invalid dealings Invalidity generally occurs because of the existence of the Racial Discrimination Act 1975 (Cth). If the dealing is invalid for reasons other than the existence of native title, then it will not be validated under the Native Title Act. Invalid dealings have no effect on native title. (c) Invalid but validated dealings Dealings occurring post-1975 will generally, because of the existence of native title, be invalid. If the dealing is invalid because of the existence of native title then it will be validated by the Native Title Act: Pt 2 Divs 2 and 2A, ss 228(2)(b), 232A(2)(c). Determine if the dealing was validated as a ‘past act’ or an

‘intermediate period act’ (see below): ss 15, 22B. (i) Past act Refer to Pt 2 Div 2 of the Native Title Act (see 4.68–4.69 above). Does the dealing meet the definition of a ‘past act’: s 228? Does the dealing adversely affect native title: s 228(2)? Was it undertaken post-30 October 1975 but prior to 1 July 1993 in the case of legislation, or prior to 1 January 1994 in the case of grants? If so, then the dealing is validated by the Native Title Act and the effect of validation on native title is either to extinguish or suspend native title and is determined by the past act provisions: ss 15, 229– 232. [page 105] Note: If the past act is also a PEPA or PNEPA, then the effect of the dealing on native title will be determined by the confirmation of extinguishment provisions (ss 23C, 23G) with the exception of pastoral and agricultural leases (category A past acts): ss 23G(2), 15. (ii) Intermediate period act Refer to Pt 2 Div 2A of the Native Title Act (see 4.70 above). Does the dealing meet the definition ‘intermediate period act’: s 232A?

of

an

Does the dealing adversely affect native title: s 232A(2)(c)? Was it undertaken after 1 January 1994 but prior to 23 December 1996? Is it a non-legislative dealing? Was the dealing done over freehold or leasehold, or was the dealing the construction of public works? If so, then the dealing is validated by the Native Title Act and the effect of validation on native title is either to extinguish or suspend native title and is determined by the intermediate period act provisions: ss 22B, 233B–232E. Note: If the intermediate period act is also a PEPA or PNEPA, then the effect of the dealing on native title will be determined by the confirmation of extinguishment provisions: ss 23C, 23G. Note: Section 47 of the Native Title Act on past extinguishment can be disregarded in certain circumstances when a native title claim is made. 1.

2. 3.

4. 5.

The concept was recognised in the 19th century in the United States of America and New Zealand, in the early 20th century in some African states and in the 1970s in Canada. See generally K McNeil, Common Law Aboriginal Title, Clarendon Press, Oxford, 1989, pp 179–92 and pp 244–300; R H Bartlett, Native Title in Australia, 3rd ed, LexisNexis Butterworths, Sydney, 2015, para 1.6–1.29. The offshore legal regime, a complex area of law, was very clearly described in the decision: HCA 56 at [62]–[76]. See further in support of the view that physical occupation of the land is not a necessary requirement for continuing connection to the land: Ward at 146; De Rose v State of South Australia (2005) 145 FCR 290 at [62]; Northern Territory v Alyawarr (2005) 145 FCR 442 at 92; Bennell v Western Australia (2006) 153 FCR 120; Bodney v Bennell (‘Noongar’) (2008) 167 FCR 84. Native title rights and interests must be interests in relation to ‘land’ or ‘waters’: Native Title Act s 223(1). French CJ, ‘The Interface between Equitable Principles and Public Law’, Speech to the Society of Trust and Estate Practitioners, 2010.

[page 107]

5 Acquisition and Transfer of Proprietary Interests in Land Introduction This chapter examines the various ways in which we may acquire or transfer interests in land. Of necessity, the chapter is quite broad and will provide an introduction to concepts discussed in more detail in other chapters.

Acquisition of original proprietary interests in land Occupation, cession and conquest 5.1 Original proprietary interests in land can be acquired by occupation, cession and conquest. Title to land which is susceptible to acquisition but is not presently under the sovereignty of a legal person may be acquired through occupation. Until Mabo v Queensland (No 2) (1992) 175 CLR 1 (see Chapter 4), this was the accepted reason for the validity of the original claim by the United Kingdom to sovereignty over Australia. Discovery of unoccupied land in itself is not sufficient to establish title. An act of effective occupation is also required for the

acquisition of land through occupation. Title to land can also be acquired through cession where one sovereign state cedes part of its territory to another. This is usually done by treaty, as occurred in the Treaty of Waitangi of 1840 between the United Kingdom and the indigenous people of New Zealand. Traditionally, conquest also gave title to land. However, legitimate title cannot now be acquired through the use or threat of force: General Assembly Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations, per the General Assembly Resolution 2625 (XXV), 24 October 1970. [page 108] The land acquired by any of these three ways includes the ownership of the airspace and the mineral rights (see Chapter 2) connected with the land.

Accretion 5.2 In Southern Centre of Theosophy Inc v South Australia [1982] AC 706 at 708–9, Lord Wilberforce noted that the doctrine of accretion ‘gives recognition to the fact that where land is bounded by water, the forces of nature are likely to cause changes in the boundary between the land and the water. Where these changes are gradual and imperceptible … the law considers the title to the land as it may be so changed from time to time’. However, the doctrine is not applicable where ‘a substantial and recognisable change in the boundary has suddenly taken place’. The doctrine does apply to Torrens title land: Verrall v Nott (1939) 39 SR(NSW) 89; Southern Centre of Theosophy Inc. Although the doctrine has its greatest operation with respect to the effect of water, it is not restricted to this phenomenon. For example, the Privy Council in Southern Centre of Theosophy held that the doctrine can apply to an increase in land area caused solely by the

advance of sand dunes caused by the wind: J Moore, ‘Land by Water’ (1968) 41 Australian Law Journal 532; B Edgeworth, C Rossiter, M Stone and P O’Connor, Sackville and Neave Australian Property Law, 9th ed, LexisNexis Butterworths, Sydney, 2013, paras 1.100C–1.104.

Equitable liens 5.3 Equitable liens are examples of where equity creates a proprietary interest in land. There are several situations which can give rise to an equitable lien. For example, a vendor of land who has parted with the legal title to her or his land has a lien over the land to the extent of the purchase money which remains unpaid. This lien arises by implication of law, and gives rise to the same equitable rights as an equitable charge: see Heid v Reliance Finance Corp (1983) 154 CLR 326; Hewett v Court (1983) 149 CLR 639; E Sykes and S Walker, The Law of Securities, 5th ed, Law Book Co, Sydney, 1993 pp 199–206. Isaacs J has suggested that this vendor’s lien arises on the exchange of contracts (Davies v Littlejohn (1923) 34 CLR 174 at 185); however, Rich J has indicated that this arises from when the contract should have been completed (Wossidlo v Catt (1934) 52 CLR 301 at 307–8). Similar to the vendor’s lien, purchasers have equitable liens for their deposits. For example, where a deposit has been paid but title to the property has not been transferred and the contract is lawfully terminated, the purchaser possesses an equitable lien on the vendor’s interest in the property. In addition, the High Court has used the equitable lien as a remedy: Giumelli v Giumelli (1999) 161 ALR 473.

Resulting trusts 5.4 Resulting trusts constitute examples of the original acquisition of an interest in land. A resulting trust arises either as a matter of presumed intention or where there is a gap in the beneficial ownership of the property. The intention to retain a beneficial interest in property will be presumed where one person buys property in the name of another or contributes part of the purchase price, unless evidence of

contrary intention is shown, as occurred in Russell v Scott (1936) 55 CLR 440, or the [page 109] presumption of advancement operates. The presumption of advancement is where property is transferred from one person to another person and they are in a certain relationship. If the court holds that a resulting trust has arisen, the legal title holder holds the property on trust for the purchasers, in the proportions which reflect their contributions to the purchase price: Calverley v Green (1984) 155 CLR 242. A resulting trust will also arise where there has been a failure to dispose of the entire beneficial interest. Where an express trust fails, such as for uncertainty, the beneficial interest will ‘result’ to the settlor, and the trustees will hold the property on a resulting trust. This also occurs where money is given for a specific purpose; for example, a charity, and a surplus remains after fulfilment of that purpose. A resulting trust does not need to be in writing to effectively transfer an interest in land: (General law statutes) ACT s 201; NSW s 23C(2); NT s 10; Qld s 11(2); SA s 29(2); Tas s 60(2); Vic s 53(2); WA s 34(2).

Constructive trusts 5.5 Equitable interests also arise by operation of law, irrespective of the intentions of the parties concerned, to preclude unjust enrichment or where it is unconscionable for the defendant to assert beneficial ownership of the property. The usual, but not exclusive, means by which this is achieved is by the imposition of a constructive trust. It has been suggested that the availability of the constructive trust as a remedy is not ‘at large’: Muschinski v Dodds (1985) 160 CLR 583, per Deane J at 615; see also Gummow J in Re Stephenson Nominees (1987) 76 ALR 485 at 506. Constructive trusts are imposed in many different circumstances.

These include: where there has been a breach of fiduciary obligations; when property is obtained through fraudulent conduct, such as property acquired by the use of undue influence; when a fiduciary renews a lease for his or her own benefit (Chan v Zacharia (1984) 154 CLR 178); from a contract to make mutual wills (Birmingham v Renfrew (1937) 57 CLR 666); where there has been a failed joint venture (Muschinski v Dodds (1985) 160 CLR 583); from a breach of confidence (Lac Minerals Ltd v International Corona Resources Ltd (1989) 61 DLR (4th) 14); and from the unconscionable retention of benefit (Baumgartner v Baumgartner (1987) 164 CLR 137). This list is not exhaustive. The High Court in Bathurst City Council v PWC Properties Pty Ltd (1998) 157 ALR 414 indicated that there were, at least, two varieties of constructive trust. The first variety can be called ‘failed-intention constructive trusts’, while the second variety is the ‘remedial constructive trust’. Unfortunately, it is not clear precisely how these two varieties of constructive trusts will operate. The way forward most likely is presented by examining previous [page 110] decisions on constructive trusts. Good examples of where a constructive trust can arise are provided by a few recent cases. 5.6 In Muschinski v Dodds, a de facto couple decided to purchase a property. On this property they were going to build a house. They wanted to restore the cottage which was already on the property and then use it as an arts and craft centre. Mrs Muschinski provided the

purchase price of $20,000. The property was conveyed to them as tenants in common in equal shares: see Chapters 10 and 11. After the de facto relationship failed, Mrs Muschinski sought a declaration from the court that she was the beneficial owner of the property. Labour aside, Mrs Muschinski had contributed about 91 per cent of the purchase and improvement price, while Mr Dodds had contributed 9 per cent. Mrs Muschinski succeeded in her action and was held to be the beneficial owner of 91 per cent of the property. Deane J, with whom Mason J agreed, said that a constructive trust could be ordered where parties have pooled their resources for a joint endeavour which, when it collapses, leaves one party with property which it would be unconscionable for that person to retain. This principle was endorsed by the High Court in Baumgartner. 5.7 In the Baumgartner case, a couple had lived as de factos for four years. At the beginning of their relationship, they lived in the man’s unit. After the birth of their child the couple moved into a house, which had been purchased with a fund that consisted of the money that the man had received for the sale of his unit and from a loan. This loan, and the title to the property, were in the man’s name only. The couple had then pooled their salaries to pay for living expenses and to repay the loan. This pooled fund had been contributed to 55 per cent by the male and 45 per cent by the female. After the relationship ended, the woman sought an order that the man held the legal title on trust for her. In other words, she claimed an interest in the property. The High Court found a constructive trust in her favour existed. The man held the legal title on trust for both the woman and himself. The proportions of the trust were 55 per cent to 45 per cent, in favour of the man. Their Honours applied the principles articulated by Deane J in Muschinski and found that the parties’ arrangement in pooling their funds was adequate to establish a joint relationship. In these circumstances the man’s assertion that the property was his alone was unconscionable conduct. This conduct justified the imposition of a constructive trust. 5.8

A constructive trust does not need to be in writing to effectively

transfer an interest in land: (General law statutes) ACT s 201; NSW s 23C(2); NT s 10; Qld s 11(2); SA s 29(2); Tas s 60(2); Vic s 53(2); WA s 34(2).

Estoppel 5.9 A right to claim an interest in property arising from the principles of (proprietary) estoppel may give rise to an original acquisition of an interest in land. The word ‘proprietary’ is in parentheses because it may now be considered part of equitable estoppel: see Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387; Commonwealth v Verwayen (1990) 170 CLR 394. Such an equitable interest arises where one person places detrimental reliance upon a promise, or other encouragement by the legal owner, that an interest in the land either has [page 111] been granted, including informally (per Dillwyn v Llewellyn (1862) 31 LJ Ch 658; 45 ER 1285; Plimmer v Mayor of Wellington (1884) 9 App Cas 699), or will be granted (Crabb v Arun District Council [1976] Ch 179); or where the owner acquiesces to a mistaken assumption of another who builds upon land believing it to belong to him or her (Ramsden v Dyson (1866) LR 1 HL 129; Wilmott v Barber (1880) 15 Ch D 96). 5.10 Two examples will show the operation of estoppel. The first is Inwards v Baker [1965] 2 QB 29. A father encouraged his son to build on land owned by the father. After the father died, the trustees of the father’s estate were estopped from denying the son’s interest. This interest was held to be a right to remain in occupation of the land for as long as the son desired it to be his home. In this way, the son obtained an interest enforceable against third parties. 5.11

The other example is Waltons Stores (Interstate) Ltd v Maher

(1988) 164 CLR 387, where Walton Stores (WS) negotiated with Maher (M) regarding a lease in favour of WS over land owned by M. WS wanted to use the land as a site for a new department store. This required the demolition of an existing building on the land. The department store needed to be ready by early 1984. On 7 November 1983, the solicitor for M told WS’s solicitors of the necessity to conclude the agreement within the next few days, so that the new store could be ready in time. Later that same day, the solicitors for WS sent lease documents incorporating amendments to M’s solicitor. These amendments were discussed in the same telephone conversation which had also discussed the need for an agreement in the next few days. On 11 November, M’s solicitor sent to WS’s solicitors completed lease documents by ‘way of exchange’. M completed demolition of the existing building on the land. WS knew of the demolition from 10 December. WS did not contact M again until 19 January 1984 to advise that they did not intend to proceed with the matter. By this time, the new department store was almost half complete. On the basis of estoppel, the High Court held that WS could not resile from its implied promise that the lease would come into existence. Mason CJ and Wilson J held that the variety of estoppel that they found relevant, promissory estoppel, applied to the enforcement of voluntary promises made outside of any contract on the basis that a departure from the basic assumptions underlying the parties’ transactions must be unconscionable. 5.12 Such a right has been held to be transmissible (Hamilton v Geraghty (1901) 1 SR (NSW) Eq 81; ER Ives Investment Ltd v High [1967] 2 QB 379) and will also bind a third party with notice (Silovi Pty Ltd v Barbaro (1988) 15 NSWLR 466). The essential feature of the modern doctrine of equitable estoppel, which encompasses both proprietary and promissory estoppel, is that it attempts to prevent unconscionable conduct. The basis of the doctrine being unconscionability explains why the High Court in Giumelli v Giumelli (1999) 161 ALR 473 decided that, because the remedy ordered by the Full Court impacted upon an innocent third party, it would alter the remedy. Whatever the basis for the remedy, where the conferral of an

equitable interest in the property would prejudice the rights of a purchaser of an equitable interest for value and in good faith, it is likely that the relief for the estoppel would be so framed as to avoid a competition between equitable interests: but see Wood v Browne [1984] 2 Qd R 593. However, a volunteer may be bound by the estoppel: Inwards v Baker [1965] 2 QB 29. [page 112]

Unconscionable transactions 5.13 Arguably, unconscionable transactions may generate equitable interests in land. Unconscionable transactions include: fraud in equity (Latec Investments Ltd v Hotel Terrigal Pty Ltd (1965) 113 CLR 265); mistake (Goldsborough Mort v Quinn (1910) 11 CLR 674); misrepresentation (Redgrave v Hurd (1881) 20 Ch D 1); undue influence (Johnson v Buttress (1936) 56 CLR 113); and unconscionable bargains (Blomley v Ryan (1956) 99 CLR 362).

Acquisition of proprietary interests in land by consensual transactions Sale 5.14 A sale of an interest in land is not limited to the sale of the fee simple in the land. There can be a sale of the fee simple, a sale of a lease, a sale of an easement or a sale of the mineral rights, along with a multitude of other possible sales. A sale can be on an individual basis, where there is one purchaser and one seller, or it can be by

auction. An auction is subject to a statutory regime: see A J Bradbrook, S V MacCallum, A P Moore and S Grattan, Australian Real Property Law, 5th ed, Thomson Reuters, Sydney, 2011, para 8.240. With the sale of the fee simple in land there is important legislation that covers the passing of the risk of damage to the land, disclosures that the vendor is required to make, as well as any cooling-off period: see Bradbrook et al, Australian Real Property Law, 5th ed, paras 8.240– 8.270. In Australia, there is a requirement that any contract for the sale of land must be in writing: (general law statutes) ACT s 204; NSW s 54A; NT s 62; Qld s 59; SA s 26; Tas s 36; Vic s 126. In Western Australia, this requirement is in s 4 of the Law Reform (Statute of Frauds) Act 1962. As a General rule, all conveyances or dispositions of legal interests in land (other than by will) must be by a deed: (General law statutes) NSW ss 14, 23B, 23D(2); SA ss 8, 28, 30(2); Tas ss 59, 60(1); Vic ss 51, 52, 54; WA ss 32, 33, 35(2). Queensland and the Northern Territory, however, do not require execution of a deed, simply a document in writing signed by the person making the assurance of land: NT s 9; Qld ss 8, 10. Under the Torrens system, a registered document is deemed to be a deed: (Torrens statutes) NSW s 36(11); Qld s 161; SA s 57; Tas s 48(7); Vic s 40(2); WA s 85. Although some Torrens statutes suggest unregistered interests cannot exist under the Torrens system (Torrens statutes) ACT s 57(1); NSW s 41; SA s 67; Tas s 49(1); Vic s 40(1); WA s 58; and compare Qld s 181 and NT s 184), equitable interests are, of course, recognised: see generally Bradbrook et al, Australian Real Property Law, 5th ed, paras 4.85 and 4.350. 5.15 Contracts for the purchase of any interest (an interest may be the fee simple or a lease) in property will give rise to an equitable interest in that property. Once a contract has been made for the disposition of land it gives the purchaser an interest [page 113] in the land, and to the extent that the purchaser has a beneficial

interest in the property prior to conveyance, the vendor is regarded as holding the property on constructive trust for the purchaser: Brown v Heffer (1967) 116 CLR 344; Booker Industries Pty Ltd v Wilson Parking (Qld) Pty Ltd (1982) 149 CLR 600. Equitable interests in land may be acquired by a contract. For example, an agreement for a lease, which is supported by consideration, gives rise to an equitable lease: Chan v Cresdon Pty Ltd (1989) 168 CLR 242. Likewise, a contract for the transfer of a remainder interest in shares makes the vendor a constructive trustee for the purchaser of that interest: Oughtred v IRC [1960] AC 206, Lords Radcliffe and Cohen dissenting. Finally, an equitable interest in land may be gained by a contract creating a profit à prendre: Mason v Clarke [1955] AC 778; see also Chapter 19. The creation of an equitable interest in property arising from a contract is based upon the availability of specific performance. If specific performance of a contract will be granted, then the property is treated in equity as if it already belonged to the party in whose favour specific performance will be ordered by the court. It is not absolutely necessary that specific performance be available to the plaintiff at the time of the hearing: Bunny Industries Ltd v FSW Enterprises Pty Ltd [1982] Qd R 712. This necessity of specific performance as a precondition for the recognition of an equitable interest in property has not always been recognised in the case law. In particular, there are cases following Walsh v Lonsdale (1882) 21 Ch D 9 in which an agreement for a lease has been regarded as equivalent in effect to a legal lease, in spite of the unavailability of specific performance: Tottenham Hotspur Football and Athletic Co Ltd v Princegrove Publishers Ltd [1974] 1 All ER 17. Other cases have maintained that recognition of a lease in equity depends upon the availability of specific performance, so that relief will be denied where the court has no jurisdiction to grant specific performance, or because specific performance cannot be ordered as it would require the defendant to breach other covenants in his or her own head-lease: Warmington v Miller [1973] 2 All ER 372. In Chan v Cresdon Pty Ltd (1989) 168 CLR 242, the High Court reaffirmed the position that the question of whether an agreement for a lease gives

rise to an equitable lease is dependent upon the availability of specific performance. Their Honours stated two propositions that arise from the case law (at 252): First, the court’s willingness to treat the agreement as a lease in equity, on the footing that equity regards as done what ought to be done and equity looks to the intent rather than the form, rests upon the specific enforceability of the agreement. Secondly, an agreement for a lease will be treated by a court administering equity as an equitable lease for the term agreed upon and, as between the parties, as the equivalent of a lease at law, though the lessee does not have a lease at law in the sense of having a legal interest in the term.

Future property 5.16 Entitlements to future property may be treated as property in equity where there is a contract for value to assign the property to another. A purported assignment of future property will be treated as an agreement to assign it. [page 114] Although the recognition of equitable leases has been held to be based on the availability of specific performance, this requirement has been discounted with respect to assignments of future property. Future property can include land. Future property is property not yet acquired and which a person has no legal right to acquire, but which one may acquire in the future. The classic example of future property is an interest under a will of a person still alive. The person who is to receive property under the will has no legal or equitable right to receive that property. In Holroyd v Marshall (1862) 10 HLC 191 at 211, Lord Westbury LC emphasised that equity’s recognition of the assignment of future property was dependent on the contract being ‘one of that class of which a court of Equity would decree the specific performance’. However, in Tailby v Official Receiver (1888) 13 App Cas 523, the House of Lords took a different view. Lord Macnaghten (at 547) observed that it would cause great confusion to transfer

considerations applicable to suits for specific performance, ‘involving as they do, some of the nicest distinctions and most difficult questions that come before the court’ to cases of equitable assignment, where nothing more is required of the court than to protect the rights which have been completely defined as between the parties to the contract. See also Re Lind [1915] 2 Ch 345 (effect of bankruptcy on assignment of an expectancy of an interest under mother’s estate: immediate equitable charge created by agreement concerning future property); Palette Shoes Pty Ltd v Krohn (1937) 58 CLR 1, per Latham CJ at 16; per Dixon J at 26–7; Booth v Federal Commissioner of Taxation (1987) 164 CLR 159 at 165 per Mason CJ; and Re Puntoriero (1991) 104 ALR 523. 5.17 Although the requirement of the availability of specific performance is significant in relation to executory contracts for the disposition of an interest in property or for a lease, the same requirement does not apply where the consideration has passed and the court needs only to declare the interests in the property. In such a case, equity treats as ‘done that which ought to be done’.

Restrictive covenants 5.18 Restrictive covenants are other equitable interests which may be expressly created. A restrictive covenant is a right that has been recognised by equity since the middle of the 19th century: Tulk v Moxhay (1848) 2 Ph 774; 41 ER 1143. The right was created in order to overcome the rigid common law rule that the burden of a covenant (a promise) cannot be enforced against any person other than the original contracting party. However, difficulties are faced by successors-in-title to the original parties when they attempt to enforce the burden and benefit of the covenant. 5.19 At common law, in all states except South Australia (which has additional requirements for the passing of the benefit at common law), the benefit of a covenant will pass to a successor-in-title to the covenantee if the covenant ‘touches and concerns’ the benefited land:

Breams Property Investment Co Ltd v Straulger (1948) 2 KB 1 at 7. The estate of the covenantee must be legal: Rogers v Hosegood [1900] 2 Ch 388. In addition to ‘touching and concerning’ the covenantee’s land, [page 115] for the benefit of the covenant to pass in equity one of the following methods must be satisfied: express annexation, express assignment or statutory annexation. If these conditions are satisfied then an equitable interest is created and the benefit of the covenant can pass. 5.20 It is with the passing of the burden of a covenant that the major role for the creation of an equitable interest in the law of covenants is encountered. At common law, the burden of a covenant does not pass to the covenantor’s successor-in-title: Austerberry v Oldham Corporation (1885) 29 Ch D 750. The burden of a covenant can only pass in equity. For the intervention of equity, three prerequisites must be satisfied: The covenant must be, in substance, negative in nature: Haywood v Brunswick Permanent Benefit Building Society (1881) 8 QBD 403. It is for this reason that these covenants are known as ‘restrictive’ covenants. The covenant must relate to the land of the covenantee: London City Council v Allen [1914] 3 KB 642. See s 88E of the Conveyancing Act 1919 (NSW) for an exception to this requirement. The original parties to the covenant must have intended that the burden should run with the land.

Gifts 5.21 Equitable interests in property may also be created where equity gives effect to assignments which do not comply with the formalities for assignment at law. This can occur with respect to

purported assignments for value, which are treated as agreements to assign and thus given effect in equity, since equity treats as done what ought to be done. A purported voluntary assignment will also give rise to an equitable interest in the subject property if, though failing to meet the requirements at law for the transfer of a legal interest, the donor has done everything which, according to the nature of the property, is necessary to vest the legal title in the intended donee: Corin v Patton (1996) 169 CLR 540.

Express trusts 5.22 For an express trust to be created there must be certainty of intention, subject matter and object. The intention to create a trust is not always to be found in express words. The High Court has held that express words indicative of the intention to create a trust will not be effective unless accompanied by the subjective intention to do so: Commissioner of Stamp Duties (Queensland) v Jolliffe (1920) 28 CLR 178. Often the intention to create a trust will be inferred from the conduct of the parties and all the circumstances of the case: Cohen v Cohen (1929) 42 CLR 91. The subject matter of a trust can generally be any presently existing legal or equitable property. A final requirement for the creation of an express trust is that there must be certainty of objects (beneficiaries). A trust must generally be for the benefit of a legal person. Legislation requires that the creation of express trusts of land be ‘manifested and proved by some writing signed by some person who is able to declare such [page 116] trust or by his will’: (General law statutes) ACT s 201; NSW s 23C(1) (b); NT s 10; Qld ss 5, 9; SA s 29; Tas s 60(2); Vic s 53; WA s 34. This provision overlaps with other provisions regarding interests in land, and dispositions of equitable interests, creating certain ambiguities in

the interpretation of the existing requirements: see Adamson v Hayes (1973) 130 CLR 276. However, express trusts and other equitable interests in property have been recognised in equity despite a failure to comply with the requisite formalities, where such recognition is necessary to prevent fraud: Rochfoucauld v Boustead [1897] 1 Ch 196; Bannister v Bannister [1948] 2 All ER 133; see also Last v Rosenfeld [1972] 2 NSWLR 923; Allen v Snyder [1977] 2 NSWLR 685; Thwaites v Ryan [1984] VR 65.

Testamentary succession 5.23 A person may dispose of his or her property by will. There are formalities that attain the making of a will: Wills, Probate and Administration Act 1898 (NSW); Succession Act 1981 (Qld); Wills Act 1936 (SA); Wills Act 1840 (Tas); Wills Act 1958 (Vic); Wills Act 1970 (WA). Generally, testamentary property can be disposed of as the testator desires. This is subject to the broad exceptions of the family provision legislation.

Security interests 5.24 Equitable interests may be expressly transferred by the consensual transaction involved in the creation of security interests in property. While mortgages of land are generally governed by real property legislation, an unregistered mortgage will be treated as an equitable mortgage: (General law statutes) NSW s 23C(1)(b); Qld ss 5, 9; SA s 29; Tas s 60(2); Vic s 53; WA s 34. This provision overlaps with other provisions regarding interests in land and dispositions of equitable interests, creating certain ambiguities in the interpretation of the existing requirements: see Adamson v Hayes (1973) 130 CLR 276; JH Just (Holdings) Pty Ltd v Bank of NSW (1971) 125 CLR 546; Heid v Reliance Finance Pty Ltd (1983) 154 CLR 326. In addition, the deposit of the duplicate certificate of title with the mortgagee without any writing may constitute a sufficient act of part performance so that there is an enforceable contract to grant a mortgage. Legislation in

some states expressly recognises this result: Real Property Act 1861 (Qld) s 30; Real Property Act 1886 (SA) s 149. The mortgage is the most common form of security involving land (see Chapters 20 and 21); however, there may be other forms of security interests over land, such as the charge. There is some debate concerning whether the equitable charge creates a proprietary equitable interest: D Everett, The Nature of Fixed and Floating Charges as Security Devices, Centre for Commercial Law and Applied Legal Research, Faculty of Law, Monash University, Melbourne, 1988; W J Gough, ‘The Floating Charge: Traditional Themes and New Directions’ in P Finn (ed), Equity and Commercial Relationships, Law Book Co, Sydney, 1987, p 239; Ford and Austin’s Principles of Corporations Law, 10th ed, LexisNexis Butterworths, Sydney, 2001, para 19.320. [page 117]

Acquisition of proprietary interests in land by non-consensual transactions Intestate succession 5.25 When a person dies without a valid will that person’s property will be transmitted, once the debts of the deceased are paid and the administration is complete, according to the provisions of the relevant legislation. Normally, the first people to receive the property are the deceased’s spouse, the deceased’s children and the deceased’s parents: for a full discussion of this area, see O Wood and G L Certoma, Hutley, Woodman & Wood: Succession Commentary and Materials, 4th ed, Law Book Co, Sydney, 1990, Ch 13.

Bankruptcy 5.26

Bankruptcy proceedings allow the bankrupt’s assets to be

identified, so that the majority of these assets are available for distribution to the bankrupt’s creditors. Initially these assets are vested in the official receiver for distribution among creditors: Bankruptcy Act 1966 (Cth) s 58(2).

Execution of judgments 5.27 The legal system gives a variety of means by which a successful party to litigation can enforce a judgment. If judgment is given against one party, that party will frequently be held to be liable for some amount of money. This means the losing party becomes a judgment debtor. The judgment debtor owes a debt to the winning party, who is called the ‘judgment creditor’. A variety of means to satisfy this judgment debt are available. One way of satisfying the judgment debt is by having the court’s officers seize the property of the judgment debtor and sell it. This sale is under a writ of execution known as a writ of fieri facias (which is often called a writ of fi fa). Regarding writs of execution, the following is a summary of the normal pattern developed by most state legislation ((Torrens statutes) ACT s 170; NT ss 132–136; Qld ss 116–120; SA ss 105–110; Tas s 61; Vic s 52; WA s 133): The Registrar after having received the writ must enter it in the register. No sale under such a writ will be valid against any purchaser of an interest from the judgment debtor until the writ is entered in the register. A time limit applies to effectively transfer land based on a sale under the writ. A sale under such a writ will be recorded in the register. The position in New South Wales is largely the same: (Torrens statute), ss 105–105D. See R T J Stein and M A Stone, Torrens Title, Butterworths, Sydney, 1991, pp 345–9 for a detailed discussion of the position in New South Wales.

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Compulsory acquisition 5.28 Section 51(xxxi) of the Commonwealth Constitution allows the Commonwealth to acquire property, including land, on just terms. Although the states are not bound by this requirement and so can compulsorily acquire land without compensation, it is usual for a state acquiring land compulsorily to pay compensation.

Adverse possession 5.29 A person who remains in possession of land for a period specified by the limitation of actions legislation acquires a title to the land against the world: see Chapter 3.

Fixtures 5.30 A fixture is a chattel, for example, a television antenna, which is so attached to the land as to become a part of that land. The owner of the land is entitled to the fixture by virtue of the ownership of the land. The effect of the doctrine of fixtures is to extinguish the chattel owner’s title to that chattel: see Chapter 2.

Encroachments 5.31 Similar to the doctrines of fixtures and adverse possession is the law relating to encroachments. Where a person builds entirely upon the land belonging to another, title to the land may pass to the owner of the building if difficult common law requirements are satisfied. Under legislation in Queensland and Western Australia, a person may seek an order to transfer the land on which the building was built, or compensation: (General law statutes) Qld s 196; WA s 123. Where one person erects a building which merely encroaches onto the adjoining land, legislation in New South Wales, Queensland,

South Australia and Western Australia allows the courts to make just orders, such as the payment of compensation, the removal of the encroachment or the transfer of the land to the builder of the encroaching building: Encroachment of Buildings Act 1922 (NSW); Real Property Act 1900 (NSW) Pt 14A; Encroachment of Buildings Act (NT); Property Law Act 1974 (Qld) Pt 11; Encroachments Act 1944 (SA); Property Law Act 1969 (WA) s 122. For a detailed discussion of this area, see Bradbrook et al, Australian Real Property Law, 5th ed, paras 16.295–16.315; Edgeworth et al, Sackville and Neave Australian Property Law, 9th ed, para 2.87. See further discussion in Chapter 3 at 3.38–3.42.

Problem Since early 2009, Xavier has lived in the ‘Tiny House’. Since 2012, Xavier and Susan have been living in a de facto relationship. There is inadequate space in the ‘Tiny House’ for both of them. Having received a legacy of $100,000 from his favourite uncle as well as another $50,000 from the sale of the ‘Tiny House’, Xavier hears that a friend has a house, known as ‘The Residence’, for sale at $200,000 which both Xavier and Susan have admired. Xavier and Susan discuss buying ‘The Residence’ [page 119] and Susan volunteers to put in the other $50,000 or so from her savings. Xavier insists that ‘The Residence’ be purchased in his name due to their unequal contributions. Xavier says, ‘Don’t worry. You’ll get your quarter share since you’re an investor. I’ll hold “The Residence” for us both’. In early 2013, ‘The Residence’ is conveyed to Xavier in legal fee simple absolute. Alas, in late 2013, Xavier and Susan quarrel and Susan moves out, saying, ‘We’ll have to settle up in due

course’. In January 2014, Xavier is approached by Norma, his neighbour and owner in legal fee simple of the adjacent house. Norma asks Xavier if she may have a right of way across the rear of Xavier’s garden for better vehicle access to her house. Xavier orally agrees to this if Norma pays him $10,000, adding that ‘we had better get this access properly drawn up’. Norma pays the $10,000 and also paves an area of Xavier’s garden as a driveway to her house. Norma uses the right of way frequently. In November 2014, Xavier needs to raise some money for a business venture and approaches his aunt, Frances. Xavier asks Frances to loan him $180,000 upon security of ‘The Residence’. In December, Xavier and Frances sign a written agreement to this effect. Frances pays Xavier the $180,000 and Xavier hands Frances the title deeds to ‘The Residence’. At the time of the signing, Xavier tells Frances ‘The Residence’ is unoccupied as he has moved out. By April 2015, Xavier’s business venture has turned into a disaster and Xavier has been declared bankrupt. ‘The Residence’ is claimed by Xavier’s trustee in bankruptcy. Frances is worried about her interest. Susan demands, due to a change in circumstances, to move back into ‘The Residence’. Alternatively, Susan wants ‘The Residence’ sold and claims part of the proceeds. Xavier has defaulted upon the interest payments to Frances and Frances, as mortgagee, wants to sell ‘The Residence’ which, due to the recession, is currently valued at $180,000. Frances is concerned with obtaining full value upon sale and, hence, wishes to sell with vacant possession free of all other claims. Assume we are dealing with land outside the provisions of the Torrens title legislation. Advise all the above parties as to the nature of their interests.

Answer plan The original accommodation that Xavier and Susan lived in, the ‘Tiny House’, was Xavier’s property as were the proceeds from selling it. When ‘The Residence’ was purchased, Xavier contributed $150,000 of his own money. In early 2013, ‘The Residence’ was conveyed to Xavier in fee simple absolute. Xavier acquired the sole legal title in ‘The Residence’ by purchasing this property. Susan Susan will claim some interest in the property. She will not be able to claim legal title, but she may maintain that she has acquired some equitable interest in ‘The Residence’. [page 120] The first way she may claim to have acquired an equitable interest is by an express trust. Susan would argue that she acquired this interest by Xavier saying ‘I’ll hold “The Residence” for us both’. This appears to be a clear declaration of trust. To have an express trust, three certainties need to be present. These three certainties are: certainty of intention; certainty of subject matter; and certainty of object. There may be a problem with satisfying certainty of intention as Xavier also said ‘Don’t worry. You’ll get your quarter share since you’re an investor’. It is open to argument that Xavier did not intend to create a trust here, but merely intended to create a relationship based on the investment. Such a relationship

does not involve a trust. Further, legislation in each state requires a declaration of trust over land to be in writing: see comments at 5.22. There is no writing in this case, so Susan will not be able to argue that she has acquired an interest in the property by an express trust. Susan may argue that she has acquired an interest in ‘The Residence’ on the basis of a resulting trust. If two people provide the purchase price (as happened here), the property will be held on resulting trust for the purchasers in the proportions representing their contributions to the entire purchase price: Calverley v Green (1984) 155 CLR 242. However, the presumption of a resulting trust will be rebutted if the purchase price was provided by way of a loan. That this was a loan is reflected by Xavier saying ‘Don’t worry. You’ll get your quarter share since you’re an investor’. As such Susan would not have acquired an interest in ‘The Residence’ by a resulting trust. However, she could argue that she has acquired an interest by a constructive trust. A constructive trust is a trust which is imposed by operation of law, regardless of the intention of the parties. Unconscionability is the idea that informs the constructive trust. However, the constructive trust can only be ordered when ‘warranted by established equitable principles or by the legitimate processes of legal reasoning’: Muschinski v Dodds (1985) 160 CLR 583 at 615 per Deane J. In similar facts to those in the problem, the High Court in Muschinski imposed a constructive trust. In Baumgartner v Baumgartner (1987) 164 CLR 137, on facts very similar to those in this problem, the High Court again imposed a constructive trust. By referring to these cases Susan will argue that she has acquired an interest in ‘The Residence’. There is no need for there to be writing as each state has legislation that provides that no writing is needed when dealing with a constructive trust: (General law statutes) ACT s 201; NSW s 23C(2); NT s 11; Qld s 11(2); SA s 29(2); Tas s 60(2); Vic s 53(2); WA s 34(2).

What all this means is that Susan has acquired an equitable interest in ‘The Residence’. Norma The next interest to be examined is that claimed by Norma. Initially she may argue that she has an easement. The essential characteristics of an easement are: There must be a dominant and a servient tenement. An easement must accommodate the dominant tenement. [page 121] The dominant and the servient owners must be different people. The right must be capable of forming the subject matter of a grant. For a legal easement there needs to be a deed. On the facts of the problem there was no deed, so this cannot be a legal easement. However, Norma may argue that it is an equitable easement. At equity an easement is created by: an enforceable contract for the creation of a legal easement; and being evidenced in writing or satisfying the doctrine of ‘part performance’. Here the doctrine of ‘part performance’ would be satisfied by Norma frequently using the right of way. There may be a major difficulty in saying that this is an easement because of the second requirement of an easement;

that is, an easement must accommodate the dominant tenement. It is certainly possible to argue that this right of way is only for the benefit of Norma and not for the benefit of her property. If this argument is successful then Norma has not acquired a property right over ‘The Residence’ on the basis of an equitable easement. However, Norma can argue that she has acquired a contractual licence. A contractual licence is permission given by the person entitled to possession of the land to another person which allows that other person to do something which would otherwise be a trespass. That is, a contractual licence usually allows a person to go onto someone else’s land. A contractual licence may be revoked. Such a right does not give its possessor any interest in the land. The consequence of this is that Norma cannot claim that she has acquired an interest in ‘The Residence’ on the basis of the contractual licence. The final argument available to Norma is that she has an interest in ‘The Residence’ on the basis of the doctrine of estoppel: Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387; Giumelli v Giumelli (1999) 161 ALR 473. In such circumstances an equitable interest arises where one person places detrimental reliance upon a promise, or other encouragement by the legal owner, that an interest in the land either has been, or will be, granted: Dillwyn v Llewellyn (1862) 31 LJ Ch 658; 45 ER 1285; Crabb v Arun District Council [1976] Ch 179. On the basis of estoppel, Norma will argue that she has acquired an interest in ‘The Residence’. Frances Frances will also claim that she has acquired an interest in ‘The Residence’. Legislation in each jurisdiction, which is derived from the Statute of Frauds, requires that a legal mortgage be in writing: (General law statutes) ACT s 204; NSW s 54A; NT s 62; Qld s 59; SA s 26; Vic s 126; Tas s 36. In Western Australia, this requirement is in s 4 of the Law Reform

(Statute of Frauds) Act 1962. This means that for Frances to have a legal mortgage this legislative requirement must be satisfied. In this case there is writing to meet the requirements of the legislation. However, there is a further requirement of this transfer being in a deed: (General law statutes) NSW ss 14, 23B, 23D(2); SA ss 8, 28, 30(2); Tas ss 59, 60(1); Vic ss 51, 52, 54; WA ss 32, 33, 35(2). Note that Queensland and the Northern Territory do not have this requirement: recall 5.14. At common law a deed must have been ‘signed, sealed and delivered’. Except for Tasmania, all jurisdictions have abolished the sealing requirement: (General law [page 122] statutes) NSW s 38(3); Qld ss 45(2), 47; SA ss 41, 41AA; Vic s 73A; WA s 9(2), (4). On this basis Frances does not have a legal mortgage, as there is no deed. However, she can argue that while she does not have a legal mortgage she does have an equitable mortgage. The transfer of the title deeds to Frances would be enough to establish an equitable mortgage. In this way she has acquired an interest in ‘The Residence’.

Further discussion In ‘The Persuasiveness of Modern English Decisions on Australian Equity (Part II)’ (2013) Australian Property Law Journal 93, D Wright states (at 93), ‘In the Mason High Court, resort was made to basal principle and to organising ideas. Justices Mason and Deane stressed the fundamental role of “unconscionable conduct”’. Discuss this statement with regard to the content of this chapter, particularly the decisions in Baumgartner v Baumgartner (1987) 164

CLR 137 and Waltons Stores (Interstate) Ltd v Maher (1990) 170 CLR 394.

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PART 2 Successive Interests

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6 Estates Introduction 6.1 Just as ‘title’ is descriptive of the relationship between persons and land, the word ‘estate’ is descriptive of the subject of the relationship. Estates are different bundles of rights and powers exercisable in respect of land which are capable of being exercised at successive times. Figure 6.1 below may best illustrate how this concept relates to other concepts in land, some of which have been studied, and others which will be studied later. In this chapter we shall first examine the key issues of law concerning freehold estates which are the: categories of freehold estates and how they may be distinguished from leasehold estates; creation of freehold estates; nature of freehold estates; restraints on alienation of freehold estates which may be found in contracts; and rights of freehold estates. Our discussion will focus on fee simple estates and life estates as the other categories of freehold estates are seldom found in Australia. In

the latter part of the chapter we shall examine the doctrine of waste which applies to life tenants. 6.2 Specific words are used to describe particular estates and these will be discussed later. Much of this chapter may appear technical and even archaic, as some of the concepts derive from as long ago as the 15th century. However, many of the concepts are still fundamental to understanding how land law works in the present day although conflict does not often arise because many of the principles are regarded as settled law. [page 126] Figure 6.1

Categories of estates 6.3 To understand the concept of estates a knowledge of the terms used is crucial. Figure 6.2 provides a useful illustration of the links between the categories of estates. Figure 6.2

Glossary 6.4 Freehold. This is the first category of estates and is held for an indefinite period of time. Freehold estates may be a fee simple, a life estate or a fee tail. Fee simple. This is the largest and best class of freehold estate. Increasingly, in modern terms, it resembles ownership of the land because the tenurial relationship [page 127] with the Crown is so slender that it can be ignored in practice. The word ‘fee’ indicates that the land is capable of being inherited and the word ‘simple’ means that the estate can pass to heirs generally (ie, there is no class restriction or qualification). Life estate. This is the shortest form of a freehold estate — its duration is the life of a person, usually of the person granted. The person granted the estate is known as the ‘life tenant’. Fee tail. This is another example of a freehold estate. The estate will continue only if direct descendants of the original fee owner exist to inherit. This class has been abolished by statute in most states and any attempt to create a fee tail will result in the creation of a fee simple absolute: Conveyancing Act 1919 (NSW) ss 19, 19A; Law of Property Act (NT) s 22; Property Law Act 1974 (Qld) ss 19, 22; Property Law Act 1958 (Vic) s 249; Property Law Act 1969 (WA) s 23. However, in

South Australia a fee tail estate may be created over both general system and Torrens land. In Tasmania, the fee tail may not be created over Torrens land: Land Title Act 1980 (Tas), ss 113–116; and see Stilbo Pty Ltd v MCC Pty Ltd (in liq) (2003) 11 Tas R 63 for an example of a fee tail. Leasehold. This is the second category of estates. When a fee simple owner lets out his or her land, the other person is called a ‘tenant’. Historically the tenant was considered only a tenant at the will of the owner, and rights existed only in contract. It was not until the 15th century that the law recognised that the tenant had rights which could be enforced against parties other than the owner. Leases were thus recognised as a form of estate. In contrast to freeholds, their maximum duration is fixed in time: see Chapter 16.

Creation of freehold estates 6.5 Now that the terms used to describe estates have been explained, you will perceive that the different forms of freehold estates vary greatly. Startling consequences would follow if you wanted to create a fee simple estate but mistakenly created a life estate instead. This mistake could more easily arise in relation to old system land than Torrens land because the Torrens system is based on principles of registration and not on words used in the documents of transfer. This section will examine the creation of fee simple and life estates for old system land at common law and the modification of the common law by statute.

Creation of fee simple estates 6.6 At common law, words of limitation are required for the creation of fee simple estates. This term refers to the phrase used to define the type of estate or mark out the estate conveyed. At common law the proper expression is ‘to A and his heirs’. The whole phrase must be used in its entirety. To just use ‘heir’ in the singular will not suffice. Without the right phrase, a mere life interest will be conveyed. For

example, the words ‘to A or his heirs’ would create a life estate and so would the following phrases ‘to A forever’ and ‘to A in fee simple’. [page 128] Other important points to be noted regarding the creation of fee simple estates at common law are the following: The rules relating to words of limitation are not as strict for gifts made by will where the courts look more to the intent of any transaction rather than the form. Legislation has been enacted in all states except South Australia to modify the complicated requirements of the common law: Conveyancing Act 1919 (NSW) s 47; Property Law Act 1974 (Qld) ss 22, 29; Conveyancing and Law of Property Act 1884 (Tas) ss 61, 65; Property Law Act 1958 (Vic) s 60; Property Law Act 1969 (WA) ss 23, 37. The common law requirements are still in force in South Australia. Where land is held under Torrens title, words of limitation are not necessary as the Torrens statutes merely require that the type of interest created or conveyed is accurately described: Real Property Act 1900 (NSW) s 46; Land Title Act 1994 (Qld) ss 60–61; Real Property Act 1886 (SA) s 96; Land Titles Act 1980 (Tas) s 58; Transfer of Land Act 1958 (Vic) s 45; Transfer of Land Act 1893 (WA) s 82.

Creation of life interest 6.7 With regard to the creation of life estates, at common law the requisite words of limitation are ‘to A for life’. We have discussed how a life estate is also created at common law by default when the grantor intends to create a fee simple but fails to use the right words of limitation. In the case of dispositions by will, there are few life estates

created by default because of the unwillingness of courts to insist on words of limitation in such matters. Statutory provisions in all states except South Australia have similarly modified the creation of life estates. Now grantors intending to grant a life estate must take care to specify such an estate. In the absence of any clear specification, a fee simple will be granted: Conveyancing Act 1919 (NSW) s 47(2); Property Law Act 1974 (Qld) s 29(1); Conveyancing and Law of Property Act 1884 (Tas) s 61(2); Property Law Act 1958 (Vic) s 60(1); Property Law Act 1969 (WA) s 37(1).

Characteristics of freehold estates 6.8 By now you would have had a glimpse of the diverse nature of the different categories of estates. One category which you would be most familiar with is the fee simple estate. In this section we first look at two types of life estates, then focus on the three ‘versions’ in which both fee simple estates and life estates may exist: the absolute, the determinable and the conditional interest. We learn that the differences between the last two ‘versions’, the determinable and conditional interests, are not very great except in legal effect. Next we consider some general rules to test the validity of conditions attached to determinable and conditional interests. Lastly we consider a peripheral issue when conditions restraining alienation are placed not in grants of estates but in contracts. [page 129]

Categories of life estates 6.9 We shall now examine the two categories of life estates recognised by the common law. When a person holds a life estate, the duration of the estate is fixed by reference to a life — called ‘the measuring life’. The measuring life may be that of the life tenant or of

any other person. In the latter case, the interest is called an estate pur autre vie (for another life). Thus the two categories of life estates are described below.

Ordinary life tenant 6.10 G (the grantor and owner of an estate in fee simple) may give an estate ‘to A for life’. In that case A is both the life tenant and the measuring life. This is the more common type of life estate. No interest will survive A’s death; the life estate is not one which is capable of inheritance and is therefore not an estate in fee.

Estate pur autre vie 6.11 Alternatively, G may dispose of the land ‘to A for the life of B’. A is the life tenant and B is the measuring life. B is called the cestui que vie (the person entitled to an estate or interest in a property for the life of another). There are problems at common law as to what happens if A dies before B. There would be a gap in ownership — at common law the doctrine of occupancy was used to overcome this, but that doctrine has been abolished by statute. Now statutes generally provide that the holder of the estate, that is, A, can leave the interest by will: A J Bradbrook, S V MacCallum, A P Moore and S Grattan, Australian Real Property Law, 5th ed, Thomson Reuters, Sydney, 2011, para 2.140. So if A dies before B, the estate will go to A’s beneficiaries to enjoy until B’s death. If there is no will, the interest will devolve in accordance with the usual rules of intestacy. This possibility does not affect the general principle that the life estate is not an estate in fee. 6.12 In either category of life estate, when the measuring life dies, the life tenant’s interest comes to an end and the land either reverts to the grantor, or passes on to the person next entitled, depending on the terms of the disposition.

Conditional and determinable interests

6.13 Each of the freehold estates, whether the fee simple or the life estate, can be further limited by the imposition of modifying factors. These factors relate generally to limiting the duration of the estate and were traditionally used to keep land within the family. The distinctions between the modifying factors are very fine and even a century ago were criticised as being ‘little short of disgraceful to our jurisprudence’: Re King’s Trusts (1892) 29 LR Ir 401 at 410 per Porter MR, cited in C Harpum, S Bridge and M Dixon, Megarry and Wade: The Law of Real Property, 8th ed, Sweet & Maxwell, London, 2012, p 65. Most commentators have classified the interests into three categories: (a) absolute interests; (b) determinable interests; and (c) conditional interests. [page 130]

Absolute interest 6.14 This is the type of interest most frequently found in practice. A fee simple absolute is an interest which is perpetual and not determined by any special event.

Determinable interest 6.15 This is an interest which will automatically determine on the occurrence of some specified event. This event may never occur. If the occurrence of the event becomes impossible (usually on the death of the grantee) then the interest becomes absolute. Take, for example, a grant by G ‘to A and his heirs until B marries’. As long as B is alive A has a determinable interest, with the possibility that when B marries, the estate returns or reverts to G. This possibility is called the possibility of reverter. But if the determining event becomes impossible, say B dies a bachelor, then the fee simple becomes absolute and the

possibility of reverter is destroyed.

Conditional interest 6.16 This category of interest is similar to a determinable interest, but distinct from the latter in its legal effect. The essential distinction is that the determining event in a determinable fee itself sets the limit for the estate first granted. A condition subsequent, on the other hand, is an independent clause added to a limitation of a complete fee simple absolute which operates so as to defeat it. Thus a devise to a school in fee simple ‘until it ceases to publish its accounts’ creates a determinable fee; while a devise to the school in fee simple ‘on condition that the accounts are published annually’ creates a fee simple defeasible by a condition subsequent. Words such as ‘while’, ‘during’, ‘as long as’, ‘until’ and so on are apt for the creation of a determinable fee; while words which form a separate clause of defeasance, such as ‘provided that’, ‘on condition that’, ‘but if’, or ‘if it happen that’, operate as a condition subsequent: see Harpum, Bridge and Dixon, Megarry and Wade: The Law of Real Property, 8th ed, pp 64–5. Table 6.1 below shows the difference between the creation of determinable and conditional interests, and the consequences of an invalid limiting event: see 6.15–6.21: Table 6.1 Determinable

Conditional

Method of creation

Words used are ‘while’, ‘during’, ‘as long as’, ‘until’

Words used are ‘provided that’, ‘on condition that’, ‘but if’

Grantor’s right

On the occurrence of the limiting event, the interest terminates automatically. The grantor has a possibility of reverter

On breach of condition, the grantor has a right of entry and has a choice whether or not to exercise the right

[page 131]

The limiting event is an integral part of the grant as it sets the limit of Consequences the grant. Thus if the limiting clause of invalid limiting is invalid the whole grant is void. event As a result, courts are generally reluctant to rule that a limiting event is invalid

The limiting event is considered a separate independent clause. Thus if the limiting clause is found to be invalid it is severed and the grant becomes absolute

Limiting events 6.17 Now that you have seen that determinable and conditional interests are created with limiting events attached to them, albeit with different consequences, we shall examine limiting events which are commonly found. (Note: The term ‘limiting events’ may be described as determining events or conditions, but the author has chosen to use the term ‘limiting events’ in order to avoid confusion, as these apply to both determinable and conditional interests.) Although theoretically any event may be used as a limiting event, the more common restraints have been: restraint on marriage; bankruptcy (conditional upon not becoming a bankrupt); and restraint on alienation (the free sale or disposition of property). It is important to realise that because a limiting event attached to a determinable interest is considered to be part of the grant itself, the consequence of a limiting event found void by the courts will result in the failure of the whole grant. This is not the case for a limiting event attached to a conditional interest, because the limiting event is viewed as an extra clause added to limit a grant of an entire estate. If a limiting event attached to a conditional interest is found void, the limiting clause is struck out and the grant of estate is made absolute (free of all limiting events). What tests are applied to check whether a particular limiting event is void? The law relating to limiting events or conditions is a large subject and its rules apply to all kinds of dispositions, including trusts. Some general rules will be considered in the following areas where

grants can be held void: (a) public policy; (b) course of law; (c) imprecise conditions; and (d) alienation.

Public policy 6.18 The limiting event must not be illegal, immoral or otherwise contrary to public policy. The condition most frequently encountered in the past was a condition in restraint of marriage. A total restraint on marriage is void. So if it is attached to a [page 132] conditional interest, the clause will be struck out and the grantee gets an absolute estate. In contrast, a partial restraint on marriage has been held to be valid; for example, a prohibition of marriage with a Scotsman (Perrin v Lyon (1807) 9 East 170; 103 ER 538) and a prohibition of marriage to a Papist (Catholic) (Duggan v Kelly (1848) 10 Ir Eq Rep 473). Often it is a question of degree whether a prohibition is total or partial. It may also be argued that any provision which requires the separation of husband and wife may be against public policy: see Ramsay v Trustees Executors and Agency Co Ltd (1948) 77 CLR 321 at 330; Re Johnson’s Will Trusts [1967] Ch 387. The High Court recognised that a decision on this issue is one of law for the court, and depends on the provisions of the grant and any relevant circumstances. In Church Property Trustees, Diocese of Newcastle v Ebbeck (1960) 104 CLR 394, a condition requiring that the grantor’s sons and their wives profess the Protestant faith was found to be void on the basis that it offended the public policy of preserving and maintaining marriages. Compare Ellaway v Lawson [2006] QSC 170 where a condition that a woman not receive a bequest unless she

divorced her husband or her husband died was found not to be void as it was considered that the effect of this type of bequest would not, of itself, lead to divorce. Another example of a condition against public policy is one which encourages extra-marital cohabitation: Zapletal v Wright [1957] Tas SR 211. The parties were living together for 15 years and in that time land was bought in joint names. The male partner (Wright) provided the purchase money and agreed at the time of purchase that Zapletal should have joint beneficial interest subject to a condition that her interest would terminate and would vest in him if she left him. Zapletal made substantial contributions to the household expenses. Zapletal left the defendant and claimed a sale of the land and equal division of the proceeds. The question before the Full Court was whether the gift was a determinable or conditional interest. The court took the view that the condition was a condition subsequent to the gift: at 216–17. The distinction between a determinable limitation and a conditional limitation was viewed as important. Since the limiting event was considered to encourage the continuance of an immoral relationship, it was therefore contrary to public policy and thus void. As the court was of the view that the grant was a conditional interest, the limiting clause could be severed, leaving the primary gift intact. But bear in mind changes in social mores since the decision in Zapletal. As de facto relationships are now recognised by the law, a similar limiting event may no longer be regarded as against public policy today: see Seidler v Schallhofer [1982] 2 NSWLR 80 at 101. Note the approach taken by Campbell JA in Bondi Beach Astra Retirement Village Pty Ltd v Gora (2011) 82 NSWLR 665 at 745 [359], where his Honour stated: ‘if a contract was not actually illegal at the time it was made, the appropriate standard of public policy to apply is that which exists at the time the Court is asked to enforce the contract’.

Course of law 6.19 A limiting event must not be directed against the course of action prescribed by the law. Conditions such as ‘to A provided he does not become bankrupt’ or ‘to

[page 133] A if he does not die intestate’ are contrary to the course of law. On each of these events the law prescribes that the estate shall be governed in a certain manner. A recent example is found in Caboche v Ramsay (1993) 119 ALR 215. A trust deed granted superannuation benefits on businessman Alan Bond. The Full Court of the Federal Court found that these benefits had been granted absolutely, but cl 16 operated to forfeit these benefits if Bond became a bankrupt. The terms used were ‘indicative of termination and forfeiture’, and therefore this clause was found invalid as a restraint upon alienation of property: see Gummow J at 229–31. However, it has been observed that if the limiting clause is determinable and not conditional, the courts have been more liberal in their judgment. The reason for this is that as the limiting clause is integral to the grant, a finding that the clause is void will make the whole gift void. In Re Leach; Leach v Leach [1912] 2 Ch 422, a grant was made to A until he shall become bankrupt. The gift was found to be a determinable interest, an estate which ceased automatically upon bankruptcy. As no property was capable of passing to the trustee on bankruptcy, the court found that the limiting event was not against the course of law.

Imprecise conditions 6.20 Due to the strict construction of conditions, the courts require precise wording in a limiting clause. A clause that requires a donee to ‘continue to reside in Canada’ has been held insufficiently precise and thus void: Sifton v Sifton [1938] AC 656; Prior v Moore (1901) 1 Ch 936; and compare Hadfield v Hadfield [2010] NSWSC 561.

Alienation 6.21 The limiting clause must not take away the power of alienation. One of the incidents of ownership is the right to sell or otherwise

dispose of property. A condition against alienation is said to be repugnant to this right and contrary to public policy if it substantially takes away the owner’s power of alienation. For example, a grant ‘to A provided she does not dispose of land’ is a void limiting clause. Case law demonstrates that often the decisions are based on the test of whether there is a general or partial restraint upon alienation. If a general restraint is found then the limiting clause is obviously void. In Re Dugdale; Dugdale v Dugdale (1888) 38 Ch D 176, the clause read ‘if my son commits any act by reason of which he would be deprived of the personal beneficial enjoyment of the premises in his lifetime then the trust shall cease’. The court found that this was a general restraint which was therefore void. Difficulties arise where partial restraints are found. In Re Macleay (1875) LR 20 Eq 186, land was left in a will ‘to A on condition that he never sells it out of the family’. The condition was held valid on the following grounds: It did not prohibit any form of alienation except sale. It did not prohibit sales to members of the family and the word ‘family’ can be liberally interpreted to mean any relative. It bound only A and not subsequent owners of the land. [page 134] Contrast Re Macleay with the facts in Re Rosher; Rosher v Rosher (1884) 26 Ch D 801. Land was willed to the son of the testator on condition that if the son or his heirs wished to sell the property in the lifetime of the testator’s wife, she should have the option to buy it for £3000. At the time of death of the testator, the property was valued at about £15,000. The judge held that this condition was void, although on the surface it was a partial restraint. One may take the view that these two cases indicate that there seems to be no firm principle which determines with certainty whether a particular partial restraint is valid or void. Another view is that the

cases seem to apply a test of substance, not form. The test thus seems to be whether the condition substantially takes away the right to alienate. This test appears to have been applied in the case of Saliba v Saliba [1976] Qd R 205 where a partial restraint was found in an agreement between joint purchasers of land. The agreement provided that if one party decided to sell, he should first offer it to the other for the sum of $4075.50 which was half of the original purchase price. The land at the time of trial was valued at $22,300. Kneipp J (at 207) looked at the substance of the restraint instead of its form: The effect of the agreement is that, no matter how much the value of the land rises during the lives of the parties, neither can sell his share without first offering it to the other at what might seem a grossly inadequate price. I think that, in these circumstances, the agreement should be held against public policy and void.

Generally, a restraint on alienation will be regarded as ‘reasonable’ if it is designed to safeguard the lawful interests of the party concerned and is made for a ‘legitimate collateral interest’. Such restraint will be valid: see Vercorp v Lin [2007] 2 Qd R 180 at [63]; Wollondilly Shire Council v Picton Power Lines Pty Ltd (1994) 33 NSWLR 551 (discussed below); and compare Elton v Cavill (No 2) (1994) 34 NSWLR 289; Moraitis Fresh Packaging (NSW) Pty Ltd v Fresh Express (Aust) Pty Ltd (2008) 14 BPR 26,339; [2008] NSWCA 327.

Alternative method of restraint 6.22 In practice you will find that restraints on alienation are often not placed in grants but are by covenants in agreements. Two High Court cases show the importance of this area: Hall v Busst (1960) 104 CLR 206 and Nullagine Investments Pty Ltd v Western Australian Club Inc (1993) 177 CLR 635.

The case of Hall v Busst 6.23 Busst sold a small island off the Queensland coast to Hall. The parties executed on the same day a collateral agreement with three important covenants:

1. 2.

Hall agreed that she would not sell land without Busst’s consent in writing (cl 3). In order to get Busst’s consent, Hall would give Busst one month’s notice of her intention to sell and during that month Busst would have first option to repurchase (cl 4). [page 135]

3.

The repurchase price was fixed at the original purchase price added to the value of all improvements and depreciation (cl 5). Note that the stipulated formula did not take into account any possible rise in market value. Hall was registered as proprietor. Later she sold the land to a third party without performing any of the covenants. Busst sued. Only at the High Court was it argued that the covenants were a restraint on alienation and thus void. The High Court by a narrow majority (3:2) held that cl 5 was unenforceable because of uncertainty. Independent of that, cl 3 was viewed as the equivalent of a condition in restraint on alienation. The two dissenting judges said that cl 3 was a right of first refusal which operated in this manner: Busst would have one month to consider the offer to sell after which Hall could sell to third parties. But two of the three majority judges (Dixon CJ and Menzies J) construed the clause to mean that if Busst refused to accept the offer, Hall could not sell at all: Hall v Busst per Dixon CJ at 215, 217; per Menzies J at 230, 235–6. Fullagar J (the third member of the majority) accepted that the agreement provided for a right of first refusal: at 224. However, he was of the opinion that cl 3 could still operate as a restraint on alienation because the right of the vendor to buy back the land at the original purchase price effectively prevented alienation. As the right was of indefinite duration, the value of the property might be a great deal more than the sum stipulated in the agreement. Fullagar J agreed with Dixon CJ that although the restriction in the present case was imposed not by way of condition or conditional limitation but by covenant, the

principles applying to conditional limitations were equally applicable to the present facts: per Fullagar J at 223–4; and see Dixon CJ at 218. The narrowness of the decision in Hall v Busst has not prevented its application in subsequent cases; for example, in the High Court decision of Nullagine Investments Pty Ltd v Western Australian Club Inc (1993) 177 CLR 635.

The case of Nullagine Investments 6.24 This High Court decision considered another form of a covenant in restraint. The parties had entered a sale agreement in 1976 and were registered proprietors of a fee simple in land as tenants in common. By a collateral arrangement, Western Australian Club entered into a deed of occupation with the appellant and five of the associated companies of Nullagine. The deed provided for the exclusive use of various parts of the building by the club and the group for a term of 10 years. Clause 4(b) provided that neither the club nor Nullagine sell its share without first offering it to the other at a price mutually agreed or, in default of agreement, at a price equal to 50 per cent of the value of the land as determined by arbitration at that time. After expiry of the 10-year period in 1986 both parties remained in occupation in the manner specified by the deed. Nullagine decided to sell its interest and negotiations took place. The club was prepared to buy Nullagine’s half-share, but at a price which Nullagine considered less than the true value of the property. In 1988, Nullagine applied for a court order directing the sale of the land and distribution of the net proceeds in equal shares. [page 136] In the Supreme Court Nullagine argued, relying on Hall v Busst, that cl 4(b) was void as constituting a restraint upon alienation. Malcolm CJ considered that in substance the clause created mutual rights of

pre-emption or first refusal by one party in favour of the other: (1991) 6 WAR 441 at 462–4. Such a right of preemption providing for a right to purchase at current valuation does not constitute a restraint, and is enforceable in contract (Manchester Ship Canal Co v Manchester Racecourse Co [1901] 2 Ch 37) and also at equity (Woodroffe v Box (1954) 92 CLR 245). Malcolm CJ distinguished both Hall v Busst and Saliba as the purchase price provided in cl 4(b) was half the present value of the land, that is, the market price of its half-share of the land. Thus there was no restraint on alienation. In the High Court, Deane, Dawson and Gaudron JJ based their decision on an argument asserting the right of Nullagine to an order for partition and sale and found it unnecessary to rule on the issue of restraint of alienation. However, Brennan J, (at [31–33]), referred to the general law on rights of pre-emption and Dixon CJ’s decision in Hall v Busst. He then impliedly adopted the Full Court’s reasoning on this point without specifically discussing the decision of Malcolm CJ.

Further development 6.25 A number of cases have re-examined the application of the doctrine of restraint on alienation in relation to covenants in agreements. In Wollondilly Shire Council v Picton Power Lines Pty Ltd (1994) 33 NSWLR 551, the defendant bought land for $35,000 from the council for the purposes of building industrial premises. The contract provided that: (i) the defendant not transfer the land prior to the erection of the industrial premises; and (ii) if the premises were not completed within 24 months from date of settlement, the land be resold to the council at the original purchase price. In holding that cl (i) was not a restraint on alienation, the Court of Appeal distinguished Hall v Busst. Handley JA, with whom the other members of the Court of Appeal in Wollondilly Shire Council v Picton Power Lines concurred, considered that the clauses in the present contract stood in marked contrast to Hall v Busst.1 His opinion was based on the fact that the restraint was in effect for a limited duration of two years and that (at 555):

It cannot be doubted that any contract for sale or option or right of preemption binds the grantor not to alienate the land to a third party in a manner which would be inconsistent with the rights of the purchaser … Restraints of this kind, arising as incidents of a personal contract for the sale or other disposition of land stand right outside any legal doctrine which invalidates contractual restraints on alienation. In my opinion neither subcl (b) nor the relevant part of subcl (a) are invalid as unlawful restraints on alienation.

Compare Elton v Cavill (No 2) (1994) 34 NSWLR 289. In this case, a clause preventing a co-owner from selling his or her interest without the consent of the other co-owners was found to be a restraint on alienation as it failed to serve [page 137] any ‘legitimate collateral purpose’. More recently, concerns regarding restraints on alienation have arisen in the context of retirement villages: see Bondi Beach Astra Retirement Village Pty Ltd v Gora (2011) 82 NSWLR 665 where the New South Wales Court of Appeal found that the terms of a retirement village ‘contracts and a buyback deed’ did not amount to a restraint on alienation of property.

Compare with the position in the United Kingdom 6.26 The position in Australia is in contrast to that in the United Kingdom. In Caldy Manor Estate Ltd v Farrell [1974] 3 All ER 753, such contractual covenants are considered distinct from conditions attached to grants of an estate in land. A breach of such covenants would operate only to allow a right to damages which may be nominal. Further, a covenantee would only be able to prevent a threatened alienation in breach of a covenant by obtaining an injunction which may or may not be granted.

Rights of owners of freehold estates

Fee simple estates 6.27 Legislation in all states gives power to the Governor-in-Council to grant land in fee simple generally subject to reservations as to gold and other minerals. Rights of freehold owners include the following: The right of alienation. To convey it to another during their lives or to dispose of it on their death by will. The right to things in, on, or over the land. We have discussed the doctrine of cuius est solum and its limits in modern times in Chapter 2. The right to create lesser interests in land. For example, life estates and leases.

Life estates Right of disposition 6.28 Tenants for life can dispose of their interests inter vivos. The common law rule is that they cannot create an interest greater than that which they own. Therefore, if A holds an estate for A’s own life, should that estate be assigned to X, X takes an estate pur autre vie, that is, for the life of A. Similarly, if A owns an estate for the life of B, and assigns that to X, X takes an estate pur autre vie, that is, for the life of B. Legislation in all states provides that the ordinary rules of probate and administration apply to estates pur autre vie: they may be disposed of by will and on intestacy will be distributed to next of kin: Succession Act 2006 (NSW); Succession Act 1981 (Qld); Wills Act 1936 (SA); Administration and Probate Act 1919 (SA); Wills Act 2008 (Tas); Wills Act 1997 (Vic); Administration and Probate Act 1958 (Vic); Wills Act 1970 (WA); Administration Act 1903 (WA). It has long been recognised that in certain circumstances it is not desirable that there is no person who can deal with the unencumbered fee simple in cases

[page 138] where a life tenancy exists. At common law, life tenants can deal only with their own interests, and the fee simple owner can deal only subject to the rights of the life tenants. Thus, if the property is deteriorating rapidly, or some particularly advantageous opportunity presents itself, it is often the case that no effective action can be taken to dispose of the property. One common way to avoid the problem is to create a trust, in which the trustee holds the legal fee simple, and therefore has the power to deal with that interest, and the tenant for life holds an equitable life estate. In the absence of a trust, legislation has been enacted in most states to allow life tenants to dispose of their interest with the prior sanction of, and upon conditions imposed by, the courts.

Right of possession and receipt of income 6.29 In addition to rights of disposition, a life tenant has the right to possession of the property or to receive the income from it. However, there is a need to balance the rights of the life tenant and those of later interest holders. The law has an area of particular application to these sorts of problems known as the ‘law of waste’.

Doctrine of waste 6.30 Where a tenant holds for life the property must be protected and maintained in a proper manner for later interest holders. These restrictions are imposed by the law of waste and apply to both categories of life tenants. The doctrine also applies to landlord and tenant situations. Waste is defined as any act which alters the nature of the land, whether for the better or for the worse. Four categories of waste have been identified: ameliorating; permissive;

voluntary; and equitable. 6.31 Ameliorating waste Alterations which actually improve the land constitute ameliorating waste; for example, converting dilapidated sheds into dwellings (Doherty v Allman (1878) 3 App Cas 709) or a chapel into a cinema (Hyman v Rose [1912] AC 623). The courts have had little sympathy unless the whole character of the property has been changed; for example, where renovations to a historical house are entirely out of character. An action for damages or for an injunction will usually fail. 6.32 Permissive waste This is failure to do what ought to be done. The most frequent example is the failure to repair buildings. Consider this a sin of omission! Liability arises only where there is a duty to repair: Re Cartwright; Avis v Newman (1889) 41 Ch D 532. Therefore, if the instrument is silent as to a duty, there is no liability for permissive waste. Additionally, permissive waste requires that the inactions of the tenant have created a situation where the nature of the premises is permanently altered. In Brian Stevens Pty Ltd v Clarke (1965) 83 WN (Pt 1) [page 139] (NSW) 32, a landlord claimed damages for permissive waste relating to the discolouration of the walls of certain commercial premises. The court refused the claim holding that the discolouration did not permanently change the nature and character of the premises. 6.33 Voluntary waste This is doing that which ought not to be done — a sin of commission! Examples would be opening a mine on the land or cutting down timber. Trees are classified as timber in Australia if they are used for building purposes. In Re Hart [1954] SASR 1, a rural property was left by will to trustees on trust for life interests. The land consisted of a farmhouse, orchard, pine trees and grazing land.

Over 700 pine trees were cut and sold for a large sum of money. The issue centred on whether the actions of the life tenant were waste; if so, damages would be payable. In England, timber trees were traditionally regarded as being oak, elm and ash. But, even in England, other trees could be classified as timber if used for building. Reed J applied the same test and found that in that area, radiata pine trees were not used for building purposes, and therefore were not classified as timber. Therefore, voluntary waste had not been committed and the life tenant was not liable. However, radiata pine is classed as timber in other areas of Australia: see Crocombe v Pine Forests of Australia Pty Ltd [2005] NSWSC 151. On analysis of the examples given by Reed J, there is a qualification to the test: timber may be cut without liability on the part of the life tenant if it is done in a reasonable and prudent manner in the course of proper land management: at [5-7]. Tenants are liable for voluntary waste unless their interests are granted by instruments exempting them from liability for voluntary waste, that is, a grant ‘without impeachment of waste’. In that case, the tenant is said to be unimpeachable for waste. If the instrument is silent then the tenant is liable or impeachable for waste. 6.34 Equitable waste This has been referred to as a subspecies of voluntary waste where the tenant intentionally inflicts serious harm to the property Bradbrook et al, Australian Real Property Law, 5th ed, para 13.50. Vane v Lord Barnard (1716) 23 ER 1082 is a classic case in point. The father was the life tenant of the manor and the son was the remainderman. The father and son had a falling out. The father, Lord Barnard, proceeded to strip the manor of lead guttering, iron, glass windows, doors and floorboards to the value of £3000. In Vane’s case the father was unimpeachable for waste and he attempted to take advantage of this to ruin the property. The son then sought an injunction, an equitable remedy, to stop the father from continuing to destroy the property. The Court of Chancery held that even though the father was unimpeachable for waste, the court in its equitable jurisdiction would not allow flagrant or wanton destruction of the premises. Other examples of equitable waste are the pulling down of houses or

cutting down of timber planted for ornament or shelter. In the Australian context, an act of equitable waste would be to destroy vegetation which is essential for soil conservation: Bradbrook et al, Australian Real Property Law, 5th ed, para 13.50. [page 140] Life tenants are liable for equitable waste unless the grant shows an intention to allow them to commit it. An exemption for voluntary waste will not be sufficient to exempt a tenant from liability for equitable waste. Therefore, the liability imposed by the law: correlates to the degree of damage inflicted; and depends on the provisions of the instrument creating the interest. 6.35

Table 6.2 below sets out a summary of the law of waste.

Table 6.2 Type of waste

Damage

Liability of life tenant

Ameliorating

No damage usually

Not liable unless very special circumstances are found

Permissive

Non-repair etc

Generally not liable except if grant imposes a duty to repair

Voluntary

Positive damaging act

Generally liable except if grant exempts liability

Equitable

Flagrant or wanton destruction

Liable unless grant exempts liability specifically for equitable waste

Problem-solving checklist You should now understand the key elements of freehold estates. We shall first try a few simple problems to which the following four-step approach is suggested:

1. 2.

Identify the category of estate in issue. Check whether the problem concerns the creation of the estate: Is there a likely problem at common law? Has legislation modified the effects of the common law, and if so, in what manner?

3.

Consider the nature of the estate: Is it absolute, determinable or conditional? If determinable or conditional, what is the limiting event? Is the limiting event valid?

4.

Is there a problem involving the rights attached to ownership of estates? Consider the right to disposition and the doctrine of waste.

Not all of these questions will be relevant in the problems that you may come across. However, if you adopt this approach, it may help you to identify the issues. [page 141]

Problem 1 Rose agrees to sell land in fee simple to Axel at the price of $250,000. The contract of sale contains a clause that Axel will not sell the land without Rose’s consent for the next 20 years. What estate does Axel have and is he bound by the condition?

Answer plan

Axel receives an estate in fee simple. No problem arises relating to the creation of the estate provided Rose has title to a fee simple estate. It is an absolute interest. The condition appearing in the contract is in issue. Although the restriction on alienation appears by covenant, the High Court in Hall v Busst (1960) 104 CLR 206 accepted that the same principles regarding conditional limitations are applicable. As one of the incidents of ownership is the right to freely dispose of property, such a clause would be void as imposing an unreasonable restraint on alienation and therefore as being contrary to public policy. In Hall v Busst, the covenant was not limited in terms of time. In Dixon CJ’s view in that case, a covenant which is effective over a very long period of time to prevent alienation is undoubtedly a restraint on alienation. In this case, the covenant is effective for the next 20 years, which is a substantial period of time. It should be contrasted with the covenant providing for a limited duration of two years found in the contract in Wollondilly Shire Council v Picton Power Lines Pty Ltd (1994) 33 NSWLR 551, where the Court of Appeal distinguished Hall v Busst. It should also be pointed out that there is nothing in the facts that points to any objective of the restraint. If the restraint was to protect a valid collateral purpose then it may be allowed to stand: Elton v Cavill (No 2) (1994) 34 NSWLR 289; Elton v Cavill (No 1) (1994) NSWConvR 55-701. However, the facts in Elton v Cavill relate to a situation where an agreement was made between co-owners and none of the examples discussed in the decisions would have any application to these facts, as they relate to conditions in a lease against assignment by the lessee and restraint against alienation by a life tenant.

Problem 2 Boyz’s grandmother bequeathed in her will ‘the house and land at 10 Harmony Street to my loving grandson Boyz on condition that he continues to live in Australia …’. The grandmother owned a fee simple absolute estate in land. Advise Boyz, who wants to become an entertainer in the United States of America, whether the condition in the bequest is valid.

[page 142]

Answer plan As the gift was made in a will, it is not necessary that the strict requirements of words of limitation at common law be complied with. It is clear that the grandmother intended that Boyz would receive all of the interest that she owned. Therefore, he receives a fee simple estate in land. However, the gift is not absolute. As the words used do not refer to a time element this is unlikely to be a determinable gift and is a conditional interest. The issue arises as to whether the limiting event (condition) attached is valid. The event is that Boyz ‘continues to live in Australia’. A similar condition regarding residence in Canada was found to lack precision and was thus void: Sifton v Sifton [1938] AC 656. In a conditional interest, the limiting event is considered external to the gift. Thus the void clause is severed from the gift and Boyz takes an absolute interest free of the condition.

Problem 3 Ronald Rich, multimillionaire, transfers his estate in fee simple in ‘Palatial Place’ to his daughter, Grace, for life but with a proviso that Grace’s interest would cease if she were to marry a person who does not profess the Roman Catholic faith. The grant also provided that ‘Palatial Place’ would pass to Favour, Grace’s brother, on Grace’s marriage to a non-Catholic or on Grace’s death. Grace uses part of the six-acre property to conduct experiments on building homes with mud bricks made on site. She builds several simple structures which the neighbours complain about as they look unsightly. As she is an ardent, if somewhat misdirected, Greenie, she cuts down magnificent laurel trees which have stood for three generations lining the driveway after hearing a report that laurel trees are a threat to the environment. Ronald dies of a heart attack when he hears the news. More is to come. Grace starts cohabiting with Aranda who is an avowed atheist but from a Hindu background. Favour is angry that Grace has caused the death of their father and wants advice as to whether he has any rights regarding ‘Palatial Place’.

Answer plan Grace holds a life estate with a limiting event attached. There does not appear to be any issue arising from the creation of the estate. As the words used in the grant — that her interest ‘would cease’ — refer to time, the limiting event is considered an integral and necessary part of the estate. Therefore the estate is a determinable interest. The validity of the clause setting out the limiting event should be examined. The clause is in restraint of marriage but

imposes a partial rather than a total restraint. A partial restraint on marriage has been held to be valid: Perrin v Lyon (1807) 9 East 170; 103 ER 538; Duggan v Kelly (1848) 10 Ir Eq Rep 473. There may be a problem with the impression of the clause. A limiting event attached to a conditional [page 143] interest prohibiting marriage with a person not ‘of Jewish parentage or of the Jewish faith’ has been held insufficiently precise, and therefore void: Clayton v Ramsden [1943] AC 320. See also Re Tegg [1936] 2 All ER 878, where a condition requiring the grantee to be a ‘member of the Church of England’ was found to be void for uncertainty. However, these cases may be distinguished as the courts are more liberal where the limiting event is attached to a determinable interest: Re Leach; Leach v Leach [1912] 2 CL 422. Thus a condition against marriage with ‘a person not professing the Roman Catholic faith’ may be valid when found in a determinable interest but void when attached to a conditional interest. The next issue is whether there has been a breach of that limiting clause. Grace is cohabiting with Aranda who does not profess the Roman Catholic faith. As the courts take a strict view of the construction of limiting clauses, it is unlikely that Grace’s action will be considered a breach of the condition. Favour holds a future interest in the fee simple estate: see Chapter 7 for a discussion about the concept of future interests. He may restrain Grace’s use of the land if it is found that her actions amount to waste. The making of mud bricks and using the bricks to build houses on the property may come within the category of ameliorating waste: Doherty v Allman (1878) 3 App Cas 709. Courts have generally been reluctant to order damages in such cases. However, Favour may argue that the

buildings are an eyesore as the neighbours have complained. It is a question of degree whether intervention by the courts is justified. Favour is unlikely to obtain an injunction to stop Grace from further using the land in this way unless the value of the property becomes substantially and permanently diminished. The destruction of the laurel trees may amount to equitable waste. The trees are ornamental and may be argued to be an important feature of the property as they have lined the driveway for three generations. Assuming the grant to Grace does not specifically exempt her for equitable waste, the court will not allow flagrant and wanton destruction of the estate whatever may be Grace’s motives: Vane v Lord Barnard (1716) 23 ER 1082. Thus Favour may be able to obtain damages for this. It is unlikely that Grace’s action amounts to voluntary waste as laurel trees are not commonly used for timber. The test for timber is whether the trees are used for building purposes in that particular locality: Re Hart [1954] SASR 1.

Further discussion Horatio, in a moment of generosity, made the following inter vivos gifts to his grandchildren, Cyprion and Adelaide. If you were the grandchildren, consider what concerns, if any, you might have with the following gifts: 1. The beach house: To Cyprion and his heirs on condition that he shall not be entitled to the property until he divorces his wife, Wilhemina. Refer to the cases of Ellaway v Lawson [2006] QSC 170; Church Property Trustees, Diocese of Newcastle v Ebbeck (1960) 104 CLR 394.

[page 144] 2.

1.

The ski lodge: To Adelaide and her heirs provided that she becomes a committed member of the Church of England. Refer to the cases of Re Tuck’s Settlement Trusts; Public Trustee v Tuck [1978] Ch 49; Re Tepper’s Will Trusts; Kramer v Ruda [1987] Ch 358; Re Allen; Faith v Allen [1953] Ch 810; and also Blathwayt v Cawley [1976] AC 397. Consider further whether such a condition would be in breach of the Racial Discrimination Act 1975 (Cth). Leave to appeal from this decision to the High Court was refused in Picton Power Lines Pty Ltd v Wollondilly Shire Council, S93/1994, 18 November 1994.

[page 145]

7 Future Interests Introduction 7.1 In Chapter 6, we examined the concept of estates which relates to successive interests in land. Each of the estates discussed may either allow the holder of the interest an immediate right to possession of the land, or to postpone that right until some condition has been fulfilled, or some earlier interest has ended. Where the right to possession is postponed, those interests are termed ‘future interests’. For example, where a will provides for children to inherit only when they attain the age of majority, it provides for a future interest. There are several types of future interests, and complex rules may apply if the gift is made through a grant during a person’s life rather than in a will. Key issues which are addressed in this chapter include: classifications of future interest; common law remainder rules; development of the use by equity; and statutory modifications. When you read through this chapter you need to keep in mind that statutes have modified many of the complexities.

Classification of future interests 7.2 All freehold estates may be held in possession, in reversion or in remainder. Where interests are held in possession, they are known as ‘present interests’ and the complicated rules relating to future interests do not apply to them. Future interests are basically either reversions or remainders. If remainders, it must be further determined whether they are vested or contingent in nature.

Reversions 7.3 A reversion is the residue of the grantor’s interest after he or she has granted away some lesser estate in possession to some other person. While there may be one or more remainders created out of one estate, there is only one reversion. [page 146] Remainders are created by the act of the grantor, but a reversion arises from the operation of law. Reversions need to be differentiated from future interests which are expectant upon a conditional or a determinable fee simple such as a right of entry or a possibility of reverter. Theoretically, the fee simple in the latter category of estates is disposed of even if the grant is made conditional or determinable.

Remainders 7.4 A remainder is that part of the interest disposed of in a grant which is postponed to an estate in possession created at the same time. There is no limit to the number of remainders that can be created. A remainder may be either vested or contingent. The distinction

between vested and contingent interests is important. In the modern context, the rules against ‘remoteness of vesting’ (or the rules against perpetuities), which attempt to limit the power of individuals to tie up interests in land (and other objects) for an excessive period of time, are framed in terms of ‘vesting’. These rules are considered in Chapter 8. There is one other reason for considering the distinction between vested and contingent interests. Although statute has modified the law to a considerable extent, at common law, legal remainder rules require legal contingent remainders to ‘vest’ within a certain period of time. If a contingent remainder does not vest within the time specified, it fails at common law; although in modern times the remainder may be rescued by statute.

Vested or contingent 7.5 An interest is ‘vested in possession’ when it gives the right to present enjoyment; this is not a future interest. If an interest is ‘vested in interest’ but not in possession, it is a future interest — the right of enjoyment is postponed, yet it is a right which subsists. In other words, it is a present right to future enjoyment. Usually when the term ‘vested’ is used, it refers to vesting in interest. A contingent right is one which gives no right at all until some future event occurs. A remainder is vested if two requirements are satisfied: The person entitled to take must be ascertained. There must be no precondition for the interest to take effect in possession other than the regular determination of a prior estate. To put it very simply, there must be nothing in the way of a person taking, except the death of the present interest holder. If the two requirements are not satisfied then the interest is contingent. Whether or not an interest is vested is important — if the interest is vested in interest then the interest holder is able to deal with the interest.

Reversions are vested interests: first, the person entitled to take is ascertained; and second, there is no precondition, except the existence of a prior estate. A reversion is the remnant of an estate which has never passed away from the grantor and he or she (or if he or she is dead, his or her representatives) will receive the land as soon [page 147] as the prior estate is determined: C Harpum, S Bridge and M Dixon, Megarry and Wade: The Law of Real Property, 8th ed, Sweet & Maxwell, London, 2012, pp 316–7.

Examples of future interests 7.6 The creation of a life estate and related concepts is best understood by reference to some examples. In each of the examples given below, G, the grantor, has a fee simple estate. Consider the following grants.

‘To A for life’ 7.7 A is entitled to an immediate right to possession, use and enjoyment during his or her own lifetime. This interest is known as ‘a life estate vested in possession’. G has an interest known as a ‘fee simple in reversion’. When A dies, possession in the land reverts to G or, if G is dead, to G’s heirs. G can sell this reversionary interest, always subject to A’s interest.

‘To C for life, remainder to D in fee simple’ 7.8 C has a life interest which is vested in possession from the time of the grant. D’s remainder interest in fee simple is vested in interest from the time of the grant. His or her identity is ascertained and his or her remainder awaits the determination of C’s prior life estate. Should D die before C, then his or her interest will pass to his or her heirs.

‘To E for life and then to F for life’ 7.9 E has an immediate right to a life estate which is vested in possession. It is a present right of present enjoyment. F has a second estate which falls in possession after E’s life estate terminates. It is a right of future enjoyment of a life estate because the right of possession is postponed. F has a remainder interest. A simple trick to help you remember the term is that on the death of E the estate still ‘remains away’ from the grantor. F does not have to fulfil any precondition before taking the estate. Therefore, his or her interest is vested in interest. When E dies, F’s interest then becomes vested in possession. G still has a fee simple in reversion because both earlier interests are life estates. Therefore, each grant of a life estate supports a reversion at the end of it.

‘To H for life, remainder to J (aged 17) in fee simple provided J reaches 21 7.10 H has a life interest vested in possession. Attached to J’s remainder is a condition which must be fulfilled. J has a contingent interest, not a vested interest. A contingent interest is the opposite to one that is vested in interest. When J turns 21, his or her contingent interest vests in interest. It will vest in possession when H dies.

‘To K for life, remainder to L on reaching 18 for his life’ 7.11 K takes a life interest vested in possession. L takes a remainder life interest. Applying the two tests of vesting, L’s interest is contingent until he or she reaches 18. [page 148] At that age, L’s interest vests in interest. At common law, if L dies

before 18, there is no estate to pass to his or her heirs. It will vest in possession when K dies. G (or his or her heirs when he or she is dead) retains a fee simple in reversion as the preceding estates are life estates.

‘To M and N for their joint lives, remainder in fee simple to the survivor’ 7.12 M and N have joint life interests that are vested in possession at the time of the grant. Either one of them may take the remainder interest in fee simple. As the identity of the survivor is not ascertainable at the time of grant, the remainder interest is a contingent future interest. It remains contingent until it vests in possession. While working out what the interest accruing to each person is, you should be aware that estates may be vested but subject to divestment; and that the distinction between vested and contingent does not depend on the likelihood of taking. 7.13 It is possible for estates to be vested but subject to divestment Say the grant is ‘to my husband for life and then to my children who attain the age of 18 in fee simple in equal shares’. The husband takes a present life interest. The children take a contingent remainder interest in fee simple in equal shares. As soon as the eldest child reaches 18, the remainder vests solely in him or her, then as the other children reach 18, the eldest child will be proportionately divested. 7.14 The distinction between vested and contingent does not depend on the likelihood of taking A grant is made ‘to A for life, then to B for life, remainder to C in fee simple’. At the time of the grant the ages of A, B and C are 20, 30 and 70 respectively. C’s interest is vested in interest though not in possession. C’s identity is ascertained, and not subject to any condition. Even if the possibility of C personally taking the fee simple estate is low, C’s heirs will inherit his or her interest when A and B die.

7.15 At common law, a contingent interest cannot be assigned but may pass by inheritance Equity would enforce assignments of contingent remainders by compelling the assignor to convey the property to the assignee when it fell into possession. But legislation now provides that contingent remainders may be disposed in the same way as vested remainders: see Conveyancing Act 1919 (NSW) s 50(1); Property Law Act 1974 (Qld) s 31; Law of Property Act 1936 (SA) s 10; Conveyancing and Law of Property Act 1884 (Tas) s 80(1); Property Law Act 1958 (Vic) s 19(1); Property Law Act 1969 (WA) ss 26, 118(2). In a disposal of a contingent interest, the person taking the interest will obtain possession if and when the condition attached to the grant or will is satisfied.

Common law remainder rules 7.16 Four inflexible rules were devised at common law for restricting contingent legal remainders. In medieval times, landowners wanted to be able to acquire more land. On the other hand, they wanted to restrict their descendants from dissipating [page 149] family land and allow for a continual possession of the land. Therefore, the rules were feudal concepts which really do not apply in present times and have been changed by statute. A brief explanation of these common law remainder rules follows.

Remainder void unless supported by a prior particular estate 7.17 A remainder is void unless when it was created it was supported by a particular estate of freehold created by the same instrument. A ‘particular estate’ means either a remainder or

reversion, estates which are only part (‘particular’) of the fee simple: Harpum, Bridge and Dixon, Megarry and Wade: The Law of Real Property, 8th ed, p 316. The medieval concept of an estate is like a concrete physical object called ‘seisin’. It has to pass from one hand to another. So if the grant is to ‘X’s first daughter’ and X has no daughter at the time of the grant, the grant is void. The common law requires that seisin has to pass directly from the grantor to the grantee at the time of grant. Since the grantee is not in existence, there is a gap (abeyance) in seisin. To make a valid grant, there must exist an earlier estate to fill in the gap between the time of the gift and the birth of X’s first daughter; for example, ‘to X for life, and the remainder to X’s first daughter’. X’s life estate or particular estate would then support the later interest.

A remainder after a fee simple is void 7.18 A grant in fee simple is the maximum or largest possible interest granted over the land. No further interest can be created. So any remainder granted after a fee simple (including determinable or conditional fees simple) is void.

Remainder void if designed to take effect in possession by defeating the particular estate 7.19 Any remainder to vest in possession before the natural determination of the prior particular estate is void. Consider the following example. If G grants property ‘to A (a widow) for life provided she does not remarry, and then to B’, A has a conditional life estate. B has a remainder. But this is void at common law because at common law the only person who can take advantage of a broken condition is the grantor. Thus a remainder after a conditional life interest is void. However, remainders after determinable interests are valid and often this can be achieved by using different words in the grant or will.

Remainder void if it fails to vest during the continuance of the particular estate or at the moment of its determination as there cannot be an abeyance of seisin 7.20 G grants property ‘to my husband for life remainder to my children who graduate in medicine after his death’. At common law this grant would be void because there is bound to be a gap in seisin. If a grant is worded so that there is a possibility that there may not be a gap in seisin then the common law adopts a ‘wait and see’ approach. For example, ‘to A for life, then to her first child to reach the age of 21’. At the time of the grant it would not be possible to ascertain how long A will live and when her first child will reach 21. Adopting the ‘wait and see’ approach, if any of A’s children reach 21 in A’s lifetime, the remainder would be valid. [page 150]

A word of advice … The four rules had limited application to future interests. They affected only: legal future interests; contingent but not vested interests, as all interests either vested in possession or interest would satisfy the remainder rules; and remainders but not reversions.

The development of the use by equity 7.21 Thus far we have examined reversions and remainders which are two types of future interests arising at common law. There is yet a

third and the most obscure category of future interests. This category, derived from the Statute of Uses 1535 and the Statute of Wills 1540, grew out of equity-devising means to avoid the technical common law remainder rules: see A J Bradbrook, S V MacCallum, A P Moore and S Grattan, Australian Real Property Law, 5th ed, Law Book Co, Sydney, 2011, paras 10.75–10.90; P Butt, Land Law, 6th ed, Thomson Reuters, Sydney, 2010, paras 11 14–11 24. 7.22 Those who have studied the historical basis of equity (see Chapter 9) would have seen that the strict enforcement of common law rights often left persons without remedy. By the Middle Ages in England it was considered that the common law doctrines of tenure and estates were inadequate in themselves to form the basis of law. The main disadvantages were: the inability to dispose of estates by will; heavy feudal dues payable, especially upon the death of the owner of the freehold; and strict rules requiring public and formal conveyances of land: see Bradbrook et al, Australian Real Property Law, 5th ed, paras 2.285– 2.295. 7.23 For this reason the courts of equity recognised the concept of the ‘use’. Where X conveyed land ‘to A and his heirs to the use of B and his heirs in fee simple’, X intended to vest the legal estate in A while B had the beneficial enjoyment of the land. By this device, X avoided the disadvantages that occurred at common law. Initially at common law, A was the legal owner of the land. If A refused to allow B, the cestui que use (the beneficiary) the use of the land, B had no remedy. By the 15th century, the courts of equity began to protect the rights of the beneficiaries. Thus, a new form of interest in land arose — something not as good as the proper legal estate, but almost as good — the equitable estate. For the most part, equity follows the law, but in some areas the legal rules were modified to prevent the harsh application of technical rules.

[page 151] 7.24 Later there was impediment in the development of uses. Because the use side-stepped heavy feudal death duties, the King saw a consequent drop in revenue. This led to the passing of the Statute of Uses in 1535 to vest the legal estate in the beneficiary. Instead of B merely holding a beneficial interest, B was deemed by law to hold a legal estate (the Statute of Uses was enacted to abolish uses not institute them), and therefore heavy death duties once again became payable when B died. 7.25 It was thus made possible to create future interests which were accorded the status of legal estates and yet did not have to comply with the legal remainder rules (except for the fourth rule). These were called ‘legal executory interests’. They are now largely of historical interest in view of further developments in legislation. However, the Statute of Uses did not render all legal remainder rules redundant. Common law judges developed the rule in Purefoy v Rogers (1671) 2 Saund 380; 85 ER 1181. The rule was, even if a gift was contained in a legal executory interest (when a ‘use’ is employed) if there was a possibility of complying with the legal remainder rules, then it was to be treated as a legal contingent remainder. In other words, the common law sought to impose once again the legal remainder rules wherever possible: see Butt, Land Law, 6th ed, paras 11 25–11 30.

Statutory modification 7.26 Reform of the law was needed. This need was recognised by Sir George Jessel MR in the 19th century in a case where a remainder created by a will was struck down because of the application of the fourth legal remainder rule. He described it as ‘an arbitrary feudal rule, one of the legacies of the Middle Ages which has come down to our times, and which, not having been interfered with by the legislature, I cannot interfere with’: Cunliffe v Brancker (1876) 3 Ch D 393 at 399.

7.27 Several attempts were then made by the English legislature to mitigate the harshness of the legal remainder rules: see s 8 of the English Real Property Act 1845 and Contingent Remainders Act 1877. The English provisions have been adopted in Tasmania, Victoria and Western Australia, but these measures have been considered to be not quite successful in removing the problems related to contingent remainders. The legal remainder rules and the rule in Purefoy v Rogers have been modified in all the jurisdictions by different methods: see generally Bradbrook et al, Australian Real Property Law, paras 10.95– 10.130; and B Edgeworth, C Rossiter, M Stone, P O’Connor, Sackville and Neave Australian Property Law, 9th ed, LexisNexis Butterworths, Sydney, 2013, paras 3.66–3.73; and for an account of the different provisions in the states and the complexities in their interpretation, see Butt, Land Law, 6th ed, paras 11 31–11 36 for the New South Wales position, and A Wallace, M Weir and L McCrimmon, Real Property Law in Queensland, 4th ed, Thomson Reuters (Professional), Sydney, 2014, paras 6.410–6.460 for the Queensland position. For instance, statutes in New South Wales, Victoria and Queensland have abolished the Statute of Uses: Imperial Acts Application Act 1969 (NSW) s 8(1); [page 152] Property Law Act 1974 (Qld) s 7; Imperial Acts Application Act 1980 (Vic) s 5; Property Law Act 1958 (Vic) s 19A. 7.28 It should also be noted that in present day Australia, contingent remainders are seldom created in wills or by grants. To summarise: Equitable future interests did not need to follow the common law remainder rules. A device known as the ‘use’ was employed to overcome the technical legal remainder rules at common law. The Statute of Uses 1535 converted these equitable future interests into legal interests.

The common law then developed the rule in Purefoy v Rogersto try and impose the common law remainder rules wherever possible. Australian statutes have modified the application of the four common law remainder rules.

Problem-solving checklist A 10-point approach may help you answer a problem question. Usually problems relating to future interests are linked with issues related to estates and there is often an issue concerning determinable or conditional interests: 1. Look carefully at the terms of the grant or will. It will help if you deal with each interest in turn. 2. Identify whether it is a legal or an equitable interest. 3. Check the nature of the interest, that is, whether it is a fee simple or life interest. 4. Ascertain whether it is a present or a future interest. If a future interest, is it a remainder or a reversion? 5. Is the interest vested or does it take subject to a contingency? Apply the two tests discussed. If subject to a contingency, what must occur before the estate becomes vested? 6. If the interest is vested, is it vested in possession, or vested in interest? 7. Is the interest subject to some limiting event after taking the estate? If so, is the limitation a determinable limitation or a conditional one? Refer to the previous chapter on estates to check how to differentiate between the two limitations. In either case is the limiting event void or valid? What are the consequences of an invalid limiting event? 8. If the interest is a contingent legal remainder, determine whether you have to consider the four remainder rules. 9. Consider the effect of the statutory modifications in your state and

the difficulties in the interpretation of the provisions. 10. List the various interests and state your conclusions. [page 153]

Problem Immaculate in a Saville Row suit, Henry the Marquess of Millsn-Boon, an impoverished heir to nothing more than one of Britain’s oldest titles, seeks your advice. Henry has been married for more than five years to Gloria Homes-a-Courtyard who had inherited a fortune from her father, a mining magnate. At the time of marriage, Gloria was advised to make a will. Her will appointed her Uncle Ernest the executor and trustee. Among the terms of the will was a clause giving Ernest ‘all my real property to hold in trust for Henry and my best friend Lola for life in equal shares, on the condition that both of them shall survive me by 30 days. If either of them or both of them shall fail to survive me for 30 days then all my real property shall be distributed to the Salvation Army. All the remainder of my property shall also be distributed to the Salvation Army’. Although rapturously happy together, the couple were childless. Gloria very much wanted to try one of the many fertility methods that were available, but Henry had religious convictions against these methods. Recently, as an inducement for Henry to change his mind, she transferred two valuable seafront homes ‘to Henry for life, and if he and I should conceive a child then in fee simple’. Henry was not convinced about what he terms ‘medical experiments’. In any case Gloria died in a car crash last week before an appointment to the fertility experts could be made.

Advise Henry as to the nature of the interests of all parties mentioned.

Answer plan Will Ernest has a legal estate in fee simple of all the real property. The estate is vested in interest and possession because the grantor, Gloria, has died. Henry and Lola are beneficial joint owners for life of all the real property. (The concept of equitable interests will be explained in Chapter 10.) As will be explained in Chapter 10 on coownership, the words ‘in equal shares’ create a tenancy in common. Their interests are subject to a condition that they shall survive Gloria by 30 days, thus these are contingent interests. They are not remainder interests, neither are they legal interests as they are created under a will, and therefore they do not have to comply with the legal remainder rules. Under the terms of the will, Gloria’s estate has a fee simple in reversion if either or both Henry and Lola fail to fulfil the condition that they are to survive her for 30 days. She has disposed of her reversionary interest to the Salvation Army. Grant Henry’s life Interest in the two seafront homes is legal, absolute and vested in possession. He also has a legal contingent remainder in fee simple. There is a condition precedent (if he and Gloria conceive a child) not a condition subsequent. His interest will vest [page 154]

in interest when Gloria conceives a child and vest in possession at the same time because he is already in possession as a life estate holder. Again, all of the remainder rules are complied with. As Gloria has died without a visit to the fertility experts, the condition precedent has not been satisfied. Therefore, the fee simple will revert to Gloria’s estate to be dealt with in accordance with the terms of her will. Had Gloria not died, one should consider the validity of the gift. The gift is effective. The condition precedent does not offend any of the general rules: It is not against public policy to have children. It is not against the course of law. It is not imprecise. It is not a restraint of alienation. Henry’s fee simple once vested in interest and possession would be an absolute interest. As the fee simple is contingent, the grantor has a possibility of reverter.

Further discussion 7.29 Consider the legal position of legal contingent remainders in the context of statutory modification of the legal remainder rules in your state.

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8 Perpetuities Introduction 8.1 Historically, there have been two parties to the freedom of property struggle. The first is the easiest to identify: it consisted of those who owned property and wanted to retain control of it after their deaths. The opposing party included the courts, who wanted freedom of property. Freedom of property is also called the ‘alienability of property’. Various devices were adopted by landowners to get around any victory of alienability that the courts were able to achieve. These devices included the fee tail (see Chapter 6), contingent remainders (see Chapter 7) and trusts (see Chapter 9). By the use of these devices, landowners attempted to control property ‘from the grave’. The courts responded to these devices in various ways, but the most significant response was the rule against perpetuities. Parliament later intervened in the dispute with legislation. 8.2

The relevant Australian legislation is:

Australian Capital Territory — Perpetuities and Accumulations Act 1985; New South Wales — Perpetuities Act 1984; Northern Territory — Law of Property Act Pt XI;

Queensland — Property Law Act 1974 Pt 14; South Australia — Law of Property Act 1936 Pt 6 Div 31; Tasmania — Perpetuities and Accumulations Act 1992; Victoria — Perpetuities and Accumulations Act 1968; and Western Australia — Property Law Act 1969 Pt XI. These provisions will be referred to as the ‘Perpetuities statutes’. [page 156] 8.3 What is the current rationale for the rule against perpetuities? Allan suggests that it is the socially accepted desire of each generation to shape its own destiny and to be free from the control of preceding generations: see D E Allen, ‘The Rule Against Perpetuities Restated’ (1963) 6 University of Western Australia Law Review 27 at 30–33. This means that each generation must be able to deal with its property as it sees fit, and not according to the wishes of some long-dead relative. Many commentators accept this point as the main justification for the rule today: B Edgeworth, C Rossiter, M Stone and P O’Connor, Sackville and Neave Australian Property Law, 9th ed, LexisNexis Butterworths, Sydney, 2013, para 7.15; H A J Ford and W A Lee, Principles of the Law of Trusts, 3rd ed, Law Book Co, Sydney, 1996, para 724. The rule is considered to be a balancing act between the desires of the current generation to have complete freedom of property, and the desires of wealth accumulators to control that wealth after they have died. There has often been piecemeal statutory reform of the rule aimed at making it serve the balancing act between the generations. It is not surprising then that statutes result in the rule being inapplicable to: options to purchase property contained in a lease (as this encourages the lessee to develop the land) ((Perpetuities statutes)

ACT s 16(1)(b); NSW s 15(b); NT s 197(b); Qld s 218; Tas s 15; Vic s 15; WA s 110); and superannuation funds (as, on balance, it is better to have these funds continue than to force them to end) ((Perpetuities statutes) ACT s 14; NSW s 13; NT s 195; Qld s 220; Tas s 17; Vic s 17; WA s 115). The rule is concerned with disallowing the indefinite postponement (perpetuity) of the vesting of an interest in property. The rule is not concerned with the duration of an interest; it seeks only to ensure that the interest concerned will vest in some person within a certain time after the commencement of the instrument creating the interest. It should be noted that the rule applies not only to land but also to personal property. Although parliament has been examining the purpose of the rule, the courts to date have not. As we shall see, the courts have been applying the rule very strictly. This judicial approach has forced the parliaments in most states to enact statutory reform of the rule. It is essential, however, to understand the common law rule before these statutory reforms are considered. For a detailed discussion of this rather complex area, students should refer to Bradbrook et al, Australian Real Property Law, 5th ed, Ch 11, and Edgeworth et al, Sackville and Neave Australian Property Law, 9th ed, Ch 7.

Rule against perpetuities The old rule against perpetuities 8.4 The old rule against perpetuities grew out of attempts by people to restrain the alienation of property by creating an infinite series of contingent remainders, each [page 157]

giving no more than a life estate to each generation: see Chapter 7. The old rule against perpetuities prevented this being done by holding that where an interest in land was given to a person not yet born, any remainder to the offspring of that person was void. As a consequence of the courts’ interpretation of the old rule against perpetuities, it had a very narrow field of operation. Example 1 A written gift inter vivos from Andrew which says ‘to Lea for life, remainder to her (asyet-unborn) eldest son for life, remainder to the children of that son and his heirs’ would vest a life estate in Lea, and the contingent remainder to her eldest son would also be valid. However, the remainder to the children of that eldest son would be void.

8.5 The old rule has been abolished in all states: (Perpetuities statutes) NSW s 23A; NT s 201; Qld s 216; SA s 61(1)(b); Tas s 21; Vic s 12; WA s 114. So that, now, if a gift does not infringe the ‘modern rule against perpetuities’, it will not be struck down on the basis that it contravenes the old rule. Example 2 A written gift inter vivos from Andrew which says ‘to Lea for life, remainder to her (asyet-unborn) eldest son for life, remainder to the children of that son and his heirs’ would vest a life estate in Lea, and the contingent remainder to her eldest son would also be valid. The remainder to the children of her eldest son (and their heirs) would be invalid, but not because it constitutes a gift to the offspring of an unborn person; the gift of the remainder would be invalid because it infringes the modern rule against perpetuities. The children of Lea’s eldest son may be born more than 21 years after her death.

The modern rule against perpetuities At common law 8.6 The definition of the modern rule against perpetuities was stated by J C Gray in The Rule Against Perpetuities, Little Brown & Co, Boston, 1942, p 191, to be: ‘No interest is good unless it must vest, if at all, no later than 21 years after some life in being at the creation of

the interest.’ The elements of this definition are: (a) ‘vest’; (b) ‘21 years’; (c) ‘life in being’; (d) ‘at the creation of the interest’; and (e) ‘must vest, if at all’. [page 158] 8.7 ‘Vest’ It is from this element of the definition that it is obvious that the courts are not concerned with the duration of interests, but rather with the vesting of a future interest. A future interest will be vested if three requirements are satisfied: The person or persons entitled to the interest must be ascertained. The interest must be ready to take effect in possession, subject only to any prior interest. In the case of a gift to a class, the exact amount of the property to be obtained by each person must be known within the so-called ‘perpetuity period’. The vesting element of the definition involves gifts to a class (which will be dealt with later in the chapter), and also recognises that even if property only vests in interest and not in possession, that is sufficient to satisfy this element: see Chapter 7. 8.8 ‘21 years’ The perpetuity period is a combination of this element and that referred to in (c). 8.9 ‘Life in being’ This element, plus that referred to in (b), constitutes the perpetuity period. The three requirements for a life (or lives) in being are that it must be:

a human life (Re Dean (1889) 41 Ch D 552); in existence at the date the instrument comes into operation; and capable of ascertainment at the date the instrument comes into operation. It is this last requirement that means that a gift cannot specify so many lives in being that it is impracticable to ascertain when the last of them dies: Thellusson v Woodford (1798) 11 Ves 112, 134. Consequently, a gift that is not to vest ‘until … 21 years from the death of the last survivor of all persons who shall be living at my death’ is void: Re Moore [1901] 1 Ch 936. The last requirement also means that the class of measuring lives cannot be capable of increase. The life or lives in being may be expressly mentioned in the instrument or may be implied. If they are not expressly or impliedly mentioned, or satisfy the three requirements to be a life in being, the life in being will be the life of the person who creates the gift. It is important to remember that the life in being does not necessarily receive any property. Example 3 Bruce died leaving a will in which it was stated ‘all my property is to go to the first grandchild of my best friend Adam’. If Adam had no grandchildren at the time of Bruce’s death but did have children, Adam is the life in being as he is expressly mentioned. If Adam dies before Bruce and Adam had children, these children would be the implied lives in being. [page 159] It is obvious the difference that the selection of the life in being makes to the time period that is relevant for deciding if the gift is valid. It is extremely common for a testator to specify a very large group, so that the 21 years (the other element of the perpetuity period) only starts after the last member of this very large group has died. As it is necessary to identify all the lives in being, the Royal Lives clause has become popular.

Example 4

Imagine that in her will Yien states: ‘I give all my worldly property to my youngest greatgrandchild living when the last survivor of all the lineal descendants of Her Majesty Queen Elizabeth, who shall be living at the time of my death, dies’. Using a Royal Lives clause will work to make the perpetuity period as long as possible. The lineal descendants of Queen Elizabeth would satisfy the three requirements for a life or lives in being.

8.10 ‘At the creation of the interest’ This relates to the commencement of the perpetuity period. The perpetuity period, which is a combination of the life in being plus 21 years, commences if the disposition is: by will, on the death of the testator; and not revocable and is between living people (inter vivos), when the instrument creating that disposition is effective. 8.11 ‘Must vest, if at all’ This element of the common law definition demonstrates that the rule is concerned with whether there is a possibility, and not a probability, of the gift vesting outside of the perpetuity period. It is because of this approach that many of the absurd results in this area are reached. The focus on possibilities has meant that the rule assumes that anyone, regardless of their age, can have a child. The possibility focus is also responsible for the absurd ‘magic gravel pits’ and the ‘fertile octogenarian’ cases. The ridiculous results which can arise from the fertile octogenarian conclusive presumption are demonstrated in the next example. Example 5 A written gift inter vivos from Jan states: ‘I give my beach house to my friend Carol for life, remainder to her first grandchild to reach 21’. When this gift comes into effect, Carol is 77. Carol has only one child, Louisa. Louisa is aged 55 and has two children. Carol’s eldest grandchild, Richard, is 20. Carol’s other grandchild is Patrick, who is 12. Under the common law, the remainder to the first grandchild to reach 21 is void because it infringes the rule against perpetuities. The conclusive common law presumption of fertility means that it is possible for Carol to have another child. Therefore, only Carol (and not also Louisa) is the life in being. So, the perpetuity period is her life plus 21 years. This means that gift must be certain to vest, if at

[page 160] all, within 21 years of Carol’s death. However, it is possible that neither Richard nor Patrick will live to be 21. Furthermore, it is legally presumed to be possible that Carol or Louisa (or both of them!) could have more children. So it is possible that Carol may have more grandchildren, whether through Louisa or through an as-yet-unborn second child. It is also possible that the first of any such grandchildren to attain 21 will have been born after Carol’s death. If so, that grandchild will turn 21 more than 21 years after Carol’s death. Thus, the gift might vest after the perpetuity period has elapsed. No matter how unlikely, the possibility of this occurrence makes the gift from Jan to Carol’s eldest grandchild void. An equally bizarre result is reached by the application of the ‘magic gravel pits’ cases. The leading magic gravel pits case is Re Wood [1894] 3 Ch 381. This case is a good illustration of what the focus on possibility, and not probability, means and how this common law rule can produce very strange results. A person died owning some gravel pits. The pits were nearly empty of gravel. In his will he directed his trustees to continue to mine the pits until there was no more gravel, and then to sell them. The proceeds of the sale were to go to his children. It was almost certain that the gravel pits would be completely empty of gravel, and sold, within the perpetuity period (in fact the pits were exhausted within six years of their owner’s death). However, the English Court of Appeal held that the gift to the testator’s children failed because there was a possibility, although extremely unlikely, that the pits would continue to be mined, making them ineligible for sale within the perpetuity period. The court’s approach seemed to indicate that there was a possibility that the pits could magically refill with gravel. Thus the gift was void from the beginning as it infringed the rule against perpetuities. Re Wood indicates that the courts do not take into account what actually happened but look only at possibilities. It is also this element of the common law definition of the rule which means that it really should be known as the rule against the remoteness of vesting. A gift must vest within the perpetuity period.

Statute 8.12 The shortcomings with the common law rule against perpetuities are apparent. To remedy the problems some state parliaments have enacted legislative reforms. 8.13 New South Wales and the Australian Capital Territory New South Wales has taken the most radical approach. Its legislation abolishes the common law perpetuity period and replaces it with a set 80-year limit: Perpetuities Act 1984 (NSW) s 7(1). While the common law rule looks to the possibility of vesting outside the perpetuity

period, the New South Wales legislation completely changes this with a ‘wait and see’ approach as seen in Example 6 below: Perpetuities Act 1984 s 8. By the application of s 8, instead of determining the validity of a gift by reference to what may possibly occur, the court examines what actually does occur. So if a gift can vest within 80 years, but can also vest outside of 80 years, the court can ‘wait and see’ what happens. If the gift does vest within the 80 years, it is valid: see generally C M Sappideen and P Butt, The Perpetuities Act 1984, The Law Book Co, [page 161] Sydney, 1986, p 48. The Australian Capital Territory has also adopted this approach: Perpetuities and Accumulations Act 1985 (ACT) s 8. 8.14 The Northern Territory, Queensland, Tasmania, Victoria and Western Australia Unlike the New South Wales approach where the perpetuity period is now 80 years, the perpetuity period in these four states and territory is either the common law perpetuity period or a statutory period which cannot exceed 80 years: (Perpetuities statutes) NT s 187; Qld s 209; Tas s 6; Vic s 5(1), (3); WA s 101. The legislation presents a choice as to how to determine the perpetuity period. The drafter of the gift can select a perpetuity period of a number of years (not exceeding 80) to replace the common law perpetuity period. The legislation also creates a ‘wait and see’ approach (Perpetuities statutes: NT s 188; Qld s 210; Tas s 11; Vic s 6; WA s 103) which negates the common law approach of determining a gift’s validity by examining the possibilities at the time the instrument becomes effective. Example 6 In his will Ben makes a gift ‘to Ahab for life, remainder to Ahab’s first child to marry’. Let us first consider the position at common law. If at Ben’s death Ahab is alive and does not have a married child then at common law the gift is void. This is because Ahab is the life in being and it is possible that he will have children and that the first of them to marry will do so more than 21 years after his death. However, if Ahab dies before Ben, the reverse is true. In this case, the gift would be valid at common law. The reason for

this is that if Ahab is dead when the will takes effect, under the common law rule, Ahab’s children are implied lives in being. Since none of them can marry more than 21 years after his or her own death, the gift must vest (if it vests at all) within the perpetuity period. If any of Ahab’s children marry, the first to marry must do so before 21 years after the death of the last of them. Thus, at common law, the validity of the gift is decided at the date of Ben’s death and it hinges upon whether Ahab predeceases Ben. Let us consider the effect of the legislation, which will impose an 80-year perpetuity period — automatically (in New South Wales and the Australian Capital Territory) and, if stipulated by Ben (in the Northern Territory, Queensland, Tasmania, Victoria and Western Australia). The legislation means that the court must wait and see if a child of Ahab marries within 80 years of the date when the will comes into effect — that is, the date of Ben’s death. In this way, the gift may be valid. Although, if none of Ahab’s children marry within that time, the gift will fail. Under the legislation, the gift may still fail, if none of Ahab’s children marry within 80 years of Ben’s death. It cannot be necessarily and conclusively ascertained at the outset and might not be determined until 80 years from Ben’s death. The validity of the gift hinges upon whether or not one of Ahab’s children marries within that time.

8.15 The Perpetuities statutes (NT s 189; Qld s 212; Tas s 10; Vic s 8; WA s 102) also contain presumptions that overturn the bizarre fertile octogenarian cases. [page 162]

Class gifts 8.16 When we dealt with the ‘vesting’ element of the common law definition of the rule against perpetuities, mention was made of class gifts. This is a gift to a class, and not to a specific person. An example of a class gift is a gift in a will (also called a ‘bequest’) by William (the testator) which states ‘I give all of my property to my grandchildren who reach 25’. A class gift is a gift to an uncertain number of people: Re Drummond’s Settlement [1988] 1 All ER 449 at 453. A bequest that says ‘I leave all of my property to my children’ is not a class gift, as the number of the testator’s children will be known at the date of death.

At common law 8.17 Where class gifts are concerned, the rule that is used is the ‘all or nothing’ rule. This states that the gift will only be valid if the exact amount of the gift that is to vest in each member of the class can be determined within the perpetuity period. The certainty is judged at the date the perpetuity period begins, and it considers all possibilities. The harshness of the ‘all or nothing’ rule can be seen in the following example. Example 7 In the will above where William states ‘I leave all of my property to my grandchildren who reach 25’, the bequest fails on account of the ‘all or nothing’ rule. William died leaving four children named Marie, Peter, Susan and David, each of whom had a child. The grandchildren are Marie Junior, Peter Junior, Susan Junior and David Junior. When William died, his grandchildren were respectively aged 20, 16,12 and eight. The four children of William are the implied lives in being. Remember that at common law the focus is on possibilities. Imagine Susan is the last surviving child of William. She could possibly have a child a day before her death. This possible grandchild of William is called Amanda. When Marie, Peter, Susan and David are all dead there are no more lives in being, and the 21 years begins. At this date Marie Junior is 28, Peter Junior is 24, Susan Junior is 20 and David Junior is 16. However, Amanda will not reach 25 within the 21 years, so the class gift would fail. Essentially, the whole gift fails because of the possibility that any of William’s children may have a child fewer than four years before the last of them (ie, William’s children) dies. This means that William’s bequest to his grandchildren will fail completely, so that no grandchild, including Marie Junior, will receive William’s property — even though four out of his five grandchildren are likely to reach 25 within the perpetuity period.

8.18 The common law class-closing rules have the effect of validating a gift that would otherwise be bad for breaching the rule against perpetuities. The rules operate by closing the class to all possible members of that class who are born after the first member of the class becomes entitled to his or her share of the gift. All [page 163] potential members of the class who may satisfy the gift requirements

and are alive when the first member of the class becomes entitled to a share in the gift are eligible for inclusion in the class. However, all potential members who are born after the first member becomes so entitled are excluded. If the class-closing rules are imposed on the facts in Example 7, the class closes as soon as Marie Junior reaches 25. The other members of the class alive at that date are the only parties eligible to share in William’s property. This means that Amanda will miss out but that Marie Junior, Peter Junior, Susan Junior and David Junior are all likely to receive their share of the property. This means that four out of the five grandchildren will receive the property and only one will miss out.

Statute 8.19 Legislation has altered the common law as it relates to class gifts. In all of the states the common law position of looking at the possibility of failure of the class gift has been replaced with the ‘wait and see’ approach: (Perpetuities statutes) ACT s 9; NSW s 8; NT s 190; Qld s 210; Tas s 11; Vic s 6; WA s 103; and see Nemesis Australia Pty Ltd v Commissioner of Taxation (2005) 150 FCR 152. Further, the legislation provides that if the class gift contains an age contingency and the gift fails to vest within the perpetuity period, reduction of the specified age may occur to save the gift: (Perpetuities statutes) ACT s 10(3); NSW s 9(1); NT s 191(4); Qld s 213; Tas s 11; Vic s 9; WA s 105(1). If all of these potential remedies are inadequate to save the gift, as a last resort a member of a class may be excluded from that class in order for the gift to vest: (Perpetuities statutes) NSW s 9(4); Qld s 213(3), (4); Tas s 11(3), (4); Vic s 9(3), (4); WA ss 106–107; see generally P Sparkes and R Snape, ‘Class Closing and the Wait and See Rule’ (1988) 52 Conveyancing & Property Lawyer 339. Example 8 In a written gift inter vivos, Edmund states: ‘I want all of my nieces and nephews who reach 25 to have my farm “Lamb Baa”’. Edmund is an only child and has no nieces or nephews when the gift comes into operation. As Edmund’s mother and father are still alive, Edmund could have more brothers and sisters. The above information has two

consequences. The first is that the life in being will be Edmund’s. This results in the perpetuity period being Edmund’s life plus 21 years. The second consequence is that Edmund could easily have nieces and nephews who reach 25 after the completion of the perpetuity period. At the end of the perpetuity period, Edmund has five nieces and nephews. Their ages are 24, 23, 22, 19 and eight. The application of the age reduction provisions means that the required age will be reduced from 25. However, this reduction only helps the nieces and nephews aged 24, 23 and 22. The gift will still be void because the other two, aged 19 and eight, are not assisted by the age reduction. It is at this point that the drastic step of excluding people from the gift will occur. The 19 and eight-year-olds will be excluded from the class, in order to enable Edmund’s gift to be valid and divided among the 24-, 23- and 22-year-old nieces and nephews.

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Consequences of infringing the rule against perpetuities At common law 8.20 The consequences of infringing the rule against perpetuities are determined by whether the interests, which do not infringe the rule, are independent of the infringing interest. If there is no valid gift, and only a void interest, then the property returns to the creator of the gift by way of resulting trust: see Chapter 9. An interest which comes before the interest which infringes the rule is valid. Example 9 In his will, Barry states: ‘I give my house to my grandchildren who reach 21, but at the birth of my first great-grandchild the house is to go to that great-grandchild’. The bequest to the great-grandchild is void for infringing the rule against perpetuities because it can vest outside the perpetuity period. The gift to the grandchildren, however, which is completely independent of the void bequest, is valid and the grandchildren get the property. If a valid interest follows an interest which is void because it infringes the rule, the later valid interest will take effect only if it is independent of the void interest. The following example, given by C Harpum, S Bridge and M Dixon, Megarry and Wade: The Law of Real Property, 8th ed, Sweet & Maxwell, London, 2012, shows the situation where a later, valid interest is independent of an

earlier, void interest.

Example 10 ‘To A for life, remainder for life to any wife he may marry, remainder for life to any husband whom such wife may marry, remainder to such of A’s children as attain the age of 21.’ Both gifts to A and his wife are valid. However, at common law, the limitation to the wife’s husband would be void for infringing the rule against perpetuities, as A’s wife may not be alive at the time of the gift, and she may marry more than 21 years after A’s death. In spite of this, the gift to the children of A is valid. This is because this interest, although it followed a void interest, was independent of that void interest and it had to vest, if at all, within the perpetuity period: MacPherson v Maund (1937) 58 CLR 341: see Harpum, Bridge and Dixon, Megarry and Wade: The Law of Real Property, 8th ed, p 193. If the later interest is not independent of the first interest, the consequence of the earlier interest infringing the rule is that the later interest is invalid.

Example 11 A bequest states that Wendy leaves her house and lands ‘to Phillip for life, remainder in fee simple to the first of my daughters to marry, but if there is no such daughter then to Lisa’. As the earlier interest to the first of Wendy’s daughters to marry is void (as it may vest outside of the perpetuity period), and the later interest to Lisa is dependent on this earlier interest, it will also be void.

[page 165]

Statute 8.21 All the states, except for South Australia, have legislation which changes the common law result where a later interest is dependent upon an earlier interest which is void as a consequence of infringing the rule. In such a situation, as occurred in Example 11, the legislative provisions would save the later interest: (Perpetuities statutes) ACT s 18; NSW s 17; NT s 199; Qld s 215; Tas s 12; Vic s 11; WA s 109. Example 12

Example 12 In her will, Rosemary wrote ‘to Andrew for life then to Leo’s grandchildren, but if he has no grandchildren, to Judith’. At Rosemary’s death, Leo had no children. The common law position would be that the gift to Leo’s grandchildren is void. As the later interest to Judith is dependent upon the earlier void interest, the later interest is also void. However, by applying the legislation the later dependent interest is saved.

Problem George owned three properties: ‘The Property’, ‘The Palace’ and ‘The Shack’. While he was still alive, George, who was a great believer in the need for humanity to explore space, made a settlement to encourage this exploration. In 1960, he had his solicitor draft the following gift. After all the necessary preamble, it said: ‘my fee simple in ‘‘The Property’’ to the first person to walk on the moon’. After making this settlement, George turned his mind to dealing with ‘The Palace’ and ‘The Shack’ in his will. George had his will drafted to include the following two dispositions: (i) George left ‘The Palace’ ‘to the first of my children to become a Certified Practising Accountant (CPA) for life, then absolutely to the first of my grandchildren to reach 21’. Suppose George has three children (Alice, Benny and Charlie) none of whom are yet CPAs. Alice, Benny and Charlie as yet have no children of their own. (ii) George left ‘The Shack’ ‘to the first of my brother Bruce’s children to become a CPA for life, then absolutely to the first of Bruce’s grandchildren to reach 21’. Suppose Bruce is alive, aged 70, at George’s death. Bruce has two children, Dennis and Eileen, neither of whom is a CPA. Dennis has two children, aged 19 and 17.

(a) Determine whether the disposition in 1960 is valid. (b) Comment on the validity of each of the proposed dispositions involving ‘The Palace’ and ‘The Shack’.

[page 166]

Answer plan (a) This gift involves the 1960 disposition. The first matter to be addressed is the date when the interest was created. As this is an inter vivos disposition, the interest is created immediately. The next step is to decide who is the life in being. The life in being is the settlor (the person who made the settlement). In other words, George is the life in being. The perpetuity period is the life in being plus 21 years. Unless the disposition took effect in South Australia, the old rule against perpetuities has no application. It is possible that no-one will walk on the moon within the perpetuity period. This is despite the fact that it is now known that someone did walk on the moon in 1969. The possibility of someone walking on the moon must be examined at the time when the interest was created. The conclusion is that at common law the disposition is void. After having examined the common law position, it is essential to look at the impact that legislation has on the validity of George’s disposition. To look at the legislation enacted which may be relevant to this disposition, it is necessary to divide up the various jurisdictions. If the disposition occurred in South Australia, there is no relevant legislation to consider. Regarding legislative responses, New South Wales (and similarly the

Australian Capital Territory) has taken the most radical approach. The legislation in that state abolishes the common law perpetuity period and replaces it with a set 80-year limit: Perpetuities statute, NSW s 7(1). While the common law rule looks to the possibility of vesting outside the perpetuity period, the New South Wales legislation completely changes this with a ‘wait and see’ approach: Perpetuities statute, NSW s 8. By the application of s 8, instead of determining the validity of a gift by reference to what may possibly occur, the court examines what actually does occur. So if a gift can vest within 80 years, but can also vest outside of 80 years, the court can ‘wait and see’ what happens. If the gift does vest within the 80 years, it is valid. If it fails to vest within 80 years, it is invalid. As we know that someone did walk on the moon within 80 years, this gift is valid under the New South Wales legislation. Unlike the New South Wales approach where the perpetuity period is now 80 years, the perpetuity period in the Northern Territory, Queensland, Tasmania, Victoria and Western Australia is either the common law perpetuity period or a statutory period which cannot exceed 80 years: (Perpetuities statutes) NT s 187; Qld s 209; Tas s 6; Vic s 5(1), (3); WA s 101. The legislation presents a choice as to how to determine the perpetuity period. George could have selected a perpetuity period of a number of years (not exceeding 80) and replaced the common law perpetuity period. However, there is no indication that George has replaced the common law perpetuity period. Yet the gift would still be saved because the legislation also creates a ‘wait and see’ approach (Perpetuities statutes: NT s 188; Qld s 210; Tas s 11; Vic s 6; WA s 103), as in New South Wales, which negates the common law approach of determining a gift’s validity by examining the possibilities at the time the

instrument becomes effective. [page 167] (b) The second part of this problem concerns the dispositions in the will. These dispositions will be taken in turn. Regarding will disposition (i), the interest is created on the death of George, as this is when the will becomes operative. There are two gifts involved in this one disposition. The first disposition relates to giving ‘The Palace’ for life to the first of George’s children to become a CPA. This is not a class gift. A class gift is a gift to an uncertain number of people: Re Drummond’s Settlement [1988] 1 All ER 449 at 453. A bequest that says ‘I leave all of my property to my children’ is not a class gift, as the number of the testator’s children will be known at the date of death. This is exactly the situation which is applicable here. The perpetuity period is the life in being plus 21 years. A child of George, if that child is to become a CPA at all, must become a CPA within the perpetuity period. In this way, the common law rule against perpetuities is satisfied and the disposition is valid. Note that George did not explicitly nominate a life in being. Therefore, students may think that this means that the perpetuity period runs from the time of his death. If that were so, the gift would fail. But, because the vesting is causally connected with George’s children (if there are no children the gift cannot vest), they are implicitly included as lives in being. And they are a group of human beings alive at the time of George’s death, not too great in number and not capable of being added to or expanded. Therefore, they are capable of being lives in being, keeping in mind the factor of becoming a CPA. At this point, it is appropriate to examine the relevant

legislation. In New South Wales, the legislation abolishes the common law perpetuity period and replaces it with a set 80-year limit: Perpetuities statute, NSW s 7(1). While the common law rule looks to the possibility of vesting outside the perpetuity period, the New South Wales legislation completely changes this with a ‘wait and see’ approach: Perpetuities statute, NSW s 8. By the application of s 8, if the gift does vest within the 80 years it is valid. If it fails to vest within 80 years it is invalid. Unlike the New South Wales approach, where the perpetuity period is now 80 years, the perpetuity period in Queensland, Tasmania, Victoria, Western Australia and the Northern Territory is either the common law perpetuity period or a statutory period which cannot exceed 80 years. In South Australia, where the common law applies, the first part of this gift would be good. In all of the other states and territories (apart from New South Wales and the Australian Capital Territory), George would have had the option of selecting a perpetuity period of up to 80 years. However, there is no evidence of his having done so: (Perpetuities statutes) NT ss 187, 188; Qld ss 209, 210; Tas ss 6, 11; Vic ss 5(1), (3), 6; WA ss 101, 103. As discussed in New South Wales and the Australian Capital Territory, where the common law perpetuity period has been replaced by an 80-year period combined with a ‘wait and see’ approach, it cannot yet be said that this gift will vest within the perpetuity period; it is possible that one of George’s children could fulfil the obligation: (Perpetuities statutes) ACT ss 8–10; NSW ss 7–9. The second gift which is involved with will disposition (i) is the gift to George’s grandchildren. Once again the interest is created on George’s death. The lives in being in this problem will be George’s children, Alice, Benny and Charlie. This is a class gift, as it is being given to a group of people, that is, George’s grandchildren, whose number

may increase. But the class-closing rules are not [page 168] relevant in this situation as the gift is to one member of the class and not to any member of the class who satisfies the condition. So, the common law test is: ‘No interest is good unless it must vest, if at all, no later than 21 years after some life in being at the creation of the interest’. On this basis, the common law rule against perpetuities will be satisfied as the gift must vest, if it is to vest at all, within the perpetuity period, as a grandchild of George must turn 21 within 21 years of the death of the last life in being. It is now vital that gift two in disposition (i) is examined from the statutory view. New South Wales has an extreme approach. There, legislation abolishes the common law perpetuity period and replaces it with a set 80-year limit: Perpetuities statute, NSW s 7(1). The New South Wales legislation adopts a ‘wait and see’ approach: Perpetuities statute, NSW s 8. By the application of s 8, instead of determining the validity of a gift by reference to what may possibly occur, the court examines what actually does occur. Unlike the New South Wales approach where the perpetuity period is now 80 years, the perpetuity period in the Northern Territory, Queensland, Tasmania, Victoria and Western Australia is either the common law perpetuity period or a statutory period which cannot exceed 80 years: (Perpetuities statutes) NT s 187; Qld s 209; Tas s 6; Vic s 5; WA s 101. The legislation also creates a ‘wait and see’ approach (Perpetuities statutes): NT s 188; Qld s 210; Tas s 11; Vic s 6; WA s 103), as in New South Wales, which negates the common law approach of determining a gift’s validity by examining the

possibilities at the time the instrument becomes effective. Turning now to disposition (ii) in George’s will. This is the disposition which relates to ‘The Shack’. Once again there are two gifts. The first gift in will disposition (ii) involves a life estate. This first gift is to the first of Bruce’s children to become a CPA. The death of George is the starting point for this interest. The life in being in this problem is, most likely, Bruce. The perpetuity period is the life in being plus 21 years. This appears to be a gift to a class in that Bruce may have more children. However, this is not a class gift as only one person is to take the property. The modern rule against perpetuities at common law is: ‘No interest is good unless it must vest, if at all, no later than 21 years after some life in being at the creation of the interest’. This rule will be infringed as it is possible that Bruce’s child may decide to become a CPA outside of the perpetuity period. Therefore, the gift is void at common law. At this point the question of statute must be addressed. South Australia is the only state not to have some legislation which may save this gift. The New South Wales legislation abolishes the common law perpetuity period and replaces it with a set 80-year limit: Perpetuities statute, NSW s 7(1). While the common law rule looks to the possibility of vesting outside the perpetuity period, the New South Wales legislation completely changes this with a ‘wait and see’ approach: Perpetuities statute, NSW s 8. By the application of s 8, instead of determining the validity of a gift by reference to what may possibly occur, the court examines what actually does occur. Unlike the New South Wales approach where the perpetuity period is now 80 years, the perpetuity period in the Northern Territory, Queensland, Tasmania, Victoria and Western Australia is either the common law perpetuity period or a statutory period which cannot exceed 80 years:

[page 169] (Perpetuities statutes) NT s 187; Qld s 209; Tas s 6; Vic s 5(1), (3); WA s 101. The legislation therefore presents a choice as to how to determine the perpetuity period. The drafter of the gift can select a perpetuity period of a number of years (not exceeding 80) and replace the common law perpetuity period. The legislation also creates a ‘wait and see’ approach (Perpetuities statutes: NT s 188; Qld s 210; Tas s 11; Vic s 6; WA s 103), which negates the common law approach of determining a gift’s validity by examining the possibilities at the time the instrument becomes effective. In will disposition (ii), there is a second gift. This gift relates to the first of Bruce’s grandchildren to reach 21. Once again the interest will be created by George’s will becoming operative and it will become operative on George’s death. The life in being will be Bruce. This appears to be a class gift but the class-closing rules are not applicable here as the gift is to an individual and not to a class. At this point the modern rule against perpetuities at common law must be applied. The rule states: ‘No interest is good unless it must vest, if at all, no later than 21 years after some life in being at the creation of the interest’. This rule will not be satisfied as it is possible, but unlikely, that Dennis and Eileen will die, as well as Dennis’s children, and that Bruce will have another child before he dies. This other child of Bruce could have a child who turns 21; the first of Bruce’s grandchildren to turn 21 outside of the perpetuity period. It is vital to remember that the common law rule looks to possibilities and not probabilities. This makes it essential to examine the relevant legislation on point. In New South Wales the Act abolishes the common law perpetuity period and

replaces it with a set 80-year limit: Perpetuities statute, NSW s 7(1). While the common law rule looks to the possibility of vesting outside the perpetuity period, the New South Wales legislation completely changes this with a ‘wait and see’ approach: Perpetuities statute, NSW s 8. On our facts, such a ‘wait and see’ approach would be beneficial. Unlike the New South Wales approach where the perpetuity period is now 80 years, the perpetuity period in the Northern Territory, Queensland, Tasmania, Victoria and Western Australia is either the common law perpetuity period, or a statutory period which cannot exceed 80 years: (Perpetuities statutes) NT s 187; Qld s 209; Tas s 6; Vic s 5(1), (3); WA s 101. The legislation therefore presents a choice as to how to determine the perpetuity period. The drafter of the gift can select a perpetuity period of a number of years (not exceeding 80) and replace the common law perpetuity period.

Further discussion

The rule against perpetuities has been the subject of considerable debate in the United Kingdom. A 1998 Law Reform Commission report recommended sweeping changes (Law Com No 251 — The Rules Against Perpetuities and Excessive Accumulations) and, after further debate, on 24 March 2009, the Department of Justice (UK) released an impact assessment of various options to amend the rule against perpetuities and excessive accumulations: