LawBriefs - Property - Law - (PG - 30 134)

PART I
Copyright © 2015. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.
WHAT IS PROPERTY AND THE

IMPORTANCE OF POSSESSION
Dr, Kristy Richardson. LawBriefs: Property Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/unsw/detail.action?docID=4985429.
Created from unsw on 2018-01-13 00:50:15.
Chapter 1
What Is “Property”?
What Is “Property”?
[1.10] INTRODUCTION....................................................................... 4
[1.20] WHAT IS “PROPERTY”?............................................................. 4
[1.40] JURISPRUDENTIAL THEORIES.................................................... 5
[1.40] Labour theory............................................................... 5
[1.50] Social utility approach .................................................... 6
[1.60] Marxist approach .......................................................... 6
[1.70] Economic analysis approach ............................................ 6
[1.80] CLASSIFICATIONS OF PROPERTY............................................... 7
[1.110] LAND AND THE LIMITS OF LAND OWNERSHIP .............................. 9
Introduction
[1.10] Property is not an easy term to define precisely. What property is
has been the subject of judicial interpretation and jurisprudential writings.
Legislation also plays a role in defining certain aspects of property. Whilst
property is not able to be defined precisely, there seems to be agreement
that property is not simply a “thing”. Members of the High Court noted in
Yanner v Eaton (1999) 201 CLR 351 that property is not of “standard content
and invariable intensity”. The High Court considered that what is
important is the amount of control that a person exercises over the
property. It is that control that gives rise to enforceable legal relationships.
In turn, the extent of that control, that is, the ability to possess and deal with
the property (eg, by selling, consuming or modifying it) is determined by

reference to the law that reflects societal conditions existing at any given
time.
What is “property”?
Yanner v Eaton
[1.20] Yanner v Eaton (1999) 201 CLR 351
FACTS • In 1994, Yanner, an Aboriginal Australian, used a traditional harpoon to catch

two crocodiles in far north Queensland. He and other members of his clan skinned the
crocodiles, eating some of the meat and freezing the rest. Under Queensland’s Fauna
Conservation Act 1974 a person was prohibited from taking or keeping fauna of any kind
CHAPTER 1 WHAT IS “PROPERTY”? / 5
without a licence or other authority issued under the Act. Yanner was not authorised under
the Act and was charged in the Magistrates Court of Queensland with taking fauna contrary
to the Act. The Magistrate held that s 211 of the Native Title Act 1993 (Cth) applied so as to
permit Yanner to hunt the crocodile for food and found Yanner not guilty. The decision was
appealed to the Court of Appeal of Queensland; that court set aside the Magistrate’s order.
Yanner appealed to the High Court of Australia, contending that the Magistrate was right; in
taking the crocodiles Yanner was exercising his right to enjoy his property (ie, his native title
rights and interests).
HELD • The appeal was allowed (per Gleeson CJ, Gaudron, Kirby, Hayne and Gummow JJ;
Callinan and McHugh JJ dissenting). The majority in their joint judgment discussed the
meaning of property (at [17]):
the word ‘property’ is often used to refer to something that belongs to another. But in the Fauna
Act, as elsewhere in the law, ‘property’ does not refer to a thing; it is a description of a legal
relationship with a thing. It refers to a degree of power that is recognised in law as power
permissibly exercised over the thing. The concept of ‘property’ may be elusive.
Continuing (at [20]):

… because ‘property’ is a comprehensive term it can be used to describe all or any of very many
different kinds of relationship between a person and a subject matter. To say that person A has
property in item B invites the question what is the interest that A has in B? The statement that A
has property in B will usually provoke further questions of classification. Is the interest real or
personal? Is the item tangible or intangible? Is the interest legal or equitable? For present
purposes, however, the important question is what interest in fauna was vested in the Crown
when the Fauna Act provided that some fauna was ‘the property of the Crown and under the
control of the Fauna Authority’?
The court found that Yanner’s hunting rights and interests were native title rights as
“recognised by the common law of Australia”. Consequently, Mr Yanner’s rights and
interests as a native title holder permitted the hunting and fishing of the crocodiles.
[1.30] Any meaning of “property” is determined by reference to the law,

which reflects societal conditions existing at any given time. Various
jurisprudential theories exist to justify the notion of private property rights.
Jurisprudential theories
Labour theory
[1.40]
John Locke (1632–1704)

Locke’s labour theory of property ownership was that one’s hard work (labour) gave rise to a
6 PART I WHAT IS PROPERTY AND THE IMPORTANCE OF POSSESSION
natural right to that property. Locke asserted that nine-tenths of the value of anything
produced was due to a person’s labour.
However, the notion that people have proprietary rights in the product of their labour has
limited application to an industrial or service-driven society where something that is
produced may have been the subject of a number of people’s labours. What is the value of A
or B’s (or more people’s) labour in proportion to the final value of the good?
Social utility approach

[1.50]
Jeremy Bentham (1748–1832)

Bentham was a utilitarian and his philosophy rested on the “greatest-happiness principle”.
He believed that pleasure/happiness is good and pain is bad. Therefore, for the greatest
good to be achieved, society needs a system where there is a balance of pleasure over pain.
As far as the “greatest-happiness principle” relates to property, Bentham considered that
property ownership created happiness and an incentive for wealth creation. Such happiness
and wealth is good for society as a whole. Whilst Bentham acknowledged that private
property had the capacity to create social inequality, he did not regard that inequality as
justifying a readjustment of the balance to remove private property rights.
Marxist approach
[1.60]
Karl Marx (1818–1883)

Marx also considered the notion of private property ownership from a labour theory of
property, but from the perspective of the worker or wage-earner. He argued that those who
owned the property were few (capitalists), whilst those who worked to create the property
were many (workers). Marx regarded this imbalance as exploitation, in the sense that
workers were being deprived of the property that resulted from their labours. Marx called
for the abolition of private property rights so as to redistribute wealth equally.
Economic analysis approach

[1.70] The economic analysis approach to justify the recognition of private
property rights combines the disciplines of law and economics. In the
context of property, the economic analysis approach examines how scarce
resources can be most efficiently allocated.
Garrett Hardin
Hardin, through his seminal article, “The Tragedy of the Commons” (1968) 162 Science
1243 at 1244, highlights how resources can be misallocated where there are no property
rights:
The tragedy of the commons develops in this way. Picture a pasture open to all. It is to be expected
that each herdsman will try to keep as many cattle as possible on the commons. As a rational
being, each herdsman seeks to maximize his gain. Explicitly or implicitly, more or less consciously,
he asks, ‘What is the utility to me of adding one more animal to my herd?’ This utility has one
negative and one positive component.
(1) The positive component is a function of the increment of one animal. Since the herdsman
receives all the proceeds from the sale of the additional animal, the positive utility is nearly
+1.
(2) The negative component is a function of the additional overgrazing created by one more
animal. Since, however, the effects of overgrazing are shared by all the herdsmen, the
negative utility for any particular decision-making herdsman is only a fraction of –1.
Adding together the component partial utilities, the rational herdsman concludes that the only
sensible course for him to pursue is to add another animal to his herd. And another; and another …
But this is the conclusion reached by each and every rational herdsman sharing a commons.
Therein is the tragedy. Each man is locked into a system that compels him to increase his herd
without limit — in a world that is limited. Ruin is the destination toward which all men rush, each
pursuing his own best interest in a society that believes in the freedom of the commons. Freedom in
a commons brings ruin to all.
Richard Posner
In his text Economic Analysis of Law (2nd ed, Little Brown & Co, 1977), pp 27–31, Posner
argued that to overcome the “tragedy of the commons” three criteria are needed for an
efficient system of property rights:
• Universality — All resources should be owned by someone.
• Exclusivity — The greater the ability to exclude all others from the property right, the
greater the incentive to invest resources in the development of the property.
• Transferability — If a property right cannot be transferred there is a risk that resources

cannot be shifted. This would result in a misallocation of the resource.
Classifications of property
[1.80] Although property is not easy to define, it is capable of classification.
Property has historically been classified as being either real property or
personal property. Real property describes interests in land other than
leasehold interests. Real property interests are incorporeal hereditaments
(rights unable to be inherited, eg, an easement) and corporeal hereditaments
(things able to be inherited such as a fixture). Personal property describes
all property other than real property. Personal property comprises chattels
real and chattels personal. Chattels real refers to a leasehold interest whilst
chattels personal comprises moveable property. Chattels personal can be

further classified as choses in possession (tangible items of personal
property, eg, furniture) and choses in action (intangible personal rights
such as a debt due).
As demonstrated in the case of Victoria Park Racing and Recreation
Grounds Co Ltd v Taylor (1937) 58 CLR 479, the courts can have difficulty in
determining whether a property right exists. This is particularly the case
where there is a novel property right that does not fall within the
traditional classification.
Victoria Park Racing and Recreation Grounds v Taylor

[1.90] Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479
FACTS • The company, Victoria Park Racing and Recreation Grounds Co Ltd, carried on
the business of racing at Victoria Park. Mr Taylor owned land near the racecourse and
erected an elevated platform on his land. From that platform, Mr Taylor called the race via
telephone to a radio station, which broadcast his call. The company applied to the court to
have Mr Taylor’s broadcast of the races stopped. The company submitted to the court that
Mr Taylor’s broadcast discouraged people from paying admission to attend the races so
that its property rights were being affected by Mr Taylor’s actions. The question was: were
there property rights in the spectacle constituted by the horse races being held at Victoria
Park?
HELD • The court found that there was no property in a spectacle. Latham CJ commented
(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 a quasi-property in the spectacle which the law will protect.
The vagueness of this proposition is apparent upon 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.
The court has not been referred to any authority in English law which supports the general
contention that if a person chooses to organize an entertainment or to do anything else which
other persons are able to see he has a right to obtain from a court an order that they shall not
describe to anybody what they see. If the claim depends upon interference with a proprietary right
it is difficult to see how it can be material to consider whether the interference is large or small —
whether the description is communicated to many persons by broadcasting or by a newspaper
report, or only to a few persons in conversation or correspondence.
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. Even if there were any legal
principle which prevented one person from gaining an advantage for himself or causing damage
to another by describing a spectacle produced by that other person, the rights of the latter person
could be described as property only in a metaphorical sense. Any appropriateness in the
metaphor would depend upon the existence of the legal principle. The principle cannot itself be
based upon such a metaphor.
[1.100] In other situations, legislation defines the property and who can
exercise control over it.
Land and the limits of land ownership

[1.110] The maxim cuius est solum est usque ad coelum et ad inferos describes
the proposition that a person owns their land from the heavens above to
the centre of the earth below. This principle has been modified by statute
and the common law.
Land is defined in s 2B of the Acts Interpretation Act 1954 (Cth) as
including messuages, tenements and hereditaments (both corporeal and
incorporeal), of any tenure or description, whatever may be the estate or
interest in them. Legislative definitions of “land” also exist in the States.
Jurisdiction Legislation
New South Wales Interpretation Act 1987, s 21(1)
Queensland Acts Interpretation Act 1954, Sch 1
South Australia Real Property Act 1886, s 3
Tasmania Acts Interpretation Act 1931, s 46
Victoria Interpretation of Legislation Act 1984, s 38
Western Australia Interpretation Act 1984, s 5
Legislation in each of the States provides for the reservation of rights to

minerals under the surface of the land to the Crown. The statutory
definition of minerals that applies in the particular jurisdiction and the

terms of the original grant from the Crown will be important considerations
in assessing the Crown’s ownership.
New South Wales eg, Coal Acquisition Act 1981, s 5
Queensland Mineral Resources Act 1989, s 8
South Australia Mining Act 1971, s 16
Tasmania Mineral Resources Development Act 1995, s 6
Victoria Mineral Resources (Sustainable Development) Act 1990, s 9
Western Australia Mining Act 1978, s 9
The depth to which a landowner does enjoy their land has not been
definitively settled and there is no “reasonable use and enjoyment test.”
Di Napoli v New Beach Apartments

[1.120] Di Napoli v New Beach Apartments Pty Ltd (2004) 11 BPR 21,493; [2004] NSWSC
52
FACTS • The owner of land (Di Napoli) brought an action for trespass against the
adjoining landowner who had inserted rock anchors into her land for the purposes of
constructing their house. Di Napoli argued that the rock anchors constituted a trespass as
an incursion into her subterranean land boundary. In defence, the adjoining landowner
argued that the rock anchors were inserted below the usable depth subterranean space of
the land and so did not affect Di Napoli’s ordinary use and enjoyment of the land.
HELD • Young CJ held that there was a trespass. Whilst Young CJ considered that the
maxim “cuius est solum est usque ad coelum et ad inferos” was “not to be taken
literally” and that the maxim did not fully apply in the case of airspace, he considered “at
least for subterranean rights, a person has substantial control over land underneath his or
her soil for a considerable depth”. He deemed that the rock anchors were not so far below
the land as to be “beyond the reach of trespass”.
[SEE ALSO • De Pasquale Bros Pty Ltd v Cavanagh Biggs and Partners Pty Ltd [1999] Aust
Torts Reports 81-521; [1999] QSC 171. The common law has interpreted a limitation to the
landowner’s ownership to the “heavens above”. Above-surface ownership is generally
accepted to be limited to that which is reasonable and practical to the enjoyment of the
land.]
LJP Investments v Howard Chia Investments

[1.130] LJP Investments Pty Ltd v Howard Chia Investments Pty Ltd (1989) 24 NSWLR 490
FACTS • LJP Investments Pty Ltd sought an injunction against Howard Chia Investments
Pty Ltd, requiring it to remove scaffolding that was erected 4.5 metres above ground level
and protruding 1.5 metres into the airspace above LJP’s land.
HELD • Hodgson J of the New South Wales Supreme Court ordered the injunction, finding
that the scaffolding interfered with LJP’s reasonable use and enjoyment of the airspace
above its land. Hodgson J stated the test to be not whether the incursion interferes with
the occupier’s use of land at the time, but rather whether the incursion is of a nature and
at a height that may interfere with any ordinary uses of the land that the occupier may see
fit to undertake.
[SEE ALSO • Bernstein of Leigh (Baron) v Skyviews & General Ltd [1977] 1 QB 479.]
[1.140] The physical boundaries of a parcel of land will be determined by

reference to the survey that is registered with respect to the lot.
MindMap01
What is property? Not just a “thing” but a consideration Land
of control giving rise to different kinds
of enforceable legal relationships
Yanner v Eaton (1999) determined by reference to the law Land – defined by statute in
201 CLR 351 – “property” is a and societal conditions each jurisdiction
comprehensive term that can
be used to describe all or any of Physical boundary –
the very many different kinds determined by reference to the
of relationship between a registered Torrens system
person and a subject matter survey
Victoria Park Racing and Extent of ownership – the

Recreation Grounds Co Ltd v maxim cuius est solum est
Taylor (1937) 58 CLR 379 – usque ad coelum et ad inferos
determination of a novel Classification of property
(ownership from heavens
property right. The court found above to the centre of the
that there was no “property” in Real property earth) has been modified by
a spectacle statute and general law
Incorporeal hereditaments –
Philosophical foundation rights unable to be inherited
Above the land (airspace) – LJP
Investments Pty Ltd v Howard
Labour Theory: John Locke – a Corporeal hereditaments –
Chia Investments Pty Ltd
things able to be inherited,
person has proprietary rights to (1989) 24 NSWLR 490;
eg, fixtures
the produce of their labour Bernstein of Leigh (Baron) v
Skyviews & General Ltd [1977]
Personal property 1 QB 479 (enforceable rights to
Social Utility: Jeremy Bentham
– private property the height that is reasonable
Chattels real – leasehold and practical to the enjoyment

rights/ownership are good for interests
society as a whole of the land)
Chattels personal – moveable

Marxist: Karl Marx – against property Below the surface
private property rights as they (subterranean)
result in the exploitation of the Choses in possession –
many (workers) for the few tangible items of personal Reservation of “minerals” to
(property owners) property, eg, chairs the State determined by
statute in each jurisdiction
Economic Analysis: Garrett Choses in action – intangible

Hardin; Richard Posner – private rights, eg, debts due, shares Di Napoli v New Beach
Apartments Pty Ltd (2004)
property rights and ownership
11 BPR 21,493; [2004] NSWSC
can efficiently allocate and 52; De Pasquale Bros Pty Ltd v
effectively exploit scarce Cavanagh Biggs and Partners
resources Pty Ltd [1999] Aust Torts
Reports 81-521; [1999]
QSC 171 – a person has control
over land underneath their soil
for a considerable depth
Chapter 2
The Doctrine of Tenure and

Native Title
The Doctrine of Tenure and Native Title
[2.10] INTRODUCTION....................................................................... 14
[2.20] THE DOCTRINE OF TENURE...................................................... 14
[2.70] COMMON LAW NATIVE TITLE..................................................... 16
[2.120] NATIVE TITLE ACT 1993 (CTH) ................................................... 18
[2.130] VALIDATION OF ACTS............................................................... 19
Introduction
[2.10] The doctrine of tenure is a legal doctrine vesting ownership (title)
of all land in the Crown. The Crown, as the ultimate landowner holding
absolute title, then grants land to prospective landholders. The High
Court’s recognition of common law native title in Mabo v Queensland (No 2)
(1992) 175 CLR 1 modified the doctrine of tenure as it applies in Australia.
The High Court found that native title exists as a burden on the Crown’s
absolute title, leaving the Crown with radical title, that is, title that is
subject to native title. In 1993 the Commonwealth enacted the Native Title
Act 1993 to regularise the application process for native title claims.
The doctrine of tenure

[2.20] The doctrine of tenure has its historical origins in the English legal
system. The Crown is the absolute owner of all land. At the time of English
settlement Australia was regarded as terra nullius, that is, land belonging to
no one. As the doctrine of tenure formed the basis of land ownership in
England, the doctrine of tenure was applied to Australian land. At the time
of English settlement all Australian land therefore became vested in the
Crown and the Crown made grants of land to prospective landholders.
The Privy Council’s decision in Cooper v Stuart (1889) 14 App Cas 286
provided authority for the proposition that Australia was settled and as
such the doctrine of tenure applied to Australian land.
That native title could not be recognised within the doctrine of tenure
was confirmed by the Federal Court in the decision of Milirrpum v Nabalco
Pty Ltd (1971) 17 FLR 141.
CHAPTER 2 THE DOCTRINE OF TENURE AND NATIVE TITLE / 15
Milirrpum v Nabalco
[2.30] Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141
FACTS • The Commonwealth had granted mining leases over land on the Gove Peninsula
in the Northern Territory. Aboriginal groups challenged the validity of the leases as they
did not believe the Commonwealth had power to grant leases over what they perceived to
be their land.
HELD • Blackburn J held that the doctrine of tenure applied to Australian land so that
native title could not be recognised. Although Blackburn J accepted that the Aboriginal
groups had a recognisable system of law and connection with the land, he held that such
a relationship did not give rise to a proprietary interest in the land given the reception of
the doctrine of tenure. Blackburn J held (at 245):
All the Australian cases to which I was referred … affirm the principle, fundamental to the English
law of real property, that the Crown is the source of title to all land; that no subject can own
allodially, that only an estate or interest in it which he holds immediately of the Crown. On the
foundation of New South Wales therefore, and of South Australia, every square inch of territory in
the colony became the property of the Crown. All titles, rights and interests whatever in land
which existed thereafter in subjects of the Crown were the direct consequence of some grant from
the Crown.
[2.40] The decision of Mabo v Queensland (No 2) (1992) 175 CLR 1

overturned the notion of Australia being terra nullius and accepted that, at
the time of English settlement, the land was inhabited. That the land was
inhabited meant that someone owned and therefore held title over the land
prior to English settlement. This someone was Australia’s Indigenous
inhabitants. Given this prior ownership of the land, the High Court held
that the Crown’s absolute ownership of the land was subject to claims of
native title. Native title therefore became a burden on the Crown’s title.
Mabo v Queensland (No 2)

[2.50] Mabo v Queensland (No 2) (1992) 175 CLR 1
FACTS • The plaintiffs were Murray Islanders and members of the Meriam people. The
plaintiffs were claiming rights in specified parcels of land on the Murray Islands, which lie
in the Torres Strait. The Meriam people were in occupation of the Islands before first
European contact and continue to occupy the Islands. There had not been a permanent
immigrant population and anthropological records showed that the inhabitants of the
Islands were descended from the people described in early European reports. The basis of
the Meriam people’s claims was that they were either: (a) holding the land under
traditional native title or, (b) that they possessed usufructuary rights over the land, or that
(c) they owned the land by way of customary title.
HELD • The High Court (Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ;
Dawson J dissenting) decided in favour of the Meriam people.
Brennan J, who delivered the leading judgment, made the following comments about
native title and the notion of the Crown’s absolute title (at 45):
It was only by fastening on the notion that a settled colony was terra nullius that it was possible for
the Crown to acquire ownership of the land in a colony already occupied by indigenous
inhabitants. It was only on the hypothesis that there was nobody in occupation that it could be
said that the Crown was the owner because there was no other. If that hypothesis be rejected, the
notion that sovereignty carried ownership in its wake must be rejected too. Though the rejection
of the notion of terra nullius clears away the fictional impediment to the recognition of indigenous
rights and interests in colonial land, it would be impossible for the common law to recognise such
rights and interests if the basic doctrines of the common law are inconsistent with their
recognition.
Therefore (at 54):

Once it is accepted that indigenous inhabitants in occupation of a territory when sovereignty is
acquired by the Crown are capable of enjoying — whether in community, as a group or as
individuals — proprietary interests in land, the rights and interests in the land which they had
theretofore enjoyed under the customs of their community are seen to be a burden on the radical
title which the Crown acquires. The notion that feudal principle dictates that the land in a settled
colony be taken to be a royal demesne upon the Crown’s acquisition of sovereignty is mistaken.
However, that was not the only basis advanced to establish the proposition of absolute Crown
ownership and the alternative bases must next be considered.
In terms of the Crown’s title (at 62):

It is sufficient to state that, in my opinion, the common law of Australia rejects the notion that,
when the Crown acquired sovereignty over territory which is now part of Australia it thereby
acquired the absolute beneficial ownership of the land therein, and accepts that the antecedent
rights and interests in land possessed by the indigenous inhabitants of the territory survived the
change in sovereignty. Those antecedent rights and interests thus constitute a burden on the
radical title of the Crown.
[2.60] The decision of the High Court in Mabo v Queensland (No 2) (1992)
175 CLR 1 gave rise to a recognition of common law native title.
Common law native title

[2.70] The High Court considered that common law native title arose by
reference to Indigenous customs and traditional laws. In that sense,
common law native title can only apply to, and be held by, Indigenous
peoples and their descendants.

ISSUE • In order to prove a claim for common law native title (the onus of proof being on
those who assert the claim) prerequisites must be evident.
HELD • Brennan J stated (at 70):

Native title to particular land… its incidents, and the persons entitled thereto are ascertained
according to the laws and customs of the indigenous people who, by those laws and customs,
have a connection with the land. It is immaterial that the laws and customs have undergone some
change since the Crown acquired sovereignty provided the general nature of the connection
between the indigenous people and the land remains. Membership of the indigenous people
depends on biological descent from the indigenous people and on mutual recognition of a
particular person’s membership by that person and by the elders or other persons enjoying
traditional authority among those people.
[2.90] The High Court also recognised that common law native title can
be extinguished by the Indigenous owners or by the Crown in certain
circumstances.

ISSUE • Can common law native title rights be extinguished?

HELD • Brennan J stated (at 83):
4 … Native title has been extinguished by grants of estates of freehold or of leases but not
necessarily by the grant of lesser interests (eg, authorities to prospect for minerals).
5. … Native title has been extinguished to parcels of the waste lands of the Crown that have been
validly appropriated for use (whether by dedication, setting aside, reservation or other valid
means) and used for roads, railways, post offices and other permanent public works which
preclude the continuing concurrent enjoyment of native title. However native title can
continue on land set aside as a national park.
…
7. Native title to an area of land which a clan or group is entitled to enjoy under the laws and
customs of an indigenous people is extinguished if the clan or group, by ceasing to
acknowledge those laws, and (so far as practicable) observe those customs, loses its
connection with the land or on the death of the last of the members of the group or clan.
8. Native title over any parcel of land can be surrendered to the Crown voluntarily. …
9. If native title to any parcel of the waste lands of the Crown is extinguished, the Crown
becomes the absolute beneficial owner.
[2.110] The Commonwealth Government subsequently enacted the Native

Title Act 1993 (Cth) in order to regulate the native title process.
Native Title Act 1993 (Cth)

[2.120] Section 3 of the Native Title Act 1993 (Cth) provides that the main
objects of the Act are:
(a) to provide for the recognition and protection of native title; and
(b) to establish ways in which future dealings affecting native title may proceed
and to set standards for those dealings; and
(c) to establish a mechanism for determining claims to native title; and
(d) to provide for, or permit, the validation of past acts, and intermediate period
acts, invalidated because of the existence of native title.
Native title is defined under s 223(1) of the Act and replicates the
common law definition requiring a connection between the claimants and
the land or waters by reference to traditional laws and customs. In addition
to the common law definition, s 223(2) provides that hunting, gathering
and fishing are also native title rights.
Under s 81 a claim for native title falls for determination by the Federal
Court. A determination of native title under s 225 of the Act enables the
Federal Court to determine who holds the native right (whether a person
or group); the nature and extent of the native title right and interest; and
whether the native title right and interest exist by reference to land or
waters in a particular area.
In order to register a native title claim with the Federal Court, a
registration test is applied. The test under s 190B requires, amongst other
things, identification to the satisfaction of the Registrar:
• of the area (land or waters);
• of the claimant (person or group);
• of the native title rights and interests being claimed;
• that the claimant and any predecessors have an association with the area;
• that there are traditional laws and customs observed by the claimants
that give rise to the native title claim;
• that the claimant has continued to hold the native title in accordance
with those traditional laws and customs;
• that the claimant has or previously had a traditional physical connection
with any part of the land or waters covered by the application or did
have such connection but for some action of the Crown.
The Native Title Act 1993 (Cth) also established the National Native Title
Tribunal. The functions provided under s 108 of the Act include making
decisions, conducting inquiries and determinations that are given to it,
mediating Federal Court proceedings and conducting research. The
Tribunal also has a role in mediating and registering Indigenous Land Use
Agreements (ILUAs).
The question of how native title applies to other interests in land has
also been considered by the High Court:
• Native title is extinguished by a grant of fee simple: Fejo (on behalf of
Larrakia People) v Northern Territory (1998) 195 CLR 96.
• Native title was not extinguished by a non-exclusive use pastoral lease
(Wik Peoples v Queensland (1996) 187 CLR 1) but can be extinguished by
an exclusive possession pastoral lease (Western Australia v Ward (2002)
213 CLR 1) and a pastoral lease held in perpetuity: Wilson v Anderson
(2002) 213 CLR 401.
• Native title may exist in the sea and in the seabed beyond the low-water
mark: Yarmirr v Northern Territory (2001) 208 CLR 1.
• Native title may not be extinguished by a mineral lease: Western Australia
v Brown [2014] HCA 8.
• May have been extinguished where the traditional law and customs are
no longer observed or there has been no continuation or connection with

the land: Members of the Yorta Yorta Aboriginal Community v Victoria (2002)
214 CLR 422.
The nature of the interest will be all important to determine whether it
co-exists with native title or has the capacity to extinguish native title
interests in the land.
Validation of Acts
[2.130] In Western Australia v Commonwealth (1995) 183 CLR 373 the State
of Western Australia challenged the validity of the Native Title Act 1993
(Cth). The High Court, in a unanimous decision, confirmed that the Act
was a valid exercise of Commonwealth power. The effect of the decision
was to confirm the primacy of the Commonwealth’s native title
determination regime under the Act. In that respect, the Act contains
provisions to deal with the validation of past, intermediate and future Acts
by governments with respect to native title.
MindMap02
Doctrine of tenure Native title is a burden on Native Title Act 1993 (Cth)
the Crown’s title
Historical position: Cooper v Stuart The main objects (s 3) of the

(1889) 14 AC 286 and Milirrpum v Native Title Act 1993 are to
Nabalco Pty Ltd (1971) 17 FLR 141 –
Australia terra nullius, Crown absolute (a) provide for the recognition
title, no native title and protection of native
title; and
(b) establish ways in which
Contemporary position: Mabo v Consider the following future dealings affecting
Queensland (No 2) (1992) 175 CLR 1 – sections: native title may proceed
Australia not terra nullius, native title and to set standards for
exists and is a burden on the Crown’s s 223(1) – definitions s 190B – elements those dealings; and
title (ie, radical title) of native title of registration (c) establish a mechanism for
required for a claim determining claims to
s 81 – claims native title; and
Native title framework determined by the s 108 – functions of (d) provide for, or permit, the
Federal Court of the National Native validation of past acts, and
Australia Title Tribunal (NNTT) intermediate period acts,
Mabo v Queensland (No 2) (1992)
invalidated because of the
175 CLR 1 – native title ascertained existence of native title
s 225 – effect of
according to the laws and customs of the determination of native
indigenous people who, by those laws and title
customs, have a connection with the land
The primacy of the Act and the process of validation of past,
Claims are determined under the intermediate and future government acts was confirmed in
provisions of the Native Title Act 1993 (Cth) Western Australia v Commonwealth (1995) 183 CLR 373
Chapter 3
Adverse Possession
Adverse Possession
[3.10] INTRODUCTION....................................................................... 22
[3.20] RECOGNISING POSSESSION AS “GOOD TITLE” ............................. 22
[3.50] STATUTORY RECOGNITION OF ADVERSE POSSESSION ................. 23
[3.60] Commencement of the limitation period............................... 24
[3.80] The running of the limitation period .................................... 25
[3.90] Lapse of time............................................................... 26
[3.100] WHAT CONSTITUTES ADVERSE POSSESSION? ............................. 27
Introduction
[3.10] Possession of property is regarded as a proprietary right and as
such the proprietary right can only be defeated by someone who is able to
demonstrate that they have a better interest. In the context of land, an
example of a higher and better interest than possession is documentary
title. Documentary title proves a person’s ownership (and therefore lawful
possession) of the land. In the Torrens system a person’s title will also be
registered. The doctrine of adverse possession highlights the distinction
between the possession of land and of documentary title to land and how
possession (via duration of time and intention) can become good title.
Recognising possession as “good title”

Asher v Whitlock
[3.20] Asher v Whitlock (1865) LR 1 QB 1
FACTS • In 1842 Thomas Williamson enclosed a piece of land and later built a cottage, in
which he lived until his death in 1860. Under the terms of his will, he left the land to his
wife for as long as she lived and remained unmarried. In the event that she died or
remarried, he left the land to his daughter. In 1861 Mrs Williamson remarried, but lived on
the land with her daughter and new husband (the defendant). Mrs Williamson and her
daughter subsequently died and the defendant continued to live on the land. The plaintiff,
an heir-at-law of the daughter, sought to recover the land as owner.
HELD • The court considered that it was an established principle “that possession is good
CHAPTER 3 ADVERSE POSSESSION / 23
against the world except the person who can show good title”. On the facts, the court
considered that the defendant had not acquired title by virtue of his possession and that
the plaintiff’s title, documented via Mr Williamson’s will, was superior.
[3.30] The ability for a person to acquire title to land through possession
of land was found to apply in Australia by the Privy Council in the
decision of Perry v Clissold [1907] AC 73.
Perry v Clissold
[3.40] Perry v Clissold [1907] AC 73
FACTS • In 1891 a piece of land was resumed by the New South Wales Government for a
public school. Section 10 of the relevant Act provided that upon resumption, compensation
would be paid to the owner of the land. Mr Clissold had entered into possession of the
land in 1881. Mr Clissold had exclusive possession of the land, using it for his own benefit,
and paid all rates and taxes. Mr Clissold’s name was registered as the owner of the land in
the books of the local council. Mr Clissold died and his executors sought compensation
from the Minister for the resumption of the land. The Minister refused, contending that
Mr Clissold was a trespasser who had no proprietary interest in the land.
HELD • The Privy Council held that Mr Clissold’s estate was entitled to compensation for
the resumption, as Mr Clissold’s possession of the land was sufficient to gain him title to
the land. The Privy Council held (at 4):
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. And if the rightful owner does not come forward and assert his title
by process of law within the period prescribed by the provisions of the Statute of Limitations
applicable to this case, his right is for ever extinguished, and the possessory owner acquires
absolute title.
Statutory recognition of adverse possession

[3.50] Adverse possession is the term used to describe the possession of
land by someone other than the documentary title holder contrary (ie,
adverse) to the proprietary rights and interests of the documentary title
holder. All States in Australia have statutory provisions recognising the
concept of adverse possession. However, possessory title will only become
the best title to land after a specified period of time has elapsed. The
statutory application of the doctrine of adverse possession differs from

jurisdiction to jurisdiction.
Jurisdiction Possession and relationship to title Limitation period

New South Real Property Act 1900, s 45C 12 years: Limitation Act 1969, s 27(2)
Wales
Queensland Land Title Act 1994, s 185(1)(d) 12 years: Limitation of Actions Act
1974, s 13
South Real Property Act 1886, s 69(f) 15 years: Limitation of Actions Act
Australia 1936, s 4
Tasmania Land Titles Act 1980, s 138T 12 years: Limitation Act 1974, s 10(2)
Victoria Transfer of Land Act 1958, s 42(2)(b) 15 years: Limitation of Actions Act
1958, s 8
Western Transfer of Land Act 1893, s 68(1A) 12 years: Limitation Act 2005, s 19
Australia
To determine the success of a claim for adverse possession the claim

must satisfy:
1. The limitation period test. This requires a consideration of when the
adverse possession commenced, the duration of the possession, and the
lapsing of time for the documentary title holder to take recovery action.
2. The elements of possession test.
Commencement of the limitation period

[3.60] The commencement of the period is determined by reference to the
relevant statutory provisions. The statutory provisions provide that time
begins to run against the documentary title holder when:
• the documentary title holder has discontinued or lost possession or has
been dispossessed; and
• another person has taken adverse possession of the land.
Jurisdiction Dispossession or discontinuance by Adverse possession by another

title holder
New South Limitation Act 1969, s 28 Limitation Act 1969, s 38
Wales
Queensland Limitation of Actions Act 1974, s 14 Limitation of Actions Act 1974, s 19
South Limitation of Actions Act 1936, s 6 No specific provision
Australia
Tasmania Limitation Act 1974, s 11 Limitation Act 1974, s 16
Victoria Limitation of Actions Act 1958, s 14(1) Limitation of Actions Act 1958, s 14(2)
Western Limitation Act 2005, s 65 Limitation Act 2005, s 65
Australia
There is no statutory guidance as to what constitutes discontinuance or loss

of possession by the title holder, or what is required for possession to be
taken by another. These questions are questions of fact for determination
by the courts on a case-by-case basis.
JA Pye (Oxford) v Graham

[3.70] JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419
FACTS • JA Pye (Oxford) Ltd was the owner of the land and the Grahams held a grazing
licence. When the grazing licence expired in 1983, the Grahams were asked to vacate the
land. However, the Grahams remained on the land, continuing the activities that were
permitted under the expired grazing licence and undertaking farming activities in excess
of the licence. The Grahams claimed title to the land by virtue of adverse possession. One
of the issues for the House of Lords to determine was when the limitation period to judge
the claim of adverse possession commenced.
HELD • Lord Browne-Wilkinson framed the issue in the following way (at [5]):
The Grahams, in order to succeed, will have to show that they ‘dispossessed’ Pye more than
12 years before Pye started proceedings on 30 April 1998. As will appear, this requires the
Grahams to prove that Pye was dispossessed between 31 August 1984 (when the Grahams’
occupation ceased to be with the permission of Pye) and 30 April 1986.
It is common ground that Pye did not ‘discontinue’ possession within the meaning of the Act … It
was further common ground that so long as the Grahams were occupying the disputed land with
Pye’s consent, they could not be treated as having dispossessed Pye. Accordingly no relevant
right of action can have accrued to Pye … until after the expiry on or about 31 August 1984 of the
grass-cutting permission.
The relevant question therefore is whether at some time between 1 September 1984 and 30 April
1986 Pye were ‘dispossessed’ of the disputed land so that, at that date, Pye’s right of action
accrued …
The running of the limitation period

[3.80] For the documentary title holder to be precluded by statute from

bringing an action to recover their land, the adverse possessor’s possession
of the land must, for the required period, have been continuous and
uninterrupted. Whether possession has been continuous and uninterrupted
is a question of fact for the court. In Mulcahy v Curramore Pty Ltd [1974] 2
NSWLR 464, Bowen CJ highlighted issues to be considered when
evaluating the running of the limitation period:
• Nature of adverse possession — Possession that will cause time to run is
possession that is open, not secret; peaceful, not by force; and adverse,
not by consent of the true owner.
• Possession cannot be abandoned — If a person in adverse possession
abandons the property, “he leaves no cloud on the true owner’s title,
which is then restored to its pristine force”.
• Another adverse possessor — If a person, A, is in adverse possession and

then abandons the property and another person, B, who later enters into
adverse possession of the property, cannot add the period of A’s
possession to his own so as to extinguish the title of the true owner.
• Disposition of adverse possession — “When a person enters into adverse
possession, and so long as he continues in possession before the expiry of
the statutory period, he has title to the land in the nature of a fee simple
good against all the world except the true owner, and his title may be
conveyed or devised to or devolve upon, another person.”
• Series of possessors — Where there are a series of trespassers in continuous
possession the periods of adverse possession can be combined to reach
the limitation period. Bowen CJ noted (at 465):
Upon the extinguishment of the true owner’s title, the title in fee simple will
go to the first of the successive trespassers. The final trespasser will, by virtue
of his possession, have a title in fee simple good against all the world except
his preceding trespassers, and a title good against them also, if each had
abandoned possession.
The ability to combine time in such a manner is legislated for in New South
Wales by the Limitation Act 1969 (s 38(2)) and in Western Australia by the
Limitation Act 2005 (s 65(2)).
The limitation period may stop running if the documentary title owner
asserts their proprietary right so as to dispossess the adverse possessor of
possession or the adverse possessor acknowledges the true owner’s title.
For the owner to assert their proprietary right, all the legislative provisions
require something more than a formal entry onto the land. Physical
repossession of the land must occur.
Jurisdiction Owner’s assertion of title Acknowledgment of title by possessor

New South Limitation Act 1969, s 39 Limitation Act 1969, s 54(1)
Wales
Queensland Limitation of Actions Act 1974, s 21 Limitation of Actions Act 1974,
s 35(1)(a)
South Limitation of Actions Act 1936, s 18 Limitation of Actions Act 1936, s 21(b)
Australia
Tasmania Limitation Act 1974, s 19 Limitation Act 1974, s 29(1)(a)
Victoria Limitation of Actions Act 1958, s 16 Limitation of Actions Act 1958,
s 24(1)(a)
Western Limitation Act 2005, s 84(a) Limitation Act 2005, s 47
Australia
Lapse of time
[3.90] The statutory provisions also allow for the limitation period to be
extended in certain circumstances. However, once the statutory period has
ended, the right of action available to the documentary title holder lapses.
In other words, the documentary title holder will be precluded from
regaining title to the land. In such a circumstance, the adverse possessor
can make application to be registered as the owner of the land.
Jurisdiction Extension of limitation Owner’s right of action

Adverse possessor can
period lapses seek registration as
owner
New South Limitation Act 1969, s 65 Limitation Act 1969, Real Property Act 1900,
Wales s 27(2) Pt 6A
Queensland Limitation of Actions Limitation of Actions Act Land Title Act 1994, Pt 6,
Act 1974, Pt 3 1974, s 24(1) Div 5
South Limitation of Actions Limitation of Actions Act Real Property Act 1886,
Australia Act 1936, s 48 1936, s 28 Pt 7A
Tasmania Limitation Act 1974, Pt III Limitation Act 1974, s 21 Land Titles Act 1980,
s 138X
Victoria Limitation of Actions Limitation of Actions Act Transfer of Land Act
Act 1958, Pt II 1958, s 18 1958, s 60
Western Limitation Act 2005, Limitation Act 2005, Transfer of Land Act
Australia s 74 s 75 1893, s 222
What constitutes adverse possession?

[3.100] It is accepted that for possession to be adverse there must be:
1. Factual or physical possession of the land.
2. An intention on the part of the adverse possessor to possess the land to
the exclusion of all others.
JA Pye (Oxford) v Graham

[3.110] JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419
ISSUE • What constitutes adverse possession?
HELD • Lord Browne-Wilkinson (at [41]) accepted that factual possession:

… signifies an appropriate degree of physical control. It must be single and [exclusive] possession
… Thus an owner of land and a person intruding on that land without his consent cannot both be
in possession of the land at the same time. The question what acts constitute a sufficient degree
of exclusive physical control must depend on the circumstances, in particular the nature of the
land and the manner in which land of that nature is commonly used or enjoyed.
On the facts of the case Lord Browne-Wilkinson considered that the Grahams were in
factual possession of the land as it was within the Grahams’ exclusive physical control. He
considered that Pye, as documentary title owner, was excluded from the land by hedges
and held no key to the road gate.
Lord Browne-Wilkinson found that the Grahams had the requisite intention to possess.
He pointed out (at [60]–[59]) that:
… the Grahams by grazing land during 1984 and thereafter were not only acting without
permission of the paper owner: they were acting in a way which, to their knowledge, was directly
contrary to the wishes of the proprietors … [t]here was independent evidence that Michael
Graham ‘treated the land’ as his own.
MindMap03
Questions for Possession of land by someone other than Statutory recognition
examination the documentary title holder adverse of adverse possession
(ie, contrary) to the proprietary rights
and interests of the documentary title
Commencement – when did the holder giving rise to a right to title Application – in all jurisdictions
adverse possession adverse possession can dispose
commence? What statutory a documentary title holder’s title
time period applies? to land
Running of time – has adverse Time – the length of time

possession been continuous and required to establish adverse
uninterrupted? (Mulcahy v possession differs between
Curramore Pty Ltd [1974] jurisdictions
2 NSWLR 464) Possession can be
“good title” Statutory tests – the
Lapse of time – has the documentary title holder has
statutory time period expired? Asher v Whitlock (1865) LR 1 discontinued or lost possession,
Is an extension of title available? QB 1 – possession is good and another person has taken
against the world except the possession of the land against
Application – where the person who can show good title the interest of the documentary
elements are met what is the title holder: JA Pye (Oxford) Ltd v
statutory process for the Perry v Clissold [1907] AC 73 – Graham [2003] 1 AC 419.
adverse possessor to apply for the ability for a person to Factual possession requires
recognition of their possession acquire title to land via physical control amounting to
through the receipt of possession applies in Australia exclusive possession
documentary title?
Chapter 4
Fixtures
Fixtures
[4.10] INTRODUCTION....................................................................... 30
[4.20] FIXTURES AND CONTRACTUAL RELATIONSHIPS ........................... 30
[4.30] IS THE OBJECT A FIXTURE OR A CHATTEL? THE DEGREE OF
ANNEXATION AND PURPOSE (OR OBJECT) OF ANNEXATION TESTS. 31
[4.40] Degree of annexation ..................................................... 32
[4.60] Purpose (object) of annexation ......................................... 32
[4.70] SUMMARISING THE TESTS........................................................ 33
Introduction
[4.10] A fixture is a chattel that has become part of the land due to its
connection with the land. In other words, in becoming affixed to the land,
the chattel has lost its characteristic as personal property. The general rule
is that which is attached to the land becomes part of the land (quicquid
plantatur solo, solo cedit). Whether something is a chattel or has become a
fixture gives rise to competing and conflicting claims over ownership.
Disputes can arise between the owner of land and those who hold lesser
interests in land, for example, between a landlord and tenant or a
mortgagor and mortgagee. To settle disputes over ownership, the common
law developed the doctrine of fixtures.
Fixtures and contractual relationships

[4.20] The contractual relationship between two parties may determine
whether the common law position applies or has been altered by statute:
• Vendor and purchaser — Statutory provisions in each jurisdiction provide
that any conveyance of land includes fixtures. Any fixtures to the land
pass with title to the land to the purchaser unless a contrary intention is
expressly contained in the contract.
Jurisdiction Conveyance includes fixtures

New South Wales Conveyancing Act 1919, s 67
Queensland Property Law Act 1974, s 239
Tasmania Conveyancing and Law of Property Act 1884, s 6
Victoria Property Law Act 1958, s 62
CHAPTER 4 FIXTURES / 31
• Mortgagee and mortgagor — Statutory provisions in each jurisdiction

include mortgage in the term conveyance, therefore any fixtures will form
part of the mortgage security.
Jurisdiction Conveyance includes mortgage

Queensland Property Law Act 1974, Sch 6 – Dictionary
South Australia Law of Property Act 1936, s 7
Tasmania Conveyancing and Law of Property Act 1884, s 2
Victoria Property Law Act 1958, s 18(1)
Western Australia Property Law Act 1969, s 7
• Landlord and tenant — Generally speaking, where a chattel has been
affixed to the land by a tenant (described as a tenant’s fixture) the tenant
will be given the opportunity to remove any fixtures at the time the
tenancy is concluded. However, a consideration of the damage that may
be caused by removal of the fixture and the tenant’s intention regarding
the fixture will be factors for consideration. Much will be determined by
the terms of the lease agreement that exists between the parties.
A special case exists for agricultural fixtures. The common law position is
that such fixtures cannot be removed. In some jurisdictions, legislation
exists to permit the removal of agricultural fixtures. The conditions
permitting removal differ between jurisdictions.
Jurisdiction Agricultural fixtures

New South Wales Agricultural Tenancies Act 1990, s 10
South Australia Common law position applies
Tasmania Landlord and Tenant Act 1935, s 26
Victoria Landlord and Tenant Act 1958, s 28

Western Australia Common law position applies
Whilst these statutory provisions may specify that fixtures go with the
land, the statutory provisions generally provide no guidance as to how to
determine whether an object is a chattel or has become a fixture to the land.
Guidance can be sought from the common law.
Is the object a fixture or a chattel? The degree of annexation

and purpose (or object) of annexation tests
[4.30] The degree of annexation refers to how the chattel is affixed to the
land. As a general proposition, the greater the degree of annexation, the
greater the presumption that the chattel has become a fixture.
Degree of annexation
Holland v Hodgson
[4.40] Holland v Hodgson (1872) LR 7 CP 328
ISSUE • Were spinning looms bolted to the floor of a mill chattels or a fixture?
HELD • Blackburn J explained the tests (at 334–335) as follows:

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 … On the other hand, an article may be firmly fixed to the land, and yet the circumstances
may be such as to show that it is never intended to be part of the land, and then it does not
become part of the land … Perhaps the true rule is, that articles not otherwise attached to the
land than by their own weight are not to be considered as part of the land, unless the
circumstances are such as to show that they were intended to be part of the land, the onus of
showing that they were so intended lying on those who assert that they have ceased to be
chattels, and that, on the contrary, an article which is affixed to the land even slightly is to be
considered as part of the land, unless the circumstances are such as to show that it was intended
all along to continue a chattel, the onus lying on those who contend it is a chattel.
Applying the test to the facts, the spinning looms were found to be fixtures.
[4.50] In addition to the degree of annexation test the courts have applied
the purpose of annexation test. This test requires a consideration of why
and for what purpose the chattel was affixed to the land.
Purpose (object) of annexation
Australian Provincial Assurance v Coroneo

[4.60] Australian Provincial Assurance Co Ltd v Coroneo (1938) 38 SR (NSW) 700
FACTS • Coroneo claimed that some chairs (amongst other items) in a theatre be
returned to them by the mortgagee in possession on the basis that the chairs were
chattels not fixtures. The chairs were fixed to the floor and connected together when the
theatre was in use. The chairs could be moved and connected in different ways depending
upon the theatre’s use at any given time.
HELD • Regarding the purpose of annexation test, Jordan CJ stated (at 712):
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 for an indefinite or
substantial period, or whether it has been fixed with the intent that it shall remain in position only
for some temporary purpose. 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. The intention of the person fixing it must be gathered from the purpose
for which and the time during which the user in the fixed positions contemplated. 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. 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.
Applying the purpose of annexation test to the facts, the chairs were held to be chattels.
Summarising the tests

[4.70] The Federal Court in the case of National Australia Bank Ltd v
Blacker (2000) 104 FCR 288 summarised what a court may consider when
applying the object of annexation and purpose of annexation tests.
National Australia Bank v Blacker

[2.50] National Australia Bank Ltd v Blacker (2000) 104 FCR 288
FACTS • Mr and Mrs Blacker owned a dairy farm that was being foreclosed by the
National Australia Bank. A dispute arose between the bank and the Blackers as to
whether some pumps (mounted on a steel skid, resting on the ground so as to be towed
and/or pulled by a tractor), 200 valves and 200 sprinkler heads were chattels or fixtures.
The Blackers argued that the items were chattels and the bank contended the chattels
were fixtures, thus forming part of the mortgaged property.
HELD • Conti J, summarising the tests (at [13] and [14]), noted:
Purpose of annexation
In determining the purpose or object of annexation, a variety of considerations may be taken into
account. The Court ought as a general rule to have regard to:
• Whether the attachment was for the better enjoyment of the property generally or for the better
enjoyment of the land and/or buildings to which it was attached.
• The nature of the property the subject of affixation.

• Whether the item was to be in position either permanently or temporarily.
• The function to be served by the annexation of the item.
The degree of annexation
In determining the degree of annexation, the Court may consider the following:
• Whether removal would cause damage to the land or buildings to which the item is attached.
• The mode and structure of annexation.
• Whether removal would destroy or damage the attached item of property.
• Whether the cost of renewal would exceed the value of the attached property.
Conti J considered (at [16]) that: “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 circumstances of the case in making its determination.”
Applying the tests to the facts, Conti J found that the items were chattels. With respect to
the pump he considered (at [25]) that “[t]he pumps have rested on the land on their own
weight for all operational purposes and were not so relatively heavy in weight as to have
yielded any inference of intended permanency of physical location”. And further (at [26])
“[i]n the present case no damage would be done to the pumps nor the realty and it would
cost far less to remove the pumps than what they are worth”.
The valves (at [27]–[28]):
… could readily and conveniently be removed and replaced by the same or similar items without
causing damages or inconvenience, they were comparatively inexpensive as items of plant, and
would have been readily replaceable if lost or damaged. The sprinkler heads can similarly be
removed without difficulty. They rested on their own weight and the Bank failed to meet the onus
required to prove that they are not chattels.
[4.90] It must be stressed that cases are determined by reference to their

particular facts and circumstances. There may be differences in the
treatment of similar objects by a court due to the circumstances of the case:
see, eg, Leigh v Taylor [1902] AC 157; and Re Whaley [1908] 1 Ch 615.
Palumberi v Palumberi
[4.100] Palumberi v Palumberi (1986) 4 BPR 9106
FACTS • Upon completion of a contract, a dispute arose between the vendor and
purchaser as to whether some items were chattels or fixtures passing with the premises to
the purchaser on the sale.
HELD • The carpets and stove, both slightly affixed to the house, were regarded as being
fixtures, as in addition to being affixed they had been installed for the purpose of
improving and enjoying the premises. The Venetian blinds, curtains, built-in linen cabinet
(which was freestanding and readily removable), television antenna (as it was not annexed
to the property for any building-related purpose), outside spotlight and timer, light fittings
and portable heater were regarded as chattels.
Park v Lasrado
[4.110] Park v Lasrado [2005] Q ConvR 54-636; [2005] QSC 211
FACTS • The applicants were the receivers of a house property appointed by the
mortgagee. Mr Lasrado had installed a large chandelier in the entrance hall of the house.
The question was whether the chandelier was property secured by the mortgage. The
receivers contended that upon installation it became a fixture secured by the mortgage.
The chandelier was suspended from a dome in the ceiling of the entrance hall. A pulley
system enabled the chandelier to be raised and lowered but the chandelier was not
attached to the pulley system.
HELD • Byrne J held that the arrangement permitted detachment of the chandelier at any
time without any damage being occasioned to either the fabric of the ceiling or the
chandelier itself. Given this, Byrne J considered there was no affixation of the chandelier to
the house so it retained its nature as a decorative chattel.
National Dairies WA v Commissioner of State Revenue

[4.120] National Dairies WA Ltd v Commissioner of State Revenue (2001) 24 WAR 70
FACTS • National Dairies WA Ltd (the appellant) agreed to purchase the land, factory
premises and plant and equipment of the dairy business. The question raised by the
appeal was whether various items of plant and equipment were goods, wares and
merchandise exempt from stamp duty. The appellant submitted that the items were
chattels, on the basis that there was either no physical annexation to the land or the
degree of annexation was slight.
HELD • Whilst the court noted the degree of annexation was slight, it regarded the plant
and equipment as comprising an intrinsic part of the dairy farm’s operation, holding that
the plant and equipment were fixtures that had been annexed to the land for the purpose
of the better enjoyment of the land for milk processing purposes as a whole.
PART II
INTERESTS IN LAND
MindMap04
Relevant contractual Doctrine of fixtures: that which is Application of the tests
relationships attached to land forms part of the land
Each case will be determined by
Vendor and purchaser – its particular facts
fixtures to the land pass
with title unless there is a There can be differences in the
contrary contractual treatment of similar objects:
intention Leigh v Taylor [1902] AC 157 and
Re Whaley [1908] 1 Ch 615
Mortgagee and mortgagor –
fixtures are part of the Doctrine of fixtures – tests Authorities
mortgage security to apply to the facts
National Australia Bank Ltd v Park v Lasrado [2005]
Blacker (2000) 104 FCR 288 – Q ConvR 54 636; [2005]
Landlord and tenant – Degree of Annexation – how items were chattels and so QSC 211 – Degree and Purpose
tenant may be able to is the chattel affixed to the replaceable; Degree of of Annexation – decorative in
remove fixtures upon land? (Holland v Hodgson Annexation – slight affixation; nature and removable without
termination of the tenancy (1872) LR 7 CP 328 no damage to remove damage
Agricultural fixtures – Purpose (Object) of Palumberi v Palumberi (1986) National Dairies WA Ltd v
4 BPR 9106 – Degree of Commissioner of State
common law position is that Annexation – why and for
Annexation – fixtures: carpets Revenue (2001) 24 WAR 70 –
agricultural fixtures cannot what purpose was the and stove; chattels: venetian Purpose of Annexation – plant
be removed. Some chattel affixed to the land? blinds, curtains, linen cabinet, and equipment were fixtures
jurisdictions have altered (Australian Provincial TV, antenna, outside spotlight because they were intrinsic to
this position to allow Assurance Co Ltd v Coroneo and timer, light fittings and the farm’s operation despite
removal through statute (1938) 38 SR (NSW) 700) portable heater slight annexation
Chapter 5
Doctrine of Estates
Doctrine of Estates
[5.10] INTRODUCTION....................................................................... 40
[5.20] DIVISION OF ESTATES.............................................................. 40
[5.30] WORDS OF LIMITATION: THE CREATION OF FREEHOLD ESTATES .... 42
[5.40] DETERMINABLE AND CONDITIONAL INTERESTS............................ 42
[5.60] RIGHTS OF OWNERS OF FREEHOLD ESTATE ............................... 44
[5.70] THE DOCTRINE OF WASTE ....................................................... 44
Introduction
[5.10] The doctrine of estates focuses on the fact that the owner of a piece
of land has a present interest in the land (ie, their current ownership of the
land), but that successive (ie, future) interests in the same piece of land can
be created. As North J commented in Western Australia v Ward (2000) 99
FCR 316 at [811] “[i]n essence, the doctrine of estates reflected the idea that
a person should be able to have an interest in land giving rise to a present
right to possession, while at the same time other persons would also have
interests in the same land giving them future rights to possession”.
Division of estates
[5.20] An estates is regarded as either a freehold or leasehold estate. A
freehold estate is distinguishable from a leasehold estate based on time: a

freehold estate can be held for an indefinite period of time whilst an
interest in a leasehold estate is fixed by time (ie, the term of the lease).
Freehold estates are then further categorised as either fee simple, life estate
or fee tail.
An estate in fee simple is regarded as the highest estate that can be
granted in land (remembering that the doctrine of tenure provides that the
absolute ownership of land rests with the Crown). For all intents and
purposes, the owner of an estate in fee simple is regarded as the “owner”
of the land.
The extent of an estate in fee simple is denoted by the meaning of the
words: fee indicating that the estate is capable of being inherited (unlike the
life estate) and simple indicating that there is no restriction on who can
inherit the land (unlike a fee tail estate).
CHAPTER 5 DOCTRINE OF ESTATES / 41
A life estate is regarded as a lesser freehold estate, as the estate is

granted from the larger fee simple estate by the owner. A life estate is an
estate through which the freehold estate is granted to a person, referred to
as the life tenant, for the life of a nominated person, referred to as the
measuring life. The life tenant takes possession of the land from the owner
for the length, or measure, of the life of a nominated person. The life of the
nominated person can be the life of the life tenant or the life of another, an
estate pur autre vie.
Consider the following examples.
FACTS: A grant to X for life.

INTERESTS: This means that a life estate is created in X’s favour. The length of the life
estate will be measured by the duration of X’s life, the life estate will come to an end upon
X’s death. Possession and ownership of the land can either revert back to the owner or pass
to the next person entitled to an estate in the land.
FACTS: A grant to X for the life of H.

INTERESTS: This means that a life estate is created in X’s favour but that the length of the
life estate will be measured by the duration of H’s life. X’s life estate will come to an end
upon H’s death. Possession and ownership of the land can either revert back to the owner or
pass to the next person entitled to an estate in the land.
[5.25] Fee tail is an historical category of freehold estate in which the

estate is inherited by family members. A fee tail estate can be used as a
means of keeping land in the family as alienation (ie, sale) of the land is
prevented. The degree to which fee tail estates exist in Australia differs
between jurisdictions.
Jurisdiction Statute Extent of fee tail estate

New South Wales Conveyancing Act 1919, ss 19 and Fee tail estates cannot be created.
19A Any estate in fee tail becomes an
estate in fee simple.
Queensland Property Law Act 1974, s 22 Fee tail estates cannot be created.
Any estate in fee tail becomes an
South Australia Estates Tail Act 1881, s 2 Fee tail estates can be created.
Tasmania Land Titles Act 1980, s 113 Fee tail estates could be made prior
to 8 December 1886. An estate in fee
tail created after that date creates a
fee simple estate.
Victoria Property Law Act 1958, s 249 Fee tail estates cannot be created.
Western Australia Property Law Act 1969, s 23 Fee tail estates cannot be created.
42 PART II INTERESTS IN LAND
Words of limitation: the creation of freehold estates

[5.30] Traditionally, the creation of one of the freehold estates required a
specific form of words to be used. If the correct words of limitation were not
used, the freehold estate would not be created. In determining the correct
words of limitation, the courts distinguished between the words needed to
create a freehold estate during the life of the donor (an inter vivos grant)
and the words needed to create a freehold estate under a will. Under the
common law, a person needed to specify that the grant was to A and his
heirs. The inclusion of the words heirs was of vital importance to ensure the
grant was a grant of fee simple (ie, ability for the interest to be inherited by
heirs). Without the inclusion of the word heirs it was presumed that the
estate was of a personal nature only so that a life estate was created.
Nowadays, the need to strictly adhere to the correct words of limitation
for an inter vivos grant has been modified by statute in all States except
South Australia. The position is similar with respect to grants made under
a will. Under the statutory provisions the traditional common law position
is reversed: unless the contrary intention is expressed a fee simple estate
will be created.
Jurisdiction Statute: inter vivos grant Statute: by will

New South Conveyancing Act 1919, s 47 Succession Act 2006, s 38
Wales
Queensland Property Law Act 1974, s 29 Succession Act 1981, s 33K
South No specific provision Wills Act 1936, s 31
Australia
Tasmania Conveyancing and Law of Property Wills Act 2008, s 52
Act 1884, s 61(2)
Victoria Property Law Act 1958, s 60 Wills Act 1997, s 42
Western Property Law Act 1969, s 37 Wills Act 1970, s 26(e)

Australia
Determinable and conditional interests

[5.40] The grant of an interest in land without any conditions attached is
regarded as absolute. A determinable condition can be used to limit the
duration of an estate by specifying certain circumstances (the limiting
event) that will bring the estate to an end. Alternatively, a condition can be
used to limit the duration of an estate by specifying certain conditions that
must be met prior to the grant coming into existence. It is the form of
words used in the condition that will determine whether a determinable
condition or condition subsequent has been created. The differences in
effect between a determinable condition and a condition subsequent are
enormous.
When the limiting event on an estate is classified as determinable the

condition is regarded as part of the grant of the interest in the estate. If the
limiting event is found to be void, because it is part of the grant, the whole
grant will fail. In contrast, the limiting event attached to a conditional
subsequent is regarded as being an addition to, or an attachment to, the
grant. Notably, the limiting event is regarded as separate from the grant
itself. Therefore, if the limiting event on the condition subsequent is found
to be void, the condition will be removed from the grant making the grant
unconditional and absolute.
Conditions can be found to be void by reason of public policy, the course
of law, uncertainty or imprecision, or because the condition may take away
from the owner’s power of alienation (eg, the right to sell).
Zapletal v Wright
[5.50] Zapletal v Wright [1957] Tas SR 211
FACTS • Wright was a married man separated from his wife who began a relationship
with Zapletal. Wright brought some land, using his own money, but at Zapletal’s request
put the title in their joint names. The relationship broke down and Zapletal sought an
order for the sale of the land and division of part of the proceeds to her. Wright argued that
Zapletal’s interest in the land was a gift conditional upon her continuing to reside with
him. In the event she stopped living with him, her interest in the land would cease.
HELD • The court (Burbury CJ and Crisp J) accepted that there was a condition attached
to the gift (ie, the grant of the interest in the land), but they needed to determine whether
the condition was a determinable condition or a condition subsequent. Crisp J commented
(at 217):
… I think that the agreement for the determination of the estate should be regarded as a condition
subsequent for the following reasons. The form of the gift was an undivided moiety in fee; it was
not in term limited to an estate defined by reference to any prior event. In fact it might continue
after the event in which defeasance was to take place or might become impossible or irrelevant,
that is, after the defendant’s death. The form of the condition is such that it did not denote the
extent of the estate but only the event in which the larger estate conferred may have been cut
short.
In simpler terms, he considered that “plainly its [the condition’s] object was to bind the
plaintiff to the defendant and to provide inducement for her not to leave him”.
Following the determination that the condition was a conditional interest, not a
determinable interest, the validity of the condition then needed to be considered.
Burbury CJ commented (at 215):
The presence of the condition subsequent in the transaction from its inception I think must be
taken as tending to perpetuate the illicit relationship and to keep the defendant apart from his
legal wife. I think it must follow that the condition is void as tending to immorality. That upon its
true construction it operates as a condition subsequent and not as a conditional limitation of the
estate granted is I think immaterial for the purpose of determining its validity. The distinction is a
vital one; as an illegal conditional limitation it would destroy the whole of the appellant’s interest,
as an illegal condition subsequent it enables the plaintiff to retain her vested interest free from
the condition. But that is a consequence which flows from the distinction made in the law of
property between a conditional limitation and a condition subsequent. It follows in my opinion
that the plaintiff is entitled to an absolute interest as a joint tenant for an estate in fee simple in
the property …
Rights of owners of freehold estate

[5.60] Whatever the nature of the freehold estate, the owner of the estate
will have certain rights that are automatically attached to the interest.
Owners of an estate in fee simple have the right to alienate (eg, sell or
transfer) their interest, the right to things necessary for the reasonable use
of the land (ie, airspace) and the right to create lesser interests (eg, a life
estate).
Owners of a life estate similarly have a right of alienation but that right
of alienation is limited to the alienation of their interest. A life tenant also
has the right to possess the land the subject of the interest and receive any
rents and profits. However, on the basis that the life tenant’s possession of
the land is not indefinite, the life tenant has an obligation to protect and
maintain the land for the benefit of other interest holders. This obligation is
imposed by the doctrine of waste. There are four categories of waste

(ameliorating, permissive, voluntary and equitable) and the nature of the
waste will determine the liability of the life tenant.
The doctrine of waste

[5.70] Ameliorating waste is the least damaging form of waste as the
actions of the life tenant may have altered the characteristics of the
property but such alteration may amount to an improvement. No action
will be taken against the life tenant. In Jones v Chappell (1875) LR 20 Eq 539
at 542, Jessell MR indicated: “[t]he erection of buildings on land which
improve the value of the land is not waste. In order to prove waste you
must prove an injury to the inheritance.”
Permissive waste describes the situation where the life tenant has failed
to do what is expected. The most obvious expectation is one of repair.
However, the tenant may not be liable to repair unless there is an express
requirement in the grant for the life tenant to keep the land or building, etc,
in repair.
Voluntary waste refers to an act committed by the life tenant that has
damaged the land. The life tenant will be responsible for the voluntary
waste unless the grant expressly exempts the life tenant from damage that
may be caused to the land. This common law position is reflected in some
States’ legislation.
Equitable waste is the flagrant and wanton destruction of the property
by the life tenant. The life tenant will be responsible for the equitable waste
unless the grant expressly exempts the life tenant from such damage that
may be caused to the land. In the case of Vane v Lord Barnard (1716) 2 Vern
738, Lord Barnard was the life tenant of a manor. He, after a falling out
with his son, stripped the manor of its lead guttering, iron, glass windows,
doors and floorboards. The court regarded this as equitable waste, the
damage being so significant.
A life tenant is prohibited from committing equitable waste by operation
of statute in some jurisdictions.
Jurisdiction Permissive waste Voluntary waste Equitable waste

New South No legislative provision No legislative provision Conveyancing Act 1919,
Wales s9
Queensland No legislative provision Property Law Act 1974, Property Law Act 1974,
s 24 s 25
South No legislative provision No legislative provision Law of Property Act
Australia
1936, s 12
Tasmania No legislative provision No legislative provision No legislative position
Victoria Property Law Act 1958, Property Law Act 1958, Property Law Act 1958,
s 132A(5) s 132A(1) s 133
Western No legislative provision No legislative provision Property Law Act 1969,
Australia s 17
MindMap05
Division of estates A person can have an interest in land given Rights of owners of a
rise to a present right to possession, while life estate
at the same time giving others future
Freehold – indeterminate estate rights to possession
in land Right to alienate their interest
Leasehold – estate limited by Right to receive any rents and

reference to a period of time, eg, profits
lease for a period of 3 years
To not commit waste (common
Fee simple – largest freehold law and statutory requirements)
estate: fee (capable of being
inherited) simple (no
restriction on who can inherit Ameliorating waste – no
the land) damage (improvement),
no liability
Life estate – estate granted to

the life tenant from the fee Permissive waste – failure to
Determinable conditions Rights of owners of an act, not liable unless express
simple for the life of a
nominated person and conditions estate in fee simple requirement of the grant
subsequent
Right to alienate – right to sell, Voluntary waste – positive
Fee tail – an estate inherited damaging act, liable unless
lease or mortgage
by family members (most Conditions can be used to limit exempted by the grant
jurisdictions convert such a the duration of an interest
grant to fee simple) specifying the conditions that The right to things necessary
will bring the estate to an end for the reasonable use of the Equitable waste – flagrant and
wanton destruction, liable for
(determinable) or create the land, eg, airspace
damage unless exempted by
estate (subsequent) the grant

Right to create lesser interests
The form of words of the grant in the land, eg, life estate or
will determine its classification: lease
Zapletal v Wright [1957]
Creation of a freehold Tas SR 211
estate
Determinable condition –
By inter vivos grant – in most regarded as part of the grant of
jurisdictions an estate in fee the estate, if void will render the
simple created unless a grant void
contrary intention is expressed
Condition subsequent –
By will – an estate in fee simple regarded as separate to the
is created unless a contrary grant of the estate, if void will
intention is expressed make the grant absolute
Chapter 6
Future Interests
Future Interests
[6.10] INTRODUCTION....................................................................... 48
[6.20] REVERSION............................................................................ 48
[6.30] REMAINDERS.......................................................................... 49
[6.40] COMMON LAW RULES REGARDING CONTINGENT LEGAL
REMAINDERS.......................................................................... 50
[6.50] STATUTORY PROVISIONS.......................................................... 51
[6.60] COMMON LAW RULE AGAINST PERPETUITIES .............................. 52
[6.70] CLASS GIFTS.......................................................................... 53
[6.80] CONSEQUENCES OF BREACHING THE RULE AGAINST
PERPETUITIES ........................................................................ 54
Introduction
[6.10] Freehold estates are held either in possession, in reversion or
remainder. These classifications designate whether the freehold estate is a
present or a future interest. For example, the person in current possession
of the freehold estate holds a present interest. A person whose possession is
postponed until some precondition permitting possession is met holds a
future interest. Future interests are classified as either reversions or
remainders (remainders being further classified as being vested or
contingent).
Reversion
[6.20] A reversion is the residue of the freehold estate after a lesser estate
has been granted.
Consider the following example.
FACTS: X, the owner of an estate in fee simple, grants to B, a life estate.

INTERESTS: X’s estate in fee simple is the largest freehold estate. X as the owner of the fee
simple has the right to create lesser interests, in this case a life estate. B’s life estate is a
present interest as B is entitled to possession through the grant of the life estate. X remains
owner of the fee simple estate but, because of the grant of the life estate, is not presently
entitled to possession of it. X’s residual interest (ie, the fee simple estate) will revert to X
upon B’s death when B’s present interest (ie, the life estate) will end and X can regain
possession and full ownership.
Until B’s death, X’s estate is a future interest, ie, a fee simple estate in reversion.
CHAPTER 6 FUTURE INTERESTS / 49
Remainders
[6.30] A remainder interest will terminate an earlier freehold estate.
However a remainder is postponed by the existence of an existing estate in
possession. A remainder is vested or contingent.
A remainder interest is a present interest to future enjoyment. To be
vested, the person entitled to take the future interest must be ascertained
and there must be no precondition to the person taking the interest save the
ending of the existing estate.
FACTS: X, the owner of an estate in fee simple, grants to B a life estate but then grants the
fee simple to C.
INTERESTS: X’s estate in fee simple is a larger freehold estate than B’s life estate. B’s life
estate is a present interest as B is entitled to possession. B’s interest is a life estate vested in
possession. X remains owner of the fee simple but is not entitled to possession either
presently or in the future.B’s interest will end upon B’s death, at which time C will be
entitled to possession. Until B’s death, C is entitled to the remainder of the fee simple estate
vested in interest.
Until B’s death, C’s estate is a future interest, ie, a fee simple estate in remainder.
The remainder is vested in interest as C is named and there is no precondition, apart from
B’s death, which will inhibit C taking the interest.
If a remainder interest does not meet the requirements for it to be vested,

the interest is contingent: the taking of the future interest is conditional
upon more than the ending of the existing estate.
FACTS: X, the owner of an estate in fee simple, grants to B a life estate but then grants the
fee simple to C provided he attains the age of 21.
INTERESTS: X’s estate in fee simple is a larger freehold estate than B’s life estate. B’s life
estate is a present interest as B is entitled to possession. B’s interest is a life estate vested in
possession. B’s interest will end upon B’s death; C will then be entitled to possession.
However, C’s entitlement is conditional: C must be 21. As there is a condition that must be
met in addition to the end of the existing interest, C’s interest is regarded a contingent
interest.
Until B’s death, C’s estate is a future interest: a contingent fee simple estate in remainder.
When C turns 21, his interest will vest in interest, as there will be no precondition, apart from
B’s death, precluding him taking the interest. When B’s life estate comes to an end, C’s
interest will vest in possession.
There is no limit to the number of remainders that can be created.

FACTS: D, the owner of an estate in fee simple, grants to B a life estate, then a life estate
to X, a life estate to Y, and the fee simple to C.
INTERESTS: D’s estate in fee simple is a larger freehold estate than B’s life estate. B’s life
estate is a present interest as B is entitled to possession. X’s and Y’s life estates are future
interests: life estates in remainder as they are not entitled to possession until the end of the
present interests (ie, X has to wait until the death of B, and Y has to wait for the death of B
and X). D remains owner of the fee simple but is not entitled to possession either presently
or in the future. C will not be entitled to possession until all the other interests have ended.
Until Y’s death, C is entitled to the remainder of the fee simple estate vested in interest.
Until B’s death, X’s estate is a future interest: a life estate in remainder vested in interest.
Until B’s and X’s deaths, Y’s estate is a future interest: a life estate in remainder vested in
interest.
Until B’s, X’s and Y’s deaths, C’s estate is a future interest: a fee simple estate in
remainder vested in interest. Upon B’s, X’s and Y’s deaths, C’s interest will become vested in
possession.
Common law rules regarding contingent legal remainders

[6.40] The enforcement of contingent legal remainders gave rise to a
complex web of common law rules during the 16th and 17th centuries in
England because of the ability for remainders to be unlimited. The common
law legal remainder rules were that:
1. The remainder was void unless supported by a particular estate. This
required that there could be no gap between interests.
2. A remainder after a fee simple was void. In other words, once the fee
simple remainder was granted, the fee simple estate being the most
absolute estate, no further interest could be created.
3. A remainder was void unless it followed a prior particular estate. In
other words, artificial conditions could not be placed on lesser interests
in order to shorten ownership.
4. The contingent remainder had to be capable of vesting during the
existing possessory estate. In other words, the condition on the
remainder could not be such that there could be a gap between
interests.
A further difficulty surrounding legal contingent remainders arose from
Shelley’s Case (1581) 1 Co Rep 93b; 76 ER 206 where the following rule was
stated:
It is a rule of law, when the ancestor by any gift or conveyance takes an estate in
freehold, and in the same gift or conveyance an estate is limited either mediately
or immediately to his heirs in fee tail; that always in such cases, ‘the heirs’ are
words of limitation of the estate, and not words of purchase.
From the above, such a grant would seem to give a life estate to B and
the remainder in fee simple to B’s heirs. However, the effect of the rule in
Shelley’s Case was such that a grant by D to B for life and then to B’s heirs
was regarding as a grant in fee simple to B. Some jurisdictions have
legislated to exclude the rule in Shelley’s Case from having any application.
South Australia Rule not excluded from operation
Tasmania Rule not excluded from operation
In addition to the rules listed above, the common law also developed
natural and artificial methods to destroy contingent legal remainders from
coming into effect. The rule in Purefoy v Rogers (1671) 2 Wms Saund 380; 85
ER 1181 (a contingent interest would fail if there was a gap in possession),
the Statute of Uses 1535 (conversion of equitable interests into a legal
interest) and the Statute of Wills 1540 (beneficiary of land took a legal
interest not an equitable interest) also sought to rule over contingent legal
remainders. Due to the complexity of the common law rules, the regime
has since been modified, although to differing degrees between jurisdictions.
Statutory provisions
[6.50]
Jurisdiction Restriction of executory Abolition of rule in Repeal of Statute of

limitations Purefoy v Rogers Uses
New South Conveyancing Act 1919, Conveyancing Act 1919, Imperial Acts
Wales s 29B s 16 Application Act 1969, s 8
Queensland Property Law Act 1974, Property Law Act 1974, Property Law Act 1974,
s 32 s 30 s7
South No legislative provision Law of Property Act No legislative provision
Australia 1936, s 25
Tasmania Conveyancing and Law Conveyancing and Law No legislative provision
of Property Act 1884, of Property Act 1884,
s 79 ss 80, 81
Victoria Property Law Act 1958, Property Law Act 1958, Imperial Acts
s 132 ss 191, 192 Application Act 1980, s 5
Jurisdiction Restriction of executory Abolition of rule in Repeal of Statute of

limitations Purefoy v Rogers Uses
Western Property Law Act 1969, Property Law Act 1969, No legislative provision
Australia s 28 s 26
The overall effect of the statutory provisions is that:

• in New South Wales and Victoria a legal contingent remainder can still
be created (but without the common law limiting rules applying);
• in Queensland a legal contingent remainder is regarded as an equitable
interest;
• the traditional common law position remains operational in South
Australia.
Common law rule against perpetuities

[6.60] The ownership of property comprises two competing ideals. First,
the principle of freedom of property: the proposition that those who own
property should be free to deal with it. Secondly, landowners should be
able to restrain the freedom of property to protect the property for future
generations (eg, use of freehold estates in fee tail, contingent remainders
and trusts). The rule against perpetuities seeks to balance these interests by
allowing freedom of property to the extent that landowners are not able to
preclude alienation indefinitely (in perpetuity).
The old common rule against perpetuities was designed to prevent the
unending series of contingent remainders designed to keep the property in
the family by giving life estates to each generation: see Whitby v Mitchell
(1890) 44 Ch 85. The rule in Whitby v Mitchell has been abolished in all
jurisdictions except South Australia.

The modern common law rule against perpetuities seeks to impose a
limit on the time between the creation of the future interest and the vesting
of that interest by requiring that “the future interest vest no later than
21 years after the life in being at the creation of the interest”.
Element Interpretation
Vest The identity of the person receiving the interest (whether an individual or a class)
must be known and there must be no precondition to taking the interest other than
the end of a prior estate.
21 years The perpetuity period.
Life in being The human life (or group of lives) from which the 21-year period is counted. The
human life must be in being, that is, the individual or individuals must be alive at
the time the interest is created.
At the creation Where the creation of the interest is via a person’s will or testamentary disposition:
Element Interpretation
of the interest the date of death, 21-year period starts to run from the testator’s death. Where the
creation of the interest occurs during the grantor’s lifetime, eg, an inter vivos
transaction (eg, a trust deed): 21-year period starts to run from the date
the interest takes effect.
FACTS: X’s will grants all her property to her daughter B’s first child.
PERPETUITY ISSUES: If upon X’s death, B had no children, B is the life in being and the
21-year time limit starts for the vesting of the interest.
The modern common law rule against perpetuities has been modified by
statute in all Australian States except South Australia. The statutory
provisions specify the duration of the perpetuity period. Further, instead of
requiring certainty of interests at the time of their creation, the legislation
provides for a “wait and see” approach. This means that time can elapse so
as to see which interests vest during the period and which interests will fall
outside the perpetuity period.
Jurisdiction Rule in Whitby v Mitchell abolished Perpetuity period

New South Wales Conveyancing Act 1919, s 23A 80 years: Perpetuities Act 1984
Queensland Property Law Act 1974, s 216 80 years: Property Law Act 1974,
s 209(1)
South Australia Rule still applies 80 years: Law of Property Act 1936,
s 62
Tasmania Perpetuities and Accumulation Act 80 years: Perpetuities and
1992, s 21 Accumulation Act 1992, s 6(1)
Victoria Perpetuities and Accumulations Act 80 years: Perpetuities and
1968, s 12 Accumulations Act 1968, s 5(1)
Western Property Law Act 1969, s 114 80 years: Property Law Act 1969, s 101
Australia
Class gifts
[6.70] One way of extending the perpetuity period is to give a class gift.
The interest is not granted to an individual but to a class of people that are
as yet unascertained, for example, a person’s grandchildren who attain the
age of 18. The share of each grandchild will depend upon how many
grandchildren there are at the relevant time. If a member’s interest vested
outside the period then the whole of the gift would fail.
The statutory modifications seek to save the grant by saving those class
gifts that do vest during the perpetuity period. The statutory provisions do
this in an ordered way:
1. By adopting a “wait and see” approach.
2. By Reducing the age restriction.

3. By excluding those class members outside the period.
New South Wales Perpetuities Act 1984, s 10
South Australia Common law position
Tasmania Perpetuities and Accumulation Act 1992, s 10
Victoria Perpetuities and Accumulations Act 1968, s 9
Consequences of breaching the rule against perpetuities

[6.80] Under the common law each interest was considered. However,
where there were a series of successive interests, a prior invalidated interest
would invalidate the next interest.
Statutory modification of this rule requires that each interest be
considered independently so that any invalid earlier interest may not
invalidate a later interest.
New South Wales Perpetuities Act 1984, s 17
South Australia Common law position
Tasmania Perpetuities and Accumulation Act 1992, s 12
Victoria Perpetuities and Accumulations Act 1968, s 11
MindMap06
Reversion A future interest is one in which Rule against perpetuities

possession is postponed until some
precondition permitting possession
Residue of the freehold estate is met Freedom of property v restraint
after a lesser estate has been for future generations
granted, eg, fee simple after the
granting of a life estate Common Law Rule – the future
interest must vest no later than
21 years after the life in being at
Remainder the creation of the interest
A remainder will terminate an Class Gifts – one way of

earlier freehold estate and is extending the perpetuity
postponed by the existence of an period – but if an interest
existing estate in possession. A Statutory Position – 80-year vests outside the period the
remainder is vested or contingent perpetuity period whole gift will fail
Class Gifts – one way of Breach of Rule – where there

Vested – the person entitled must be
extending the perpetuity are a series of successive
ascertained and there must be no
period – if gift vests outside interests a prior invalidated
precondition to the person taking the
the period the gift may interest will invalidate the
interest save the ending of the existing
be saved next interest
estate
Contingent – the future interest is Breach of Rule – each interest

conditional upon more than the ending of is considered independently.
the existing estate. There is no limit to the An earlier invalidated interest
number of remainders that can be created may not invalidate the next
Chapter 7
Legal and Equitable Interests
Legal and Equitable Interests
[7.10] INTRODUCTION....................................................................... 56
[7.20] LEGAL AND EQUITABLE INTERESTS IN LAND ............................... 56
[7.100] ENFORCEMENT OF EQUITABLE RIGHTS ...................................... 60
[7.110] SPECIFIC PERFORMANCE AND INJUNCTIONS AS EQUITABLE
REMEDIES ............................................................................. 61
[7.110] Specific performance...................................................... 61
[7.140] Injunction .................................................................... 62
Introduction
[7.10] Both legal and equitable interests can be created and exist in the
same piece of land. The distinction between legal and equitable interests is
one of character. Legal interests are created when the formalities required
by the common law or statute to create an interest are complied with (eg,
writing and registration). Conversely, an equitable interest is characterised
by the absence of such formalities.
Legal and equitable interests in land

[7.20] In all States any conveyance or disposition of land must be made in
writing. An oral (parol) contract for the disposition of land is unenforceable
unless there is evidence of part performance.
Jurisdiction Writing and deed requirements Interests in land created by parol at

will only
New South Wales Conveyancing Act 1919, ss 23B, 23C Conveyancing Act 1919, s 23D
Queensland Property Law Act 1974, ss 10, 11 Property Law Act 1974, s 12
South Australia Law of Property Act 1936, ss 26, 28, Law of Property Act 1936, s 30
29
Tasmania Conveyancing and Law of Property Conveyancing and Law of Property
Act 1884, ss 36, 60 Act 1884, s 36
Victoria Property Law Act 1958, ss 52, 53 Property Law Act 1958, s 54
Western Australia Property Law Act 1969, ss 33, 34 Property Law Act 1969, s 35
The doctrine of part performance arises from the decision of Maddison v

Alderson (1883) 8 App Cas 467 but has been judicially considered to apply
in Australia by the High Court in its decision of Regent v Millett (1976) 133
CLR 679.
CHAPTER 7 LEGAL AND EQUITABLE INTERESTS / 57
Regent v Millett
[7.30] Regent v Millett (1976) 133 CLR 679
FACTS • The respondent plaintiff was the daughter of the appellant defendants. The
appellants bought a house, agreeing that the daughter and her husband could live in the
house and treat it as their own if they paid the mortgage. The house would be transferred
to them when the mortgage was paid off. The respondent went into possession of the
property and began paying the mortgage instalments. The house was in bad condition
and repairs were made. The respondent wanted to carry out further renovations and went
to the bank for a loan. Repairs were carried out on the house by the respondent. The
appellants refused to transfer the property. The appellants argued that no action arose as
there was no written document to support the conveyance. The respondent sought
enforcement of the oral agreement, seeking the remedy of specific performance.
HELD • Gibbs J (Stephen, Mason, Jacobs and Murphy JJ agreeing), finding that there were
sufficient acts of part performance, stated (at [5]):
The acts of part performance on which the respondents relied were (1) the taking of possession;
(2) the effecting of repairs before December 1972; (3) the doing of the work on the renovations and
additions in January 1973 and (4) the making of the mortgage repayments.
The principle upon which the doctrine of part performance rests was stated by
Lord Cranworth LC in Caton v Caton (1866) LR 1 Ch App 137 at 148 in words that appear to
have a direct application to the present case. He said (at [7]):
… when one of two contracting parties has been induced, or allowed by the other, to alter his
position on the faith of the contract, as for instance by taking possession of land, and expending
money in building or other like acts, there it would be a fraud in the other party to set up the legal
invalidity of the contract on the faith of which he induced, or allowed, the person contracting with
him to act, and expend his money.
Further (at [11]):

It is clear that if a vendor permits a purchaser to take possession to which a contract of sale
entitles him, the giving and taking of that possession will amount to part performance
notwithstanding that under the contract the purchaser was entitled rather than bound to take
possession.
[7.40] For land within the Torrens System the additional requirement of
registration is required for the interest to be regarded as a legal interest in
land. Until registration, an interest is unregistered and despite the written

formalities being met will be regarded as an equitable interest.
Jurisdiction Effect of registration on interest

New South Wales Real Property Act 1900, s 41
Queensland Land Title Act 1994, s 182
Tasmania Land Titles Act 1980, s 39
Victoria Transfer of Land Act 1958, s 40
Western Australia Transfer of Land Act 1893, s 58
A legal interest then is an interest enforceable against the world at large.

On the other hand, an equitable interest becomes, via the principles of
equity, a personal right. As such, enforcement of the equitable interest will
be good only against the person claiming to have legal title or another
person holding an equitable interest in the land.
The ability to enforce an equitable interest will depend upon the nature
of the equitable interest held. In that respect, there is a hierarchy of
equitable interests.
An equitable interest sits atop the hierarchy as an equitable interest has
proprietary characteristics. In other words, the character of the interest
looks like a right to property. Examples include: an unregistered lease, an
unregistered mortgage, or a purchaser’s interest in land after the signing of
a contract but prior to settlement. The classification of each interest will be
necessary where there is a dispute between competing interests.
Chan v Cresdon
[7.50] Chan v Cresdon Pty Ltd (1989) 168 CLR 242
FACTS • Cresdon and Sarcourt agreed to enter into a lease of land. Annexed to the
written lease was a guarantee in which Chan agreed to be guarantor of Sarcourt’s
obligations under the lease. The lease was signed by the parties but not registered.
Sarcourt was in rental arrears and defaulted under the terms of the lease. Cresdon took
action against Chan to recover the arrears as guarantor. Chan denied liability on the basis
that the lease was not a legal lease (ie, it was not registered) therefore the guarantee
obligations attached to the lease were not enforceable. To resolve the dispute the High
Court was required to classify the interests.
HELD • The High Court found that the lease did not create a legal interest in favour of
Cresdon because it was not registered as required by the Torrens title legislation. That the
lease was not registered was not fatal, however, as the High Court held that the
agreement between Sarcourt and Cresdon, because it was in writing, created an equitable
lease. However, in finding that an equitable lease had been created, the High Court was
not satisfied that Chan’s guarantee formed part of the equitable lease. The guarantee
documentation referred to Chan’s guaranteeing performance of obligations “under the
lease” however “the lease” was not enforceable as a legal interest, given the failure to
register. Therefore the High Court concluded that the agreement constituting the
equitable lease did not include the guarantee, and so Chan was not liable.
[7.60] Below an equitable interest in the hierarchy is a mere equity. A

mere equity may have some of the characteristics of a right to property but
not to the extent of an equitable interest. A mere equity can include, for
example, the right to have a contract set aside for mistake or
misrepresentation and unconscionability.
The proprietary characteristic of equitable interests and mere equities
has made differentiating between the categories difficult for the courts, as
there is no definitive measure of the distinction. Much depends upon the
context of the dispute. Indeed, an interest can be regarded as an equitable
interest in one situation and a mere equity in another.
Latec Investments v Hotel Terrigal

[7.70] Latec Investments Ltd v Hotel Terrigal Pty Ltd (1965) 113 CLR 265
FACTS • Latec was the registered mortgagee of land owned by Hotel Terrigal. Due to
mortgage arrears, Latec exercised its power of sale and sold the property to its subsidiary,
Southern, in circumstances regarded as fraudulent by the courts. Terrigal became aware
of the circumstances of the sale and sought to have the sale set aside. However, in the
meantime, Southern had granted an equitable mortgage to MLC Nominees. The High
Court was required to categorise the interests of Hotel Terrigal and MLC Nominees to
determine the dispute.
HELD • Menzies, Kitto and Taylor JJ classified MLC Nominees’ interest as an equitable
interest on the basis that the mortgage was secured over the land but not registered. MLC
Nominees’ granting of the mortgage was not connected to the fraud of Latec and
Southern so MLC Nominees was regarded as an innocent third party.
Menzies and Kitto JJ classified Hotel Terrigal’s right to sue to have the sale of the land set
aside as a mere equity. However, Taylor J (at [4]) regarded Hotel Terrigal’s interest as an
equitable interest considering that “the owner of land a transfer of which has been
obtained by fraud retains an equitable interest therein”.
[7.80] The lowest form of equitable interest is a personal equity. This

equity has no proprietary characteristics and is only of a personal nature.
King v David Allen & Sons Billposting

[7.90] King v David Allen & Sons Billposting Ltd [1916] 2 AC 54
FACTS • King owned a building and by contract permitted David Allen to fix posters to the
wall of the building. The contract period was four years. Before the end of the contract
period King sold the building and the new owner did not permit David Allen to affix
posters to the building. David Allen argued that his right under the contract was
proprietary in nature giving him an enforceable interest in the land so that he should be
permitted to continue affixing posters for the remainder of the contract period.
HELD • The House of Lords held that the agreement conferred a personal right upon
David Allen, not a proprietary right. The contract was not referable to any particular
interest in the land. That the right was personal only meant that the agreement could not
be enforced against the new owners of the building.
Enforcement of equitable rights

[7.100] Legal rights are able to be enforced because of their nature and are
capable of enforcement against the world. To the contrary, as equitable
interests derive from equity, the enforcement of an equitable interest lies at
the discretion of the court. In other words, an equitable remedy may not, in
every circumstance, be granted. If an equitable remedy (ie, an injunction,

specific performance or account) is not granted by the court then the
equitable interest and any rights that flowed from that interest will be
destroyed.
The court’s discretion to award an equitable remedy will be judged
according to the maxims of equity including, but not limited to:
• When the equities are equal (eg, equitable interest versus equitable
interest) first in time (ie, the first to be created) will prevail.
• Those who come to equity must come with clean hands. In other words,
equity will not help a person seeking an equitable remedy who has acted
dishonestly or unconscionably.
• Equity regards as done that which ought to be done.
• Equity will not assist a volunteer.
• Those who seek equity must do equity. In other words, the remedy
should be sought within a reasonable time.
Specific performance and injunctions as equitable remedies

Specific performance
[7.110] Specific performance is an order that directs a person to carry out
an obligation. Therefore, a party seeking specific performance as a remedy
must be able to refer to the existence of a contractual relationship. Specific
performance is available as a remedy where there is a dispute with respect
to land given the uniqueness of a parcel of land. In other words, the
awarding of damages for loss of an interest in land is not an appropriate
remedy: see Pianta v National Finance and Trustees Ltd (1964) 180 CLR 146.
The contractual relationship must be readily discernable and identifiable.
In the circumstance where the court would be required to supervise the
carrying out of obligations, an order for specific performance will usually
be refused: see JC Williamson Ltd v Lukey (1931) 45 CLR 282.
Walsh v Lonsdale
[7.120] Walsh v Lonsdale (1882) 21 Ch D 9
FACTS • Lonsdale granted Walsh a lease of a weaving shed. The formal lease document
had not been signed by the parties. The agreement with respect to rent was that it would
be paid yearly in advance and that one year’s rent should be due and payable in advance
on demand. Walsh entered into possession and paid rent quarterly, not in advance.
Lonsdale issued Walsh with a notice requiring rental in advance.
HELD • As per Jessel MR, Cotton and Lindley LJJ, the agreement for lease and subsequent
possession of the premises gave rise to an equitable lease. The equitable lease gave rise to
obligations between Walsh and Lonsdale so that specific performance of the agreement
could be granted. The court considered that the lease comprised the same terms in equity
as if the lease had been legally created by deed.
[7.130] An important aspect of the case of Walsh v Lonsdale (1882) 21 Ch D

9 is that once a person seeks an order for specific performance of an
equitable interest the obligations and rights of both parties become
enforceable. On the facts of the case, Walsh was seeking an order of specific
performance but was suggesting that Lonsdale’s rights as landlord could

not be enforced because there was no signed lease. As Jessel MR
commented (at 14):
… both parties admit that relief is capable of being given by specific
performance. That being so [Walsh] cannot complain of the exercise by the
landlord of the same rights as the landlord would have had if a lease had been
granted. On the other hand, he is protected in the same way as if a lease had
been granted; he cannot be turned out by six month’s notice as a tenant from
year to year.
Injunction
[7.140] An injunction can be in one of two forms: a prohibitory injunction
which prohibits a person from doing something; or a mandatory injunction
which compels a person to do something (recall LJP Investments Pty Ltd v
Howard Chia Investments Pty Ltd (1989) 24 NSWLR 490 where the court
issued an injunction requiring the removal of scaffolding).
MindMap07
Requirement for writing Legal Interest – all Equitable Interest – not Torrens system land
formalities complied all formalities complied
with, eg, writing and with
registration A legal interest is created once
A conveyance or disposition of the interest is registered on the
an interest in land must be titles register
made in writing
A legal interest can be enforced

An oral (parol) contract for an against the world at large
interest in land will be
unenforceable unless there is An interest in land that is
part performance (Regent v unregistered is equitable
Millett (1976) 133 CLR 679)
An equitable interest is personal
and can only be enforced
Hierarchy of equitable interests Enforcement between the parties involved
Equitable Interest – interest The availability of a remedy to

looks like a right to property enforce an equitable interest is
(eg, unregistered lease – Chan at the discretion of the court
v Cresdon Pty Ltd (1989) 168
CLR 242) If an equitable interest is not
enforced the interest is
destroyed
Mere Equity – some
characteristics of a right to
Remedies include:
property but not to the extent of

an equitable interest (eg, the
right to have the sale set aside Specific Performance – an
was a mere equity: Latec order directing the person to
Investments Ltd v Hotel Terrigal carry out the obligation (eg,
Pty Ltd (1965) 113 CLR 265) Walsh v Lonsdale (1882)
21 Ch D 9) – the agreement to
lease was regarded as an
equitable lease, the duties and
Personal Equity – right has no obligations of both parties
proprietary characteristics (eg, were enforceable
right under contract to affix
posters was a personal right;
Injunction
the right was not connected to
the land: King v David Allen &
Sons Billposting Ltd [1916] A prohibitory injunction to
2 AC 54) prevent or restrain a person
from doing something
A mandatory injunction
compelling action (eg, LJP
Investments Pty Ltd v Howard
Chia Pty Ltd (1989) 24 NSWLR
490 – mandatory injunction to
remove scaffolding)
Chapter 8
Co-ownership
Co-ownership
[8.20] JOINT TENANCY...................................................................... 64
[8.30] TENANCY IN COMMON ............................................................. 65
[8.40] CREATION OF CO-OWNERSHIP AT LAW ....................................... 66
[8.50] CREATION OF CO-OWNERSHIP IN EQUITY ................................... 66
[8.70] RIGHTS OF CO-OWNERS .......................................................... 67
[8.100] SEVERANCE OF A JOINT TENANCY ............................................ 68
[8.140] SEVERANCE BY PARTITION OR SALE ......................................... 71
[8.10] Freehold estates can be owned by more than one person

simultaneously. This joint ownership (ie, co-ownership) can be either a joint
tenancy or a tenancy in common.
Joint tenancy
[8.20] A joint tenancy reflects the situation where there is no separation of
ownership between the tenants. In other words no tenant owns an
identified and distinct share (ie, a one-third or two-thirds share) of the
property. A joint tenancy is characterised by the four unities and the right
of survivorship. If any one of the four unities is missing, a tenancy in
common will be created.
The four unities are:
1. Unity of possession — All tenants are simultaneously entitled to
possession and enjoyment of the entire parcel of land.
2. Unity of interest — All tenants hold the same interest.

3. Unity of title — The title of each tenant to the property was given under
the same disposition (eg, by conveyance or a will).
4. Unity of time — The title of each tenant to the property was given at the
same time (eg, by the same conveyance or will).
The right of survivorship (jus accrescendi) refers to the process by which
ownership is referred to the remaining surviving joint tenants upon the
death of a joint tenant. The right of survivorship will apply until there is
one remaining tenant: Wright v Gibbons (1949) 78 CLR 313. The final
remaining tenant is entitled to sole enjoyment of the parcel of land.
Whilst the joint tenancy is maintained and subsists (ie, the joint tenancy
is not severed), the right of survivorship will operate. A joint tenant can
choose to sever the joint tenancy during their lifetime. Severance will
CHAPTER 8 CO-OWNERSHIP / 65
convert the ownership of the property to a tenancy in common. However,

any attempt to sever a joint tenancy through a testamentary disposition (ie,
by will) will be ineffective: the right of survivorship will prevail.
FACTS: X, Y and Z are granted a fee simple estate under their mother’s will. The will
specifies that X, Y and Z are to hold the property as joint tenants.
CO-OWNERSHIP ISSUES: The four unities — possession, interest, title and time — are
present. Being joint tenants X, Y and Z do not hold a specified interest in the property, they
are entitled to possess and enjoy the entire parcel of land. In the event that X dies, Y and X,
through the right of survivorship, will absorb X’s interest and continue to hold the fee
simple estate as joint tenants. The absorption of each tenant’s interest will continue until
there is only one remaining tenant; that tenant will then be entitled to sole absolute
enjoyment and possession of the estate.
Tenancy in common
[8.30] By comparison, where an estate is held in a tenancy in common,
each owner (tenant) has a distinct and specified share (eg, one-half,
one-third, two-thirds) in the property. Whilst each tenant has a distinct
ownership share, the property, in its physical state, is not demarcated to
reflect the share held. Each tenant maintains their interest in the property
and is entitled to possession of the whole of the parcel of land. The only
unity present is the unity of possession.
The distinct share held by a tenant in common can be alienated by the
tenant during their lifetime or under their will to whomever they choose.
The right of survivorship has no application to a tenancy in common and
there is no obligation for a deceased tenant to grant their interest to the

remaining tenants.
FACTS: X, Y and Z own a fee simple estate. They each own a one-third share. X passes
away and under the terms of his will grants the whole of his estate to his children F, G and
H. Y subsequently dies, leaving the whole of his estate to C.
CO-OWNERSHIP ISSUES: The unity of possession is present. Whilst X, Y and Z hold a
specified interest in the property, they are entitled to possess and enjoy the entire property.
Upon administration of X’s estate (the right of survivorship having no application) the
tenancy in common comprises:
• F, G and H — one-sixth share, respectively;
• Y and Z — one-third share, respectively.
Upon administration of Y’s estate the tenancy in common comprises:

• F, G and H — one-sixth share, respectively;
• C — two-thirds interest.
Creation of co-ownership at law

[8.40] The common law presumed that upon the grant of an interest in
land to two or more people, a joint tenancy was created. The presumption
applied unless there was evidence that one of the four unities was missing
or that the grant expressly stated that the interest was to be taken as
tenants in common.
The presumption is now provided for by statute. However, the
presumption that is applied, in favour of either a joint tenancy or tenancy
in common, differs across jurisdictions. An express provision in the grant to
the contrary will be needed to rebut the presumption.
New South Wales Tenants in common presumed: Conveyancing Act 1919, ss 26, 27
Joint tenancy presumed for Torrens land: Real Property Act 1900,
s 100
See Hircock v Windsor Homes (Development No 3) Pty Ltd [1979] 1
NSWLR 501
Queensland Tenants in common presumed: Property Law Act 1974, ss 35, 36
South Australia Joint tenancy presumed: Real Property Act 1886, s 74
Tasmania Joint tenancy presumed: Land Titles Act 1980, s 44
Victoria Joint tenancy presumed: Transfer of Land Act 1958, s 30(2)
Western Australia Joint tenancy presumed: Transfer of Land Act 1893, s 60
Creation of co-ownership in equity

[8.50] Equity applies the presumption that a tenancy in common is
created where an interest in land is granted to two or more people. A
tenancy in common may be created in equity, although the parties may be
registered as owning the property as joint tenants. To create a co-ownership
in equity, the intention of the parties will be relevant. The equitable remedy
may be that of a resulting or constructive trust.
Muschinski v Dodds
[8.60] Muschinski v Dodds (1985) 160 CLR 583
FACTS • Muschinski sought a declaration that she was the beneficial (ie, equitable) owner
of a parcel of land. She held the land in tenancy in common with her partner, Dodds.
Muschinski argued that the interest Dodds held in the land was held on trust for her as she
had contributed all the moneys required to complete the purchase of the property.
HELD • Gibbs CJ stated (at [6]) the principles for creation of a co-ownership in equity as
being:
Where, on a purchase, a property is conveyed to two persons, whether as joint tenants or as
tenants in common, and one of those persons has provided the whole of the purchase money, the
property is presumed to be held in trust for that person, to whom I shall, for convenience, refer as
‘the real purchaser’. However a resulting trust will not arise if the relationship between the real
purchaser and the other transferee is such as to raise a presumption that the transfer was
intended as an advancement, or in other words a presumption that the transferee who had not
contributed any of the purchase money was intended to take a beneficial interest … [N]o
presumption of advancement arises where a man puts property into the name of a woman with
whom he is living in what is commonly called a de facto relationship … However the presumption
that there is a resulting trust may be rebutted by evidence that in fact the real purchaser intended
that the other transferee should take a beneficial interest … [T]he intentions of both are material,
but where only one has provided the money it is his or her intention alone that has to be
ascertained.
Gibbs CJ (Mason and Deane JJ concurring; Brennan and Dawson JJ dissenting) did not
consider that the presumption of advancement had been rebutted and held (at [17]) that:
In these circumstances … the appellant is entitled to contribution from the respondent to the
extent to which she paid more than one half of the purchase moneys. Further, she would appear
to be entitled to an equitable charge upon the respondent’s half interest for such an amount. In
determining the amount of the equitable charge … the amounts respectively contributed by the
parties might well serve as a basis.
[SEE ALSO • Ogilvie v Ryan [1976] 2 NSWLR 504; Calverley v Green (1984) 155 CLR 242
and Baumgartner v Baumgartner (1987) 164 CLR 137; Cetojevic v Cetojevic [2007] NSWCA
33; Trustees of Property of Cummins (a bankrupt) v Cummins (2006) 227 CLR 278;
Stassinopoulos v Stassinopoulos [2011] VSC 647.]
Rights of co-owners
[8.70] The nature of the co-ownership, regardless of whether it is a joint
tenancy or tenancy in common, gives rise to co-owners having rights
against each other.
Forgeard v Shanahan
[8.80] Forgeard v Shanahan (1994) 35 NSWLR 206
FACTS • The parties lived in a de facto relationship, purchasing a home as joint tenants.
The purchase moneys were jointly contributed. The relationship broke down and Forgeard
left the property whilst Shanahan remained. Following the break-up, Forgeard contributed
to the mortgage repayments but stopped after a year, leaving Shanahan to make the
payments. Forgeard, as an owner of the property, sought an order that the property be
sold.
HELD • In determining whether the property should be sold (Meagher and Mahoney JJA;
Kirby P dissenting), Meagher JA considered the question was “what right [has] one
co-owner against another, particularly when one has been in occupation and the other
has not”. Meagher JA considered the rights of tenants against each other as being:
• A right to occupation — possession by any one of the joint tenants is possession by the
other joint tenants. Therefore, if there has been no exclusion of possession by a joint
tenant of another it will be assumed that tenant has chosen not to exercise his legal right
to occupy the land.
• A right to share rents and profits.
• A right to compensation for improvements. The compensation is not calculated on the
value of the improvements but the amount by which the value of the property has been
increased by the improvements.
• A right to be jointly liable for debts jointly incurred. For example, under a mortgage or for
rates and levies.
[8.90] Where the joint tenant has been wrongly excluded or ousted by the
co-owner from possession of the property, the excluded joint tenant may be
able to claim payment of occupation rent. The calculation of occupation
rent can be complex: see Biviano v Natoli (1998) 43 NSWLR 695; and Kangas
v Tsangaras (1990) 5 BPR 11,254. In Victoria disputes between co-owners
regarding the exercise of their rights against each other are governed by the
Property (Co-Ownership) Act 2005.
Severance of a joint tenancy

[8.100] Severance refers to the conversion (or breaking) of joint tenancy
into a tenancy in common. One of the unities will need to be disrupted or
removed, as explained by Page Wood VC in the case of Williams v Hensman

(1861) 1 J & H 546; 70 ER 862 where he said (at 557–558):
A joint tenancy may be severed in three ways: in the first place, an act of any one
of the persons interested in operating upon his own share may create a
severance as to that share. The right of each joint tenant is a right by
survivorship in the event of no severance having taken place of the share which
is claimed under the jus accrescendi. Each one is at liberty to dispose of his own
interest in such manner as to sever it from the joint fund – losing, of course, at
the same time, his own right of survivorship. Secondly, a joint tenancy may be
severed by mutual agreement. And, in the third place, there may be severance by
any course of dealing sufficient to intimate that the interests of all were mutually
treated as constituting a tenancy in common. When the severance depends on an
inference of this kind without any express act of severance it will not suffice to
rely on an intention, with respect to the particular share, declared only behind
the backs of the other persons interested.
In summary the three common law methods are:

1. Severance by act of a joint tenant operating on their own share — for
example, alienation. Registration of the change in ownership status will
be required before legal title will be altered.
2. Severance by mutual agreement — The intention of the parties and
their dealings with each other will be important, as will any written
evidence of the agreement to sever the joint tenancy.
3. Severance of a mutual course of dealing — The conduct of the parties
will be evaluated.
Lennon v Bell
[8.110] Lennon v Bell [2005] QSC 286
FACTS • Mr and Mrs Lennon purchased a property together as joint tenants. They
subsequently separated and Mr Lennon moved out of the property. Property settlement
negotiations were in process but had not been concluded. Mrs Lennon signed a notice of
intention to sever the joint tenancy and a transfer changing the title from joint tenants to
tenants in common. The documents were forwarded to Mr Lennon for signature but at the
time of Mrs Lennon’s death, the transfer had not been lodged for registration. As the
transfer had not been registered there was no severance at law. Mrs Lennon’s estate
argued that there had been a course of dealing between the parties that evidenced their
intention to sever the joint tenancy.
HELD • Mullins J held that there had been no severance of the joint tenancy at law or in
equity. Mullins J (at [23]) considered that “[a]fter separation of the applicant and
Mrs Lennon, there was not a course of dealing between them that was sufficient to allow
the inference to be drawn that they had mutually acted inconsistently with the continuance
of a joint tenancy”.
[SEE ALSO • Sprott v Harper [2000] Q ConvR 54-545; [2000] QCA 391; Saleeba v Wilke
[2007] ANZ ConvR 664; [2007] QSC 298; In the Marriage of Pertsoulis (1980) 6 Fam LR 39;
[1980] FLC 90-059.]
[8.120] Generally speaking a unilateral intention to sever a joint tenancy

will be ineffective; the agreement of the other tenant whether express or
implied will be needed. However, New South Wales, Queensland and
Tasmania have a legislative process by which unilateral severance of a joint
tenancy can be pursued.
South Australia No specific provision
Tasmania Land Titles Act 1980, s 63(1)
Victoria No specific provision
Western Australia No specific provision
However, where the severance of the joint tenancy is not effective at law
(ie, where it has not been registered) there may still be severance of the
joint tenancy in equity. The equitable remedy may be the creation of a trust.
Corin v Patton
[8.130] Corin v Patton (1990) 169 CLR 540
FACTS • Mr Patton and his wife were joint registered proprietors of land. Mrs Patton was
terminally ill and wanted to sever the joint tenancy to prevent her husband from gaining
ownership of the property. The necessary transfer documents were signed by her. The
certificate of title for the property was held by the bank as security for an unregistered
mortgage over the property. Mrs Patton herself took no action before her death to obtain
the certificate of title so as to enable the transfer to be registered. The issue was whether
the joint tenancy had been severed by Mrs Patton.
HELD • The High Court held that the joint tenancy had not been severed at law as the
transfer had not been registered. Had the joint tenancy been severed in equity? The court
concluded that for a joint tenancy to be severed in equity, the person severing the joint
tenancy has to have done everything necessary to effect a transfer of the legal title. On the
facts, Mrs Patton had failed to do everything necessary. Whilst she had signed the
transfer she had not procured the certificate of title from the bank. The transfer could not
have been lodged for registration without production of the certificate of title. In that way,
everything necessary had not been done.
Severance by partition or sale

[8.140] An alternative method by which a joint tenancy can be severed is
an order for the sale or partition (ie, subdivision) of the land. There are
differences between jurisdictions as to the application process and whether
sale or partition is the primary remedy. The process requires an application
be made to the relevant tribunal and the appointment of a trustee to
supervise the sale process or supervise the progress of the partition.
New South Wales Conveyancing Act 1919, s 66G
Queensland Property Law Act 1974, Pt 4, Div 2
South Australia Law of Property Act 1936, s 69
Tasmania Partition Act 1869, s 3
PART III
TITLE TO LAND
MindMap08
Creation of a co-ownership Where an interest in land is Characteristics of a joint tenancy
owned by two or more people
simultaneously either as joint
The grant of the interest tenants or tenants in common No separation of ownership
specifies how the tenants are to
hold their interests
Presence of the four unities
Where the grant is silent

Unity of possession – all tenants are
entitled to possession and enjoyment
The Common Law presumed of the entire parcel
that a joint tenancy was
intended
Unity of interest – all tenants hold
Characteristics of a tenancy in common the same interest in nature and time
Statutory provisions now
apply, however the
Each tenant holds a specific “share” in Unity of title – the grant results from
presumption in favour of the
creation of a joint tenancy or the property the same disposition
tenancy in common differs (eg, conveyance or will)
across jurisdictions
The “share” only refers to ownership;
each tenant is entitled to possession and Unity of time – title was given at the
Equity presumes that a enjoyment of the whole parcel same time
tenancy in common was
intended. However, the
presumption can be rebutted The tenant’s “share” can be alienated by Application of the right of survivorship –
and a resulting or constructive the tenant during their lifetime upon the death of a joint tenant the
trust may be found by the
court (eg, Muschinski v Dodds
interests of the remaining joint tenants
(1985) 160 CLR 583 where a are enlarged
The right of survivorship does not apply;
constructive trust was created

the interest can be gifted to another via
where there was equal
operation of the tenant’s will If any of the unities are disrupted
contribution to the purchase
but only one party was or displaced a tenancy in common
registered as the owner) will result
Rights
Rights of Co-owners
of co-owners Against
against Each
each Other
other Severance of a joint tenancy
A right to occupation Severance or Partition – conversion of a Process

joint tenancy into a tenancy in common
A right to share rents and profits Common law – Williams v Hensman
(1861) 1 J&H 546; 70 ER 862 at
557–558 – alienation, mutual
Joint liability for debts (eg, rates/levies, mortgage) Alienation at law – registration of a agreement, course of dealing
change of ownership
A right to compensation for improvements Unilateral severance – statutory

process allowed in some jurisdictions
Alienation in equity – Corin v Patton
(1990) 169 CLR 540
A right to seek order for severance or partition Statutory remedy
Chapter 9
The Torrens System
The Torrens System
[9.10] INTRODUCTION....................................................................... 76
[9.20] THE TORRENS SYSTEM: IMPLEMENTATION.................................. 76
[9.30] THE TORRENS SYSTEM: IN OPERATION ...................................... 77
[9.40] The register................................................................. 77
[9.50] The administrator of the register........................................ 77
[9.60] Documentary title .......................................................... 78
[9.70] Registration ................................................................. 78
[9.110] Indefeasibility ............................................................... 81
Introduction
[9.10] The Torrens system, named after its developer Sir Robert Torrens, is
a land ownership system that relies upon the registration of interests and
dealings in land on a central register. The Torrens system of registration
contrasts with the general law system of land ownership, where title to
land is transferred by deed. Each transaction required a purchaser to
ensure the owner of the land had a good root of title through the chain of
title. This required the purchaser to trace the ownership of the land from
the original grant to the contemporary transaction. Checking for good root
of title could be a time-consuming and complex process. The chances of a
document being a forgery were real (despite the best checking) and any
documentary forgery would break the chain of title. Interests in land could
be overlooked and missed. The Torrens system seeks to overcome these
inherent uncertainties in the general law system.
The Torrens system: implementation

[9.20] The general law system of land ownership became part of
Australia’s legal system by virtue of British colonisation. However, the
problems with the general law system (see [9.10]) provided an impetus for
reform. Robert Torrens, who immigrated to South Australia in 1840, began
working towards the development of the new system in 1852. By 1858, the
Torrens system of land registration — that is, the system for registering
interests in land by registration on a central register — was operating in all
Australian jurisdictions.
CHAPTER 9 THE TORRENS SYSTEM / 77
Whilst each jurisdiction has a Torrens system in place, the operation of

each jurisdiction’s system is subtly different and different terminology is
used to describe the core concepts of each system.
Jurisdiction Current legislation

New South Wales Real Property Act 1900
Queensland Land Title Act 1994
South Australia Real Property Act 1886
Tasmania Land Titles Act 1980
Victoria Transfer of Land Act 1958
Western Australia Transfer of Land Act 1893
The Torrens system: in operation

[9.30] The structure of the Torrens system is based upon the central
concepts of:
1. The register.
2. The administrator of the register.
3. Documentary title.
4. Registration.
5. Indefeasibility.
The register
[9.40] In each jurisdiction, a register is required to be kept that records by
folio or lot reference each piece of land within the jurisdiction and the
interests held in that land.
New South Wales Real Property Act 1900, s 31B
Queensland Land Title Act 1994, ss 27, 28
South Australia Real Property Act 1886, ss 47, 49
The administrator of the register

[9.50] The Registrar in Victoria, Queensland and Western Australia, the
Registrar-General in New South Wales and South Australia or the Recorder
in Tasmania administers the governing legislation and controls the register.
A number of powers are granted in performance of the role, some of which
are listed below. The term “Registrar” will be used throughout the
78 PART III TITLE TO LAND
remainder of the book in place of repeating all the names of the same
position in each different jurisdiction.
Jurisdiction Legislation Powers

New South Wales Real Property Act 1900, Compel production of an instrument or person;
s 12(1) and correct errors, omissions and misdescriptions
in the register.
Queensland Land Title Act 1994, ss 15, Correct the register; prepare and register a caveat;
17, 26 and refer questions to the Supreme Court.
South Australia Real Property Act 1886, Compel production of documents and examine
s 220 interested persons; reject instruments; correct
errors; register and remove; and dispense with
instruments.
Tasmania Land Titles Act 1980, s 160 Compel production of instruments; conduct an
inquiry; record a caveat; and dispense with the
production of a document.
Victoria Transfer of Land Act 1958, Compel production of documents; refuse
ss 104 – 106 registration; extinguish “old” encumbrances; refer
issues to the Supreme Court; delete, create and
make amendments to the register and other
documents.
Western Australia Transfer of Land Act 1893, Administer an oath or statutory declaration;
s 188 correct errors; and destroy documents.
Documentary title
[9.60] Once the folio or lot has been created, a document confirming title,
generally known as a certificate of title, can be delivered to the registered
owner.
South Australia Real Property Act 1886, s 51C

Victoria Transfer of Land Act 1958, s 27B
Western Australia Transfer of Land Act 1893, s 48B
Registration
[9.70] Once the folio or lot has been created, the registered owner is free
to deal with the land. Any dealings with the land — eg, a transfer, grant of
a lease, mortgage or easement — must subsequently be registered on the
register. Registration occurs when the particulars of the dealing are
recorded on the register. Registration is of vital importance as registration
records the interest holder’s interest in the land and provides the interest
holder with indefeasibility of title.
Within the Torrens system of land registration an unregistered interest is

regarded as an equitable interest in land.
Barry v Heider
[9.80] Barry v Heider (1914) 19 CLR 197
FACTS • Barry was the registered proprietor of land. Barry signed a transfer transferring
the land to Schmidt. The land included in the transfer was not the whole of the land, as
Barry had previously transferred part of it to Lawlor. Application had been made to the
Registrar-General for a fresh certificate of title for the remaining part of the land but the
new certificate had not been issued when the transfer to Schmidt was executed. Schmidt
obtained from Heider a loan of £800 on security of the land comprised in the transfer from
Barry. The transfer documents had not been registered when Barry alleged that Schmidt
had obtained the land by fraud and he had not signed the transfer. Barry claimed that, as
the transfer documents were unregistered, no interest in the land had been created.
HELD • The court considered that whilst a legal interest had not been created, as
registration had not occurred, equitable claims and interests in land can be maintained
under the Torrens system.
Griffith CJ opined (at 208):
In my opinion equitable claims and interests in land are recognized by the Real Property Acts.
It follows that the transfer of 19th October, if valid as between [Barry] and Schmidt, would have
conferred upon the latter an equitable claim or right to the land in question recognized by the law.
I think that it also follows that this claim or right was in its nature assignable by any means
appropriate to the assignment of such an interest.
It further follows that the transfer operated as a representation, addressed to any person into
whose hands it might lawfully come without notice of Barry’s right to have it set aside, that
Schmidt had such an assignable interest.
Issacs J agreed (at 216):

The Land Transfer Act does not touch the form of contracts. A proprietor may contract as he
pleases, and his obligation to fulfil the contract will depend on ordinary principles and rules of law
and equity, except as expressly or by necessary implication modified by the Act. Sec 43, for
instance, makes provision with respect to the case of a bona fide purchaser without notice, and
the section says ‘any rule of law or equity to the contrary notwithstanding.’ Consequently, sec 41,
in denying effect to an instrument until registration, does not touch whatever rights are behind it.
Parties may have a right to have such an instrument executed and registered; and that right,
according to accepted rules of equity, is an estate or interest in the land. Until that instrument is
executed, sec 41 cannot affect the matter, and if the instrument is executed it is plain its inefficacy
until registered — that is, until statutory completion as an instrument of title — cannot cut down
or merge the pre-existing right which led to its execution.
[SEE ALSO • Chan v Cresdon Pty Ltd (1989) 168 CLR 242.]
[9.90] Registration is also important for determining how conflicting

interests, both legal and equitable, should be dealt with. The legislation
provides that instruments are registered in the order that they are lodged
for registration; the date the instrument was signed is irrelevant. Therefore,
in the event of a dispute, first in time will prevail, that is, the first
instrument lodged and registered will be given priority.
New South Wales Real Property Act 1900, s 36(5)
Registration will also protect covenants in instruments that directly

concern the interest in the land. Covenants that do not directly touch and
concern the interest in the land — eg, a personal covenant — will not be
protected.
Mercantile Credits v Shell Co of Australia

[9.100] Mercantile Credits Ltd v Shell Co of Australia Ltd (1976) 136 CLR 326
FACTS • Shell Co of Australia Ltd (Shell) was the lessee under a registered lease. The
lease contained a renewal provision. The land was sold, the new registered proprietor
being Celtic Agencies. Celtic Agencies defaulted under the mortgage held over the land
by Mercantile Credits Ltd. Mercantile Credits Ltd gave notice to Shell that it intended to
sell the land under its power of sale. Shell lodged a caveat over the title seeking to ensure
that Mercantile Credits Ltd sold the land subject to the lease and the option to renew.
Mercantile Credits Ltd argued that the option to renew, whilst part of the registered lease,
was not able to be registered itself, and was therefore not binding on Mercantile as the
mortgagee.
HELD • The court found in favour of Shell, holding that priority and indefeasibility was
given to the right of renewal contained in the registered lease. The right of renewal directly
concerned the interest being held in the land and was not merely a personal right.
Indefeasibility
[9.110] Indefeasibility is the protection granted by registration of an
instrument dealing with an interest in land. It means that the registered
owner only takes land subject to those interests that are recorded and their
title is protected from any interest not recorded. The registered owner’s title
is paramount.
Tasmania Land Titles Act 1980, s 40(1)
A definition of indefeasibility of title was proposed by the House of

Lords in Frazer v Walker [1967] 1 AC 569 at 580, that definition being:
… a convenient description of the immunity from attack by adverse claim to the
land or interest in respect of which he is registered, which a registered proprietor
enjoys. This conception is central in the system of registration. It does not
involve that the registered proprietor is protected against any claim whatsoever;
as will be seen later, there are provisions by which the entry on which he relies
may be cancelled or corrected, or he may be exposed to claims in personam.
There are matters not to be overlooked when a total description of his rights is
required. But as registered proprietor, and while he remains as such, no adverse

claim (except as specifically admitted) may be brought against him.
The House of Lords also considered that the protection afforded by

indefeasibility is immediate upon registration and not deferred, as was the
case in Gibbs v Messer [1891] AC 248. The House of Lords decision in Frazer
v Walker [1967] 1 AC 569 was adopted with approval by the High Court in
the case of Breskvar v Wall (1971) 126 CLR 376.
Breskvar v Wall
[9.120] Breskvar v Wall (1971) 126 CLR 376
FACTS • Mr and Mrs Breskvar were the registered proprietors of an estate in fee simple.
They obtained a loan from Petrie, and to secure the loan gave Petrie a signed but blank
transfer and their certificate of title. Petrie subsequently inserted the name of his
grandson, Wall, as the purchaser on the signed transfer and had it registered. Wall then
contracted to sell the land to Alban Pty Ltd. Alban Pty Ltd was a bona fide purchaser for
value, as it had no knowledge of the fraud that had been perpetrated against the
Breskvars. The Breskvars filed a caveat, which prevented Alban Pty Ltd from having the
transfer registered. The Breskvars sought a declaration seeking that they be reinstated as
registered proprietors of the land.
HELD • Pursuant to the operation of the Torrens system, Wall was the registered
proprietor of the land: his possession of the certificate was conclusive evidence of his
status. Given his status as registered proprietor, his title, upon registration, was
immediately indefeasible. He was able to deal with the land as he wished, including
contracting for its sale. Pursuant to the contract of sale, Alban Pty Ltd held an equitable
interest in the land as purchaser. The court regarded the Breskvars as also holding an
equitable interest in the land: the right to sue. Given that Wall’s title was indefeasible the
court considered that the real dispute was between the two, equal yet competing,
equitable interests. Ultimately, the Breskvars’ equitable interest was postponed in favour
of Alban Pty Ltd. The court regarded the Breskvars as having armed Petrie and Wall with
the indicia of title by handing Petrie a blank signed transfer and the certificate of title.
Whereas Alban Pty Ltd was regarded as an innocent third party, having purchased the
land for value without notice of the fraud. Equity required that Alban Pty Ltd’s interest be
regarded as superior to that of the Breskvars.
MindMap09
The Torrens system The Torrens system, named after its Registration
developer Sir Robert Torrens, is a land
ownership system that relies upon the
Each State jurisdiction has a registration of interests and dealings in land ... occurs when the
Torrens system in place upon a central register particulars of the dealing of
an interest in land are
recorded on the register
Each jurisdiction is similar but
the system across jurisdictions
... means that the registered
is not uniform – there are
owner is free to deal with
differences that are peculiar to
the land and the registered
each jurisdiction
owner holds a legal interest
that is indefeasible
The core concepts are uniform:
Any subsequent dealings
the register – a register is with the land, eg, a transfer,
required to be kept that lease, mortgage or
records by folio or lot reference easement must be
each piece of land within the Indefeasibility registered on the register
jurisdiction and the interests
held in that land ... is the protection granted
If an interest is not
to an interest holder upon
registered it is an equitable
the administrator of the registration – Frazer v
interest. Equitable interests
register – the powers of the Walker [1967] 1 AC 569
Registrar/Recorder/
can exist and be enforced
Registrar-General are under the Torrens system –
contained within the governing ... describes the immunity Barry v Heider (1914) 19
legislation from attack by another CLR 197
claim to an interest in
the land
documentary title – once the
folio or lot has been created for
the piece of land a document ... is immediate upon
confirming title, generally registration not deferred –
referred to as a duplicate
Breskvar v Wall (1971)
certificate of title, can be
delivered to the registered 126 CLR 376
owner
indefeasibility
Chapter 10
Exceptions to Indefeasibility:
The Fraud Exception
Exceptions to Indefeasibility: The Fraud
Exception
[10.10] INTRODUCTION....................................................................... 84
[10.20] NOTIFICATIONS ON THE REGISTER ............................................ 84
[10.50] FRAUD .................................................................................. 85
[10.60] Fraud by the registered proprietor...................................... 86
[10.90] Fraud requires dishonesty or moral turpitude ........................ 88
[10.110] Fraud by an agent......................................................... 89
[10.130] FORGERY .............................................................................. 90
Introduction
[10.10] Although registration provides indefeasibility of title, the
protection is not absolute. Exceptions to indefeasibility are contained
within the legislation and imposed by the common law through the in
personam exception. It is important to note that the statutory exceptions to
indefeasibility differ between the jurisdictions. Care must be taken when
considering whether an exception will apply in any given jurisdiction. The
fraud exception to indefeasibility is common to all jurisdictions.
Notifications on the register

[10.20] The register is a public record that can be searched and examined
by the public at large. Given this ability, the relevant legislation provides
that the registered proprietor’s title is subject to those interests and estates
already registered on the title.
CHAPTER 10 EXCEPTIONS TO INDEFEASIBILITY: THE FRAUD EXCEPTION / 85
Bursill Enterprises v Berger Bros Trading Co

[10.30] Bursill Enterprises Pty Ltd v Berger Bros Trading Co Pty Ltd (1971) 124 CLR 73
FACTS • Bursill Enterprises Pty Ltd (Bursill) was the registered proprietor of an estate in
fee simple. On the northern side of Bursill’s land was Berger Bros Trading Co Pty Ltd’s
(Berger) land. Bursill’s land was subject to a right of way but across this strip was a
building. A dispute arose between the parties as to the extent of the easement. At the time
both Bursill and Berger purchased their land, a notation on the title listed the title as
being subject to a right of way created by Transfer No 7922, but contained no further
information detailing the extent and nature of the easement.
HELD • The court held that because Transfer 7922 was listed on the title, the registered
proprietor took possession subject to that registered interest. The court considered that it
was the responsibility of any purchaser of the land to check Transfer 7922 to ascertain the
nature and extent of the right of way.
Windeyer J commented (at [20]):
It seems to me that, at any time from 1872 till today, a prudent conveyancer acting for a purchaser
of the land that is now Bursill’s would have ascertained what it was that transfer 7922 referred to
on the vendor’s certificate of title in law effected. True he might have been surprised to discover all
that his search revealed. But surely no prudent person, seeing the reference to a right of way,
would neglect to ascertain what exactly was the nature of the right of way, the land subject to it,
the persons who could avail themselves of it, for what purposes in what manner and at what times
… I think that the registered proprietor of the land that is now Bursill’s held his title subject to that
interest. Therefore I consider that the owner of the land that is now Berger’s has, and has had, in
law a right to the exclusive use and occupation of this building.
[10.40] However, the protection of indefeasibility will not be afforded to a

registered interest if that interest has been obtained as a result of fraud on
the part of the interest holder or their agent.
Fraud
[10.50] The fraud exception to indefeasibility is contained in the
legislation relevant to each jurisdiction.
New South Wales Real Property Act 1900, ss 42, 43
Queensland Land Title Act 1994, s 185(1)(a)
South Australia Real Property Act 1886, s 69(a)
Tasmania Land Titles Act 1980, s 40(3)(a)
Victoria Transfer of Land Act 1958, s 42(1)
Western Australia Transfer of Land Act 1893, ss 68(1), 134
Interestingly, however, “fraud” is not specifically defined by the

legislation. The accepted definition of fraud comes from the case of Assets
Co Ltd v Mere Roihi [1905] AC 176 where the Privy Council (at 210) stated:
… fraud in these Acts is meant actual fraud, ie dishonesty of some sort, not what
is called constructive or equitable fraud … Further it appear to their Lordships
that the fraud which must be provided in order to invalidate the title of a
registered proprietor for value … must be brought home to the person whose
registered title is impeached or to his agents. The mere fact that he might have
found out fraud if he had been more vigilant and had made further inquires
which he omitted to make, does not of itself prove fraud on his part. But if it be
shown that he abstained from making inquiries for fear of learning the truth, the
case is very different and fraud may be properly ascribed to him. A person who
presents for registration a document which is forged or has been fraudulently or
improperly obtained is not guilty of fraud if he honestly believes it to be a
genuine document which can be properly acted upon. [Emphasis added.]
From this definition, the fraud must:

• be that of the registered proprietor or the registered proprietor’s agent;
and
• constitute actual dishonesty.
The resultant effect of these two requirements, as demonstrated by the
decided cases in the area, is that the fraud exception to indefeasibility is a
narrow exception.
Fraud by the registered proprietor

Bank of South Australia v Ferguson

[10.60] Bank of South Australia Ltd v Ferguson (1998) 192 CLR 248
FACTS • Ferguson was the registered proprietor of land the subject of a mortgage in
favour of the Bank of South Australia. He was in default of the mortgage but alleged that
the mortgage had been obtained by the fraud of the bank. Ferguson had applied for the
mortgage but some of the documents submitted to the bank’s regional office to support
the granting of the mortgage had been altered by the local bank manager without
Ferguson’s knowledge.
HELD • The court held (at 258) that the mortgage was indefeasible because for fraud to
be operative, it must operate on the mind of the person said to have been defrauded and
to have induced detrimental action by that person. This was not the case, as the document
was not prepared for or by Ferguson and was not used by Ferguson himself for any
dishonest purpose.
Australian Guarantee Corporation v De Jager

[10.70] Australian Guarantee Corporation Ltd v De Jager [1984] VR 483
FACTS • Mr De Jager forged his wife’s signature on a mortgage, the security for which was
his business interests. Employees of Australian Guarantee Corporation (AGC) knew that
the documents were improperly attested but presented the mortgage documents for
registration in any event.
HELD • The court held that AGC had committed a fraud against Mrs De Jager. The court
considered that the employees’ actions constituted a deliberate misrepresentation
because they knew and participated in the fraud against Mrs De Jager.
Grgic v Australian and New Zealand Banking Group

[10.80] Grgic v Australian and New Zealand Banking Group Ltd (1994) 33 NSWLR 202
FACTS • Grgic was the registered owner of land and his son had possession of the
certificate of title. A friend of the son attended at the ANZ Bank and, impersonating Grgic,
signed a mortgage before a bank officer. The documents required the bank officer in
witnessing the documents to attest that the documents were “signed in my presence by
the mortgagor who is personally known to me”. Grgic argued that the ANZ Bank, via its
employee, had perpetrated a fraud against him in witnessing the mortgage.
HELD • The court considered that the bank, through the actions of its employee, had not
committed a fraud. The court accepted that the employee had not been as meticulous as
could have been but that there was no actual dishonesty on the part of the employee. The
employee could only have committed a fraud if the bank officer had known that the
impersonator was not Grgic and witnessed the documents in any event.
Fraud requires dishonesty or moral turpitude
Pyramid Building Society v Scorpion Hotels

[10.90] Pyramid Building Society (in liq) v Scorpion Hotels Pty Ltd [1998] 1 VR 188
FACTS • Scorpion Hotels was arguing that the mortgage that it had entered into with
Pyramid was defeasible as the mortgage had been signed and witnessed by a person who
was not a director of the company, as the company’s constitution required.
HELD • The court held that the mortgage was indefeasible. Hayne JA commented (at
193–194) that:
There was, in this case, no evidence that Pyramid, or anyone acting on its behalf, knew that the
witness to the affixing of the mortgagor’s company seal was not a director of the company (if in
fact that were so). There was no evidence that Pyramid, or anyone acting on its behalf, knew that
the execution of the mortgage had not been authorised by Scorpion (if that were so). It was not
suggested to [Pyramid’s Solicitor] that he had chosen not to make enquiries about these (or any
other) matters because he feared what he might find out. …
I do not accept that the matters that are now put forward as showing that Pyramid acted
dishonestly to do so, whether those matters are taken separately or in combination. At most they
might show either that Pyramid or its solicitors failed to take due care in settling the loan and
mortgage transaction, or that if enquiry had been made, fraud might have been revealed. …
That is not fraud.
Russo v Bendigo Bank

[10.100] Russo v Bendigo Bank Ltd [1999] 3 VR 376
FACTS • Mrs Russo was the registered proprietor of a residential property. Gerada had
been employed as a law clerk and dealt with her firm’s conveyancing transactions. A
collateral mortgage was taken over Mrs Russo’s property. The mortgage document was
signed with what was purported to be her signature and Gerada signed the attestation
clause without witnessing Mrs Russo sign the document. Her employer’s instructions had
been not to witness a document without the person being present. It came to light that
Mrs Russo’s signature had been forged by her son-in-law. The questions on the appeal
were whether the false witnessing by Gerada of Mrs Russo’s signature constituted fraud
and whether her false witnessing constituted fraud for which the bank was responsible.
HELD • The court held that neither Gerada nor the bank was guilty of fraud. As to
Gerada’s conduct, Ormiston JA considered (at [38]) that:
… there was no direct evidence of dishonesty or moral turpitude on the part of Miss Gerada,
unless one were able to rely solely on the untruth told by her in the attestation clause; secondly,
there is not a scintilla of evidence to show that she was involved in [the son-in-law’s] dishonesty or
that she would have any reason to do so.
Fraud by an agent
[10.110] The House of Lords in Assets Co Ltd v Mere Roihi [1905] AC 176
confirmed that the actions of a registered proprietor’s agent are also
relevant in determining whether the fraud exception to indefeasibility may
apply. An agent’s fraud may be attributed to the registered proprietor as
principal in two situations:
• where the agent was acting on behalf of the principal within the scope of
their actual or apparent authority;
• where knowledge of the fraud can be imputed to the principal.
Schultz v Corwill Properties

[10.120] Schultz v Corwill Properties Pty Ltd [1969] 2 NSWR 576
FACTS • Galea, a solicitor, was acting on behalf of both Schultz and Corwill Properties.
Corwill Properties was the registered proprietor of a piece of land. Galea forged and
registered a mortgage over the land in favour of Schultz. Subsequently, a discharge of the
mortgage was registered but it too was the result of a fraud on the part of Galea. Schultz
claimed that the mortgage was indefeasible but the discharge was not, given the fraud.
Conversely, Corwill Properties argued that the discharge, having been registered, was
indefeasible.
HELD • The mortgage

As to the first situation in which an agent’s fraud can be attributed to a principal, the court
held that Schultz was not liable for the actions of her agent, Galea, as the forging of a
mortgage was not within the scope of his actual or apparent authority as her agent. The
court regarded his forging of the mortgage as an “independent activity in furtherance of
his own interest and in no way done for or on behalf of Mrs Schultz”. In other words,
Galea’s actions could not be “brought home” to Mrs Schultz. As to the second situation in
which an agent’s fraud can be attributed to a principal, the court accepted that Galea
knew the mortgage was a forgery but that knowledge could not be imputed to Schultz.
Schultz was not aware of the forgery and that knowledge had not been communicated by
Galea to Schultz.
The discharge of the mortgage
The court again considered the two situations in which a principal can be held liable for
the actions of their agent. As agent for Corwill Properties the court considered that
Galea’s action in deceiving Schultz to sign the discharge was not within the actual or
apparent scope of his authority as its agent. The court also found that Galea’s knowledge
of the fraud was his own and had not been communicated to Corwill Properties. Given
these findings the fraud could not be “brought home” to Corwill Properties.
Conclusion
On that basis the court concluded that both the mortgage and the discharge of the
mortgage were indefeasible. That being the case, the court concluded (at 586) that:
… [Corwill Properties’] title to the land must be upheld as being that presently disclosed on the
face of the register. In other words, [Corwill Properties] presently holds an unencumbered fee
simple in the land free from any interest therein on the part of [Schultz].
Forgery
[10.130] South Australia is the only jurisdiction that refers to forgery as
being an exception to indefeasibility: Real Property Act 1886, s 69(b). The
advent of e-conveyancing has seen a legislative obligation imposed upon
parties to confirm the identity of a party signing the document and the
witness. Depending upon the jurisdiction, a failure to comply with the
obligation to confirm the identity of the person can be an explicit exception
to indefeasibility (particularly in the context of the execution of a mortgage)
or render the perpetrator liable for an offence.
New South Wales Real Property Act 1900, ss 117, 117A

Queensland Land Title Act 1994, s 185(1A)
South Australia Real Property Act 1886, ss 267, 268
Tasmania No specific provision
Victoria Transfer of Land Act 1958, ss 87A, 87B
Western Australia Transfer of Land Act 1893, ss 214, 214A
MindMap10
Notifications on the register The protection of Fraud as an exception to indefeasibility

indefeasibility will not be
granted in the case of a fraud
Statute-based – each State’s Torrens system
The register – a public record that can brought home to the
legislation includes fraud as an exception to
be searched and examined for registered proprietor
indefeasibility
land-based interests
Definition – “fraud” is not defined in the

Interests noted on the register – a legislation; the common law definition is
registered owner’s title is subject to adopted (Assets Co Ltd v Mere Roihi [1905]
interests noted on the title, eg, Bursill AC 176) – fraud requires dishonesty or moral
Enterprises Pty Ltd v Berger Bros turpitude on the part of the registered owner or
Trading Co Pty Ltd (1971) 124 CLR 73 – their agent (Pyramid Building Society (in liq) v
easement registered on title, incoming Forgery and witnessing Scorpion Hotels Pty Ltd [1998] 1 VR 188;
purchaser took the land subject to the Russo v Bendigo Bank Ltd [1999] 3 VR 376)
of documents
easement and should have examined
the terms and conditions of the Must operate on the mind of the registered
interest and its impact Forgery is a specific owner, eg, Bank of South Australia Ltd v
exception to indefeasibility Ferguson (1998) 192 CLR 248 – no fraud as
in South Australia the bank’s actions were unknown to the
Indefeasibility – registered interests registered owner
will be defeasible in the case of a fraud
brought home to the registered owner Other jurisdictions have
Fraud by an agent – the fraud will be brought
statutory requirements to
home to the principal where the agent is
confirm the identity of a
Fraud is a statutory exception to the acting within the scope of their authority or
party signing the document
principle of indefeasibility where the knowledge of the fraud can be
and the witness
imputed to the principal
Chapter 11
Exceptions to Indefeasibility:
Other Statutory Provisions
and the In Personam
Exception
Exceptions to indefeasibility: Other
[11.10] INTRODUCTION....................................................................... 92
[11.20] STATUTORY EXCEPTIONS ......................................................... 92
[11.20] Prior folio or certificate of title........................................... 92
[11.30] Wrong description of parcel or boundaries ........................... 93
[11.40] Omitted or wrongly described easements............................. 93
[11.50] Leases ....................................................................... 93
[11.60] Rates and taxes ........................................................... 94
[11.70] Volunteers................................................................... 94
[11.80] Overriding legislation ...................................................... 94
[11.100] THE IN PERSONAM EXCEPTION................................................. 95
Introduction
[11.10] There are other statutory exceptions to indefeasibility in each
jurisdiction. Although the statutory exceptions are common they are not
uniform to all jurisdictions. Further, those exceptions that may be common
may differ in interpretation and application. Care must be taken when
considering whether an exception will apply in any given jurisdiction.
Statutory exceptions
Prior folio or certificate of title

[11.20] Where two folios or certificates of title have been created, the first
folio created will prevail.
New South Wales Real Property Act 1900, s 42(1)(a)
Queensland Land Title Act 1994, s 185(1)(e)
South Australia Real Property Act 1886, s 69(e)
Tasmania Land Titles Act 1980, s 40(b)
Victoria Transfer of Land Act 1958, s 42(1)(a)
Western Australia Transfer of Land Act 1893, s 68(1)
CHAPTER 11 EXCEPTIONS TO INDEFEASIBILITY: OTHER / 93
Wrong description of parcel or boundaries

[11.30] Where land, the parcel as a whole, or one or more of its
boundaries, is wrongly described (eg, due to a survey mistake), a registered
proprietor will not gain title to the land wrongly described.
New South Wales Real Property Act 1900, s 42(1)(c)
Queensland Land Title Act 1994, s 185(1)(g)
South Australia Real Property Act 1886, s 69(c)
Tasmania Land Titles Act 1980, s 40(3)(f)
Victoria Transfer of Land Act 1958, s 42(1)(b)
Western Australia Transfer of Land Act 1893, s 68(1)
Omitted or wrongly described easements

[11.40] Generally speaking, an easement that has been omitted or wrongly
described will be regarded as an exception to a registered proprietor’s
indefeasible title.
New South Wales Real Property Act 1900, s 42(1)(a1)
Queensland Land Title Act 1994, s 185(1)(c)
South Australia Real Property Act 1886, s 69(d)
Tasmania Land Titles Act 1980, s 40(3)(e)
Victoria Transfer of Land Act 1958, s 42(2)(d)
Western Australia Transfer of Land Act 1893, s 68(3)(c)
Leases
[11.50] Unregistered leases are granted protection under the legislation.

However, the duration and nature of the lease will be relevant in
determining whether the exception applies in a given jurisdiction. Where
the lease is granted protection under the legislation the interest in land will
subsist despite the interest not being noted on the title and the registered
owner will be required to honour the terms of the lease agreement.
New South Real Property Act 1900, s 42(1)(d): the lease cannot be longer than three years
Wales
Queensland Land Title Act 1994, s 185(2): the lease cannot be longer than three years
South Australia Real Property Act 1886, ss 69(h), 119: the lease cannot be longer than one year
Tasmania Land Titles Act 1980, s 40(3)(d): the lease cannot be longer than three years
Victoria Transfer of Land Act 1958, ss 42(2)(e), 66: tenant needs to be in possession and
the lease term should not be longer than three years
Western Transfer of Land Act 1893, s 68(1A): the lease cannot be longer than five years
Australia and the tenant must be in actual possession
Rates and taxes

[11.60] Some jurisdictions via their Torrens system legislation provide that
unpaid rates, taxes and charges act as an exception to indefeasibility. In
jurisdictions where the Torrens system legislation does not contain a
specific provision, the legislation relating to the specific rate or charge may
provide that the unpaid component attaches to the land.
Jurisdiction Torrens system legislation

New South Wales No specific provision in the Torrens system legislation but a writ of
execution can be registered: Real Property Act 1900, s 105
Queensland No specific provision in the Torrens system legislation but a writ of
execution can be registered: Land Title Act 1994, s 117
South Australia Unpaid succession duty: Real Property Act 1886, s 69(i)
Tasmania Land Titles Act 1980, s 40(3)(g)
Victoria Transfer of Land Act 1958, s 42(2)(f)
Western Australia No specific provision
Volunteers
[11.70] A registered volunteer is a person who becomes registered as
having an interest in land but has not paid valuable consideration for that
interest. Queensland is the only jurisdiction that provides that a registered
volunteer obtains indefeasible title to the land: Land Title Act 1994, s 180.
The High Court held in Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007)
230 CLR 89 that a volunteer has the capacity to obtain indefeasibility of
title.
Overriding legislation
[11.80] General principles of statutory interpretation provide for earlier
statutes to be overridden by later more specific statutes. Given this rule of
statutory interpretation, the Torrens system legislation in each jurisdiction
is potentially capable of being overridden by a subsequently enacted
statute. In this way, later statutes may create rights and interests that are
not recorded on the register.
Pratten v Warringah Shire Council

[11.90] Pratten v Warringah Shire Council [1969] 2 NSWR 161
FACTS • On the relevant parcel of land, a drainage reserve had been created in favour of
CHAPTER 11 EXCEPTIONS TO INDEFEASIBILITY: OTHER / 95
the Council pursuant to the Local Government Act 1919 (NSW). The Act provided that
the drainage reserve was to take priority over the title of the registered proprietor. The
drainage reserve, however, was not registered on the title. Prior to Pratten purchasing the
land, Council claimed no interest in the land. After the purchase Council asserted its
ownership of the land.
HELD • The court held that the Local Government Act 1919, being a later statute,
overrode the Real Property Act 1900 (NSW). The court regarded the indefeasibility of
Pratten’s title as being subject to the drainage reserve created by the later statute.
[SEE ALSO • Hillpalm Pty Ltd v Heaven’s Door Pty Ltd (2002) 55 NSWLR 446.]
The in personam exception

[11.100] The in personam exception is a principle that acts against the
registered proprietor’s conscience. The registered proprietor’s title will be
regarded as defeasible if there is a claim by another person, whether that
claim is legal or equitable in a manner that would entitle that party to be
granted relief by the court.
The principle derives from the Privy Council decision of Frazer v Walker
[1967] 1 AC 569 at 585 where the Privy Council considered that:
… their Lordships have accepted the general principle that registration under the
Land Transfer Act 1952 confers upon a registered proprietor a title to the interest
in respect of which he is registered which is immune from adverse claims, other
than those specifically excepted. In doing so they wish to make clear that this
principle in no way denies the right of a plaintiff to bring against a registered
proprietor a claim in personam, founded in law or equity, for such relief as a

court acting in personam may grant.
The Privy Council declined to specify and limit the legal and equitable
claims that would fall within the exception. The ambit of the in personam
exception is therefore difficult to define.
The in personam exception applies to all Torrens system jurisdictions. In
some jurisdictions the exception is specifically provided for, whilst in
others the exception has been incorporated into the Torrens system via the
common law.
New South Wales No specific provision
Queensland Land Title Act 1994, s 185(1)(a): the registered proprietor does not
obtain indefeasibility of title in relation to an equity arising from an act

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PART I

WHAT IS PROPERTY AND THE

the property (eg, by selling, consuming or modifying it) is determined by

FACTS • In 1994, Yanner, an Aboriginal Australian, used a traditional harpoon to catch

Continuing (at [20]):

[1.30] Any meaning of “property” is determined by reference to the law,

John Locke (1632–1704)

Social utility approach

Jeremy Bentham (1748–1832)

Karl Marx (1818–1883)

Economic analysis approach

• Transferability — If a property right cannot be transferred there is a risk that resources

chattels personal comprises moveable property. Chattels personal can be

Victoria Park Racing and Recreation Grounds v Taylor

Land and the limits of land ownership

Legislation in each of the States provides for the reservation of rights to

definition of minerals that applies in the particular jurisdiction and the

Di Napoli v New Beach Apartments

LJP Investments v Howard Chia Investments

[1.140] The physical boundaries of a parcel of land will be determined by

Victoria Park Racing and Extent of ownership – the

Chattels real – leasehold and practical to the enjoyment

Chattels personal – moveable

Economic Analysis: Garrett Choses in action – intangible

The Doctrine of Tenure and

The doctrine of tenure

[2.40] The decision of Mabo v Queensland (No 2) (1992) 175 CLR 1

Mabo v Queensland (No 2)

(c) they owned the land by way of customary title.

Therefore (at 54):

In terms of the Crown’s title (at 62):

Common law native title

Mabo v Queensland (No 2)

HELD • Brennan J stated (at 70):

Mabo v Queensland (No 2)

ISSUE • Can common law native title rights be extinguished?

HELD • Brennan J stated (at 83):

[2.110] The Commonwealth Government subsequently enacted the Native

Native Title Act 1993 (Cth)

no longer observed or there has been no continuation or connection with

Historical position: Cooper v Stuart The main objects (s 3) of the

Recognising possession as “good title”

Statutory recognition of adverse possession

statutory application of the doctrine of adverse possession differs from

Jurisdiction Possession and relationship to title Limitation period

To determine the success of a claim for adverse possession the claim

Commencement of the limitation period

Jurisdiction Dispossession or discontinuance by Adverse possession by another

There is no statutory guidance as to what constitutes discontinuance or loss

JA Pye (Oxford) v Graham

The running of the limitation period

[3.80] For the documentary title holder to be precluded by statute from

• Another adverse possessor — If a person, A, is in adverse possession and

Jurisdiction Owner’s assertion of title Acknowledgment of title by possessor

Jurisdiction Extension of limitation Owner’s right of action

What constitutes adverse possession?

JA Pye (Oxford) v Graham

[3.110] JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419

ISSUE • What constitutes adverse possession?

HELD • Lord Browne-Wilkinson (at [41]) accepted that factual possession:

Running of time – has adverse Time – the length of time

Fixtures and contractual relationships

Jurisdiction Conveyance includes fixtures