461 Hampton Street Investments Pty Ltd (ACN 644 677 976) v Registrar of Titles [2025] VSC 204

1 Having heard argument in this matter in the Practice Court on 11 April 2025, on 16 April 2025 I made the order sought in paragraph 5 of the Plaintiffs' originating motion with brief reasons delivered at that time. I advised the parties that I would publish my reasons at a later date. These are those reasons.

2 By the time this proceeding was commenced seeking urgent relief, the First Plaintiff had:

(a) acquired a number of parcels of land for the purposes of developing them as a consolidated parcel;

(b) obtained all relevant approvals to construct an apartment building;

(c) sought and obtained all finance;

(d) commenced and substantially completed construction;

(e) commenced the process of selling the apartments within the building off the plan and negotiating with a significant supermarket operator to let the ground floor retail space; and

(f) sought approval of the Registrar of Titles to register a plan of subdivision which would create separately disposable parcels of land (and airspace) to align with the building as constructed.

3 In the preparation of the plan of subdivision for registration it became evident that the First Plaintiff did not own or control all of the land within the proposed subdivision. A sliver of land approximately 30.48 metres in length and 36 centimetres wide - or as senior counsel for the Plaintiffs observed, the width of two Penguin paperback books placed end to end ('Waley Land') remained in the ownership of Theodore Stanley Waley ('Theodore').

4 Notwithstanding the significant passage of time since his death, Theodore remains the registered proprietor of the Waley Land which is the subject of two separate certificates of Title.

5 In preparing this application, the solicitors for the Plaintiffs before me undertook various and rigorous searches and investigations to ascertain the chain of representation. Those investigations reveal, without any apparent controversy, that:

(a) Theodore died in 1977, leaving a will dated 18 April 1967;

(b) On 17 April 1978, probate of the will of Theodore was granted to his wife, Irene Estelle Waley. Irene died in 1986;

(c) On 22 June 1987, probate of the will of Irene dated 19 February 1981 was granted to Diana Maude Gorr Ladd. Diana subsequently died in 2012;

(d) On 26 July 2012, probate of the will of Diana dated 26 July 2012 was granted to Barbara Ladd and Suzanne Williams.

6 The effect of ss 13 and 17 of the Administration and Probate Act 1958 (Vic), is that Barbara and Suzanne are the current executors of whatever remains the unadministered of part of Theodore's estate by reason of an unbroken chain of representation.

7 The solicitors also sought to ascertain the identity of those who now enjoy the beneficial interest in the unadministered part of Theodore's estate. Again, without any apparent controversy, the investigations and analysis reveal that:

(a) By Theodore's will, his estate was distributed to Irene;

(b) By Irene's will, the residuary of her estate (after express dispositions) was distributed to Diana and Gwenneth**[1]** Whitaker (the Second Plaintiff) as tenants in common in equal shares. Gwenneth survives and is a plaintiff in these proceedings; and

(c) By Diana's will, the residuary of her estate was distributed to Barbara and Suzanne (the Third and Fourth Plaintiffs) as tenants in common in equal shares.

(a) apart from the Waley Land, there is no other part of Theodore's estate (and in turn the estates of each of Irene and Diana) which remains unadministered. I reach this conclusion having regard to the nature of the testamentary dispositions contained in the various wills;[2]

(b) Diana's estate and Gwenneth are the only residuary beneficiaries of Irene's estate;

(c) the only beneficiaries of the residuary of Diana's estate are Barbara and Suzanne.

9 Before me, senior counsel for the Plaintiffs made the point that the First Plaintiff may have a sound basis to contend that it is entitled to the Waley Land by operation of the doctrine of adverse possession. In this case however, all of the Plaintiffs have come together pragmatically to avoid the need to litigate that matter. All of the Plaintiffs have entered into a deed concerning the Waley Land whereby the First Plaintiff agrees to pay a settlement sum to each of the remaining plaintiffs directly, as 'beneficiaries', in exchange for various steps and releases, with the apparent intention that the First Plaintiff would become the registered proprietor of the Waley Land.

10 The orders sought in these proceedings are to the effect that the Waley Land be vested in Gwenneth as to a half share, and Barbara and Suzanne as to an equal share in the remaining half. In effect, the three beneficiaries seek orders against the estates insofar as they relate to the Waley Land. In this case, the legal personal representatives of the estates are also the Third and Fourth Plaintiffs (but not the Second Plaintiff).

11 It is said by the Plaintiffs that once an order vesting the land in the beneficiaries is made as proposed, the beneficiaries will become entitled to be registered proprietors of the Waley Land, and on that basis the 'sale' of the Waley land from the Second, Third and Fourth Plaintiffs to the First Plaintiff can be effected in accordance with the deed executed between them.

12 Section 48(2) of the Administration and Probate Act provides:

48 Obligations of personal representative to give possession

...

(2) Any person who as against the personal representative claims possession of real estate (including chattels real) or the appointment of a receiver thereof, or a conveyance thereof, or an assent to the vesting thereof, or to be registered as proprietor thereof under the Transfer of Land Act 1958, may apply to the Court for directions with reference thereto, and the Court may make such vesting or other order as may be deemed proper, and the provisions of the Trustee Act 1958 relating to vesting orders and to the appointment of a person to convey, shall apply.

13 Section 51 of the Trustee Act 1958 (Vic) relevantly provides:

(1) The Court may make an order, in this Act called a vesting order, which shall have effect as provided in section fifty-eight of this Act.

(2) A vesting order may be made in any of the following cases, namely -

...

(o) where property is vested in a trustee and it appears to the Court to be expedient to make a vesting order.

(3) The provisions of subsection (2) of this section where applicable extend to a trustee entitled to or possessed of any property either solely or jointly with any other person and whether by way of mortgage or otherwise.

1. Section 58(2) then provides the effect given to a vesting order, ensuring legal title can be validly conveyed. It states that 'the vesting order shall have the same effect as if the trustee ... had been an ascertained and existing person of full capacity, and had executed a conveyance or release to the effect intended by the order'.
2. The effect of ss 13 and 17 of the Administration of Probate Act is that the legal interest in the Waley Land is vested in the Third and Fourth Plaintiffs as executors of Theodore's estate by reason of the unbroken chain of representation.
3. I am satisfied that if all three of the estates had otherwise been administered, and the Waley Land distributed in specie to the beneficiaries entitled under each estate, the Second, Third and Fourth Plaintiffs would be entitled to become the registered proprietors of the Waley Land in proportion to their share of the estates (as earlier described) as tenants in common.

17 The discretion of the Court to make the orders is broad, but not without limitation.

18 Warren J (as her Honour then was) in Re Purkiss[3] made the following observations about the nature of the discretion to be exercised by this Court, making reference to earlier decisions of this Court:[4]

The courts have demonstrated a reluctance to make vesting orders where the procedure is used "to facilitate or be a substitute for ordinary conveyancing practice": Dotter v Evans (1969) VR 41. In Casella v Casella [1969] VicRp 8; (1969) VR 49 the court declined to make a vesting order where a husband refused to obey an order to transfer a house to his wife. McInerney J said that the court should not make an order "until every other means has been exhausted of securing the production of the duplicate certificates of title now held by or at the direction of the respondent". Such approach was initially adopted by Gillard J in Dotter v Evans, supra and followed later in Marshall v Williams at 594 where the learned judge observed:

"Having regard therefore to these well-established principles of equity, at all times material after the balance of purchase money was paid by Mr and Mrs Marshall, Mr Williams no longer had any beneficial interest in the property and he held the legal estate as trustee for Mr and Mrs Marshall.

Accordingly, Mr and Mrs Marshall were entitled to come to the Court and apply for a vesting order under the provisions of s 51 of the Trustee Act 1958.

My brother McInerney in Casella v Casella [1969] VicRp 8; [1969] VR 49, and myself in Dotter v Evans [1969] VR 41, have indicated the reluctance of a court to make a vesting order in circumstances such as these until such time as all curial and conveyancing processes have been exhausted to obtain the due registration of the applicants' interest under the Transfer of Land Act".

19 In this case, it is clear enough that there is a conventional pathway of ordinary conveyancing practice which would result in the Waley Land vesting in the Second to Fourth Plaintiffs. Indeed, as I understand it, the motivation for this application (and the basis upon which it is said to be urgent) is that the time necessary to follow the ordinary conveyancing practice might delay the Plaintiffs for an indefinite period in bringing about a resolution of the matter. I accept that this delay could have serious implications for the First Plaintiff. The First Plaintiff is exposed to significant financial risk while the plan of subdivision is unable to be lodged and registered, as it will be unable to settle the sale of apartments with third party purchasers, some of whom have already commenced to occupy the apartment building. The question which arose in the course of the hearing is whether, on the strength of Purkiss, the availability of ordinary conveyancing practices to achieve the desired result, albeit over a longer time frame, ought stand in the way of this Court exercising the discretion conferred by s 51 of the Trustee Act.

20 Counsel for the Plaintiffs directed me to the decision of the Federal Court Haslam v Money For Living (No 2) ('Haslam').[5] In Haslam, the Federal Court was called upon to consider whether to approve a settlement in a representative action pursuant to s 33V of the Federal Court of Australia Act 1976 (Cth). An aspect of the settlement involved that the Court making orders which invited consideration of s 51 of the Trustee Act 1958 (Vic) and s 103 of the Transfer of Land Act 1958 (Vic). It is unnecessary for present purposes to set out in detail the facts of that matter. Relevantly, in that case the Victorian Registrar of Titles opposed the making of orders on the basis that the objectives of the settlement agreement should be effected by 'ordinary conveyancing procedure'. Tracey J observed that:

In Re Purkiss, Warren J made an order under s 51 of the Trustee Act 1958 in a case in which no legal entity could be found who could execute a transfer of land. Her Honour referred to Marshall v Williams and held that, in the circumstances, the order which she made was a "step of last resort". Her Honour did not hold that an order under s 51 could not be made unless all conveyancing processes had been exhausted.

As can be seen the principal reason advanced for the reluctance of the Court to order an amendment to the Register was the concern that duplicate certificates of title should not be in circulation thereby giving rise to the risk that a potential purchaser of a property might be misled as to the identity of the owner/vendor. This consideration does not arise in the present proceeding because it is accepted by all parties that the duplicate certificates of title relating to the relevant properties are held by the Registrar. Despite this counsel for the Registrar sought to support the "last resort" approach by reference to the need for normal practice to be followed.[6]

21 In Haslam, the Registrar relied upon Purkiss and the cases referred to in that decision and pressed the 'last resort approach' by reference to the need for normal practice to be followed.

22 The conclusion reached by Tracey J in Haslam was based upon his Honour's review of the authorities upon which Purkiss relied, namely Dotter v Evans[7] ('Dotter') and Casella v Casella [8] ('Casella'). In both of those cases the parties were involved in hostile dispute: Dotter involved the failure of a vendor to comply with an order for specific performance of a contract for the sale of land; Casella involved the failure of a husband to comply with a Court order to transfer certain land to his wife following a divorce.

23 In Haslam, Tracey J concluded by observing that:

In exercising my discretion I accept that it is appropriate to have regard to the considerations which underpin the "last resort" approach which has been adopted by the Victorian Supreme Court. However, that approach guides the exercise of different statutory discretions. Even then, it does not fetter the exercise of those discretions in any particular case. Indeed it would be improper for it to do so: see Dix v Crimes Compensation Tribunal [1993] VicRp 21; [1993] 1 VR 297 at 302. The considerations which informed the exercises of discretion in the cases relied on by the Registrar do not apply in the present circumstances.[9]

24 In Haslam Tracey J emphasised that among the reasons for making the orders sought, his Honour was satisfied that resort to the ordinary conveyancing procedure would also occasion legal costs and delay which would not otherwise be incurred and that there was a risk that, unless the order is made, the settlement agreement may collapse.[10]

25 In Marchesi v Registrar of Titles,('Marchesi')[11] Ferguson J (as her Honour then was) made the following observations about Purkiss:

That case involved property in a deceased estate, where the trustee company that had obtained probate was no longer in existence and its successor was unknown. As such there was no‑one who could execute a transfer of land. Her Honour was satisfied that there was no ordinary conveyancing procedure available to remedy the problem and the order sought was a step of last resort...

I should also note that whilst Warren J held that the making of a vesting order in Re Purkiss was a step of last resort in that case ... her Honour did not hold that such a finding was a prerequisite to the vesting order she made under s 51 of the Trustee Act.[12]

26 Ferguson J in Marchesi went on to say (emphasis added):

In my opinion, the reasoning in Dotter v Evans and Casella v Casella must be read and understood in light of the later remarks of Gillard J in Marshall v Evans. It is clear that the rationale for the last resort approach in the two earlier cases was the concern of both McInerney and Gillard JJ that if there were two duplicate certificates of title for the same land in existence then this would fly in the face of the Torrens system encapsulated in the Transfer of Land Act. Of particular concern to their Honours was the risk that a second duplicate certificate of title might make it easier for fraud or other improper dealings with the land to be effected... Whilst caution must be taken in making such orders, I do not think that it is necessary to exhaust every other avenue if doing so would not serve any practical purpose...[13]

27 The 'principle of last resort' is no doubt a relevant and weighty factor in the exercise of discretion under s 51 of the Trustee Act, but it cannot be a fetter on that discretion. Section 51(1) invites the exercise of the discretion in a range of circumstances, including explicitly - where it is expedient to do so: s 51(2)(o). At the core of the principle of 'last resort' is to ensure that expedience does not come at the expense of caution in the exercise of the discretion, but in all cases the risk and the degree of caution required must be informed by all of the circumstances of the individual case at hand.

28 This is an unusual case. Here the area of land in question is a sliver 30.48 metres long by 36 centimetres in width. It is a remnant parcel long forgotten in the distribution of the deceased estates of Theodore and those which followed. There is no risk of the kind which the ordinary conveyancing procedures are intended to protect against. Unlike the situation in Haslam, the Registrar is joined as a party in these proceedings and takes no objection to the course proposed by the Plaintiffs. Like the situation in Haslam, all those with an interest in the Waley Land are before the Court, having reached agreement about matters which may have been the subject of protracted litigation causing expense and delay in a final resolution. The effect of the orders sought by the Plaintiffs is to, in substance, to facilitate the carrying into effect of an agreement which has been reached between them to deal pragmatically with what was, on the evidence before me, an obvious oversight in the administration of the estates of those claiming through Theodore Waley. The oversight in question had gone unnoticed until a substantial apartment building was constructed and plans of subdivision were ready to be lodged to effect settlement of sales which had already taken place.

29 While it is true that the effect of the orders sought could be achieved through ordinary conveyancing procedures, and so in that sense what is proposed is not the option of 'last resort', there would be no practical purpose in this unusual case to decline to exercise the power expressly given to the Court to act expediently when the circumstances so require and where all necessary precautions have been taken.

30 For all these reasons, I consider that it is expedient to make the orders sought.

(ACN 644 677 976) (as trustee of the 461 Hampton Street Investments Trust)

[2] In reaching this conclusion I make no finding as to any future liabilities of the estates, including the costs of this proceeding, noting that costs of the executor are ordinarily borne by the estate.

[3] Re Purkiss [1999] VSC 386 ('Purkiss').

[5] [2007] FCA 1981 ('Haslam').

[8] [1969] VicRp 8; [1969] VR 49.

[11] [2010] VSC 524 ('Marchesi').