He cited McCaughey v Commissioner of Stamp Duties (1945) 46 SR (NSW) 192, 206. However he went on to hold that compensation payable under particular regulations for war damage to property was sufficiently analogous to the interest of a person who is one of several possible objects of a discretionary trust to constitute an "interest" within the meaning of the definition in the Stamp Duties Act. Davidson and KW Street JJ concurred.
22 In McCaughey's case at p 206, the Full Court consisting of Jordan CJ, Halse Rogers and Roper JJ said that the definition of property in the Stamp Duties Act means that "'Property' is to be taken to include not only cases in which a person owns property (real or personal) in the sense of the totality of the interests in such property but also where he owns property in the sense of part only of the interest in such property; and further, that 'property' includes not only tangible things, but debts, choses in action, and any other types of right or interest of a proprietary nature".
23 One gets the same flavour through many of the revenue cases. Thus in Commissioner of Stamp Duties v Yeend (1929) 43 CLR 235, the right to carry on the franchise of supplying refreshments at a race course was held not to be property for the purposes of the Stamp Duties Act (p 245).
24 In 2 Day FM Australia Pty Ltd v Commissioner of Stamp Duties (1989) 89 ATC 4,840, Sully J said at p 4,844 that the authorities indicated to him that the general words in the definition of "property" in the Stamp Duties Act had to be read down to refer only to proprietary rights and interests, but even reading the words down in that way a broadcasting licence was "property" within the definition.
25 However, in Bailey v The Uniting Church in Australia Property Trust (Qld) [1984] 1 Qd R 42, 58, McPherson J, giving the leading judgment of the Queensland Full Court, said that one needs to distinguish the revenue cases, for outside these the word "property" is an extremely wide word. The Court there held that the right to elect five councillors to a college council was a right of property akin to an advowson (p 60).
26 When one turns to s 66G itself, one can see that the legislature has used the word "property" in a wide sense. The section refers to "any property", and chattels would have been included had they not been expressly excluded. It seems to me that any right which is capable of being held in co-ownership and capable of being vested in trustees is property within the meaning of s 66G.
27 So far as shares generally are concerned, they are now accepted to be property under almost any definition; see eg Colonial Bank v Whinney (1886) 11 App Cas 426. See also Wilson v Commissioner of Probate Duties (Vic) (1978) 8 ATR 799, affirmed by the Victorian Full Court in Commissioner of Probate Duties v Wilson [1979] VR 592.
28 Accordingly, I must treat the shares in the Company as "property" within the meaning of s 66G.
29 I turn now to consider the right of occupation.
30 A right of occupation is not equivalent to a lease and is a contractual rather than a proprietary right if one has to distinguish between those two categories as one does in the case of an ejectment action; see Tittman v Traill (1957) 74 WN (NSW) 285, 287; HH Halls Ltd v Lepouris (1964) 65 SR (NSW) 181.
31 However, the articles of the Company's Constitution do amount to a contract between the Company and its members, and may, in the appropriate case, be policed by the Court: Magill v Santina Pty Ltd [1983] 1 NSWLR 517. That such an arrangement gives to the shareholder some proprietary right appears to flow from cases such as Jenkins v Harbour View Courts Ltd [1966] NZLR 1. However this is not a right which is assignable.
32 Accordingly, in my view, should it become necessary so to decide, a right to occupancy can be property within s 66G of the Conveyancing Act 1919.
33 (2) Co-Ownership. The more divisive question between the parties is whether what has happened in the instant case means that the first and second defendants hold the shares or the right to occupation as co-owners.
34 Co-owners must, by definition either be joint tenants or tenants-in- common. The defendants are obviously not joint tenants. The question is thus do the defendants hold the shares as tenants-in-common?
35 At first blush they do not. With a tenancy in common, each co-owner holds some interest in the whole of the property. On the facts in the instant case the second defendant holds a distinct 40% interest and has no interest in the first defendant's 60% and vice versa.
36 To constitute a tenancy in common, there must be an equal right to possession of every part and parcel of the subject matter of the tenancy; joint possession is not essential, unity of the right of possession being all that is required: see Mitra's Co-Ownership and Partition 7th ed (Eastern Law House, Calcutta, 1994) p 10 and Biswanath v Rabija (1930) 33 CWN 46. Unity of possession means that each co-owner is as of right as much entitled to possession of any part of the property as the others; see eg Blackstone's Commentaries II, 182.
37 In his article "Co-Ownership under Victorian Land Law" in (1961) 3 MULR 137, 138, de Mendes da Costa said:
"Whatever the method of co-ownership, one feature true of all, is that each co-owner, whether he be a joint tenant or a tenant in common, is entitled, concurrently with the other co-owners, to possession of the whole of the land, although he has no exclusive right to possession of any part. It is this right to possession of the entirety of the land, a right which exists irrespective of agreement with, or the permission of the other co-owners, and which, at common law cannot arbitrarily be determined by order of the court ... that is the essential characteristic of all forms of co-ownership: without it there is several, that is separate, and not concurrent ownership...".
38 The italics are mine and point out the part of the statement that must be focussed on in the present debate. The proposition in italics is said to be justified by the decision in Moisley v Mahony [1950] VLR 318.
39 In that case, Mrs Mahony was a tenant in common of a property in Toorak which included a disputed flat. Under the War Emergency Legislation, upon a flat becoming vacant a protected person under the Act could requisition it unless it was the intention of the owners to occupy it themselves. The magistrate held that the intention of one co-owner to occupy the flat was insufficient. However on appeal, Dean J held that as Mrs Mahony was a legal tenant in common "she required no permission from her co-owners to enter and occupy the land, and she was entitled to enter without making any arrangement with them" (p 320).
40 The 8th edition of Helmore's Personal Property (NSW) (Law Book Company, Sydney, 1979) p 56 says:
"Personal estate may be owned not only in severalty, that is to say, by single persons, but also jointly, or in common, by two or more persons. Joint ownership and ownership in common of personal estate differ from one another in like manner as joint tenancy and tenancy in common of real estate, and are in general subject to the same rules as joint tenancy and tenancy in common."