Currey v Federal Building Society [1929] HCA 28

Currey v Federal Building Society [1929] HCA 28 - HCA 1929 case summary — Zoe

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(6) The fact that in the case of a transfer by direction the result of the registration of the transfer will be that the same person will become again the registered proprietor does not justify the omission to register the transfer. (7) Although the statutory power to transfer registered land is by the Act confined to registered proprietors of the land it has for many years been the practice of this office to accept for registration transfers expressed to be made by the direction of an intermediate purchaser to a purchaser from him and not to insist upon each sale of registered land being completed by a separate transfer. A transfer by direction of an intermediate purchaser to a sub-purchaser has been regarded as two transfers and the registration of such a transfer as equivalent to the registration. of two transfers. By regulation of the Governor in Council a fee for direction in a transfer has recently been provided.'' The solicitor for the Building Society thereupon took out the above-mentioned sum- mons calling upon the Registrar to substantiate and uphold the grounds of his refusal. This summons was, by consent, referred for hearing to the Full Court of the Supreme Court, and was heard by Irvine C.J. and Cussen and Lowe JJ., who ordered the Registrar to register the transfer: Federal Building Society v. Currey, Registrar of Titles (1). Irvine C.J., who delivered the judgment of the Court, after stating the facts above set out said (2) : - 'I should say that there is no dispute as to the correctness of any of the facts recited or set out in any of the documents referred to, the objection of the Registrar being, so far as the present facts are concerned, that until these instruments are registered there is no transfer of the equitable interest which originally existed in Bessie Duggan to the transferee under the transfer now presented for registration. No question is raised as to the correctness of the recitals in those various documents. The Registrar's objection is that he cannot take those facts into consideration. He says he cannot be satisfied that there is not some interest outstanding in Bessie Duggan, inasmuch as none of those documents has been registered. We think, without any examination of the numerous and difficult questions as to the construction of the statute that have been raised, that it sufficiently

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bered estate in fee simple by the person registered as the proprietor of that estate. It is sufficient in form to transfer the estate. Neither upon the face of the certificate of title, nor upon the face of the instrument presented for registration, does any reason appear for interposing further instruments upon the register, or requiring other persons to execute the instrument. All that appears is that the owner of a legal estate is transferring it by the appropriate means in consideration of a money payment. The fact that the Registrar happens to know, or is able to infer from a previous dealing with the land and a paper produced to and retained by him in connection with it, that a third person at one time had a contractual or equitable right in relation to the land may, or may not, be a sufficient reason for delaying registration until he has ascertained that the dealing will not unlawfully defeat that right. But once it is found that no such violation of right is attempted, nothing remains but to give effect to the registered proprietor's dealing. The Registrar nevertheless says in the fourth of his reasons that " unless the intermediate sales are completed by registration the title of the said Marianne Vale to be registered as the proprietor and to redeem the land by paying off the money secured thereon and taking a transfer from the said Society will not appear on the register." One might have supposed that inasmuch as Marianne Vale's right to redeem the land by paying off the money secured upon it was either an equitable interest or a contractual or other personal right, the last thing which the Registrar would desire would be that it should appear upon the register. Moreover, Marianne Vale's right to be registered as proprietor arises from the fact that she is the transferee of the registered proprietor under a proper instrument, and it depends upon nothing else. This right might be intercepted by extrinsic facts if they showed that the transfer was an impropriety, but it is nothing but a confusion to treat facts which negative impropriety as part of the transferee's title to registration.

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registration with a letter stating "the transfer is in due form and on behalf of all the parties thereto I must request that its registration be completed." (Italics are mine.) On 7th March the Registrar replied : - " The first requisition on the transfer, made on 21st December 1928, was for its direction, in accordance with the usual practice, by the intermediate purchasers of the land. The requisition of 6th February 1929 that the transfers produced should be lodged for registration was made with a view to saving you the trouble of obtaining execution by the intermediate purchasers of the transfer. The first requisition is again made on relodgment." (Italics are mine.) That, as is plain, primarily again required the Vale transfer to be put into proper form, and only secondarily, if at all, required registration of the intermediate transfers, the formality of which no one then questioned - least of all the Society. The Society's solicitors replied on 8th April that it was desired to test the require- ment as to intermediate dealings, and stating: '' In this case the transfer is in statutory form, and the whole of the equitable dealings have been properly disclosed to the assessor of duty under the Stamps Act, and all the necessary duties paid, and the present transfer itself bears the assessor's certificate to that effect." I may interpose the observation of fact (law being later dealt with) that the transfer there referred to did not bear the assessor's certificate that "all the necessary duties" were paid, if that transfer had to comply with sec. 68 (sub-sec. 6) of the Stamps Act. That letter having been simply acknowledged, the Society's solicitor pressed for registration of the Vale transfer, and thereupon proceedings were instituted under sec. 248 of the Transfer of Land Act, resulting in an order by the Supreme Court of Victoria that the Registrar (a) had failed to substantiate his reasons, and (b) should be directed to register the Vale transfer as lodged. The ground of the decision was that it sufficiently appeared, on the facts presented and brought to the mind of the Registrar, that Duggan and the Clarks had no equity, and that all equities were in Vale. So far as it is a matter of fact, I agree that Vale has in her all the necessary equities to support a proper transfer of the land to her by the Society.

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are resorted to for the convenience of the parties in the interim, they may have trust deeds or other mutual arrangements, the sales are dutiable, because they are sales of "real property," and the duty is payable on any " conveyance" within the meaning of the Act which directly or indirectly gives effect to them, that is to say, by trans- ferring the proprietary title to the real property sold to some other person. But so far, no statutory obligation was enacted to disclose the various sales, except the obligation to pay the duty, and though a fraud would be committed if the duty were intentionally not paid, no machinery was provided for requiring the disclosure of the various sales to the Registrar or the Registrar-General. To meet the situation and to guard the revenue, it is enacted by sub-sec. 6 that every party to a conveyance, and every person concerned in the preparation of any conveyance or transfer, shall fully and truly set forth in precise terms the consideration money from any sub-purchaser or sub- purchasers who are or who at any time have been interested in the real property, the subject of the conveyance or transfer. My impression during the argument that this provision is fatal to the respondent's contention is confirmed by later consideration. It is, of course, of little use to consider what would be sufficient if the provision did not exist. The sub-section is a distinct statutory requirement of the Legislature in a Finance Act. To me its language is unusually plain and simple, and clearly applicable to the Vale transfers in this case. Until that transfer was executed there had never been any conveyance to Vale of the land she had purchased. Even if for the moment it be conceded that in equity she had an equitable estate in the strictest sense, she nevertheless had never had conveyed to her or her nominee the legal property she had bought and paid for, and agreed to be conveyed to her nominees. The transfer seeks to give effect directly to the sale Clarks to Vale as made. But for that sale, and but for the prior sale Duggan to Clarks, the Society, as registered proprietor from Duggan, would have no right whatever to transfer to Vale. It is, in my opinion, quite irrelevant in this connection to introduce the Vale mortgage or the Clark mortgage.

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conveyed is a property known to the common law, then the conveyance, if there be one, will be a legal conveyance ; and when the property to be conveyed is an equitable property or interest, then the conveyance, if there be one, will be an equitable convey- ance. It does not mean an equitable conveyance of a common law property, or a legal conveyance of an equitable property, but the two kinds of conveyances are distributed each to that kind of property which it has to convey." Further on, the Master of the Rolls says, in a passage of great importance (1): "Then the question is, whether the instrument which we have now to consider is an instrument 'whereby ' (that is, by the instrument itself alone) the property . . . is conveyed." Then he says (2): - *It has. been argued that it is an agreement of which a Court of equity in the event of the vendors not immediately fulfilling their agreement, would at once grant specific performance. And it is said that, when an agreement is such that equity will grant specific performance of it, it is to be considered as a conveyance in equity, or an ' equitable conveyance.' If that were true, it would be an equitable conveyance of a legal property or a legal right." I may interrupt for a moment to observe that that is precisely what the learned Lord has just said the section does not mean. His Lordship continued that the very fact that the instrument required the interposition of equity to vest the: property in the purchaser, showed that the instrument itself did not do so. In that case it was specific performance that was. suggested, but that is only one instance of equitable interposition. Injunction is another. And to this judgment, in which Lord Halsbury L.C. concurred, I may add some words of the Lord Chancellor himself (3). He said, in order that sec. 70 (almost identical with sec. 62 of the Stamps Act) " may apply, the property must be actually transferred by the instrument itself, not merely by virtue of an equitable doctrine." I would refer passim to the powerful reasoning of Lindley L.J. in the case just referred to, and, adapting one passage in his judgment (4), I would say that the distinction between an implied trust and a " conveyance " of land is a distinction which is perfectly well known to every lawyer. That case was cited

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to Holroyd J. in Johnson v. McKell (1). That very learned Judge, in a clear judgment, applied it to the Transfer of Land Act. There a purchaser of land, having resold, purported expressly to transfer all his right, title and interest under his contract of purchase, and the purchaser purported to accept the transfer : Held, no conveyance. The question arose in Commissioners of Stamps v. Queensland Meat Export Co. (2) whether on a sale of chattels included in a general entire sale of land and other property for one indivisible consideration, the agreement contemplating a formal transfer, there was an equitable interest transferred as to the chattels. The Judicial Committee (Viscount Haldane, Lord Dunedin and Lord Sumner) held in the negative. Lord Sumner delivered the judgment. His Lordship, on the question of whether the priority vested in the purchaser and whether the contract was one for the sale of an equitable interest in the property, said (3) : - '' The answer depends upon the intention of the parties to be collected from the terms of the instrument under the circumstances of its execution. It is plain that the instrument is not a contract for the sale of an equitable interest. All the subject matters dealt with are meant to be sold out and out. The doubt is whether that sale is, as to any of them, a sale in presenti. Furthermore, it is plain that, as regards the real property at any rate, no estate or interest therein was vested in the purchasers or was intended to be vested in them on the execution of the deed. The agreement gave them a right to equitable relief in case the old -company failed to convey but in respect of the hereditaments it was acontract tosellonly. . . . The distinction between an agreement to sell and a sale, between an agreement to convey and a conveyance, is fundamental and familiar. It is also a familiar transaction to include in one agreement a bargain relating to hereditaments, choses in action, and chattels. Here all these subject matters formed parts of one going concern, and it was the chief object of the transaction that the new company should continue the going concern, which the old company had carried on. The contract was entire. The considerations were not severed or appropriated. Their Lordships infer that the intention was to vest the different subject matters,

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Court

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Before

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Judgment (156 paragraphs)

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