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[1999] NSWLEC 268
Land and Environment Court (NSW)
1999-12-09
Talbot J, Mr J, Pearlman J
Original judgment source is linked above.
The application of this principle to a contract to assign a purely equitable interest gives rise to considerable difficulty. If as a result of the application of the principle the vendor is trustee of the interest, absolutely and indefeasibly, for the purchaser, then has not the contract been completed and is not the interest vested in the purchaser? What further assurance is either necessary or possible? But if that is the result, does it follow that such a contract amounts to a disposition of a subsisting equitable interest so as to be ineffective, by reason of [in Victoria s. 53(1)(c) of the Property Law Act], unless in writing signed by the vendor? Alternatively, is [s.53(1)(c)] inapplicable, because the assignment occurs by way of the creation of a constructive trust, by virtue of [s.53(2)]? See generally Waters , op. cit., pp. 108-16.
On balance, and having regard to the extensive line of authorities referred to by Phillips JA, and elsewhere, I am prepared to accept that a constructive trust of the land came into existence upon completion of the first transaction between Sealark and the trustee and that there was an immediate disposition of the trustee's interest to Pacinette in the final transaction.
By order of the Federal Court of Australia in proceedings NG3269/1997 made on 12 December 1997, a Scheme of Arrangement was approved whereby the whole of the undertaking and the property and liabilities of Port Stephens Development Pty Ltd were directed to be transferred to Sealark. Similar orders were made in respect of companies Queanbeyan Investments Pty Ltd and St Vincent City & Suburbs and Pacific City Pty Ltd. The documentary evidence discloses that the lands dealt with by Sealark on 14 May 1998 were transferred to it by Port Stephens Development Pty Ltd under transfers executed on 5 March 1998, although the transfers do not appear to have been registered until 2 October 1998. In the meantime the lands had been acquired.
The inference is that Sealark received the transfers from the transferor on 5 March 1998 when the transfer was executed by it under seal as the transferee.
The transfers were executed to give effect to the Federal Court orders made on 12 December 1997. The land vested in Sealark when the orders were made by dint of s 413 of the Corporations Law. At that date it became the owner of the land. The formal steps of transfer followed to enable the Registrar General to issue new certificates of title.
Section 413(2) of the Corporations Law provides that, where an order is made under that section, property shall be transferred to and vest in the transferee by virtue of the order.
Pursuant to s 43A of the Real Property Act 1900 for the purpose only of protection against notice, the estate or interest taken by a person under a registrable transfer before registration of that dealing is deemed to be a legal estate.
The High Court confirmed in Meriton Apartments Pty Ltd v McLaurin & Tait (Developments) Pty Ltd (1976) 133 CLR 671 that s 43A confers upon a purchaser the same protection against notice as that achieved by a purchaser who acquires a legal estate at common law rather than the larger degree of protection the purchaser would achieve following registration.
The Court is satisfied that in the circumstances set out above, Sealark was, at 14 May 1998, in a position to deal with the legal estate in the land and that accordingly, at the date of acquisition, had dealt with that interest so that Pacinette had become the holder of an equitable interest in the land.
Accordingly, at the date of acquisition Port Stephens Development Pty Ltd was the registered proprietor of the land, Sealark held the legal estate as trustee and Pacinette held the whole of the equitable interest in the land.
Is the interest held by the applicants at the date of acquisition an interest in land for the purpose of the Just Terms Act?
In written submissions made by the respondent, reference is made to the decision of the Court of Appeal in Hornsby Council v Roads and Traffic Authority of New South Wales (1997) 41 NSWLR 151 at 155C where, in a different context, Meagher JA referred to "proprietary or quasi-proprietary rights" as the relevant interest to support a claim for compensation under the Just Terms Act. The argument appears to be confined to the interest of Pacinette as a unit holder in the trust and that as such it could not have any interest in the land per se. This submission does not appear to take account of the final part of the transaction whereby Pacinette acquired the equitable interest in the land held by the trustee.
The Court is satisfied that, at the date of acquisition, Pacinette held a relevant "interest" in the land within the statutory definition as an equitable estate or interest in the land. It follows from the further statutory definition of "land" that such an interest is to be regarded as land for the purposes of the Act.
The Court is now in a position to determine the separate question set out at [9] of these reasons.
The Court is satisfied that the applicant Pacinette Pty Ltd has established that it is an owner of an interest in land the subject of the notice of acquisition and published in the Government Gazette dated 19 June 1998 entitled for the purposes of these proceedings to maintain its claim under s 37 of the Land Acquisition (Just Terms Compensation) Act 1991, at least in respect of the nominated lots 140, 1629 and 1063.
The question of costs of the Notice of Motion is reserved.
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Halloran and Sealark Pty Ltd and Ors
Minister Administering National Parks and Wildlife Act 1974
Land and Environment Court of New South Wales CITATION: Halloran and Sealark Pty Ltd and Ors v Minister Administering National Parks and Wildlife Act 1974 [1999] NSWLEC 268
(1933) 50 CLR 317
(1998) 45 NSWLR 639
(1982) 158 CLR 327
(1998) 192 CLR 226
(1990) 170 CLR 306
(1983) 152 CLR 406
(1967) 116 CLR 344
(1931) 45 CLR 282
(1922) 30 CLR 216
(1976) 133 CLR 671
(1997) 41 NSWLR 151