In the matter of Purkiss [1999] VSC 386 (14 October 1999)

17. Christopher Samuel Walton, the son and executor of the estate of the deceased died on 15 March 1939. Pursuant to the terms of the will of Martha Walton a life interest in the property was created in favour of her three daughters, Eva Jane Walton, Orwell May Johnson and Violet Daphne Bowden. Eva Jane Walton died on 26 March 1942, Orwell May Johnson died on 26 September 1956 and Violet Daphne Bowden died on 20 October 1984. The latter daughter lived in the house previously erected on the property until her death in 1984.

20. The plaintiff and her husband set about purchasing the interests in remainder of each of the five sons of Martha Walton deceased from about 1972. I was not informed why this course was embarked upon but presumably it was for investment purposes. In any event the reason is not relevant. On 13 December 1972 the plaintiff and her husband purchased the one-fifth residuary share in remainder held by each of Herbert Henry Walton and Horace Lewis Walton, both being sons of the deceased. On 13 December 1972, also, the plaintiff and her husband purchased the respective shares of the children of William John Walton in his one-fifth residuary share in remainder in the property. William John Walton was one of the five sons of Martha Walton deceased. He died on 11 October 1958. William John Walton left his estate to his three children who were the transferees of the interest in the property to the plaintiff and her husband.

23. Sydney Arthur Walton a son of Martha Walton deceased died intestate on 16 July 1936 and was survived by his widow and four children. The widow died intestate on 25 April 1942. On 15 February 1974 a son of Sydney Arthur Walton was granted letters of administration of the estates of both Sydney Arthur Walton and the widow. On 1 April 1974 the plaintiff and her husband purchased the one-fifth residuary share in remainder of Sydney Arthur Walton from the administrator of his estate and the administrator of the estate of his widow.

26. On 10 April 1975 the plaintiff and her husband purchased the one-fifth residuary share in remainder of Christopher Samuel Walton the son of Martha Walton deceased. Christopher Samuel Walton having died on 31 July 1947 and left his estate to his widow. The widow in turn died on 17 January 1957 and left her estate to two charities and which charities in turn transferred their residuary interest in remainder to the plaintiff and her husband. Hence, by 1975 the plaintiff and her husband had acquired the remainder interests of each of the five sons of Martha Walton deceased in the property.

29. The husband of the plaintiff, Ernest George Purkiss, died on 4 January 1976 and the executor of the estate of the husband executed a transfer of land to the plaintiff on 1 November 1992 in respect of the interest of the husband in the property.

32. The plaintiff has paid all rates and charges on the property. She has sought a vesting order from the Registrar of Titles and who has declined to make an order pending an order from this court. If this court makes an order under s.51 of the Trustee Act the Registrar of Titles would have power under s.58 of the Transfer of Land Act 1958 to record the order of this court in the Register. Section 58 of the Transfer of Land Act provides:

"58. Registrar to give effect to order vesting trust estate

(1) Whenever any person interested in land under the operation of this Act appears to any court of competent jurisdiction or to the Registrar to be a trustee of such land within the intent and meaning of any Act relating to trustees and any vesting order is made in the premises by any such court or by the Registrar (which order he is hereby empowered to make concurrently with the Court), the Registrar on making or being served with such order or an office copy thereof shall make a recording of the order in any relevant part of the Register.

(2) Until a recording is made as aforesaid no vesting order referred to in this section shall have any effect or operation in transferring or otherwise vesting the land."

39. The difficulty faced by the plaintiff is that there is no person currently able to effect a transfer of the property to the plaintiff. A related difficulty was considered by Gillard J in Marshall v Williams [1974] VicRp 70; (1974) VR 592 where purchasers under a terms contract for the sale of land had paid the full amount of the purchase moneys but were unable to obtain from the vendor, who could not be located, the duplicate Certificate of Title to or a registrable transfer of the land. The learned judge observed (at 593) that upon the full execution of the contract the registered proprietor was a bare trustee of the relevant property. The learned judge referred, also, to leading English authorities on the effect of a contract of sale of land, Holroyd v Marshall [1862] EngR 963; (1863), 10 HLC 191, 209 and Lysaght v Edwards (1876) 2 Ch. D. 499 and observed:

"In the former case at p. 209, Lord Westbury, LC, said: 'In equity it is not necessary for the alienation of property that there should be a formal deed of conveyance. A contract for valuable consideration by which it is agreed to make a present transfer of property passes at once the beneficial interest, provided the contract is one which a Court of Equity will decree specific performance. In the language of Lord Hardwicke, the vendor becomes a trustee for the vendee, subject of course to the contract being one to be specifically performed.' In the second authority, Sir George Jessel, MR put it in this way, at p. 506: 'What is the effect of a contract? It appears to me that the effect of a contract of sale has been settled for more than two centuries. Certainly it was completely settled before the time of Lord Hardwicke, who speaks of the settled doctrine of the Court as to it. What is that doctrine? It is the moment you have a valid contract for sale, the vendor becomes in equity a trustee for the purchase of the estate sold and the beneficial ownership passes to the purchaser, the vendor having a right to the purchase money, a charge or lien on the estate for the security of that purchase money and a right to retain possession of the estate until the purchase money is paid, in the absence of express contract as to the time of delivering possession. In other words, the possession of the vendor is something between what has been called a naked or bare trustee or a mere trustee, that is a person without beneficial interest, and a mortgagee who is not in equity anymore than a vendor the owner of the estate, but is in certain events entitled to what the unpaid vendor is, viz. possession of the estate and a charge upon the estate for the purchase money.'"

43. As a consequence, in Marshall v Williams it was held that after the payment of the balance of the purchase money by the purchasers the vendor/registered proprietor no longer held any beneficial interest in the property and held the legal estate as trustee for the purchasers and who were entitled to apply for a vesting order under the provisions of s.51 of the Trustee Act 1958.

46. Upon the death of Martha Walton the property became settled land as a result of the life tenancies granted under the will of Martha Walton to each of her daughters. Further, by virtue of the Settled Land Act 1915 Christopher Samuel Walton the son as executor under the will became trustee of the property. The property ceased to be subject to the settlement created by the will upon the death of the last life tenant in October 1984. Further, Christopher Samuel Walton the son and any other person thereafter ceased to be or entitled to be appointed trustee of the property. Hence, the plaintiff cannot seek relief from the court under the current applicable statute, that is, s.36 of the Settled Land Act 1958 to be appointed a trustee of the settlement under the will of Martha Walton and thereby execute a transfer of the property to herself as a purchaser for value of the interests in remainder.

49. Upon probate of the will of Martha Walton being granted to Christopher Samuel Walton the son the property vested in him in trust pursuant to s.9 of the Adminstratioin and Probate Act 1915. Accordingly, he was registered on the title of the property in his capacity as executor and remained so registered. The question arises, therefore, whether the plaintiff could prevail upon the last surviving proving executor in the chain of representation from Christopher Samuel Walton the son pursuant to the current applicable statute, the Administration and Probate Act 1958. Section 17 of the Administration and Probate Act 1958 might permit the last surviving proving executor in the chain of representation from Christopher Samuel Walton the son to stand as executor of the will of Martha Walton. Section 17(2) requires that in such circumstances the chain of representation remain unbroken and which chain is broken by an intestacy, a failure to appoint an executor or the failure to obtain probate of a will.

52. In this matter probate of the will of Christopher Samuel Walton the son was granted to his widow on 22 September 1947 in the Supreme Court of New South Wales. The widow died on 17 January 1957 and probate of her will was granted in the Supreme Court of New South Wales to a trustee company that no longer exists (but presumably has a successor in title). The plaintiff has not provided evidence concerning the grant of probate of the will of the widow of Christopher Samuel Walton the son. Nevertheless, I can be satisfied in the prevailing circumstances of the history of the property that whilst it might be argued that the plaintiff could seek to have the executor of the will of the widow of Christopher Samuel Walton the son stand as executor of the will and trustee of the estate of Martha Walton and thereby the property it would be a course that is cumbersome and fraught with continuing uncertainty. The plaintiff is herself now elderly and in my view it is desirable that the uncertain status of the property ought be resolved by way of the most expeditious course. In my view s.51(2)(o) provides such a course.

55. When contrasted with s.17 of the Administration and Probate Act 1958, s.51 of the Trustee Act provides a more convenient solution to the problem at hand. The scheme of the vesting provisions of the Trustee Act is to enable the court to make a vesting order to overcome difficulties that arise in the circumstances listed in s.51(2). The underlying purpose of the vesting provisions must be to ensure that a trust can achieve the purpose for which it was created and that those persons entitled to an interest pursuant to or as a result of a trust can receive the benefit or interest to which they are so entitled.

58. The circumstances of the present matter fall readily within the ambit of circumstances contemplated by s.51(2)(o) of the Trustee Act. In essence, the relevant circumstances are that the property was held on trust by Christopher Samuel Walton the son who has since died and there is no other person reasonably available to execute a transfer or be appointed as trustee in his stead. The plaintiff has demonstrated that she is entitled to the beneficial interest in the property to the exclusion of all other persons. It is expedient, therefore, to make a vesting order. Section 51(2)(o) of the Trustee Act is a "catch-all" provision. In my view s.51(2)(o) of the Trustee Act is a provision that is intended to overcome circumstances where a transaction or transfer cannot be effected and it is necessary that an order be made to remedy an otherwise uncertain and unjust set of circumstances.

61. 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."

65. As observed by the authors Ford and Lee in Principles of the Law of Trust, the general approach of the courts to an application for a vesting order will depend: "To some extent on the propriety of the case before it, the assiduity with which the evidence, including any documentary evidence has been assembled and the need for the relief sought". Analogous circumstances were considered by Cussen ACJ in In re Jenkin [1932] VicLawRp 44; (1932) VLR 314. In that matter three persons constituted the tenant for life of settled land and with the consent of the trustee sold the land on a terms contract. Two of the persons constituting the tenant for life died and when the time came for conveyance of the land the persons then constituting the tenants for life were numerous and in part undetermined. The court on the application of the survivor of the original vendors made an order giving leave to the trustee of the settlement with the consent of the applicant to convey the land in accordance with the contract. It was submitted on behalf of the applicant that by virtue of the combined effect of the provisions of the Settled Land Act 1928 and the Trustee Act 1928 the court ought make the orders it ultimately did.

68. Section 52(4) of the Trustee Act provides that a vesting order is founded on an allegation of the existence of certain matters and is deemed to be conclusive evidence of the matters so alleged. Obviously the policy or purpose underlying the provision is that if it were otherwise and a vesting order was held to be invalid on the basis that the court made an order based upon an erroneous belief difficulties would arise in relation to any transaction entered into after and as a consequence of the vesting order such as a transfer of land entered into in reliance upon such vesting order. As a consequence, the court insists upon clear and satisfactory evidence of the factual basis upon which the vesting order is sought: Re Hayward's Settlement [1884] VicLawRp 6; (1884) 10 VLR (Eq) 38.

71. I am satisfied in the present matter that the plaintiff presents a proper case for the making of a vesting order based upon thoroughly assembled documentary evidence. Furthermore, I am satisfied that the plaintiff has demonstrated not only the need for the relief sought by her, but in particular, that an order by the court under s.51 of the Trustee Act is a step of last resort, the plaintiff having no other ordinary conveyancing procedure available to her.

74. The remaining matter to be considered is whether or not there was a necessary defendant who ought have been joined to the proceeding. The only defendant would have been the Registrar of Titles. The purpose for so joining the Registrar would be merely for the purposes of form and regularity. It has been held that where the joining of the Registrar of Titles as a party to an application for a vesting order was only for the purpose of giving a "spurious appearance of regularity to the proceedings" such joinder is unnecessary: Chang v Registrar of Titles (1976) 137 CLR 117 at 188; see also Ex parte CRA Exploration Pty Ltd (1983) Qd. R. 310. I consider that the same approach should be adopted in this proceeding.

77. In light of these matters I consider it is appropriate that orders be made as sought by the plaintiff pursuant to s.51(2) of the Trustee Act that the freehold and beneficial interest in the property is vested in the plaintiff absolutely.