Two parcels of land were in issue in that case. The wrongdoer and the victim held one parcel as joint tenants. The second parcel was held by those two persons and a third as joint tenants. In relation to the first parcel (the one held in circumstances corresponding with those assumed in this case), the Court of Appeal held that, in order to accommodate and give effect to the forfeiture rule, equity must deny the wrongdoer the benefit of the accretion that would, in the ordinary course, flow to him by survivorship and that this should be done by recognising or imposing a constructive trust requiring the wrongdoer to hold the accretion upon trust for the estate of the victim.
10 That authority leads to the result in this case, at least according to the agreed assumption, that, immediately before his death, Mr Taylor was recognised as entitled to be the sole registered proprietor (that being the effect of his right of survivorship) but that, while that position prevailed at law, the benefit of the enlargement did not accrue to him beneficially and the interest of Mrs Taylor's estate, pursuant to the constructive trust, prevailed in equity. In summary, therefore, Mr Taylor was, immediately before his death, entitled to be recorded as the sole registered proprietor of the land but was regarded in equity as holding it upon trust for himself and Mrs Taylor's estate in equal shares. Mrs Taylor's estate must accordingly be regarded as the owner in equity of an undivided one half share in the land.
11 But where, one must ask, does that leave the plaintiff's application to be registered as proprietor by transmission? Section 74H(5)(a) of the Real Property Act is in the following terms:
"Except in so far as it otherwise specifies, a caveat lodged under section 74F to protect a particular legal or equitable estate or interest in land, or a particular right arising out of a restrictive covenant, does not prohibit the Registrar-General from recording in the Register with respect to the same land:
(a) an application made under section 93 by an executor, administrator or trustee in respect of the estate or interest of a deceased registered proprietor."
This section says in clear terms that a s.74F caveat, as the defendant's is, does not prohibit the Registrar General from recording in the register an application made under s.93 by an executor in respect of the estate or interest of a deceased registered proprietor, unless the caveat itself otherwise specifies.
12 The defendant's caveat is expressed to prohibit "the recording in the register of any dealing other than a plan affecting the estate or interest claimed by the caveator and set out in schedule 1". Given these terms, the caveat does not seem to me to be one which "otherwise specifies" as mentioned in s.74H(5). It may be that a s.93 transmission application is a "dealing" as defined by the Act, but even assuming that it is, it cannot be regarded as one "affecting" the estate or interest the defendant claims in the caveat. This is because of s.96 which deals specifically with the position of a "fiduciary" (which must include an executor) registered as proprietor pursuant to s.93. The effect of s.96 is that an executor registered by transmission holds the estate or interest in respect of which the s.93 registration is effected "in trust for the persons for whom and purposes for which that estate or interest is applicable by law". Section 93 registration therefore cannot impinge upon or affect the interest claimed by the present defendant in her caveat. Because of s.96, that interest (if it exists), being an equitable interest under a constructive trust, will be accommodated and preserved in the defendant despite the plaintiff's becoming registered as proprietor and therefore will not be affected by her becoming proprietor.
13 Subject to the position just described in relation to the transmission application, however, the consequences of the forfeiture rule, as already outlined, must mean that, on the assumption with which I am dealing, the defendant, as Mrs Taylor's executrix, has an equitable interest in the land. The plaintiff is taken to hold it upon trust for the estate of Mr Taylor as to one undivided half share and for the estate of Mrs Taylor as to one undivided half share, so that the defendant, as the legal personal representative of Mrs Taylor, rightly asserts the interest thus attributable to Mrs Taylor's estate. That interest is clearly capable of supporting the defendant's caveat, with the result that, if any order to remove the caveat is to be made, it must be referable to factors other than the non-existence of a caveatable interest. I am working here on the agreed assumption as to a key part of the facts. The correct characterisation of the position is therefore that the asserted estate or interest of the caveator will be established if and when that assumption is proved to be warranted and that in the meantime the caveat should be regarded as one that may have substance.
14 In such a case, the approach taken by the court would normally be to order removal of the caveat unless the caveator takes proceedings to establish and enforce the claimed interest, since it is for the person asserting the interest to discharge the burden of establishing its existence: see Re Mitchell (1902) 19 WN (NSW) 161; Re Little; Ex parte Thorne's Bankstown Estate Ltd (1929) 29 SR (NSW) 401; Deputy Commissioner of Taxation v Corwest Management Pty Ltd [1978] WAR 129. In this instance, however, the defendant has already commenced such proceedings. She did so by a statement of claim filed on 26 November 2002 in proceedings 3359/02. I am informed by counsel that that matter is listed for hearing by Gzell J on 18 July 2003.
15 In these circumstances, I consider the correct outcome to be that the caveat should be allowed to stand pending determination of the proceedings instituted by the caveator, unless some particularly strong factor going to the balance of convenience indicates to the contrary. The caveator's suit will determine whether the asserted estate or interest in truth exists and in the ordinary course the status quo should continue until that determination is made.
16 The plaintiff points to one factor which, it is submitted, should tilt the balance of convenience in her favour. On 9 April 2003, she entered into a contract for the sale of the property for a price of $2.4 million under which a deposit of $120,000 has been paid. The plaintiff says that she should be allowed to complete the sale and, if the defendant does have any interest, that interest can be regarded as subsisting in the proceeds of sale. The defendant's position, however, is that she has had no opportunity to examine the sale and in particular the adequacy of the price. There is also a concern that proceeds of sale may be applied to the detriment of Mrs Taylor's estate in meeting separate debts of Mr Taylor.
17 It is significant that the contract, which is in evidence, contains a special condition disclosing the existence and nature of the separate proceedings brought by the defendant. The special condition provides for a period of six months from the date of contract, that is, until 9 October 2003, for the present plaintiff, as vendor, to obtain registration by transmission and removal of the defendant's caveat. If those two objectives are achieved within that period, completion must take place within the following 21 days. If both the objectives are not achieved within the six months, either party may rescind.
18 The defendant's separate suit is, as I have said, expected to be heard by Gzell J on 18 July 2003. It is therefore highly likely that the defendant's claim in respect of the property will have been resolved one way or the other before 9 October 2003 so that, depending on the result, the contract may take its preordained course to either completion or rescission. The existence of the contract therefore does not affect the balance of convenience in any way that would indicate a need to remove the caveat.
19 It was also submitted on behalf of the plaintiff that all parties will be better off if the sale is completed promptly, so that the proceeds can be invested to advantage. Against that, however, there is the point that the property is apparently vacant and so might presumably be let. Also, any advantage to which the plaintiff points in this respect cannot outweigh the need to see the status quo preserved pending resolution of the position by means of the separate proceedings already in train. The plaintiff has not made out her case for an order for the removal of the defendant's caveat.
20 I have not so far mentioned the first claim in the plaintiff's summons, being a claim for an order that the plaintiff is entitled to be registered as the proprietor of the property. In view of what I have said about ss.93 and 74H(5)(a) and the terms of the prohibition in the defendant's caveat, I am satisfied that the caveat does not operate as a barrier to registration of the plaintiff by transmission in her capacity as Mr Taylor's executrix and that she is entitled to be registered accordingly as the proprietor of the property - although she will, of course, hold it in a purely fiduciary capacity subject to such interest by way of constructive trust as the defendant may ultimately establish.
21 In the result, therefore, I make order 1 in the summons but with the words "by transmission and in her capacity as executrix of the will of John Dawson Taylor (deceased)" inserted after the word "registered". Otherwise, the summons is dismissed. Since the argument before me was concerned wholly with the maintaining of the defendant's caveat, as to which she has been successful, the plaintiff is ordered to pay the defendant's costs.