//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2003] NSWSC 379
mixed. Order that the plaintiff is entitled to be registered as proprietor by transmission and in her capacity as executrix of the will of John Dawson Taylor (deceased); otherwise the summons is dismissed....
The court assumed for the hearing that John unlawfully killed his wife Eleanor and then died. Applying authority (Rasmanis) and equitable principle, the judge held that equity would prevent John profiting by survivorship and would recognise Mrs Taylor's estate as having an equitable half share held under a constructive trust. The defendant (Mrs Taylor's executrix) therefore had an equitable interest capable of supporting a caveat. However, s.74H(5)(a) and s.96 of the Real Property Act mean a s.74F caveat does not prevent an executor's s.93 transmission application being recorded, and an executor registered by transmission holds subject to equitable interests. Because the defendant had already commenced proceedings to establish her interest, the caveat was allowed to stand until those proceedings are resolved. The plaintiff was nevertheless ordered to be entitled to be registered by transmission as executrix, but the caveat remains and the plaintiff's claim to remove it was dismissed; costs were awarded to the defendant (paras 9, 11-15, 20-21).
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
1,770 words · generated 03/07/2026
No linked legislation citations have been extracted yet.
Two spouses, John Dawson Taylor and Eleanor Frances Taylor, were the registered joint tenants of Torrens land (folio identifier 210/208203) (para 2). Both died on 17 April 2002; the parties agreed, for the limited purposes of the hearing, that John intentionally and unlawfully killed Eleanor and then died later the same day (para 3). Probate of Mr Taylor's will was granted to the plaintiff (his executrix) on 30 August 2002, and probate of Mrs Taylor's will was granted to the defendant (her executrix) on 9 October 2002 (para 3).
The defendant lodged a caveat on 10 May 2002 claiming an equitable interest in the whole or, alternatively, an equitable half interest in the land arising from the alleged unlawful homicide by John (paras 2, 4-5). The plaintiff sought an order requiring withdrawal of that caveat and an order that she be registered as proprietor by transmission under s.93 of the Real Property Act 1900, as Mr Taylor's executrix (paras 1, 6).
The litigation turned on two linked legal questions. First, whether equity, applying the forfeiture rule and the authority in Rasmanis v Jurewitsch, would prevent a wrongdoer joint tenant benefitting by survivorship and therefore leave the victim's estate with an equitable half share capable of supporting a caveat (paras 7-10). Second, whether a s.74F caveat could prevent the Registrar-General from recording a s.93 transmission application by an executor, and if not, whether the plaintiff could nonetheless obtain removal of the caveat (paras 11-15). Barrett J heard the matter and delivered judgment on 2 May 2003 (header; para 1).
Two pillars supported Barrett J's reasoning.
Equity and the forfeiture rule, as applied in Rasmanis v Jurewitsch (para 9). The judge accepted the agreed assumption that the forfeiture rule applied for the purposes of the hearing (para 7). He followed the approach in Rasmanis: homicide does not effect a severance of the joint tenancy; rather, equity accommodates the forfeiture rule by denying the wrongdoer the beneficial accretion by survivorship and imposing a constructive trust requiring the wrongdoer to hold the accretion for the victim's estate (para 9). Consequently, while at law Mr Taylor became sole registered proprietor by jus accrescendi immediately before his death, in equity he held the property on constructive trust so that Mrs Taylor's estate was beneficially entitled to an undivided one half share (para 10). That equitable interest was sufficient to support the defendant's caveat (paras 10, 13).
The statutory architecture of the Real Property Act, particularly s.74H(5)(a) and s.96 (paras 11-12). Section 74H(5)(a) provides that, unless a s.74F caveat 'otherwise specifies', such a caveat does not prohibit the Registrar-General from recording a s.93 application by an executor in respect of the estate or interest of a deceased registered proprietor (para 11). Section 96 ensures that an executor registered by transmission holds the estate or interest in trust for the persons and purposes to which the estate is applicable by law, thus preserving equitable claims (para 12). Barrett J concluded that the defendant's caveat did not 'otherwise specify' so as to block recording of a s.93 transmission application; and because of s.96, registration by transmission would not defeat the defendant's asserted equitable interest (para 12). Thus the plaintiff was entitled to be registered by transmission but only subject to any equitable interest ultimately established by the defendant (para 20).
On caveat removal, the judge applied orthodox practice that a caveat will ordinarily be removed unless the caveator commences proceedings to establish the claimed interest (para 14). Because the defendant had already commenced substantive proceedings, and the hearing of those proceedings was imminent (listed for 18 July 2003), the judge concluded the caveat should stand until the substantive claim was resolved unless some strong factor in the balance of convenience required otherwise (paras 14-15, 18). The plaintiff's sale contract and its special condition did not displace that result (paras 16-19).
Before Neubacher v Good, the key authorities included Rasmanis v Jurewitsch which rejected the notion that homicide effects severance of a joint tenancy and instead imposed a constructive trust to prevent the wrongdoer benefiting by survivorship (para 9). Troja v Troja was cited for discussion of the forfeiture rule in context (para 7). The statutory position under the Real Property Act, notably ss.74F, 74H(5)(a), 93 and 96, already established that caveats do not necessarily block s.93 transmission applications and that registration by transmission is subject to equitable obligations.
Neubacher confirms and applies those principles in a concrete scenario: the court followed Rasmanis' approach to equity's treatment of a wrongdoer joint tenant's accrual by survivorship and emphasised the protective operation of ss.74H(5)(a) and 96. Practically, the decision clarifies that (1) a caveat based on an asserted constructive trust arising from an alleged unlawful killing is a caveatable interest; (2) such a caveat does not automatically prevent an executor's s.93 registration; and (3) the usual practice of preserving caveats where the caveator has commenced proceedings applies. Thus the post-Neubacher state of the law is an endorsement of the interplay between the forfeiture-rule constructive trust remedy and the Torrens registration regime's protective mechanisms for equitable interests.
Para 9 (quoting Rasmanis): "I find difficulty in the concept of severance even in equity being effected simply by the homicide. This would, as it were, add a new category of severance by homicide." Translation: Killing a co-joint-tenant does not automatically turn the joint tenancy into a tenancy in common; instead equity prevents the killer profiting, typically by treating the survivor's legal title as subject to a trust in favour of the victim's estate.
Para 10: "Mr Taylor was...entitled to be recorded as the sole registered proprietor...but...held it upon trust for himself and Mrs Taylor's estate in equal shares." Translation: Legally, John became sole registered owner by right of survivorship, but in fairness and under equity he held the land for both estates equally, so Eleanor's estate has an equitable half-share.
Para 11-12 (statutory extract and analysis): s.74H(5)(a) does not let a s.74F caveat stop a s.93 executor application being recorded; and s.96 provides that a registered executor holds subject to the appropriate trusts. Translation: The Registrar can record an executor's application even if a caveat exists; the registration does not wipe out any equitable claim that the caveator may prove in due course.
Para 13-15: If a caveator has started court proceedings to establish their claimed interest, the court will generally let the caveat remain until those proceedings are resolved. Translation: You cannot, as a matter of routine, remove a caveat where the caveator is actively suing to prove the interest asserted.
This decision is triggered when these elements are present:
In such circumstances Neubacher demonstrates the court will:
Within the judgment Barrett J explicitly follows and applies Rasmanis (para 9) and cites Troja for context on the forfeiture rule (para 7). Neubacher itself applies and clarifies the interaction between the forfeiture-rule constructive trust and the Torrens Act provisions (paras 11-12). Practitioners should treat Neubacher as a readily applicable authority at least within NSW insofar as it confirms the procedural approach to caveats premised on such constructive trusts, and the protection afforded by ss.74H(5)(a) and 96 to s.93 registrations. For subsequent citations, one should check case law databases for decisions that have applied Neubacher to comparable fact patterns, particularly where the timing of substantive proceedings and sale contracts are relevant to the balance of convenience question (paras 16-19).
Factual proof of the forfeiture rule: Barrett J expressly limited his decision to the parties' agreed assumption that the homicide was intentional and unlawful, and said he was not required to decide whether the forfeiture rule actually applied on the real facts (para 7). Where the facts are contested, the precise evidentiary threshold and manner of proving that the forfeiture rule displaces survivorship remain matters for substantive trial or further appellate clarity.
Severance by operation of law in other contexts: Rasmanis and Neubacher reject homicide as creating a new category of severance. There may be borderline scenarios, such as where civil liability, unlawful killing, or mutual conduct complicate the characterisation of the joint tenancy, that invite further judicial exploration.
Interaction with third-party purchasers between the deaths and registration: Neubacher dealt with a sale contract by the executrix and a special condition providing for rescission if registration and caveat removal did not occur within six months (paras 16-18). Different contractual arrangements, questions of purchaser knowledge, or competing equitable interests in sale proceeds (para 16) could present nuanced procedural and substantive issues not addressed in full here.
Scope of 'otherwise specifies' in s.74H(5)(a): Barrett J found the defendant's caveat did not 'otherwise specify' to prevent s.93 registration (para 12). Future disputes could test what form of caveat wording does 'otherwise specify' and thus legitimately prevent registration being recorded.
Practical administration of s.96 trusts after s.93 registration: While s.96 preserves equitable interests, questions about the practical administration of proceeds, priority of claims, and rights of executors as fiduciaries when property is registered in their favour but subject to unresolved equitable claims may require detailed directions at trial or in subsequent cases.
Conclusion: Neubacher v Good is a focused, practical ruling that reconciles the forfeiture-rule constructive trust approach with the Torrens Act protections for s.93 transmissions, preserves established practice on caveat removal when substantive proceedings are pending, and leaves open certain factual and procedural questions for substantive determination. The judgment is particularly useful for practitioners handling contested estates involving allegations of unlawful killing, caveats asserting constructive trust interests, and the interaction of those claims with Torrens registration procedures.
CITATION : Neubacher v Good [2003] NSWSC 379 HEARING DATE(S) : 01/05/03 JUDGMENT DATE : 2 May 2003 JURISDICTION: Equity Division JUDGMENT OF : Barrett J DECISION : Plaintiff entitled to be registered as proprietor by transmission as executrix. Summons otherwise dismissed.
CATCHWORDS : TORRENS SYSTEM - caveats - who may lodge - one of two joint tenants assumed to have killed other intentionally and wrongfully - assumed wrongdoer died soon after assumed victim - beneficial accrual to assumed wrongdoer precluded by forfeiture rule - undivided half share accruing held upon constructive trust for estate of assumed victim - whether caveat by executrix of assumed victim precludes registration of executrix of assumed wrongdoer as proprietor by transmission - whether caveat should be removed LEGISLATION CITED : Real Property Act, ss.74F, 74H(5)(a), 93, 96 Deputy Commissioner of Taxation v Corwest Management Pty Ltd [1978] WAR 129 Re Little; Ex parte Thorne's Bankstown Estate Ltd (1929) 29 SR (NSW) 401 CASES CITED : Re Mitchell (1902) 19 WN (NSW) 161 Rasmanis v Jurewitsch (1969) 70 SR (NSW) 407 Troja v Troja (1993) 33 NSWLR 269 PARTIES : Diana Neubacher in her capacity as representive of the estate of John Dawson Taylor (deceased) - Plaintiff Kim Lenore Good in her capacity as representative of the estate of Eleanor Frances Taylor (deceased) - Defendant FILE NUMBER(S) : SC 2380/03 COUNSEL : Mr J R Dupree - Plaintiff Mr A C Todd - Defendant SOLICITORS : L C Muriniti & Associates - Plaintiff Swaab Attorneys - Defendant
IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION
2380/03 - DIANA NEUBACHER IN HER CAPACITY AS REPRESENTATIVE OF THE ESTATE OF JOHN DAWSON TAYLOR (DECEASED) v KIM LENORE GOOD IN HER CAPACITY AS REPRESENTATIVE OF THE ESTATE OF ELEANOR FRANCES TAYLOR (DECEASED)
1 The plaintiff seeks an order requiring the defendant to deliver to her a withdrawal of caveat 85877138 which has been entered in respect of land at Rouse Hill, being the land in folio identifier, 210/208203. Mr Dupree of counsel, who appeared for the plaintiff, made it clear that the jurisdiction sought to be invoked is that conferred by s.74MA of the Real Property Act 1900. 2 The relevant folio of the register shows the registered proprietors of the land in question to be John Dawson Taylor and Eleanor Frances Taylor as joint tenants. The caveat is dated 10 May 2002 and was lodged by the defendant, Kim Lenore Good, a daughter of Mr Taylor and Mrs Taylor. The principal issue ventilated upon the hearing of the application concerns the existence and validity of the estate or interest claimed by the caveator. 3 Certain of the central facts may be briefly stated. Mrs Taylor died on 17 April 2002. Mr Taylor died at a later time on the same day. By his will, Mr Taylor appointed the plaintiff as his executrix. Probate of his will (also dated 17 April 2002) was granted to the plaintiff on 30 August 2002. The defendant is named as executrix in Mrs Taylor's will. A grant of probate was made to her on 9 October 2002. It was agreed by the parties, without admissions by either of them, that the court should assume, for the purposes of the present application only, that Mr Taylor intentionally and unlawfully killed Mrs Taylor. 4 It is the circumstance reflected by this assumption that underlies the caveat lodged by the defendant. The estate or interest claimed by the defendant in her caveat is described in the annexure to the caveat as follows: "An equitable interest as to the whole of the land or alternatively an equitable half interest in the said land as Executrix of the Will of the late Eleanor Frances Taylor, which interest arises by reason of the unlawful homicide of the late Eleanor Frances Taylor by John Dawson Taylor, the joint tenant, subsequently deceased." 5 The estate or interest thus described is stated in the caveat to have arisen by virtue of the following facts: "On 17 April 2002, John Dawson Taylor killed the late Eleanor Frances Taylor and thereupon committed suicide, the persons having been joint tenants in respect of the subject property, thereby giving rise to the equitable interest due to the unconscionable conduct of John Dawson Taylor in the unlawful homicide of the deceased." 6 The plaintiff proposes to lodge in respect of the property an application for registration by transmission, asserting her status as executrix of the will of Mr Taylor. The form of this application is in evidence. The proposed application is an application under s.93 of the Real Property Act by the plaintiff as executrix. Because of the existence of the defendant's caveat, the plaintiff apprehends that the transmission application will not be granted by the Registrar General. 7 The assumption concerning Mrs Taylor's death on the basis of which the application was heard brings into play the so called "forfeiture rule", that is, the principle of law or public policy said to be traceable to the time of Justinian (see the discussion by Mahoney JA in Troja v Troja (1993) 33 NSWLR 269) that a person may not benefit from his or her criminal act. I am not called upon to decide whether, on the facts, that rule applies here. The assumption agreed for the strictly limited purposes of this application causes me to proceed on the footing that it does apply in relation to the death of Mrs Taylor, insofar as that death may have caused benefit to accrue to Mr Taylor. 8 In the absence of the assumed character of Mrs Taylor's death, there would have been no doubt that, upon that death, Mrs Taylor's interest as one of two joint tenants accrued automatically to Mr Taylor by virtue of his jus accrescendi or right of survivorship. The submission made on behalf of the plaintiff is, in effect, that that position pertains even though, on the assumption as to the nature of Mrs Taylor's death, the forfeiture rule came into play. Mr Dupree's argument was that, while the forfeiture rule might well have come into operation on the assumption that applies for the purposes of the proceedings, it is not an operation that precludes the claim of the plaintiff to be registered as proprietor by transmission or to deal with the property in her fiduciary capacity; and that any estate or interest that might, in the circumstances, have accrued to the defendant as executor of the will of Mrs Taylor would not be of such a nature as to justify a caveat forbidding recognition of the transmission application or any such dealing. 9 The operation of the forfeiture rule in circumstances of joint tenancy was examined by Jacobs JA (with whom Wallace P and Mason JA agreed) in Rasmanis v Jurewitsch (1969) 70 SR (NSW) 407. His Honour rejected the possibility that the felonious slaying of one joint tenant by the other had effected a severance of the joint tenancy: "I find difficulty in the concept of severance even in equity being effected simply by the homicide. This would, as it were, add a new category of severance by homicide."
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.
Last Modified: 05/07/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Neubacher
Good
(1993) 33 NSWLR 269
Order that the plaintiff is entitled to be registered as proprietor by transmission and in her capacity as executrix of the will of John Dawson Taylor (deceased); otherwise the summons is dismissed. The defendant's caveat is not removed and is to stand pending determination of the defendant's separate proceedings. Plaintiff ordered to pay defendant's costs (paras 20-21).