Court of Appeal (Qld)|2002-06-28|Before: McMurdo P, Davies JA and Atkinson JSeparate reasons, for judgment of each member of the Court, McMurdo P and Atkinson J concurring, as to the order made, Davies JA dissenting
McMurdo P, Davies JA and Atkinson JSeparate reasons, for judgment of each member of the Court, McMurdo P and Atkinson J concurring, as to the order made
Catchwords
CONVEYANCING - LAND TITLES UNDER THE TORRENS SYSTEM - INDEFEASIBILITY OF
TITLE: CERTIFICATE AS EVIDENCE - EXCEPTIONS - GENERALLY
- where the second
respondents sold a piece of land to the first respondent - where purchase price
Source
Original judgment source is linked above.
Catchwords
CONVEYANCING - LAND TITLES UNDER THE TORRENS SYSTEM - INDEFEASIBILITY OFTITLE: CERTIFICATE AS EVIDENCE - EXCEPTIONS - GENERALLY- where the secondrespondents sold a piece of land to the first respondent - where purchase pricepaid - where the second respondentssubsequently sold the piece of land to theapplicant - where the applicant acquired its interest in the land with knowledgethatthe land had been sold to the first respondent - whether the applicant hasindefeasible title of the land in accordance with s 184 of the Land TitleAct 1994 (Qld) - whether the knowledge of the applicant was sufficient togive rise to an "equity" within the meaning of the exception toindefeasibilitycontained in s 185(1)(a) of the Land Title ActCONVEYANCING -LAND TITLES UNDER THE TORRENS SYSTEM - INDEFEASIBILITY OF TITLE: CERTIFICATE ASEVIDENCE - EXCEPTIONS - GENERALLY- whether a cause of action based on the firstlimb of the Rule in Barnes v Addy is a sufficient equity to overcomeindefeasibility - whether there must be dishonesty to overcome
indefeasibilityCONVEYANCING - LAND TITLES UNDER THE TORRENS SYSTEM -
TRUSTS, EQUITIES AND UNREGISTERED INSTRUMENTS AND INTERESTS - EQUITABLE ESTATES
AND INTERESTS - where the applicant acquired its registered title with knowledge
that the land had been sold to the first respondent
- whether the applicant held
its registered title subject to a constructive trust in accordance with the
first limb of the Rule in
Barnes v AddyEQUITY - TRUSTS AND
TRUSTEES - CONSTITUTION AND CLASSIFICATION OF TRUSTS GENERALLY - CLASSIFICATION
OF TRUSTS IN GENERAL - IMPLIED TRUSTS - RESULTING TRUSTS - WHETHER INTENTION
PRESUMED - WHEN ARISING - OTHER CASES - where the second respondents sold a
piece of land to the first respondent - where purchase
price paid - whether the
second respondents held the land on trust for the first respondentEQUITY
- TRUSTS AND TRUSTEES - FOLLOWING TRUST PROPERTY - IN GENERAL - where applicant
acquired its registered title with knowledge
the land had been sold to the first
respondent - whether knowledge pleaded was sufficient to sustain an action under
the first limb
of the Rule in Barnes v Addy - whether material that the
trust was a resulting trustLand Title Act 1994 (Qld), s 184, s
185(1)(a)
Baden Delvaux & Lecuit v Sociéte Générale pour
Favoriser le Développement du Commerce et de l'Industrie
en France SA
[1992] 4 All ER 161, appliedBahr v Nicolay [ No 2] [1988] HCA 16
(1988) 164 CLR
604, considered
Bank of South Australia Ltd v Ferguson [1998] HCA 12
(1998) 192 CLR 248,
consideredBarnes v Addy (1874) LR 9 Ch App 244,
appliedBreskvar v Wall (1971) 126 CLR 376, considered
Clark v Raymor (Brisbane) Pty Limited [No 2] [1982] QdR 790,
considered
Consul Development Pty Ltd v DPC Estates [1975] HCA 8
(1975) 132 CLR 373,
discussedDoneley v Doneley [1998] 1 QdR 602, discussed
Doneley v Morris [2001] QSC 90
SC No 304 of 2001, 4 April
2001, considered
Goodwin v Gilbert [2000] QSC 309
SC No 5720 of 2000, 11 September
2000, considered
Hancock Family Memorial Foundation Ltd v Porteous [1999] WASC 55
(1999) 151 FLR
191, applied
International Sales and Agencies Ltd v Marcus [1982] 3 All ER 551,
considered
Kern Corporation v Walter Reid [1987] HCA 20
(1987) 163 CLR 164, considered
Koorootang Nominees Pty Ltd v Australia and New Zealand Banking Group
Ltd [1998] 3 VR 16, applied
Macquarie Bank Ltd v Sixty-Fourth Throne Pty Ltd [1998] 3 VR
133, not followed
McPhee v Zarb [2002] QSC 4
SC No 6277 of 2001, 8 January
2002, considered
Royal Brunei Airlines Sdn Bhd v Tan Kok Ming [1995] UKPC 4
[1995] 2 AC 378,
considered
US Surgical Corp v Hospital Products [1983] 2 NSWLR 157,
considered
Judgment (12 paragraphs)
[1]
CONVEYANCING - LAND TITLES UNDER THE TORRENS SYSTEM - INDEFEASIBILITY OF TITLE: CERTIFICATE AS EVIDENCE - EXCEPTIONS - GENERALLY - where the second respondents sold a piece of land to the first respondent - where purchase price paid - where the second respondents subsequently sold the piece of land to the applicant - where the applicant acquired its interest in the land with knowledge that the land had been sold to the first respondent - whether the applicant has indefeasible title of the land in accordance with s 184 of the Land Title Act1994 (Qld) - whether the knowledge of the applicant was sufficient to give rise to an "equity" within the meaning of the exception to indefeasibility contained in s 185(1)(a) of the Land Title Act
[2]
CONVEYANCING - LAND TITLES UNDER THE TORRENS SYSTEM - INDEFEASIBILITY OF TITLE: CERTIFICATE AS EVIDENCE - EXCEPTIONS - GENERALLY - whether a cause of action based on the first limb of the Rule in Barnes v Addy is a sufficient equity to overcome indefeasibility - whether there must be dishonesty to overcome indefeasibility
[3]
CONVEYANCING - LAND TITLES UNDER THE TORRENS SYSTEM - TRUSTS, EQUITIES AND UNREGISTERED INSTRUMENTS AND INTERESTS - EQUITABLE ESTATES AND INTERESTS - where the applicant acquired its registered title with knowledge that the land had been sold to the first respondent - whether the applicant held its registered title subject to a constructive trust in accordance with the first limb of the Rule in Barnes v Addy
[4]
EQUITY - TRUSTS AND TRUSTEES - CONSTITUTION AND CLASSIFICATION OF TRUSTS GENERALLY - CLASSIFICATION OF TRUSTS IN GENERAL - IMPLIED TRUSTS - RESULTING TRUSTS - WHETHER INTENTION PRESUMED - WHEN ARISING - OTHER CASES - where the second respondents sold a piece of land to the first respondent - where purchase price paid - whether the second respondents held the land on trust for the first respondent
[5]
EQUITY - TRUSTS AND TRUSTEES - FOLLOWING TRUST PROPERTY - IN GENERAL - where applicant acquired its registered title with knowledge the land had been sold to the first respondent - whether knowledge pleaded was sufficient to sustain an action under the first limb of the Rule in Barnes v Addy - whether material that the trust was a resulting trust
Breskvar v Wall (1971) 126 CLR 376, considered Bunny Industries Ltd v FSW Enterprises Pty Ltd[1982] QdR 712, considered Clark v Raymor (Brisbane) Pty Limited [No 2][1982] QdR 790, considered Consul Development Pty Ltd v DPC Estates[1975] HCA 8; (1975) 132 CLR 373, discussed
[11]
Doneley v Doneley[1998] 1 QdR 602, discussed Doneley v Morris[2001] QSC 90; SC No 304 of 2001, 4 April 2001, considered Goodwin v Gilbert[2000] QSC 309; SC No 5720 of 2000, 11 September 2000, considered Hancock Family Memorial Foundation Ltd v Porteous[1999] WASC 55; (1999) 151 FLR 191, applied International Sales and Agencies Ltd v Marcus[1982] 3 All ER 551, considered Kern Corporation v Walter Reid[1987] HCA 20; (1987) 163 CLR 164, considered Koorootang Nominees Pty Ltd v Australia and New Zealand Banking Group Ltd[1998] 3 VR 16, applied Macquarie Bank Ltd v Sixty-Fourth Throne Pty Ltd[1998] 3 VR 133, not followed McPhee v Zarb[2002] QSC 4; SC No 6277 of 2001, 8 January 2002, considered Royal Brunei Airlines Sdn Bhd v Tan Kok Ming[1995] UKPC 4; , considered , considered
[12]
Hemming & Hart acting as town agents for Carvosso & Winship (Dalby) for the first respondent