| Weak v eid of

| Weak v eid of - [1937] HCA 29 - HCA 1937 case summary — Zoe

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judgment referred to as Mr. Sellar, was at the date of his death at the age of 71 a bachelor and a retired grazier. He had come with two of his brothers to live at Manly near Sydney some time before 1918. Of these two brothers one, Charles Craig Sellar, survives and was a witness in this suit. The other brother, Walter Sellar, lived in the same house with Mr. Sellar for some years and died in the year 1923. The defendant had been in the employ of the two now deceased brothers for some two years prior to Walter Sellar's death, and she remained in the employ of Mr. Sellar until the day of his death. During the two years above-mentioned skilled nurses were employed in the interests of _ Walter Sellar, but from a date commencing shortly after Walter Sellar's death until a few years before the death of Mr. Sellar the only permanent residents in the house were Mr. Sellar and the defendant. During this period Mr. Sellar's health was fairly good and he did not require the services of a doctor until about a year before he underwent an operation, in 1933. Shortly before Mr. Sellar's death a nephew of the defendant, a youth named Robert Newie, came to live in his house. This nephew had been accustomed to visit the defendant at Mr. Sellar's house for some time before _ 1932. In 1932 he lost his position as a motor cycle mechanic and _ went to live at Mr. Sellar's house. There, for doing some outside work, he received at first 30s. per week and then 35s. per week besides numerous presents including a number of clocks. From 1918 onwards until the death of Mr. Sellar a frequent visitor to the house was Arthur Napier Fuller. He was a law stationer. He lived near Mr. Sellar's house at Manly and he first came to the house as the guest of Mr. Walter Sellar. He was an acquaintance of the defendant before she jomed the Sellars' household but he says that he did not obtain her position for her. After Walter Sellar's death he continued to visit the house. His visits were paid frequently to the defendant and for some time he had a key of the house, but he usually saw Wr. Sellar and sometimes visited him. He appears to have discussed with him books and chess, to have played billiards with him and to have received from him a number of presents, of which the most ortant was a Willys Knight motor car valued at £600. For

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any legal interest to the donee, and the circumstance which enabled the legal interest to be obtained was the efficacy of a power as an authority after the death of the donor because he had expressed a desire that it should be so efficacious. The donee under a voluntary transfer of land under the Real Property Act has a right to obtain registration notwithstanding any repentance on the part of the donor. The scheme of the Act is that secs. 36 (2) and 41 (2) recognize the transferee as perhaps the most suitable person to make application for registration, and while sec. 121 is restricted to registered proprie- tors, see. 97 gives a competent remedy to transferees. The remedy shown in Perpetual Executors and Trustees Association of Australia Lid. vy. Hosken (1) was available until 1928 when sec. 97 was amended. The Act does not interfere generally with transactions 'inter partes. There is no evidence that the deceased was aware that registration of the transfer was necessary in order to effectuate the gift. An alteration made in a document affords no relief to a person unless the alteration prejudicially affects that person; if an alteration does prejudicially affect a person, then the other person is debarred from bringing a suit against the person so prejudiced, but the document is not void (Halsbury's Laws of England, 2nd ed., vol. 10, pp. 227, 228, par. 287; pp. 231, 232, par. 292; pp. 249, 250, par. 313). If the memorandum of transfer were registered in the form in which the deceased gave it, then under the section of the Act, the appellant would still take the land subject to the mortgage. The provisions of sec. 46 of the Act as to notation of encumbrances are merely directory. The object of those provisions is to ensure that a transferee shall have warning of the existence of encumbrances. The rules with relation to the alteration of documents apparently relate to documents altered inter partes. The memorandum of transfer was not a document inter partes. Upon execution and acceptance there was no further obligation on either of the parties. The alteration was not such as to render the document capable of being registered.

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General for registration. It may be observed that in Anning v. Anning (1) where a person executed a deed of gift relating to chattels in possession and died soon afterwards, it was clear that the assign- ment of the chattels in possession fell under the Bills of Sale Act 1891 of Queensland so that it was ineffectual unless registered. But Isaacs J. definitely held (2), and semble per Griffith C.J. (3), that the deed could be made effectual by registration after the death of the assignee as to such of the chattels as remained in specie. The deed of gift also covered a mortgage debt secured on land in New South Wales which could only be transferred by the method prescribed by the Real Property Act 1900 (N.S.W.). It was held that the deed, not being in the prescribed form, was not effectual to convey the property in the mortgage debt, but it was not suggested in any of the judgments of the court that the death of the transferor determined some authority which had to continue to exist before a transfer could be registered. The practice of the profession, I understand, has never been based upon the view that, whenever a man signs a transfer and dies before the transfer is registered, it is necessary to secure re-execution of the transfer by his personal representatives. In Tierney v. Halfpenny (4), Molesworth J. held that an unregistered voluntary transfer could be effectively registered after the death of the transferor. (See also National Trustees, Executors and Agency Co. of Australasia Ltd. v. Boyd (5).) The principle enunciated by Knox C.J., Rich and Dizon JJ. in Currey v. Federal _ Building Society (6) is applicable to this case: the defendant's es tight to be registered as proprietor arises from the fact that she is __ the transferee of the registered proprietor under a proper instrument, and it depends upon nothing else. This right might be intercepted by extrinsic facts if they showed that the transfer was an impropriety, but it is nothing but a confusion to treat facts which negative impropriety as part of the transferee's title to registration." Thus if the allegations of incapacity or undue influence had been estab- lished or if some other circumstance were shown to exist, the _ defendant could be prevented from registering the instrument which she has presented for registration, but apart from such considerations

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parties must have contemplated that it was to be registered, and the insertion of the words in question was necessary to procure the registration" (1). See also MeGlone v. Registrar of Tiles (2) and Perkins v. Registrar of Titles (3). In these cases the registrar refused to register a dealing unless the documents submitted for registration were altered by inserting references to certain prior encumbrances. It is very plainly apparent in McGlone's Case (2) that the registrar required McGlone, the transferee who presented the transfer for registration, and not the transferor, to indorse the prior encumbrances upon it. In Perkins' Case (3) the registrar refused to register the transfer without himself indorsing a reference to a judgment upon it. The court held that the registrar was right in both cases. It was therefore assumed in those cases that either the transferee or the registrar was entitled to alter the docu- ment, not so as to alter its legal effect, but in order to make apparent on its face the true legal effect. It was not suggested in either case that it was necessary for the transferor to make or agree in the making of such an alteration. These authorities strongly support, in my opinion, the proposition that the alteration made in this case was not a material alteration which avoided the document. If, however, contrary to the view that I have expressed and to Barker v. Weld (4), the insertion of the reference to the mortgage did alter the legal effect of the document, the alteration was for the benefit of the transferor (or his estate). Such an alteration was held not to be a material alteration in Darcy and Sharpes' Case (5) decided in 1584, at a time when rules with respect to the effect of altering a document were very strict indeed. In Aldous vy. Cornwell (6) a promissory note which expressed no time for payment was altered by the addition, without the assent of the maker, of the words "on demand." The alteration only expressed the effect of the note as it originally stood. The court said: "We are certainly not disposed to lay it down as a rule of law that the addition of words which cannot possibly prejudice anyone, destroys the validity - of the note" (7). J

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48 contains a special provision for dealing with the case of the transfer of an estate of freehold in possession in part of the land mentioned in any grant or certificate of title. It is provided that the transferor shall deliver up the grant or certificate of title of the said land, and that the Registrar-General shall after registering the transfer enter on the grant or certificate of title a memorandum cancelling the same partially and setting forth the particulars of the transfer. In such a case the section requires the transferor to deliver up the certificate of title. This provision would seem to be unnecessary if it were always essential to produce the certificate of title before a transfer - could be registered. But sec. 38 (1), on the other hand, requires the Registrar-General to enter dealings on the duplicate certificate of title. The same section, however, also provides that he may dispense with the production of the duplicate certificate if the party dealing makes a statutory declaration that the certificate has not been deposited as security for any loan. If the Commonwealth Bank of Australia, which has possession of the certificate of title, is entitled to retain it as part of its security, this provision would appear not to be applicable. But sec. 12 (a) provides machinery whereby a transferee who is not in possession of a certificate of title may take steps to secure its production so that he may obtain registration. The section provides that the Registrar-General may require, infer alia, the mortgagee of land in respect of which a transfer or other dealing is about to be transacted to produce the certificate of title if it is in his possession. The Registrar-General may issue a summons to such a mortgagee to appear and give any explanation respecting the land or the instruments affecting the title to the land. In this case if the Commonwealth Bank of Australia should refuse to pr the certificate of title so that the transfer may be registered, Registrar-General can proceed under sec. 12 (a) and may hear

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sec. 12 (6) any explanation that the bank has to give for declining to facilitate the registration of the transaction, i.e., the registration of the defendant as proprietor of the land (now, after Sellar's death) in fee simple subject to the mortgage to the bank. The registration of such a transaction cannot in any manner affect the interest of the bank and it is to be presumed that, if all allegations of incapacity, undue influence, and other invalidating circumstances were set on one side by the judgment of this court, the Registrar- General would exercise his powers to procure the registration of the transfer so as to give effect to an honest and valid transaction. In requiring the Registrar-General to exercise his powers for this purpose the defendant would not be acting inconsistently with the tule that the court will not give any assistance for the purpose of completing an imperfect gift - as was suggested by Herdman J. in Scoones v. Galvin (1). The rule is that, if the gift is imperfect, in the absence of consideration the court will not aid the donee as against the donor (Anning v. Anning (2)). "The court will not compel the intending donor, or those claiming under him, to complete " an imperfect gift (Halsbury's Laws of England, 2nd ed., vol. 15, p. 738, and cases there cited). In the present case the defendant does not seek to compel the donor's executor to do anything. The Tule mentioned does not apply to prevent a donee from compelling third persons to recognize his rights. Otherwise a company could on this ground refuse to register any voluntary transfer of shares, _ and a depositary of chattels which had been made the subject of a ; gift by deed or by proper transfer of a document of title could retain ' the chattels as against the donee. If, in this case, the Registrar- _ General were to refuse to register the transfer and were to force the defendant into legal proceedings against him or against the bank, the rule mentioned would not constitute any obstacle to her success in those proceedings. For these reasons I am of opinion that the appeal should be

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or the law stationer, as were found in the authorities which he men- tioned dealing with the relations of influence. His Honour quoted from the judgment of Lindley LJ. in Alleard vy. Skinner (1) the statement that courts of equity have never set aside gifts on the ground of the folly, imprudence, or want of foresight on the part of the donors, and that the doctrine of undue influence is founded on the principle that it is right to save people from being victimized. He said that it was evident that the opinion of the deceased's medical attendant was that, during the last three days of his life, the deceased was in such a condition that anyone could have obtained from him anything he asked. His Honour continued: 'But bearing in mind the extract from the judgment of Lindley L.J., quoted above, and also that I am not entitled to set aside a gift on the ground that I do not trust either of the two people who are fully aware of the circumstances under which it was made and of whom one is the donee, I hold that the plaintiff has not discharged the onus of showing that this transfer was obtained by the undue influence of the defendant or of anyone acting on her behalf." But the learned judge said that he believed that the appellant and the law stationer acted in co-operation in relation to the gift and that, if the onus of showing that the gift was that of an independent donor had rested on their evidence, he did not think that he would hold that it was discharged. Notwith- standing the evidence of the bank manager, the circumstances of the transaction appear to me to make its propriety very doubtful. Although it is, no doubt, quite true that, up to his last illness, the appellant stood in no relation of influence to the deceased, I see nothing inconsistent with principle in treating the dependence of a dying man on the woman in charge of him as sufficient to place upon her the burden of establishing the righteousness of a large gift made to her within twenty-six hours of death. We haye recently discussed 4

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Griffith C.J. in Anning v. Anning (1) had expressed an opinion that it would be enough to execute the transfer and deliver it to the donee. The Supreme Court of Alberta had decided that a donor who first handed to the donee's father for registration a transfer completed and accompanied by the certificate of title, and then, before the transfer could be registered, repossessed himself of the documents and destroyed the transfer, had made no more than an imperfect gift which he had effectually revoked before completion (Smith v. Smith (2)). The Privy Council in Macedo v. Stroud (3) had held that a voluntary transfer which the donor executing it did not present or hand to the donee for registration conferred no estate or interest either at law or in equity and amounted to no more than an imperfect gift which the donee could not enforce against the donor's executors. In Wadsworth v. Wadsworth (4) Myers C.J. had decided that an intending donor, who had executed a transfer in favour of the intended donee but had not delivered it to her, was entitled against the donee into whose hands it had come without his authority to an order for delivery up of the transfer and for the removal of a caveat lodged by her. In O'Regan v. Commissioner of Stamp Duties (5) the Supreme Court of Queens- land had been called upon to decide for the purposes of succession duty the question as at what precise time a completed transaction by way of gift first amounted to a "disposition of property. . . pur- porting to operate as an immediate gift." The court decided that the _ transfers of the land before registration amounted to such a "disposition," inasmuch as they had been completed and handed _ to the solicitors for the donees to whom the certificates of title had already been delivered.

Butin Seoones v. Galvin (6), after making a valuable examination of these and other authorities, Myers C.J., Blair and Kennedy JJ. did define the conditions which must be fulfilled in order to put it beyond the donor's power to revoke an intended gift of land the Torrens system. Their Honours reached the conclusion t it is necessary for the donor to execute the transfer and deliver

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to the donee or his agent not only the transfer but also the certificate : of title. They said : - '' This, we think, must be so, because, if the donor retains possession of the certificate of title, he has not done all that is necessary for him to do, He still has to produce the certificate of title, and until he has done that he may, as we think, revoke the gift and refuse to do anything more" (1). The New Zealand Land Transfer Act 1915 contained no express provision requiring production to the registrar of the original certificate, but in practice it had always been insisted on, and, in 1895, in Ex parte Bettle (2) it had been held that the registrar was entitled to refuse registration unless the certificate was produced (per Fair J. (3)). The language quoted from the judgment of Myers ©.J., Blair and Kennedy JJ. evidently alludes to the test laid down in the well- known statement by Turner L.J. in Milroy v. Lord (4) of what was necessary to make a voluntary settlement valid and effectual: - "The settlor must have done everything which, according to the nature of the property comprised in the settlement, was necessary to be done in order to transfer the property and render the settlement binding upon him." But, in applying that test to the present question, care must be taken to keep in mind what that question exactly is. It is not whether the intending donor has divested himself of his estate or interest in the land, or has done all that lies in his legal power to do so. For obviously it was within his legal power himself to cause the immediate registration of the transfer. The question is whether by his acts he has placed the intended donee in such a position that under the statute the latter has a right to have the transfer registered, a right which the donor, or his executors, cannot defeat or impair. That delivery of the transfer to the donee or the donee's agents is a condition which must - be fulfilled before such a right will arise appears to me to be clear. It is only by the control or possession of the instrument that the ' transferee could effect registration without any liability to interfer- ence or restraint on the part of the transferor. Further, I think that the donee must obtain property in the piece of paper itself

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property in the paper could pass only by delivery (Cochrane v. Moore (1) ). If property in the transfer remained in the transferor, his power of recalling it must also remain. For he would be entitled to possession of the paper, he could refuse to present it for registra- tion and he could destroy it. But, if by delivery to the donee or someone as bailee for her, the transferor has given her property in the instrument itself, then unless some further condition is expressly or impliedly prescribed by the statute, it would appear that the instrument, assuming it to be registrable, may be registered by the transferee independently altogether of the donor and in spite of any objection on his part. Under the New Zealand legislation such a further condition appeared to be prescribed; delivery of the certificate of title was considered a necessary condition of the trans- feree's right to register. It does not, of course, follow that delivery of the certificate of title will also be a condition under the New South Wales Real Property Act. But in fact the provisions of that Act create a position which is not so very different from that which appears to obtain under the New Zealand Act. The effect of secs. 35, 37 and 38 (1) of the Real Property Act 1900 (N.S.W.) is to define registration as the entry of a memorial of a transfer or other dealing on the folium of the register book constituted by the certificate of title and to make it necessary forthwith to enter a like memorial on the duplicate certificate "' unless the Registrar-General, as herein- after provided, dispenses with the production of the same." What is thereinafter provided is that the Registrar-General may dispense with the production of an instrument for the purpose of recording the memorial thereon, but, in that case, he must notify in the register book the fact that no entry has been made in the duplicate certificate. Before exercising this power, he must obtain a statutory declaration that the certificate of title has not been deposited as security for a loan (See sec. 38 (2) and (3) ). Under sec. 12 (a) he may require 4 proprietor, mortgagee or other person interested in land in respect which a transfer or other dealing "is about to be transacted " produce a certificate of title or other instrument in the latter's possession or control affecting the land or the title thereto. It is clear that, in requiring a statutory declaration that the certificate

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The legal estate in the land could not pass to the appellant except _ by registration of the transfer, and, as she was a volunteer only, no t equitable rights passed to her by the transfer, which did not purport to be a declaration of trust. It is plain that if the registered pro- prietor of land, intending to make a gift, executes a memorandum of transfer in favour of a volunteer and retains possession of the instrument, the volunteer has no equity to compel the registered proprietor to have it registered or to obtain possession of the instrument in order to have it lodged for registration. If he gives a duly executed transfer to the donee or to someone on his behalf, _ then the question arises which was much debated, whether the gift _ is effectively made, or whether it is necessary that the donor should also give the donee the duplicate certificate of title, or enable him to obtain it, or, indeed, whether registration itself is necessary. But none of these questions arises unless the donor has taken the _ necessary preliminary step of giving the executed transfer to the donee or to someone on his behalf. In the present case the deceased did not give the transfer to the appellant. But the appellant contends that this preliminary step was accomplished when the transfer was _ given to Fuller. If he were merely the agent of the donor it is clear that his authority as agent, whether it was to hand the instru- _ ment to the appellant or to have it registered, came to an end at the death of the donor. As against this it was urged that Fuller's

position was that of a mandatory and that his authority as such to have the transfer registered did not terminate with his principal's _ death. Although the deceased had communicated to the appellant intention to make her the gift no equity or right arose in her to event the deceased from repenting of his intended bounty. The d took no irrevocable step by handing the transfer to Fuller tegistration. He was free to revoke his instructions before they e carried out. There is no basis in principle for the conclusion

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Judgment (307 paragraphs)

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