Wolfson v Registrar-General (NSW) [1934] HCA 29

Wolfson v Registrar-General (NSW) [1934] HCA 29 - HCA 1934 case summary — Zoe

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that Jacob Wolfson was entitled to an estate in fee simple in the land described in certificates of title vol. 4011, fol. 79; vol. 2857, fol. 26; and vol. 2522, fol. 202, and had become so entitled as the surviving partner pursuant to the terms of a partnership agreement dated 5th August 1926, made between Jacob Wolfson and his father Harris Wolfson, who had died in 1927. The summons refers to sec. 101 of the Act, but this seems due to some mistake. Harris Wolfson was registered as the proprietor of an estate in fee simple in an undivided moiety or half share in the lands described in the certifi- cates of title, vol. 4011, fol. 79; and vol. 2857, fol. 26, subject to the reservations and conditions (if any) contained in the Crown Grant, and subject also to the encumbrances, liens and interests notified on the certificates. Both these certificates are marked " Tenancy in Common." Harris Wolfson was also registered as the proprietor of an estate in fee simple in the land comprised in the certificate of title, vol. 2522, fol. 202, subject to similar reservations, conditions, encumbrances, liens and interests. It appeared that Jacob Wolfson and his father Harris Wolfson entered into partnership as fancy goods warehousemen and general importers, and that the assets of the partnership included the lands already mentioned. Clause 17 of the partnership agreement, already referred to, was as follows : "17. If during the continuance of the partnership either partner shall die become bankrupt or by mutual agreement retire the remain- ing partner shall take over the said business and the whole of the assets thereof and shall be absolutely entitled to the same and shall be liable for all the debts contracts and engagements thereof and in case the surviving or continuing partner shall be the said Harris Wolfson he shall pay to Rebecca Wolfson (the wife or widow of the other partner as the case may be) the sum of Thirty Pounds (£30) per week during her lifetime and also in addition pay to the other partner or his legal representatives Twenty Thousand Pounds (£20,000) without interest within five years from the date of either of the aforesaid occurrences and in case the surviving or continuing partner shall be the said Jacob Wolfson he shall pay to Dora Wolfson (the wife or widow of the other partner as the case may be) the sum of Fifteen Pounds (£15) per week during her lifetime and also in addition pay to the other partner or his legal representatives the

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The Real Property Act 1900 of New South Wales provides for transfers and transmissions. A transfer is the passing of any estate or interest in land under the Act, whether for valuable consideration or otherwise, by means of an instrument called a transfer (sec. 3, and Part VII.). A transmission is the acquirement of title to, or interest in land, consequent on the death, will, intestacy, bankruptcy, insolvency or marriage of a proprietor (sec. 3, and Part XI.). Transmission in its strictest sense is the devolution of property upon some person by operation of law, unconnected with any direct act of the party to whom the property is transmitted - as, by death, bank- ruptcy, insolvency or marriage (Chasteawneuf v. Capeyron (1) ; Holt v. Deputy Federal Commissioner of Land Tax (N.S.W.) (2)). But the Real Property Act is not quite so restricted. (See sec. 101, Part XI.) By sec. 94 it is enacted that executors or administrators or other person claiming any estate of freehold in the land of a deceased proprietor, or any person having a power of disposition over the fee simple of any such land, may apply in writing to the Registrar- General, in the form of the seventeenth schedule thereto, to be registered as the proprietor of such estate. The form in the seven- teenth schedule is described as an " Application to be registered under the Real Property Act, 1900 (section ninety-four) as proprietor by transmission." All real and personal property which any person dies seised or possessed of or entitled to in New South Wales passes to and becomes vested in his executor for all his estate and interest therein (Wills, Probate and Administration Act 1898, sec. 44). The devolution of real estate upon an executor or administrator is thus a true instance of transmission. " Any person having a power of disposition over the fee simple of any such land" is not a true instance of transmission. But the Act treats the land which is the subject of a power of disposition over the fee simple as property passing to or vested in the donee of the power. " Or other person claiming any estate of freehold in the land of a deceased proprietor." This is a true instance of transmission. Heirs at law and devisees

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the existing assets to which he would be entitled if the whole were realized and converted into money, and after all the then existing debts and liabilities of the partnership had been discharged (Lindley on Partnership, 7th ed. (1905), p. 377; 9th ed. (1924), p. 427; Pollock's Digest of the Law of Partnership, 11th ed. (1920), p. 77). Turning now to the special provisions contained in clauses 17 and 18 of the partnership agreement. A contract, it must be remembered, is not a conveyance or grant of an estate in land ; it does not operate directly on the land, but creates contractual rights and obligations. And clauses 17 and 18 of the partnership agreement are plainly matters of contract, not of conveyance or grant of land or other property taking effect as such upon the death of Harris Wolfson. In other words, no estate or interest in land is transmitted to or devolves upon Jacob Wolfson on the death of Harris Wolfson by force of these clauses. It follows that an application on the part of Jacob Wolfson to be registered as the proprietor of the lands in question here, as on a transmission, is misconceived and should be dismissed. As well might a person who purchased land under a contract of sale, and who had paid his purchase money, apply to be registered as a proprietor of land as on a transmission : a transfer of the land from the registered proprietor to the purchaser is the method of giving effect to such a contract. It is the executor of Harris Wolfson to whom is transmitted the estate or interest in the land and in the undivided moiety of the lands registered in the name of Harris Wolfson, and Jacob Wolfson must obtain a transfer of the lands from the executor if he is to become registered as their proprietor. His right to such a transfer depends upon the proper construction and effect of the partnership agreement, but the case seems to present no difficulty in this connection, for both Rebecca and Dora Wolfson are content that Jacob Wolfson should be regis- tered as the proprietor of the land and the undivided moiety of the lands standing in the Register Book in the name of Harris Wolfson. Tt would not be the function or duty of the Registrar-General to question or challenge an act of the executor regular and proper on its face. (See Templeton v. The Leviathan Pty. Ltd. (1).) Tt could not be said with any show of reason that the executor and Rebecca

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Judgment (71 paragraphs)

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