Roman Catholic Bunbury Church Property Act 1955

Corporation sole. The Bishop is constituted a corporation sole under section 4. A corporation sole is a legal entity with perpetual succession that allows a single officeholder (and his successors) to hold property and enter into contracts in the corporate name. This avoids the need for property to be held by trustees or by the Bishop as an individual. The concept is well known in English ecclesiastical law, and here it gives the Bishop the same legal capacity as a natural person to sue, be sued, purchase and dispose of property. The corporate name “The Roman Catholic Bishop of Bunbury” is the legal persona; it continues despite changes in the officeholder.

Vesting. Section 3 provides for automatic vesting of property without any formal transfer. The property shifts from the Bishop of Perth, or from any person holding it on trust for the Church within the Diocese, to the Bishop of Bunbury. The vesting is “absolutely and indefeasibly”, subject only to existing trusts, encumbrances and dispositions. This means that the Bishop takes the property subject to any prior mortgage, lease or other interest, but the legal title vests in him. No stamp duty or registration fee is required under section 6, though registration is mandated for Torrens system and general law land.

Property. The definition in section 2 is extremely broad: “property of every kind whatsoever including legal and equitable, real and personal property, and choses in action.” This covers land, buildings, money, securities, debts, intellectual property, and any other right or interest. The Act therefore vests all asset classes, not just land. The First Schedule lists only land titles, but section 3 also covers “all other property” belonging to the Church or held in trust for it within the Diocese.

Express trust or condition against alienation. This is the critical limitation on the Bishop’s dealing powers under section 5(1). An “express trust or condition against alienation” is one that explicitly prohibits sale, mortgage or lease. Section 5(2) clarifies that a trust expressed for the use, purposes or benefit of the Roman Catholic Church in general or the Diocese in particular does not count as an express condition against alienation. In effect, most charitable-purpose trusts that might be read as limiting alienation are overridden. Only a very specific, explicit prohibition survives. This shifts the balance significantly in favour of the Bishop’s discretion to deal with church property, reducing the influence of donors or original trust purposes.

Vicar Capitular. Under section 8, when the Bishop dies, the Vicar Capitular (a priest elected by the diocesan consultors) steps into the Bishop’s shoes for property dealings until a new Bishop is appointed. This ensures continuity of legal capacity to manage and transact with church property during the interregnum. The Vicar Capitular’s documents have the same effect as if executed by the Bishop.

Overriding of earlier Acts. Section 5(1) begins “Notwithstanding anything contained in the Acts mentioned in the Second Schedule.” This is a paramountcy clause that allows the Bishop to sell, mortgage or lease land despite any restriction in those earlier Acts (except express trusts/conditions against alienation and section 7 of the 1895 Act). The Second Schedule lists six Acts dating back to 1858, which collectively governed Roman Catholic church property in Western Australia. The 1955 Act effectively repeals them for the Bunbury Diocese, replacing a patchwork of controls with a single comprehensive dealing power.

The Roman Catholic Bishop of Bunbury. The primary subject of the Act. The Bishop obtains legal title to all church property within the Diocese, becomes a corporation sole, and gains extensive powers to sell, mortgage and lease that property. The Bishop also bears the burden of ensuring that any dealing does not violate an express trust or condition against alienation (as narrowly defined). The Bishop must also comply with section 7 of the Roman Catholic Church Lands Act 1895 (which appears to require certain consents for sales or leases of land used for church buildings, schools or presbyteries). The Bishop may delegate powers to priests as attorneys.

Priests of the Diocese. Section 7 allows the Bishop to appoint one or more priests as attorneys to exercise any of the Bishop’s powers under the Act. That gives those priests authority to execute documents and complete transactions in the Bishop’s name. They become agents of the corporation sole and must act within the scope of the appointment.

The Vicar Capitular. In the period between a Bishop’s death and the appointment of a successor, the Vicar Capitular (duly elected by the consultors) exercises the Bishop’s powers and performs the Bishop’s duties under the Act. This affects the continuity of church property management and gives temporary authority to an officer who may not have been involved in prior dealings.

Prior trustees and holders of property. Any person or entity that held legal or equitable title to church property on trust for the Roman Catholic Church within the Diocese before 15 November 1955 loses that title. The property vests automatically in the Bishop under section 3. This includes the Roman Catholic Bishop of Perth, who held the land listed in the First Schedule. Those former trustees are discharged from their obligations in respect of the property, but they may still have residual duties to account for prior dealings.

Beneficiaries of trusts. Persons or groups for whose benefit property was held (e.g., parishioners, mission supporters, donors) have their interests affected because the Bishop can now sell, mortgage or lease the property free from most trust restrictions. Unless the original trust deed contained an express condition against alienation, the trust purposes are effectively subordinated to the Bishop’s dealing powers. The Act does not provide any mechanism for beneficiaries to object or to enforce the original trust beyond that narrow category.

Purchasers, mortgagees and lessees. These third parties benefit from section 5(3), which provides that they are not bound to inquire into whether the Bishop’s exercise of power was regular, necessary or proper. They need not see to the application of purchase money or mortgage funds. This gives them clean title free from equitable claims that might otherwise arise from a breach of trust. However, they still need to ensure that any express trust or condition against alienation is not on title (or if it is, that the Bishop’s power to sell despite it is clear). Practically, they can rely on the registered title if the vesting is recorded.

The Registrar of Titles and the Land Information Authority. Section 6 requires registration of the vesting free of charge under the Transfer of Land Act 1893 or Registration of Deeds Act 1856, as amended by the Land Information Authority Act 2006. The State bears the administrative cost of noting the change on certificate of title and in registers.

Bishop’s right to deal with property. Section 5(1) empowers the Bishop to sell, mortgage and lease lands vested in him. This is a broad statutory right that overrides earlier restrictive legislation. The Bishop may sell free from all trusts and conditions other than express trusts or conditions against alienation. He may mortgage to secure repayment of existing debts secured on church land, or to secure new borrowings. He may lease for any term with or without renewal, on any terms he thinks fit. The right is stated to be “subject to any express trust or condition against alienation” and the requirements of section 7 of the Roman Catholic Church Lands Act 1895. Section 7 of that Act presumably imposes a consent requirement for some dealings (the text is not reproduced in this Act, but it is left intact).

Bishop’s right to appoint attorneys. Under section 7, the Bishop may by instrument under hand and seal appoint one or more priests as attorneys to exercise all or any of the Bishop’s powers. This is a right to delegate, which reduces the Bishop’s personal transaction costs and allows efficient management of property across the Diocese. The appointed attorney may execute documents in the Bishop’s name.

Bishop’s duty to comply with express conditions against alienation. This is the main limitation on the dealing right. The Bishop must not sell, mortgage or lease land that is subject to an express condition that prohibits that dealing. The definition of “express condition against alienation” does not include a trust expressed to be for the general benefit of the Church or Diocese (section 5(2)). Consequently, only a clear, specific prohibition on sale, mortgage or lease will be binding. The Bishop has a duty to identify such conditions before dealing. If he breaches them, he may be liable for breach of trust, though third parties are protected.

Bishop’s duty under section 7 of the Roman Catholic Church Lands Act 1895. The precise content of that duty is not set out in this Act, but the cross-reference indicates that the Bishop must obtain some consent or satisfy some precondition (likely from the Bishop of Perth or the Holy See) before selling or leasing certain lands. The duty is preserved.

Vicar Capitular’s rights and duties. On the Bishop’s death, the Vicar Capitular is entitled to exercise the Bishop’s powers and is liable to perform his duties under the Act until a successor is appointed (section 8). This includes the power to sell, mortgage and lease, and the duty to comply with conditions against alienation. The Vicar Capitular may also execute documents, which have the same force as if executed by the Bishop.

Third party rights. Purchasers, mortgagees and lessees have a statutory right to ignore any irregularity in the Bishop’s exercise of power (section 5(3)). They have no duty to inquire into necessity, regularity or propriety, and are not affected by notice that a dealing is irregular. This creates a marketable title that is immune from equitable challenge based on the Bishop’s internal governance failures.

The Act contains no criminal penalty provisions. There is no fine or imprisonment for any breach of its terms. Enforcement is therefore civil in nature. The principal enforcement risk arises from a breach of trust if the Bishop deals with property in violation of an express trust or condition against alienation. Such a breach would be enforceable in equity by persons with an interest under the trust (e.g., parishioners, the original donor or their successors). However, section 5(3) substantially insulates third party purchasers, mortgagees and lessees from such claims, so the remedy would likely be against the Bishop personally or against the corporate sole entity.

If the Bishop sells property despite an express condition against alienation, the beneficiaries could seek an injunction to stop the sale before completion, or after completion could seek damages or an accounting from the Bishop for the proceeds. But because the purchaser is not required to inquire, the purchaser’s title would be good. The Bishop’s personal liability may be limited by the assets of the corporation sole. There is no statutory regime for penalties or administrative enforcement by a government body.

Breach of the requirement under section 7 of the Roman Catholic Church Lands Act 1895 (if that section requires consent) could also give rise to a challenge. The Act does not specify the consequence of failing to obtain such consent. It may render the dealing voidable, but again third parties are protected by section 5(3) which says they need not inquire into regularity. This could mean the dealing is effective despite the lack of consent, leaving the Bishop answerable internally.

Failure to register the vesting under section 6 is not penalised, but it would leave the title incomplete and potentially cause issues for future dealings. The Registrar can require registration, but the Act is silent on compulsion. The practical driver is that the Bishop cannot sell or mortgage unregistered land under a Torrens system without first getting the vesting noted, because the buyer’s bank or conveyancer will require a clear registered title.

There is no provision for enforcement by the Attorney General or a charity regulator. The Act is essentially a private Act that vests property and grants powers without creating any supervisory body or appeal mechanism. The only real enforcement lever is the equitable jurisdiction of the Supreme Court of Western Australia, at the suit of a person with a sufficient interest.

The Act explicitly overrides six earlier Acts listed in the Second Schedule, but only for the purpose of exercising the powers under section 5. The Acts overridden are the Roman Catholic Church Lands Ordinance 1858 (22 Vict. No. 4), the Roman Catholic Church Lands Act 1895 (59 Vict. - Private), the Roman Catholic Church Lands Amendment Act 1902 (1 and 2 Edw. VII - Private), the Roman Catholic Church Property Act 1911 (No. 36 of 1911), the Roman Catholic Church Property Act Amendment Act 1912 (No. 32 of 1912), and the Roman Catholic Church Property Acts Amendment Act 1916 (No. 4 of 1916). However, section 5(1) preserves “the provisions of section 7 of the Roman Catholic Church Lands Act 1895”, meaning that particular section continues to apply subject to the express trust limitation. The interaction is that the 1955 Act takes precedence over the other Acts, but not over section 7 of the 1895 Act. This patchwork survivorship means practitioners must still consult the 1895 Act to understand the consent requirement.

The Act interacts with the Transfer of Land Act 1893 and the Registration of Deeds Act 1856 via section 6, which requires registration of the vesting and provides that it be done free of charge. The 2006 amendment (the Land Information Authority Act 2006 updated the reference but did not change the substantive obligation.

The Act also interacts with general property and trusts law. The concept of an “express trust or condition against alienation” is not defined exhaustively, but the Act provides a deeming rule for trusts expressed for the Church’s benefit. Courts would apply ordinary principles of construction to determine whether a clause in a deed or will amounts to an express condition against alienation. The Act may also interact with the Charitable Trusts Act 1962 (WA), but there is no reference to it in the source. Because the Act vests property “subject to the trusts, encumbrances and dispositions respectively affecting the same” (section 3), it does not itself discharge existing mortgages or leases. Those continue to bind the property.

The overriding power in section 5 applies “notwithstanding anything contained in the Acts mentioned in the Second Schedule”, but it does not override other general laws such as the Planning and Development Act 2005, the Local Government Act 1995 (e.g., for subdivision approval), or the Strata Titles Act 1985. The Bishop must still comply with those laws when selling, leasing or developing.

The Act does not purport to override the Corporations Act 2001 (Cth), but that is largely irrelevant because the Bishop is a corporation sole, not a company. The Act also does not affect the operation of the Australian Charities and Not-for-profits Commission Act 2012 (Cth) if the Diocese is a registered charity; the Act does not exempt the Bishop from reporting obligations or governance standards imposed by federal law.

There is no express interaction with the Trustee Act 1962 (WA). The Bishop’s powers are statutory and specific, so they likely prevail over the more general trustee powers, but the Bishop may also have powers under the Trustee Act as a trustee of property not covered by the 1955 Act.

The Act received royal assent on 15 November 1955 and commenced on that date. The compilation table in the notes shows three subsequent amendments and two reprints.

First amendment: Statutes (Repeals and Minor Amendments) Act 2003 (No. 74 of 2003), section 149(3), effective 15 December 2003. This amendment appears to have made a minor textual change to the Second Schedule (the table says it was amended, but the content of the schedule does not appear to change - perhaps it updated a reference). The source does not reveal the precise effect, but it was part of a omnibus statute repealing obsolete references.

Second amendment: Land Information Authority Act 2006 (No. 60 of 2006), section 153, which substituted a reference in section 6 to the Land Titles Act (apparently updating the name of the registration acts). This amendment commenced on 1 January 2007 via gazette notice.

Third amendment: Standardisation of Formatting Act 2010 (No. 19 of 2010), section 4, effective 11 September 2010. This made cosmetic changes to headings in the First Schedule and Second Schedule (adding “- Land vested in Bishop of Bunbury” and “- Acts overridden by section 5”), and likely standardised typography.

The Act was reprinted as at 7 February 2003 (Reprint 1) and again as at 10 October 2014 (Reprint 2). The reprint consolidates the amendments. The notes also mention that the Roman Catholic Church Lands Ordinance 1858 is now cited as that name, and that the Roman Catholic Church Lands Act 1895 and Church Lands Amendment Act 1902 are other relevant Acts.

No substantive amendment has changed the core vesting or dealing powers. The Act remains substantially as enacted in 1955. The amendments are purely procedural or formatting.

The source text provides no case references, and there is no litigation history recorded in the Act’s notes. This is consistent with a private Act that has operated without judicial challenge for nearly 70 years. However, one can infer potential litigation risks.

The narrow definition of “express trust or condition against alienation” in section 5(2) could be litigated if a donor’s trust deed stated that land was “for the use of the Roman Catholic Church in Bunbury” and the Bishop sold it for a different use. A beneficiary might argue that such a phrase amounts to an implied condition against alienation (i.e., that the land must continue to be used as a church). Section 5(2) says that is not an express condition against alienation. A court might have to decide whether a deed that says “the land shall be used solely as a church” is an express trust against alienation. The Act’s deeming provision would likely catch that language as being for the benefit of the Church, but it is not an express prohibition on sale. The line could be fine.

Another potential litigation point: the interaction with section 7 of the Roman Catholic Church Lands Act 1895. If the Bishop sold land without obtaining the required consent, a beneficiary could argue the sale is void. The protection for purchasers under section 5(3) says they are not bound to inquire, but it does not say the sale is valid despite non-compliance with section 7. It simply relieves the purchaser from inquiry. A court might hold that the sale is voidable but the purchaser’s title is good because of the statutory protection. Alternatively, the sale might be valid if the Bishop’s power under section 5 overrides all restrictions except express conditions, but section 7 is expressly preserved. This creates ambiguity.

There is no reported case on point in the source. This suggests the Act has operated without major dispute, possibly because the Diocese is relatively small and transactions are handled conservatively. The absence of litigation does not mean the Act is perfectly clear; it may mean that the affected parties have not had the resources or incentive to challenge.

The narrow definition of "express trust or condition against alienation" is a trap for beneficiaries. Section 5(2) says that a trust expressed to be for the use, purposes or benefit of the Roman Catholic Church in general or the Diocese in particular is not an express condition against alienation. That means that if a donor gave land “for the Roman Catholic Church Bunbury” (which sounds like a restrictive purpose), the Bishop can still sell that land free of any condition. The donor’s intent to preserve the property for church use is effectively overridden unless the deed explicitly says “this land shall not be sold.” Many charitable gifts are worded as purpose trusts without explicit prohibitions on sale, and those are now defeasible by the Bishop.

Section 5(3) protects third parties from any irregularity, but not from a clear express condition on title. If a title contains a recorded condition that the land shall not be sold without the consent of the Holy See, and the Bishop sells without that consent, the purchaser might be on notice because the condition is on title. Section 5(3) says the purchaser is not bound to inquire into the necessity, regularity or propriety of the sale, but does it excuse knowledge of a condition? Probably not. If the condition is on title, the purchaser has actual notice and section 5(3) does not say “despite any notice.” A court might hold that the purchaser is affected by notice of a condition on the title. However, section 5(1) only permits sale subject to an express condition against alienation, so if the condition is on title, the Bishop has no power to sell free of it. That is a real limitation.

The automatic vesting could create priority issues. Section 3 vests all property belonging to the Church or held in trust for it within the Diocese, without any requirement for a formal transfer. This raises the question of whether pre-existing equitable interests that were not noted on title are now subordinated to the Bishop’s legal title. The Act says vesting is subject to existing trusts and encumbrances, so equitable interests should survive. But if the Bishop subsequently sells to a purchaser under section 5, the purchaser takes free of those equitable interests (except express conditions against alienation). That could disadvantage unregistered beneficiaries who never documented their interest on title.

The Vicar Capitular provision (section 8) might cause confusion for third parties. A purchaser dealing with the Diocese during a vacancy may not know who the Vicar Capitular is or whether he has been duly elected. The Act gives his documents the same effect as the Bishop’s, but third parties may be uncertain about verifying his authority. Unlike a public company that must lodge appointments with ASIC, there is no public register for a Vicar Capitular. This increases legal risk for counterparties.

Section 7 of the 1895 Act is preserved but its content is not reproduced. That section likely imposes a consent requirement. A practitioner must locate that 1895 Act to know precisely what consent is needed (possibly from the Roman Catholic Archbishop of Perth or the Apostolic See) and to what transactions it applies. Failure to comply could be a breach, but the purchaser is protected.

No statutory limitation period for breach of trust claims is specified. The Act does not address limitation periods, so the general law applies. But because the Act provides strong protection for purchasers, beneficiaries may have no remedy against the property itself. Their only recourse is against the Bishop personally, and the Bishop may have limited assets outside the corporation sole.

For the Bishop and diocesan administrators: The primary compliance step is to maintain a register of all property vested under section 3, including a record of any express trust or condition against alienation that is noted on title or stated in the conveyance. Before selling, mortgaging or leasing any property, the Bishop or delegated attorney must search the title and the Diocese’s own records to determine whether an express condition against alienation exists. Only if an express prohibition (not merely a purpose trust) exists must the dealing be restricted. If such a condition appears, legal advice should be sought as to its enforceability and whether it can be removed by variation or court order. If no express condition exists, the Bishop may proceed subject to any consent required under section 7 of the Roman Catholic Church Lands Act 1895. That consent should be obtained in writing and filed.

Registration of vesting: Section 6 requires the vesting of land to be registered and noted on the instruments of title free of charge. The Bishop should have caused each certificate of title listed in the First Schedule to be lodged with Landgate (formerly the Land Information Authority) to note the change of proprietor from the Bishop of Perth to the Roman Catholic Bishop of Bunbury. For any property acquired after 1955 that falls within the Diocese, the Bishop should ensure that the purchase or other acquisition is recorded in the corporate name. Failure to register does not invalidate the vesting but makes reliance on Torrens title protection problematic.

Appointment of attorneys: If the Bishop wishes to delegate powers, he must execute an instrument under hand and seal (section 7). The instrument should specify which powers are delegated, whether the power is general or specific, and any conditions. The attorney must be a priest of the Diocese. The Bishop should maintain a register of appointments and revocations. Third parties should ask for a copy of the instrument before dealing with an attorney. Attorneys must not exceed the scope of their authority.

Dealings with third parties: For a sale, mortgage or lease, the Bishop (or attorney) should prepare a memorandum noting that the transaction is authorised under section 5 of the Roman Catholic Bunbury Church Property Act 1955. The contract or mortgage should include a statement that no express condition against alienation exists (or if one exists, that it has been complied with). The Bishop should seek legal advice if there is any doubt about the application of section 7 of the 1895 Act. The third party can rely on section 5(3) and need not inquire further, but a prudent purchaser will still do a title search to identify any restrictive conditions on title.

Vicar Capitular: Upon the Bishop’s death, the Vicar Capitular should immediately notify the Diocesan consultors and any known counterparties that he is the acting authority under section 8. He should also lodge a notice with Landgate if dealing with land. Any documents executed during the interregnum should recite that they are executed under section 8 of the Act. On the successor Bishop’s appointment, the Vicar Capitular’s authority ceases.

Record keeping and internal controls: The Diocese should maintain a file for each property showing its acquisition date, source of funds, expressed trust conditions (if any), and a history of all dealings. Because section 5(2) deems many trusts not to be restrictive, the Diocese should also record the Bishop’s decision to disregard a purpose trust, noting the legal basis. This protects against future claims of breach of trust.

Seeking legal advice: Given the narrow definition of “express condition against alienation” and the preservation of section 7 of the 1895 Act, conveyancers and diocesan administrators should seek specialist advice for any significant transaction. The 1955 Act is private and relatively obscure, so few general practitioners will be familiar with its nuances.