Case: Corin v Patton [1990] HCA 12 ; (1990) 169 CLR 540 
Outcome: applied
position appears to have been settled by the High Court's judgment in Corin v Patton [1990] HCA 12 ; (1990) 169 CLR 540. Mason CJ and McHugh J concluded (at 560): "Where a donor, with the intention of making a gift, delivers to the donee an instrument of transfer in registrable form with the certificate of title so as to enable him to obtain registration, an equity arises, not from the transfer itself, but from the execution and delivery of the transfer and the delivery of the certificate of title in such circumstances as will enable the donee to procure the vesting of the legal title in himself. ... The question is then whether Mrs. Patton did all that it was necessary for her to do in order to effect a transfer." Similarly, Deane J articulated the relevant test in the following terms (at 582): "It is whether the donor has done all that is necessary to place the vesting of the legal title within the control of the donee and beyond the recall or intervention of the donor . Once that stage is reached and the gift is complete and effective in equity, the equitable interest in the land vests in the donee and, that being so, the donor is bound in conscience to hold the property as trustee for the donee pending the vesting of the legal title." (emphasis added) Together, Mason CJ, McHugh and Deane JJ constituted the majority. The principles preferred by the High Court in Corin v Patton were applied by the New South Wales Court of Appeal in Costin v Costin (1997) 7 BPR 15,167. In that case, Eric Costin made arrangements to transfer an interest in property to his son Nicholas (the respondent). He executed a transfer and instructed his solicitors to provide the certificate of title to allow registration. However, before his solicitors carried out those instructions, Eric Costin changed his mind and executed a transfer to his other son, Robert (the appellant), which was then registered. The Court of Appeal resolved the dispute between the sons in favour of Robert. Brownie AJA, with whom Powell JA agreed, held (at 15,170): "... the intended gift by Eric Costin to the respondent was complete in the sense that the donor had done all that was required to be done by him alone to transfer the legal title. If his solicitors had acted as he had directed, the legal title would have passed. But the donor had not done all that was necessary to render the gift binding upon himself, or to arm or equip the donee with the means of securing registration of the transfer, or of putting the transfer beyond the donor's recall or intervention . As the events that occurred demonstrated, the donor effectively allowed the appellant rather than the respondent to become the owner at law of the donor's interest in the property. The respondent submitted, and I accept, that the donor intended to perfect his gift; but he failed to achieve that aim before changing his intention . As Corin and other cases show, more is needed. No doubt, too, it is true that if the donor's solicitors had promptly done what the donor directed them to do, the gift would have become complete, and effective, and it would have become impossible for the donor to recall the gift; but this did not happen, and the case has to be considered in the light of what did happen, rather than what might have happened." (emphasis added) The main issue to be resolved in this proceeding is whether the "gift" to the family trust in 1987 was "perfected" in accordance with the principles established by the High Court in Corin v Patton . In other words, did the bankrupt do all that was necessary to arm the donee with the capacity to register the titles in the name of Optquest Pty Ltd, the trustee of the family trust? That question can best be answered by considering the position of the mortgagees of the various properties at the time of the supposed gift. There is no evidence whatever that consents to the transfers were obtained from any of the mortgagees. The transfers executed in 1987 bore no endorsement by the mortgagees. The evidence goes no further than to establish that correspondence passed between Mr Dwyer and one mortgagee, the Bendigo Building Society, regarding what one might infer concerned the obtaining of such consent. That falls well short of establishing that any such consent was actually obtained. Without the consent of the mortgagees of each of the properties having first been obtained, the transfers could not have been registered. Accordingly, the bankrupt would not have done all that was necessary to place the vesting of the legal title within the control of Optquest Pty Ltd, and so beyond his recall or intervention. In other words, there was nothing to prevent the bankrupt from changing his mind, and electing not to proceed with the gift. In any event, the bankrupt's somewhat cavalier attitude towards prospective lenders is of little consequence in resolving this proceeding. The plain fact is that, according to the principles laid down in Corin v Patton , whatever may have been the bankrupt's intent in 1987, he did not do enough to perfect the gift of the properties to the family trust. I accept that the bankrupt set out to establish a family trust, and to transfer ownership of the properties to that trust. However, the evidence shows that mortgage consents were not obtained. There were no endorsements by the mortgagees on the transfers, as would have been required before the transfers could be registered. In addition, stamp duty was not paid, though this obligation ordinarily rests upon the transferee, rather than the transferor. The bankrupt was well aware, within a few weeks of executing the transfers, that stamp duty had not been paid. He took no steps in relation to that matter, and made no complaint to the Law Institute regarding Mr Dwyer's conduct. I infer, on the basis of the letter sent to him by Mr Dwyer on 1 March 1988, that he was aware, at least by that date, that further steps needed to be taken in relation to procuring the mortgagees' consents to the transfers. Therefore, to the extent that it may be relevant, the bankrupt cannot claim ignorance of that fact in order to overcome the difficulty that the gift was not perfected.