Case: Tanwar Enterprises Pty Ltd v Cauchi [2003] HCA 57 ; (2003) 217 CLR 315
Outcome: referred to
Moreover in relation to the vendor and purchaser relationship between Lend Lease and County Natwest the subject of the FPA, I was further referred by Lend Lease to Kern Corporation Ltd v Walter Reid Trading Pty Ltd [1987] HCA 20 ; (1987) 163 CLR 164, where Deane J observed at 192: '... it is both inaccurate and misleading to speak of the unpaid vendor under an uncompleted contract as a trustee for the purchaser... There is authority for the view that, after completion has actually taken place, some of the equitable rights of the purchaser, which (in their entirety) then constitute beneficial ownership, relate back to the date of the contract. But there is no relation back of beneficial ownership in the sense that the vendor is retrospectively deprived of his beneficial right, pending payment of the full purchase price, to the possession, use, rents and profits of the land. Regardless of whether his rights be viewed in the perspective of foresight (ie before completion) or hindsight (i.e. after completion), the ordinary unpaid vendor of land is not a trustee of the land for the purchaser'. Kern was an insurance case involving the operation of real property legislation and the entitlement of a ' person interested ' in realty improvements, in the capacity as purchaser under an uncompleted contract to purchase, in circumstances where those improvements were destroyed by an insured event prior to completion of that contract, to have the proceeds of insurance outlaid in rebuilding the same. The issue which arose in particular in Kern related primarily to the notion of insurable interest, and whether a purchaser could require the vendor's insurer to rebuild or reinstate; in the joint reasons of Wilson and Dawson JJ at 180, it was observed that ' ... a purchaser under an enforceable contract for the sale of land is bound to complete, irrespective of the destruction of the improvements on the land in the meantime and that from the time the contract is made the purchaser has an equitable estate in the land...'. That authority was said to serve as confirmation that proprietary rights crystallise normally in favour of a purchaser on entry into a contract to purchase personalty in the nature of proprietary interests, such as shares in corporations, as well as in the case of entry into a contract to purchase realty, but that the existence of an equitable interest in favour of a purchaser pursuant to an executory contract is not equivalent to beneficial ownership or ownership in equity. More recently in Tanwar Enterprises Pty Ltd v Cauchi [2003] HCA 57 ; (2003) 217 CLR 315 at 332-333, to which Lend Lease drew further attention for completeness, it was explained in the joint reasons for judgment of Gleeson CJ, McHugh, Gummow, Hayne and Heydon JJ at [53] that the interest of a purchaser under a contract for the purchase of realty is commensurate with the availability of the remedy of specific performance in favour of that purchaser, and may become '... the very question in issue where there has been a termination by the vendor for failure to complete as required by the essential stipulation'.