mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Hunt v Luck (1902) 1 Ch 428
Outcome: applied
any event, I have come to the view that even if there is to be a comparison of the two competing interests as suggested by Perpetual, the interests of the retirees have priority. Even accepting that Perpetual took the mortgage at arm's length, in the normal course of its business and for valuable consideration, I have formed this view for the following reasons: (i) the earlier equitable interest in the property of the retirees I have generally regarded as a stronger claim than the later interest of Perpetual; (ii) fairness and justice does not require or indicate the earlier equitable interest of the retirees should be postponed (see Heid v Reliance Finance Corporation Pty Ltd (1983) 154 CLR 326 at 341 (per Mason and Deane JJ)); (iii) any lack of notice by Perpetual is only one aspect of the circumstances I have taken into account, which does not displace the earlier interest of the retirees; (iv) Perpetual knew by itself, or its agents, that the properties were occupied, or at the very least expected the properties would be tenanted, even if Perpetual did not know the exact terms of the Contract of Sale or Agreement for Sale of Real Estate or of the lease. If I am wrong in this regard as to knowledge or expectation, this would still not alter my view as to the competing position; (v) the retirees were in fact in possession of the property which I regard as significant, although not 'decisive' (cf Burke v Dawes [1938] HCA 6 ; 59 CLR 1 per Evatt J at 26); (vi) Perpetual had constructive notice of the retirees' rights and it took its interest subject to them, and this occurs even if the tenant is in possession pursuant to additional entitlements: Hunt v Luck (1902) 1 Ch 428; Lowe v Clyne [1968] 2 NSWR 292 ; Daniels v Davison (1809) 16 Ves 249; and Allen v Anthony (1816) 35 ER 679, and particularly McMahon v Swan [1924] VLR 397 at 405-406 and Burke v Dawes 59 CLR 1 at 26-27 per Evatt J; (vii) Perpetual in failing to investigate the interest of the retirees did so at its 'peril' (see Evatt J at 27 in Burke v Dawes [1938] HCA 6 ; 59 CLR 1 ; and Lowe v Clyne [1968] 2 NSWR 292) ; (viii) whilst the retirees did not lodge timely caveats, the failure of the retirees to lodge a caveat is explicable. They were in fact still registered proprietors. In any event, 'the exception in s 42(2)(e) makes the failure to lodge a caveat of no moment, because it takes away from the registered proprietor that paramountcy which actual registration confers; and the only purpose of a caveat is to prevent such registration' (see Burke v Dawes [1938] HCA 6 ; 59 CLR 1 at 25-26 per Evatt J); (ix) further, I do not regard the failure to lodge a timely caveat as sufficient to postpone the retirees' interests, particularly as there was no evidence that Perpetual relied on the registration or absence of caveat (see IGA Distribution Pty Ltd v King &amp; Taylor Pty Ltd [2002] VSC 440 at [205] per Nettle J); and (x) no retiree consented to or ratified the mortgage to Perpetual.
Case: IGA Distribution Pty Ltd v King &amp; Taylor Pty Ltd [2002] VSC 440
Outcome: applied
any event, I have come to the view that even if there is to be a comparison of the two competing interests as suggested by Perpetual, the interests of the retirees have priority. Even accepting that Perpetual took the mortgage at arm's length, in the normal course of its business and for valuable consideration, I have formed this view for the following reasons: (i) the earlier equitable interest in the property of the retirees I have generally regarded as a stronger claim than the later interest of Perpetual; (ii) fairness and justice does not require or indicate the earlier equitable interest of the retirees should be postponed (see Heid v Reliance Finance Corporation Pty Ltd (1983) 154 CLR 326 at 341 (per Mason and Deane JJ)); (iii) any lack of notice by Perpetual is only one aspect of the circumstances I have taken into account, which does not displace the earlier interest of the retirees; (iv) Perpetual knew by itself, or its agents, that the properties were occupied, or at the very least expected the properties would be tenanted, even if Perpetual did not know the exact terms of the Contract of Sale or Agreement for Sale of Real Estate or of the lease. If I am wrong in this regard as to knowledge or expectation, this would still not alter my view as to the competing position; (v) the retirees were in fact in possession of the property which I regard as significant, although not 'decisive' (cf Burke v Dawes [1938] HCA 6 ; 59 CLR 1 per Evatt J at 26); (vi) Perpetual had constructive notice of the retirees' rights and it took its interest subject to them, and this occurs even if the tenant is in possession pursuant to additional entitlements: Hunt v Luck (1902) 1 Ch 428; Lowe v Clyne [1968] 2 NSWR 292 ; Daniels v Davison (1809) 16 Ves 249; and Allen v Anthony (1816) 35 ER 679, and particularly McMahon v Swan [1924] VLR 397 at 405-406 and Burke v Dawes 59 CLR 1 at 26-27 per Evatt J; (vii) Perpetual in failing to investigate the interest of the retirees did so at its 'peril' (see Evatt J at 27 in Burke v Dawes [1938] HCA 6 ; 59 CLR 1 ; and Lowe v Clyne [1968] 2 NSWR 292) ; (viii) whilst the retirees did not lodge timely caveats, the failure of the retirees to lodge a caveat is explicable. They were in fact still registered proprietors. In any event, 'the exception in s 42(2)(e) makes the failure to lodge a caveat of no moment, because it takes away from the registered proprietor that paramountcy which actual registration confers; and the only purpose of a caveat is to prevent such registration' (see Burke v Dawes [1938] HCA 6 ; 59 CLR 1 at 25-26 per Evatt J); (ix) further, I do not regard the failure to lodge a timely caveat as sufficient to postpone the retirees' interests, particularly as there was no evidence that Perpetual relied on the registration or absence of caveat (see IGA Distribution Pty Ltd v King &amp; Taylor Pty Ltd [2002] VSC 440 at [205] per Nettle J); and (x) no retiree consented to or ratified the mortgage to Perpetual.
Case: Independent Order of Odd Fellows of Victoria Friendly Society v Telford (1991) V ConvR 54-419
Outcome: followed
accept Perpetual's argument that MFLPH was unable to grant a future lease, whether registered or not registered, after the creation of the mortgage without Perpetual's consent (see Independent Order of Odd Fellows of Victoria Friendly Society v Telford (1991) V ConvR 54-419 per Gobbo J; Commonwealth Bank of Australia v Baranyay [1993] 1 VR 589 at 599 per Hayne J; Rancho Holdings Pty Ltd v Impact Developments (Wodonga) Pty Ltd (1994) V ConvR 54-509 per Batt J; Maher v Commonwealth Bank of Australia [2004] FCA 248 at [24] ; ss 66 and 77 of the TLA (and the equivalent provisions of the LTA); and cl 8 of the common provisions of the mortgage). The time of the creation of the mortgage is the time the mortgages are entered into, not registered. Once the mortgage is registered, it would take priority over any tenancy, but necessarily only a tenancy entered into after the mortgage was created.
Case: Koompahtoo Aboriginal Land Council v KLALC Property &amp; Investment Pty Ltd [2006] NSWSC 856
Outcome: cited
submitted that the cases upon which the retirees rely in an attempt to distinguish Abbey have no application in this case (referring to Koompahtoo Aboriginal Land Council v KLALC Property &amp; Investment Pty Ltd [2006] NSWSC 856 ; Barclay's Bank plc v Zaroovabli [1997] Ch 321; HKCB Finance Limited v Yuen Yi Wan [2004] HKEC 1564). In my view, everything will depend upon the facts of each case, and Abbey is not setting down any inflexible rule or principle (see eg Koompahtoo Aboriginal Land Council v KLALC Property &amp; Investment Pty Ltd [2006] NSWSC 856 ; HKCB Finance Limited v Yuen Yi Wan [2004] HKEC 1564 at [61]). The nature of the transactions, their sequence, and the Money for Living scheme indicate that the transactions the subject of the registration of the transfer and mortgage were not indissolubly bound together, and the mortgage should be regarded as a separate and distinct transaction from the transfer and grant of lease, which transactions did occur simultaneously, and prior to the creation of the mortgages in the case of each retiree.
Case: Lace v Chantler [1944] KB 368
Outcome: distinguished
whether this be the correct position or not, unlike the position in Lace v Chantler [1944] KB 368 , which was relied upon by Perpetual, in this proceeding the tenancy agreement can be construed as though it were a grant of a freehold life tenancy. The tenancy agreements in this proceeding are very similar to the agreement in Zimbler v Abrahams [1903] 1 KB 577, where the agreement was construed as a lease for life. Zimbler was treated as being correctly decided by Lord Greene MR in Lace . In fact, Lord Greene MR said in discussing Zimbler that if the contract was construed as an agreement to grant a lease for life, one could understand it being so treated and specifically enforceable (at 372).
Case: Lowe v Clyne [1968] 2 NSWR 292
Outcome: applied
any event, I have come to the view that even if there is to be a comparison of the two competing interests as suggested by Perpetual, the interests of the retirees have priority. Even accepting that Perpetual took the mortgage at arm's length, in the normal course of its business and for valuable consideration, I have formed this view for the following reasons: (i) the earlier equitable interest in the property of the retirees I have generally regarded as a stronger claim than the later interest of Perpetual; (ii) fairness and justice does not require or indicate the earlier equitable interest of the retirees should be postponed (see Heid v Reliance Finance Corporation Pty Ltd (1983) 154 CLR 326 at 341 (per Mason and Deane JJ)); (iii) any lack of notice by Perpetual is only one aspect of the circumstances I have taken into account, which does not displace the earlier interest of the retirees; (iv) Perpetual knew by itself, or its agents, that the properties were occupied, or at the very least expected the properties would be tenanted, even if Perpetual did not know the exact terms of the Contract of Sale or Agreement for Sale of Real Estate or of the lease. If I am wrong in this regard as to knowledge or expectation, this would still not alter my view as to the competing position; (v) the retirees were in fact in possession of the property which I regard as significant, although not 'decisive' (cf Burke v Dawes [1938] HCA 6 ; 59 CLR 1 per Evatt J at 26); (vi) Perpetual had constructive notice of the retirees' rights and it took its interest subject to them, and this occurs even if the tenant is in possession pursuant to additional entitlements: Hunt v Luck (1902) 1 Ch 428; Lowe v Clyne [1968] 2 NSWR 292 ; Daniels v Davison (1809) 16 Ves 249; and Allen v Anthony (1816) 35 ER 679, and particularly McMahon v Swan [1924] VLR 397 at 405-406 and Burke v Dawes 59 CLR 1 at 26-27 per Evatt J; (vii) Perpetual in failing to investigate the interest of the retirees did so at its 'peril' (see Evatt J at 27 in Burke v Dawes [1938] HCA 6 ; 59 CLR 1 ; and Lowe v Clyne [1968] 2 NSWR 292) ; (viii) whilst the retirees did not lodge timely caveats, the failure of the retirees to lodge a caveat is explicable. They were in fact still registered proprietors. In any event, 'the exception in s 42(2)(e) makes the failure to lodge a caveat of no moment, because it takes away from the registered proprietor that paramountcy which actual registration confers; and the only purpose of a caveat is to prevent such registration' (see Burke v Dawes [1938] HCA 6 ; 59 CLR 1 at 25-26 per Evatt J); (ix) further, I do not regard the failure to lodge a timely caveat as sufficient to postpone the retirees' interests, particularly as there was no evidence that Perpetual relied on the registration or absence of caveat (see IGA Distribution Pty Ltd v King &amp; Taylor Pty Ltd [2002] VSC 440 at [205] per Nettle J); and (x) no retiree consented to or ratified the mortgage to Perpetual.
Case: Maher v Commonwealth Bank of Australia [2004] FCA 248
Outcome: cited
accept Perpetual's argument that MFLPH was unable to grant a future lease, whether registered or not registered, after the creation of the mortgage without Perpetual's consent (see Independent Order of Odd Fellows of Victoria Friendly Society v Telford (1991) V ConvR 54-419 per Gobbo J; Commonwealth Bank of Australia v Baranyay [1993] 1 VR 589 at 599 per Hayne J; Rancho Holdings Pty Ltd v Impact Developments (Wodonga) Pty Ltd (1994) V ConvR 54-509 per Batt J; Maher v Commonwealth Bank of Australia [2004] FCA 248 at [24] ; ss 66 and 77 of the TLA (and the equivalent provisions of the LTA); and cl 8 of the common provisions of the mortgage). The time of the creation of the mortgage is the time the mortgages are entered into, not registered. Once the mortgage is registered, it would take priority over any tenancy, but necessarily only a tenancy entered into after the mortgage was created.
Case: Prudential Assurance Co Ltd v London Residuary Body [1991] UKHL 10 ; [1992] 3 WLR 279
Outcome: cited
see no reason to depart from the views expressed by Gobbo J in Greco v Swinburne Ltd [1991] 1 VR 304 that a lease for life or lives is not void for uncertainty. Whilst the essential characteristic of a fixed term lease is that it must be of a specified maximum duration, this rule may not apply to periodic leases or leases for life (see Re Midland Railway Company Agreement v British Railways Board [1971] Ch 725 at 731-2; Bradbrook, MacCallum &amp; Moore, Australian Real Property Law (4 th ed, Lawbook Co, 2007) at [14.100]; and Foa's General Law of Landland and Tenant (8 th ed, Thames Bank Publishing Co, 1957) at [150]-[154] although see Prudential Assurance Co Ltd v London Residuary Body [1991] UKHL 10 ; [1992] 3 WLR 279 and Peter Sparkes, Certainty of Leasehold Terms (1993) 109 LQR 93).
Case: Rancho Holdings Pty Ltd v Impact Developments (Wodonga) Pty Ltd (1994) V ConvR 54-509
Outcome: cited
accept Perpetual's argument that MFLPH was unable to grant a future lease, whether registered or not registered, after the creation of the mortgage without Perpetual's consent (see Independent Order of Odd Fellows of Victoria Friendly Society v Telford (1991) V ConvR 54-419 per Gobbo J; Commonwealth Bank of Australia v Baranyay [1993] 1 VR 589 at 599 per Hayne J; Rancho Holdings Pty Ltd v Impact Developments (Wodonga) Pty Ltd (1994) V ConvR 54-509 per Batt J; Maher v Commonwealth Bank of Australia [2004] FCA 248 at [24] ; ss 66 and 77 of the TLA (and the equivalent provisions of the LTA); and cl 8 of the common provisions of the mortgage). The time of the creation of the mortgage is the time the mortgages are entered into, not registered. Once the mortgage is registered, it would take priority over any tenancy, but necessarily only a tenancy entered into after the mortgage was created.
Case: Re Midland Railway Company Agreement v British Railways Board [1971] Ch 725
Outcome: cited
see no reason to depart from the views expressed by Gobbo J in Greco v Swinburne Ltd [1991] 1 VR 304 that a lease for life or lives is not void for uncertainty. Whilst the essential characteristic of a fixed term lease is that it must be of a specified maximum duration, this rule may not apply to periodic leases or leases for life (see Re Midland Railway Company Agreement v British Railways Board [1971] Ch 725 at 731-2; Bradbrook, MacCallum &amp; Moore, Australian Real Property Law (4 th ed, Lawbook Co, 2007) at [14.100]; and Foa's General Law of Landland and Tenant (8 th ed, Thames Bank Publishing Co, 1957) at [150]-[154] although see Prudential Assurance Co Ltd v London Residuary Body [1991] UKHL 10 ; [1992] 3 WLR 279 and Peter Sparkes, Certainty of Leasehold Terms (1993) 109 LQR 93).
Case: Rye v Rye [1962] AC 496
Outcome: distinguished
also argued that the retirees were not tenants and that an owner cannot lease land to himself or herself relying on Rye v Rye [1962] AC 496. It was said that prior to registration of MFLPH as proprietor, the retirees were owners of the properties and occupied the properties in this capacity. It was said they could not have an interest in a lease in these circumstances. In Rye v Rye , [1962] AC 496, the appellant and his brother carried on a partnership business, the profits of which were divisible between them in unequal shares. They had purchased in equal shares the premises used for the business and in order to reconcile their inequality as partners with their equal ownership of the premises they agreed orally to grant to the partnership a yearly tenancy of the premises at &#163;500 per annum to be provided out of the partnership assets. The rent, which it was admitted was calculated from January, 1942, was payable on the usual quarter days and the first payment of rent was made and accepted on Lady Day, 1942. No time for the determination of the lease was agreed but, as the tenancy was an annual one, the law provided for its determination. After the brother's death in 1948, the respondent (his son) as an executor of his estate, became one of the owners of the premises. In 1950 the appellant took the respondent into partnership, but later the partnership was dissolved. After the determination of the partnership, the respondent continued to occupy a room on the first floor of the premises and carried on his own business from that room, although the appellant demanded possession of the room. The appellant brought an action claiming possession of the room on the basis that he was the surviving tenant under the yearly tenancy granted to the partnership in 1942 and was therefore entitled to exclusive possession of the premises as against the respondent. The case of Rye v Rye is, in my view, easily distinguishable from the present case if only because the agreements executed between MFLPH and the various retirees were agreements between two separate parties. Each of the parties still had separate and identifiable legal rights or interests under the arrangements entered into between the parties, and each was entitled to enforce its rights according to their terms. This is not a case of one person granting or purporting to grant a lease to himself or herself. Accordingly, I do not consider that Rye v Rye has any application to this proceeding.
Case: Sogelease Australia Ltd v Boston Australia Ltd (1991) 26 NSWLR 1
Outcome: cited
submitted that the mortgage was registered simultaneously with the transfer, with the result that the purchaser/mortgagor never obtained unencumbered title enabling the creation of a tenancy (referring to Abbey National Building Society v Cann [1991] 1 AC 56 at 93; Allsop v Marshall (1942) 59 WN (NSW) 159 at 161-162; Austin Construction Co (Australia) Ltd v Becketts Holdings Pty Ltd (1958) 75 WN (NSW) 444 at 447; Sogelease Australia Ltd v Boston Australia Ltd (1991) 26 NSWLR 1 at 5-8).
Case: Tanwar Enterprises Pty Ltd v Cauchi (2003) 217 CLR 315
Outcome: cited
turn to the nature of the interest of each retiree. In my view, each retiree had an equitable interest in the land by reason of the fact that each was entitled to specific performance of the Contract of Sale or Agreement for Sale of Real Estate or the Deed of Agreement to the possession of the property as a tenant immediately upon settlement. The extent of that interest is to be determined by the form in which specific performance would be granted by a court. The retirees were entitled as against MFLPH to an order requiring MFLPH to sign and deliver to the retirees upon settlement a lease of the property upon the terms agreed, relevantly for life, subject to the condition that the retiree stay in possession for a certain period and pay the nominal rent (see Downie v Lockwood [1965] VR 257; Craddock Bros v Hunt [1923] 2 Ch 136; Chan v Cresdon Pty Ltd (1989) 168 CLR 242; Tanwar Enterprises Pty Ltd v Cauchi (2003) 217 CLR 315 at 332-333, [53]; Black v Garnock [2007] HCA 31 ; (2007) 230 CLR 438 at 449-450, [32] ). It is not necessary that specific performance be available at the time of the hearing: Bunny Industries Ltd v FSW Enterprises Pty Ltd [1982] Qd R 712. It is important to appreciate that the availability and the nature of specific performance is a precondition to the recognition of an equitable interest and the extent of that equitable interest in the property. Here, as I have said, a court, by reference to the terms of agreement between the retirees and MFLPH, would give each retiree possession of the land upon settlement by making an order that MFLPH sign and deliver a lease of the property to each retiree effective from the moment of settlement.
Case: Taylor Fashions Ltd v Liverpool Victoria Trustees Co Ltd [1981] 1 All ER 897
Outcome: cited
retirees contended that the doctrine applied in the context of leasehold interests (see Taylor Fashions Ltd v Liverpool Victoria Trustees Co Ltd [1981] 1 All ER 897). The retirees argued that a representation was made by MFL sufficient to raise an estoppel that the retirees would acquire an interest for life in the relevant properties.
Case: Thompson v Palmer [1933] HCA 61 ; (1933) 49 CLR 507
Outcome: cited
retirees alternatively submitted that equity comes to the relief of a plaintiff who has acted to its detriment on the basis of a fundamental assumption, the adoption of which the defendant has played such a part that it would be unfair or unjust if the defendant were left free to ignore it - equity intervening on the footing that it would be unconscionable for the defendant to deny the assumption (see Grundt v Great Boulder Proprietary Gold Mines Limited [1937] HCA 58 ; (1937) 59 CLR 641 at 675; Thompson v Palmer [1933] HCA 61 ; (1933) 49 CLR 507 at 547; and Waltons Stores (Interstate) Limited v Maher [1988] HCA 7 ; (1988) 164 CLR 387 and 404 (per Mason CJ and Wilson J)).
Case: Waltons Stores (Interstate) Limited v Maher [1988] HCA 7 ; (1988) 164 CLR 387
Outcome: cited
retirees alternatively submitted that equity comes to the relief of a plaintiff who has acted to its detriment on the basis of a fundamental assumption, the adoption of which the defendant has played such a part that it would be unfair or unjust if the defendant were left free to ignore it - equity intervening on the footing that it would be unconscionable for the defendant to deny the assumption (see Grundt v Great Boulder Proprietary Gold Mines Limited [1937] HCA 58 ; (1937) 59 CLR 641 at 675; Thompson v Palmer [1933] HCA 61 ; (1933) 49 CLR 507 at 547; and Waltons Stores (Interstate) Limited v Maher [1988] HCA 7 ; (1988) 164 CLR 387 and 404 (per Mason CJ and Wilson J)).
Case: Zimbler v Abrahams [1903] 1 KB 577
Outcome: discussed
whether this be the correct position or not, unlike the position in Lace v Chantler [1944] KB 368 , which was relied upon by Perpetual, in this proceeding the tenancy agreement can be construed as though it were a grant of a freehold life tenancy. The tenancy agreements in this proceeding are very similar to the agreement in Zimbler v Abrahams [1903] 1 KB 577, where the agreement was construed as a lease for life. Zimbler was treated as being correctly decided by Lord Greene MR in Lace . In fact, Lord Greene MR said in discussing Zimbler that if the contract was construed as an agreement to grant a lease for life, one could understand it being so treated and specifically enforceable (at 372).
Case: Torpedoes Sportswear Pty Limited v Thorpedo Enterprises Pty Limited [2003] FCA 901 ; [2003] 59 IPR 318
Outcome: referred to
The onus is on the opponent to establish that one of the grounds is made out. Before the delegate the applicant was the opponent. Different views have been expressed in the authorities as to the standard at which the onus must be discharged. There are decisions to the effect that the opposition should be upheld only if the Court is satisfied that the trade mark should clearly not be registered: Torpedoes Sportswear Pty Limited v Thorpedo Enterprises Pty Limited [2003] FCA 901 ; (2003) 59 IPR 318 and Kowa Company Ltd v N V Organon (2005) 66 IPR 131. See also Lomas v Winton Shire Council (2002) FCAFC 413 at [17] to [19], Austereo Pty Ltd v DMG Radio (Aust) Pty Ltd (2004) 61 IPR 257 at [4] and McCorquodale v Masterson ( McCorquodale ) (2004) 63 IPR 582 at [24].