Tenures, Estates and Native Title Legal and Equitable Interests in Land Old System Title Torrens Title

1
Tenures, Estates and Native Title Legal and
Equitable Interests in LandOld System
TitleTorrens Title

• Assoc Prof Cameron Stewart

2
The Anglo-Saxon Invasions c500AD
3
The Battle of Hastings 1066
4
Norman Reorganisation

• Sovereignty
• Absolute beneficial title
• Reception of laws
• Conquering
• Settling
• Cession
• Complete Feudalism

5
Feudalism

• The hierarchy of property
• Homage fealty
• Subinfeudation
• Lords and villeins unfree servitude (labour)
• Growth of manorial customary law enforceable in
  the manor courts unfree tenure - copyhold

6
Types of tenures

• Knight service - military
• Serjeanty personal services to the King
  onerous to the comical
• Frankalmoin religious
• Socage - residual money or quit rents
• Incidents Homage and fealty,
• primer seisin - king's right to take land until
  homage paid
• relief - right to claim amount when heir took
  tenancy
• aids - levies for particular occasions eg ransom
• wardships - when heir took inheritance before
  majority lord would take wardship and be able to
  claim fees for administering estate- control
  marriage - traffic
• escheat - right of feudal overlord to take back
  estate if tenant was convicted of serious
  offence, fled jurisdiction or died without heirs
• BLOUNT S FRAGMENTA ANTIQUITATIS

7
Types of tenures

• ASTON-CAMLOU, COUNTY OF WARWICK.
• The manor of Aston-Cantlou (so called from the
  family of Cantilupe) was by inquisition after the
  death of Laurence Hastings, Earl of Pembroke,
  returned to be held in this form, viz. That that
  manor is held by itself of our lord the King in
  capite, by the service of finding a foot soldier,
  with a bow without a string, with a helmet, or
  cap, for forty days, at the proper charges of the
  lord of that manor, as often as there should be
  war in Wales

8
Types of tenures

• MIDELINTON, COUNTY OF OXFORD.
• Henry FitzWilliam holds of our lord the King one
  piece of land in Midelinton, by the serjeanty of
  finding one towel to wipe the hands of our lord
  the King, when he shall hunt in the forest of
  Witchwood, in the parts of Lankeleg, and that
  land was worth forty shillings.

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Types of tenures

• Rowland le Sarcere held one hundred and ten
  acres of land in Hemingston, in the county of
  Suffolk, by serjeanty for which, on
  Christmas-day, every year,, before our sovereign
  lord the King of England, he should perform,
  altogether, and at once a leap, a puff, and a
  fart and, because it was an indecent service,
  therefore it was rented, says the record, at 26
  s, 8 d a year, at the King's exchequer. One
  Baldwin, also, formerly held those lands by the
  same service and was called by the nickname of
  Baldwin le Pettour, or Baldwin the Farter

10
Types of tenures

• BOCKHAMPTON, COUNTY OF BERKS.
• William Hoppeshort holds half a yard-land, in
  that town, of our lord the King, by the service
  of keeping for the King six damsels, to wit,
  whores, at the cost of the King. This was called
  pimp tenure

11
Henry II the Father of the Common law

• Curia Regis
• General Eyre and Assizes
• Assize of Clarendon 1166 12 freemen from the
  hundred and 4 from the town
• Henry, Richard Coeur-de-Lion and John Lackland

12
Edward Longshanks Hammer of the Scots

• Parliament begins 1275
• The use of statute as opposed to ordinance

13
Curia Regis embryonic courts

• Court of Exchequer revenue
• Court of Common Pleas civil actions
• Court of Kings bench crime
• Remaining Council functions split into
• Kings Council later Concilium Regis and then
  Privy Council

14
Land Reforms under Longshanks

• Statutes of Westminster (1285) De donis
  conditionalibus fee tails
• Quia Emptores (1290) end to frankalmoin and end
  to subinfeudation

15
The Writ System

• Bureacracy
• Organisation of wrongs
• Remedies
• Popularity
• Recording
• Stare Decisis
• Common law
• Seisin

16
Types of legal estate

• Freehold estates
• Fee Simple closest to absolute ownership -
  rules of primogenture escheat
• 1540 Statute of Wills - later recognition that
  can be passed by will simple meant that it
  could pass to any heir unlike the fee tail which
  must pass to particular heirs

17
Freehold

• Absolute interest
• Determinable interests the occasion of some
  event will cause the fee simple to revert eg to
  y and his heirs so long as St Pauls Cathedral
  shall stand
• - a possible or latent reverter interest
• - words used while, during, so long as,
  until

18
Freehold

• Conditional a subsequent condition on the
  devise which states that the occurrence of some
  event will allow the grantor to take back the
  interest eg to Y and his heirs on the condition
  that the property is not used to sell liquor
  only exercised by right of entry
• words used on the condition , but if,
  provided that

19
Fee tail

• Fee tail- a disposition that would last only
  while the heirs of that person would last if
  they died out the interest would revert back to
  the heir of the original owner way of keeping
  land in the family and restraining any
  disposition
• Tail male male descendents specified
• Tail female female descendents
• Special tail the descendants of a particular
  wife

20
Fee Tail

• Made possible in De Donis Conditionalibus lords
  wanted control over who would get estate so
  that despite any attempt to alienate the interest
  the interest would past to the designated heir on
  death
• Barring the entail - Common recovery/fine
  collusive court actions
• Now abolished Cact 19

21
Life estate

• Life estate granted to a person for life
• Pur autre vie for the life of another to A
  for the life of B or where A has a life
  interest (to A for life) and A alienates that
  interest during his life time
• In either case when the life tenant died the
  interest terminated

22
Future interests

• Already apparent that estates allow in to be
  granted for the future eg to A for life and then
  to B in fee simple
• Bs estate is a future estate it doesnt come
  into being until the death of A
• Reversions a grant of an estate in possession
  which returns to the grantor eg X grants and life
  estate to Z hence X is the reversioner

23
Future interests

• Remainders - a grant of a future interest to some
  one who did not have a previous interest eg to
  W for life and then to Y in fee simple Y is the
  remainderman or remainder

24
Vested and Contingent Remainders

• the rules concerning future interests require the
  interest to vest or fructify by a certain time
  if it does not then the interest will fail
• An interest vests when the identity of the
  interest holder is ascertained and when there is
  no condition precedent other than the normal
  determination of prior estates
• to A for life and then to B in fee simple -
  Vested
• To A for life remainder to B in fee simple if B
  attains 25 years - Not vested

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Vested and Contingent Remainders

• To A for life remainder to B in fee simple if B
  attains 25 years - Not vested
• Why? Bs interest is contingent unless he has
  already achieved the age of 25 when the clause
  was written that is the fact that he must be 25
  is a contingency which must be satisfied for the
  property to vest in him

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Interests in Land that are less than freehold

• Leases
• Easements
• Profits a Prendre
• Restrictive Covenants
• Mortgages

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Old System Title

• Feoffment with livery of seisin
• Charter of feoffment
• Deeds Lord Westbury disgusting
• Chain of title

28
17th Century changes

• Tenures Abolition Act 1660 socage tenure
• An Act for Prevention of Frauds and Perjuries
  1677 now in the Conveyancing Act 1919

29
The requirements for writing

• 23B Assurances of land to be by deed
• No assurance of land shall be valid to pass an
  interest at law unless made by deed.
• 23C Instruments required to be in writing
• Subject to the provisions of this Act with
  respect to the creation of interests in land by
  parol (a)  no interest in land can be created or
  disposed of except by writing signed by the
  person creating or conveying the same, or by the
  persons agent thereunto lawfully authorised in
  writing, or by will, or by operation of law, .

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The requirements for writing

• 23D   Creation of interests in land by parol
• (1)  All interests in land created by parol and
  not put in writing and signed by the person so
  creating the same, or by the persons agent
  thereunto lawfully authorised in writing, shall
  have, notwithstanding any consideration having
  been given for the same, the force and effect of
  interests at will only.
• (2)  Nothing in this section or in sections 23B
  or 23C shall affect the creation by parol of a
  lease at the best rent which can reasonably be
  obtained without taking a fine taking effect in
  possession for a term not exceeding three years,
  with or without a right for the lessee to extend
  the term at the best rent which can reasonably be
  obtained without taking a fine for any period
  which with the term would not exceed three years.

31
The requirements for writing

• 54A Contracts for sale etc of land to be in
  writing
• No action or proceedings may be brought upon any
  contract for the sale or other disposition of
  land or any interest in land, unless the
  agreement upon which such action or proceedings
  is brought, or some memorandum or note thereof,
  is in writing, and signed by the party to be
  charged or by some other person thereunto
  lawfully authorised by the party to be charged

32
The requirements for writing

• 23E   Savings in regard to secs 23B, 23C, 23D
• Nothing in section 23B, 23C, or 23D shall
  (a)  invalidate any disposition by will, or
• (b)  affect any interest validly created before
  the commencement of the Conveyancing (Amendment)
  Act 1930, or
• (c)  affect the right to acquire an interest in
  land by virtue of taking possession, or
• (d)  affect the operation of the law relating to
  part performance.

33
Colonial Australia

• The status of the local laws of a colony depended
  upon whether it was
• a conquered colony or
• a settled colony (terra nullius- an empty land)

34
Colonial Australia

• Australia was treated as being settled as it was
  considered to be unoccupied, that is, as terra
  nullius or was it?
• No recognition of Aboriginal laws or customs?
• Aboriginal land rights not recognised?

35
Terra nullius

• International law of conquest, cessation or
  settlement
• Effect of law of inhabitants
• Imperial authorities assumed settlement theory
• Respect for native inhabitants
• Ambiguous position

36
R v Ballard or Barrett 1829 NSWSupC 26 sub
nom. R v Dirty Dick (1828) NSW Sel Cas (Dowling)
2

• Charge of Murder of one native by another
• Forbes CJ - I believe it has been the practice of
  the Courts of this country, since the Colony was
  settled, never to interfere with or enter into
  the quarrels that have taken place between or
  amongst the natives themselves.  This I look to
  as matter of history, for I believe no instance
  is to be found on record in which the acts of
  conduct of the aborigines amongst themselves have
  been submitted to the consideration of our Courts
  of Justice.  It has been the policy of the
  Judges, I assume of the Government, in like
  manner with other Colonies, not to enter into or
  interfere with any cause of dispute or quarrel
  between the aboriginal natives.  In all
  transactions between the British Settlers the
  natives, the laws of the mother country have been
  carried into execution.  Aggressions by British
  subjects, upon the natives, as well as those
  committed by the latter upon the former, have
  been punished by the laws of England where the
  execution of those laws have been found
  practicable.  This has been found expedient for
  the mutual protection of both sorts of people
  but I am not aware that British laws have been
  applied to the aboriginal natives in transactions
  solely between themselves, whether of contract,
  tort, or crime.  Indeed it appears to me that it
  is a wise principle to abstain in this Colony
• The accused was released

37
R v Boatman or Jackass and Bulleye (1832) NSW Sel
Cas (Dowling) 6 1832 NSWSupC 4

• Sheep stealing
• The first question for consideration is whether
  the aboriginal natives of this Colony are subject
  to the jurisdiction of this court by the law of
  England.  The general principle acted upon, I
  believe, with respect to these people since the
  foundation of this as a British Colony, is to
  regard them as being entirely under the
  protection of the law of England for offences
  committed against them by the white settlers
  subjects of the Crown, on the other hand to
  render them liable for any infraction of the
  British Law which may be injurious to the persons
  or properties of His Majesty's white subjects. 
  We interfere not with their own habits, customs
  or domestic regulations,4  but leave them to
  adjust their own disputes differences amongst
  themselves.  Dirty Dick's case.5  Vol. 22 p.
  98.  But before a person of this description can
  be tried in this court it must be made to appear
  that he understands what is passing is sensible
  of the liability he incurs for if he does not
  understand what is passing he must be regarded as
  a person deaf dumb, or a lunatic.  In other
  words he must be a reasonable responsible
  being.  Rex vBinge Mhulto6  Vol. 9. P. 100 but
  if he be a reasonable being, understand the
  nature of his present responsibility p. 12
  then, I hold, as at present advised, that he is
  liable to the Britis sic law.  His anomalous
  position as a savage native of a country which
  has become the territory of the British Crown,
  disentitles him7  to the privileges of a
  foreigner, of being tried by a jury half English
  half foreigners, even if the Act for the
  administration of justice in this country would
  authorize us in adopting a course of trial for
  which we have no machinery.  Where should we find
  the materials for such a jury?
• Found guilty but released becuase they didnt
  understand their wrongdoing

38
R v Jackey 1834 NSWSupC 94

• Forbes CJ white murdered by black
• If in a newly inhabited country, there be no
  municipal law, then the law of nature comes into
  operation for if it were not so, the law of
  retaliation or self-defence would be acted upon. 
  It was then as much for the benefit of the black
  as the white portion of the community, that the
  protection of the law should be equally afforded
  them it was a reciprocal protection, founded on
  the dictates of policy, justice and humanity. 
• Jury found accused guilty of manslaughter -
  transportation

39
R v Murrell and Bummaree (1836) 1 Legge 72
1836 NSWSupC 35

• Jack Congo Murrell was charged with murdering
  Jabbingee at Windsor Richard Windeyer argued
  that Murrell was not subject as he received no
  protection from the Crown
• Burton J (Forbes CJ and Dowling J) and no
  aboriginal law lewd superstitions
• NSW was unoccupied by a nation
• 1st although it be granted that the aboriginal
  natives of New Holland are entitled to be
  regarded by Civilized nations as a free and
  independent people, and are entitled to the
  possession of those rights which as such are
  valuable to them, yet the various tribes had not
  attained at the first settlement of the English
  people amongst them to such a position in point
  of numbers and civilization, and to such a form
  of Government and laws, as to be entitled to be
  recognized as so many sovereign states governed
  by laws of their own
• English law applied

40
R v Bonjon (1998) 3 Australian Indigenous Law
Reporter 410-425 1841 NSWSupC 92

• Bon Jon charged with murdering Yammowing at
  Geelong
• Willis J -The Report further states, "It might be
  presumed that the native inhabitants of any land,
  have an incontrovertible right to their own soil
  it is a plain and sacred right which seems not to
  have been understood.  Europeans have entered
  their borders uninvited, and when there, have not
  only acted as if they were the undoubted lords of
  the soil, but have punished the natives as
  aggressors if they have evinced a disposition to
  live in their own country.  If they have been
  found upon their own property (and this is said
  with reference to the Australian Aborigines) they
  have been hunted as theives and robbers they
  have been driven back into the interior as if
  they were dogs or kangaroos."  To elucidate so
  far as I am able the point for decision, I will
  first briefly trace the history of this colony
  and of the settlement of this district, at the
  same time remarking on the character which has
  been given of the Aborigines and in the second
  place, state so much of the acknowledged law of
  nations and the manner it has been acted upon
  with regard to Aborigines, as seems to me to bear
  on the subject, adding a few notices of the
  manner in which uncivilized tribes have been
  treated with in other British Colonies, and the
  steps taken in Colonies where English law was in
  force.  I will premise that the policy, or
  impolicy of an existing system can avail nothing
  in the present instance.  I am here as a Judge to
  declare the right, and not to have recourse to
  the expedient.  I can never permit the end to
  justify any undue means for its accomplishment. 
  This may be policy and wisdom in a statesman, but
  it is little less than treason in a Judge.

41
R v Bonjon (1998) 3 Australian Indigenous Law
Reporter 410-425 1841 NSWSupC 92

• Willis J - I desire to see the state of the
  Aborigines of Australia improved, I desire to see
  them freed from the yoke of error to see the
  duties of humanity amply and practically
  fulfilled to see all due protection extended to
  this unhappy race the protection of their
  rights by laws adapted to their capacity and
  suited to their wants the protection of all
  equal and all powerful justice.
• Bon Jon was ordered to stand trial but Willis J
  reserved the issue of jurisdiction
• He was later released without trial
• Dowling CJ was very critical of the decision
  because he believed that Murrell had decided
  these issues

42
Attorney General v Brown (1847) 1 Legge 312

• 1847 challenge by coal miner of ownership in
  the Crown absolute title in the Crown from 1788
  and passing reference to the fact that aboriginal
  title would b inconsistent with the Crowns
  ownership
• NB barrister Richard Windeyer was said to have
  called his opposition, John Darvall, a liar and
  he shaped up to fight him in court. They both
  spent Xmas in 1846 in Darlinghurst gaol for
  contempt.

43
Cooper v Stuart (1889) 14 App Cas 286

• 1889 reservation of Crown right to take land
  for public purposes
• Argued to be offensive to rule against
  perpetuities
• PC NSW was a tract of territory practically
  unoccupied, without settled inhabitants or
  settled law, at the time it was peacefully
  annexed to the British dominions

44
Mirrilpum v Nabalco

• 1970 first land rights action restraint of
  mining without consent Blackburn J there was
  a system of law but the issue was one of law and
  not of fact not a property holding in any sense
  of the common law hence not enforceable

45
Mabo Nos 1 and 2

• No 1 interlocutory preliminary issue
  concerning validity of a declaratory Act by the
  Queensland government to extinguish the title of
  the Murray islanders held to be in breach of
  the RDA
• No 2 instituted 1982 decided 1992 original
  jurisdiction of the High Court
• Moynihan J of SC QLD for facts found complex
  land ownership plots and gardens
• Decision (61) in favour of a concept of native
  title

46
Mabo Nos 1 and 2

• Terra Nullius
• Found to not be a common law principle but of
  international law the true common law principle
  is that of the law of settlements Australia is
  regarded as such a territory all judges agreed
  that Australia was settled, despite the fact of
  prior occupation of Aboriginal people hence the
  real issue was the relevance of terra nullius to
  Australian law settlement is not a bar itself
  to recognizing native title sovereignty could
  not be questioned

47
Mabo Nos 1 and 2

• Sovereignty
• The sovereignty of Australia was not challenged
  in the proceedings indeed it could not be so
  challenged by an Australian municipal court
• The original sovereignty of the native
  Australians was not discussed there was a
  recognition that Aborigines had settled law
  (hence that aspect of terra nullius was rejected)

48
Mabo Nos 1 and 2

• What is native title?
• The conquering or the settlement of as colony
  does not automatically extinguish the rights of
  the original inhabitants to land
• Traditional Aboriginal occupancy of and
  connection with the land by a people, in accord
  with a system of laws and customs
• Content of rights determined by those laws and
  customs includes rights to fish hunt and gather
  (usufructory rights) but is varied by
  particular laws and customs can evolve over
  time
• Inalienable (except in accordance with the
  traditional laws and customs) can be surrendered
  to Crown

49
Mabo Nos 1 and 2

• How do you prove native title?
• Existence of identifiable group
• Traditional connection with or occupation of land
  under laws and customs spiritual more than
  occupation special and exclusive ( 4 judges)
  Toohey various interests
• Substantial maintenance of connection - physical
  occupation not necessary

50
Mabo Nos 1 and 2

• How is it extinguished?
• Crown did not take an absolute title but a
  radical title, which gave sovereignty but not
  ownership native title is a burden
• Radical title grants power to extinguish without
  consent - clear and plain intention to
  extinguish freehold, leasehold extinguishes
  pastoral leases?
• No duty to pay compensation (33 split in
  majority and Dawson J also in favour of no
  compensation) nt not accorded full respect
• Constitution S 51(xxi)? Only Deane and Gaudron
  JJ

51
Mabo Nos 1 and 2

• How then can native title be protected?
• RDA immunity from wrongful deprivation

52
Mabo Nos 1 and 2

• Fiduciary duty
• General obligation to protect welfare Toohey J
  limitation on Parliamentary omnicompetence
• Specific obligation to protect property - no
  clear decision Hints in Brennan, Dean and
  Gaudron JJ

53
Native Title Act 1993

• Categorises acts past acts after RDA and before
  NTA
• A extinguish native title grant of freehold,
  commerical lease, public works
• B extinguish to inconsistency not A acts or
  mining leases not a commercial lease
• C non-extinguishment mining leases
• D any act not A,B,C - easements licenses and
  permits non extinguishment

54
Native Title Act 1993

• Compensation on just terms for extinguishment
• Future acts passing legislation after 1 July
  1993 or the doing of some other act after 1
  January 1994 Permissible future acts treat
  the same compensation payable for
  extinguishment
• Right to negotiate concerning future acts of
  government agreements accepted by NTT and
  registered with FC

55
Wik and Thayorre Peoples case (Wik)

• Issue concerned the effect of pastorals leases on
  land claimed by two clan groups question of
  extinguishment
• Wik peoples pastoral leases do not confer
  exclusive possession - are statutory creatures
  and must be interpreted as such no language of
  extinguishment look to the facts of the grant

56
Wik and Thayorre Peoples case (Wik)

• Decision 43 in favour of the Wik and Thayorre
• Statutory Interpretation - clear and unambiguous
  language majority said that language of statute
  and practical exercise of the lease the key
• History of Pastoral Leases sui generis
  statutory land holdings not leasehold tenures
  and as such no automatic right to exclusive
  possession
• Brennan CJ (minority) ordinary technical use of
  leasehold terms indicates intention for exclusive
  possession

57
Wik and Thayorre Peoples case (Wik)

• Extinguishment Majority said that no clear
  intention in words of grant mean that no
  extinguishment Toohey, Gaudron and Gummow JJ
  specific focus on exercise of rights and conflict
  with actual Aboriginal custom Kirby J only the
  grant itself
• Radical Title and reversion even if the grant
  did not extinguish did the reversion back to the
  Crown extinguish? Brennan CJ no way doctrine of
  estates says that a reversion gets fill
  beneficial interest hence extinguish majority
  said look to the statute too much to
  automatically presume that doctrine of estates
  applies
• Suspension and revival - fiduciary duty - not
  answered

58
Since Wik

• 10 point plan
• Yanner v Eaton 1999 HCA 53 native title
  includes the right to hunt fauna including
  crocodiles for food and ceremony. The native
  title protection overrules State law prohibiting
  hunting because of s 109 conflict
• Commonwealth v Yarmirr (the Croker Island case)
  - native title rights over the sea exist but
  limited to traditional uses

59
Since Wik

• Western Australia v Ward 2002 HCA 28 evidence
  of native title
• Wilson v Anderson 2002 HCA 29 no native title
  in NSW Western lands division
• Yorta Yorta Peoples occupation but not
  substantial connection

60
Introduction to Equity - The Office of the Lord
Chancellor

• Around since Norman times
• Keeper of the Kings Conscience
• Cleric and Keeper of the Great Seal
• Member of Lords, Judge and Church
• Lord Cottenham
• Lord Falconer

61
Chancery as a Court

• Around the 15th century
• Function to repair the failings of Common law
• Principles of Christian fairness/conscience
• Maxims of equity
• Substance not form
• Does not assist a volunteer
• Equity follows the law
• Clean hands
• Discretion and the Chancellors foot
• The two streams law and equity

62
What does Equity do?

• Parkinson
• (i) the exploitation of vulnerability or
  weakness, as exemplified in principles relating
  to unconscionable dealing and undue influence
• (ii) the abuse of positions of trust or
  confidence, as exemplified in the law of trusts
  and fiduciary obligations generally
• (iii) the insistence upon rights in circumstances
  which make such insistence harsh or oppressive as
  exemplified in relief from penalties and
  forfeiture, the law of equitable set-off, and the
  refusal of specific performance on the
  discretionary ground of hardship
• (iv) the inequitable denial of obligations, as
  exemplified in the doctrine of part performance
  and the principle of equitable estoppel
• (v) the unjust retention of property, as
  exemplified in certain constructive trusts and
  principles of subrogation

63
The relationship between CL and Eq

• James VI of Scotland
• The rise of protestantism
• Absolutism of sovereign Divine Right of Kings
  or King-in-parliament?
• Bacon Ellesmere Earl of Oxfords case

64
Earl of Oxfords case

• The Office of the Chancellor is to correct Mens
  consciences for Frauds, Breach of Trusts, Wrongs
  and oppressions, of what Nature soever they be,
  and to soften and mollify the Extremity of the
  Law ... When a Judgment is obtained by
  Oppression, Wrong and a hard Conscience, the
  Chancellor will frustrate and set it aside, not
  for any error or Defect in the Judgment, but for
  the hard Conscience of the Party.

65
The legalisation of equity

• The Civil War equity nearly destroyed
• Lord Nottingham (1673-82) father of equity
• Lord Eldon (1801-27) modern rules
• Precedent and fixation
• Appointment of VC
• Poor administration
• Infamous delay record 16 years and still
  interlocutory

66
19th Century reforms

• Bentham and the dog law
• Judicature Acts 1870s 1970s
• Fusion fallacies
• Salt v Cooper (1880) 16 ChD 545 at 549, Jessel MR
  said of the effect of the Act
• It has been sometimes inaccurately called 'the
  fusion of Law and Equity' but it was not any
  fusion, or anything of that kind it was the
  vesting in one tribunal the administration of Law
  and Equity in every cause, action, or dispute
  which should come before that tribunal. To
  carry that out, the Legislature did not create a
  new jurisdiction, but simply transferred the old
  jurisdictions of the Courts of Law and Equity to
  the new tribunal, and then gave directions to the
  new tribunal as to the mode in which it should
  administer the combined jurisdictions.
• The two streams in one courtWindeyer J in Felton
  v Mulligan (1971) 124 CLR 367 at 392 1972 ALR
  33 at 46

67
Property in CL

• Universalized, reified, fetishized the
  materialization of the common law
• Formality
• Creation
• Transfer
• Rights recognised in contract and tort breach
  of contract, trespass, negligence
• Remedies for breach of property rights damages
• CL makes orders about the property not the people

68
Property in Eq

• Substance
• Conscience
• Power
• Responsibility lunacy, infants, married woman
• Trust and confidence
• BUT through the logic of precedent not unfettered
  discretion
• Rights recognised through doctrines of equity
  misrepresentation, undue influence, duress,
  unconscionability, fiduciary relationships, part
  performance, equitable estoppel, breach of
  confidence
• Remedies injunctions, specific performance,
  constructive trusts, personal orders
• Equity makes orders about the people not the
  property

69
Property in Eq

• Equitable property or interest (equitable fee
  simple, mortgages, covenants etc)
• Personal Equities (Gill v Gill)
• Mere Equities (Latec)

70
Case study 1 When contracts go bad

• A (vendor) exchanges contracts with B (purchaser)
• A gets a better offer from C (he knows about Bs
  offer) and completes the sale to C before B knows
• Common law approach? Breach and damages no
  property held by B
• Equitable approach breach and specific
  performance
• But what about the property interests?

71
Case study 1 When contracts go bad

• In common law B is not the owner as the contract
  has not been completed so the property cannot be
  returned
• In equity, the rule in Lysaght v Edwards says
  that B gets an equitable interest from the
  exchange and that it is a form of constructive
  trust, which can be enforced against C (when he
  knows about B)

72
Case Study 2 Fat Henry and the problem of trusts

• Henry and the purse strings
• Taxation in Tudor England feudal tenures
• Primogeniture
• Devising land by will
• The legal remainder rules

73
The use

• A --------------------------B --------------------
  C
• (Landowner) (feoffee to use ) (cestui que use)
• Legal estate Beneficial estate
• CL Equitable

74
The emergence of the trust

• Collapse the use
• Springing uses
• The use on the use then the trust
• Equity creates property where there was none
  before

75
Case study 3 Specific performance and rule in
Walsh v Lonsdale (1882) 2 Ch D 9

• A Lease for a mill for 7 years
• An agreement to create a deed but no deed
• Agreement was for rent payable quarterly with an
  entitlement of the landlord to request a year in
  advance
• Tenant entered into possession and paid rent for
  18 months
• Landlord levied distress tenant refused and
  sought an injunction
• The agreement was in writing so satisfies s 54A
  and s 23C BUT not s 23B

76
The requirements for writing

• 23B Assurances of land to be by deed
• No assurance of land shall be valid to pass an
  interest at law unless made by deed.
• 23C Instruments required to be in writing
• Subject to the provisions of this Act with
  respect to the creation of interests in land by
  parol (a)  no interest in land can be created or
  disposed of except by writing signed by the
  person creating or conveying the same, or by the
  persons agent thereunto lawfully authorised in
  writing, or by will, or by operation of law, .

77
The requirements for writing

• 54A Contracts for sale etc of land to be in
  writing
• No action or proceedings may be brought upon any
  contract for the sale or other disposition of
  land or any interest in land, unless the
  agreement upon which such action or proceedings
  is brought, or some memorandum or note thereof,
  is in writing, and signed by the party to be
  charged or by some other person thereunto
  lawfully authorised by the party to be charged
• CL says no but equity says maybe

78
Walsh v Lonsdale

• Equity looks on as done that which ought to be
  done
• Jessel MR at 15
• There are not two estates as there were
  formerly, one estate at common law and an
  estate in equity under the agreement. There is
  only one Court, and the equity rules prevail in
  it. The tenant holds under an agreement for
  lease. He holds therefore, under the same terms
  in equity as if a lease had been granted, it
  being a case in which both parties admit that
  relief is capable of being given by speci?c
  performance.

79
Chan v Cresdon Pty Ltd (1989) 168 CLR 242

• Cresdon agreed in writing to lease land to
  Sarcourt.
• The agreement contained the terms of the lease as
  an annexure.
• The lease was duly executed but never registered.
  
• Sarcourt defaulted under the lease and Cresdon
  took action against Chan as guarantor of the
  unregistered lease.
• Cresdons action against Chan was stated as being
  one taken on the guarantee under this lease.
• Cresdons action was unsuccessful.
• The court held that as there was no registered
  lease there was no enforceable guarantee.
  Cresdons alternative claim was based upon the
  rule in Walsh v Lonsdale.

80
Chan v Cresdon Pty Ltd (1989) 168 CLR 242

• This claim also was unsuccessful. In coming to
  its conclusion the court ruled that, although the
  rule in Walsh v Lonsdale meant that an agreement
  to lease gave rise to an equitable lease, it did
  not create a legal interest. A consequence of
  this is that the equitable lessee will be
  defeated by a bona ?de purchaser of the legal
  estate who acquires the legal estate for valuable
  consideration and without notice of the equitable
  lease

81
Chan v Cresdon Pty Ltd (1989) 168 CLR 242

• The court also con?rmed that the operation of the
  rule depended upon the availability of speci?c
  performance of the agreement to lease.
• In the circumstances of the case, two facts
  raised doubts as to the availability of speci?c
  performance. First, Cresdon had in the meantime
  mortgaged the property. Second, the lease had
  come to an end before the expiration of the term
  due to Sarcourts breach.

82
Case Study 4 the Doctrine of Part Performance

• What if there is no writing at all?
• What if you borrow some money off your friend and
  as security you give her your title deeds?

83
Case Study 4 the Doctrine of Part Performance

• For the doctrine of part performance to apply,
  three matters need to be established.
• First, the acts done must be done by the party to
  the contract seeking to rely on the doctrine, or
  his or her authorised agent McBride v Sandland
  (1918) 25 CLR 69 at 79.
• Second, it must be shown that the acts done by
  the plaintiff were permitted, but not necessarily
  required, to be done by the terms of the oral
  agreement Regent v Millett (1976) 133 CLR 679 at
  683

84
Case Study 4 the Doctrine of Part Performance

• The third matter to be established for the
  doctrine to apply is that the acts done must be
  unequivocally and in their own nature referable
  to a contract of the general nature of the
  alleged oral agreement McBride v Sandland (1918)
  25 CLR 69 at 78.
• In establishing this element it is generally
  accepted that the court looks at the acts done
  and then judges to see if there is an implication
  of an agreement of the type alleged, rather than
  looking at the terms of the alleged oral
  agreement and judging if the acts are
  inconsistent with such an agreement McBride v
  Sandland

85
Maddison v Alderson (1883) 8 App Cas 467

• Alderson cared for Maddison doing the housework
• Maddison promised that Alderson would be granted
  a life estate for her work
• The will left Alderson a life estate be it was
  not valid
• The son argued that he should be given the house
• Alderson argued that there was a valid contract

86
Maddison v Alderson (1883) 8 App Cas 467

• The claim for part performance failed because the
  acts performed might have been given for love and
  affection
• There have not been wanting cases in which time
  and care have been bestowed by one person upon
  another, even from a vague anticipation that the
  affection and gratitude so created would, in the
  long run, ensure some indefinite reward. And
  legal tribunals have refused in those cases to
  turn courtesy into contract and compel any
  payment although such service had been performed

87
Cooney v Burns (1922) 30 CLR 216

• Agreement to purchase a lease of a hotel (plus
  some other items of furniture)
• An agent agreed to the sale, money was paid and
  documents were drafted for the assignment of the
  lease but not executed
• But there was no giving of possession
• Trial judge found that there had been sufficient
  acts of part performance

88
Cooney v Burns (1922) 30 CLR 216

• Majority (Isaacs, Higgins, Starke JJ) find no
  part performance
• (1) The taking of the inventory? No, just a check
• (2) The handing over of the lease? No, just
  inspection
• (3) Incurring legal expenses? No
• (4) The payment of money No not sure if it
  relates to the contract

89
Cooney v Burns (1922) 30 CLR 216

• Starke J
• The act found by the jury in this case is, I
  think, unequivocally and of its own nature
  referable to some such agreement as is alleged by
  the plaintiff, but it does not change the
  relative positions of the parties as to the
  subject matter of the contract, namely, the land.
  The delivery of the lease for the purpose of
  preparing an assignment did not alter the title
  in the land, it did not affect the possession or
  the right to possession of the land, and it did
  not affect the use of the land or touch or
  concern the land in any way whatever. A deposit
  of title-deeds by way of security affects the
  title to the land, and therefore alters the
  position of the parties as to the land itself.
  So, again, the laying out of money in
  improvements on the land changes the position of
  the parties in relation to the use of the land.
  On the contrary, any acts preparatory to the
  completionnot the formationof the contract do
  not alter the position of the parties in relation
  to the land. Examples of this latter class of
  case may be found in Maddison v. Alderson94,
  and, in my opinion, the present case falls within
  the same category. The finding that an inventory
  of furniture was taken in performance of the
  contract stands in no different position.

90
Regent v Millett (1976) 133 CLR 679

• Regent purchased a property in the Sydney suburb
  of Sefton by providing 1000 of his own money and
  borrowing 3500.
• He orally agreed with the Milletts (his daughter
  and son-in-law) that, in return for payment of
  1000 and an agreement to make the repayments on
  the 3500 loan, they could live in the house and
  have it transferred into their names when all the
  payments had been made.
• The payments were made. However, Regent refused
  to uphold his part of the bargain.
• The Millets obtained an order for speci?c
  performance based upon the doctrine of part
  performance.
• The principal act relied upon by the High Court
  was the taking of possession of the Sefton
  property by the Milletts.
• The High Court held that this was an act
  permitted, but not required, to be performed by
  the oral contract. Nevertheless, it was, of
  itself, suf?cient to attract the operation of the
  doctrine as an act in performance of the oral
  contract

91
Payment of money?

• The traditional view has been that a payment of
  money alone cannot be an act of part performance,
  simply because the payment of money does not
  point to a particular type of contract.
• However, a payment of money combined with other
  factors can allow a court to ?nd that part
  performance has been established

92
Payment of money?

• Most recently, in the New South Wales Court of
  Appeal decision of Khoury v Khouri (2006) 66
  NSWLR 241 at 268, Bryson JA said
• Acts on the land can much more readily be seen as
  unequivocally referable to the contract than
  payments of money. The anomaly of not recognising
  payment as an act of part performance is clear
  Unless authoritatively directed to do otherwise,
  my view is that the Court of Appeal should apply
  the doctrine of part performance as it has
  received it, according to the terms in which it
  has been recognised in decisions of the High
  Court of Australia in cases such as McBride v
  Sandland and Regent v Millett. The
  unavailability of payments as acts of part
  performance is part of what has been so received.

93
Theodore v Mistford Pty Ltd 2005 HCA 45 221
CLR 612

• Son wants to buy a business but doesnt have
  enough money and cant get a loan
• The business owners will sell but with a loan
  back but want extra security
• Son gets mum to offer up her house as security
  deposit of title deeds
• Did she go guarantor as well?

94
Registration Systems

• Problems with fraudulent transactions in the
  early colony
• 1800 order of Governor King that all agreements
  concerning land be in writing or entered into
  books kept at Sydney, Parramatta and Hawkesbury
• 1802 Judge Advocates office
• 1817- Gov Macquarie Fraudulent against a bona
  fide purchaser for value
• 1825 Registration Act substantially amended
  over time and then repealed in 1984 and sections
  transferred into the Conveyancing Act

95
Torrens system

• Registration system
• State guaranteed title
• Indefeasibility and exceptions
• Legal (registered) and equitable (unregistered)
  interests
• Compensation

96
Example

• Barb steals Ables title documents and uses it to
  enter into a contract for sale with Clarence (who
  know nothing of the theft). Barb forges Ables
  signature and Clarence resgiters the conveyance
  once registered Ables interest in the property
  is defeated
• Compare old system with Torrens