MLL327 – Property Law

Prescribed Cases for

All Topics

Contents Page

Topic 1 – The Concept of Property

Yannar v Eaton (1999) 166 ALR 258

Cowell v Rosehill Racecourse (1937) 56 CLR 605

Topic 2 – Possession and Fixtures

Doodeward v Spence (1908) 6 CLR 406

Asher v Whitlock (1865) LR 1 QB 1

Perry v Clissold [1907] AC73

Mabo v Queensland (No 2)

Waverley Borough Council v Fletcher

Armony v Delamirie (1722)

Elwes v Brigg Gas Co (1886)

Parker v British Airways Board [1982]

Parker v British Airways Board [1982]

Waverley Borough Council v Fletcher

Costello v Chief Constable of Derbyshire Constabulary [2001]

Leigh v Taylor [1902] AC 157

Re Whaley [1908] 1 Ch 615

Pegasus Gold Australia v Mesto Minerals [2002]

Elitestone v Morris [1997] 1 WLR 687

Metal Manufacturers Limited v Federal Commissioner of Taxation [1999] FCA 1712

Topic 3 – Adverse Possession

JA Pye (Oxford) Ltd v Graham [2003]

Whittlesea City Council v Abbatangelo [2009]

Kierford Ridge v War [2005]

Topic 4 – Doctrine of Fixtures

Mabo v Queensland (No.2)

Topic 5 – Native Title

Milirrpum v Nabalco Pty Ltd [1972-3] (Gove Land Rights Case)

Mabo v Queensland (Mabo No 1) (1988) 166 CLR 186

Mabo v Queensland (Mabo No 2)

Members of the Yorta and Yorta Aboriginal Community v Victoria (2002) 214 CLR 422

Fejo v Northern Territory of Australia [1998] HCA 58

Bodney v Bennell (2008) 167 FCR 84

Wik Peoples v Queensland (1996) 187 CLR 1

Western Australia v Ward [2002] HCA 28

Yanner v Eaton (1999) 166 ALR 258

Topic 6 – Freehold Estates

Zapletal v Wright [1957] Tas SR 211

Hall v Bust

Nullagine Investments Pty Ltd v Western Australian Club (1993) 116 ALR 26

Elton and Another v Cavill and Another [No 2] 34 NSWLR 289

Topic 7 – Leases

Street v Mountford [1985] AC 809

Radaich v Smith (1959) 101 CLR 209

Bruton v London Quadrant Housing Ltd [2000] 1 AC 406

Walsh v Lonsdale (1882) LR 21

P & A Swift Investments v Combined English Stores Group [1989]

Jones v Bartlett (2000)

Progressive Mailing House v Tabali (1985)

Gumland Property Holdings v Duffy Bros Fruit Market (Campbelltown) (2008) CB 352

Topic 8 – Equitable Interests

DKLR Holdings (Case)

Calverley v Green (1984) 155 CLR 242

Trustees of the Property of Cummins (a bankrupt) v Cummins (2006) 80 ALJR 589

Muschinski v Dodds (1985) 160 CLR 583

Baumgartner v Baumgartner (1987) 164 CLR 137

Giumelli v Giumelli (1999) 161 ALR 473

Lysaght v Edwards 1876

Tanwar Enterprises Pty Ltd v Cauchi (2004) 217 CLR 315

Latec Investments Ltd v Hotel Terrigal Pty Ltd (1965) 113 CLR 265

Topic 9 – Easements

Ellenborough Park [1956]

Copeland v Greenhalf (1952)

Riley v Penttila [1974] VR 547

Farming Estates v Graham Rush Eaton (2002)

Dabbs v Seaman (1925) 36 CLR 538

North Sydney Printing v Sabemo Investment Corporation Pty Ltd [1971] 2NSWLR 150

Adealon International Pty Ltd v London Borough of Merton [2007] All ER 225

Wheeldon v Burrows (1879) 12 Ch D 31

McGrath v Campbell (2006) 68 NSWLR 229

Dalton v Angus (1881)

Treweeke v 36 Wolseley Road Pty Ltd (1973) CLR 274

Westfield v Perpetual (2007)

Bookville Pty Ltd v O’Loghlen [2007]

Topic 10 – Restrictive Covenants

Austerberry v Corporation of Oldham (1885) 29

Avoiding Austerberry

Thamesmead Town Ltd v Allotey [1998] 30 HLR105

Smith and Snipes Hall Farm v River Douglas Catchment Board 1949

Town of Congleton v Pattison (1808)

Tulk v Moxhay

Forestview & Silkchime v Perpetual

Clem Smith Nominees v Farrelly (1978) 20 SASR 227

Federated Homes v Mill Lodge Properties [1980] 1 WLR 594

Union of London and Smith’s Bank Ltd’s Conveyance [1933] Ch 611

Elliston v Reacher [1908] 2 Ch 374

Small v Oliver & Saunders [2006] EWHC 1293

Stanhill Pty Ltd v Jackson (2005) 12 VR 224

Topic 11 – Mortgages

Russel v Russel (1783) 1 Bro CC 269; 28 ER 1121

Wallis and Simmonds [1974] 1 WLR 391

Theodore v Mistford [2005] HCA 45

CNG Co (Aust) Pty Ltd v ANZ Banking Group (1992) 6 BPR 13

Campbell v Holyland (1878) 7 Ch D 166

Lift Capital Partners Pty Ltd v Merrill Lynch International (2009) 253 ALR 482

Pendlebury v Colonial Mutual Life Assurance Society Ltd (1912)

Upton Tasmanian Perpetual Trustees Ltd (2007) 242 ALR

Forsyth v Blundell (1973)

Topic 8 – Equitable Interests

Calverley v Green (1984) 155 CLR 242

Facts

- Mr C and Ms G in defacto partnership and break up

- House in Mr C’s name (legal title to Mr C)

- Mr C paid deposit, 1/3 purchase price

- Mr C and Ms G took out joint mortgage liability

- Mr C made most of the repayments

- Ms G claims she has an interest in the property due to accepting the joint mortgage liability

even though she made no payments

Issue

- Is there a presumption of a resulting trust?

- Does Mr C (100% legal title) hold a portion of beneficial title on trust for Ms G?

- Ms G’s portion as measured by her contributions to the purchase price? Or repayments?

Held

- Purchasers hold on trust for themselves in equal proportion to their contribution at the

time of purchase

- Ms G made contribution to the purchase price, ie taking on the mortgage liability.

- Irrelevant that C made most of the mortgage repayments. Liability is assessed at date of

purchase

- Thus beneficial interest was determined at date of purchase:

- C : 2/3 (1/3 deposit) (1/3 mortgage), G: 1/3 (mortgage)

- Contributions can include legal fees, stamp duty, mortgage liability cf repayments

Trustees of the Property of Cummins (a bankrupt) v Cummins (2006) 80 ALJR 589

Facts

- John Cummins QC didn’t lodge an income tax return from 1955 – 2000

- Declared bankruptcy

- Appellants were trustees of the bankrupt estate

- Largest creditor the ATO $955,672.92

- Trustees trying to claw back ½ of the marital home (worth over $1M)

- He transferred property into his wife’s name

Held

- Applying Calverly: Mrs Cummins contributed 76% of purchase price, Mr Cummins

contributed 24% of purchase price

- Calverley applying: each party holds beneficial interest in RT for themselves in % to PP

contribution

- Resulting Trust: Mrs C: 76%, Mr C 24%

- Could trustees rebut this presumption and take 50% of the house?

Court: “Where a husband and wife purchase a matrimonial home, each contributing to the purchase

price and title is taken in the name of one of them, it may be inferred that it was intended that each

of the spouse should have a one half interest in the property, regardless of the amounts contributed

by them. “

Presumption of RT rebutted by evidence of a contrary intention AT TIME OF PURCHASE:

- Intention to share as a marital home 50/50

- Joint tenancy (rather than tenants in common), so the couple wanted the doctrine of

survivorship to apply

- Many references to “their home”

- Married for a very long time

Muschinski v Dodds (1985) 160 CLR 583

Facts

- Mrs M and Mr D a defacto couple (>10 years)

- Legal title of property held in equal shares

- Mrs M paid 10/11ths of purchase price

- Intention was they would renovate land, build a cottage and business. Mr D would

contribute 50% share by working on the land.

- Business failed (no fault), defacto failed.

- Legal interest 50 /50

- Beneficial interest 90/10 (M/D)

- Per Calverley 90/10 RT BUT rebutted by common intention to be 50:50

- Evidence that this was always a 50/50 venture

- “It “was their shared indention that, from the time of purchase each should have a full one-

half beneficial as well as legal interest in the property. Mrs Muschinski’s intention was that

her own and Mr Dodds interest … in the whole venture should be equal. It should be a “joint

venture” a partnership”.

Held

- Mrs M argued: M did not intend to give him something for nothing

- 50:50 split was conditional on him working the land

- HC Appeal: “..it would be unconscionable (for the purpose of the relevant rules of equity)

after the failure of the joint venture between the parties for the man to assert his legal

entitlement without recognising the woman’s payment” (Deane J)

Court: “…where the substratum of a joint relationship or endeavour is removed without attributable

blame and where the benefit of money or other property contributed by one party on the basis and

for the purposes of the relationship or endeavour would otherwise be enjoyed by the other party in

circumstances in which it was not specifically intended or specially provided that that other party

should so enjoy it. The content of the principle is that, in such a case, equity will not permit that

other party to assert or retain the benefit of the relevant property to the extent that it would be

unconscionable for him so to do”

- “In these circumstances, the operation of the relevant principle is to preclude Mr. Dodds

from asserting or retaining, against Mrs. Muschinski, his one-half ownership of the property

to the extent that it would be unconscionable for him so to do.”

Outcome

- “the parties held their respective legal interests upon trust to repay to each his or her

respective contribution and as to the residue for both of them in equal shares.”

- So: Legal interest is 50/50

- Beneficial interest is 90/10 of the contributions

- Mr Dodds legal interest is held on trust ie 40% on trust for Mrs Muschinski.

- Residue: profits made from the sale of the property – split 50/50

Baumgartner v Baumgartner (1987) 164 CLR 137

Facts

- 4 year defacto relationship (1son)

- House and mortgage only in His name (intention to be a family home).

- Mortgage in His name only

- All salaries pooled into mortgage and living expenses

- Actual contributions He: 55%, She 45% (adjusted for 3 months mat leave)

Held

- A relationship is like a joint venture

- JV was maintaining a home for themselves and the child. Where JV fails, a constructive trust

can be imposed regardless of intention

- “In this situation it is proper to regard the arrangement for the pooling of earnings as one

which was designed to ensure that their earnings would be expended for the purposes of

their joint relationship and for their mutual security and benefit. “(Mason CJ, Wilson and

Deane JJ)

- “Equity favours equality and, in circumstances where the parties have lived together for

years and have pooled their resources and their efforts to create a joint home, there is much

to be said for the view that they should share the beneficial ownership equally as tenants in

common, subject to adjustment to avoid any injustice which would result if account were

not taken of the disparity between the worth of their individual contributions either

financially or in kind.”

- House held on trust for Him (55%) and for Her (45%)

Giumelli v Giumelli (1999) 161 ALR 473

Facts

- Son Robert Giumelli lived and worked on family land

- Promise 1: Mum (Rosa) and Dad (Giovanni/John) Giumelli promised Robert a portion of the

land in 1974 as compensation for working for no wages.

- Promise 2: 1980 Robert wanted to marry and built a house on the land. They promised him

the house and land would be his for his marital home (“The Promised Lot”

- Promise 3: 1981 To subdivide the property including the house and orchard if he stayed an

declined a job offer from his father in law

- 1983 Robert divorced.

- 1985, Robert wants to re-marry a woman his parents disapprove of

- Parents ultimatum to choose the property or the new wife

- Robert married the new wife and leaves property

- 1985 Son Stephen lived on the “Promised Lot” and made various improvements eg planting

trees

- Pickering Brook (16 acres)Legal title one name – Mr Giumelli Snr

- Dwellingup (338 acres) undeveloped – title in Mr and Mrs Giumelli’s name

- ISSUE: Do the Giumelli parents (legal title owners) hold a beneficial interest for the son

Robert based on contributions made due to a promise to give him “the Promised Lot” if he

worked for them?

- Would it be unconscionable to deny his beneficial title?

Held

- “The Full Court so interpreted the circumstances as obliging the appellants in good

conscience, not to retain their beneficial interest in the whole of the Dwellingup property

and as requiring them to answer the respondent’s equity by bringing about a subdivision of

the Promised Lot and conveying title to it. …

- … A constructive trust of this nature is a remedial response to the claim to equitable

intervention made out by the plaintiff. It obliges the holder of the legal title to surrender the

property in question…

- … the equity which founded the relief obtained was found in an assumption as to the

future acquisition of ownership of property which had been induced by representations

upon which there had been detrimental reliance by the plaintiff. This is a well recognised

variety of estoppel as understood in equity”.

- “However, qualification was necessary both to avoid injustice to others, particularly Steven

and his family, and to avoid relief which went beyond what was required for conscientious

conduct by Mr and Mrs Giumelli . The result points inexorably to relief expressed not in

terms of acquisition of title to land but in a money sum. This would reflect, with respect to

the third promise, the approach taken by R D Nicholson J when giving relief in respect of the

second promise.” GLEESON CJ, McHUGH, GUMMOW AND CALLINAN JJ

Lysaght v Edwards 1876

Held: Upon a binding contract of sale the beneficial ownership in equity passes to the purchaser held

on CT. Vendor has an equitable lien for balance.

- If the contract is specifically enforceable, the purchaser acquires an equitable interest in the

land

- Is there an institutional trust at the date of sale so that the Vendor holds the property on

trust for the purchaser until the 90% balance is paid?

- Lysaght says yes.

- Tanwar says no

Rule: “It appears to me that the effect of a contract for sale has been settled for more than two

centuries… The moment you have a valid contract for sale the vendor becomes in equity a trustee for

the purchaser of the estate sold, and the beneficial ownership passes to the purchaser.”

Problems in Lysaght:

- Once vendor is paid in full, but vendor still has legal title – assumes purchaser has 100%

beneficial title held on trust by vendor

- Definitely buyer gets 100% beneficial interest when pays 100%

- Circular – Contract capable of SP; this gives purchaser 100% beneficial interest held on Trust

by Vendor – Because Vendor is trustee – can be compelled to transfer land ie SP.

Tanwar Enterprises Pty Ltd v Cauchi (2004) 217 CLR 315

General Rule

- A constructive trust does not automatically emerge when the contract is signed as per

Lysaght

- Equity only intervenes when you are ready and willing to perform and thus specifically

perform the contract – eg all conditions are satisfied eg planning approvals Tanwar

- Doctrine of conversion triggers the beneficial interest when specific performance is ready

Facts

- Tanwar enters contract to by from Cauchi et al (the Vendors) $4.5M

- June 25 2001 settlement day and “time is of the essence”

- T arranging finance, finalised on June 26

- Vendors gave notice and terminated sale

- T had paid 10% deposit, $397,473 plus $80,000 in consideration for an earlier extension

- Revised contract was “time of the essence” and no refunds

- Claim: “it was unconscientious of the vendors to plead the essential time stipulation and its

breach as founding the purported termination on 26 June”

- Claim: sought specific performance of the contract but claims were rejected. No breach as

vendors properly exercised right to terminate

Held

- Vendors did nothing to contribute to the purchaser’s breach. Sophisticated commercial

parties

- The court then considered whether the equity jurisdiction applied at all – eg is there an

interest under a CT

- Doctrinal issue: What is the purchaser’s equitable interest here such that a court of equity

would protect?

- Applying Lysaght the purchaser’s equitable beneficial interest is held on constructive trust by

the vendor

- The purchaser’s equitable interest requires protection

Issues with Judgment

- Conceals the contractual and not fiduciary relations between the parties

- Ignores the fact that contracts are uncompleted

- Circular - Assumes the equity arises because specific performance available

Note:

- Citing Jacobs J in Chang v Registrar of Titles “where there are rights outstanding on both

sides, the description of the vendor as a trustee tends to conceal the essentially contractual

relationship which, rather than the relationship of trustee and beneficiary, governs the rights

and duties of the respective parties”

- Kern, Deane J said: “it is both inaccurate and misleading to speak of the unpaid vendor under

an uncompleted contract as a trustee for the purchaser”

- Contractual relationship is primary rather than the imposed trust relationship

- Purchaser who has paid a deposit has a right to recover that deposit. The equitable interest

is a lien

- Lien over the land or lien over the deposit not clear

- Equity does not intervene to reshape contract (Romanos v Pentagold Investments Pty Ltd)

Latec Investments Ltd v Hotel Terrigal Pty Ltd (1965) 113 CLR 265

Facts

- Mortgagee – fraudulent sale to subsidiary

- Mortgagor – equitable right to set aside the sale

- But waited 5 years to claim

- Subsidiary gave MLC a charge over Hotel Terrigal as security for finance

- MLC had no notice of the fraudulent sale

- ISSUE: MLC’s later equitable interest vs Hotel Terrigal’s earlier mere equity to set aside for

fraud

Held

- Unanimously that the mortgagor’s interest was postponed to the later equitable charge.

Various reasoning.

- Kitto J: the delay in bringing action constituted postponing conduct BUT the decisive factor

was that the mortgagor had a mere equity that could not prevail in competition with the

bona fide purchaser of an equitable estate without notice. (follows Phillips)

- Taylor J: although a right to set aside a transfer for fraud can be deemed an equitable

interest in property for the purposes of devisability and assignability, courts will not give it

precedence in competitions with a subsequent equitable interest of a bona fide purchaser.

(follows Stump)

- Menzies J – the right to set aside is an EI for the purpose of assignability BUT is a mere

equity in a priority dispute. Thus the classification of a right depends on what purpose it is

for. Note Menzies J not given in CB but has been applied in Victoria.