LWB233
Week 2
PRIORITIES
ELEMENT 1: Identify Parties
ELEMENT 2: Classify interests as legal or equitable


Use E as the symbol to identify the unregistered parties: ie E1 v E2. – will determine who is 1st in time.
Use R as the symbol to identify registered parties: ie R1 v R2. This will highlight first in time also.
ELEMENT 3: Apply the appropriate priority Rule
Legal v. Legal
General Law
 The earliest interest has priority.
Torrens
 Under ss.184 & 185 LTA, the second claimant (current registered party) will obtain indefeasible title
provided none of the exceptions apply. So the second legal interest is the one that succeeds.
Earlier Legal v. Later Equitable
General Law
 Generally the earlier legal interest will prevail. However this rule will not apply where there is:
1. Fraud; or
2. Negligence on part of the legal interest holder; or
3. Where Legal Interest Holder allows another to appear to be the true owner of the property.
 Therefore the legal interest holder’s disentitling conduct will lead to postponement of that prior legal
interest.
Torrens Law
 Under the Torrens System, the earlier legal interest will ALSO prevail unless the later equitable
interest holder falls within an exception to indefeasible title. (ie personal equity or fraud)
Example of an exception to the above general rule:
Barry v. Hyder
- B had a registered title.
- He signed a transfer of the title to Schmidt.
- A new title was being issued. Mr S also persuaded B to write a letter to the registrar directing that the
new title be sent to Mr S’s mortgagee and her name was Mrs H.
- Mrs H had given S the mortgage on the basis of the transfer and the letter to the registrar.
- B alleged fraud against S on the basis that he hadn’t been paid for the transfer.
Held:
- HC upheld the claim and cancelled the transfer but didn’t cancel the mortgage.
- They said that B’s legal title would be subject to Mrs H’s equitable mortgage because he had
represented by handing over the letter to Mrs H, that S had authority to deal with the land and had a
valuable assignable interest. (By giving S the transfer without getting the money, B was guilty of
disentitling conduct (Mrs H had done nothing wrong), so B’s legal interest was subject to H’s
equitable mortgage.)
Earlier Equitable v. Later Legal
Page 1
LWB233
General Law
 Under the general law, a bona fide purchaser for value WITHOUT NOTICE of any equitable
estate takes the legal title free of that equitable estate.

NOTE: If he/she HAS NOTICE, they take subject to the equitable estate under the general law.
 There are 3 kinds of notice:
1. Actual notice
– must have actual knowledge of the relevant facts (rumours of a fact is not actual knowledge, though it
can catch someone under other heads of knowledge).
2. Constructive notice
– notice which would have come to an inquirer’s notice if he or she had made all the relevant and usual
inquiries. (A purchaser under the general law would only be able to plead lack of any constructive
notice if they had made all the usual inquiries and nothing had turned up)
3. Imputed notice
– notice that is acquired or deemed to be acquired by an agent for a principal purchaser of an estate. It’s
imputed to the principal by the agent. The knowledge has to come to the agent’s notice during the
course of his/her agency.
Torrens
 Torrens is fundamentally different to the general law.
 Upon registration, a party usually obtains an indefeasible title to the property. Unless an exception to
indefeasibility applies, the interest of the registered proprietor will not be postponed to the earlier
equitable interest regardless of notice.
 Under the LTA, notice is abrogated on registration and a registered proprietor is not bound by anything
that is not noted on the register: s.184(2)(a), Friedman v. Barrett
Earlier Equitable v. Later Equitable
Sub-element 1: Has there been Notice?
IF YES:

Where the claimant of a later equitable interest has notice at the time the interest is acquired of the
earlier equitable interest, the claimant takes subject to the earlier equitable interest.
 There are 3 kinds of notice:
4. Actual notice
– must have actual knowledge of the relevant facts (rumours of a fact is not actual knowledge, though it
can catch someone under other heads of knowledge).
5. Constructive notice
– notice which would have come to an inquirer’s notice if he or she had made all the relevant and usual
inquiries. (A purchaser under the general law would only be able to plead lack of any constructive
notice if they had made all the usual inquiries and nothing had turned up)
6. Imputed notice
– notice that is acquired or deemed to be acquired by an agent for a principal purchaser of an estate. It’s
imputed to the principal by the agent. The knowledge has to come to the agent’s notice during the
course of his/her agency.


A caveat and/or a settlement notice lodged under the LTA will provide notice of an equitable interest
to anyone who searches the register.
It will also provide constructive notice where searching the register is one of those searches that ought
reasonably to be done.
IF NO:
Page 2
LWB233

Where there is no notice, there is a matter of competition b/w equitable interests.

If after a thorough examination of all the circumstances the equities are found to be equal, the 1 st
in time prevails– Under this rule, priority in TIME is a last resort. Rice v Rice
The Ct looked at 3 different things to come to a conclusion:
1. The nature and condition of each interest
2. The circumstances and the manner of acquisition
3. The overall conduct of the parties
 Rice v Rice
Particular attention is focused on the conduct of the earlier claimant to determine whether he or she
is guilty of any disentitling conduct.
EG – Has the earlier claimant does some act or omission by which it is reasonably foreseeable that a later
interest might be created without notice of the earlier claimants interests.
Rice v Rice
- The vendor handed over a certificate of title without getting paid. That purchaser (who had the title)
then got an equitable mortgage.
- The vendor was entitled to an equitable lien for payment of the purchase money, and the equitable
mortgagee.
Held
- But what the Ct found was disentitling conduct on the part of the vendor because he had handed over
the documents, hadn’t got paid, but represented to the world that the purchaser had legal title (if you
have legal title, you can deal with the property).
- Therefore, the vendor’s equitable lien which was first in time, was postponed.
Clark v. Raymor
- Mr and Mrs S owned a house in Brisbane.
- Mr S gave a guarantee to R.
- Part of the wording of that guarantee created an equitable charge over Mr S’s house, but the house
wasn’t identified in the statement.
- The S’s sold the house to the C’s. Between completion of that sale and registration of the transfer,
R lodged a caveat, claiming as an equitable chargee.
- This left R with an equitable charge (1st in time) competing with an equitable fee simple of the C’s.
Held:
- The Ct looked at the conduct of the parties and said that the Ct wasn’t limited in looking at the facts
and the circumstances (crt wasn’t limited in the time in which they could look at the facts). They
could look at the WHOLE conduct of the parties across the whole transaction.
- When they signed the K to buy the house, the Clark’s did not search the register first. However they
did search the register before they handed over the purchase money and there was nothing there
because R did not put the caveat on until after this happened.
- R tried to argue that you only have to consider the conduct of the prior equitable interest holder (which
is him) up to the time of creation of that second equitable interest (when C signed k for property). If
this was the case, there was no disentitling conduct because the clerk did not search the register before
their equitable interest was created.
- But the Ct didn’t look at it like that and the fact that R had not lodged a caveat before settlement was
irrelevant. Therefore R lost priority.
Heid v. Reliance Finance
- H had sold land to CI.
- An employee of CI was G and he was represented to H as a solicitor but also as an employee of CI.
- H was told that if he used G in the conveyance, everybody’s cost would be lower.
- G took the transfer and the certificate of title and most of the money remained unpaid, so Mr H had an
equitable lien over the land.
- CI granted two equitable mortgages.
Page 3
LWB233
- Heid (equitable lien) vs. CI (2 equitable mortgages)
Held:
- H lost priority because of his disentitling conduct, he handed over the title without getting the money.
- Gibbs and Wilson JJ said that it was a question of estoppel. It was an estoppel by representation that
caused H to lose his priority.
- Mason, Deane and Murphy JJ did not rely purely on estoppel, but accepted a more flexible approach,
followed Rice v. Rice
- Although the conduct of the parties is relevant in the practical sense, look at the conduct of the 1 st
equitable interest holder. If it is impeccable, there will be no loss of priority. If the conduct of the 1 st
equitable interest holder is not, their interest may be postponed. But not all the time, because if you
then look at the conduct of all the parties, and the 2nd interest holder has also done something wrong, it
is equal and the first in time prevails.

Whether the first or the second interest holder has priority, depends on the characterisation of that
first equitable interest (whether it’s a full equitable interest or a ‘mere equity’…)
Equity (or Mere Equity) v. Full Equitable Interest



Mere equities are lesser interests than a full interest, may be assigned.
They allow a holder the right to bring an action to obtain an equitable remedy against a person but the
enforceability of these rights under the general law and under the LTA is limited.
The subsequent appearance of a full equitable interest acquired bona fide without notice will
simply get priority (no need to show disentitling conduct on the part of that equity interest
holder)
Latec Investments v. Hotel Terrigal
- HT borrowed money from LI and couldn’t repay the money.
- Consequently, LI sold the hotel as mortgagees exercising power of sale.
- But LI sold it to SH which was a subsidiary of LI. There are certain duties that a mortgagee has to
comply with when exercising a power of sale and LI didn’t comply.
- HT did nothing for 5 years.
- During that time, the new hotel owners gave the trustees for MLC debenture holdings, security over
the hotel in the form of equitable charges.
- The HC had to decide whether HT had a full equitable interest or if it had a mere equity.
Held:
- The Ct was divided.
- Kitto said it was a mere equity because HT did have a right to have the sale set aside for fraud but that
it still had another step to go. When the Ct would have made the order setting the sale aside for fraud,
still all the hotel would have had would have been an equitable interest.
- Taylor J said that HT did have a full equitable interest but because a third party (who had no notice)
had intervened and had got rights (the equitable mortgagee), the HT equitable interest was postponed
and one of the elements was that they sat on their hands for 5 years.
- Menzies J attempted to rationalise the lines of authority and concluded that HT had a mere equity.
- On the one hand there was HT that needed the assistance of the Ct to get a full equitable interest and
on the other hand there were the equitable mortgagees (MLC debenture holders)
- HT’s interest was postponed to MLC.
ELEMENT 4: Caveats and Equitable Priorities

Look at the role of caveats and their affect on notice.

PRIMARY ROLE of a caveat - to freeze the register so that competing equitable interest
holders (or equitable interest holders) can work out who’s got the best right.
SECONDARY ROLE - the caveat gives notice to anyone who searches the register that there is
an equitable interest there.

Page 4
LWB233

Does failure to lodge a caveat by that first equitable interest holder amount to disentitling
conduct by that first equitable interest holder?
Ct held that the failure to lodge a caveat by G was one of the factors postponing that prior equitable
interest:
Connolly v. Noone
- Mrs N gave G a right to cut timber on her land (profit a prendre)
- The right had to be exercised within 5 years.
- N signed an instrument of confirmation of that right on the 16/6/1908.
- G did nothing. Some months later, N gave her certificate of title to a solicitor, C, as security for costs.
- C had an equitable mortgage, because by handing over her certificate of title she created an equitable
mortgage by deposit of title deed (LTA s.5 today).
- C lodged a caveat on the 16/11/1908.
- G’s interest in the land went to the Cairn’s timber company and the CTC started to cut the timber.
- C applied for an injunction to stop the timber cutting and evidence was given then that the land without
the timber was not of sufficient value to cover the security that was given by N.
- The Ct had to decide who had priority. Was it G with his profit a prendre which had been transferred
to CTC (which was 1st in time) or was it C who had the equitable mortgage?
Held:
- Ct held that the right to cut timber was an equitable right which could have been protected by a caveat
when it was created but was not.
- N had kept her certificate of title at that time and had been able to represent to the world that she had
an unencumbered title and so could therefore grant the mortgage to C.
- Ct held that the failure to lodge a caveat by G was one of the factors postponing that prior
equitable interest. So they had to stop cutting the timber.
Delay in lodging a caveat can be disentitling conduct
Butler v. Fairclough
- Mr G was the registered owner of land.
- The land was subject to a registered mortgage.
- On the 30/06/1915 he gave a second mortgage, which was equitable, to B.
- On the 2/07/1915, he agreed to sell the land to Mr F, subject only to the registered mortgage.
- On the 7/07/1915, B lodged a caveat to protect his equitable mortgage.
- When F lodged his transfer for registration, the registrar notified B.
- In October 1915, B and F agreed that F would withdraw his transfer because they both believed that B
had priority.
- 1/03/1916, F re-lodged that transfer.
- The registrar thought B’s caveat had lapsed and didn’t tell him about the re-lodgment and F got
registered.
- B argued that F had been fraudulent in re-lodging that transfer because of their agreement the year
before.
Held:
- HC said that there was no fraudulent conduct, and F got indefeasibility.
- They then looked at whether the parties had been correct in thinking that B had priority.
- Griffith J said “a person who has an equitable charge may protect it by lodging a caveat”.
- In his opinion, that operated as notice to all the world that the registered proprietor’s title is subject to
the equitable charge alleged in the caveat. He found that the 7-day delay of B in lodging his caveat
to protect his equitable mortgage was sufficient to lose him priority. BUT he then said you can’t
really draw a line about what is a reasonable time within which to lodge a caveat.
Lack of a caveat has no effect if you would’ve bought the land anyway and lodging a caveat does not
give priority:
Lynch v. O’Keefe
- Mr O’K was a purchaser of land who searched the register before he entered the K.
- He didn’t know there was an equitable mortgage over the land because there was not caveat. But he
gave evidence in Ct that he still would have bought the land even if he’d known about the mortgage
Page 5
LWB233
(the failure to lodge the caveat would not altered his decision).
- O’K lodged a caveat himself when a dispute arose about the vendor’s title and he tried to argue that the
lodging of that caveat gave him priority.
Held:
- The Ct said the caveat didn’t give him priority. All a caveat does is suspend registration so that the
parties can work out in court who has the better interest.
- So the two points from this case: lack of a caveat has no effect if you would’ve bought the land
anyway and lodging a caveat does not give priority.
Disentitling conduct – handing over documents:
Abigail v. Lapin
- The holder of the prior equitable interest did not caveat but the holder of the subsequent
equitable interest did not search.
- The L’s were the registered owners of land. They signed transfers in favour of Mrs H as security for
costs owed to her husband (actually creating a mortgage – if you don’t pay the money back, the
mortgagee can get registered).
- When the money was paid, they were entitled to the transfers back, but Mrs H got registered.
- H then gave a mortgage to Mr A who lodged a caveat and then lodged the mortgage for registration.
- Before it could be registered, the L’s lodged a caveat.
- L’s equitable right to redeem (the right of a mortgagor under a mortgage) and Mr A with an equitable
mortgage.
Held:
- PC held that the L’s lost their equitable right to redeem. They had armed Mrs H with the indicia of
title and allowed her to represent to the world that she had an unencumbered title. They could have
lodged a caveat to protect their interest or they could have handed over a deed of defeasance
with the transfers (which would have ensured their return).
- They did not lodge a caveat when A’s interest arose, but then there was no evidence that A had
searched the register either.
- The failure to lodge a caveat assumes a secondary importance. The most important factor was that
they had armed Mrs H with the indicia of title and it was that conduct which had misled A.
 Look back to Butler v. Fairclough where Griffith J said there was a positive duty to caveat (to protect
an equitable interest)
 While Abigail v. Lapin agreed with this, they did not affirm the positive duty to lodge a caveat. Failure
to lodge a caveat could be one of the factors, but not necessarily one that would lead to postponement
of a prior equitable interest.
The failure to lodge a caveat did not constitute postponing conduct.
J&H Just (Holdings) v. Bank of NSW
- The failure to lodge a caveat did not constitute postponing conduct.
- Mr J gave the bank a registrable mortgage and a certificate of land of which he was the owner. The
bank didn’t register the mortgage but kept it with the certificate of title.
- After this Mr J borrowed 2000pounds from JH because he wanted to go to the US. The solicitors for
JH asked J where the certificate of title was. He said it was at the bank for safe-keeping.
- Mr J went to the US but didn’t come back and died there, a bankrupt.
- Bank’s equitable mortgage vs. JH’s equitable mortgage for 2000 pounds
- The bank had not lodged a caveat but the bank had priority. This was because the Ct said that failure
to lodge a caveat does not prima facie mean that a prior equitable interest loses priority (to say that it
did would be subversive of the ability to maintain equitable interests in land under the Act). Secondly,
the bank had the certificate of title. (Although in some circumstances, the registrar would have
registered an interest without the certificate of title, it was very rare – so if you had the certificate of
title, you could be pretty sure that no-one else could deal with the land).
Held:
- The HC said that therefore, the bank had adequately protected itself and there was no need to lodge a
caveat.
- Barwick J said that in his opinion the primary function of the caveat was as an injunction to the
Registrar (ie stops the register) and notice was only of secondary importance.
- He said that the reference in Abigail to Butler v. Fairclough which the PC had approved, was obiter
Page 6
LWB233
-
only.
The Ct said that too much had been said about Griffith J’s statement in B v. F
Notice was also considered in:
Clark v. Raymor
- R didn’t lodge a caveat until long after the creation of the second equitable interest.
- The fact that the purchasers had not served before they entered into the K (which was when their
equitable interest was created) was immaterial. It had no effect on the subsequent conduct of the
parties.
- The Ct said that R should have lodged a caveat because:
1. R (the equitable chargee) was unable to get the certificate of title.
2. This failure left the owner of the land or his mortgagee, or both, in a position to deal with it,
contrary to the equitable chargee’s interest; and
3. The equitable chargee should have notified the registered mortgagee, but didn’t.
- So their failure to lodge a caveat did have a disentitling effect.
Jacobs v. Platt Nominees Pty Ltd
- LJ was a doctor but she turned to property development. She got on well with her mother but not with
her father.
- Her parents were the sole directors of PN. PN owned land in Melbourne on which there was situated a
hotel.
- PN owed money to the ANZ which was secured by a mortgage over that land. ANZ wanted their
money back and could only get it by selling the land.
- Negotiations were entered into by PN with Perpetual Trustee in Feb 1988 but soon after terminated.
They resumed in July 1988.
- LJ was unaware of the resumed negotiations but she was worried that her father might sell the land to
Perpetual Trustees (PT), so she obtained an option on the 29 July 1988 from PN to purchase the land
for $16.5 million.
- The consideration for the option was $½ million. She did not lodge a caveat to protect her option
though her solicitor told her that he “normally did so”.
- Her reason for not lodging the caveat was that it might cause trouble with her father and his bankers.
- PT’s solicitor did a check search of the register on the 1 September 1988. On the 2 Sept 1988, LJ
exercised her option (PT knew nothing about it).
- On the 5 Sept 1988, PN and PT exchanged contracts. On the 6 Sept 1988 LJ learnt of the sale and on
the 7 Sept 1988 she lodged a caveat. (LJ thought her mother would not sign because she knew of LJ’s
interest). Mrs Platt did not sign the K but LJ’s brother did under a power of attorney which LJ’s
brother had managed to get his mother to sign.
- LJ’s option (equitable interest) 29/07/1988 vs. PT’s equitable fee simple 5/9/1988
Held:
- Ct said look at all the circumstances of the case to determine priority.
- They mainly looked at LJ’s failure to lodge a caveat. But they said if you decided the case on the base
of an estoppel rising, it was not made out because the alteration of PT’s position (in that they entered
into a K of sale) was not sufficient detriment. Neither did the failure to caveat amount to a
representation because the Ct found there was no evidence that caveats were normally lodged, and it
was not also common practice that searches were always made. So estoppel didn’t succeed.
- There was therefore no duty on LJ to lodge a caveat so they had to look at it in the context of
disentitling conduct.
- The Ct said that prima facie, priority in time will decide the issue unless there is something
tangible and grave which will affect the situation. (Had to be a characterisation of the conduct)
- But the Ct said that in her circumstances, failure to lodge a caveat was not disentitling conduct because
it was not reasonably foreseeable that her failure to lodge a caveat would expose her to a later sale
(equitable interest).
Jacobs v. Platt Nominees
- Disentitling conduct – prima facie, the first in time will prevail unless there is something tangible and
distinct having grave and strong effect to accomplish the purpose.
- LJ’s failure to lodge a caveat was not of that standard because she could not have seen that that failure
would expose her to the chance of a later sale. Her failure to lodge a caveat did not postpone her
Page 7
LWB233
equitable fee simple (option to purchase)
Re Coffey
- Mr C gave his mortgagee a supposedly conditional irrevocable power of attorney.
- It was conditional on the basis that using it to enable a power of sale to be exercised by the mortgagee
would not happen unless C couldn’t repay the money he owed.
- However, at no time did C make that public. So the land was sold to Ms B and after K but before
settlement, C lodged a caveat.
- The purchaser’s solicitors settled without searching.
- The question for the court was whether C, who had an equitable right to apply to the Ct to have that
sale under the power of attorney set aside (mere equity – not discussed), would get priority, or Ms B
who had the equitable fee simple, would get priority.
- Ct looked at C’s conduct.
- They said it was unfortunate that the purchaser’s solicitors had not searched before settlement. But C,
in not publicising his supposed power of attorney, in not disputing its nature, C had his interest
postponed.
- The failure to search by the solicitor did not amount to conduct which would put her on a footing so
that the first in time would prevail. C’s conduct was such that his interest was postponed to that of Ms
B’s.
GENERAL PRINCIPLES:


There is no absolute rule for priorities and caveats
But a failure to caveat will NOT amount to a loss of priority if:
 Other steps are taken to protect the equitable interest
 The instrument of transfer is lodged before the creation of the later interest:
IAC Finance Pty Ltd v. Courtney
- The C’s bought land from A and she was the mortgagee.
- Ms A’s solicitor lodged for registration, the CT, the transfer and the mortgage. Then A persuaded
the C’s to sell back to her.
- A’s solicitor withdrew the CT from the Titles office without the permission of the C’s.
- A then sold to a coy (equitable fee simple) and that coy’s financier was IAC (equitable mortgage).
- C’s (equitable fee simple) v. IAC (equitable mortgage)
- IAC said that the C’s had lost their interest because they had failed to caveat.
- The Ct said the C’s had done nothing wrong. They were entitled to expect that their transfer
would be lodged in the Titles Office and would be registered. It didn’t matter that the person
doing it was the mortgagee’s solicitor. They had done everything they needed to.
 there are circumstances which indicate that the land will not be dealt with contrary to equitable
interest holder’s interest: Jacobs v. Platt Nominees
 the claimant of the later interest has not searched the register: Abigail v. Lapin
 the later claimant is indifferent to notice of a prior equitable interest
 However, a failure to caveat may affect priorities if the registered proprietor is left free, after
the creation of an equitable interest, to represent to the world that he or she is free to deal with
the land in question: Butler v.Fairclough; Clark v. Raymor; Connelly v. Noone
s.183 LTA – Right to have interest registered
183. A person to whom an interest is to be transferred or in whom an interest has been created has a right
to have the instrument transferring or creating the interest registered if –
(a) the instrument has been executed; and
(b) the person lodges the instrument and any documents required by the Registrar to effect registration of
the instrument; and
(c) the person has otherwise complied with this Act in relation to the registration of the instrument.

This section has not been litigated.
Page 8
LWB233


It was mentioned in Breskvar v. Wall – one judge thought it gave a better right to registration.
The view must be that the section does not give a better right to registration in priorities disputes. If a
caveat prevents registration, it will be other factors which determine the outcome.
s.177 LTA – Order of Registration of Instruments
177(1). [Lodgment Order] Instruments affecting a lot, including instruments affecting or creating an
interest in the lot, must be registered in the order in which they are lodged

This section is of no assistance if a caveat intervenes. The priorities will be determined according to
equitable priority rules. The section is a direction to the Registrar.
Settlement Notices and Priorities
Effects may be:
 Prevention of registration of instruments lodged after one during the time the notice is in force
 Order of lodgment of instruments may be altered (s.150)
 May provide notice of an unregistered interest related to a transaction
 May facilitate registration of one party in a priorities dispute
 But remember, just because there is a settlement notice, doesn’t mean a caveat can’t be lodged (s.151)
VOLUNTEERS
BEFORE REGISTRATION
EQUITY WILL NOT ASSIST A VOLUNTEER

It’s up to the donor to make sure that they’ve done everything necessary to make the gift complete. So
the Ct always asks is the gift complete? Look to s.200 PLA. That extends to the LTA and is subject to
the LTA.
Section 200. Efficacy in Equity of Voluntary Assignments
200(1) A voluntary assignment of property shall in equity be effective and complete when, and as soon as,
the assignor has done everything to be done by the assignor that is necessary in order to transfer the
property to the assignee –
(a) even though anything remains to be done in order to transfer to the assignee complete and
perfect title to the property; and
(b) provided that anything so remaining to be done is such as may afterwards be done without
intervention of or assistance from the assignor.


Look to the difference between an incomplete and a complete gift.
If A was going to give a gift of land to B, A would have to sign a transfer and then hand the transfer
and a CT to B. Legal title to that land does not occur until registration takes place. Is the gift complete
when you’ve handed everything over to the volunteer, or when registration takes place?
Brunker v. PT
- Dixon J said that an unregistered voluntary assistant of a complete gift did not have an equitable
interest in the land.
- All that person had was a statutory personal right to registration.
This was reconsidered in:
Corin v. Patten
- Mrs P was dying, didn’t want her husband to get the home by survivorship, so she signed a declaration
to her brother…her brother was a volunteer.
- Mason and McHugh looked at cases like Brunker and said that Dixon was wrong in saying that a
volunteer before registration, did not have an equitable interest in the land.
- They held that in equity the donor simply has to do everything the donor can do and then the gift
Page 9
LWB233
-
will be complete and the donee will have an equitable interest.
But here, she hadn’t done everything she could do. There was a mortgage over the land. The
mortgagee had not been approached to get the mortgage registered.
Brennan followed Dixon in Brunker and said any rights the volunteer had came from the statute.
Deane agreed with Mason and McHugh
Toohey supported Brennan.
Rule is that s.200 PLA applies as far as land is concerned and as soon as the gift is complete in
equity, the donee will have an equitable interest in the land.
VOLUNTEERS TAKE SUBJECT TO ALL PRIOR EQUITIES
-
This is important where there are unregistered volunteers.
They take subject to them whether they have notice or not.
AFTER REGISTRATION

A volunteer has exactly the same rights as a purchaser for value: s.180LTA
Section 180 Benefits of Registration
180 The benefits of this division apply to an instrument whether or not valuable consideration has been
given.
Page 10