REAL PROPERTY Thi rd e d i t i o n

Geoffrey Moore

OXFORD UNIVERSITY PRESS

AUSTRALIA NEW ZEALAND

CONTENTS

Preface xix

Acknowledgments xx

Table of cases xxi

Table of statutes

The Meaning of Land 1

The owner's rights to airspace 1

Introduction 1

2

Permanent encroachments 2

Temporary encroachments into airspace:

the balloon and bullet cases 3

Temporary encroachments into airspace:

the aircraft cases 3

Temporary encroachments into airspace:

4

Legislation regulating rights to airspace

and access to land at ground level 8

Encroachment of Building Act 1922 (NSW) 12

Damage by Aircraft Act 1952 (NSW) 15

Damage by Aircraft Act 1999 (Cth) 16

The owner's rights to minerals on or under the surface . . . 17

Minerals 17

17

Mining Act 1906 (NSW) 17

18

Petroleum products 18

Commonwealth powers 18

Summary of the law on minerals 19

The boundaries with neighbouring land 19

Meaning of boundaries 19

Tidal water boundaries 20

The ad medium ru le 21

Non-natural boundaries 23

CONTENTS

Boundar ies : d e s c r i p t i o n o f lands 23

Fencing of boundar ies 23

D The owner's r ights to things grown on the land 24

Fixtures and 25

The distinction between a chattel and a fixture 25

The relevance of the distinction between

a chattel and a fixture 25

Circumstances giving rise to disputes 25

What is a chattel? 26

Tenant's fixtures 26

Removal of tenant's fixtures 26

The desirability of specific provisions in a contract

in relation to chattels and fixtures 27

The approach based on 'each case relies on its own facts

27

The approach based on the degree and the purpose

of annexation 'tests' 28

Facts and circumstances considered the cases 29

The approach based on 'each case relies on its own facts

andcircumstances' 30

Whether intention is to be determined objectively

or subjectively from the facts and circumstances . . . . 31

Cases on fixtures 31

National Australia Bank Limited v Blacker 31

NH Dunn Pty Limited v LM Ericsson Pty Limited 33

Palumberi v Palumberi 34

Holland v Hodgson 35

Hobson v Gorringe 35

National Dairies Limited v Commissioner

of State Revenue 36

Standard Portland Cement v Good 36

Reid v Smith 37

D'Eyncourt v Gregory 37

Leigh v Taylor 37

Spyer v Phillipson 38

Webb v Frank Bevis 38

The doctr ine of waste 39

39

Permiss ive waste 39

CONTENTS

Voluntary waste 40

Equitable waste 40

Ameliorating waste 40

Torrens Title: Indefeasibility of

Title and Exceptions 41

Introductory observations 41

A The essential features of Torrens Title 41

The nature of Torrens Title 41

Sir Robert Torrens 42

Introduction of Torrens Title 43

Exchange of contracts 43

Completion (or settlement) of the contract 44

Lodgement in registrable form 45

Registration of the transfer 45

B Indefeasibility of title 45

Title by registration 45

Indefeasibility of title 46

Section 43 of the Real Property Act 47

Is indefeasibility deferred or immediate? 47

Immediate indefeasibility preferred 48

The ambit of indefeasibility 49

C Exceptions to indefeasibility 51

Unregistered interests in Torrens Title land 51

Priorities between competing interests 52

Priorities between two registered interests 52

Priorities between a registered and

an unregistered interest 52

The various exceptions to indefeasibility 52

D The Torrens Assurance Fund 81

Torrens Title: Priorities between Unregistered Interests 83

A Characterising unregistered interests 83

Notice of an earlier interest always defeats

the holder of a later interest 83

Competing unregistered legal interests 84

Competing unregistered equitable interests 84

Competition between a legal and an equitable interest . . . 84

CONTENTS

B The operation of caveats 85

Part 7A of the Real Property Act 86

C The distinction between unregistered legal

and equitable interests 90

Unregistered legal interests 90

Unregistered leases 90

Equitable leases 91

Section 43A 91

The requirements of a 'dealing registrable' 92

The requirement that the dealing must be

the next dealing to be registered 97

The 'successive effect doctrine' 98

D The rules of priority between competing unregistered

interests 102

Competing legal interests and the

'nemo dat quod non habet' rule 102

Competition between a legal and an equitable interest . . . 103

Competing equitable interests 103

Equitable interests, personal equities and mere equities . . 104

The Latec case 105

E Postponing conduct 110

where a beneficiary is postponed

by reason of the conduct of their trustee 110

Different kinds of postponing conduct

Old System Title 138

A The good chain of title and the abstract of title 138

B Mortgages under Old System Title: the equity

of redemption and foreclosure 139

A legal mortgage 139

An equitable mortgage 139

The duration of the equity of redemption 140

Foreclosure 140

C Priorities between competing interests 141

Competing legal interests 141

Competing equitable interests 142

Competition between a legal interest and

an equitable interest 142

CONTENTS

D Deeds 142

E The register of deeds 143

F The operation of s 184G of the Conveyancing Act 144

Competing in terest was created by instrument 144

Registered instrument must be ef fec t ive 145

Valuable paid by the person

who is f i r s t registered 145

Bona f ide and notice 145

Effect on the holder of an equitable in terest

who is f i r s t registered 147

G Converting Old System land to Torrens Title 147

Primary applications 147

Caveats against primary applications 147

Qualif ied t i t l e 148

Limited T i t le 150

151

Joint tenancies and the right of survivorship 151

Joint tenancy 151

The four unities 152

Tenants in common 153

Statutory presumption in favour of a tenancy

in common 153

The operation of the statutory

153

Conversion of joint tenancy to tenancy in common 154

Converting a joint tenancy into a tenancy in common . . . . 154

Corin v Patton 156

Unilateral severance by one joint tenant 157

Mccoy v Caelli 158

An agreement for sale by the joint tenants,

prior to the receipt of the proceeds of sale 159

Mortgage by one joint tenant 159

Lease by one joint tenant: no severance 160

Agreement by all the joint tenants 160

Severance by conduct 160

Severance by merger 161

Severance by unlawful killing 161

CONTENTS

Bringing the co-ownership to an end 166

By agreement to sell between the parties 166

By resumption 166

By court order pursuant to s 66G of the

Conveyancing Act 1919 166

Pannizotti v Trask 167

Rights of co-owners inter se 167

Compensation for improvements when the

co-ownership comes to an end 168

Compensation only available for improvements

as distinct from maintenance 170

A person who seeks the aid of equity must do equity . . . . 171

The obligation to set off the value of

occupation is only a set-off 172

Entitlement to occupy 172

Entitlement to collect rent 173

The obligation on a co-owner to account for

profits derived from the co-owned property 174

Mortgage payments as improvements 177

Mortgages 181

Mortgages under Old System Title, the equity

of redemption and foreclosure 181

The equity of redemption 181

Foreclosure 182

The early discharge of a mortgage 183

Penalty provisions and clogs on

the equity of redemption 184

Mortgages under Torrens Title 186

Foreclosure under Torrens Title 186

Penalty clauses 187

Remedies available to a mortgagee 188

The right to sue on a personal covenant

as a remedy available to a mortgagee 188

The right to possession as a remedy

available to a mortgagee 188

The right to appoint a receiver as a remedy

available to a mortgagee 188

The right to lease as a remedy available to a mortgagee . . 188

CONTENTS

The right to improve the mortgaged property

as a remedy available to a mortgagee 189

The right to exercise the power of sale as

a remedy available to a mortgagee 189

Requirements which must be satisfied 189

When must the sale take place 190

Requirements in the statutory notice to remedy the default . 190

The obligation on the mortgagee when selling 190

What is the obligation imposed on a mortgagee when selling? . 209

Section 420A of the Corporations Act 209

Remedies available to a mortgagor

complaining of an improper sale 210

Remedies available to a mortgagor complaining

of an improper sale as against the purchaser 211

Legislative protection to a purchaser from a

mortgagee 212

C Priorities between mortgagees where there

have been further advances 212

8 Leases 219

A The characteristics of a lease 219

The four certainties of a periodic lease 219

Tenancies at will or at 220

The requirement of exclusive possession 220

Equitable leases 221

Privity of estate and privity of contract 225

B Covenants in leases 226

Specific legislation regulating leases 226

Covenants by implication 227

C Assignment and subleasing 230

Assigning the lease 230

Subleasing 230

Qualified covenants and covenants prohibiting

assignments or subleasing 230

Requirements to satisfy a qualified covenant 231

Unreasonably withholding consent 231

Surrender clauses 233

The assignment of the reversion 233

The remedies of damages and injunctions 233

xii CONTENTS

Termination and relief against forfeiture 234

Contrasting essential and non-essential terms 234

Differences in liability between the breach

of an essential and a non-essential term 235

Waiver and election 239

Forfeiture of a lease 239

Relief against forfeiture 239

Mesne profits 240

Easements 241

Characteristics of an easement 241

What is an easement? 241

Examples of easements 242

Duration of an easement 244

Contrasting easements with restrictive covenants 244

Contrasting easements with profits a prendre 244

Contrasting easements with licences 244

Contrasting easements with public rights over land . . . . 245

Contrasting easements with natural rights 245

The characteristics of an easement 245

Creating an easement 248

Express grant 248

249

Creation of easements by statute 249

An implied grant or reservation under Old System Title . . . 264

Easements by prescription 267

Easements in gross 270

Changing the user of an easement 270

Changing or extending the use of

an easement by implication 270

Changing or extending the use of

a prescriptive easement 271

Changing or extending the use of an express easement . . . 272

Obligations on the owners of the dominant

and servient tenements 276

Extinguishing an easement 277

Express release 277

Implied release 278

Operation of law 280

Order of the court 281

CONTENTS x i i i

E Remedies in respect of easements 283

Abatement 283

Injunction 283

Damages 283

Remedies in respect of rights of way 283

Remedies in respect of rights of support 284

Section 181B of the Conveyancing Act 284

10 Positive Covenants 286

A The nature of a positive covenant 286

B A positive covenant as part of an easement 287

Frater v Finlay 287

Halsall v Brizell 287

C The enforceability of positive covenants by successors

in title to the original covenantee 288

The benefit at law 288

Enforceability by successors in title 288

The operation of ss 70 and 70A of the Conveyancing Act . . . 289 and concern' 291

Express assignment 292

11 Restrictive Covenants 294

A The nature of a restrictive covenant 294

v Moxhay 294

Meaning of restrictive 295

295

Categories of restrictive covenants 296

When will a restrictive covenant not be enforced

under Old System Title? 296

The operation of ss 70 and 70A of the Conveyancing Act . . . 297 'Touch and concern' 297

Subdivision of the land benefited 298

The Kerridge v Foley requirement 298

B Schemes of development 299

Elliston v Reacher 300

C Restrictive covenants under torrens title 301

The notice requirement when the restrictive

covenant is under Torrens Title 301

xiv CONTENTS

The operation of s 88(3) of the Conveyancing Act 302

Requirements for a restrictive covenant burdening

Torrens Title land to be enforceable 302

Compliance with s 88(1) where the covenant

is recorded under s 88(3) 303

Release, vary or modify 305

Clearly indicate 306

v Foley and s 88(1) 306

Whether a restrictive covenant that is part of a scheme

of development can comply with s 88(1) 307

Re Pirie and the Real Property Act 307

Pirie v Registrar-General 307

Re Martyn 308

Re Louis and the Conveyancing Act 309

Whether or not a restrictive covenant that

is part of a scheme of development

can comply with s 88(1) 313

The operation of s 88B 313

Other legislative amendments to the Conveyancing Act in relation to restrictive covenants 314

An injunction as a remedy for the breach

of a restrictive covenant 316

Damages as a remedy for the breach of

317

Extinguishment of restrictive covenants 317

Express release 317

Implied release 317

Operation of law 318

Section 28 of the Environmental Planning

and Assessment Act 1979 324

Removal of restrictive covenants by

the Registrar-General 325

12 The Doctrine of Tenure and the Doctrine of Estates 328

A The doctrine of tenure 328

Feudalism in England 329

Tenure in New South Wales 331

The doctrine of tenure in the context of

indigenous land rights 332

CONTENTS xv

British sovereignty: the conquest/settlement distinction . . 332

The concept of radical title 334

does not imply absolute

beneficial ownership 336

The doctrine of tenure and the decision in Wik 338

B The distinction between ownership and possession 340

C The doctrine of estates 341

What is an estate? 341

Estates in fee simple 342

Life estates, reversions, remainders, simultaneous

estates and future interests 342

Contingent remainders 343

Leasehold Interests 343

13 Native Title: The Mabo (No 2) Case 345

A Background to Mabo (No 2) 345

The Gove Land Rights case 346

The Mabo litigation 346

B The Decision in Mabo (No 2) 347

Summary of the common law of Australia

with respect to native land titles 348

Entitlement to the traditional lands 350

Native title is communal 350

Whether Native title is proprietary or personal 350

Recognised but not created by common law 350

Native title cannot be alienated 350

Limits on common law native title 350

Extinguishment of common law native title 351

The effect of a fee simple grant 351

The contentions by Queensland in Mabo (No 2) 352

The High Court's examination of the international

law of the eighteenth century 352

The main difference between the majority

judges in Mabo (No 2) 352

The common law of Australia in relation

to native land title 353

C The reasoning of Deane and Gaudron JJ in Mabo (No 2) 353

The English common law principles

relating to real property 354

CONTENTS

Operation of the English common law principles

in a British colony 355

English common law principles relating to real property

where there was some pre-existing native interest . . . 358

Pre-existing native interest was more than

a permissive occupancy 361

The act of State establishing New South Wales 364

The Aborigines and the land in 1788 366

Whether the propositions supported by the Australian

cases and past practice should be accepted 367

The nature, incidents and limitations of the common

law native title of Australian Aborigines 368

The annexation of the Murray Islands 369

Whether the existing entitlements were of a nature

to establish common law native title 370

Whether post-annexation legislation deprived

the people of their native title 371

The dissenting point on compensatory damages 372

The differing views of the majority on liability

to pay compensatory damages 373

Toohey J's dissent on Crown liability to pay

compensatory damages 374

The reasoning of Brennan J in Mabo (No 2) 377

The doctrine of terra nullius 377

Whether abandoning the doctrine would fracture

a skeletal principle 379

The doctrine of tenure 379

Brennan J in relation to the continued existence

of common law native title 380

Brennan J in relation to the contention that native

title was abolished on colonisation 383

The nature and incidents of native title 384

The power of the Crown to extinguish

common law native title 387

Brennan J's conclusion 390

The enactment of the Native Title Act 1993 (Cth) 390

14 Native Title: The Wik Peoples Case 391

A The decision in 391

Pastoral leases 391

CONTENTS

Inconsistency of incidents 393

The background to the Wik case 393

B The reasoning of Toohey J in Wik 395

C The reasoning of Gaudron J in Wik 402

D The reasoning of Gummow J in Wik 406

The intention of the legislation 406

The interest of the crown provides the foundation

and source of all other titles 407

The use of statutes to regulate land law in Australia . . . 408

What precisely is the common law? 409

E The reasoning of Kirby J in Wik 416

F The reasoning of Brennan J in Wik 432

15 Native Title at Common Law 438

A Characteristics of native title at common law 438

The nature and extent of native title is essentially

a question of fact 438

Native title is usually communal rather than individual . . . 439

Native title is a unique form of interest

in relation to the land 439

Native title as a bundle of rights 440

Native title cannot be disposed of outside

the title holding community 442

Where the incidents of native title are more

extensive than rights held by the Crown 443

B Extinguishment of native title at common law 443

Liability to extinguishment 443

Laws that extinguish native title 443

Extinguishment by the creation of inconsistent rights . . . 444

Creation of an inconsistent right which will

extinguish native title? 444

Laws or acts by which the Crown acquired the

complete beneficial interest in the land 445

C The High Court decision in Fejo 446

The facts in Fejo 446

The appellants' contentions and the issues

for determination in Fejo 446

The effect of the grant of a fee simple 446

CONTENTS

D The High Court decision in Yanner 450

The facts 450

The decision by the majority 450

The decision of Gummow J 452

The effect of the Native Title Act on the appellant's common law native title right to hunt estuarine crocodiles . . . 456

16 The Native T i t l e Act 1993 (Cth) 458

A The Native Title Act 458

The effect of the decision in Mabo (No 2) 458

The preamble 459

The objects of the Act 461

An overview of the Act 461

The Act is subject to the Racial Discrimination Act 1975. . . 462

Recognition and protection of native title 462

The meaning of the expressions 'native

and 'native title rights and interests' 463

B The High Court decision in Yorta Yorta 464

Rights and interests claimed as native title

must be recognised by the common law of Australia . . . 465

Laws and customs of the indigenous peoples as normative

rules giving rise to rights and interests 466

The meaning of the expression 'native title holder' . . . . 471

The determination of native title 471

C A 'past acts* regime 471

D Future and intermediate period acts 474

Future acts 474

Intermediate period acts 475

E The High Court decision in Western Australia v Ward . . . . 476

Index 480