2Priorities Characterisation of interests – legal of equitable Legal - formality in creation and transferLandConveyancing Act 1919, s 23B, s 23C, s 23D, s 54AReal Property Act 1900, s 41, s 42, s 43, s 43APersonal PropertyGoods – Sale of Goods Act 1923; Trade Practices Act 1975Choses in Action – Conveyancing Act 1919, s 12; Patents Act 1990 s 14; Life Insurance Act 1995, s 200; Copyright Act 1968, 196; Trade Marks Act 1995, s 109, Personal Property Securities Act 2009Equitable – doctrinal reason for recognising an interest? Part performance/ estoppel/ unconscionability etc
3Four types of dispute Legal v legal – first in time Eq v Eq – first in time unless there is postponing conductEarlier legal v Later Eq – if the equities are equal the law remainsEarlier Eq v Later Legal – bona fide purchaser for values without notice defeats the equitable interest
4Conflicting Legal Interests in Goods Legal v LegalWhen two or more legal interests in goods conflict the main principle is that a person cannot convey an interest which he or she does not have (“nemo dat quod non habet”)
5Legal interest v legal interest When two or more legal interests in the land/personalty conflict the main principle is that a person cannot convey an interest which he or she does not have (“nemo dat quod non habet”)Partial eg where A leases to B – A then sells to C – C ‘s interest is taken subject to the leaseWholly inconsistent – A sells to B and then sells to C: C receives nothing
6Innocence of Purchaser The innocence of the purchaser is irrelevant (to common law)!Policy of who is better able to avoid the loss?Policy of first acquirer (first in, best dressed)?
7Equitable interest v equitable interest Moffett v Dillon  2 VR 480, at 491, it was stated by Brooking JA (Buchanan JA concurring, at 506) that the resolution of priority disputes in the context of competing equitable interests in property could be resolved by applying either of two distinct rules. The first rule is that, generally, if the holder of the second equitable interest takes with notice of the first equitable interest, he or she takes that interest subject to the first equitable interest. The second rule is that, prima facie, the equitable interest first created prevails. However, this prima facie rule can be displaced if the holder of the second equitable interest has a ‘better equity’. The onus of proof in such cases is upon the holder of the second equitable interest to displace the prima facie priority of the first equitable interest holder: Platzer v Commonwealth Bank of Australia  1 Qd R 266, at 279
8Equitable interest v equitable interest Who has the best equity?Heid v Reliance Finance Corporation Ltd – the better equity depends on the circumstances –look to the conduct of the partiesthe question of negligence on the part of the prior claimantthe effect of any representations made by the prior claimant which may give rise to an estoppeldid the conduct of the prior claimant enable such a representation to be made?
9Equitable interest v equitable interest Generally: the earlier equitable interest may be postponed to the later interest where:(a) the conduct of the earlier interest holder has led to the later interest holder acquiring an interest;(b) in the mistaken belief that the prior interest did not existIf the equities are equal then first in time
10Equitable interest v equitable interest EG Able agrees to sell his land to Barb. Able gives the title deeds to barb and signs a receipt for the purchase money even though he has yet to be paid. Barb proceeds to grant an equitable mortgage over the land to Clary. How has the better interest?Look to the equities:Able has an equitable lien over the propertyClary has an equitable mortgage
11Equitable interest v equitable interest Both the equities are security interests – no real difference between them – However Able’s negligent conduct in giving the title deeds and signing the certificate means that it was his fault that Clary took his interest without notice- Hence Clary’s interest is superiorSee Rice v Rice (1853) 61 ER 646
12Equitable v EquitableIn JNJ Investments Pty Ltd v Sunnyville Pty Ltd  QSC 138, a vendor of property contracted to sell property to a purchaser. On the day of settlement of this contract, the vendor completed a sale of the property to a second purchaser for a higher price. The first purchaser, upon becoming aware of what had happened, lodged a caveat to prevent registration of the second purchaser’s transfer. The second purchaser commenced proceedings to have the caveat removed. The issue before the court was whether the first purchaser had priority over the second purchaser. Mullins J, at , held that the first purchaser had priority because the second purchaser ‘had notice of the first [purchaser’s] equitable interest at the time of the acquisition of its interests’.
13Equitable interest v equitable interest Exception: in the case of land held under a trust the beneficiaries will not lose their priority because of negligent or fraudulent conduct by the trusteeShropshire Union Railways and Canal Company v The Queen
14Equitable interest v equitable interest Shropshire Union Railways and Canal Company v The QueenIn that case Holyoake, as trustee of shares for Shropshire, held all title documents relating to the shares. In breach of trust Holyoake borrowed from Robson and gave Robson the share certificate as security for the loan. Robson held the shares but did not have them registered into his name on the company register. The issue before the court was whether Shropshire’s earlier equitable interest as beneficiary under the trust of the shares was defeated by Robson’s later equitable mortgage over the shares. The House of Lords ruled that Shropshire’s earlier equitable interest had priority.
15Equitable interest v equitable interest Exception doesn’t apply unless the trust is properly formed or in cases where the trustee has failed to complete the trust be receiving the trust propertyWalker v Linom
16Mere EquitiesException: Mere equities – personal right to a remedy – proprietary in nature but less than a full equitable interestExamples: the right to have a document rectified, right to have a conveyance set aside because of the grantee’s fraudLatec Investments Ltd v Hotel Terrigal Pty Limited: Terrigal had granted a mortgage to Latec. Latec exercised the power of sale of the mortgage and sold it to a wholly owned subsidiary, Southern – Southern granted a further equitable interest to MLC which had no notice of the Terrigal interest
17Mere EquitiesTerrigal argued that the sale was fraudulent – not at arm’s length – both Southern and Latec had conspired to sell at a low priceWhat was the priority between the interest held by Terrigal and the interest held by MLC? It was held that Terrigal had a bare right to sue and have the transaction set aside – a mere equityA prior mere equity will not prevail over a later full-blown equitable interest that was taken without notice
18Exception: tackingException: tacking – tabula in naufragio – if a later equitable interest holder purchased for value and without notice and is later able to acquire the legal estate then the later interest holder can tack its equity onto the legal estate and jump priorityEG Mortgages – If Able grants a mortgage to Bette then an equitable mortgage to Clary and then another equitable mortgage to Donna – then the order of priority will normally be B, C, D – but if Donna can later buy the land off Bette then Donna equitable interest will be tacked to the legal estate and Clary will come in last
19Prior legal interest v equitable interest In cases where there has been no fraud on the part of the legal estate holder the prior legal estate prevails over the later equitable estateWhere the equities are equal the law prevails
20Exception – fraud Northern Counties v Whipp This is a case of an earlier legal interest competing with a later equitable interest in landCrabtree gave a legal mortgage of old system title land to Northern Counties.Crabtree was the manager of that company who was also entrusted with a key to a safe which housed the documents of title relating to the mortgage.Crabtree removed the title documents from the safe and executed a second mortgage to Whipp. Because of the earlier legal mortgage, the only property interest that Crabtree had in relation to the land at the time of the mortgage to Whipp was an equity of redemptionWhipp had an equitable mortgage
21Northern CountiesNorthern Counties want to foreclose, which would destroy both Crabtree’s and Whipp’s interestsWhipp argues that Northern Counties is responsible for Crabtree’s fraud.Had Northern Counties been fraudulent by reason of their agent Crabtree?
22Northern CountiesNo!Fry LJ, at , speaking on behalf of the Court of Appeal, ruled that there was no fraud on the part of Northern Counties because Northern Counties ‘never combined with Crabtree to induce [Whipp] to lend her money’. His Lordship had earlier said, at 494, that fraud would arise ‘where the owner of the legal estate has assisted in or connived at the fraud which has led to the creation of a subsequent equitable interest, without notice of the prior legal interest’.
23Northern CountiesWhat about the fact that Northern Counties had been negligent?The Court of Appeal also observed that even though there was great carelessness on the part of Northern Counties, it was not enough to establish fraud. Northern Counties never combined with Crabtree to induce Whipp to advance the money. Northern Counties didn’t even know that Whipp was making the loan. Fry LJ, at 495, even contemplated that Northern Counties may have been grossly careless, but even this would not have been enough to rule in favour of Whipp in this case.
24Exception – gross negligence with the title documents Legal owners of property may also be postponed to equitable interests when the legal owner has been grossly negligent with the title documentsWalker v Linom – trust for shares in marriage settlement – trustees never bother to inquire where the shares are, or bother to check whether legal ownership has passed – Mr Walker created an equitable charge over the shares
25Exception - gross negligence with the title documents With this exception mere carelessness on the part of the holder of the legal interest is not enough to constitute postponing conduct: Evans v Bickell (1801) 31 ER 908 at'Gross negligence' in the sense of a special degree of lack of care of prudence is needed for this exception to arise.
26Prior equitable interest v legal interest Pilcher v Rawlins (1872) LR 7 Ch 259, at 268. The legal interest will prevail if it was acquired:1. by a purchaser:Anyone who acquire an interest for value (lessee, fee simple owner, mortgagee)2 for valueConsideration in money – needs to be more than nominal amount but not market value3 in good faithBona fide – no hint of conspiracy or unclean hands:Midland Bank Trust Co Ltd v Green  AC 513, at 528
27Prior equitable interest v legal interest 4. without notice of the prior equitable interestCan be actual, constructive or imputedActual: knowledge of the actual facts – real knowledgeConstructive: knowledge that would have come into the person’s attention had they made reasonable inquiries eg case of land sold with a tenant in possession – purchaser should have checked the rights of the lessee - constructive noticeMust be able to find the interest – old system title allowed to go back 30 yearsCAct s 164Imputed: at law you are regarded as having been notified eg where agent is notified by no principle
28Prior equitable interest v legal interest The rule in Wilkes v Spooner  2 KB 473: Subsequent purchasers are in the same shoes as the legal estate holder even when the subsequent legal interest has notice or receives via gift:[I]n justice to the owner of the land who had no notice when he acquired the land, it would not be right to hamper his power of dealing with his own land, because certain persons, who possibly would be the only customers for the land likely to pay the best price, have such notice.
29Registration Systems in NSW Problems with fraudulent transactions in the early colony1800 – order of Governor King that all agreements concerning land be in writing or entered into books kept at Sydney, Parramatta and Hawkesbury1802 – Judge Advocate’s office1817- Gov Macquarie – Fraudulent against a bona fide purchaser for value1825 – Registration Act – substantially amended over time and then repealed in 1984 and sections transferred into the Conveyancing Act(c) Cameron Stewart 2005
30Conveyancing Act and the Register of Deeds Section 184C – general register of deedsOpen to public inspection – s 199Deliver original and copy to the Registrar – registered with a number – copy kept on fileAny instrument affecting land or not can be registered – not necessarily a “deed” as such(c) Cameron Stewart 2005
31The effect of registration? Validity of the document – some instruments must be registered to have legal force eg short form of mortgage discharge, appointment of new trustee, powers of attorneyRegistration for priority – s 184G – instruments affecting land, executed bona fide and for valuable consideration take priority over earlier instrumentsEffect – earlier legal interest will be defeated by later legal interest upon registration of later interest and so onHowever it only affects priority – will not perfect a fraudulent transaction, mistake or forgery(c) Cameron Stewart 2005
32Important factors to consider: (a) Competing instruments – must have an instrument to register and then it only concerns instruments in writing – if no instrument then the normal priority rules apply eg a short term lease without writing, competing with a legal registered interest eg a sale to a third party – the registration won’t give the later legal interest priority(c) Cameron Stewart 2005
33Important factors to consider: (a) Competing instruments – Another eg - equitable mortgage by deposit of title deeds created without writing not defeated by a later registered instrumentSection 184 confers priority only in cases of “competition” – that is if the interests are compatible no priority is afforded(c) Cameron Stewart 2005
34Scholes v BluntIn Scholes v Blunt (1917) 17 SR (NSW) 36, A conferred an easement on B by means of an unregistered instrument. A then sold the land to C ‘subject to all easements, if any, affecting the same’. C registered his instrument first. Because the instruments could stand together, s. 184G did not apply and C took the land subject to B’s easement.
35BoyceBoyce v Beckman, in 1834 the Crown granted a parcel of land to O’Donnell. In 1841 Sparke acquired the fee simple in the land. In 1845 Sparke conveyed the land to Boyce by deed. The land was described by reference to a number of lots relating to a plan. On 1 January 1852 Sparke executed a second deed of conveyance to Turner in which the land was described as including ‘all and any other lots forming a portion of the said grant to … O’Donnell to which Sparke is entitled’. The conveyance to Turner was registered first. The issue in the case was whether this registration gave the second conveyance priority over the first.
36The Court ruled that it did The Court ruled that it did. The result depended upon finding that the two conveyances were competing. It could have been argued that there was no inconsistency in that the latter general description of the land meant that Sparke was only conveying that land to which he was entitled at the time of the second conveyance, ie. the land he acquired in 1841 less the land he conveyed to Boyce in On this basis the two conveyances executed by Sparke would not be competing instruments. However, the Court ruled otherwise
37Innes J, at 146, said:Such words, then as ‘lands to which I am entitled’, when used by a vendor, must be held to mean ‘such lands as I possess and am entitled to, whether included in any previous conveyance by me or not, if that conveyance remains unregistered’, and cannot be held to except lands previously conveyed by him, so long as that conveyance remains unregistered. To hold otherwise would, in our opinion, be to defeat the very object of the Act.The significance of this case is that although registration does not confer title upon the purchaser on an interest in old system title land, in some cases the failure to register results in the loss of title to land. Boyce should have registered his conveyance to preserve and protect his title. The lesson of this case is to register instruments by which interests in old system land are acquired.
38Important factors to consider: Registration can make effective instruments which may not have had any legal effect under priority rules – eg A sells land to B but then sells land to CUnder the nemo dat principle C would take no interest – however if C registers before B, C will be given “priority” – eg defeats B’s interest(c) Cameron Stewart 2005
39Important factors to consider: Bona fides – on the part of the person taking the interest – notice is enough for there to be an absence of bona fides – actual, constructive or impliedEg if a purchaser takes interest with notice that someone other than the vendor is in possession of the property and fails to make proper enquiries is said to be notified and will not gain priority in registration(c) Cameron Stewart 2005
40Important factors to consider: The onus of proving good faith is upon the person asserting priority based upon registration of his or her instrument: Jones v Collins (1891) 12 LR (NSW) (L) 247 at 250.The most significant example of a lack of good faith for the purposes of the legislation is a where a person takes an interest with notice of a prior interest in the land. Notice includes actual, constructive or imputed notice: s.164, Conveyancing Act 1919.(c) Cameron Stewart 2005
41MarsdenIn Marsden v Campbell (1897) 18 LR (NSW) Eq 33, Campbell leased land to Marsden in 1888 for a fifteen year term. The lease was not registered. In 1893 Campbell conveyed the land to Byrnes, with the deed of conveyance being registered. At the time Byrnes took the conveyance he knew that Marsden had been in possession of the land for 5 years and that he was running sheep on the land. Byrnes contended that his registration gave him priority over Marsden’s lease. The Court ruled against Byrnes, stating that he could not rely on s. 184G because of a lack of good faith on his part.
42Marsden Simpson J, at 38, said: I must hold that the defendant Byrnes knew that Marsden had some interest in the land, and that he was content to run the risk of what this interest might be. … [I]n this case Byrnes knew that an interest in the land comprised in his transfer was outstanding [to Marsden], and he made no enquiry. I must, therefore, hold that the lease to [Marsden] takes priority over the transfer to Byrnes.
43Important factors to consider: When does notice have to have occurred? Before execution of the instrument and not the registrationS 164 CA – actual constructive and imputedConstructive notice if an interest is registered(c) Cameron Stewart 2005
44Important factors to consider: The crucial issue concerning notice relates to the question of timing. Notice received before the execution of the instrument upon which priority by registration is based precludes priority based upon registration of that instrument: Scholes v Blunt (1917) 17 SR (NSW) 36.Notice received after execution of the instrument but before its registration does not preclude priority based upon registration of that instrument: Burrows v Crimp (1887) LR (NSW) (L) 198 at 210.(c) Cameron Stewart 2005
45Important factors to consider: (d) Valuable consideration – must not be nominal but may be inadequate (eg much lower than market value) – S 184G(1) includes marriageThus, in Bullen v a'Beckett (1863) 15 ER 684, a conveyance for 10 shillings was held to be for nominal consideration and thus not entitled to the benefits of the legislation.(c) Cameron Stewart 2005
46Important factors to consider: An interest acquired for no or nominal consideration should nevertheless be registered because such registration will preserve the interest holder's priority against interests in the land created after registration. For example, if A acquires an interest in land for nominal consideration and registers it, he or she will not be able to claim priority by registration. However, if after A's registration B, for valuable consideration, acquires an interest in the same land, B will not be able to assert priority over A by registering his or her interest. This is because B's interest will have been acquired with notice of A's interest and thus B will have failed to satisfy the legislative requirement of good faith. Any priority dispute between A and B will therefore be determined by the general law rules relating to priority disputes.(c) Cameron Stewart 2005
47FraudUnlike with the Torrens system, registration does not make the forgery operative: Re Cooper; Cooper v Vesey (1882) 20 Ch D 611.In Re Cooper, Thomas Cooper in his will appointed his son of the same name one of his executors and trustees. The father died. The son had possession of the title deeds to land. The son concealed the fact of his father’s death and without the consent of the other executors and trustees, mortgaged the land, representing the mortgage to be one from his (deceased) father. The mortgagee registered the mortgage. The other executors and trustees, upon discovering the facts, sought recovery of the title deeds and a declaration that the mortgage was of no effect. The Court held in favour of the executors. The mortgage was a forgery and the mortgagee could not rely on forged documents. Registration under s. 184G did not in any way alter this fact
48Efficacy In Fuller v Goodwin (1865) 4 SCR (NSW) 66, Stephen CJ said: Registration is, at any rate not necessary to give efficacy to the deed. It appears clearly to us, that, in favour of an innocent taker for value who registers his deed, the statute confers on the conveying party, notwithstanding his previous inconsistent conveyance, a title as against the transferee named therein; and thus enables the person secondly taking, immediately upon registration, to acquire that title.
49Problems with the deed registration system Improved level of knowledgeOffered greater degree of protectionButDid not grant a total security of interestPurchasers took subject to unregistered interests which have not been documentedPurchasers take subject to unregistered instruments which they ought to have discoveredPurchasers title is still dependant on the chain of title and the risk that a prior interest may be invalidated breaking the chain of title and destroying the purchaser’s interest(c) Cameron Stewart 2005