IAC (Finance) Pty Ltd v Courtenay
110 CLR 550(Judgment by: Taylor J)
IAC (Finance) Pty Ltd
vCourtenay
Judges:
Dixon CJ
Kitto J
Taylor J
Case References:
Abigail v Lapin - (1934) AC 491; (1934) 51 CLR 58
Baker's Creek Gold Mining Co v Hack - (1894) 15 LR (NSW) Eq 207
Barry v Heider - (1914) 19 CLR 197
Butler v Fairclough - (1917) 23 CLR 78
Cowell v Stacey - (1887) 13 VLR 80
Currey v Federal Building Society - (1929) 42 CLR 421
Dixon v Muckleston - (1872) LR 8 Ch 155
Great West Permanent Loan Co v Friesen - (1925) AC 208
Lapin v Abigail - (1930) 44 CLR 166; (1934) AC 491; (1934) 51 CLR 58
Oertel v Hordern - (1902) 2 SR (NSW) Eq 37
Phillips v Phillips - (1861) 4 De G F
&
J 208
Privy Council in Abigail v Lapin - (1934) AC 491; (1934) 51 CLR 58
Rayner v Preston - (1881) 18 Ch D 1
Ridout v Fowler - (1904) 1 Ch 658
Templeton v Leviathan Pty Ltd - (1921) 30 CLR 34
Wall v Bright - (1820) 1 Jac
&
W 494 (37 ER 456)
Walsh v Alexander - (1913) 16 CLR 293
Judgment date: 20 December 1963
Judgment by:
Taylor J
These appeals are from a decree of the Supreme Court of New South Wales (Hardie J) whereby the respondents, as plaintiffs, secured against the defendant in the suit the relief hereinafter mentioned. The respondents I shall hereinafter refer to as Courtenays. The defendants in the suit were Thelma Valette Austin (hereinafter called Austin), Denton Subdivisions Pty Ltd (hereinafter called Denton), IAC (Finance) Pty Ltd (hereinafter called IAC), Hermes Trading & Investment Pty Ltd (hereinafter called Hermes) and the Registrar-General of New South Wales. Denton, IAC and Hermes have appealed from the decree and all three appeals were heard together in this Court.
The suit arose out of a complicated set of facts and these have been amply traversed in a careful and well-reasoned judgment of the learned trial judge. Nevertheless, it will be necessary for a proper understanding of the matters discussed in argument upon the appeals to mention again a number of the salient facts of the case.
On and prior to 24th February 1958 Austin was registered under the provisions of the Real Property Act, 1900-1956 as the proprietor for an estate in fee simple of some fifty-four acres of land at Church Point near Sydney. This was the land comprised in Certificate of Title Vol 6795 Fol 6. On that date she entered into a written contract to sell approximately fifty-two acres of this land to Courtenays. The purchase price was expressed to be £ 15,000 of which £ 3,000 was payable by way of deposit whilst the balance, £ 12,000, was to be secured by a mortgage upon specified terms back to Austin. There was some delay in settlement because of the necessity of obtaining consent to the necessary subdivision but, eventually, settlement took place on 23rd July 1958. It should be mentioned that at all material times the relevant certificate of title was in the custody of the Registrar-General in order that a new certificate might be issued for the residue of the land. For the purpose of settlement two essential documents had been prepared. One was a memorandum of transfer of the subject land from Austin to Courtenays and the other a memorandum of mortgage from Courtenays to Austin. These documents, fully executed, were left with Austin's solicitor, one Easton, for the purpose of registration and so that, upon receipt after registration, the duplicate memorandum of mortgage and the certificate of title for the subject land might be held by him as the solicitor for the mortgagee during the currency of the mortgage. This was done in accordance with what was proved to be the usual conveyancing practice in such circumstances. In fact, the memorandum of transfer and the memorandum of mortgage were lodged by Easton for registration but they were not lodged until 22nd April 1959. The reason for the delay does not appear but in the circumstances of the case it is not of any significant importance. It should be added, however, that at this time there was such a pressure of business in the office of the Registrar-General that there was a delay of up to twelve months between the lodging of instruments and their subsequent registration in accordance with the provisions of the Act.
Passing over intervening matters for the present I now mention that on 17th September 1959 Austin entered into a written contract to sell the same land to Denton. The purchase price was expressed to be £ 26,000 and this was to be satisfied by payment of a deposit of £ 1,500, as to £ 5,000 thereof, by a second mortgage back to Austin repayable in twelve months and, as to the balance of £ 19,500 in cash on completion. Denton had arranged with IAC for a loan of £ 16,000 to be secured by a first mortgage on the subject land and when settlement took place under the contract of sale that company's representative attended. The settlement took place in Easton's office on 23rd November 1959 when the sum of £ 19,500, less an adjustment (in respect of arrears of rates), was paid to Easton as Austin's solicitor. In lieu of a second mortgage back for the residue of £ 5,000 Easton accepted promissory notes for that amount. The memorandum of transfer from Austin to Denton was dated 23rd November 1959 as also was the memorandum of mortgage from Denton to IAC whose advance of £ 16,000 was included in the abovementioned sum of £ 19,500. In the final result of the settlement these instruments found their way into the hands of the solicitors for IAC who lodged them with the Registrar-General for registration on 25th November 1959.
At a later stage, on 28th January, Denton secured an advance of £ 5,000 from Hermes and presumably this money was used to retire the abovementioned promissory notes. In return for the advance Hermes obtained a memorandum of mortgage from Denton over the subject land and this instrument was lodged for registration with the Registrar-General on 10th February 1960. On its face this instrument seems to be irregular for in the body of the instrument the mortgagee is expressed to be "Hermes Trading & Investment Pty Ltd" whereas the instrument appears to have been accepted for and on behalf of "Challis (Finance) Pty Ltd".
Courtenays brought their suit for the purpose of obtaining, in effect, declarations that they were entitled to have their memorandum of transfer registered in priority to the transfer to Denton and that neither Denton, IAC nor Hermes were entitled to register their respective instruments and, further, for an appropriate order restraining the Registrar-General from registering the later set of instruments. Courtenays were successful in the suit and these appeals are brought from the decree which gave effect to their claims It should, perhaps, also be mentioned at this stage that on 16th September 1959, which was the day before the contract between Austin and Denton was entered into, Courtenays' memorandum of transfer and the memorandum of mortgage which they had executed were removed from the Registrar-General's office. In fact, they were uplifted by Easton who early in 1960 was found to have been misappropriating trust funds and was then arrested. The circumstances in which Courtenays' transfer was uplifted, or, as it was said, withdrawn, will be the subject of discussion after consideration has been given to other aspects of the case.
So far I have not attempted to traverse or to refer to the whole of the facts relevant to all of the contentions advanced by the appellants. But what has been said is sufficient to enable us to deal with two fundamental submissions which they made. The first of these was based upon s 43 of the Real Property Act and it asserted that Denton's dealings with Austin as the registered proprietor of the subject land had resulted in the acquisition by the former of an indefeasible title. In other words, it was contended that the protection given by that section to a person contracting or dealing with a registered proprietor does not await the registration of the appropriate instrument but is afforded from the time when the contract is made with the registered proprietor or, perhaps, from the time when a registrable instrument is obtained. The contention, however, is directly contrary to law which has been settled for a great many years. Indeed, s 43 was enacted in its present form when its prototype had already been given, judicially, a meaning contrary to the submission now made (See Baker's Creek Gold Mining Co v Hack (1894) 15 LR (NSW) Eq 207. The provision with which that case was concerned was s 111 of the Real Property Act of 1862 (NSW) -- 26 Vic No 9). Previously, in Victoria in 1887, the counterpart of s 111 in the Land Transfer Act of that State was also held to confer an indefeasible title only upon registration (Cowell v Stacey (1887) 13 VLR 80). The same view has been taken upon consideration in this Court concerning s 43 and its present counterpart in Victoria (Templeton v Leviathan Pty Ltd (1921) 30 CLR 34; and Lapin v Abigail (1930) 44 CLR 166, at pp 182, 188, 196, 203). The lastmentioned case was decided over thirty years ago in accordance with what was then said to be settled law and it is unthinkable that we should now proceed to unsettle it. Particularly is this so when it is seen that s 43A of the Act, which was enacted in 1930, must have been enacted on the basis that the protection afforded by s 43 accrues only upon registration and in an attempt to make appropriate provision in favour of a purchaser who, having upon settlement obtained a registrable instrument, has not yet obtained registration. In these circumstances I am of the opinion that the appellants' submission on this point should not be entertained and, accordingly, that they can obtain no assistance from the provisions of s 43.
Alternatively, it was contended that the effect of s 43A was such as to enable Denton to assert that its interest in the subject land should be held to prevail over that of Courtenays. That section is in the following terms:
- (1)
- For the purpose only of protection against notice, the estate or interest in land under the provisions of this Act, taken by a person under an instrument registrable, or which when appropriately signed by or on behalf of that person would be registrable under this Act shall, before registration of that instrument, be deemed to be a legal estate.
- (2)
- No person contracting or dealing in respect of an estate or interest in land under the provisions of this Act shall be affected by notice of any instrument, fact, or thing merely by omission to search in a register not kept under this Act.
- (3)
- Registration under the Registration of Deeds Act 1897, shall not of itself affect the rights of any person contracting or dealing in respect of estates or interests in land under the provisions of this Act.
Clearly enough the section was designed to deal with the position of the holder of a registrable instrument between the time of its receipt and the time of its registration. But its effect is by no means clear. No doubt it proceeds on the basis that under the law as settled at the date of its enactment s 43 did not afford any degree of protection to a purchaser prior to registration and that any conflict between competing equitable interests prior to registration fell to be determmined according to ordinary equitable principles. That is to say, that the earlier of two competing equitable interests must, in the ordinary course, be taken to prevail over the later. Of course, in any particular case, circumstances may be shown to have existed which will result in the earlier equitable interest being postponed. However, in the case where no such circumstances are shown to have existed, the question whether the second interest was acquired with notice of the earlier interest is completely irrelevant; the prior interest will prevail whether the later interest was acquired with or without notice of it. What use was it then for the section to stipulate "For the purpose only of protection against notice, the estate or interest in land . . . taken by a person under an instrument registrable . . . under this Act shall . . . be deemed to be a legal estate"? The section has been the subject of much professional discussion (see eg Baalman -- A Commentary on The Torrens System in New South Wales, (1951) pp 176, 177; Kerr -- Australian Land Titles (Torrens) System, (1927) p 28; and (1932) 6 Aust Law Journal 85). Various possibilities have been discussed but no really satisfactory answer appears as to the meaning of the section. Read literally is accomplishes nothing. If an intended transferee has paid his purchase money his position will not be worsened by notice, subsequently, of a prior equitable interest. It is, of course, true that his interest may be entirely defeated, in the absence of fraud, by prior registration of the earlier interest but if this occurs he will be defeated, not because he had notice of that interest at any stage, but by the transformation of that interest into the interest of a registered proprietor. On the other hand, if he secures registration first his interest will be likewise transformed into the estate of a registered proprietor and, in the absence of fraud, he will secure an indefeasible estate. Accordingly, a person who has paid his purchase money and who has secured a registrable memorandum of transfer needs no protection against notice received thereafter and a provision which purports, merely, to protect him against the effects of notice will not confirm his title. It is, however, not unreasonable to assume that the section was intended to achieve some object. And that object, it seems, was to make some appropriate provision for "filling" what has been called the "gap" left in s 43 by the "settled law" concerning that section (Baalman -- above, at p 177). Does the section, then go further than merely to afford a so-called protection against notice and operate to give to the holder of a registrable memorandum of transfer priority over an earlier equitable interest where he has, without notice thereof, paid his purchase money and obtained his registrable instrument? The suggestion that it does is based upon the contention that the holder of a registrable instrument in such circumstances is enabled to assert, as against the prior equitable interest, that he has by virtue of the section a legal estate in the land acquired without notice of the earlier interest and that he is, therefore, entitled to perfect his title by registration. Such a construction, it is said, does some violence to the terms of the section but it is, it seems to me, the result, which notwithstanding its "ungainly approach" to the subject (See Baalman, above, at p 177), the section was intended to produce.
A further suggestion is that the section was intended to advance in point of time the protection afforded by s 43 upon registration. That is to say, that the concluding words of the section -- "legal estate" -- should be understood to mean "the estate of a registered proprietor". But if it was intended so to advance the unqualified protection given by s 43 upon registration it would have been a simple matter to say so. To my mind the expression "a legal estate" was used advisedly and with a view to affording, at the most, the same measure of protection as that given at common law to a person who has acquired a legal estate in land without notice of some prior equitable interest. Some light is, I think, thrown on this particular problem by the provisions of s 42(d) of the Act which, itself, was introduced into the Act at the same time as s 43A. That subsection contains an exception from the conclusiveness of a registered proprietor's title in respect of any tenancy "whereunder the tenant is in possession or entitled to immediate possession . . . of which . . . the registered proprietor before he became registered as proprietor had notice against which he was not protected ". The italicized expression, it seems to me, is intended as a reference to the measure of protection afforded by s 43A. So read the provision acknowledges that the protection afforded by s 43A is not unqualified and provides some indication that the expression in subs (1) of the section -- "legal estate" -- is not to be understood as synonymous with "the estate of a registered proprietor". Further, if the other view as to the meaning of the expression "legal estate" were to be entertained, it would have been unnecessary for the purposes of the section to make the specific provisions contained in subss (2) and (3). Upon the stated hypothesis notice either before or after the acquisition of a registrable instrument would be quite irrelevant.
Once the contention that the expression "legal estate" in s 43A(1) is synonymous with "the estate of a registered proprietor" be rejected -- as I think it must -- it is unnecessary for us to express any positive view as to the meaning of the subsection. I say this because it is clear upon the facts that Denton had express notice of Courtenays' interest before the contract of sale between Austin and Denton was carried to completion. This will appear from the facts to which I shall presently refer. In the circumstances of the case, therefore, the rights of the parties must, subject to one matter, be determined according to the ordinary principles upon which a court of equity would proceed. These principles were the subject of discussion during the course of argument but in order to appreciate the submissions which were made concerning their application to the facts of the case it is desirable to refer to some, at least, of the other events which occurred, in the main, shortly before Austin entered into the contract of sale with Denton, that is to say, 17th September 1959.
Early in that month Austin telephoned H L Courtenay, who represented Courtenays, and offered to repurchase the land in question for the sum of £ 22,500. The offer was accepted and a contract of sale between them was entered into. But it was not entered into until a week after the contract of sale between Austin and Denton had been made. Austin maintained that she told Courtenays that she was desirous of repurchasing the land in order to resell it to Denton but this was denied by H L Courtenay. Austin's evidence was rejected by the learned trial judge who found that Courtenays had no knowledge that Miss Austin had a purchaser in view at that time. We are asked to review this finding of fact but I see no reason upon the evidence why we should. Indeed, I see no reason to suppose that Courtenays would have been prepared to resell the land to Austin for £ 22,500 if they had known that there was a purchaser in the market prepared to pay a substantially larger sum for it. Austin's evidence, however, was the first step in an attempt to establish that it was arranged between her and Courtenays that the purchase money payable under the contract of resale was to be paid out of the moneys received by her on the sale to Denton. But as I have said this evidence was not accepted and his Honour found that Courtenays had no knowledge of the sale to Denton until after Easton's arrest in 1960. This fact, I think, must be taken to have been established in the case. The challenge which was made to that finding rested upon some evidence given by Mrs Gibson, a conveyancing clerk in the office of Courtenays' solicitor, concerning a telephone conversation which she had with Austin at a time when she was pressing for settlement of the contract of resale. Upon an examination of that evidence it is clear that Mrs Gibson was told that Austin was not in a position to settle because she was awaiting the receipt of the proceeds of a sale which she had made. But it is apparent that Mrs Gibson was at all material times under the impression that the reference was to the sale of other land owned by Austin, settlement of which was awaited, and not a sale of the subject land. We see nothing in the evidence to justify us in reviewing his Honour's finding on this point.
The next matter to which we should refer is the fact, already mentioned, that on 16th September 1959 Easton purported to withdraw from the Registrar-General's office the memorandum of transfer from Austin to Courtenays and the accompanying memorandum of mortgage. This was done on the day before the contract of sale from Austin to Denton was executed. The withdrawal, of course, left the register clear for the registration of the memorandum of transfer from Austin to Denton. Whether this was done as a matter of conveyancing convenience or as a step in the perpetration of Easton's frauds is a matter with which we need not concern ourselves for the fact was that it was done without the knowledge or authority of Courtenays. But it was said to have been done in accordance with the practice of the Registrar-General's office pursuant to which the person who has lodged an instrument for registration is permitted to withdraw it at any time before registration. Whether the practice is justified in all circumstances is not of much importance for if, as Courtenays assert, their equitable title should be held to prevail over that of Denton, the registration of the latters' memorandum of transfer must be restrained and Courtenays will be entitled to proceed to registration. On the other hand, if the latter's equitable interest should be held to be postponed to that of Denton that company will be entitled to register.
The last matter to be mentioned on this aspect of the case is that prior to settlement pursuant to the contract of sale from Austin to Denton the latter's solicitor, Dennis, became aware that the earlier memorandum of transfer from Austin to Courtenays had been lodged for registration. He became aware of this as the result of a search made by one of his firm's employees in the Registrar-General's office. The search notes also conveyed to him some information that was not entirely correct. This was to the effect that the memorandum of transfer and the memorandum of mortgage which had accompanied it had been withdrawn by "Leask & Nicholas". So far as the evidence shows no enquiries were made by Dennis concerning these dealings or the withdrawal of these instruments until the day when he attended at Easton's office to effect a settlement of a contract of sale to Denton. At that time Dennis seems to have been under the impression that the instruments which had been uplifted, or withdrawn, related to land other than that which had been purchased by Denton. Dennis was the first of those interested in the settlement to arrive in Easton's office and he made some enquiries of Easton concerning the withdrawal of these instruments. When he remarked that he understood that they did not relate to the land the subject of the sale to his client Easton informed him that they did in fact rlate to the same land. When asked to explain the nature of the withdrawal Easton informed Dennis that Miss Austin had purchased back the land from Courtenays and said "It is now Miss Austin's land". Dennis then asked whether Easton could show him anything in relation to that transaction and Easton produced an unstamped contract which purported to evidence a sale from Courtenays to Austin. Easton also informed him that he had withdrawn the original memorandum of transfer from Austin to Courtenays because "that was his method of settling the matter between those parties". No enquiries were made by Dennis as to whether that contract had been carried into effect but the fact that it was unstamped was, perhaps, some indication that it had not. Further, it was apparent on the face of the contract that Easton had no authority to act on behalf of Courtenays and yet the matter proceeded to settlement that day and without reference to the Courtenays or their solicitor. In cross-examination Mr Dennis said that the information conveyed to him that day, in fact, meant that there had been an earlier contract of sale between Austin and Courtenays and it must have been apparent to him that settlement under this contract had taken place because the memorandum of transfer had been prepared and subsequently lodged with the Registrar-General for registration. To my mind, it is as clear as it could be that Dennis must have known that day that Courtenays had purchased the land in question from Austin, that that contract had been carried to completion and that the subsequent contract from Courtenays to Austin had not. Indeed, a mere perusal of the document produced by Easton would have shown that it was not at that stage a contract binding Austin and Courtenays with relation to the resale and, further, that Easton had no authority to act on behalf of Courtenays. This, to my mind, was the clearest indication to Dennis of the Courtenays' outstanding equitable interest. Yet he made no further enquiries. Nor did he insist, or even suggest, that Courtenays' representative should be present at the settlement. He, merely, accepted Easton's statement that he proposed to pay Courtenays out of the proceeds of the sale to Denton.
This is the broad outline of the relevant intervening events though they may be supplemented by reference to the very full account of the dealings between the parties which appear in the reasons of the learned trial judge.
For the respondents, it is said, Easton's withdrawal from the Registrar-General's office of the first memorandum of transfer was effected without their knowledge or authority and, consequently, the withdrawal did not destroy their right to priority in registration pursuant to s 36 of the Act. In effect, it is said, there never was an effective withdrawal of the application for registration of that memorandum of transfer and, therefore, it should now be registered as an instrument lodged in point of time prior to the lodging of Denton's memorandum of transfer. The appellants, however, assert that Austin, having authority to lodge Courtenays' memorandum of transfer, should, in the light of the practice prevailing in the Registrar-General's office as to the right to withdraw dealings, be held to have had implied authority from Courtenays to withdraw the instrument. In my view, there is no substance in this submission but, in any event, it is unnecessary to consider the opposing contentions. What we are bound to determine is which of the two competing interests should be allowed to prevail and in resolving this question it is immaterial which was first lodged for registration. If this were not so little would be achieved by the lodging of a caveat to protect an unregistered interest for the only purpose served by a caveat is to keep the matter in statu quo for a limited time after an instrument dealing with a competing interest has been lodged for registration and so that the caveator may take the appropriate proceedings for the protection of his interest (Walsh v Alexander (1913) 16 CLR 293).
The next step in the appellants' argument was to deny that the situation ever arose which there were competing interests. They asserted that at no time between 17th September and 25th November 1959 did Courtenays have any equitable interest in the land. This argument rests upon the fact that Courtenays entered into the agreement to resell the subject land to Austin. But this, as already appears, did not occur until 24th September 1959; that is to say, one week after Austin had contracted to sell the land to Denton. Nevertheless, it is asserted, that thereupon Courtenays parted with their equitable interest and had only a contractual right to receive an ascertainable amount of money under their contract of sale. I am unable to recognize any sound basis for this submission for it is quite apparent that Austin was never at any time in a position to succeed in a claim for specific performance against Courtenays. The contract between them was for the resale of the land but the legal estate was at all material times outstanding in Austin and, this being so, the latter could not have succeeded in a claim for specific performance until Courtenays' title had been perfected by the registration of the memorandum of transfer to them. Further, the contract for sale from Courtenays to Austin was, as appears, never brought to completion and, ultimately, it was rescinded on the grounds of Austin's default. In these circumstances the principles enunciated in Wall v Bright (1820) 1 Jac & W 494 (37 ER 456); Rayner v Preston (1881) 18 Ch D 1; and Ridout v Fowler (1904) 1 Ch 658 would deny that Courtenays' equitable interest ever passed to Austin.
The next submission made on behalf of the appellants is that the conduct of Courtenays was such as to require us to hold that their interest in the subject land should be postponed to that of the appellants. As I see it, this submission has two aspects. The first is that Courtenays' conduct was so neglectful that Easton was enabled to hold out to Denton that the title to the land was not the subject of any prior interest. The second is, in effect, that, upon the evidence, Courtenays acquiesced in settlement between Denton and Austin taking place when it did and were content to permit Easton to receive Denton's purchase money on the understanding that he would then settle with Courtenays. In support of the first branch of the submission stress was laid upon the fact that no caveat was lodged by the Courtenays and we were invited to consider a number of observations in Oertel v Hordern (1902) 2 SR (NSW) Eq 37; Barry v Heider (1914) 19 CLR 197; Butler v Fairclough (1917) 23 CLR 78; and Lapin v Abigail (1930) 44 CLR 166; (1934) AC 491; (1934) 51 CLR 58 concerning the effect of caveats and the possible consequences of a failure of the owner of an unregistered interest to lodge a caveat. But these observations have no application where, as here, the later equitable interest is acquired with full knowledge of the existence of the earlier interest. Moreover, it must be borne in mind that Courtenays' memorandum of transfer was lodged for registration on 22nd April 1959, it lay in the Registrar-General's office for nearly five months awaiting registration, it was withdrawn only on the day before the contract between Austin and Denton was made and it was then withdrawn without the knowledge or authority of Courtenays. In these circumstances I fail to see how it can be said that the failure of Courtenays to lodge, independently, a caveat to protect their interest constituted any ground upon which neglect or unreasonable conduct ought to be attributed to them. The submission to the contrary is, I think, fanciful as also is the suggestion that the Courtenays could and, perhaps, should have notified the Registrar-General, at some unspecified time, that Easton did not have their authority to withdraw their memorandum of transfer. Again, it was suggested that Courtenays were neglectful in failing to enquire, from time to time, concerning the progress of their application for registration. But it was well known that registration might not be effected for as long a period as twelve months and there was no reason why Courtenays should have been concerned to make enquiries before half this period had elapsed. In any event, if they had made enquiries they would have learnt, right up to 16th September 1959, that their memorandum of transfer was still awaiting registration. We should add in relation to the second aspect of the appellants' submission that, once Miss Austin's evidence be rejected, the evidence in the case provides not the slightest ground for thinking that Courtenays acquiesced in any proposal that the sale from Austin to Denton should proceed to completion in order that Austin might be put in funds to enable her, subsequently, to meet her obligation to pay to Courtenays the purchase money under the contract of resale.
The final question is concerned with the position of Denton's proposed mortgagees -- IAC and Hermes. The learned trial judge has held that they parted with their money without notice of Courtenays' interest and no reason appears for challenging this finding. In these circumstances they claim, independently of Denton, to be entitled to a degree of protection pursuant to s 43A. But I agree with the learned trial judge that this claim must fail. That section clearly contemplates the position of a person dealing with a registered proprietor for it speaks of "the estate or interest in land under the provisions of this Act, taken by a person under an instrument registrable . . . under this Act" and an instrument would only be so registrable if executed by the registered proprietor. But IAC and Hermes dealt only with Denton and their respective instruments would become registrable only upon registration of Denton's memorandum of transfer. That being so, the additional submission made on their behalf must fail and, accordingly, all three appeals should, in my view, be dismissed.