Corin and Another v Patton
(1990) 92 ALR 1(Judgment by: Deane J)
Corin and Another
vPatton
Judges:
Mason CJ
Brennan J
Deane JToohey J
McHugh J
Case References:
Allen v Snyder - [1977] 2 NSWLR 685
Anning v Anning - (1907) 4 CLR 1049
Bahr v Nicolay (No 2) - (1988) 78 ALR 1; 164 CLR 604
Barry v Heider - (1914) 19 CLR 197
Bentley v Mackay - (1851) 15 Beav 12
Brunker v Perpetual Trustee Co (Ltd) - (1937) 57 CLR 555
Burgess v Rawnsley - [1975] Ch 429
Callaghan v Callaghan - (1841) 8 Cl
&
F 374; 8 ER 145
Chan v Cresdon Pty Ltd - (1989) 64 ALJR 111
Charles Marshall Pty Ltd v Grimsley - (1956) 95 CLR 353
Cope v Keene - (1968) 118 CLR 1
Cray v Willis - (1729) 2 P Wms 529; 24 ER 847
Currey v Federal Building Society - (1929) 42 CLR 421
DKLR Holding Co (No 2) Pty Ltd v Commissioner of Stamp Duties (NSW) - (1982) 40 ALR 1; 149 CLR 431
Donaldson v Donaldson - (1854) Kay 711; 69 ER 303
Ellison v Ellison - (1802) 6 Ves Jun 656; 31 ER 1243
Ex parte Pye - (1811) 18 Ves Jun 140
FCT v Clarke - (1927) 40 CLR 246
Fletcher v Fletcher - (1844) 4 Hare 67; 67 ER 564
Freed v Taffel - [1984] 2 NSWLR 322
Gissing v Gissing - [1971] AC 886
Golding v Hands - [1969] WAR 121
Grainge v Wilberforce - (1889) 5 TLR 436
Hawkesley v May - [1956] 1 QB 304
Heid v Reliance Finance Corp Pty Ltd - (1983) 154 CLR 326; 49 ALR 229
J
&
H Just (Holdings) Pty Ltd v Bank of New South Wales - (1971) 125 CLR 546
Kekewich v Manning - (1851) 1 De GM
&
G 176; 42 ER 519
Kenworthy v Ward - (1853) 11 Hare 196; 68 ER 1245
Lyons v Lyons - [1967] VR 169
McNab v Earle - [1981] 2 NSWLR 673
Milroy v Lord - (1862) 4 De GF
&
J; 264 45 ER 1185
National Trustees, Executors and Agency Co of Australasia Ltd v Boyd - (1926) 39 CLR 72
Nielson-Jones v Fedden - [1975] Ch 222
Norman v FCT - (1963) 109 CLR 9
O'Regan v Commissioner of Stamp Duties - [1921] St R Qd 283
Olsson v Dyson - (1969) 120 CLR 365
Partriche v Powlet - (1740) 2 Atk 54; 26 ER 430
Patzak v Lytton - [1984] WAR 353
Public Trustee v Commissioner of Stamp Duties - [1925] NZLR 237
Re Earl of Lucan Hardinge v Cobden - (1890) 45 Ch D 470
Re Lashmar Moody v Penfold - [1891] 1 Ch 258
Re Rose Rose v IRC - [1952] Ch 499
Re Wilks Child v Bulmer - [1891] 3 Ch 59
Richards v Delbridge - (1874) LR 18 Eq 11
Scoones v Galvin and Public Trustee - [1934] NZLR 1004
Stonehouse v Attorney- General BC - (1961) 31 DLR (2d) 118
Strong v Bird - (1874) LR 18 Eq 315
Taylor v DCT - (1969) 123 CLR 206
Tierney v Halfpenny - (1883) 9 VLR (Eq) 152
Tooheys Ltd v Commissioner of Stamp Duties - (1960) 60 SR (NSW) 539
Vandervell v Inland Revenue Commissioners - [1967] 2 AC 291
William Brandt's Sons
&
Co v Dunlop Rubber Co Ltd - [1905] AC 454
Williams v Hensman - (1861) 1 J
&
H 546; 70 ER 862
Williams v Lloyd - (1934) 50 CLR 341
Wright v Gibbons - (1949) 78 CLR 313
Judgment date: 9 April 1990
Canberra
Judgment by:
Deane J
The detailed facts involved in this appeal are set out in the joint judgment of the Chief Justice and McHugh J. Except to the extent necessary for discussion, I shall avoid repetition. Their Honours' judgment also contains a careful analysis of the principal cases bearing on the question whether a beneficial interest can arise prior to actual registration of a voluntary transfer of Real Property Act land. Subject to what is written hereunder, I agree with that analysis.
At the time of Mrs Patton's death, she and her husband were registered as proprietors of an estate in fee simple as joint tenants of land (the subject land) under the provisions of the Real Property Act 1900 (NSW) (the Act). The memorandum of transfer which had been executed by Mrs Patton some days before her death had not been lodged for registration. While the evidence is somewhat unsatisfactory, I am prepared to assume for the purposes of the appeal that Mrs Patton had delivered the executed transfer to Mr Smallwood (the solicitor) to hold as agent for Mr Corin as trustee under the deed of trust. On that assumption, the legal property in the actual document (ie the memorandum of transfer) passed to Mr Corin in his capacity as bare trustee for Mrs Patton. The fact that the memorandum of transfer remained unregistered at the time of Mrs Patton's death meant that it had, up to that time, been ineffectual "to pass any estate or interest" in the subject land (Act, s 41). It is not suggested that the circumstances brought the case within any of the exceptions to the ordinary operation of the Act which is to produce and preserve correspondence between legal entitlement and the state of the register (see, in particular, Act, s 42(1)). That being so, Mr and Mrs Patton remained, at law, the owners of the subject land as joint tenants. Equity aside, Mr Patton acceded to the whole by survivorship when Mrs Patton died.
The provisions of the Act do not, however, preclude the operation of equitable doctrines to create or preserve equitable estates or interests which do not correspond with, but lie behind or beyond, the legal interests as determined by the state of the register (see Barry v Heider ( 1914) 19 CLR 197 at 204-8, 213-16). Such equitable estates or interests will yield to the conflicting claims of a third party who has, bona fide and without notice of them, dealt for value on the faith of the register. They will, however, prevail over the legal title of those whom equity holds to be bound to observe them. The appellants' argument in the present case is that the effect of the execution and delivery of the unregistered transfer was that there was a "severance" (ie conversion into tenancy in common) in equity of Mr and Mrs Patton's joint tenancy with the result that Mr Patton was deprived of the benefit of his legal right of survivorship on Mrs Patton's death.
The traditional law relating to severance has, at least since Blackstone, commonly been seen as deducible from the four unities -- time, possession, title and interest -- which are hallmark inhabitants of the institution of joint tenancy. Where all four unities are present in a multiple holding of land, there is joint tenancy. If one or other of them be absent, there ordinarily is not. The "captivating appearance of symmetry and exactness" (Challis's Law of Real Property, 3rd ed (1911), p 367) of this traditional ritual cloaks some obscurity of precise meaning, some overlapping between the unities and some conceptual difficulties about the essential character of joint tenancy. In addition, the analysis requires qualification in that there are cases where the absence of unity of time will be excused (see, eg , Kenworthy v Ward ( 1853) 11 Hare 196 ; 68 ER 1245), where one or other of the joint tenants may enjoy contractual rights of separate possession of the whole or part of the property without severance of the underlying joint tenancy and where surrender of possession by one joint tenant to a third party under a lease of his interest for a term will lead to suspension rather than severance of the joint tenancy (see, eg , Wright v Gibbons ( 1949) 78 CLR 313 at 330, but cf at 327). None the less, at law, where time, possession, title and interest can be seen as of the stuff of property, the question whether there has been a severance of a joint tenancy by some dealing with, or operation of law upon, one joint tenant's share can, subject to such qualification, be equated with the question whether one or more of the unities of possession, title and interest has been destroyed: in that equation, the unity of time can be disregarded as a practical matter since, if unity of title, interest and possession remain undisturbed, the original unity of time will persist. In equity, where good conscience and actual or presumed intention may prevail over common law rights and interests, and tenancy in common is seen as a preferred instrument for the reason that it avoids the gamble of the tontine, particular care must be taken to ensure that the equation of those questions does not divert attention from principle and from the two aspects of joint tenancy which are most likely to attract the operation of overriding equitable doctrine, namely, (i) the equality of the interests of joint tenants, regardless of intention or contribution, in the undivided rights constituting ownership of the relevant property, and (ii) the right of accretion by survivorship until there is a sole owner of the whole. Where legal joint tenancy persists, severance in equity must involve the creation of some distinct beneficial interests, that is to say, the creation of a trust for the joint tenants themselves as tenants in common in equal shares or for different beneficiaries or beneficial shares (see, eg , Gissing v Gissing [ 1971] AC 886 at 900, 904-5 ; Allen v Snyder [ 1977] 2 NSWLR 685 at 689-90). In such a case, the imposition of a trust for tenants in common is likely to be the result of the direct operation of applicable equitable doctrine and the question whether the destruction in equity of one or more of the four unities has brought about a severance in equity of the joint tenancy may be an unhelpful and even confusing starting point. Accordingly, it seems to me that the preferable starting point in the present case is a more general inquiry about whether the effect of the operation of any applicable doctrine of equity was, as between Mrs Patton and Mr Corin, to give rise to a trust of any interest in the subject land. If it was, the question will then arise whether the effect of that trust or beneficial interest was to create a tenancy in common of the subject land in equity which bound Mr Patton and effectively precluded him from enjoying the benefit of the right of survivorship which he enjoyed at law.
Equity will impose a trust of Real Property Act land held by the legal owners as joint tenants if the joint tenants actually agree to terminate the joint tenancy. Thereafter, their beneficial entitlement to the land will be as tenants in common: the legal joint tenants will hold as trustees for themselves as tenants in common in equal shares. Where such an agreement is made, there is valuable consideration in that each party agrees to relinquish the beneficial interest of a joint tenant of the common property, including the right of accretion by survivorship, in return for the share of a
tenant in common. Such an agreement can be express. Alternatively, it can be implied from a "course of dealing sufficient to intimate that the interests of all were mutually treated as constituting a tenancy in common" (see Williams v Hensman ( 1861) 1 J & H 546 at 557 ; 70 ER 862 at 867). There was no such express or implied agreement in the present case. Indeed, it has not been suggested that Mr Patton was aware of the fact that the memorandum of transfer had been executed until after Mrs Patton was dead. It is unnecessary to consider whether equity will also impose a trust in a case where joint tenants of Real Property Act land are parties to mutual conduct of a kind which, while falling short of evidencing an express or implied agreement, "indicates a common intention that the joint tenancy should be severed" (see Gray , Elements of Land Law, ( 1987), p 329). Even if it be assumed that equity will impose a trust in those circumstances, it is clear that Mr Patton was not a party to any such conduct in the present case.
There are circumstances in which equity will impose a trust for tenants in common of land held by legal joint tenants notwithstanding that there has been no relevant mutual agreement, understanding, dealing or intention between or on the part of the joint tenants. The only example of such circumstances which would seem to be relevant for present purposes is the voluntary or involuntary alienation in equity (ie the creation of a trust) of one legal joint tenant's interest in the land. Where such alienation has occurred, equity will, subject to any overriding competing equities, enforce a trust not only of the alienated interest but of the whole of the land under which the legal joint tenants hold it as trustees for tenants in common in equity. The explanation of why that is so is not free of difficulty. Ultimately, it must be found in the nature of joint tenancy and the manner in which equity acts in such a case. It is necessary to diverge briefly to examine those matters.
The substance of joint tenancy, while it subsists, lies in the equality and the personal character of the interests of the joint tenants in the undivided rights which constitute ownership of the whole of the relevant property. When one joint tenant dies during the subsistence of the joint tenancy, his interest ceases: the interests of the remaining joint tenants expand by accretion. When there is but one survivor, the joint tenancy has run its course and the survivor becomes the full owner of the whole property. In that context, it is not surprising that one joint tenant cannot effectively assign at law his place in a continuing joint tenancy (see Wright v Gibbons, at 323). The only way in which an assignee can be substituted as a legal joint tenant is by the establishment of a new and different joint tenancy. On the other hand, it has long been settled that one joint tenant can, by an appropriate instrument or act of legal transfer and in the absence of applicable statutory restraint, alienate his legal interest in the relevant property. Involved in such an alienation are two steps which occur simultaneously: the creation of a distinct proportionate share of the whole and the detachment of that share from the property which is subject to the joint tenancy with the consequence that the transferee receives the share of a tenant in common. If there were initially two joint tenants, the transferee and the non-transferring joint tenant will thereafter hold as tenants in common in equal shares. If there were initially more than two joint tenants, the transferee will hold the detached proportionate share (ie 1/n 1/n where n equals the number of joint tenants) as tenant in common with the non-transferring joint tenants who, as between themselves, will hold the remaining share n-1/nn-1/nas joint tenants. If such a transfer is effective at law and the circumstances of the case do not attract the operation of equitable doctrine, the legal position will be uncomplicated by the existence of distinct equitable estates or interests. Where the circumstances attract the operation of equitable doctrine, equitable estates or interests may come into existence and prevail over legal entitlement.
In a case where equitable doctrine operates between all the legal joint tenants or between a third party and all the legal joint tenants, there is ordinarily no difficulty in understanding the theoretical basis of the resulting equitable estate or interest. Where, for example, equity imposes a trust to give effect to the actual or presumed intention of the joint tenants or to do equity between them, there is no difficulty in understanding how all joint tenants come to be bound by a trust of the whole property. The conceptual difficulty is with the case where the direct operation of equitable doctrine is between one only of the joint tenants and a third party. One such case is where one joint tenant effectively alienates his interest in the subject property to a third party by an "assignment" which is, as between the parties to it, effective in equity but not at law. In such a case, one can readily see a basis for a trust of the "assignor's" own legal interest as joint tenant, that is to say, a trust which did not affect the rights of accretion by survivorship of the legal joint tenants but bound the assigning joint tenant to hold his legal entitlement for the assignee. As has been indicated, however, the cases establish that the true position in the case of such an equitable assignment by one joint tenant is that, subject to competing equities, there will be a trust of the whole property: the legal joint tenants will hold the property in trust for the assignee and the non-assigning legal joint tenant or tenants as tenants in common in equity. The explanation of why the assignee's equitable rights in personam against the assignor should bring about a conversion in equity of the overall joint tenancy into a tenancy in common would seem to be that equity, disregarding the imperfection of the analogy between the equitable rights of a cestui que trust and actual ownership of the trust property, has treated the creation or transfer of those rights of a cestui que trust as equivalent, in equity, to an ad rem assignment of the actual property and, on that basis, superimposed equitable rights and interests to mirror what would have been the legal position if the assignment had been effective at law.
The transfer in the present case, being unregistered, did not of itself operate as an assignment of either the legal or the equitable estate (Act, s 41). That being so, the question arises whether, notwithstanding the ineffectiveness of the unregistered transfer as an actual assignment, there was an alienation of Mrs Patton's interest by reason of the fact that the circumstances of the case were such as to give rise to a trust in Mr Corin's favour of that interest. Ultimately, that is the critical question in the case. Two distinct, albeit related, lines of reasoning lead me to conclude that it must be answered in the negative. The first, based on intention, largely corresponds with that which found favour with McLelland J at first instance. The other, based on the perception of Mr Corin as a mere volunteer, accords with the general approach of Mason CJ and McHugh J as supplemented by the adoption of part of the reasoning of Hope JA (with whom Priestley and Clarke JJA agreed) in the Court of Appeal.
If it had been intended by Mrs Patton and Mr Corin that the latter would acquire for himself the beneficial interest in the subject land and if Mr Corin had been a purchaser for value, equity would have lent Mr Corin its aid to force completion of the transaction. In circumstances where there was no outstanding purchase price and all that remained to be done to complete the transaction was the registration of the transfer, equity, regarding as done that which it would order to be done, would, at least between Mrs Patton and Mr Corin, have regarded Mrs Patton's interest as having been already assigned. The result would have been that, subject to any question of competing equities, the legal joint tenancy was overridden in equity at the time of Mrs Patton's death. In fact, however, it was never intended that Mr Corin should acquire for himself any beneficial interest in the subject land. The memorandum of transfer of Mrs Patton's "estate and interest as joint tenant" was expressly stated to be "pursuant to the terms of" the deed of trust between Mr Corin and Mrs Patton under which Mr Corin covenanted to hold the interest as tenant in common as bare trustee for Mrs Patton. Nor was Mr Corin a purchaser for value. It is true that the memorandum of transfer stated that the transfer was " in consideration of " the terms of the deed of trust. The execution by Mr Corin of that deed of trust and the undertaking by him of the duties of a bare trustee did not, however, relevantly constitute valuable consideration for the purposes of equity. In determining whether a party to a transaction has given valuable consideration, equity looks to the substance, not the mere form. The trustee who promises to receive and hold property transferred to him as a bare trustee does not thereby give valuable consideration. The substance of the transaction in such a case is that the only benefit which he receives or is intended to receive, if benefit it can be called, is the bare legal estate and for that he gives no consideration at all (see, eg , Milroy v Lord ( 1862) 4 De GF & J 264 ; 45 ER 1185 ; Tooheys Ltd v Commissioner of Stamp Duties ( 1960) 60 SR (NSW) 539 at 548 ; Golding v Hands [ 1969] WAR 121 at 126 ; DKLR Holding Co (No 2) Pty Ltd v Commissioner of Stamp Duties (NSW) ( 1982) 40 ALR 1 ; 149 CLR 431 at 442, 452 and 469-70).
The ordinary rationale and basis of express and resulting trust is express or implied agreement or actual or presumed intention. Thus, where "A transfers... the legal estate in property to B otherwise than for valuable consideration it is a question of the intention of A in making the transfer whether B was to take beneficially or on trust and, if the latter, on what trusts. If, as a matter of construction of the document transferring the legal estate, it is possible to discern A's intentions, that is an end of the matter..." (Vandervell v Inland Revenue Commissioners [ 1967] 2 AC 291 per Lord Upjohn at 312; see also , Re Vandervell's Trusts (No 2) [ 1974] Ch 269 at 288; and, generally , Charles Marshall Pty Ltd v Grimsley ( 1956) 95 CLR 353 at 363-4). As has been seen, the whole basis of the transaction between Mrs Patton and Mr Corin was that Mr Corin should receive and hold the interest to be transferred to him as trustee under the deed of trust, that is to say, as bare trustee for Mrs Patton. In these circumstances, even if the transfer had been registered and effective as an assignment of Mrs Patton's legal interest, Mr Corin would himself have enjoyed no beneficial interest. That being so, there is simply no basis upon which equity could intervene, upon the failure of the transfer as such an assignment, to confer upon Mr Corin a beneficial interest in the subject property which it was the agreement and the intention of the parties to the transaction that he should never have. Indeed, to impose a trust relationship under which Mrs Patton, the intended beneficiary, was trustee and Mr Corin, the intended trustee, was the beneficiary would be to stand the intended relationship between Mrs Patton and Mr Corin on its head and thereby confound, rather than do, equity.
It was submitted on behalf of the appellants that the correct analysis of the situation which would have existed if the transfer to Mr Corin had been registered was that Mr Corin would have acquired the whole legal and equitable estate but would have held the property conveyed subject to a trust. That was said to be the effect of the approach taken in this court in the DKLR Holding Co case That being so, equity should give pro tanto effect to the intention of the parties by constituting Mrs Patton a trustee of her interest in the subject land for Mr Corin as bare trustee for herself. It seems to me that there are three related answers to that submission. The first is that, as Mason J (with whom Stephen J agreed) made plain in the DKLR Holding Co case ( CLR at 449), that case turned upon the principle of stamp duties law that "duty is levied on instruments, not on the underlying transactions to which they give effect". That principle of stamp duties law is to be contrasted with the general approach of equity to pay regard to substance rather than mere form. The second answer is that, as Mason J clearly recognised in the DKLR Holding Co case ( CLR at 450), equity permits an owner of property to convey it to another as bare trustee for himself or for a third party. In such a case, it is convenient to speak of the transfer as being of a bare legal estate. If more precise analysis is required, it is that the equitable rights of the beneficiary attach to the property at the instant of transfer and the transferee receives the property subject to the equitable obligations of a bare trustee for the transferor or the third party. That being so, Mr Corin would not, even if the intended transaction had been completed by registration of the memorandum of transfer, have ever had any beneficial interest in the property transferred. Before the transfer, there was no distinct beneficial ownership. If the transfer had taken effect, Mr Corin would never have held the property transferred otherwise than as a bare trustee. The third answer is that equity, with its regard for substance rather than form, would not go through the charade of intervening to create trusts of property under which the legal owner held as bare trustee for another who in turn held as bare trustee for the legal owner. To the contrary, equity firmly denies the possibility of any such intervention in that it would disregard the interposed beneficiary whom it would see as having no interest in the property at all (see, eg , Grainge v Wilberforce ( 1889) 5 TLR 436 at 437 ; Re Lashmar; Moody v Penfold [ 1891] 1 Ch 258 at 267 and 270; Baker and Langan , Snell's Principles of Equity, 28th ed (1982) p 104; Meagher and Gummow , Jacobs' Law of Trusts in Australia, 5th ed (1986), para 2312; Pettit , Equity and the Law of Trusts, 6th ed (1989), p 73; Hanbury and Maudsley , Modern Equity 13th ed (Martin) (1989), p 113). That means that such a trust is not possible since, once the interposed beneficiary is disregarded, the trustee and the beneficiary would be the same person with the result that the legal and beneficial interests were merged.
Moreover, the fact that Mr Corin was a mere volunteer would in any event preclude the intervention of equity, as between himself and Mrs Patton, to impose a trust of Mrs Patton's interest in the subject land in the circumstances of the present case. Where property is capable of being assigned at common law, a purported legal assignment of the property which is ineffective at law is of itself inoperative in equity in the absence of valuable consideration (see "Chapters on Equity in New South Wales" in Jordan , Select Legal Papers ( 1983), p 55). Such an ineffective assignment will not be construed as itself constituting a declaration of trust in order to make it operative in equity (see, eg , Richards v Delbridge ( 1874) LR 18 Eq 11 at 15 Williams v Lloyd ( 1934) 50 CLR 341 at 368-9). That being so, an intended gift under such a voluntary assignment will be effective in equity only if the overall circumstances of the case are such that the stage is reached where equity regards the gift as complete, that is to say, as having been actually made. Until that stage is reached, equity will neither recognise the existence of a trust nor protect the donee from the exercise by the donor of any legal rights remaining in him. The reason that is so is that, in the absence of special circumstances giving rise to particular doctrines such as the doctrine of equitable estoppel, equity does not recognise an obligation in conscience that requires a person who remains the owner of property to adhere to or to give effect to an intention to give it away: "a man who forms an intention to make a gift is under no conscientious or other obligation to complete the gift" (per Higgins J , Anning v Anning ( 1907) 4 CLR 1049 at 1080). However, if the stage is reached where equity regards a gift of specific property as having been already made, it will necessarily treat the beneficial interest in that property as having passed to the donee.
There are some statements in cases in this court which support the view that, in a case of a voluntary transfer of Real Property Act land, the gift cannot be complete in equity until the transfer is actually registered. In particular, in Brunker v Perpetual Trustee Co (Ltd) ( 1937) 57 CLR 555 at 599- 600, Dixon J expressed the view that the donee under such a transfer can have "neither a legal nor an equitable estate in the land" pending registration. However, his Honour added (at 600) that such a donee could, prior to registration, acquire "a right of a new description arising under the statute" by the exercise of which "he could vest the legal estate in himself". That right of a new description arose when the intending donor had "placed the intended donee in such a position that under the statute the latter has a right to have the transfer registered, a right which the donor, or his executors, cannot defeat or impair" (at 602). Dixon J made clear (at 602-5) that the "statutory right" which he envisaged was the combination of a right as against the Registrar-General to procure registration and an immunity from "any liability to interference or restraint on the part of" the donor (at 602). That being so, the statutory right would not arise, pending registration, if the donee was not in a position to require production of the duplicate certificate of title to the Registrar- General since whether the transfer could be registered without production of the duplicate certificate of title would lie within "a very wide discretion" of the Registrar- General (at 604). Again, the statutory right would not arise if property in the actual document of transfer remained in the donor since "his power of recalling it must also remain" and "he would be entitled to possession of the paper, he could refuse to present it for registration and he could destroy it" (at 603).
It is somewhat difficult to understand precisely what Dixon J meant by his reference to a "right of a new description" in Brunker. Plainly, the combination of entitlement against the Registrar-General and immunity from interference by the donor was intended to encompass more than the ordinary right of a person with standing to demand that a public official perform a statutory duty. The right did not arise until entitlement to registration of the transfer of the relevant land (and, consequently, entitlement to the legal title) was "indefeasible" (see at 599). Yet, apparently, it carried with it no standing to invoke equity's protection of its content. In a context where his Honour indicated that he was applying Turner LJ's well-known "test" of what is necessary "to make a voluntary settlement valid and effectual" (Brunker, at 602, referring to Milroy v Lord, De GF & J at 274 ; ER at 1189), Dixon J's judgment does not make clear his reasons for rejecting the approach that, if the donor had done all that was necessary to make the entitlement of the donee to be registered "indefeasible", the gift was complete in equity with the result that an equitable interest vested in the donee. That general approach had been accepted in earlier cases to which his Honour referred (see O'Regan v Commissioner of Stamp Duties [ 1921] St R Qd 283 ; Scoones v Galvin and Public Trustee [ 1934] NZLR 1004 at 1017) and was subsequently accepted by Windeyer J in a discussion of voluntary equitable assignments with which Dixon CJ himself would seem to have been inclined to agree (see Norman v FCT ( 1963) 109 CLR 9 at 28-9, 16). That general approach reflects the view that the relevant question in such a case is whether there has been "a complete gift within the rule in Milroy v Lord " (see per Salmond J , Public Trustee v Commissioner of Stamp Duties [ 1925] NZLR 237 at 239). It appears to me to be much more in accord with general principle (see, eg, the discussion in Scoones v Galvin, at 1012-18) and with the established position that the provisions of the Act recognise, rather than preclude, the possible existence of unregistered equitable interests than is the notion of a statutory non-equitable right of a new character. It is not surprising that, as the judgment of Mason CJ and McHugh J demonstrates, the weight of subsequent cases in this court supports that general approach (see, in particular , Cope v Keene ( 1968) 118 CLR 1 ; Taylor v DCT ( 1969) 123 CLR 206 at 213-15). Indeed, in the last-mentioned cases, Dixon J's test for determining when his "right of a new description" would arise was accepted as appropriate for determining when the disposition of Real Property Act land under a voluntary transfer (Cope v Keene) or under a distribution by executors (Taylor) had become effective in equity. In my view, Dixon J's judgment in Brunker should be accepted not as establishing a new kind of statutory right but as identifying the test for determining whether the stage has been reached when a gift of Real Property Act land under an unregistered memorandum of transfer is complete and effective in equity. That test is a twofold one. It is whether the donor has done all that is necessary to place the vesting of the legal title within the control of the donee and beyond the donor's recall or intervention. Once that stage is reached and the gift is complete and effective in equity, the equitable interest in the land vests in the donee and, that being so, the donor is bound in conscience to hold the property as trustee for the donee pending the vesting of the legal title. In that regard, it is not a matter of equity ignoring the provisions of s 41 of the Act and treating the unregistered transfer as effective of itself to assign the beneficial interest in the land. It is simply that equity, acting upon the "fact or circumstance" that the donor has placed the vesting of the legal title within the control of the donee and beyond the donor's recall or intervention, looks at the substantial effect of what has been done and regards the gift as complete (see Olsson v Dyson ( 1969) 120 CLR 365 at 375-6).
In the present case, the fact that Mrs Patton had taken no step to enable Mr Corin to procure the production of the duplicate certificate of title which was held by the bank meant that she had not done all that was necessary to place the vesting of the common law title within Mr Corin's control. For the reasons given by Mason CJ and McHugh J, s 96 of the Conveyancing Act 1919 (NSW) did not entitle him to require the bank to lodge the certificate of title with the Registrar-General (see, also , Brunker, at 604-5). It is true that there was a theoretical possibility that the Registrar-General would register the transfer without production of the certificate of title (see Act, s 38 but note Brunker, at 604: "Obviously in such a case the Registrar-General would not dispense with production"). The plain fact remains, however, that registration of the transfer and vesting of the legal title could not be said to be within Mr Corin's control for so long as he was not entitled to procure production of the document of title. In any event, it is apparent that it remained in Mrs Patton's power to intervene to prevent the vesting of any legal interest in him. In circumstances where Mr Corin's only involvement was as a bare trustee for Mrs Patton, she was entitled to terminate the trust at any time and demand the return of the unregistered transfer. It was submitted on behalf of the appellants that Mrs Patton's position as beneficiary under the deed of trust should be disregarded. Her role as donor should not, it was said, be confused with any other role. The answer to that submission is that, in so far as equity is concerned, Mrs Patton's role as prospective transferor and prospective beneficiary were inextricably connected. All that Mrs Patton intended to confer and conferred upon Mr Corin was the limited entitlement of a bare trustee. It was the limited content of that entitlement that resulted in the situation where, for so long as the memorandum of transfer remained unregistered, Mrs Patton could recall the document and prevent the vesting of any legal title to the land in him (see Brunker, at 602-3, and cf Cope v Keene, at 12-13 ; McNab v Earle [ 1981] 2 NSWLR 673 at 677).
It follows that the transaction between Mrs Patton and Mr Corin did not have the effect that, in accordance with ordinary principles of equity, Mrs Patton held her interest as a registered joint tenant of the subject land upon trust for Mr Corin at the time of her death. It was, however, submitted for the appellants that ordinary equitable principles should be modified to produce that consequence. A joint tenancy should, it was submitted, be treated as "severed" in equity in any case where, as in the present, one joint tenant has unequivocally signified an intention to bring it to an end. In considering that submission, reference must inevitably be made to the judgment of Lord Denning MR in Burgess v Rawnsley [ 1975] Ch 429. In that case, his Lordship expressed the view (at 439) that it is sufficient for "severance" of a joint tenancy in equity if "there is a course of dealing in which one party makes clear to the other that he desires that their shares should no longer be held jointly but be held in common". Lord Denning's view in that regard was, however, significantly influenced by the provisions of s 36(2) of the Law of Property Act 1925 (UK) which have no Australian counterpart. It is true that there is little to be said from the point of view of logic or common sense for requiring that a joint tenant who desires to convert the joint tenancy into a tenancy in common should go through the charade of assigning his interest to a bare trustee for himself (or, arguably, conveying his interest to himself: cf Re Murdoch and Barry ( 1975) 64 DLR (3d) 222 ; Re Sammon ( 1979) 94 DLR (3d) 594 at 597 ; Freed v Taffel [ 1984] 2 NSWLR 322 at 324-5, and Conveyancing Act, s 24). It seems to me, however, that it has long been settled that, where what is involved is unilateral action by but one joint tenant, actual alienation either in law or in equity or at the least something equivalent thereto (eg by operation of estoppel) is necessary for severance of a joint tenancy (see Partriche v Powlet ( 1740) 2 Atk 54 at 55 ; 26 ER 430 at 431; and, generally , Nielson-Jones v Fedden [ 1975] Ch 222 at 231-4 ; Freed v Taffel, at 324-5). I do not think that it would be appropriate for this court to alter the law in that regard in circumstances where the alteration would have a retrospective effect on conveyancing practice and would be likely to give rise to unintended consequences in other cases. Accordingly , Burgess v Rawnsley ( and the earlier English cases of Hawkesley v May [ 1956] 1 QB 304 and Re Draper's Conveyance [ 1969] 1 Ch 486) should not be followed in this country.
Burgess v Rawnsley would not, in any event, provide support for the appellants in the present case. To the contrary, Lord Denning MR was at pains to "emphasise that it [ie the desire to sever the joint tenancy] must be made clear to the other party" (at 439). Indeed, it was the act of communication of the desire to sever the joint tenancy which was seen as the effective act. In the present case, it has not been suggested that Mrs Patton did anything at all to communicate to Mr Patton at any time before her death the fact that she wished to convert the joint tenancy into a tenancy in common.
There remains for consideration the question whether the transaction between Mrs Patton and Mr Corin gave rise to any other right or interest, short of a beneficial interest under a trust, which might have the effect of depriving Mr Patton of the benefit of his right of survivorship under the legal joint tenancy. The answer to that question is clearly in the negative. All that Mr Corin ever acquired pursuant to the transaction was the property in the actual memorandum of transfer as bare trustee for Mrs Patton and a revocable chance that the Registrar-General would register the transfer without requiring production of the certificate of title. Upon Mrs Patton's death without the memorandum of transfer having been even lodged for registration, that chance became without content since, even assuming that registration remains permissible after the death of the transferor (but cf Cope v Keene, at 7), Mrs Patton's interest in the property would have already devolved upon Mr Patton by survivorship.
It follows from what has been said above that there had been no severance, either in law or in equity, of the joint tenancy at the time when Mrs Patton died. That being so, Mr Patton became the owner of the whole by survivorship. It is unnecessary to consider whether, if the effect of the transaction between Mrs Patton and Mr Corin had been that there was an equitable assignment by Mrs Patton of her interest in the subject land, the legal joint tenancy between Mr and Mrs Patton would have been severed in equity with the result that Mr Patton effectively lost the benefit of his legal right of survivorship notwithstanding that Mr Patton had no notice of the assignment. The cases lend support for the view that an assignment will effect a severance even if it be concealed from the other joint tenant (see, eg , Re Sammon, at 609; Gray, op cit, p 321, n 2). At least in the case of an assignment which could be kept concealed in the event of the death of the non-assigning joint tenant, there is, however, plainly something to be said for the view that a legal joint tenant should, by analogy with the position of a purchaser for value without notice or by operation of the doctrine of estoppel in pais, be unaffected as against the other joint tenant or a volunteer claiming through him, by an equitable assignment of the other joint tenant's share of which he remained ignorant until after the death of the other joint tenant.
The appeal should be dismissed.