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Corin and Another v Patton
(1990) 92 ALR 1

(Judgment by: Mason CJ, McHugh J)

Corin and Another
vPatton

Court:

High Court of Australia

Judges:
Mason CJ Brennan J
Deane J
Toohey 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

Hearing date: 5 September 1989
Judgment date: 9 April 1990

Canberra

Judgment by:
Mason CJ
McHugh J

The respondent, Ronald John Patton, and his wife were joint registered proprietors of land under the Real Property Act 1900 (NSW). On about 6 July 1984 Mr Smallwood, a solicitor, received instructions to take the steps required to sever the joint tenancy. It is not altogether clear from whom those instructions were in fact received. Mr Smallwood prepared documents which he took on 12 July 1984 to the Pattons' house where Mrs Patton was terminally ill. John Jeffrey Corin, the first appellant, who was Mrs Patton's brother, also went to the house.

Mr Smallwood produced and explained the documents, which were a form of memorandum of transfer and a declaration of trust. They were then executed by Mrs Patton and Mr Corin and taken away by Mr Smallwood, who was to do what was necessary to complete the transaction. The certificate of title was held by the State Bank of New South Wales as unregistered mortgagee of the property. Mrs Patton took no action to procure the production of the certificate of title so as to enable the transfer to be registered. Mrs Patton died on 17 July 1984. She left a will in which she appointed Mr Corin and the second appellant, Judith Jones, as executors.

The instrument of transfer was in the prescribed form and expressed to be subject to the bank's mortgage. In the instrument the printed provisions concerning consideration had been deleted and the following words substituted:

In consideration of and pursuant to the terms of a Deed of Trust between the Transferor and Transferee of even date transfers her estate and interest as joint tenant in the said land to [John Jeffrey Corin].

The deed of trust stated, so far as is relevant:

WHEREAS

1.
The beneficiary is the registered proprietor as joint tenant with her husband RONALD JOHN PATTON of the property known as 19 Wyatt Avenue, Belrose and being the whole of the land contained in Certificate of Title Volume 11010 Folio 202 (such land being hereinafter referred to as 'the property').

2.
The beneficiary desires a severing of the joint tenancy over the said property.

3.
The beneficiary has contemporaneously herewith executed a form of Transfer of her estate in interest in the said property to the Trustee to hold as tenants in common with the said Ronald John Patton.

4.
Such Transfer as aforesaid is made to the Trustee for the beneficiary and the Trustee has agreed to execute the declaration of Trust hereinafter contained.

NOW THIS DEED WITNESSETH AS FOLLOWS

1.
The Trustee HEREBY DECLARES that subject to the provisions contained herein he holds an interest as tenants in common with the said Ronald John Patton in the said property UPON TRUST for the beneficiary and further that, subject to the provisions contained herein, he agrees to deal with that interest in the said property in such manner as the beneficiary shall from time to time direct or in accordance with the direction or order of any relevant Court of law.

At first instance, McLelland J held that the joint tenancy had not been severed and that Mr Patton was therefore entitled to the whole of the property. In his Honour's view, any equitable interest which may have become vested in Mr Corin would have been held on trust for Mrs Patton. In these circumstances, Mr Corin could not have invoked the assistance of equity to claim his equitable interest as against Mrs Patton and there was therefore no effective alienation either at law or in equity of Mrs Patton's interest in the land and the joint tenancy was not severed. McLelland J made a declaration accordingly in favour of Mr Patton.

The Court of Appeal dismissed an appeal against this decision for reasons different from those advanced by McLelland J. Hope JA (with whom Priestley and Clarke JJA agreed) held that the question to be decided was whether by her acts Mrs Patton had placed Mr Corin in such a position that under the Real Property Act he had a right to have the transfer registered, a right which Mrs Patton or her executors could not defeat or impair. His Honour found that it was open to Mrs Patton at any time before her death to recall the transaction, since it had not been made for valuable consideration and under the terms of the deed of trust, to which the transfer was expressed to be subject, Mrs Patton could have withdrawn Mr Corin's power to register the transfer. For this reason, no interest in the property was transferred to Mr Corin and the joint tenancy was not severed.

In this court, Mr Bennett QC for the appellants argued that Mrs Patton had done all that was in her power to effectuate a gift of her interest in the property, so that there was a transfer of the interest in equity. Mr Bennett submitted that Mrs Patton could not have recalled the gift except in her capacity as beneficiary under the trust, whereas it was only relevant to consider how she could have acted in her capacity as donor. He also argued that the transfer had operated as a declaration of trust itself and that an interest in the land had passed in this way. In the alternative, he suggested that the severance of a joint tenancy in equity does not require an actual transfer of property, but may be achieved by any act showing an intention to deal with the property in a manner inconsistent with the continuation of the joint tenancy. Mr Bennett said that, if these submissions failed, the court should none the less endorse a test for determining whether there had been an effective transfer for the purposes of severing a joint tenancy which is less stringent than the gift rule. Finally, he contended that in the present case special rules needed to be developed to recognise the situation where a person conveys property to himself, a transaction made possible by s 24 of the Conveyancing Act 1919 (NSW).

It is convenient to begin by considering the various ways in which a joint tenancy can be severed. The starting point is inevitably the judgment of Page Wood V-C in Williams v Hensman ( 1861) 1 J & H 546 ; 70 ER 862, in which his Lordship said (J & H at 557-8; ER at 867):

A joint-tenancy may be severed in three ways: in the first place, an act of any one of the persons interested operating upon his own share may create a severance as to that share. The right of each joint-tenant is a right by survivorship only in the event of no severance having taken place of the share which is claimed under the jus accrescendi. Each one is at liberty to dispose of his own interest in such manner as to sever it from the joint fund -- losing, of course, at the same time, his own right of survivorship. Secondly, a joint-tenancy may be severed by mutual agreement. And, in the third place, there may be a severance by any course of dealing sufficient to intimate that the interests of all were mutually treated as constituting a tenancy in common. When the severance depends on an inference of this kind without any express act of severance, it will not suffice to rely on an intention, with respect to the particular share, declared only behind the backs of the other persons interested.

In the present case, the second and third of these means are clearly not relevant. But there is the question whether a unilateral declaration of intention or other act inconsistent with the continuation of a joint tenancy may suffice for the purposes of the first method of severance.

That question was answered firmly in the negative long before Page Wood V-C came to express the general principles already outlined. In Partriche v Powlet ( 1740) 2 Atk 54 at 55 ; 26 ER 430 at 431, Lord Hardwicke LC stated:

This is not a severance; for , first, here is no agreement for this purpose ; secondly, if no agreement, then there must be an actual alienation to make it amount to a severance...; the declaration of one of the parties that it should be severed, is not sufficient, unless it amounts to an actual agreement.

That statement of the law is consistent with the statement by Page Wood V-C that an intention "declared only behind the backs of the other persons interested" was insufficient to effect a severance. Lord Hardwicke's view has been consistently adopted in Australia: see Lyons v Lyons [ 1967] VR 169 at 170-2 ; In the Marriage of Pertsoulis ( 1980) 6 Fam LR 39 at 43-7 ; McNab v Earle [ 1981] 2 NSWLR 673 at 675-6 ; Freed v Taffel [ 1984] 2 NSWLR 322 at 324-5 Patzak v Lytton [ 1984] WAR 353. In Wright v Gibbons ( 1949) 78 CLR 313, Latham CJ stated (at 322) that the agreement of some but not all tenants would not suffice to sever a joint tenancy.

In England, however, a different approach has been taken. Thus, in Burgess v Rawnsley [ 1975] Ch 429, Lord Denning MR said (at 439):

It is sufficient 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. I emphasise that it must be made clear to the other party.

Sir John Pennycuick, at 447-8, appeared to agree with this statement of the law, while Browne LJ expressed no final opinion.

There is no evidence in the present case of Mrs Patton's intention to sever the joint tenancy having been communicated to Mr Patton. But in any event there are powerful reasons for declining to adopt in Australia the approach which was taken in Burgess v Rawnsley. First, as the judgment of Sir John Pennycuick makes clear (at 447), the decision turned on the construction of s 36(2) of the Law of Property Act 1925 (UK), which permits the severance of a joint tenancy by notice in writing by one joint tenant to the other, rather than on the state of the pre-existing law. Secondly, as a matter of history and principle, the severance of a joint tenancy can only be brought about by the destruction of one of the so-called four unities: see Blackstone , Commentaries on the Law of England ( 1778), vol 2, pp 185-6. Unilateral action cannot destroy the unity of time, of possession or of interest unless the unity of title is also destroyed, and it can only destroy the unity of title if the title of the party acting unilaterally is transferred or otherwise dealt with or affected in a way which results in a change in the legal or equitable estates in the relevant property. A statement of intention, without more, does not affect the unity of title. Thirdly, if statements of intention were held to effect a severance, uncertainty might follow; it would become more difficult to identify precisely the ownership of interests in land which had been the subject of statements said to amount to declarations of intention. Finally, there would then be no point in maintaining as a separate means of severance the making of a mutual agreement between the joint tenants.

Accordingly, it is necessary in this case for the appellants to demonstrate that Mrs Patton effectively alienated the property in equity. Although this may involve questions of whether or not Mrs Patton could have withdrawn from the transactions, the issue is primarily whether or not the property was alienated.

Mr Bennett contended that the rules for determining whether there has been an effective transfer should be relaxed in a case, such as the present, where the purpose of asking the question is to determine whether or not a joint tenancy has been severed. But such an approach cannot be reconciled with principle and would be productive of great uncertainty. Once it is accepted that a transfer is required, it is the general rules relating to transfers of land which must be applied. This particular case involved a voluntary transaction. In this respect we agree with Hope JA that the consent or agreement of Mr Corin to act as trustee did not constitute valuable consideration, and in any event it was not seriously suggested otherwise. Indeed, in the famous case of Milroy v Lord ( 1862) 4 De GF & J 264 ; 45 ER 1185, in very similar circumstances, the consent or agreement of the transferee to act as trustee was not regarded as constituting valuable consideration.

The long line of earlier authority concerning voluntary conveyances and transfers culminated in the judgments in Milroy v Lord. In that case Thomas Medley executed a voluntary deed purporting to assign certain shares to Samuel Lord, to be held by him on trust for Andrew Milroy and his wife. The shares could be transferred only by the making of appropriate entries in the books of the company, but no such action took place. However, Lord held a general power of attorney from Medley authorising him to transfer the shares, and a further power of attorney authorising him to receive the dividends on the shares. The dividends were received by Lord for the following three years, until Medley's death. The issue for decision was whether or not Medley had effected a gift of the shares in equity prior to his death.

The court held that the gift was imperfect. Knight Bruce LJ held that the instrument of transfer was insufficient to constitute Medley a trustee of the shares. Nor did it amount to a specifically enforceable contract. Rather, Medley left imperfect and incomplete that which he might have perfected and completed by making a transfer of the shares so as to confer the legal ownership upon Lord. Turner LJ stated (De GF & J at 274-5; ER at 1189-90):

I take the law of this court to be well settled, that, in order to render a voluntary settlement valid and effectual, the settler [sic] must have done everything which, according to the nature of the property comprised in the settlement, was necessary to be done in order to transfer the property and render the settlement binding upon him. He may of course do this by actually transferring the property to the persons for whom he intends to provide, and the provision will then be effectual, and it will be equally effectual if he transfers the property to a trustee for the purposes of the settlement, or declares that he himself holds it in trust for those purposes;... but, in order to render the settlement binding, one or other of these modes must, as I understand the law of this court, be resorted to, for there is no equity in this court to perfect an imperfect gift. The cases I think go further to this extent, that if the settlement is intended to be effectuated by one of the modes to which I have referred, the court will not give effect to it by applying another of those modes. If it is intended to take effect by transfer, the court will not hold the intended transfer to operate as a declaration of trust, for then every imperfect instrument would be made effectual by being converted into a perfect trust.

Accordingly, the purported transfer could not be supported as a declaration of trust, and failed as a transfer because the powers of attorney did not suffice to permit Lord to execute a transfer in his favour without express directions from Medley, which Medley had not given.

Two propositions emerged from the observations of Turner LJ. First, the donor must have done everything necessary to be done, according to the nature of the property, in order to transfer the property and render the gift binding. Secondly, if the gift was intended to have been effectuated by one means, the court will not give effect to it by another means. However, as the later cases were to reveal, there was an element of uncertainty in the first proposition. Did it require that the donor must have done himself all that was necessary to be done in order to transfer the property or did he only have to do all that was necessary to be done by him in order to achieve that result?

This question clearly emerged for the first time in Anning v Anning ( 1907) 4 CLR 1049. There the donor executed a voluntary deed conveying real and personal property to his wife and children, including mortgages of land under the Torrens system and a Crown lease. Although the deed was executed and delivered, the mortgages were transferable under the Real Property Act 1900 (NSW) only by a transfer in the prescribed form and by registration of the transfer. No such transfer was executed. Likewise, the donor did not execute an instrument of transfer of the lease in the prescribed form, the registration of such an instrument being necessary to transfer title to the Crown lease. Each member of the court held that the transfers of the donor's estate and interest in the real property were void because they were not in the forms prescribed by statute. But each member of the court had a different understanding of the principle to be applied.

Griffith CJ said (at 1057):

I think that the words 'necessary to be done', as used by Turner LJ in Milroy v Lord, mean necessary to be done by the donor.... If, however, anything remains to be done by the donor, in the absence of which the donee cannot establish his title to the property as against a third person, the gift is imperfect, and in the absence of consideration the court will not aid the donee as against the donor. But, if all that remains to be done can be done by the donee himself, so that he does not need the assistance of the court, the gift is, I think, complete.

Isaacs J took a stricter view of the matter. His Honour said (at 1069):

If the legal title is assignable at law it must be so assigned or equity will not enforce the gift. If for any reason, whether want of a deed by the assignor, or a specifically prescribed method of transfer, or registration, or statutory notice, the transfer of the legal title is incomplete when the law permits it to be complete, equity regards the gift as still imperfect and will not enforce it. In such a case, the fact that the assignor has done all that he can be required to do is not applicable.

Higgins J (at 1081-2) appeared to adopt an intermediate position. His Honour stated that the word "necessary" refers to the nature of the property, not to any obligation upon the donor, and went on to say (at 1082):

What the courts look at is what the donor might have done. This point has been put so fully in the judgment of Mr Justice Isaacs that I need not deal with it further.

Despite the reference to the judgment of Isaacs J, it seems that Higgins J would have been prepared to recognise in equity a gift which the donor could have done no more to perfect, for example, a gift incomplete simply because the transfer, lodged for registration, remained unregistered, the donor having done all that he could do. Isaacs J would not have recognised such a gift because the transfer of the legal title was incomplete.

Isaacs J's approach gave full effect to the related maxims "equity will not assist a volunteer" and "equity will not perfect an imperfect gift". Moreover, this approach was entirely consistent with the statutory provisions regulating the transfer of title to Torrens system land. These provisions provide that an instrument shall not be effectual to pass an estate or interest in land until registration: see Barry v Heider ( 1914) 19 CLR 197. That is not to say that the approaches taken by Griffith CJ and Higgins J were inconsistent with the two maxims and the statutory provisions. We shall discuss this aspect of the judgments in Anning v Anning later.

In Brunker v Perpetual Trustee Co (Ltd) ( 1937) 57 CLR 555, the donor executed in favour of his housekeeper a voluntary transfer of an estate in remainder expectant on his death of Torrens system land. He handed the executed transfer to a Mr Fuller who was a friend of both the donor and the housekeeper. The trial judge found that Mr Fuller had held the transfer as the donor's agent at the time of the donor's death. The transfer made no mention of a mortgage to which the land was subject, since the donor apparently wished his housekeeper to take the property free from the mortgage. After the death of the donor, Mr Fuller handed the transfer to the donee's solicitors who inserted particulars of the mortgage and sought to register the transfer. The mortgagee at all times held the certificate of title. The court, Latham CJ dissenting, held that there had been no gift of any interest in the land and that the transfer was void and of no effect.

Latham CJ, after noting that the Torrens system did not prevent the creation and recognition of equitable interests in land, found that the donee

was not prevented by the absence of the certificate of title or the alteration of the transfer from presenting the transfer for registration. His Honour rejected (at 589) the trial judge's finding that Mr Fuller had held the transfer as the donor's agent at the time of the donor's death. In a passage in his judgment which is somewhat difficult to follow (at 588-90), he found that Mr Fuller had been acting in accordance with the donor's wishes when he handed the transfer to the donee's solicitors after the donor's death and, that being so, also found that the donor had placed the donee in a position to obtain a legal title by the donee's own action without further action by the donor. Since the donee was in a position to seek registration, the assistance of the court was not required to enforce the gift. The Chief Justice distinguished the statement by Isaacs J in Anning v Anning ( at 1069) on that basis and clearly preferred the approach of Griffith CJ, without acknowledging that the approach of Isaacs J differed from that of Griffith CJ. He finally found that the alteration to the transfer did not affect the validity of the instrument and that the absence of the certificate of title did not necessarily prevent the donee from obtaining registration.

Dixon J (with whom Rich J agreed) found that the alteration to the transfer had not been authorised and that the donor gave no authority for it to be handed to the donee's solicitors or presented for registration. However, his Honour also considered the rights of the donee in terms not dissimilar to the language used by Latham CJ. After stating that the donor had manifested no intention to create a trust and that an intended donee cannot obtain equitable remedies compelling the donor to give legal effect to his intention to give, Dixon J said (at 599-600):

But, under the system of the Real Property Act, a transferee may be in a position by registering an instrument to obtain a legal estate, although prior to registration neither the legal nor any equitable estate was vested in him. If that system allows a volunteer to acquire an indefeasible right to the registration of an instrument in his favour, then, although it would remain true that before registration he had neither a legal nor an equitable estate in the land, yet he would be entitled to a right of a new description arising under the statute, and by its exercise he could vest the legal estate in himself.

... There is no a priori reason why statutory provisions making title depend upon registration should not confer upon a person in whose favour a registrable instrument has been made, a right to procure its registration, notwithstanding that it is voluntary, and no reason why it should not leave the transferor powerless to countermand his instrument. Such a right would not depend upon the doctrines or remedies of a court of equity, and, pending actual registration, the transferee could not be considered entitled to an equitable interest any more than to a legal interest in the land.

After referring to Milroy v Lord, his Honour gave his own view of the appropriate question (at 602):

[The question] is not whether the intending donor has divested himself of his estate or interest in the land, or has done all that lies in his legal power to do so. For obviously it was within his legal power himself to cause the immediate registration of the transfer. The question is whether by his acts he has 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.

On this view of the matter it was necessary to determine whether property in the actual instrument of transfer had passed to the donee. If a registrable instrument had been delivered to the donee, then the donee had a right to have it registered, as against the donor. The absence of the certificate of title did not necessarily defeat the donee, because the Registrar-General could dispense with its production. In fact, however, the transfer was not given to the donee or to Mr Fuller as bailee for her "and, therefore, never became her property and was not placed by the deceased in her possession or control" (at 605). Accordingly, the property in it had not passed to the donee.

McTiernan J found (at 609) that the donor had not taken any irrevocable step by executing the transfer. He did not give the transfer to the donee and his death had revoked any authority to perfect the intended gift by registration. His Honour therefore did not find it necessary to consider the significance of the certificate of title or the meaning of Milroy v Lord.

Accordingly , Brunker did not answer the questions presented by the judgments in Anning v Anning. Although the judgment of Dixon J is consistent with the view of Isaacs J that no interest in land passes by way of gift prior to the registration of a transfer, the right recognised by Latham CJ accords with the approach taken by Griffith CJ.

Subsequently, in Norman v FCT ( 1963) 109 CLR 9, a case which did not involve a transfer of land, Windeyer J, consistently with the view stated by Griffith CJ in Anning v Anning, said (at 28-9) that "in equity there is a valid gift of property transferable at law if the donor, intending to make, then and there, a complete disposition and transfer to the donee, does all that on his part is necessary to give effect to his intention and arms the donee with the means of completing the gift according to the requirements of the law".

Evidently Dixon CJ was not "disposed to disagree" with that statement (at 16). The other members of the court did not consider the question.

Next, in Cope v Keene ( 1968) 118 CLR 1, the issue was whether a deceased person had made a completed gift of Torrens system land in his lifetime. Kitto J (with whom McTiernan J agreed) said (at 6):

To complete the gift the testator had to do all that, according to the nature of the property as land under the provisions of the Real Property Act, was necessary to be done by him in order to transfer the property : Anning v Anning. What this involved is shown by the judgment of Dixon J in Brunker v Perpetual Trustee Co (Ltd).

His Honour said that this required property in the instrument of transfer to pass to the intended donees, and probably also involved production by or on behalf of the donees of the certificate of title. The instrument of transfer was not delivered to the donees with the intention that property in it should pass to them and so the intended gift failed.

Two cases remain for consideration. The first is Olsson v Dyson ( 1969) 120 CLR 365, a case involving a purported oral assignment of a debt. The court held that the assignment failed at law for the absence of writing as required by the Law of Property Act 1936 (SA). In holding that there was no assignment in equity, Kitto J (with whom Barwick CJ (on this aspect of the case), Menzies and Owen JJ agreed) spoke in terms similar to those of Isaacs J in Anning v Anning:

Property which is assignable at law but is not assigned in the manner which the law requires for a legal assignment of it cannot be held in equity to be assigned unless by reason of some fact or circumstance which a court of equity regards as binding the legal owner in conscience to hold the property upon trust for the assignee.... But there is no equity to perfect an imperfect gift: because of the absence of consideration a purported assignment, if incomplete as a legal assignment, effects nothing in equity (at 375-6).

Windeyer J (at 386-7) reiterated the views he had expressed in Norman.

The final case is Taylor v DCT ( 1969) 123 CLR 206. There the question for determination was whether certain land remained in the hands of the executors of a deceased estate or had passed to the relevant beneficiary. The executors had consented in writing to the transmission of the land, delivered the certificate of title to the beneficiary and caused the instrument of probate to be produced to the Registrar-General. It was held by the court (Barwick CJ, Taylor and Menzies JJ) that the executors could no longer prevent registration by the beneficiary and that the property was accordingly no longer in the hands of the executors. The court referred to Milroy v Lord and the observations of Griffith CJ in Anning v Anning, then quoted from the judgment of Dixon J in Brunker. Their Honours found that nothing remained for the executors to do to enable the beneficiary to become registered as proprietor of the land. Equally, nothing could be done by them to prevent or obstruct registration.

As in Cope v Keene, the test of Dixon J in Brunker was applied. It was applied in a manner which involved recognition of an interest in land in a volunteer prior to registration. Further, the judgment reflects the approach of Griffith CJ, in contrast to the decision in Olsson v Dyson which draws on the view of Isaacs J. In both Cope v Keene and Taylor, the court used the language of Dixon J in Brunker as a test for ascertaining the existence of equitable interests in property in accordance with the principle enunciated in Milroy v Lord, rather than for the purpose of ascertaining whether a personal statutory right to registration has come into existence. In this way it has become clear that, in the subsequent cases, the court has not endorsed the personal statutory right favoured by Dixon J.

That the court has taken this course is not surprising. The legislation is silent as to the supposed statutory right. Given that the rule in Milroy v Lord is part of the law, the statute provides scant support for the concept of a personal right mirroring that rule in scope but differing in effect. All that can be said is that the legislation enables a donee to secure registration of a transfer of the donor's interest when he is armed with an instrument of transfer in registrable form and he can produce, or arrange for the production of, the appropriate documents (which include the certificate of title). If the donor lacks the power to recall his transfer, that lack of power stems not from the statute, but from the principles of equity.

Once it is recognised that Dixon J's formulation no longer represents a correct statement of the law in this area, it becomes necessary to consider the authority and force of the three judgments in Anning v Anning. The view of Higgins J, to the extent that it differs from that of Isaacs J, has not found support in the later cases. Moreover, the difficulties which would be presented by an inquiry into what was within the power of the donor to achieve in a particular case constitute a sufficient reason for discarding his Honour's view.

The stricter approach of Isaacs J is consistent with the historic attitude of equity in developing rules applicable to intended gifts where no means of effecting a transfer at law were available: see William Brandt's Sons & Co v Dunlop Rubber Co Ltd [ 1905] AC 454, per Lord Macnaghten at 461-2. There is also perhaps a conceptual difficulty in accepting, in accordance with the broader view, that a donor has done everything necessary to be done by him to complete a legal transfer in a case where the donor could in fact have procured a legal transfer, for example by seeing to registration personally. And, as we have already noted, Isaacs J's view conforms to the notion, underpinned by the two equitable maxims, that equity will not assist a volunteer to perfect a title which is incomplete. Equity's refusal may be justified on the footing that the donor should be at liberty to recall his gift at any time before it is complete.

Although Griffith CJ did not expressly advert in Anning v Anning to the maxim that equity will not assist a volunteer (cf Isaacs J at 1063), the divergent approaches adopted by Griffith CJ and Isaacs J in that case may be taken to imply different understandings of the maxim. Isaacs J considered that equity would pay no regard at all to voluntary transactions which were insufficient to create proprietary or contractual rights at law. Thus, equity would not heed the volunteer's plea for recognition of his interest. On the other hand, Griffith CJ must be taken to have regarded the maxim as an injunction against equity making its remedies available to perfect an imperfect gift. On this footing the recognition of the volunteer's interest did not amount to the provision of assistance in violation of the maxim.

Of course it would be a mistake to set too much store by the maxim. Like other maxims of equity, it is not a specific rule or principle of law. It is a summary statement of a broad theme which underlies equitable concepts and principles. Its precise scope is necessarily ill-defined and somewhat uncertain. It is subject to certain clearly established exceptions such as the rule in Strong v Bird ( 1874) LR 18 Eq 315 and the doctrine of equitable estoppel, where an equity arises in favour of an intended donee from the conduct of the donor after the making of the voluntary promise by the donor: see Olsson v Dyson, at 378-9. These exceptions have no bearing on the present case except in so far as they demonstrate that the maxim does not enunciate an inflexible or universal rule. What is of importance is that this and the related maxim that equity will not perfect an imperfect gift are primarily associated with the rule that a voluntary covenant is not enforceable in equity, a rule which itself has become the subject of critical scrutiny in some of its applications: see Macnair, "Equity and Volunteers", (1988) 8 Legal Studies 172. Thus, a volunteer who is the object of an intended trust will only succeed if the trust has been completely constituted. This means, so it is said, that the trust must be constituted by a present declaration of trust or by a transfer by the settlor of the legal title to the intended trustee. And that brings us back to the statement of principle by Turner LJ in Milroy v Lord.

But there is a distinction between the enforcement of a voluntary covenant to create a trust and the enforcement of a transfer by way of intended gift when the donor has done all that was within his power to vest title to the property in trustees for the donee or in the donee. In the first case, equity will not compel specific performance of the voluntary

covenants, there being no completely constituted trust; in the second case, as the transaction is complete as far as the donor is concerned, no question of withholding specific performance can arise and equity will hold the donor to the completed transaction on the footing that title has been divested: see Ellison v Ellison ( 1802) 6 Ves Jun 656 at 662 ; 31 ER 1243 at 1246 ; Ex parte Pye ( 1811) 18 Ves Jun 140 at 149 ; 27434 ER 271 at 274 (where Lord Eldon LC observed "if the act is completed, though voluntary, the court will act upon it") ; Fletcher v Fletcher ( 1844) 4 Hare 67 at 74 ; 67 ER 564 at 567 (where the covenant being "complete", the court was "not called upon to do any act to perfect it", in the words of Wigram V-C). The point is, as Page Wood V-C noted in Donaldson v Donaldson ( 1854) Kay 711 at 718 ; 69 ER 303 at 306, that where there is an imperfect gift "which requires some other act to complete it on the part of the assignor or donor, the court will not interfere to require anything else to be done by him " (our emphasis).

These specific statements, which necessarily circumscribe the area of operation of the equitable maxims, were apt to apply to those situations in which legal title passed not on the delivery of an executed conveyance or transfer of property but subsequently on registration of a transfer, as is the case with stocks and shares in companies. The statements are equally apt to apply to the transfer of estates in land under the Torrens system.

The rationale for refusing to complete an incomplete gift is that a donor should not be compelled to make a gift, the decision to give being a personal one for the donor to make. However, that rationale cannot justify continued refusal to recognise any interest in the donee after the point when the donor has done all that is necessary to be done on his part to complete the gift, especially when the instrument of transfer has been delivered to the donee. Just as a manifestation of intention plus sufficient acts of delivery are enough to complete a gift of chattels at common law, so should the doing of all necessary acts by the donor be sufficient to complete a gift in equity. The need for compliance with subsequent procedures such as registration, procedures which the donee is able to satisfy, should not permit the donor to resile from the gift. Once the transaction is complete so far as the donor is concerned, he has no locus poenitentiae. Viewed in this light, Griffith CJ's approach has the advantage that it gives effect to the clear intention and actions of the donor rather than insisting upon strict compliance with legal forms. It is a reflection of the maxim "equity looks to the intent rather than the form". By avoiding unnecessarily rigid adherence to the general rule and endeavouring to give effect to the donor's intention, the law avoids unjust and arbitrary results. See Zines, "Equitable Assignments: When Will Equity Assist a Volunteer?", (1965) 38 Australian Law Journal 337.

In any event there is stronger support in the later cases for the view of Griffith CJ than that of Isaacs J. That support is found in the judgment of Latham CJ in Brunker, those of Dixon CJ and Windeyer J in Norman, the joint judgment in Cope v Keene, and the judgment of the court in Taylor. Furthermore, the view of Griffith CJ is supported by the decision of the English Court of Appeal in Re Rose; Rose v IRC [ 1952] Ch 499 at 510-11. Accordingly, we conclude it is desirable to state that the principle is that, if an intending donor of property has done everything which it is necessary for him to have done to effect a transfer of legal title, then equity will recognise the gift. So long as the donee has been equipped to achieve the transfer of legal ownership, the gift is complete in equity. "Necessary" used in this

sense means necessary to effect a transfer. From the viewpoint of the intending donor, the question is whether what he has done is sufficient to enable the legal transfer to be effected without further action on his part.

Although Griffith CJ did not explicitly say so, his proposition implicitly recognises that the donee acquires an equitable estate or interest in the subject matter of the gift once the transaction is complete so far as the donor is concerned. So much was acknowledged by the English Court of Appeal in Re Rose. There the court concluded that the donor had executed and delivered transfers and share certificates to the donee with the intention of transferring title to the shares to him and had placed him in a position to secure the legal title to the shares by registration subject to an exercise by the directors of their discretion to register the transfers. In this situation the donor could not recall the gift or invoke the aid of the court to prevent registration: see at 516. The court held that the donor had parted with his beneficial interest and had become a constructive trustee for the donee. This conclusion did not affect the second proposition in Turner LJ's judgment in Milroy v Lord. As Evershed MR stated (at 510):

... if a document is apt and proper to transfer the property -- is in truth the appropriate way in which the property must be transferred -- then it does not seem to me to follow from the statement of Turner LJ that, as a result, either during some limited period or otherwise, a trust may not arise, for the purpose of giving effect to the transfer.

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