Mills v Stokman

116 CLR 61

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(Judgment by: Menzies J)

Between: Daphne May Mills
And: Martin Cornelis Stokman

Court:

Judges: Barwick CJ
McTiernan J
Kitto J
Taylor J

Menzies J

Subject References:
Real Property
Profits a prendre
Whether sale of goods or grant of interest in land
Assignment
Whether authority to enter enforceable against new purchaser

Legislative References:
Sale of Goods Act 1923 (NSW) - s 5; s 22; s 23
Real Property Act 1900 (NSW) - s 42

Hearing date: 2 November 1966; 3 November 1966; 1967 November 1966; 3 April 1966; 19 May 1966
Judgment date: 19 May 1967

SYDNEY

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Judgment by:
Menzies J

Having regard to the course taken by the parties at the hearing of this appeal and, in particular, to the concession made on behalf of the respondents that they have no rights except in relation to slate at grass upon the land of the appellant Daphne May Mills, it has, I think, become possible for this Court to dispose of the substantial dispute which is now between them.

The facts are set out in the judgments of the other members of the Court and I do no more than state my conclusions upon what appear to me as the real issues, whether or not they were raised by the pleadings.

(1)

The rubble slate in the dump upon the land near Goulburn owned by the appellant Daphne May Mills is, and was at all times material, part of the land either because the rubble was not severed from the land or, upon being dumped, it became part of the land again. As to this, I prefer the view of the learned judge of first instance to that of the learned judges of the Court of Appeal.

(2)

The plaintiffs' case that on 14th November 1955 the slate was a chattel which was then sold by Donald Albert Mills and Winifred Katherine Mills (the owners of the land) to the plaintiff Warren therefore fails. In any event, if the slate had become a chattel by severance and had not again become part of the land, the probability is that it would have continued to belong to the company which owned the land when the slate was quarried for its own purposes and which dumped such slate as it did not require to form the heap now in question. The presumption that the owner for the time being of the fee is entitled to chattels upon his land, vide South Staffordshire Water Co v Sharman, ^[F12] has no application when there is a known owner. There was no evidence of the transfer of the heap of slate, as such, to Donald Albert Mills and Winifred Katherine Mills and, the ownership being elsewhere, the agreement of 14th November 1955, which they made, could have conferred no title on the plaintiffs to the slate if it had become and remained a chattel. Furthermore, the definition of "goods" in the Sale of Goods Act, 1923-1953 (N.S.W.) was of no assistance to the plaintiffs. There was no contract by the owners of the land under which it was agreed that the slate would be "severed before sale or under the contract of sale".

(3)

The slate being part of the land on 14th November 1955, the true effect of the agreement of that date was to create a profit a prendre in equity or some similar property right, such as a right of entry, in the plaintiff Warren.

(4)

Accordingly, the transfer or conveyance of the land by Donald Albert Mills and Winifred Katherine Mills to the defendant Daphne May Mills in 1963 was subject to the equitable interest of the plaintiff Warren and any successor in title unless the defendant Daphne May Mills was then a bona fide purchaser for value without notice of that interest.

(5)

The defendant Daphne May Mills did by 1961 at the latest have notice of the equitable interest created by the agreement of 14th November 1955 and was therefore affected by it.

(6)

Were there nothing more, the plaintiff Warren would have been entitled to relief.

(7)

There was, however, something more, viz. the agreement between the plaintiff Stokman and the defendant Daphne May Mills of 23rd January 1961. This agreement became an exhibit but it seems that no rights flowing from it were asserted and no importance was attached to it at the hearing. Nevertheless, unless it were vitiated by misrepresentation or determined before action by, or after, breach, it would entitle the plaintiff Stokman to relief based upon its provisions.

(8)

When the appeal was returned to the list for further argument, the case which counsel for the appellants indicated that they would attempt to make if the earlier judgments in the proceedings were to be set aside and the cause were to be remitted for further hearing upon amended pleadings does not justify the adoption of that extreme course. The case indicated was a flimsy one.

(9)

It is not necessary to define the rights inter se of the respondent Stokman and the respondent Warren under the agreement between them of 19th February 1960.

(10)

In my opinion, the foregoing conclusions warrant the making of declarations to the following effect:

(a)

That the agreement of 14th November 1955 made between Donald Albert Mills and Winifred Katherine Mills of the one part, and Robert George Warren of the other part, entitled the respondent Warren to enter upon the land described in pars. 1, 4 and 5 of the statement of claim to cut and carry away the slate at grass thereon in accordance with the terms of the said agreement.

(b)

That the aforesaid right of the respondent Warren bound Daphne May Mills upon her becoming the owner of the said land, and continues to bind her as such owner.

(c)

That the agreement of 23rd January 1961 made between the respondent Stokman of the one part, and the appellant Daphne May Mills of the other part, entitles the said respondent to enter upon the said land for the purpose of cutting and carrying away the slate at grass thereon upon the terms of the said agreement.

I would therefore agree with the Court of Appeal that the appeal from the learned trial judge should be allowed. I consider, however, that in lieu of the declaration made by the Court of Appeal, declarations as already stated should be made. Otherwise, I would affirm the order of the Full Court.