(1) DEEDS

This chapter was updated by Adrian Coorey BEc/LLB(Hons I)(Macq), LLM(Hons)(Cantab), BCom(Macq) Principal Lawyer, Australian Competition and Consumer Commission Lecturer, Macquarie University and University of Western Sydney

(A) Definition of a Deed The paragraph below is current to 07 February 2012 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [140-1] Definition A deed is the most solemn act that a person may perform with respect to a particular property or contract and the form of a deed is that which is laid down by the law from time to time.1 A deed is an instrument which either of itself passes an interest, right or property, creates an obligation binding on some person, or amounts to an affirmation or confirmation of something which passes an interest, right or property.2 Any instrument purporting to be a deed but which does not convey any such interest is considered to be imperfect.3 In order to be a deed at common law, an instrument needs to comply with a number of formalities: (1) it must be written on parchment, vellum or paper;4 (2) it must be sealed;5 and (3) it must be delivered.6 The common law requirements as to form have been modified to varying degrees by statutory enactments in all Australian jurisdictions.7 There is the further requirement of evidence that a party actually intended to execute the instrument as a deed8 and be immediately bound by it.9 Although a deed is an instrument under seal (as distinct from an instrument under hand), an instrument under seal is not a deed if it does not comply with the requirements necessary to constitute a valid deed10 (and notwithstanding that the document was originally intended to be a deed), and as such, common documents such as wills11 and instruments executed under the seal of a company12 will not ordinarily be considered to be deeds, although they, and indeed any document that fails as a deed, may nevertheless be a valid instrument under hand.13

A power of attorney executed under seal is a deed,14 and it is only where an agent is appointed by deed that an agent will have the power to execute a deed on behalf of his or her principal.15 Notes 1 Manton v Parabolic Pty Ltd (1985) 2 NSWLR 361 at 367-8; (1986) ANZ ConvR 587 per Young J ; Goodwin v Vietnam Veterans Motor Cycle Club Australia NSW Chapter Inc [2008] NSWSC 154; BC200800991 at [34] per White J .2 R v Morton (1873) LR 2 CCR 22 at 27 per Bovill CJ; Argyle Developments Pty Ltd v Australia and New Zealand Banking Group Ltd (unreported, SC(TAS), Zeeman J, No CV2/1992, 15 October 1993, BC9300123) at 8 per Zeeman J (in the circumstances of this case, a mortgage debenture was considered as a deed).3 Reid v Kearney (1887) 8 LR (NSW) Eq 37 at 46; (1888) 4 WN (NSW) 158 .4 Coke E, Commentary upon Littleton, Vol 1, 19th ed, London, 1832, pp 35b, 171b; Goddards Case (1584) 2 Co Rep 4b; 3 Leon 100; 76 ER 396 at 398 ; Manton v Parabolic Pty Ltd (1985) 2 NSWLR 361 at 369; (1986) ANZ ConvR 587 ; Monarch Petroleum NL v Citco Australia Petroleum Ltd [1986] WAR 310 at 353 ; Scook v Premier Building Solutions Pty Ltd (2003) 28 WAR 124; [2003] WASCA 263; BC200306628 at [22] per Steytler J (Hasluck and McKechnie JJ concurring). See further [1405].5 See [140-40]. Originally at common law there was no specific requirement that a deed be signed: see [140-30].6 See [140-58].7 (ACT) Civil Law (Property) Act 2006 s 219 (signature and attestation) (NT) Law of Property Act 2000 s 47 (formalities of deeds executed by natural persons) (NSW) Conveyancing Act 1919 s 38 (signature and attestation) (QLD) Property Law Act 1974 ss 44 (description and form of deeds), 45 (formalities of deeds executed by individuals) (SA) Law of Property Act 1936 ss 34(2), 41 (execution and attestation of deeds), 41AA (execution and attestation of other instruments) (TAS) Conveyancing and Law of Property Act 1884 ss 61(1)(d), 63 (execution and attestation of deeds) (VIC) Property Law Act 1958 ss 57 (description of deeds), 73 (execution of deeds by an individual), 73A (WA) Property Law Act 1969 ss 9 (formalities of deeds), 12. For statutory provisions relating to the execution of deeds by corporations see [140-75]. 8 Xenos v Wickham (1867) LR 2 HL 296 at 312 per Blackburn J; Electricity Meter Manufacturing Co Ltd v Manufacturers Products Pty Ltd (1930) 30 SR (NSW) 422 at 426; 47 WN (NSW) 182 ; Rose v Cmr of Stamps (1979) 22 SASR 84; 10 ATR 222; 79 ATC 4499 ; Dean v Lloyd (1991) 3 WAR 235 at 245 per Wallace J, at 251-2 per Ipp J ; Backstop Nominees Pty Ltd v Goscor Pty Ltd [1990] VR 468 at 470; (1989) 20 ATR 1104; 89 ATC 4958 . The requirement that there exist an intention to execute the instrument as a deed is often spoken of as if it were a separate requirement but appears to be an element of the requirement of delivery: see [140-58].9 Xenos v Wickham (1867) LR 2 HL 296; Dean v Lloyd (1991) 3 WAR 235 at 251 per Ipp J . See [14058]. Although the party executing the deed may be immediately bound, performance of the obligation may be postponed without depriving the instrument of its characteristic as a deed: In the Goods of Robinson (1867) LR 1 P & D 384; Bird v Perpetual Executors and Trustees Assn of Australia Ltd (1946) 73 CLR 140 at 145 per Starke J, at 146 per Dixon J; [1947] ALR 13 (if an instrument containing a covenant is executed so as to take effect as a deed during the covenantors lifetime, it is no objection that his or her death is the event upon which the obligation

is to be fulfilled). Compare the situation where an instrument (whether it be a deed or not) is to take effect only after death, in which case it will need to comply with the formal requirements for a valid testamentary instrument: Re Fenton (decd); National Trustees Executors & Agency Co of Australasia Ltd v Fenton [1919] VLR 740 ; Re Carile (decd); Dakin v Trustees, Executors and Agency Co Ltd [1920] VLR 427; (1920) 26 ALR 260; 42 ALT 82 . Compare National Trustees, Executors & Agency Co of Australasia Ltd v Trainor [1974] VR 49 . 10 Manton v Parabolic Pty Ltd (1985) 2 NSWLR 361 at 369; (1986) ANZ ConvR 587 ; Farrow Mortgage Services Pty Ltd v Hogg (1995) 64 SASR 450 at 458; BC9503173 (under the applicable legislation, a document was held not to be an instrument but was nevertheless found to be a deed).11 R v Morton (1873) LR 2 CCR 22 at 27; Hawksby v Kane (1913) 47 ILT 96; Re Fenton (decd); National Trustees Executors & Agency Co of Australasia Ltd v Fenton [1919] VLR 740 ; Re Carile (decd); Dakin v Trustees, Executors and Agency Co Ltd [1920] VLR 427; (1920) 26 ALR 260; 42 ALT 82 ; National Trustees, Executors & Agency Co of Australasia Ltd v Trainor [1974] VR 49 .12 Electricity Meter Manufacturing Co Ltd v Manufacturers Products Pty Ltd (1930) 30 SR (NSW) 422; 47 WN (NSW) 182 ; Hooker Industrial Developments Pty Ltd v Trustees of the Christian Bros [1977] 2 NSWLR 109 ; Rose v Cmr of Stamps (1979) 22 SASR 84; 10 ATR 222; 79 ATC 4499 ; Comptroller of Stamps (Vic) v Associated Broadcasting Services Ltd [1990] VR 335; (1988) 19 ATR 1401 at 1404; 88 ATC 4359 per Murphy J , SC(VIC); Interchase Corp Ltd (in liq) v Cmr of Stamp Duties (Qld) (1993) 27 ATR 154; 93 ATC 5120; BC9303344 . See generally [140-75]. The constitution of a company has the effect of a contract between each of the members of the company and between the company and its members and each director and company secretary: (CTH) Corporations Act 2001 s 140(1). See also corporations [120-3050]. 13 Windsor Refrigerator Co Ltd v Branch Nominees Ltd [1961] Ch 88; [1960] 2 All ER 568 per Cross J (reversed on other grounds: Windsor Refrigerator Co Ltd v Branch Nominees Ltd [1961] Ch 375; [1961] 1 All ER 277; [1961] 2 WLR 196 ).14 Windsor Refrigerator Co Ltd v Branch Nominees Ltd [1961] Ch 88; [1960] 2 All ER 568 per Cross J (reversed on other grounds: Windsor Refrigerator Co Ltd v Branch Nominees Ltd [1961] Ch 375; [1961] 1 All ER 277; [1961] 2 WLR 196 ). In some jurisdictions, there is express provision for a power of attorney that is not executed under seal but that conforms with other statutory requirements, to be deemed to be a deed. See, for example: (ACT) Powers of Attorney Act 2006 s 29 (NSW) Powers of Attorney Act 2003 s 8 (prescribed power of attorney) (TAS) Powers of Attorney Act 2000 s 49 (VIC) Instruments Act 1958 s 125C (SA) Powers of Attorney and Agency Act 1984 s 6(2) (deed not effective to create an enduring power of attorney unless the attesting witness to a deed is a person authorised by law to take affidavits and the deed has endorsed on it or annexed to it a statement of acceptance). 15 Steiglitz v Egginton (1815) Holt NP 141; [1814-23] All ER Rep 455; (1815) 171 ER 193 ; Lift Capital Partners Pty Ltd v Merrill Lynch International (2009) 73 NSWLR 404; 253 ALR 482; [2009] NSWSC 7; BC200900364 per Barrett J at [37] ; MYT Engineering Pty Ltd v Mulcon Pty Ltd (1999) 195 CLR 636; 162 ALR 441; [1999] HCA 24; BC9902256 per Gleeson CJ, Gaudron, Gummow and Hayne JJ at [9] . See also [140-80]. For appointment of an agent by deed generally see agency [15-40]. The paragraph below is current to 07 February 2012 [140-5] Material, language and writing The common law requires that a deed must be written on paper, parchment or vellum.1 An instrument written on any other material for example, wood,

on paper, parchment or vellum. An instrument written on any other material for example, wood, stone or cloth cannot be a deed.2 A deed may be written in a book, 3 in any language or character,4 and may be written by any method of transcribing or reproducing the written word. 5 Notes 1 Goddards Case (1584) 2 Co Rep 4b; 3 Leon 100; 76 ER 396 at 398 ; Manton v Parabolic Pty Ltd (1985) 2 NSWLR 361 at 366; (1986) ANZ ConvR 587 ; Monarch Petroleum NL v Citco Australia Petroleum Ltd [1986] WAR 310 at 353 ; Scook v Premier Building Solutions Pty Ltd (2003) 28 WAR 124; [2003] WASCA 263; BC200306628 at [22] per Steytler J (Hasluck and McKechnie JJ concurring). The legislation noted at [140-1] note 7 does not vitiate this requirement.2 Coke E, Commentary upon Littleton, Vol 1, 19th ed, London, 1832, pp 35b, 229a.3 Fox v Wright (1598) Cro Eliz 613; 78 ER 855.4 Preston R (ed), Sheppards Touchstone of Common Assurances, 7th ed, London, 1820, p 55.5 Geary v Physic (1826) 5 B & C 234 at 237; 108 ER 87 (endorsement on a bill of exchange written in pencil). The paragraph below is current to 07 February 2012 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [140-10] Types of deeds At common law deeds are either deeds poll or indentures. 1 A deed poll is a deed which is made by, and expresses the intention of, one party or is made by two or more persons expressing a common intention.2 An indenture is made by two or more persons as parties and evidences some form of agreement between the parties.3 In most jurisdictions, legislation does away with the necessity for the physical indenting of deeds4 or gives deeds the effect of indentures.5 However, the distinction between deeds poll and indentures remains significant for the purposes of the rule that only a person named or sufficiently indicated in a deed as a party may sue on it.6 A person for whose benefit a covenant in a deed poll is expressed to be made, if sufficiently named by reference, may sue on it.7 For the purposes of determining who may sue on a deed, deeds are further classified into deeds inter partes8 and deeds not inter partes, the rule being that only a person named as a party may take an immediate interest or benefit under a deed.9 The effect of the rule has been modified by statute.10 In some jurisdictions, deeds inter partes now have the effect of indentures. 11 Notes 1 Coke E, Commentary upon Littleton, Vol 1, 19th ed, London, 1832, p 35b; Preston R (ed), Sheppards Touchstone of Common Assurances, 7th ed, London, 1820, p 50; Re A & K Holdings Pty Ltd [1964] VR 257 at 261 per Sholl J .2 Coke E, Commentary upon Littleton, Vol 1, 19th ed, London, 1832, p 229a.3 Coke E, Commentary upon Littleton, Vol 1, 19th ed, London, 1832, p 229a. An indenture takes its name from the old practice of cutting an uneven line along (or indenting) the paper or parchment upon which the deed was written. The practice appears to have had its origin in the need to identify the authentic deed and thus guard against forgery or fraudulent substitution. Each partys part of the deed would be cut in the same manner and thus could be matched with the other part or parts at the point of indenting. A deed poll takes its name from the fact that such deeds were written on plain paper or parchment which was polled or cut even: Preston R (ed), Sheppards Touchstone of Common Assurances, 7th ed, London, 1820, p 50.4 (ACT) Civil Law (Property) Act 2006 s 219(2)

(NSW) Conveyancing Act 1919 s 38(2) (SA) Law of Property Act 1936 s 41(3) (WA) Property Law Act 1969 s 9(3) (see Monarch Petroleum NL v Citco Australia Petroleum Ltd [1986] WAR 310 ). 5 (NT) Law of Property Act 2000 s 46(1) (QLD) Property Law Act 1974 ss 44(1), 44(2), 45(2) (TAS) Conveyancing and Law of Property Act 1884 s 61(1)(d) (VIC) Property Law Act 1958 s 56(2). 6 Re A & K Holdings Pty Ltd [1964] VR 257 at 261 per Sholl J ; Moss v Legal and General Life Assurance Society of Australia (1875) 1 VLR (L) 315 . The rule that only a person named or sufficiently indicated in a deed as a party may sue on the deed has been modified in each Australian jurisdiction: (ACT) Civil Law (Property) Act 2006 s 212 (NT) Law of Property Act 2000 s 12 (NSW) Conveyancing Act 1919 s 36C(1) (QLD) Property Law Act 1974 s 13(1) (SA) Law of Property Act 1936 s 34(1) (TAS) Conveyancing and Law of Property Act 1884 s 61(1)(c) (VIC) Property Law Act 1958 s 56(1) (WA) Property Law Act 1969 s 11(1). See further [140-185]. 7 Sunderland Marine Insurance Co v Kearney (1851) 16 QB 925 at 938; 117 ER 1136 at 1141 ; Re A & K Holdings Pty Ltd [1964] VR 257 per Sholl J ; Moss v Legal and General Life Assurance Society of Australia (1875) 1 VLR (L) 315 . Re Wily as Liquidator of Anglican Insurance Ltd [2009] NSWSC 696; BC200906361 at [7] .8 A deed inter partes is literally a deed made between two or more named persons. Often the terms indenture and deed inter partes are used interchangeably by the courts: Re A & K Holdings Pty Ltd [1964] VR 257 at 261 per Sholl J . See also Chelsea and Walham Green Building Society v Armstrong [1951] Ch 853 at 857; [1951] 2 All ER 250 at 252 (deed not inter partes may or may not be a deed poll).9 See [140-185].10 See [140-185].11 (NT) Law of Property Act 2000 s 46 (QLD) Property Law Act 1974 ss 44(1), 44(2), 45(2) (SA) Law of Property Act 1936 s 34(2) (in South Australia, while indenting is not necessary, a deed inter partes is nevertheless given the effect of an indenture) (TAS) Conveyancing and Law of Property Act 1884 s 61(1)(d) (VIC) Property Law Act 1958 ss 56(2), 57 (WA) Property Law Act 1969 s 9(4).

The paragraph below is current to 07 February 2012 [140-15] Counterparts Deeds inter partes1 are frequently executed with multiple copies (counterparts) to enable each party to the deed to have a copy in his or her possession. Counterparts that are executed are considered to be one deed and the court has the right to look at each in order to ascertain the proper construction of the deed.2 However, if the deed is in the nature of a lease, with the lease executed by the lessor and the counterpart executed by the lessee,3 and there is any inconsistency between the two, the principal deed (the lease) must prevail and the inferior reference (the counterpart) must yield.4 If there is a manifest discrepancy in the principal deed which does not appear in the counterpart, the discrepancy may be explained by reference to the counterpart.5 If the principal deed is lost, the counterpart may be accepted by the court as secondary evidence of the lost writing.6 Where all parties execute each part, each part is considered equally to be the principal deed.7 Notes 1 See [140-10].2 Burchell v Clark (1876) 2 CPD 88 at 96; 35 LT 690 per Amphlett JA, CA; Matthews v Smallwood [1910] 1 Ch 777 at 785; [1908-10] All ER Rep 536 at 541 per Parker J .3 Respectively, the principal (or superior) deed and the counterpart (or inferior reference).4 Burchell v Clark (1876) 2 CPD 88 at 93-4; 35 LT 690 per Cockburn CJ; Matthews v Smallwood [1910] 1 Ch 777 at 784; [1908-10] All ER Rep 536 at 541 per Parker J .5 Burchell v Clark (1876) 2 CPD 88 at 94; 35 LT 690 per Cockburn CJ.6 Barber v Rowe [1948] 2 All ER 1050 at 1051-2 (applied in Giasoumi v Hutton [1977] VR 294 ); Silverene Pty Ltd v ATD Sheetmetal Pty Ltd (in liq) (unreported, SC(Vic), Batt J, 7488/95, 11 December, 1995, BC9502601) at 4; Maks v Maks (1986) 6 NSWLR 34 at 36; BC8600778 per McLelland J in Eq . See generally evidence [195-3210]-[195-3240].7 Blackstone, Sir W, Commentaries on the Laws of England, 14th ed, 1982 Oxford, Clarendon, p 296. The paragraph below is current to 07 February 2012 [140-20] Elements of a deed There are chief elements that constitute a deed. 1 These elements are: (1) the actual description of the instrument;2 (2) the date; (3) the names of the parties; (4) the recitals;3 (5) the testatum, or witnessing part containing the operative words and the habendum;4 and (6)

the testimonium, or execution clause.5 If property is being transferred the testatum will include a description of the property to be conveyed,6 and the clause which describes or limits the estate or interest being conveyed by the deed is known as the habendum.7 In conveyances of land, that part of the deed which precedes the habendum is called the premises.8 Notes 1 For some examples of deeds see Australian Encyclopaedia of Forms & Precedents, 3rd ed, Vol 13, real property-old system title, Pr 450.1. For the nature of deeds generally see real property [355-2210], [355-2215], mortgages and securities, trusts.2 For example, conveyance, settlement, mortgage and so forth.3 Recitals state (recite) the matters of fact necessary to explain the act or agreement that is being evidenced by the deed. See further [140-615], [140-620].4 The testatum contains the operative part of a deed and expresses the parties agreement. The testatum usually begins: This deed witnesses.5 The testimonium states that the parties have signed and sealed the deed. The testimonium usually begins: In witness. See Australian Encyclopaedia of Forms & Precedents, 3rd ed, Vol 15, testimonium and attestation clauses, Pr 1.10 and following for examples of these clauses.6 Australian Encyclopaedia of Forms & Precedents, 3rd ed, Vol 13, real property-old system title, Pr 450.2.7 As to habendum see [140670].8 Coke E, Commentary upon Littleton, Vol 1, 19th ed, London, 1832, pp 6a, 229b. See also [140-665].

Source

[Halsbury's Laws of Australia]

View Full Date/Time Thursday, October, 25, 2012, 12:24 EST 1 of 1 About LexisNexis | Terms & Conditions | My ID Copyright 2012 LexisNexis . All rights reserved. Back to Top

(B) Formal Requirements of Deeds The paragraph below is current to 07 February 2012 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [140-25] Formalities The common law, as it applies to the formal requirements of deeds, 1 has been modified by statute to varying degrees in each jurisdiction.2

In the Australian Capital Territory and New South Wales, every deed must be signed and sealed and attested by at least one witness who is not a party to the deed.3 It is no longer necessary to indent a deed in these jurisdictions.4 The legislation does not refer to the need for delivery of a deed as a formal requirement and to this extent the common law remains applicable in these jurisdictions.5 In the Northern Territory and Queensland, deeds must be signed and sealed sealing alone is insufficient to constitute execution.6 An instrument which is expressed to be an indenture or a deed, or expressed to be sealed, is deemed to have been duly executed if it is signed and attested by at least one witness who is not a party to the deed.7 Due execution of deeds in the Northern Territory and Queensland require that a deed be delivered.8 In South Australia, a deed must be signed and attested by at least one witness not a party to the deed.9 The need for sealing is not referred to in the legislation. An instrument executed in accordance with the statute is a deed if: (1) the instrument is expressed to be an indenture or a deed;10 (2) that instrument is expressed to be sealed and delivered, or in the case of execution by a natural person, to be sealed;11 or (3) from the circumstances of execution or from the nature of the instrument it appears that the parties intended it to be a deed.12 Delivery and indenting are no longer necessary for an instrument to constitute a deed in South Australia.13 In Tasmania, a deed must be signed and attested by at least one witness not a party to the deed.14 There is no legislative requirement for sealing under the (TAS) Conveyancing and Law of Property Act 1884 unless required under another Act.15 Delivery and indenting are not necessary.16 In Victoria, a deed must be signed and sealed.17 The legislation does not refer to the necessity for attestation or delivery.18 In Western Australia, deeds must be signed and attested by at least one witness not a party to the deed.19 It is not necessary to seal a deed20 and formal delivery and indenting are not necessary.21 Any instrument which is expressed or purports to be an indenture, deed or agreement under seal and that is executed in accordance with the requirements of the (WA) Property Law Act 1969 (the Act) has the same effect as a deed which was executed in accordance with the law in force prior to the Act coming into operation.22 Notes 1 See [140-1].2 (ACT) Civil Law (Property) Act 2006 (NT) Law of Property Act 2000 (NSW) Conveyancing Act 1919

(QLD) Property Law Act 1974 (SA) Law of Property Act 1936 (TAS) Conveyancing and Law of Property Act 1884 (VIC) Property Law Act 1958 (WA) Property Law Act 1969. As to the applicable sections of this legislation see [140-1] note 7. For execution by corporations see [140-75]. 3 (ACT) Civil Law (Property) Act 2006 s 219(1) (NSW) Conveyancing Act 1919 s 38(1). 4 (ACT) Civil Law (Property) Act 2006 s 219(2) (NSW) Conveyancing Act 1919 s 38(2). 5 As to delivery generally see [140-58].6 (NT) Law of Property Act 2000 s 47(1) (QLD) Property Law Act 1974 s 45(1). 7 (NT) Law of Property Act 2000 s 47(2) (QLD) Property Law Act 1974 s 45(2). 8 (NT) Law of Property Act 2000 s 49 (delivery is not to be presumed from the fact of execution only) (QLD) Property Law Act 1974 s 47 (delivery is not to be presumed from the fact of execution only). See further [140-58]. 9 (SA) Law of Property Act 1936 s 41(1)(a), 41(2)(a). However, if the deed is executed by a person acting at the direction, and in the presence of, the party to the deed, the deed must be attested by a person who is authorised by law to take affidavits: ibid s 41(2)(b).10 Ibid s 41(5)(a).11 Ibid s 41(5)(b).12 Ibid s 41(5)(c).13 Ibid s 41(3). Compare the operation of the statute with the pre-existing position in South Australia as expounded in Rose v Cmr of Stamps (1979) 22 SASR 84; 10 ATR 222; 79 ATC 4499 .14 (TAS) Conveyancing and Law of Property Act 1884 s 63(1), 63(2). If a deed is executed on anothers direction, it must be attested by a person authorised to take affidavits: ibid s 63(2)(b).15 Ibid s 63(1)(b).16 Ibid s 63(3).17 (VIC) Property Law Act 1958 ss 73, 73A.18 It is implicit in (VIC) Property Law Act 1958 s 73B that the requirement of delivery remains in Victoria. See further Law Reform Commissioner, Delivery of Deeds, Report No 10, 1980.19 (WA) Property Law Act 1969 s 9(1).20 Ibid s 9(2).21 Ibid s 9(3). For the effect of this ibid s 9(3) see Monarch Petroleum NL v Citco Australia Petroleum Ltd [1986] WAR 310 . See also [140-58].22 (WA) Property Law Act 1969 s 9(4). For discussion of the Western Australian legislation see Monarch Petroleum NL v Citco Australia Petroleum Ltd [1986] WAR 310 at 352-8 (delivery remains a formal requirement notwithstanding the wording of the legislation); Dean v Lloyd (1991) 3 WAR 235 (common law requirements for the valid execution of a deed not materially altered by the legislation); Scook v Premier Building Solutions Pty Ltd (2003) 28 WAR 124; [2003] WASCA 263; BC200306628 at [22] per Steytler J (Hasluck and McKechnie JJ concurring).

Source

[Halsbury's Laws of Australia]

View Full Date/Time Thursday, October, 25, 2012, 12:26 EST 1 of 1 About LexisNexis | Terms & Conditions | My ID Copyright 2012 LexisNexis . All rights reserved. Back to Top

(C) Execution of Deeds (I) Signing The paragraph below is current to 07 February 2012 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [140-30] Requirement of signing In all Australian jurisdictions, legislation has made the signing of a deed a mandatory requirement.1 In the Northern Territory, New South Wales, Queensland, South Australia, Tasmania and Victoria, statute provides that an individual may also sign a deed by affixing his or her mark to the deed.2 There is dicta to suggest that a signature in pencil would be sufficient execution of a deed,3 as would a rubber stamp upon which is affixed a facsimile of the executing partys signature or mark.4 If a person has signed an instrument which subsequently needed to be re-sealed and redelivered, it is sufficient re-execution that the party pass a dry pen over his or her signature.5 If a party holds the pen and another traces his or her name, this will be a sufficient signature by that party.6 A typed or printed name which is not a facsimile of the partys signature is insufficient. 7 It is also insufficient if the signatures of multiple parties to a deed are written on separate sheets of paper, without the deed being present, and the sheets of paper are subsequently attached to the deed.8 A signature to a deed may be that of an agent, if the agent is authorised by deed to do so (that is, authorised by power of attorney).9 In New South Wales, this rule of law has been abrogated, legislation providing that a deed is sufficiently signed by a person if it is signed in the name of that person by another person acting at the direction and in the presence of the first person.10 Similarly, in South Australia, a deed may be executed on behalf of a party to a deed by an attorney authorised by deed or, where the party is a natural person, by a person acting at the direction and in the presence of, the party to the deed.11

Notes 1 (ACT) Civil Law (Property) Act 2006 s 219(1) (NT) Law of Property Act 2000 s 47(1) (NSW) Conveyancing Act 1919 s 38(1) (QLD) Property Law Act 1974 s 45(1) (SA) Law of Property Act 1936 s 41(1)(a) (TAS) Conveyancing and Law of Property Act 1884 s 63(1)(a) (VIC) Property Law Act 1958 s 73(1) (WA) Property Law Act 1969 s 9(1)(a). Common law requirements as to the necessary formalities of deeds did not require that a deed be signed: Manton v Parabolic Pty Ltd (1985) 2 NSWLR 361 at 366; (1986) ANZ ConvR 587 . See also [140-1]. 2 (NT) Law of Property Act 2000 s 47(1) (NSW) Conveyancing Act 1919 s 38(1B)(a) (QLD) Property Law Act 1974 s 45(1) (SA) Law of Property Act 1936 s 41(1)(a) (TAS) Conveyancing and Law of Property Act 1884 s 63(1)(a) (VIC) Property Law Act 1958 s 73(1). There are no equivalent provisions in the Australian Capital Territory and Western Australia. 3 Lucas v James (1849) 7 Hare 410 at 419; 68 ER 170 at 173 . See also Francis v Grover (1845) 5 Hare 39; 67 ER 818; In the Goods of Adams (1872) LR 2 P & D 367; 26 LT 526 (both being cases relating to the use of pencil in wills); Geary v Physic (1826) 5 B & C 234 at 237; 108 ER 87.4 A signature on a document transmitted by facsimile is effective: Molodoysky v Vema Australia Pty Ltd (1988) 4 BPR 9552 at 9561; (1989) NSW ConvR 55-446 per Cohen J , SC(NSW). Further, if there are circumstances which prevent the party from using the stamp (for example some form of physical disability) it may be valid execution of the deed if a third party were to affix the stamp at the direction of the incapacitated party: Jenkins v Gaisford (1863) 3 Sw & Tr 93; 8 LT 517; 164 ER 1208 ; Goodman v J Eban Ltd [1954] 1 QB 550; [1954] 1 All ER 763; [1954] 2 WLR 581 ; London County Council v Agricultural Food Products Ltd [1955] 2 QB 218; [1955] 2 WLR 925 sub nom London County Council v Vitamins Ltd [1955] 2 All ER 229 ; Ex parte Collier Garland Properties Pty Ltd; Re Sneddon [1964-65] NSWR 1405; (1964) 81 WN (Pt 1) (NSW) 566; Marketing Specialists International Pty Ltd v Famadu Pty Ltd (1987) 12 ACLR 589; (1988) 6 ACLC 938 , SC(NSW); Sharp v DCT(NSW) (1988) 18 FCR 475; 86 ALR 77; 19 ATR 1047; 88 ATC 4259 ; Deputy Commissioner of Taxation (Vic) v Boxshall (1988) 19 FCR 435; 83 ALR 175; 19 ATR 1822 .5 Murphy v Clark [1921] VLR 302; (1921) 27 ALR 264 per Schutt J .6 Harrison v Elvin (1842) 3 QB 117; 114 ER 451 (attestation of will); Helsham v Langley (1841) 11 LJ Ch 17; [1835-42] All ER Rep 378; (1841) 62 ER 842.7 Goodman v J Eban Ltd [1954] 1 QB 550 at 559; [1954] 1 All ER 763 at 767; [1954] 2 WLR 581 . See also Muirhead v Commonwealth Bank of Australia [1997] 1 Qd R 567; (1996) 139 ALR 561; 125 FLR 434; BC9603365 .8 Clayton v Minister of Lands (1914) 33 NZLR 1433 per Stout CJ.9 Powell v London and Provincial Bank [1893] 2 Ch 555 at 556, 563 (power of attorney required to enable

someone other than the actual party to perform any part of the execution which makes a deed); Windsor Refrigerator Co Ltd v Branch Nominees Ltd [1961] Ch 88; [1960] 2 All ER 568 (reversed on another ground Windsor Refrigerator Co Ltd v Branch Nominees Ltd [1961] Ch 375; [1961] 1 All ER 277; [1961] 2 WLR 196 , CA); Muirhead v Commonwealth Bank of Australia [1997] 1 Qd R 567; (1996) 139 ALR 561; 125 FLR 434; BC9603365 . See also [140-80] and agency [15-45].10 (NSW) Conveyancing Act 1919 s 38(1A).11 (SA) Law of Property Act 1936 s 41(1)(c). The paragraph below is current to 07 February 2012 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [140-35] Reading over A party cannot be required to execute a deed until he or she has read the deed or until the contents of the deed have been read by another person who then fully and accurately explains them to the party who is to execute the deed.1 If the party chooses to execute the instrument without taking care to discover and understand the content of the document that party is bound by his or her signature, whether the document is read and understood or not. This will be so even if the content of the document differs materially from what the party supposed and even if the executing party is illiterate or blind.2 However, a deed executed by an illiterate has been held to be not binding if it had been falsely explained whether by the grantee or by a stranger.3 The plea of non est factum is not available to anyone who signs a document without taking the trouble to try and find out at least the general effect of the document.4 However, if the party executing the deed takes such precautions as they reasonably can and is mistaken or misled as to the purpose of a particular document and there is a fundamental or radical difference between what the party signed and what the party thought he or she was signing, then there is a strong case to be made for the availability of the plea of non est factum.5 The plea will usually be available to persons who are blind or illiterate, ill or who are innately incapable of any real understanding.6 The plea is not available to a person whose mistake was really a mistake as to the legal effect of the document, whether or not this was the partys own mistake or that of the partys advisor.7 If the circumstances are such that the plea of non est factum is not available, there may nevertheless exist grounds for avoiding the deed on the basis of mistake,8 fraudulent or innocent misrepresentation,9 unconscionable conduct on the part of the party attempting to enforce the deed10 or otherwise by the operation of the Australian Consumer Law. 11 Notes 1 Thoroughgoods Case (1584) 2 Co Rep 9a at 9b; 76 ER 408 at 409-10. See [140-220] and contract [110-5625].2 Thoroughgoods Case (1584) 2 Co Rep 9a; 76 ER 408; Maunxels Case (1583) Moore KB 182 at 184; 72 ER 519.3 Thoroughgoods Case (1584) 2 Co Rep 9a; 76 ER 408; Vella v Permanent Mortgages Pty Ltd [2008] NSWSC 505; BC200803886 at [620] per Young CJ in Eq .4 Saunders v Anglia Building Society [1971] AC 1004 at 1016; [1970] 3 All ER 961 at 963 per Lord Reid ; OBrien v Australia and New Zealand Bank Ltd (1971) 5 SASR 347 ; R v Director of Child Welfare; Ex parte Ford (1976) 9 ACTR 13 ; Petelin v Cullen (1975) 132 CLR 355; 6 ALR 129 . For further discussion of the doctrine of non est factum see [140-220][140-230] and contract [110-5625]-[110-5660].5 Saunders v Anglia Building Society [1971] AC 1004 at 1017; [1970] 3 All ER 961 per Lord Reid ; Petelin v Cullen (1975) 132 CLR 355 at 360; 6 ALR 129 at 133 ; Ford v Perpetual Trustees Victoria Ltd (2009) 75 NSWLR 42; 257 ALR 658;

14 BPR 26,895; [2009] NSWCA 186; BC200905872 at [37] per Allsop P and Young JA .6 Saunders v Anglia Building Society [1971] AC 1004 at 1016; [1970] 3 All ER 961 per Lord Reid ; Petelin v Cullen (1975) 132 CLR 355 at 359; 6 ALR 129 at 133 ; Ford v Perpetual Trustees Victoria Ltd (2009) 75 NSWLR 42; 257 ALR 658; 14 BPR 26,895; [2009] NSWCA 186; BC200905872 at [37] per Allsop P and Young JA .7 Saunders v Anglia Building Society [1971] AC 1004 at 1016; [1970] 3 All ER 961 per Lord Reid ; Petelin v Cullen (1975) 132 CLR 355 at 359; 6 ALR 129 at 133 .8 See [140-225] and contract [110-5380]-[110-5560].9 See contract [110-5020]-[110-5295], equity [185-910]-[185-930] and tort.10 Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447; 46 ALR 402; 57 ALJR 358; BC8300072 . See further consumer protection [100-110]-[100-613], contract [110-5875]-[110-5960] and equity [185-945]-[185966].11 The Australian Consumer Law is a schedule to (CTH) Competition and Consumer Act 2010: see ibid Sch 2. See also consumer protection [100-110]-[100-613] and contract [1105300]-[110-5375].

Source

[Halsbury's Laws of Australia]

View Full Date/Time Thursday, October, 25, 2012, 12:26 EST 1 of 1 About LexisNexis | Terms & Conditions | My ID Copyright 2012 LexisNexis . All rights reserved. Back to Top

(II) Sealing The paragraph below is current to 07 February 2012 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [140-40] Requirement of sealing It is a requirement of the common law that a deed be sealed. 1 For a deed to be sealed, the deed must have a seal affixed, attached or impressed upon the deed and the party to be bound by the deed must perform some act by which he or she expressly or impliedly acknowledges the seal to be his or hers.2 Each Australian jurisdiction has enacted (or, in the case of the Australian Capital Territory, adopted) legislation which touches upon the requirement of sealing. The party who seals the deed need not affix the seal in person (though the deed must be delivered personally) and need only expressly or impliedly acknowledge the seal to be his or hers.3 A seal may be affixed by another in the presence of, and with the consent of, the party provided the party assents to the delivery of the deed.4 A deed is also properly sealed if the seal

is affixed in the partys absence, but on his or her behalf, and the party later acknowledges the instrument as his or her deed.5 In the Australian Capital Territory and New South Wales, sealing remains a mandatory requirement6 but if an instrument is expressed to be an indenture or a deed, or is expressed to be sealed and is signed and attested in accordance with the requirements of the statute, the instrument is deemed to be sealed.7 A similar provision applies in Queensland and Northern Territory.8 In South Australia, an instrument executed in accordance with the statute (that is signed and attested) is a deed if it is expressed to be sealed and delivered or, in the case of execution by a natural person, is expressed to be sealed.9 Sealing no longer appears to be a mandatory requirement in South Australia as an instrument will be a deed if it is expressed to be an indenture or a deed,10 or if it appears that the parties intended the instrument to be a deed. 11 In Tasmania, sealing is not required under the (TAS) Conveyancing and Law of Property Act 1884 unless required under another Act.12 In Victoria, an instrument expressed to be sealed, but which is not in fact sealed, for all intents and purposes operates and takes effect as if it had been sealed.13 In Western Australia, it is no longer necessary to seal a deed (with the exception of a deed executed by a corporation under its common or official seal).14 Notes 1 Coke E, Commentary upon Littleton, Vol 1, 19th ed, London, 1832, p 6a. For an overview of the history of deeds see the discussion by Young J in Manton v Parabolic Pty Ltd (1985) 2 NSWLR 361; (1986) ANZ ConvR 587 ; Monarch Petroleum NL v Citco Australia Petroleum Ltd [1986] WAR 310 at 353 and following; Scook v Premier Building Solutions Pty Ltd (2003) 28 WAR 124; [2003] WASCA 263; BC200306628 at [22] per Steytler J (Hasluck and McKechnie JJ concurring). See generally [140-1].2 Coke E, Commentary upon Littleton, Vol 1, 19th ed, London, 1832, p 6a; National Provincial Bank of England v Jackson (1886) 33 Ch D 1 at 11 per Cotton LJ, at 14 per Lindley LJ ; Re Balkis Consolidated Co Ltd (1888) 58 LT 300 at 301 per North J; Re Smith; Oswell v Shepherd (1892) 67 LT 64 ; Stromdale & Ball Ltd v Burden [1952] Ch 223; [1952] 1 All ER 59 .3 Ball v Dunsterville (1791) 4 Term Rep 313; [1775-1802] All ER Rep 48; (1791) 100 ER 1038; Tupper v Foulkes (1861) 9 CBNS 797; 142 ER 314 ; Keith v Pratt (1862) 10 WR 296 . See [140-58].4 Ball v Dunsterville (1791) 4 Term Rep 313; [1775-1802] All ER Rep 48; (1791) 100 ER 1038. See agency [15-40].5 Tupper v Foulkes (1861) 9 CBNS 797; 142 ER 314 ; R v Longnor Inhabitants (1833) 4 B & Ad 647; 110 ER 599 . However, authority to sign, seal and deliver a deed must be given by deed: see [140-1] and agency [15-40].6 (ACT) Civil Law (Property) Act 2006 s 219(1)(a) (NSW) Conveyancing Act 1919 s 38(1). See also Lift Capital Partners Pty Ltd v Merrill Lynch International (2009) 73 NSWLR 404; 253 ALR 482; [2009] NSWSC 7; BC200900364 per Barrett J at [70] . 7 (ACT) Civil Law (Property) Act 2006 s 219(3) (NSW) Conveyancing Act 1919 s 38(3). 8 (NT) Law of Property Act 2000 s 47(2) (QLD) Property Law Act 1974 s 45(2). 9 (SA) Law of Property Act 1936 s 41(5)(b).10 Ibid s 41(5)(a).11 Ibid s 41(5)(c).12 (TAS)

Conveyancing and Law of Property Act 1884 s 63(1)(b).13 (VIC) Property Law Act 1958 s 73A.14 (WA) Property Law Act 1969 s 9(2). The paragraph below is current to 07 February 2012 [140-45] Sealing an instrument in blank A deed cannot be sealed before it is written, and if a person seals and delivers an instrument leaving some material part blank 1 the deed will be void for uncertainty and cannot be rectified by filling in the blanks after execution.2 A party may fill in the blanks and re-execute the deed.3 If it is possible to ascertain the intention of the parties without having to fill in the blanks (for example, because the blanks relate to an immaterial part of the deed and the deed was therefore effectively complete before the blanks were filled up), the deed need not be void for uncertainty and the writing will stand as the partys deed.4 If agreement is reached between parties and executed by one and handed to the other, there is an implied authority by that party to the other to fill up blanks and correct mistakes so as to make the document conform to the intention of the parties and to supply immaterial deficiencies.5 If an honest mistake is made in the filling of such blanks, a court will rectify the deed to make it accord with the intention of the parties.6 Notes 1 For example, the names of one or both of the parties, or a description of the right, interest or property being conveyed.2 Markham v Gonaston (1598) Cro Eliz 626 at 627; 78 ER 866 ; Weeks v Maillardet (1811) 14 East 568; Powell v Duff (1812) 3 Camp 181; 170 ER 1348; West v Steward (1845) 14 M & W 47 at 48; 153 ER 383; Hibblewhite v MMorine (1840) 6 M & W 200 at 215-16; 151 ER 380 at 387-8 (an instrument which has a blank in it, which prevents it from having any operation when it is sealed and delivered, cannot become a valid deed by being filled in afterwards); Enthoven v Hoyle (1853) 13 CB 373; 138 ER 1243 ; Tayler v Great Indian Peninsula Railway Co (1859) 4 De G & J 559; 45 ER 217 ; Swan v North British Australasian Co (1863) 2 H & C 175; 159 ER 73 ; France v Clark (1884) 26 Ch D 257 at 263; 50 LT 1 ; Socit Gnrale de Paris v Walker (1885) LR 11 App Cas 20; 55 LJQB 169; 54 LT 389; Powell v London and Provincial Bank [1893] 1 Ch 610 (affirmed Powell v London and Provincial Bank [1893] 2 Ch 555); Re Queensland Land and Coal Co; Davis v Martin [1894] 3 Ch 181 at 183 ; Burgis v Constantine [1908] 2 KB 484; [1908-16] All ER Rep Ext 1337 . See also in relation to contracts generally May and Butcher Ltd v R [1934] 2 KB 17n; (1929) 151 LT 246n; Meehan v Jones (1982) 149 CLR 571; 42 ALR 463; 56 ALJR 813; BC8200103 . For uncertainty and incompleteness generally see contract [110-455]-[110-525].3 Hudson v Revett (1829) 5 Bing 368; [1824-34] All ER Rep 540; (1829) 130 ER 1103 ; Hibblewhite v MMorine (1840) 6 M & W 200; 151 ER 380 ; Socit Gnrale de Paris v Walker (1885) LR 11 App Cas 20; 55 LJQB 169; 54 LT 389; Powell v London and Provincial Bank [1893] 2 Ch 555. See also [140-105]-[140-115].4 Doe d Lewis v Bingham (1821) 4 B & Ald 672; [1814-23] All ER Rep 540; (1821) 106 ER 1082; Hall v Chandless (1827) 4 Bing 123; 130 ER 714; Hudson v Revett (1829) 5 Bing 368; [1824-34] All ER Rep 540; (1829) 130 ER 1103 ; Adsetts v Hives (1863) 33 Beav 52; 55 ER 286 . For uncertainty and incompleteness generally see contract [110-455]-[110-525].5 Armor Coatings (Marketing) Pty Ltd v General Credits (Finance) Pty Ltd (1978) 17 SASR 259; (1979) ANZ ConvR 97 ; Warburton v National Westminster Finance Australia Ltd (1988) 15 NSWLR 238 at 247-8; (1989) ANZ ConvR 229; (1989) ASC 55-719; (1989) NSW ConvR 55-477 per Hope JA, CA(NSW) . See also [140-250].6 Warburton v National Westminster Finance Australia Ltd (1988) 15 NSWLR 238 at 248; (1989) ANZ ConvR 229; (1989) ASC 55-719; (1989) NSW ConvR 55-477 per Hope JA, CA(NSW) ; Wright v Gasweld Pty Ltd (1991) 22 NSWLR 317 at 323; 20 IPR 481; 39 IR 256; 33 AILR 226 per Gleeson CJ . See also [140-275]. The paragraph below is current to 07 February 2012 [140-50] Sealing before delivery Deeds must be sealed prior to or at the time of delivery. 1 Deeds which are delivered without having been sealed and delivered by the person whose deed

it is may be re-delivered, and this latter act of re-delivery is the operative execution of the deed.2 Notes 1 Goddards Case (1584) 2 Co Rep 4b; 3 Leon 100; 76 ER 396 at 399, 400 (the order of making a deed is, first to write it, then to seal it, and after to deliver it).2 Tupper v Foulkes (1861) 9 CBNS 797; 142 ER 314 . See [140-105]-[140-115]. In view of the changes to the requirement of sealing effected by statute in Australia, it is questionable whether failure to physically seal a deed (at least in jurisdictions where the common law has not been abrogated) prior to delivery would be considered to be a defect in execution: see [140-40].

Source

[Halsbury's Laws of Australia]

View Full Date/Time Thursday, October, 25, 2012, 12:27 EST 1 of 1 About LexisNexis | Terms & Conditions | My ID Copyright 2012 LexisNexis . All rights reserved. Back to Top

(III) Attestation The paragraph below is current to 07 February 2012 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [140-55] Requirement of attestation The necessity that a deed be attested by a witness is a requirement imposed by statute,1 attestation not being a formal requirement for the validity of a deed at common law.2 Notwithstanding that the common law does not require a deed to be attested by a witness, it has long been the practice for an attesting witness to sign his or her name to a deed in witness of the fact that the deed has been signed, sealed and delivered by the executing party.3 In the Australian Capital Territory and New South Wales, a deed must be attested by at least one witness who is not a party to the deed.4 In New South Wales, if the deed is signed by a person who is not a party to the deed but who is acting at the direction and in the presence of the actual party to the deed, the person attesting the execution of the deed must certify, in his or her attestation, that he or she is a prescribed witness and that the deed was signed at the direction and in the presence of the person whose signature it purports to be.5 If the deed is signed by a person affixing his or her mark,6 the person attesting the affixing of the mark must certify that,

prior to the mark being affixed, he or she explained the nature and effect of the deed to the executing party, and the witness believed the executing party understood the explanation given.7 In the Northern Territory8 and Queensland,9 a deed must simply be attested by a witness who is not a party to the deed. In South Australia, a similar provision exists.10 However, if a deed is executed by a person acting at the direction and in the presence of the party to the deed, the attesting witness must be a person who is authorised by law to swear affidavits.11 In Western Australia, the provision for attestation is similar to the Queensland provision and requires that a deed be attested by at least one witness not being a party to the deed.12 In Tasmania13 and Victoria,14 there is no express provision for attestation as a formal requirement. The act of attestation involves a person being present at the execution of the deed and signing the instrument so as to indicate that he or she was a witness to the execution.15 The phrase shall be attested by at least one witness does not mean that only one of a number of witnesses to a deed need be independent, but rather that in respect of each person who executes a deed, his or her signature must be witnessed by an independent witness (that is, a person who is not a party to the deed) and such witness attests overseeing the execution of the party by signing his or her own name in the appropriate place.16 It is insufficient if merely one of a series of signatures to a deed was witnessed by an independent witness, and the court must look to see that the signature of each person who is sought to be bound by the deed has been witnessed and attested by at least one independent witness.17 Notes 1 See also [140-90]. There are no statutory provisions in the Northern Territory requiring the attestation of a deed.2 Goddards Case (1584) 2 Co Rep 4b at 5a; 3 Leon 100; 76 ER 396 ; Garrett v Lister (1661) 1 Lev 25; 83 ER 279; Keith v Pratt (1862) 10 WR 296 ; Burns v Lorac Mining Pty Ltd (1985) 4 FCR 301 at 303 ; Mostyn v Mostyn (1989) 16 NSWLR 635 at 638 per Young J .3 Coke E, Commentary upon Littleton, Vol 1, 19th ed, London, 1832, p 6a. For examples of these clauses in deeds see Australian Encyclopaedia of Forms and Precedents, 3rd ed, Vol 15, testimonium and attestation clauses, Pr 1.10. See [140-20]. For the nature of deeds generally see real property [355-2210], [355-2215].4 (ACT) Civil Law (Property) Act 2006 s 219(1)(b) (NSW) Conveyancing Act 1919 s 38(1), 38(1B)(b). 5 Ibid s 38(1A)(c). See also [140-30].6 Ibid s 38(1B)(a).7 Ibid s 38(1B)(c).8 (NT) Law of Property Act 2000 s 47(2).9 (QLD) Property Law Act 1974 s 45(2).10 (SA) Law of Property Act 1936 s 41(2)(a).11 Ibid s 41(2)(b); (SA) Oaths Act 1936 s 28(1).12 (WA) Property Law Act 1969 s 9(1)(b).13 (TAS) Conveyancing and Law of Property Act 1884 .14 (VIC) Property Law Act 1958.15 Ellison v Vukicevic (1986) 7 NSWLR 104 at 112 .16 Mostyn v Mostyn (1989) 16 NSWLR 635 at 638-9 (reversed on other grounds McIntosh v Linke Nominees Pty Ltd [2008] QSC 079; BC200802757 at [32] ).17 Mostyn v Mostyn (1989) 16 NSWLR 635 at 639 . See also Edwards v Skilled Engineering Pty Ltd (unreported, CA(NSW), Kirby P, Priestly and Meagher JJA, No 168/1988, 14 March 1989, BC8902414).

Source

[Halsbury's Laws of Australia]

View Full

View Full Date/Time Thursday, October, 25, 2012, 12:27 EST 1 of 1 About LexisNexis | Terms & Conditions | My ID Copyright 2012 LexisNexis . All rights reserved. Back to Top

(IV) Delivery and Escrow The paragraph below is current to 07 February 2012 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [140-58] Delivery Delivery is the third common law requirement for the formal execution of deeds.1 Delivery occurs where there are acts or words sufficient to show that the party making the deed intends the deed to be presently binding on him or her.2 No particular form of words or conduct is necessary to amount to delivery.3 Traditionally, intention to be bound by the deed was indicated by handing over the deed and saying I deliver this as my deed, but any other words or conduct which show it was intended that the deed be finally executed and the maker of the deed bound by it, will suffice.4 Intention must be ascertained by considering the nature and circumstances of the case.5 It is the expression of an intention to be bound which is crucial in delivery. For example, in circumstances where a company seal has been affixed invalidly (owing to a lack of authorisation by the directors of the company), a subsequent resolution by the directors confirming the affixation of the seal is sufficient to represent a clear expression of an intention to be bound and thereby effect delivery.6 While intention is to be ascertained from circumstances prior to or contemporaneous with delivery, it is permissible to look at later events in order to ascertain what was the intention of the person concerned at the critical time.7 Conversely, confirmation of amendments to a deed via email does not show sufficient intention to be an immediately binding agreement, especially where the evident intention was to be bound by the formal execution of a deed.8 There is a rebuttable presumption that if all one knows about a document is that it purports on the face of it to have been signed, sealed and delivered, then one may fairly infer, in the absence of evidence to the contrary, that the instrument has been delivered and takes effect as a deed.9 In the case of execution by corporations, at common law, sealing of a deed prima facie imports delivery, but where statute deems a deed to have been duly executed by a corporation upon affixation of its seal and appropriate attestation, the requirement of delivery is not dispensed with and delivery is not irrebuttably presumed as a consequence of the corporation sealing the instrument.10

In the context of conveyancing transactions, where parties intend to adopt ordinary conveyancing procedures (to the effect that either party may withdraw and recall his or her signed document at any time before formal exchange) the execution of a deed and its being handed to that partys solicitor in anticipation of a subsequent exchange of counterparts does not import delivery.11 In South Australia and Western Australia, legislation has been enacted towards abrogating the necessity for delivery.12 In South Australia, statute provides that delivery [is] not necessary in any case.13 In Western Australia, formal delivery [is] not necessary in any case. 14 However, this wording has not successfully ousted the requirement of delivery, the section having been interpreted as merely confirming the rule that no particular technical form of words or acts is necessary to render an instrument the deed of the party sealing it.15 In other jurisdictions, delivery remains a formal requirement for the valid execution of deeds.16 Delivery may be absolute or conditional conditional delivery being known as an escrow.17 Notes 1 For the other common law requirements see [140-1].2 Scook v Premier Building Solutions Pty Ltd (2003) 28 WAR 124; [2003] WASCA 263; BC200306628 at [24] per Steytler J (Hasluck and McKechnie JJ concurring).3 Xenos v Wickham (1867) LR 2 HL 296 at 312 per Blackburn J; Electricity Meter Manufacturing Co Ltd v Manufacturers Products Pty Ltd (1930) 30 SR (NSW) 422 at 426; 47 WN (NSW) 182 ; Monarch Petroleum NL v Citco Australia Petroleum Ltd [1986] WAR 310 at 355 ; Scook v Premier Building Solutions Pty Ltd (2003) 28 WAR 124; [2003] WASCA 263; BC200306628 at [24] per Steytler J . For the purposes of the (QLD) Property Law Act 1974, delivery is defined as the intention to be legally bound either immediately or subject to fulfilment of a condition: ibid s 47(3).4 Xenos v Wickham (1867) LR 2 HL 296 at 312; Vincent v Premo Enterprises (Voucher Sales) Ltd [1969] 2 QB 609 at 619; [1969] 2 All ER 941 at 944-5 per Lord Denning ; Re Carile (decd); Dakin v Trustees, Executors and Agency Co Ltd [1920] VLR 427 at 433; (1920) 26 ALR 260; 42 ALT 82 ; Scook v Premier Building Solutions Pty Ltd (2003) 28 WAR 124; [2003] WASCA 263; BC200306628 at [25] per Steytler J (Hasluck and McKechnie JJ concurring).5 Lady Naas v Westminster Bank Ltd [1940] AC 366 at 399; [1940] 1 All ER 485; (1940) 109 LJ Ch 138; 162 LT 277 per Lord Wright ; Wardley Australia Ltd v McPharlin (1984) 3 BPR 9500 at 9503 per Rogers J .6 Poole v Neely [1976] 1 NZLR 529 at 541 ; Monarch Petroleum NL v Citco Australia Petroleum Ltd [1986] WAR 310 at 356 ; Scook v Premier Building Solutions Pty Ltd (2003) 28 WAR 124; [2003] WASCA 263; BC200306628 at [25] per Steytler J (Hasluck and McKechnie JJ concurring).7 Reid Murray Holdings Ltd (in liq) v David Murray Holdings Pty Ltd (1972) 5 SASR 386; (1971-73) CLC 40074 . See [140-105].8 Locnere Pty Ltd v Jakks Bagel & Bread Co Pty Ltd [2003] NSWSC 1123; BC200307346 at [13] per Palmer J .9 Xenos v Wickham (1867) LR 2 HL 296 at 322 per Lord Cranworth; Wardley Australia Ltd v McPharlin (1984) 3 BPR 9500 at 9503 ; Beesly v Hallwood Estates Ltd [1960] 2 All ER 314 at 325; [1961] 1 WLR 549 ; Keith v Pratt (1862) 10 WR 296 ; Ex parte Ryrie [1983] 2 Qd R 194 at 197 ; Interchase Corp Ltd (in liq) v Cmr of Stamp Duties (Qld) (1993) 27 ATR 154; 93 ATC 5120; BC9303344 (in Queensland, note the operation of (QLD) Property Law Act 1974 s 47 which provides that the execution of an instrument in the form of a deed does not of itself import delivery unless it appears that the execution of the instrument was intended to constitute delivery thereof. Delivery may, however, be inferred from any fact or circumstance, including words or conduct, indicative of delivery: ibid s 47(2)); McKinlay v Dodds (1984) 3 BPR 9259 at 9263 per Cohen J , SC(NSW) (where an instrument is said to be formally sealed and delivered, and there is nothing to qualify that delivery, even though the instrument remains in the hands of the executing party, it is regarded as validly delivered and will operate as a deed).10 See [140-75].11 Hooker Industrial Developments Pty Ltd v Trustees of the Christian Bros [1977] 2 NSWLR 109 . Compare Rose v Rose (1986) 7 NSWLR 679 at 685 . Delivery in these circumstances (that is, in the adoption of ordinary conveyancing procedures) must then occur at exchange of contracts by the solicitor. However, in order for the solicitor (as agent) to deliver the deed, he or she must in turn have been authorised

by deed to do so (see [140-80]), which would, in practice, seldom be the case. This necessarily leads to the inference that an exchange of contracts in these circumstances would often not be legally effective. See generally Bradbrook A J, The Delivery of Deeds in Victoria, (1981) 55 Australian Law Journal 267; Butt P, Deeds The Problem of Delivery, (1978) 52 Australian Law Journal 454. The consequences of the decision in Hooker Industrial Developments Pty Ltd v Trustees of the Christian Bros [1977] 2 NSWLR 109 have been abrogated in Victoria by the operation of (VIC) Property Law Act 1958 s 73B(1).12 (SA) Law of Property Act 1936 s 41(3) (WA) Property Law Act 1969 s 9(3). 13 (SA) Law of Property Act 1936 s 41(3).14 (WA) Property Law Act 1969 s 9(3).15 Monarch Petroleum NL v Citco Australia Petroleum Ltd [1986] WAR 310 at 353-4 ; Scook v Premier Building Solutions Pty Ltd (2003) 28 WAR 124; [2003] WASCA 263; BC200306628 at [22]-[24] per Steytler J (Hasluck and McKechnie JJ concurring).16 See [140-25].17 See [140-60]. The paragraph below is current to 07 February 2012 To update legislation see ACL Legislation [140-60] Escrow An intended deed may be delivered not absolutely, but rather as an escrow (that is, conditionally) to take effect upon the occurrence of a specified event or upon condition that the deed is not to be operative until some condition is fulfilled or performed.1 It is a question of fact whether an instrument was delivered absolutely as a deed or as an escrow and a court may look to all of the facts attending the execution in order to ascertain the intention of the parties.2 Delivery as an escrow need not take any special form and no express words are necessary to achieve it, as it will always be a question of intention to be gathered from the words or acts of the parties executing the instrument.3 The requisite intention that must be found to exist is the intention that the deed have no effect until some event has occurred or some condition fulfilled, however, when the event has occurred or the condition has been satisfied, the delivery becomes absolute and the maker of the deed is absolutely bound by it.4 Evidence of intention must be of circumstances that existed prior to, or contemporaneously with, the delivery.5 As with absolute delivery,6 if a deed is delivered as an escrow, the maker of the deed is bound by it and cannot subsequently resile from his or her act.7 The deed is not operative until the condition is fulfilled but the party executing the deed is bound by it for a reasonable time so as to see if the condition is fulfilled or not, and if the condition is fulfilled the deed becomes binding absolutely.8 Delivery of a deed which transfers property title of the maker of the deed, may not be made conditional on the death of this person as this would amount to a testamentary disposition and the formal requirements of wills would need to be satisfied.9 Nor may the grantor purport to deliver a deed and, at the same time, indicate that he or she is free to undo it at any time before it passes to the grantee as this is not delivery subject to a condition.10 The death of the grantor has no effect on an escrow that will become binding on the grantors estate when the condition to which the deed is subject is fulfilled.11 If the condition is never fulfilled the deed never becomes operative. If there is an unreasonable delay in the performance of the condition, equity may intervene to relieve the person who has executed the escrow from his or her obligations.12 If a deed inter partes13 is executed by one of the parties to the deed, it is a question of fact whether the party executed the deed absolutely in the first instance or conditionally (as an escrow) with the intent that the deed should not take effect as his or her deed until the other parties have

also executed the deed.14 If the deed is delivered absolutely and not as an escrow and if it was executed in the belief that the other parties would also execute the deed, equity may provide relief for the party executing the deed if the other parties fail to execute.15 However, if the deed was delivered as an escrow, the condition being execution by the other parties, the deed will not become effective until such time as the other parties execute the deed.16 The effect of execution of a deed as an escrow was explained and summarised by Lord Denning MR, in Kingston v Ambrian Investment Co Ltd17 as follows: When a party executes a deed of transfer as an escrow, it means that he executes it subject to a condition, express or implied, which is thereafter to be fulfilled. As soon as the condition is fulfilled the transfer becomes complete. The deed operates to transfer the title to the transferee. If, however, the condition is not fulfilled, the deed is not effective to make the transfer. What, however, is the position during the intervening time between the time when the deed is executed and the time when the condition is fulfilled? The law says that during this intervening time the maker of the deed cannot withdraw it. He cannot recall it or repudiate it. He must await the event to see whether or not the condition is fulfilled. The doctrine of escrow has been abolished in South Australia.18 Notes 1 Monarch Petroleum NL v Citco Australia Petroleum Ltd [1986] WAR 310 at 356 per Kennedy J ; Scook v Premier Building Solutions Pty Ltd (2003) 28 WAR 124; [2003] WASCA 263; BC200306628 at [26] per Steytler J (Hasluck and McKechnie JJ concurring).2 Monarch Petroleum NL v Citco Australia Petroleum Ltd [1986] WAR 310 at 356 per Kennedy J ; Xenos v Wickham (1867) LR 2 HL 296 at 323 per Lord Cranworth; Bowker v Burdekin (1843) 11 M & W 128 at 147; 152 ER 744 at 751 per Parke B ; Scook v Premier Building Solutions Pty Ltd (2003) 28 WAR 124; [2003] WASCA 263; BC200306628 at [26] per Steytler J (Hasluck and McKechnie JJ concurring).3 Monarch Petroleum NL v Citco Australia Petroleum Ltd [1986] WAR 310 at 356 per Kennedy J ; Bowker v Burdekin (1843) 11 M & W 128 at 147; 152 ER 744 at 751 per Parke B ; Federal Commissioner of Taxation v Taylor (1929) 42 CLR 80 at 88-9; [1929] ALR 169; (1929) 3 ALJR 65; BC2900033 per Rich, Starke and Dixon JJ ; Mirzikinian v Waterhouse Pty Ltd [2009] NSWCA 296; BC200909171 [at 33] per Ipp JA (Tobias and McColl JJA concurring).4 Xenos v Wickham (1867) LR 2 HL 296 at 323 per Lord Cranworth.5 Davis v Jones (1856) 17 CB 625 at 634; 139 ER 1222 ; Monarch Petroleum NL v Citco Australia Petroleum Ltd [1986] WAR 310 at 356 per Kennedy J . Compare Poole v Neely [1976] 1 NZLR 529 at 541 ; Governors and Guardians of Foundling Hospital v Crane [1911] 2 KB 367; (1911) 105 LT 187 .6 See [140-58].7 Kingston v Ambrian Investment Co Ltd [1975] 1 All ER 120; [1975] 1 WLR 161 , CA; Governors and Guardians of Foundling Hospital v Crane [1911] 2 KB 367; (1911) 105 LT 187 ; Hooker Industrial Developments Pty Ltd v Trustees of the Christian Bros [1977] 2 NSWLR 109 at 120-1 ; Alan Estates Ltd v WG Stores Ltd [1982] Ch 511 at 5201; [1981] 3 All ER 481 at 486-7 per Lord Denning MR .8 Xenos v Wickham (1867) LR 2 HL 296 at 323 per Lord Cranworth; Kingston v Ambrian Investment Co Ltd [1975] 1 All ER 120 at 125; [1975] 1 WLR 161 per Lord Denning MR ; Governors and Guardians of Foundling Hospital v Crane [1911] 2 KB 367; (1911) 105 LT 187 ; Hooker Industrial Developments Pty Ltd v Trustees of the Christian Bros [1977] 2 NSWLR 109 at 120-1 ; Alan Estates Ltd v WG Stores Ltd [1982] Ch 511 at 520-1; [1981] 3 All ER 481 at 486-7 per Lord Denning MR .9 Governors and Guardians of Foundling Hospital v Crane [1911] 2 KB 367; (1911) 105 LT 187 ; Re Carile (decd); Dakin v Trustees, Executors and Agency Co Ltd [1920] VLR 427; (1920) 26 ALR 260; 42 ALT 82 . As to the formal requirements of wills see succession [395-280]-[395-385].10 In fact, the delivery in this instance does not involve the requisite intention to be presently bound by the deed and is no delivery at all: Beesly v Hallwood Estates Ltd [1961] Ch 105 at 119; [1961] 1 All ER 90; [1961] 2 WLR 36 per Donovan LJ .11 Windsor Refrigerator Co Ltd v Branch Nominees Ltd [1961] Ch 88 at 99; [1960] 2 All ER 568 at 573 ; Federal Commissioner of Taxation v Taylor (1929) 42 CLR 80 at 86; [1929] ALR 169; (1929) 3 ALJR 65; BC2900033 per Isaacs J .12 Beesly v Hallwood Estates Ltd [1961] Ch 105 at 118; [1961] 1 All ER 90 at 94; [1961] 2 WLR 36

per Harman LJ ; Monarch Petroleum NL v Citco Australia Petroleum Ltd [1986] WAR 310 at 359 per Kennedy J .13 Literally, a deed made between two or more named persons. For deeds inter partes see [140-10] note 8.14 Federal Commissioner of Taxation v Taylor (1929) 42 CLR 80 at 87; [1929] ALR 169; (1929) 3 ALJR 65; BC2900033 per Rich, Starke and Dixon JJ .15 Federal Commissioner of Taxation v Taylor (1929) 42 CLR 80 at 87; [1929] ALR 169; (1929) 3 ALJR 65; BC2900033 per Rich, Starke and Dixon JJ ; Marston v Charles H Griffith & Co Pty Ltd (1985) 3 NSWLR 294 at 301.16 Federal Commissioner of Taxation v Taylor (1929) 42 CLR 80 at 87; [1929] ALR 169; (1929) 3 ALJR 65; BC2900033 per Rich, Starke and Dixon JJ .17 Kingston v Ambrian Investment Co Ltd [1975] 1 All ER 120 at 125; [1975] 1 WLR 161 at 166 per Lord Denning MR . See also Scook v Premier Building Solutions Pty Ltd (2003) 28 WAR 124; [2003] WASCA 263; BC200306628 at [29], [30] per Steytler J (Hasluck and McKechnie JJ concurring). As to the effect of delivery as an escrow see [140-70].18 (SA) Law of Property Act 1936 s 41AA(7). The paragraph below is current to 07 February 2012 [140-65] To whom escrow may be delivered At common law the delivery of a deed as an escrow must be to a stranger to the deed and not to the party intended to benefit under the deed (that is, the grantee).1 However, the deed may be delivered as an escrow and the grantor bound by the deed when the condition is fulfilled, notwithstanding that the grantor has not parted with the possession of it.2 If there are several grantees and one of them is also the solicitor of the grantor and of the other grantees, and the deed is delivered to him or her, evidence is admissible to show the character and the terms upon which the deed was delivered (that is, whether it was delivered conditionally or absolutely).3 It appears that an intended deed may be delivered as an escrow notwithstanding that the deed is handed to a person who, if the instrument ultimately takes effect as a deed, will be a party to the deed.4 However, if a deed is handed to a person who may ultimately benefit under it, stronger evidence may be required to show that conditions precedent to delivery were attached than would be required if it were handed to a stranger.5 Notes 1 Whyddons Case (1596) Cro Eliz 520; 78 ER 769 . For a review of the law in relation to this point see Monarch Petroleum NL v Citco Australia Petroleum Ltd [1986] WAR 310 at 356-7 per Kennedy J .2 Xenos v Wickham (1867) LR 2 HL 296 at 323 per Lord Cranworth; Vincent v Premo Enterprises (Voucher Sales) Ltd [1969] 2 QB 609 at 619; [1969] 2 All ER 941 at 944 per Lord Denning MR .3 London Freehold and Leasehold Property Co v Baron Suffield [1897] 2 Ch 608 at 621-2 .4 Re Carile (decd); Dakin v Trustees, Executors and Agency Co Ltd [1920] VLR 427 at 431-2; (1920) 26 ALR 260; 42 ALT 82 per Cussen J ; Monarch Petroleum NL v Citco Australia Petroleum Ltd [1986] WAR 310 at 357 , where Kennedy J was prepared to accept, without reaching a definite conclusion on the matter, that this was the position in Australia. There appears to be implicit support for the proposition in Federal Commissioner of Taxation v Taylor (1929) 42 CLR 80; [1929] ALR 169; (1929) 3 ALJR 65; BC2900033 (where the escrow in question was delivered to one of the parties for execution); Re Vanstone (decd) [1955] NZLR 1079 ; Alan Estates Ltd v WG Stores Ltd [1982] Ch 511 at 520 per Denning MR, at 523 per Ackner LJ (dissenting), at 528 per Sir Denys Buckley; [1981] 3 All ER 481 , CA (a lease sealed by one party and delivered to the other was agreed to have been an escrow); Scook v Premier Building Solutions Pty Ltd (2003) 28 WAR 124; [2003] WASCA 263; BC200306628 at [28] per Steytler J (Hasluck and McKechnie JJ concurring).5 Re Carile (decd); Dakin v Trustees, Executors and Agency Co Ltd [1920] VLR 427 at 434; (1920) 26 ALR 260; 42 ALT 82 per Cussen J ; Ex parte Ryrie [1983] 2 Qd R 194 at 200 per McPherson J . The paragraph below is current to 07 February 2012 [140-70] Effect of delivery as an escrow Once an intended deed has been delivered as an

escrow it cannot, in the intervening period, be withdrawn, recalled or repudiated.1 If the condition to which the deed is subject is never performed or fulfilled, the deed never becomes binding and remains inoperative.2 If there is an unreasonable delay in the performance or fulfilment of the condition, equity may intervene to release the person who has executed the escrow from his or her obligations.3 This equity extends to relieve a party, who has executed a deed unconditionally on the faith of other parties executing the deed, from fulfilling his or her obligations under the deed.4 A deed which has been delivered as an escrow operates as from the date of delivery as an escrow, once the conditions of the escrow have been satisfied that is, the deed becomes effectual from the time of its first delivery as an escrow.5 Notes 1 Monarch Petroleum NL v Citco Australia Petroleum Ltd [1986] WAR 310 at 357 per Kennedy J ; Beesly v Hallwood Estates Ltd [1961] Ch 105 at 118; [1961] 1 All ER 90; [1961] 2 WLR 36 per Harman LJ ; Kingston v Ambrian Investment Co Ltd [1975] 1 All ER 120 at 125; [1975] 1 WLR 161 at 166 ; Alan Estates Ltd v WG Stores Ltd [1982] Ch 511 at 520 per Lord Denning MR, at 523 per Ackner LJ (dissenting), at 527 per Sir Denys Buckley; [1981] 3 All ER 481, CA ; 400 George Street (Qld) Pty Ltd v BG International Ltd [2010] QSC 066; BC201001334 at [47] per McMurdo J (affirmed 400 George Street (Qld) Pty Ltd v BG International Ltd [2010] QCA 245; BC201006667 ).2 Monarch Petroleum NL v Citco Australia Petroleum Ltd [1986] WAR 310 at 357 ; Beesly v Hallwood Estates Ltd [1961] Ch 105 at 118 per Harman LJ, at 120 per Lord Evershed MR; [1961] 1 All ER 90; [1961] 2 WLR 36 .3 Monarch Petroleum NL v Citco Australia Petroleum Ltd [1986] WAR 310 at 359 ; Beesly v Hallwood Estates Ltd [1961] Ch 105 at 118; [1961] 1 All ER 90; [1961] 2 WLR 36 per Harman LJ ; Kingston v Ambrian Investment Co Ltd [1975] 1 All ER 120 at 125-6; [1975] 1 WLR 161 at 166-7 per Lord Denning MR ; Federal Commissioner of Taxation v Taylor (1929) 42 CLR 80 at 87; [1929] ALR 169 at 172; (1929) 3 ALJR 65; BC2900033 per Rich, Starke and Dixon JJ ; Scook v Premier Building Solutions Pty Ltd (2003) 28 WAR 124; [2003] WASCA 263; BC200306628 at [38] per Steytler J (Hasluck and McKechnie JJ concurring). See [140-190] notes 9-17.4 Federal Commissioner of Taxation v Taylor (1929) 42 CLR 80 at 87; [1929] ALR 169; (1929) 3 ALJR 65; BC2900033 per Rich, Starke and Dixon JJ ; Wilson v Frost (1935) 52 WN (NSW) 212; 35 SR (NSW) 521 at 525 per Jordan CJ ; Marston v Charles H Griffith & Co Pty Ltd (1985) 3 NSWLR 294 at 301. See [140-190].5 Perrymans Case (1599) 5 Co Rep 84a; 77 ER 181 ; Federal Commissioner of Taxation v Taylor (1929) 42 CLR 80 at 86 per Isaacs J, at 87 per Rich, Starke and Dixon JJ; [1929] ALR 169; (1929) 3 ALJR 65; BC2900033 ; Richard Brady Franks Ltd v Price (1936) 37 SR (NSW) 37 at 48 ; Galland v FCT (1984) 68 FLR 388 at 394; 15 ATR 200; 84 ATC 4053 , SC(NSW); Ansett Transport Industries (Operations) Pty Ltd v Comptroller of Stamps [1985] VR 70 at 79; (1983) 15 ATR 189; 84 ATC 4103 ; Alan Estates Ltd v WG Stores Ltd [1982] Ch 511 at 521; [1981] 3 All ER 481 , CA; Fisher v Westpac Banking Corp (1993) 43 FCR 385 at 390-1 per French J , SC(WA).

Source

[Halsbury's Laws of Australia]

View Full Date/Time Thursday, October, 25, 2012, 12:28 EST 1 of 1 About LexisNexis | Terms & Conditions | My ID Back to Top

Copyright 2012 LexisNexis . All rights reserved.

(IV) Delivery and Escrow The paragraph below is current to 07 February 2012 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [140-58] Delivery Delivery is the third common law requirement for the formal execution of deeds.1 Delivery occurs where there are acts or words sufficient to show that the party making the deed intends the deed to be presently binding on him or her.2 No particular form of words or conduct is necessary to amount to delivery.3 Traditionally, intention to be bound by the deed was indicated by handing over the deed and saying I deliver this as my deed, but any other words or conduct which show it was intended that the deed be finally executed and the maker of the deed bound by it, will suffice.4 Intention must be ascertained by considering the nature and circumstances of the case.5 It is the expression of an intention to be bound which is crucial in delivery. For example, in circumstances where a company seal has been affixed invalidly (owing to a lack of authorisation by the directors of the company), a subsequent resolution by the directors confirming the affixation of the seal is sufficient to represent a clear expression of an intention to be bound and thereby effect delivery.6 While intention is to be ascertained from circumstances prior to or contemporaneous with delivery, it is permissible to look at later events in order to ascertain what was the intention of the person concerned at the critical time.7 Conversely, confirmation of amendments to a deed via email does not show sufficient intention to be an immediately binding agreement, especially where the evident intention was to be bound by the formal execution of a deed.8 There is a rebuttable presumption that if all one knows about a document is that it purports on the face of it to have been signed, sealed and delivered, then one may fairly infer, in the absence of evidence to the contrary, that the instrument has been delivered and takes effect as a deed.9 In the case of execution by corporations, at common law, sealing of a deed prima facie imports delivery, but where statute deems a deed to have been duly executed by a corporation upon affixation of its seal and appropriate attestation, the requirement of delivery is not dispensed with and delivery is not irrebuttably presumed as a consequence of the corporation sealing the instrument.10 In the context of conveyancing transactions, where parties intend to adopt ordinary conveyancing procedures (to the effect that either party may withdraw and recall his or her signed document at any time before formal exchange) the execution of a deed and its being handed to that partys solicitor in anticipation of a subsequent exchange of counterparts does not import delivery.11 In South Australia and Western Australia, legislation has been enacted towards abrogating the necessity for delivery.12 In South Australia, statute provides that delivery [is] not necessary in

any case.13 In Western Australia, formal delivery [is] not necessary in any case. 14 However, this wording has not successfully ousted the requirement of delivery, the section having been interpreted as merely confirming the rule that no particular technical form of words or acts is necessary to render an instrument the deed of the party sealing it.15 In other jurisdictions, delivery remains a formal requirement for the valid execution of deeds.16 Delivery may be absolute or conditional conditional delivery being known as an escrow.17 Notes 1 For the other common law requirements see [140-1].2 Scook v Premier Building Solutions Pty Ltd (2003) 28 WAR 124; [2003] WASCA 263; BC200306628 at [24] per Steytler J (Hasluck and McKechnie JJ concurring).3 Xenos v Wickham (1867) LR 2 HL 296 at 312 per Blackburn J; Electricity Meter Manufacturing Co Ltd v Manufacturers Products Pty Ltd (1930) 30 SR (NSW) 422 at 426; 47 WN (NSW) 182 ; Monarch Petroleum NL v Citco Australia Petroleum Ltd [1986] WAR 310 at 355 ; Scook v Premier Building Solutions Pty Ltd (2003) 28 WAR 124; [2003] WASCA 263; BC200306628 at [24] per Steytler J . For the purposes of the (QLD) Property Law Act 1974, delivery is defined as the intention to be legally bound either immediately or subject to fulfilment of a condition: ibid s 47(3).4 Xenos v Wickham (1867) LR 2 HL 296 at 312; Vincent v Premo Enterprises (Voucher Sales) Ltd [1969] 2 QB 609 at 619; [1969] 2 All ER 941 at 944-5 per Lord Denning ; Re Carile (decd); Dakin v Trustees, Executors and Agency Co Ltd [1920] VLR 427 at 433; (1920) 26 ALR 260; 42 ALT 82 ; Scook v Premier Building Solutions Pty Ltd (2003) 28 WAR 124; [2003] WASCA 263; BC200306628 at [25] per Steytler J (Hasluck and McKechnie JJ concurring).5 Lady Naas v Westminster Bank Ltd [1940] AC 366 at 399; [1940] 1 All ER 485; (1940) 109 LJ Ch 138; 162 LT 277 per Lord Wright ; Wardley Australia Ltd v McPharlin (1984) 3 BPR 9500 at 9503 per Rogers J .6 Poole v Neely [1976] 1 NZLR 529 at 541 ; Monarch Petroleum NL v Citco Australia Petroleum Ltd [1986] WAR 310 at 356 ; Scook v Premier Building Solutions Pty Ltd (2003) 28 WAR 124; [2003] WASCA 263; BC200306628 at [25] per Steytler J (Hasluck and McKechnie JJ concurring).7 Reid Murray Holdings Ltd (in liq) v David Murray Holdings Pty Ltd (1972) 5 SASR 386; (1971-73) CLC 40074 . See [140-105].8 Locnere Pty Ltd v Jakks Bagel & Bread Co Pty Ltd [2003] NSWSC 1123; BC200307346 at [13] per Palmer J .9 Xenos v Wickham (1867) LR 2 HL 296 at 322 per Lord Cranworth; Wardley Australia Ltd v McPharlin (1984) 3 BPR 9500 at 9503 ; Beesly v Hallwood Estates Ltd [1960] 2 All ER 314 at 325; [1961] 1 WLR 549 ; Keith v Pratt (1862) 10 WR 296 ; Ex parte Ryrie [1983] 2 Qd R 194 at 197 ; Interchase Corp Ltd (in liq) v Cmr of Stamp Duties (Qld) (1993) 27 ATR 154; 93 ATC 5120; BC9303344 (in Queensland, note the operation of (QLD) Property Law Act 1974 s 47 which provides that the execution of an instrument in the form of a deed does not of itself import delivery unless it appears that the execution of the instrument was intended to constitute delivery thereof. Delivery may, however, be inferred from any fact or circumstance, including words or conduct, indicative of delivery: ibid s 47(2)); McKinlay v Dodds (1984) 3 BPR 9259 at 9263 per Cohen J , SC(NSW) (where an instrument is said to be formally sealed and delivered, and there is nothing to qualify that delivery, even though the instrument remains in the hands of the executing party, it is regarded as validly delivered and will operate as a deed).10 See [140-75].11 Hooker Industrial Developments Pty Ltd v Trustees of the Christian Bros [1977] 2 NSWLR 109 . Compare Rose v Rose (1986) 7 NSWLR 679 at 685 . Delivery in these circumstances (that is, in the adoption of ordinary conveyancing procedures) must then occur at exchange of contracts by the solicitor. However, in order for the solicitor (as agent) to deliver the deed, he or she must in turn have been authorised by deed to do so (see [140-80]), which would, in practice, seldom be the case. This necessarily leads to the inference that an exchange of contracts in these circumstances would often not be legally effective. See generally Bradbrook A J, The Delivery of Deeds in Victoria, (1981) 55 Australian Law Journal 267; Butt P, Deeds The Problem of Delivery, (1978) 52 Australian Law Journal 454. The consequences of the decision in Hooker Industrial Developments Pty Ltd v Trustees of the Christian Bros [1977] 2 NSWLR 109 have been abrogated in Victoria by the operation of (VIC) Property Law Act 1958 s 73B(1).12 (SA) Law of Property Act 1936 s 41(3)

(WA) Property Law Act 1969 s 9(3). 13 (SA) Law of Property Act 1936 s 41(3).14 (WA) Property Law Act 1969 s 9(3).15 Monarch Petroleum NL v Citco Australia Petroleum Ltd [1986] WAR 310 at 353-4 ; Scook v Premier Building Solutions Pty Ltd (2003) 28 WAR 124; [2003] WASCA 263; BC200306628 at [22]-[24] per Steytler J (Hasluck and McKechnie JJ concurring).16 See [140-25].17 See [140-60]. The paragraph below is current to 07 February 2012 To update legislation see ACL Legislation [140-60] Escrow An intended deed may be delivered not absolutely, but rather as an escrow (that is, conditionally) to take effect upon the occurrence of a specified event or upon condition that the deed is not to be operative until some condition is fulfilled or performed.1 It is a question of fact whether an instrument was delivered absolutely as a deed or as an escrow and a court may look to all of the facts attending the execution in order to ascertain the intention of the parties.2 Delivery as an escrow need not take any special form and no express words are necessary to achieve it, as it will always be a question of intention to be gathered from the words or acts of the parties executing the instrument.3 The requisite intention that must be found to exist is the intention that the deed have no effect until some event has occurred or some condition fulfilled, however, when the event has occurred or the condition has been satisfied, the delivery becomes absolute and the maker of the deed is absolutely bound by it.4 Evidence of intention must be of circumstances that existed prior to, or contemporaneously with, the delivery.5 As with absolute delivery,6 if a deed is delivered as an escrow, the maker of the deed is bound by it and cannot subsequently resile from his or her act.7 The deed is not operative until the condition is fulfilled but the party executing the deed is bound by it for a reasonable time so as to see if the condition is fulfilled or not, and if the condition is fulfilled the deed becomes binding absolutely.8 Delivery of a deed which transfers property title of the maker of the deed, may not be made conditional on the death of this person as this would amount to a testamentary disposition and the formal requirements of wills would need to be satisfied.9 Nor may the grantor purport to deliver a deed and, at the same time, indicate that he or she is free to undo it at any time before it passes to the grantee as this is not delivery subject to a condition.10 The death of the grantor has no effect on an escrow that will become binding on the grantors estate when the condition to which the deed is subject is fulfilled.11 If the condition is never fulfilled the deed never becomes operative. If there is an unreasonable delay in the performance of the condition, equity may intervene to relieve the person who has executed the escrow from his or her obligations.12 If a deed inter partes13 is executed by one of the parties to the deed, it is a question of fact whether the party executed the deed absolutely in the first instance or conditionally (as an escrow) with the intent that the deed should not take effect as his or her deed until the other parties have also executed the deed.14 If the deed is delivered absolutely and not as an escrow and if it was executed in the belief that the other parties would also execute the deed, equity may provide relief for the party executing the deed if the other parties fail to execute.15 However, if the deed was delivered as an escrow, the condition being execution by the other parties, the deed will not become effective until such time as the other parties execute the deed.16 The effect of execution of a deed as an escrow was explained and summarised by Lord Denning

MR, in Kingston v Ambrian Investment Co Ltd17 as follows: When a party executes a deed of transfer as an escrow, it means that he executes it subject to a condition, express or implied, which is thereafter to be fulfilled. As soon as the condition is fulfilled the transfer becomes complete. The deed operates to transfer the title to the transferee. If, however, the condition is not fulfilled, the deed is not effective to make the transfer. What, however, is the position during the intervening time between the time when the deed is executed and the time when the condition is fulfilled? The law says that during this intervening time the maker of the deed cannot withdraw it. He cannot recall it or repudiate it. He must await the event to see whether or not the condition is fulfilled. The doctrine of escrow has been abolished in South Australia.18 Notes 1 Monarch Petroleum NL v Citco Australia Petroleum Ltd [1986] WAR 310 at 356 per Kennedy J ; Scook v Premier Building Solutions Pty Ltd (2003) 28 WAR 124; [2003] WASCA 263; BC200306628 at [26] per Steytler J (Hasluck and McKechnie JJ concurring).2 Monarch Petroleum NL v Citco Australia Petroleum Ltd [1986] WAR 310 at 356 per Kennedy J ; Xenos v Wickham (1867) LR 2 HL 296 at 323 per Lord Cranworth; Bowker v Burdekin (1843) 11 M & W 128 at 147; 152 ER 744 at 751 per Parke B ; Scook v Premier Building Solutions Pty Ltd (2003) 28 WAR 124; [2003] WASCA 263; BC200306628 at [26] per Steytler J (Hasluck and McKechnie JJ concurring).3 Monarch Petroleum NL v Citco Australia Petroleum Ltd [1986] WAR 310 at 356 per Kennedy J ; Bowker v Burdekin (1843) 11 M & W 128 at 147; 152 ER 744 at 751 per Parke B ; Federal Commissioner of Taxation v Taylor (1929) 42 CLR 80 at 88-9; [1929] ALR 169; (1929) 3 ALJR 65; BC2900033 per Rich, Starke and Dixon JJ ; Mirzikinian v Waterhouse Pty Ltd [2009] NSWCA 296; BC200909171 [at 33] per Ipp JA (Tobias and McColl JJA concurring).4 Xenos v Wickham (1867) LR 2 HL 296 at 323 per Lord Cranworth.5 Davis v Jones (1856) 17 CB 625 at 634; 139 ER 1222 ; Monarch Petroleum NL v Citco Australia Petroleum Ltd [1986] WAR 310 at 356 per Kennedy J . Compare Poole v Neely [1976] 1 NZLR 529 at 541 ; Governors and Guardians of Foundling Hospital v Crane [1911] 2 KB 367; (1911) 105 LT 187 .6 See [140-58].7 Kingston v Ambrian Investment Co Ltd [1975] 1 All ER 120; [1975] 1 WLR 161 , CA; Governors and Guardians of Foundling Hospital v Crane [1911] 2 KB 367; (1911) 105 LT 187 ; Hooker Industrial Developments Pty Ltd v Trustees of the Christian Bros [1977] 2 NSWLR 109 at 120-1 ; Alan Estates Ltd v WG Stores Ltd [1982] Ch 511 at 5201; [1981] 3 All ER 481 at 486-7 per Lord Denning MR .8 Xenos v Wickham (1867) LR 2 HL 296 at 323 per Lord Cranworth; Kingston v Ambrian Investment Co Ltd [1975] 1 All ER 120 at 125; [1975] 1 WLR 161 per Lord Denning MR ; Governors and Guardians of Foundling Hospital v Crane [1911] 2 KB 367; (1911) 105 LT 187 ; Hooker Industrial Developments Pty Ltd v Trustees of the Christian Bros [1977] 2 NSWLR 109 at 120-1 ; Alan Estates Ltd v WG Stores Ltd [1982] Ch 511 at 520-1; [1981] 3 All ER 481 at 486-7 per Lord Denning MR .9 Governors and Guardians of Foundling Hospital v Crane [1911] 2 KB 367; (1911) 105 LT 187 ; Re Carile (decd); Dakin v Trustees, Executors and Agency Co Ltd [1920] VLR 427; (1920) 26 ALR 260; 42 ALT 82 . As to the formal requirements of wills see succession [395-280]-[395-385].10 In fact, the delivery in this instance does not involve the requisite intention to be presently bound by the deed and is no delivery at all: Beesly v Hallwood Estates Ltd [1961] Ch 105 at 119; [1961] 1 All ER 90; [1961] 2 WLR 36 per Donovan LJ .11 Windsor Refrigerator Co Ltd v Branch Nominees Ltd [1961] Ch 88 at 99; [1960] 2 All ER 568 at 573 ; Federal Commissioner of Taxation v Taylor (1929) 42 CLR 80 at 86; [1929] ALR 169; (1929) 3 ALJR 65; BC2900033 per Isaacs J .12 Beesly v Hallwood Estates Ltd [1961] Ch 105 at 118; [1961] 1 All ER 90 at 94; [1961] 2 WLR 36 per Harman LJ ; Monarch Petroleum NL v Citco Australia Petroleum Ltd [1986] WAR 310 at 359 per Kennedy J .13 Literally, a deed made between two or more named persons. For deeds inter partes see [140-10] note 8.14 Federal Commissioner of Taxation v Taylor (1929) 42 CLR 80 at 87; [1929] ALR 169; (1929) 3 ALJR 65; BC2900033 per Rich, Starke and Dixon JJ .15 Federal Commissioner of Taxation v Taylor (1929) 42 CLR 80 at 87; [1929] ALR 169; (1929) 3 ALJR 65; BC2900033 per Rich, Starke and Dixon JJ ; Marston v Charles H Griffith & Co Pty Ltd (1985) 3 NSWLR 294 at 301.16 Federal Commissioner of Taxation v Taylor (1929) 42 CLR

80 at 87; [1929] ALR 169; (1929) 3 ALJR 65; BC2900033 per Rich, Starke and Dixon JJ .17 Kingston v Ambrian Investment Co Ltd [1975] 1 All ER 120 at 125; [1975] 1 WLR 161 at 166 per Lord Denning MR . See also Scook v Premier Building Solutions Pty Ltd (2003) 28 WAR 124; [2003] WASCA 263; BC200306628 at [29], [30] per Steytler J (Hasluck and McKechnie JJ concurring). As to the effect of delivery as an escrow see [140-70].18 (SA) Law of Property Act 1936 s 41AA(7). The paragraph below is current to 07 February 2012 [140-65] To whom escrow may be delivered At common law the delivery of a deed as an escrow must be to a stranger to the deed and not to the party intended to benefit under the deed (that is, the grantee).1 However, the deed may be delivered as an escrow and the grantor bound by the deed when the condition is fulfilled, notwithstanding that the grantor has not parted with the possession of it.2 If there are several grantees and one of them is also the solicitor of the grantor and of the other grantees, and the deed is delivered to him or her, evidence is admissible to show the character and the terms upon which the deed was delivered (that is, whether it was delivered conditionally or absolutely).3 It appears that an intended deed may be delivered as an escrow notwithstanding that the deed is handed to a person who, if the instrument ultimately takes effect as a deed, will be a party to the deed.4 However, if a deed is handed to a person who may ultimately benefit under it, stronger evidence may be required to show that conditions precedent to delivery were attached than would be required if it were handed to a stranger.5 Notes 1 Whyddons Case (1596) Cro Eliz 520; 78 ER 769 . For a review of the law in relation to this point see Monarch Petroleum NL v Citco Australia Petroleum Ltd [1986] WAR 310 at 356-7 per Kennedy J .2 Xenos v Wickham (1867) LR 2 HL 296 at 323 per Lord Cranworth; Vincent v Premo Enterprises (Voucher Sales) Ltd [1969] 2 QB 609 at 619; [1969] 2 All ER 941 at 944 per Lord Denning MR .3 London Freehold and Leasehold Property Co v Baron Suffield [1897] 2 Ch 608 at 621-2 .4 Re Carile (decd); Dakin v Trustees, Executors and Agency Co Ltd [1920] VLR 427 at 431-2; (1920) 26 ALR 260; 42 ALT 82 per Cussen J ; Monarch Petroleum NL v Citco Australia Petroleum Ltd [1986] WAR 310 at 357 , where Kennedy J was prepared to accept, without reaching a definite conclusion on the matter, that this was the position in Australia. There appears to be implicit support for the proposition in Federal Commissioner of Taxation v Taylor (1929) 42 CLR 80; [1929] ALR 169; (1929) 3 ALJR 65; BC2900033 (where the escrow in question was delivered to one of the parties for execution); Re Vanstone (decd) [1955] NZLR 1079 ; Alan Estates Ltd v WG Stores Ltd [1982] Ch 511 at 520 per Denning MR, at 523 per Ackner LJ (dissenting), at 528 per Sir Denys Buckley; [1981] 3 All ER 481 , CA (a lease sealed by one party and delivered to the other was agreed to have been an escrow); Scook v Premier Building Solutions Pty Ltd (2003) 28 WAR 124; [2003] WASCA 263; BC200306628 at [28] per Steytler J (Hasluck and McKechnie JJ concurring).5 Re Carile (decd); Dakin v Trustees, Executors and Agency Co Ltd [1920] VLR 427 at 434; (1920) 26 ALR 260; 42 ALT 82 per Cussen J ; Ex parte Ryrie [1983] 2 Qd R 194 at 200 per McPherson J . The paragraph below is current to 07 February 2012 [140-70] Effect of delivery as an escrow Once an intended deed has been delivered as an escrow it cannot, in the intervening period, be withdrawn, recalled or repudiated.1 If the condition to which the deed is subject is never performed or fulfilled, the deed never becomes binding and remains inoperative.2 If there is an unreasonable delay in the performance or fulfilment of the condition, equity may intervene to release the person who has executed the escrow from his or her obligations.3 This equity extends to relieve a party, who has executed a deed unconditionally on the faith of other

parties executing the deed, from fulfilling his or her obligations under the deed.4 A deed which has been delivered as an escrow operates as from the date of delivery as an escrow, once the conditions of the escrow have been satisfied that is, the deed becomes effectual from the time of its first delivery as an escrow.5 Notes 1 Monarch Petroleum NL v Citco Australia Petroleum Ltd [1986] WAR 310 at 357 per Kennedy J ; Beesly v Hallwood Estates Ltd [1961] Ch 105 at 118; [1961] 1 All ER 90; [1961] 2 WLR 36 per Harman LJ ; Kingston v Ambrian Investment Co Ltd [1975] 1 All ER 120 at 125; [1975] 1 WLR 161 at 166 ; Alan Estates Ltd v WG Stores Ltd [1982] Ch 511 at 520 per Lord Denning MR, at 523 per Ackner LJ (dissenting), at 527 per Sir Denys Buckley; [1981] 3 All ER 481, CA ; 400 George Street (Qld) Pty Ltd v BG International Ltd [2010] QSC 066; BC201001334 at [47] per McMurdo J (affirmed 400 George Street (Qld) Pty Ltd v BG International Ltd [2010] QCA 245; BC201006667 ).2 Monarch Petroleum NL v Citco Australia Petroleum Ltd [1986] WAR 310 at 357 ; Beesly v Hallwood Estates Ltd [1961] Ch 105 at 118 per Harman LJ, at 120 per Lord Evershed MR; [1961] 1 All ER 90; [1961] 2 WLR 36 .3 Monarch Petroleum NL v Citco Australia Petroleum Ltd [1986] WAR 310 at 359 ; Beesly v Hallwood Estates Ltd [1961] Ch 105 at 118; [1961] 1 All ER 90; [1961] 2 WLR 36 per Harman LJ ; Kingston v Ambrian Investment Co Ltd [1975] 1 All ER 120 at 125-6; [1975] 1 WLR 161 at 166-7 per Lord Denning MR ; Federal Commissioner of Taxation v Taylor (1929) 42 CLR 80 at 87; [1929] ALR 169 at 172; (1929) 3 ALJR 65; BC2900033 per Rich, Starke and Dixon JJ ; Scook v Premier Building Solutions Pty Ltd (2003) 28 WAR 124; [2003] WASCA 263; BC200306628 at [38] per Steytler J (Hasluck and McKechnie JJ concurring). See [140-190] notes 9-17.4 Federal Commissioner of Taxation v Taylor (1929) 42 CLR 80 at 87; [1929] ALR 169; (1929) 3 ALJR 65; BC2900033 per Rich, Starke and Dixon JJ ; Wilson v Frost (1935) 52 WN (NSW) 212; 35 SR (NSW) 521 at 525 per Jordan CJ ; Marston v Charles H Griffith & Co Pty Ltd (1985) 3 NSWLR 294 at 301. See [140-190].5 Perrymans Case (1599) 5 Co Rep 84a; 77 ER 181 ; Federal Commissioner of Taxation v Taylor (1929) 42 CLR 80 at 86 per Isaacs J, at 87 per Rich, Starke and Dixon JJ; [1929] ALR 169; (1929) 3 ALJR 65; BC2900033 ; Richard Brady Franks Ltd v Price (1936) 37 SR (NSW) 37 at 48 ; Galland v FCT (1984) 68 FLR 388 at 394; 15 ATR 200; 84 ATC 4053 , SC(NSW); Ansett Transport Industries (Operations) Pty Ltd v Comptroller of Stamps [1985] VR 70 at 79; (1983) 15 ATR 189; 84 ATC 4103 ; Alan Estates Ltd v WG Stores Ltd [1982] Ch 511 at 521; [1981] 3 All ER 481 , CA; Fisher v Westpac Banking Corp (1993) 43 FCR 385 at 390-1 per French J , SC(WA).

Source

[Halsbury's Laws of Australia]

View Full Date/Time Thursday, October, 25, 2012, 12:28 EST 1 of 1 About LexisNexis | Terms & Conditions | My ID Copyright 2012 LexisNexis . All rights reserved. Back to Top

(VI) Re-execution and Re-delivery The paragraph below is current to 07 February 2012 [140-95] Conditional execution A deed which is executed by a party on condition that another party will also execute the deed is a delivery1 upon condition, that is, an escrow, and in accordance with the law relating to escrow, the deed will not take effect and come into operation until the condition is fulfilled.2 Notes 1 As to delivery see [140-58].2 Federal Commissioner of Taxation v Taylor (1929) 42 CLR 80 at 87; [1929] ALR 169 at 172; (1929) 3 ALJR 65; BC2900033 per Rich, Starke and Dixon JJ ; Mirzikinian v Waterhouse Pty Ltd [2009] NSWCA 296; BC200909171 at [52] per Ipp JA (Tobias and McColl JJA concurring). For delivery and escrow generally see [140-58]-[140-70]. The paragraph below is current to 07 February 2012 [140-100] Partial execution At general law, there may be no partial execution of a deed. 1 Execution of a deed in part only is no execution at all.2 If a party attempts to qualify his or her liability and restrain full operation of the deed at the time of execution, this is regarded as no execution, as partial or qualified execution of a deed by a party is imperfect in law.3 However, a party who attempts to qualify his or her execution, or execute the deed as to part only may be estopped from relying on the partial or qualified execution as amounting to no execution at all, particularly in circumstances where, as a result of the execution, the party has received and accepted some benefit under the deed.4 Notes 1 Wilkinson v Anglo-Californian Gold Mining Co (1852) 18 QB 728; 118 ER 275 (partial execution of a deed is unknown to the law).2 Wilkinson v Anglo-Californian Gold Mining Co (1852) 18 QB 728; 118 ER 275.3 Wilkinson v Anglo-Californian Gold Mining Co (1852) 18 QB 728; 118 ER 275; Exchange Bank of Yarmouth v Blethen (1885) LR 10 App Cas 293 at 298-9. Compare Ellesmere Brewery Co v Cooper [1896] 1 QB 75; [1895-99] All ER Rep 1121; (1895) 73 LT 567 .4 Exchange Bank of Yarmouth v Blethen (1885) LR 10 App Cas 293 at 299 (having received a benefit by virtue of the execution the party cannot then be heard to repudiate it and deny his or her execution). See also [140-200]. The paragraph below is current to 07 February 2012 [140-105] Re-delivery of a void deed If a deed has been delivered in circumstances which indicate that the original delivery is invalid (for example, where an attorney delivers a deed on behalf of his or her principal without having been sufficiently authorised by deed to do so),1 the deed may be re-delivered by the party sufficiently acknowledging, in the presence of the deed, that he or she is bound by the deed.2 It is not necessary to show that the party acknowledging the deed is aware that the deed would have been invalid without such acknowledgment amounting to re-delivery as the acknowledgment alone is sufficient.3 If a person seals and delivers an instrument leaving some material part blank, such that the deed would be void for uncertainty, the deed may nevertheless become operative if the blanks are subsequently filled and the deed re-delivered by the party who originally purported to execute it.4 Notes

1 See [140-80] note 2.2 Goodright d Carter v Straphan (1774) 1 Cowp 201 at 203-4; 98 ER 1043; Tupper v Foulkes (1861) 9 CBNS 797; 142 ER 314 ; Powell v London and Provincial Bank [1893] 2 Ch 555 at 562-3 per Bowen LJ, CA; Re Seymour; Fielding v Seymour [1913] 1 Ch 475 at 486-7 per Cozens-Hardy MR , CA. See also [140-50].3 Re Seymour; Fielding v Seymour [1913] 1 Ch 475 at 487 per Cozens-Hardy MR , CA. See also [140-58].4 Powell v London and Provincial Bank [1893] 2 Ch 555 at 562-3 per Bowen LJ, CA; Re Seymour; Fielding v Seymour [1913] 1 Ch 475 at 486 per Cozens-Hardy MR , CA. See also [140-45], [140-115]. The paragraph below is current to 07 February 2012 [140-110] Re-execution of a voidable deed A deed may in certain circumstances, following delivery, be voidable as opposed to void ab initio.1 Following removal of the factor which renders the deed voidable (for example, legal incapacity, misrepresentation, fraud, duress, undue influence and so on) re-delivery alone is ineffective, since it was not the mere fact of invalid delivery which rendered the instrument voidable. However, full re-execution (that is, resealing, resigning and re-delivery) of the deed in accordance with the formal requirements of the jurisdiction and in the absence of the previous constraint, will create a valid and binding deed.2 Notes 1 See [140-215].2 See [140-25] and generally contract. The paragraph below is current to 07 February 2012 [140-115] Re-execution after alteration or cancellation If a validly executed deed is subsequently rendered void as a result of some alteration or erasure of some material part1 or through cancellation,2 the deed may be re-executed by means of conduct amounting to redelivery whereby the party evinces an intention to be bound by the deed.3 If a deed is left blank in part and is materially altered when the blank is filled, and if the grantor of the deed knew of the alteration and the blank was filled while in his or her presence, then his or her assent re-delivers the deed and renders it valid and binding.4 Notes 1 See [140-245]-[140-270].2 See [140-280]-[140-295].3 Hudson v Revett (1829) 5 Bing 368 at 371; [1824-34] All ER Rep 540; (1829) 130 ER 1103 ; Hibblewhite v MMorine (1840) 6 M & W 200 at 215; 151 ER 380 ; Tupper v Foulkes (1861) 9 CBNS 797 at 807-8; 142 ER 314 ; Re Seymour; Fielding v Seymour [1913] 1 Ch 475 ; Powell v London and Provincial Bank [1893] 2 Ch 555, CA.4 Hudson v Revett (1829) 5 Bing 368; [1824-34] All ER Rep 540; (1829) 130 ER 1103 ; Hibblewhite v MMorine (1840) 6 M & W 200; 151 ER 380 . See also Re Seymour; Fielding v Seymour [1913] 1 Ch 475 ; Powell v London and Provincial Bank [1893] 2 Ch 555, CA. See also [140-45], [140-105]. For the impact of a material alteration upon a deed see [140250]-[140-270].

Source

[Halsbury's Laws of Australia]

View Full Date/Time Thursday, October, 25, 2012, 12:28 EST 1 of 1 About LexisNexis | Terms & Conditions | My ID Back to Top

Copyright 2012 LexisNexis . All rights reserved.

(D) When a Deed is Required (I) Generally The paragraph below is current to 07 February 2012 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [140-120] Incorporeal hereditaments At common law, a deed is necessary to make a grant or any other form of conveyance, expressed to take effect between living persons, of any incorporeal hereditament or any estate or interest therein.1 An incorporeal hereditament is a right having no material existence in itself which issues out of things which are corporate or substantial or associated with such, in other words, land, and is best exemplified by such rights as rent, easements and profits prendre.2 Statutory enactments in each jurisdiction now govern the use of deeds in relation to incorporeal hereditaments and conveyancing generally.3 Notes 1 Bryan v Whistler (1828) 8 B & C 288; 108 ER 1050 (exclusive right of burial held to be a grant of an incorporeal hereditament which would need to be granted by deed or writing in order to be effective). See also [140-125].2 See real property [355-12000]-[355-12650].3 See real property for a detailed discussion of how Australian land law now differs from the original English common law. As to the statute law which is generally applicable see: (NT) Law of Property Act 2000 Pt 6 (deeds) (NSW) Conveyancing Act 1919 s 23B(1) (assurances of land to be by deed) (QLD) Property Law Act 1974 s 10(1) (assurances of land to be in writing) (SA) Law of Property Act 1936 s 28(1) (conveyances to be by deed) (TAS) Conveyancing and Law of Property Act 1884 s 60(1) (conveyances to be by deed) (VIC) Property Law Act 1958 s 52(1) (conveyances to be by deed) (WA) Property Law Act 1969 s 33(1) (conveyances to be by deed). There are no equivalent provisions in the Australian Capital Territory. For provisions relating generally to Torrens system land see:

(ACT) Land Titles Act 1925 Pt 8 (NT) Land Title Act 2000 Pt 9 Div 1 (NSW) Real Property Act 1900 Pt 6 (QLD) Land Title Act 1994 Pt 9 Div 1 (SA) Real Property Act 1886 Pt 5 Div 3 (TAS) Land Titles Act 1980 Pt VI Div 1 (VIC) Transfer of Land Act 1958 Pt III (WA) Transfer of Land Act 1893 Pt IV Div 1. The paragraph below is current to 07 February 2012 [140-125] Right to enter land At common law a mere licence, whether created by deed or by parol, is revocable.1 However, a licence to enter onto and use land, whether given by deed, writing or parol, when coupled with a grant or interest, is irrevocable (provided, however, that in the case of a licence made by parol, the grant is of such a nature as to be capable of being made by parol).2 Where the licence is by parol, coupled with a parol grant or pretended grant, of something which is incapable of being granted otherwise than by deed, the licence is a mere licence and accordingly revocable.3 Grants of easements or of profits prendre, 4 which at law are incorporeal hereditaments and may only be created by deed, are the best known examples of licences coupled with grants or interests in realty.5 A mere licence for valuable consideration for example, to see a performance in a theatre or an event at a racecourse confers no interest in the land and is therefore revocable.6 However, that revocation may well constitute a breach of contract and sound in damages at common law.7 A licence which is not coupled with or granted in aid of an interest in land is revocable at law.8 This revocation is immediately operable, but a licensee does not become a trespasser until a reasonable time after notice has been given of revocation so that it may withdraw from the land and remove property which was been brought on in pursuance of the licence.9 A grant of an interest in land need not, in order to be effective in a court of equity, be made by deed. However, unlike the position in England,10 this does not justify the proposition that interests in land may, due to the fusion of law and equity,11 be created by simple contract even though, before the passage of the various Judicature Acts throughout Australia, those interests were of such a character that they could not be created by deed as interests in land.12 Notes 1 Wood v Leadbitter (1845) 13 M & W 838; 153 ER 351 ; Cowell v Rosehill Racecourse Co Ltd (1937) 56 CLR 605; [1937] ALR 273; (1937) 11 ALJ 32; BC3700051 .2 Wood v Leadbitter (1845) 13 M & W 838; 153 ER 351 ; Cowell v Rosehill Racecourse Co Ltd (1937) 56 CLR 605 at 626; [1937] ALR 273; (1937) 11 ALJ 32; BC3700051 per Starke J .3 Wood v Leadbitter (1845) 13 M & W 838 at 845; 153 ER 351 at 355 .4 See generally real property [355-12000][355-12285].5 Wood v Leadbitter (1845) 13 M & W 838; 153 ER 351 ; Cowell v Rosehill Racecourse Co Ltd (1937) 56 CLR 605 at 626; [1937] ALR 273; (1937) 11 ALJ 32; BC3700051 per Starke J . See [140-120].6 Cowell v Rosehill Racecourse Co Ltd (1937) 56 CLR 605 at 627; [1937] ALR 273; (1937) 11 ALJ 32; BC3700051 per Starke J .7 Cowell v Rosehill Racecourse Co Ltd (1937) 56 CLR 605 at 627; [1937] ALR 273; (1937) 11 ALJ 32; BC3700051 per Starke J .8 Cowell v Rosehill Racecourse Co Ltd (1937) 56 CLR 605 at 631; [1937] ALR

273; (1937) 11 ALJ 32; BC3700051 per Dixon J .9 Cowell v Rosehill Racecourse Co Ltd (1937) 56 CLR 605 at 631; [1937] ALR 273; (1937) 11 ALJ 32; BC3700051 per Dixon J ; Golden Sands Pty Ltd v Davegale Pty Ltd [2003] VSC 458; BC200307036 at [39] per Byrne J ; Wilson v New South Wales (2010) 278 ALR 74; [2010] NSWCA 333; BC201009425 at [50] per Hodgson JA (McColl and Young JJA concurring).10 Hurst v Picture Theatres Ltd [1915] 1 KB 1; [1914-15] All ER Rep 836 .11 See courts and judicial system, equity [185-25].12 Cowell v Rosehill Racecourse Co Ltd (1937) 56 CLR 605 at 618; [1937] ALR 273; (1937) 11 ALJ 32; BC3700051 per Latham CJ . An interest of such a character that could not be created by deed as an interest in land would be, for example, a mere licence to enter land. The paragraph below is current to 07 February 2012 [140-130] Release At general law, a deed is required for the express release of a right in land, tenements or hereditaments, goods or chattels,1 or any real or personal action, claim or demand.2 An express release (other than an express release made for valuable consideration) of a common law right of action for example, arising out of a breach of contract or from an actionable wrong must be made by deed.3 An obligation which arises under contract 4 (but does not arise out of a breach of contract) may only be discharged, in the absence of valuable consideration, by deed.5 The release of a legal right may not be enforced in equity in the absence of a deed or valuable consideration.6 However, equitable rights may be released orally, under hand or by deed where there is a present, fixed intention immediately to release.7 Notes 1 Jennor and Hardies Case (1587) 1 Leon 283; 74 ER 258 (a release of a right in chattels cannot be without deed). Compare Winter v Winter (1861) 4 LT 639; 9 WR 747 ; Kilpin v Ratley [1892] 1 QB 582 ; Cain v Moon [1896] 2 QB 283; [1895-99] All ER Rep Ext 1952 for the law relating to bailment in which a gift may be in the nature of a release of a right. For the principles in relation to the equitable construction of deeds of release see Grant v John Grant & Sons Pty Ltd (1954) 91 CLR 112 at 125; 28 ALJ 217; BC5400450 (the general words of a release are limited always to such matters as were specifically in the contemplation of the parties at the time the release was given a releasee must not use the general words of a release as a means of escaping the fulfilment of obligations falling outside the true purpose of the transaction as ascertained from the nature of the instrument and the surrounding circumstances, including the state of knowledge of the respective parties concerning the existence, character and extent of the liability in question and the actual intention of the releasor); Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26 at 43-4; 28 ALD 538; (1992) EOC 92-454; 45 IR 292 per Kirby P, CA(NSW) ; GA Listing & Maintenance Pty Ltd v Francipane (unreported, SC(NSW), Giles J, No 50056/93, 23 September 1994, BC9402249).2 Coke E, Commentary upon Littleton, Vol 1, 19th ed, London, 1832, p 264b; Preston R (ed), Sheppards Touchstone of Common Assurances, 7th ed, London, 1820, p 321; Lampets Case (1612) 10 Co Rep 46b at 48a, 48b; 77 ER 994 ; Jennor and Hardies Case (1587) 1 Leon 283; 74 ER 258 .3 Pinnels Case (1602) 5 Co Rep 117a at 117b; [1558-1774] All ER Rep 612 at 613; (1602) 77 ER 237 at 238 ; Edwards v Weeks (1677) 2 Mod Rep 259; 86 ER 1060 ; May v King (1701) 12 Mod Rep 537; 88 ER 1502; Reeves v Brymer (1801) 6 Ves 516; 31 ER 1172 ; Harris v Goodwyn (1841) 2 Man & G 405; 133 ER 803; Cross v Sprigg (1849) 6 Hare 552; 67 ER 1283; Edwards v Walters [1896] 2 Ch 157 at 168 ; Creamoata Ltd v Rice Equalization Assn Ltd (1953) 89 CLR 286 at 306, 326; 27 ALJ 428 (a deed may be released or varied in equity by a parol agreement for valuable consideration). However, there is an extent to which the rule may be circumvented by the development of the doctrines of promissory estoppel and unconscionable conduct by the High Court: Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387; 76 ALR 513; 62 ALJR 110; BC8802656 . See further equity [185-945]-[185-966], estoppel [190-305].4 For example, arising out of a promise to

pay on a future day for goods delivered or money lent: Blackhead v Cock (1614) 1 Roll Rep 43 at 44; 81 ER 314; Foster v Dawber (1851) 6 Exch 839 at 851; 155 ER 785 ; Edwards v Walters [1896] 2 Ch 157 .5 Blackhead v Cock (1614) 1 Roll Rep 43 at 44; 81 ER 314; Foster v Dawber (1851) 6 Exch 839 at 851; 155 ER 785 ; Edwards v Walters [1896] 2 Ch 157 .6 Bryn v Godfrey (1798) 4 Ves 6; 31 ER 3; Reeves v Brymer (1801) 6 Ves 516; 31 ER 1172 ; Cross v Sprigg (1849) 6 Hare 552; 67 ER 1283; Peace v Hains (1853) 11 Hare 151; 68 ER 1226; Edwards v Walters [1896] 2 Ch 157 ; Commissioner of Stamp Duties (NSW) v Bone (1976) 135 CLR 223 at 229; 9 ALR 11; 6 ATR 66 , PC.7 Re Hall; Holland v A-G [1941] 2 All ER 358 at 370 ; Wright v Vanderplank (1856) 8 De GM & G 133; 44 ER 340 at 346 ; De Bussche v Alt (1878) 8 Ch D 286 at 314; [1874-80] All ER Rep 1247 ; Henn v Hanson (1663) 1 Lev 99; 1 Sidf 141 (the general words in the release were limited to the matters which the parties had in contemplation, though they were not mentioned in the recitals). See equity [185-1900]. The paragraph below is current to 07 February 2012 [140-135] Other instances where a deed is required In order for an attorney to execute a deed or deliver seisin,1 on behalf of his or her principal, the attorney must be authorised by deed executed by the principal.2 A deed is required in relation to assurances of land. 3 In addition, a deed (or alternatively, actual delivery) is required for a valid gift inter vivos of tangible property.4 Notes 1 Seisin being the possession or ownership of land: see real property [355-85].2 See [140-80] and agency [15-40].3 See [140-140].4 Irons v Smallpiece (1819) 2 B & Ald 551 at 552; 106 ER 467 at 468 per Abbott CJ ; Cochrane v Moore (1890) 25 QBD 57 at 61 per Fry LJ , CA; Rowland v Stevenson [2005] NSWSC 325; BC200502120 at [49] per Gzell J . See also [140175]. For the assignment of choses in action see [140-395].

Source

[Halsbury's Laws of Australia]

View Full Date/Time Thursday, October, 25, 2012, 12:28 EST 1 of 1 About LexisNexis | Terms & Conditions | My ID Copyright 2012 LexisNexis . All rights reserved. Back to Top

(II) Assurances of Land The paragraph below is current to 07 February 2012 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes

Annotations [140-140] Conveyances With the exception of the Australian Capital Territory, each Australian jurisdiction has enacted legislation which provides that every assurance or transfer of land (excluding Torrens system land in New South Wales) must be by deed.1 The formal role of deeds in conveyancing transactions is of much less significance now with the introduction of the Torrens system throughout Australia.2 Under the Torrens system, title to land brought within the system is transferred upon the recording of a dealing in a register rather than by formal execution of a deed, although, upon registration, dealings lodged under the Torrens system are deemed to be deeds.3 Notes 1 (NT) Law of Property Act 2000 s 9(1) (a deed is not required if the conveyance of land is in writing and signed by the transferee) (NSW) Conveyancing Act 1919 s 23B(1) (QLD) Property Law Act 1974 s 10(1) (SA) Law of Property Act 1936 s 28(1) (TAS) Conveyancing and Law of Property Act 1884 s 60(1) (VIC) Property Law Act 1958 s 52(1) (WA) Property Law Act 1969 s 33(1). There are no equivalent provisions in the Australian Capital Territory. However, contracts for the sale or disposition of land or any interest in land must be evidenced in writing: (ACT) Civil Law (Property) Act 2006 s 201. 2 See generally real property [355-8000]-[355-8380].3 (ACT) Land Titles Act 1925 s 48(8) (NT) Land Title Act 2000 s 179 (NSW) Real Property Act 1900 s 36(11) (QLD) Land Title Act 1994 s 176 (SA) Real Property Act 1886 s 57 (TAS) Land Titles Act 1980 s 48(7) (VIC) Transfer of Land Act 1958 s 40(2) (WA) Transfer of Land Act 1893 s 85. See generally real property [355-8000]-[355-8380]. The paragraph below is current to 07 February 2012 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [140-145] Conveyances for which a deed is not required In those jurisdictions which provide

that assurances or transfers of land must be by deed there also exist a number of exceptions to the general rule. These exceptions apply most commonly, for example to disclaimers made in relation to bankruptcy proceedings, surrenders by operation of law or which do not require writing, leases or tenancies not required to be made by writing, and vesting orders.1 An express surrender of a lease, with the exception of a surrender by operation of law, must be by deed.2 Similarly, a deed is also required for an assignment of lease not registered under a Torrens system statute.3 Notes 1 (NT) Law of Property Act 2000 s 9(2) (NSW) Conveyancing Act 1919 s 23B(2) (QLD) Property Law Act 1974 s 10(2) (SA) Law of Property Act 1936 s 28(2) (TAS) Conveyancing and Law of Property Act 1884 s 60(1) (VIC) Property Law Act 1958 s 52(2) (WA) Property Law Act 1969 s 33(2). There are no equivalent provisions in the Australian Capital Territory. 2 Zorbas v McNamara [1960] NSWR 428; (1960) 77 WN (NSW) 561 at 565 (affirmed on different grounds Zorbas v McNamara [1962] NSWR 53; [1962] SR (NSW) 159 , CA(NSW)); Chronopoulos v Caltex Oil (Aust) Pty Ltd (1982) 45 ALR 481; 70 FLR 8; (1982) ATPR 40-331 Fed C of A. However, this is not the case in New South Wales if the land to which the lease relates is land subject to the provisions of the (NSW) Real Property Act 1900; (NSW) Conveyancing Act 1919 s 23B(3). See generally Tebbutt H W, Surrenders and Assignments of Leases Is a Deed Necessary, (1961) 34 Australian Law Journal 353. 3 Chronopoulos v Caltex Oil (Aust) Pty Ltd (1982) 45 ALR 481 at 488; 70 FLR 8; (1982) ATPR 40-331 , Fed C of A.

Source

[Halsbury's Laws of Australia]

View Full Date/Time Thursday, October, 25, 2012, 12:29 EST 1 of 1 About LexisNexis | Terms & Conditions | My ID Copyright 2012 LexisNexis . All rights reserved. Back to Top

(III) Equity The paragraph below is current to 07 February 2012 [140-150] Generally Two maxims of equity are that equity will not assist a volunteer and equity will not perfect an imperfect gift.1 It does not follow, however, that equity will not intervene to perfect a gift of legal property, assignable at law, which failed because of a failure to comply fully with all legal requirements.2 In order for a voluntary settlement to be valid and effectual the settlor 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 or her.3 Equity will not intervene to save a failed transfer by construing the transfer as a declaration of trust when this was not the intention of the settlor.4 Notes 1 See equity [185-120], [185-470].2 Otherwise known as the rule in Strong v Bird: see equity [185-470].3 Milroy v Lord (1862) 4 De GF & J 264 at 274-5; [1861-73] All ER Rep 783; (1862) 45 ER 1185 at 1189 per Turner LJ . The exact meaning of this proposition now appears to have been settled in Corin v Patton (1990) 169 CLR 540; 92 ALR 1; 64 ALJR 256; BC9002936 . See also Anning v Anning (1907) 4 CLR 1049; 13 ALR 709; 11 ALJ 108 ; Norman v FCT (1963) 109 CLR 9; [1964] ALR 131; (1963) 37 ALJR 49; BC6300080 ; Olsson v Dyson (1969) 120 CLR 365; [1969] ALR 443; (1969) 43 ALJR 77; BC6900350 ; Taylor v DCT (Cth) (1969) 123 CLR 206; 43 ALJR 237; 1 ATR 97; BC6900680 . As to the application of the Milroy v Lord principle to Torrens system land see Corin v Patton (1990) 169 CLR 540; 92 ALR 1; 64 ALJR 256; BC9002936 ; Brunker v Perpetual Trustee Co (Ltd) (1937) 57 CLR 555; [1937] ALR 349; (1937) 11 ALJ 108 ; Public Trustee v Jones (2007) 251 LSJS 364; [2007] SASC 390; BC200709666 at [53] per Layton J ; Bennell v Westlawn Finance Ltd [2010] FCA 658; BC201004372 at [70] per Nicholas J . See generally equity [185-415]-[185-485].4 Milroy v Lord (1862) 4 De GF & J 264; [1861-73] All ER Rep 783; (1862) 45 ER 1185 . See [140-155] and generally equity [185-440], trusts. The paragraph below is current to 07 February 2012 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [140-155] Trusts and equitable interests Equity does not require a deed for the creation of a trust or for the transfer of an equitable interest by means such as assignment, a direction to trustees, agreement to assign, or declaration of trust.1 However, in each Australian jurisdiction, legislation provides that:2 (1) no interest in land may be created or disposed of except by writing, signed by the person creating or conveying the interest, or by his or her agent lawfully authorised in writing, by will, or by operation of law;

(2) a declaration of trust in respect of any land or interest therein must be manifested and proved by some writing, signed by some person able to declare the trust, or by his or her will; and (3) a disposition of an equitable interest or trust subsisting at the time of the disposition, must be in writing signed by the person disposing of the interest or trust, by his or her will or by his or her agent lawfully authorised in writing. Notes 1 See equity [185-450].2 (ACT) Civil Law (Property) Act 2006 s 201 (NT) Law of Property Act 2000 s 10 (NSW) Conveyancing Act 1919 s 23C(1) (QLD) Property Law Act 1974 s 11 (SA) Law of Property Act 1936 s 29(1) (TAS) Conveyancing and Law of Property Act 1884 s 60(2) (VIC) Property Law Act 1958 s 53(1) (WA) Property Law Act 1969 s 34(1). For an interpretation of the operation of these provisions see Adamson v Hayes (1973) 130 CLR 276; [1972-73] ALR 1224; (1973) 47 ALJR 201 (interpreting (WA) Property Law Act 1969 s 34(1)); compare Khoury v Khouri (2006) 66 NSWLR 241; [2006] NSWCA 184; BC200605530 . See generally equity [185-460]. As to the requirement of writing generally see [140-440], [140445]. The paragraph below is current to 07 February 2012 [140-160] Voluntary assurances of equitable interests Subject to the various statutory enactments relating to the transfer or assurance of equitable interests,1 it appears that a deed is not required for the valid disposition of an equitable interest whether made for valuable consideration2 or by way of gift, provided, however, that there is a clear expression of an intention to make an immediate disposition.3 A mere agreement to assign an equitable interest will be of no effect unless supported by valuable consideration and it is otherwise specifically enforceable.4 An equitable right may be released without valuable consideration, and without the necessity for a deed, provided that there exists a present, fixed intention to immediately release the right.5 Notes 1 See [140-155].2 See [140-155] note 2. See also Re Leathes; Ex parte Leathes (1833) 3 Deac & Ch 112; Dighton v Withers (1862) 31 Beav 423 at 424; 54 ER 1202 at 1203 (valid equitable mortgage created by giving a written memorandum promising to execute a legal mortgage); Neve v Pennell (1863) 2 Hem & M 170 at 186; 71 ER 427 at 433; Tebb v Hodge (1869) LR 5 CP 73; Credland v Potter (1874) LR 10 Ch App 8 at 12, 14.3 Norman v FCT (1963) 109 CLR 9; [1964] ALR 131; (1963) 37 ALJR 49; BC6300080 per Windeyer J (dissenting); Thomas v HP Mercantile Pty Ltd [2008] NSWCA 308; BC200810175 at [61] per Sackville AJA (Spigelman CJ and Tobias JA concurring).4 Howard v Miller [1915] AC 318; (1914) 112 LT 403 ; Oughtred v

IRC [1960] AC 206; [1959] 3 All ER 623 ; Norman v FCT (1963) 109 CLR 9; [1964] ALR 131; (1963) 37 ALJR 49; BC6300080 per Windeyer J (dissenting).5 See [140-130].

Source

[Halsbury's Laws of Australia]

View Full Date/Time Thursday, October, 25, 2012, 12:29 EST 1 of 1 About LexisNexis | Terms & Conditions | My ID Copyright 2012 LexisNexis . All rights reserved. Back to Top

(E) Effect of a Deed The paragraph below is current to 07 February 2012 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [140-165] General effect Once a deed has been executed in accordance with all necessary formalities for valid execution1 and subsequently delivered by the party making the deed,2 this party becomes conclusively bound by the provisions of the deed and cannot thereafter resile from it or recall it.3 As a general rule, the party will be bound by the deed notwithstanding that another party has not executed the deed. However, it will be a question of fact whether in the circumstances such execution was conditional upon execution by the other party or parties.4 Equity may intervene to relieve a party who has executed a deed unconditionally, on the faith of other parties executing the deed, from the burden of fulfilling his or her obligations.5 The fact that upon execution and delivery of a deed the party making the deed is absolutely bound by it will generally preclude this party from proving by extrinsic evidence that the deed does not express the intentions of the parties to it or that he or she must not be bound to fulfil his or her obligations under the deed.6 A party to a deed will be estopped from denying the truth of a material representation in a deed which was made or adopted with the intention of leading the other party to the deed to rely on it.7 Notes 1 See [140-25].2 As to delivery see [140-58].3 See [140-58], [140-60]. A deed, once delivered, cannot be recalled: Hooker Industrial Developments Pty Ltd v Trustees of the Christian Bros [1977] 2 NSWLR 109 at 118 .4 Federal Commissioner of Taxation v Taylor (1929) 42 CLR 80

at 87; [1929] ALR 169; (1929) 3 ALJR 65; BC2900033 per Rich, Starke and Dixon JJ . See [140-60], [140-70], [140-190]; Mirzikinian v Waterhouse Pty Ltd [2009] NSWCA 296; BC200909171 per Ipp JA at [52] (Tobais and McColl JJA concurring). Compare Keith Murphy Pty Ltd v Custom Credit Corp Ltd (1992) 6 WAR 332 at 343 (instruments in which obligations are assumed jointly, or jointly and severally, are generally to be construed as making the instrument dependent on the execution of it by all persons named as obligors).5 See [140-60], [140-70], [140-190].6 Coke E, Commentary upon Littleton, Vol 1, 19th ed, London, 1832, pp 45a, 47b, 352a, 363b; Whelpdales Case (1604) 5 Co Rep 119a; 77 ER 239 ; Style v Hearing (1605) Cro Jac 73; 79 ER 62; Xenos v Wickham (1867) LR 2 HL 296. This proposition is subject to the application of such doctrines as misrepresentation, mistake, undue influence and unconscionable conduct which may relieve a party of his or her obligations see [140-215]-[140230], contract [110-5001]-[110-6055], equity [185-910]-[185-985]. Note also the possible application of the (CTH) Competition and Consumer Act 2010 Sch 2 (the Australian Consumer Law): see consumer protection [100-110]-[100-613], contract [110-5300]-[110-5375]. The existence of a collateral contract may also impact upon this proposition: see contract [110-2050][110-2065].7 Greer v Kettle [1938] AC 156 at 166-7; [1937] 4 All ER 396 at 401 per Lord Russell . This principle is an application of the doctrine of estoppel by representation, as to which see estoppel [190-240]-[190-270]. The paragraph below is current to 07 February 2012 [140-170] Rule against derogation Of particular application to deeds used in the context of a transfer or assurance of real property is the principle that a grantor must not derogate from his or her grant.1 A transfer by an owner of real property must include, for example, all easements necessary for the use and enjoyment of the land for the purpose or purposes for which the grant was made.2 If a transferor wishes to reserve any easement or right over the land he or she has transferred, this must be done expressly, as the law does not generally imply the reservation of an easement over the land granted.3 Similarly, in the case of leases, a lessor must not act in a manner, nor use land retained by him or her, in such a way as to render the land granted or demised unfit or materially less fit for the particular purpose or purposes for which the grant was made.4 Notes 1 Palmer v Fletcher (1663) 1 Lev 122; 83 ER 329 ; Wheeldon v Burrows (1879) 12 Ch D 31 at 49; [1874-80] All ER Rep 669 at 672; (1879) 41 LT 327 per Thesiger LJ ; Hinkley v Star City Pty Ltd [2010] NSWSC 1389; BC201009074 at [237] per Ward J .2 Wheeldon v Burrows (1879) 12 Ch D 31; [1874-80] All ER Rep 669; (1879) 41 LT 327 ; Taylor v Browning (1885) 11 VLR 158 . See real property [355-12000]-[355-12285].3 Wheeldon v Burrows (1879) 12 Ch D 31; [187480] All ER Rep 669; (1879) 41 LT 327 . See real property [355-12000]-[355-12285].4 Browne v Flower [1911] 1 Ch 219 at 226; [1908-10] All ER Rep 545 at 548 ; Aldin v Latimer Clark, Muirhead & Co [1894] 2 Ch 437 (lessor not permitted to erect buildings on adjoining land which would interfere with flow of air to drying sheds on the leased premises); Gordon v Lidcombe Developments Pty Ltd [1966] 2 NSWR 9 (lessor prevented from obscuring visibility of lessees shop); Harmer v Jumbil (Nigeria) Tin Areas Ltd [1921] 1 Ch 200; [1920] All ER Rep 113 (lessor prevented from acting to jeopardise lessees licence to store explosives); Karaggianis v Malltown Pty Ltd (1979) 21 SASR 381 (lessor prevented from interfering with lifts required by lessee for customers to gain access to restaurant). See leases and tenancies [245-3000]-[245-3790]. The paragraph below is current to 07 February 2012 [140-175] Consideration not necessary The execution of a deed imports consideration. 1 A gratuitous assurance of any property, interest or right made by way of gift and without valuable consideration in the form of a deed is enforceable at common law.2 Equity, however, will not specifically enforce such a contract with an order for specific performance in the absence of

consideration on the basis of the maxim that equity will not assist a volunteer.3 The rule that a promise in a deed imports consideration represents a significant exception to the requirement of contract law that promises are not enforceable unless supported by consideration.4 The fact that a deed is entered into for an expressed consideration which is known by both parties not to exist does not invalidate the deed.5 However, if a promise contained in a deed is founded on illegal consideration, this will render the entire arrangement void.6 A promise which is made neither under seal nor for valuable consideration may nevertheless be enforceable under the doctrine of promissory (or equitable) estoppel as it has evolved in Australia. That is, equity may enforce a promise made by a defendant to a plaintiff if the plaintiff has acted to his or her detriment on the basis of a basic assumption in relation to which the other party has played such a part in the adoption of the assumption that it would be unfair or unjust if this party were left free to ignore it.7 In these circumstances, it is the unconscionable conduct by the other party in ignoring the assumption that he or she has created that leads equity to intervene.8 To establish a promissory estoppel, it is necessary for a plaintiff to prove that:9 (1) the plaintiff assumed that a particular legal relationship then existed between the plaintiff and the defendant or expected that a particular legal relationship would exist between them and, in the latter case, that the defendant would not be free to withdraw from the expected legal relationship; (2) the defendant has induced the plaintiff to adopt that assumption or expectation; (3) the plaintiff acts or abstains from acting in reliance on the assumption or expectation; (4) the defendant knew or intended him to do so; (5) the plaintiffs action or inaction will occasion detriment if the assumption or expectation is not fulfilled; and (6) the defendant has failed to act to avoid the detriment whether by fulfilling the assumption or expectation or otherwise. Notes 1 Howard F Hudson Pty Ltd v Ronayne (1972) 126 CLR 449 at 463, 464; 46 ALJR 173 per Walsh J (mutual promises contained in a deed do not depend for their enforceability upon the doctrine of valuable consideration applicable to simple contracts); Leonard v Booth (1954) 91 CLR 452 at 474; 28 ALJ 550 per Webb J ; Rann v Hughes (1778) 7 Term Rep 350n; 101 ER 1014n . See contract [110-570]. For argument to the contrary see Everett D, The Role of Deeds

in Property Transactions Contractual and Dispositive Acts, (1989) 1 Bond Law Reports 5.2 Pinnels Case (1602) 5 Co Rep 117a; [1558-1774] All ER Rep 612; (1602) 77 ER 237 ; Spicer v Hayward (1700) Prec Ch 114; 24 ER 55 ; Dickinson v Burrell (1866) LR 1 Eq 337 at 343; Morley v Boothby (1825) 3 Bing 107; 130 ER 455 at 456 per Best CJ ; Reid Murray Holdings Ltd (in liq) v David Murray Holdings Pty Ltd (1972) 5 SASR 386; (1971-73) CLC 40-074 .3 Jefferys v Jefferys (1841) Cr & Ph 138; [1835-42] All ER Rep 81; (1841) 41 ER 443 ; Re Ellenborough; Towry Law v Burne [1903] 1 Ch 697; (1903) 72 LJ Ch 218; 87 LT 714 per Buckley J .4 See contract [110-545]-[110-805].5 Reid Murray Holdings Ltd (in liq) v David Murray Holdings Pty Ltd (1972) 5 SASR 386 at 396; (1971-73) CLC 40-074 per Mitchell J .6 Reid Murray Holdings Ltd (in liq) v David Murray Holdings Pty Ltd (1972) 5 SASR 386 at 396; (197173) CLC 40-074 per Mitchell J .7 Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 at 404; 76 ALR 513 at 523-4; 62 ALJR 110; BC8802656 per Mason CJ and Wilson J . For more detailed discussion of these issues see estoppel [190-290]-[190-350].8 Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 at 404; 76 ALR 513 at 523-4; 62 ALJR 110; BC8802656 per Mason CJ and Wilson J . For more detailed discussion of these issues see estoppel [190-290]-[190-350].9 Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 at 428, 429; 76 ALR 513; 62 ALJR 110; BC8802656 per Brennan J ; Como v Helmers [2011] WASC 179; BC201105671 at [85] per Corboy J . The paragraph below is current to 07 February 2012 [140-180] When a deed takes effect A deed takes effect on the date of its delivery 1 and not the day on which it is stated to have been executed.2 When determining the date of delivery, there is a presumption that a deed is delivered on the date of execution.3 However, evidence may be admitted to rebut the presumption and to prove that the deed was delivered at some other time.4 For example, the presumption applies unless the evident intention of the parties to the deed would be defeated.5 Evidence will not be admissible if the party seeking to adduce evidence as to the actual date of delivery inserted the original date and thereafter seeks to have it altered in order to gain some advantage or avoid some obligation.6 A deed is not void or inoperative merely because it bears a false or impossible date or no date at all.7 Notes 1 For delivery see [140-58].2 Goddards Case (1584) 2 Co Rep 4b; 3 Leon 100; 76 ER 396 at 400 ; Claytons Case (1585) 5 Co Rep 1a; 77 ER 48; Xenos v Wickham (1867) LR 2 HL 296; Glenmorton Holdings Pty Ltd v DAloia [2001] FCA 1331; BC200105776 at [11] per Merkel J .3 Styles v Wardle (1825) 4 B & C 908 (affirmed Glebe Administration Board v Tifan [1968] 3 NSWR 455 at 458 per Wallace ACJ, CA(NSW) ); Browne v Burton (1847) 5 Dow & L 289 at 292; 17 LJQB 49 per Patterson J (a deed or other writing must be taken to speak from the time of the execution, and not from the date apparent on the face of the deed; that date is prima facie taken as the true time of execution). See also Hooker Industrial Developments Pty Ltd v Trustees of the Christian Bros [1977] 2 NSWLR 109 .4 Goddards Case (1584) 2 Co Rep 4b; 3 Leon 100; 76 ER 396 ; Claytons Case (1585) 5 Co Rep 1a; 77 ER 48; Doe d Lewis v Bingham (1821) 4 B & Ald 672; [1814-23] All ER Rep 540; (1821) 106 ER 1082; Browne v Burton (1847) 5 Dow & L 289 at 292; 17 LJQB 49 per Patterson J ; Clarke v Roche (1877) 3 QBD 170 ; Re Maher & Nugents Contract [1910] 1 IR 167.5 Glebe Administration Board v Tifan [1968] 3 NSWR 455 ; JLF Corp Pty Ltd v Mount Petrie Developments Pty Ltd [2004] QSC 44; BC200401030 at [15] per Chesterman J.6 Rudd v Bowles (1) [1912] 2 Ch 60 at 65; (1912) 81 LJ Ch 277; 105 LT 864 per Neville J.7 Goddards Case (1584) 2 Co Rep 4b; 3 Leon 100; 76 ER 396 at 400 ; Cromwell v Grunsden (1698) 2 Salk 462; 91 ER 399 . The paragraph below is current to 07 February 2012 To update legislation see ACL Legislation

For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [140-185] Who may benefit At common law, a deed is either a deed poll or a deed indentures. 1 In relation to deed indentures, courts have often used that term interchangeably with the term deed inter partes. A deed inter partes is literally a deed made between two or more named persons.2 In the case of a deed poll, a person for whose benefit a covenant is expressed to be made, if sufficiently named by reference, may sue on it.3 A person may, under a deed inter partes4 to which he or she is not named as a party: (1) take an interest in remainder;5 (2) take an interest as a beneficiary by way of trust;6 or (3) be made an attorney of the grantor.7 However, it is a rule of common law that a person may only take a benefit under a deed inter partes, and sue to enforce this benefit, if he or she is named as a party to the deed.8 This rule has been modified in all jurisdictions by statute which provides generally that a person may take an immediate or other interest in land or other property, or the benefit of any condition, right of entry, covenant, or agreement over or respecting land or other property, although he or she is not named as a party to the instrument.9 The effect of this legislation has been construed narrowly, courts having held that it does not alter the operation of the doctrine of privity of contract,10 at least in so far as it relates to personal rights and property.11 A person seeking to rely on the provision must be someone with whom there purports to be some covenant or agreement (even though this person is not a party to it), that is, the covenant must have been made directly for this persons benefit in circumstances indicating that the covenant was intended to be enforceable by him or her.12 In the Northern Territory, Queensland and Western Australia, legislation has been enacted to enable a third party to sue to enforce the benefit conferred upon him or her in a contract even though not named as a party to the contract.13 Notes 1 See [140-10].2 Tipperary Developments Pty Ltd v Western Australia (2009) 38 WAR 488; 258 ALR 124; [2009] WASCA 126; BC200906297 at [250] per McLure JA (Wheeler and Newnes JJA concurring).3 Moss v Legal and General Life Assurance Society of Australia (1875) 1 VLR (L) 315 at 318 ; Re A & K Holdings Pty Ltd [1964] VR 257 at 261 per Sholl J . See also [14010].4 For the meaning of deeds inter partes see [140-10] note 8.5 Coke E, Commentary upon Littleton, Vol 1, 19th ed, London, 1832, p 231a.6 Sacher Investments Pty Ltd v Forma Stereo Consultants Pty Ltd [1976] 1 NSWLR 5 er Yeldham J at 12 .7 Moyle v Ewer (1602) Cro Eliz 905; 78 ER 1127; Lowther v Kelly (1723) 8 Mod Rep 115 at 118; 88 ER 91 at 92 per Eyre J; Storer v

Gordon (1814) 3 M & S 308 at 322-3; [1814-23] All ER Rep 442 at 447; (1814) 105 ER 627 .8 Coke E, Commentary upon Littleton, Vol 1, 19th ed, London, 1832, p 231a; Berkeley v Hardy (1826) 5 B & C 355; 108 ER 132 ; Lord Southampton v Brown (1827) 6 B & C 718; 108 ER 615; Chesterfield and Midland Silkstone Colliery Co (Ltd) v Hawkins (1865) 3 H & C 677 at 692; 159 ER 698 at 703 per Martin B; Harmer v Armstrong [1934] Ch 65 at 86; [1933] All ER Rep 778 at 784 per Lawrence LJ , CA; Re Sinclairs Life Policy [1938] Ch 799; [1938] 3 All ER 124 ; Re Foster; Hudson v Foster [1938] 3 All ER 357 ; White v Bijou Mansions Ltd [1938] Ch 351; [1938] 1 All ER 546 ; Moss v Legal and General Life Assurance Society of Australia (1875) 1 VLR (L) 315 at 318 ; Re A & K Holdings Pty Ltd [1964] VR 257 . For instances where a deed may be enforced by a non party as a cestui que trust see also [140-210].9 (ACT) Civil Law (Property) Act 2006 s 212 (NT) Law of Property Act 2000 s 12 (NSW) Conveyancing Act 1919 s 36C(1) (QLD) Property Law Act 1974 s 13(1) (SA) Law of Property Act 1936 s 34(1) (TAS) Conveyancing and Law of Property Act 1884 s 61(1)(c) (VIC) Property Law Act 1958 s 56(1) (WA) Property Law Act 1969 s 11(1). See contract [110-3090]. 10 See contract [110-3090].11 Beswick v Beswick [1968] AC 58; [1967] 2 All ER 1197; [1967] 3 WLR 932 , HL. See also Concrete Constructions Pty Ltd v GIO(NSW) [1966] 2 NSWR 609; (1966) 85 WN (Pt 1) (NSW) 104 ; Sacher Investments Pty Ltd v Forma Stereo Consultants Pty Ltd [1976] 1 NSWLR 5 at 12 . See further contract [110-3090] and real property. Compare Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107; 80 ALR 574; 62 ALJR 508; (1988) 5 ANZ Ins Cas 60-873; BC8802625 . See further contract [110-3025].12 White v Bijou Mansions Ltd [1938] Ch 351; [1938] 1 All ER 546 ; Stromdale & Ball Ltd v Burden [1952] Ch 223; [1952] 1 All ER 59 ; Drive Yourself Hire Co (London) Ltd v Strutt [1954] 1 QB 250 at 272; [1953] 2 All ER 1475 at 1482 per Denning LJ , CA. For the enforceability of covenants which touch and concern land see Forster v Elvet Colliery Co Ltd [1908] 1 KB 629 , CA (affirmed sub nom Dyson v Forster [1909] AC 98; [1908-10] All ER Rep 212 , HL); Grant v Edmondson [1931] 1 Ch 1; [1930] All ER Rep 48 ; Re Ecclesiastical Commissioners for Englands Conveyance [1936] Ch 430 at 437-8; [1934] All ER Rep 118 at 121-2 ; Drive Yourself Hire Co (London) Ltd v Strutt [1954] 1 QB 250 at 273-4; [1953] 2 All ER 1475 at 1483 per Denning LJ ; Kumar v Dunning [1989] QB 193; [1987] 2 All ER 801 , CA; Lang v Asemo Pty Ltd [1989] VR 773 . See further real property [355-12500]-[355-12655].13 (ACT) Civil Law (Property) Act 2006 s 212(2) (NT) Law of Property Act 2000 s 56 (contracts for the benefit of third parties) (NSW) Contracts Review Act 1980 s 12 (QLD) Property Law Act 1974 s 55 (WA) Property Law Act 1969 s 11(2), 11(3). See Westralian Farmers Co-op Ltd v Southern Meat Packers Ltd [1981] WAR 241 contract [110-3095]. The paragraph below is current to 07 February 2012 and

[140-190] Effect of non-execution As a general rule, if a deed is expressed to be made by several persons named as parties to the deed and one or more of these persons, though named as a party, fails to execute the deed, that person is not bound by the deed.1 A party to a deed who executes the deed in accordance with the necessary formalities2 becomes conclusively bound by the provisions of the deed from the moment of such execution (notwithstanding that the other party or parties to the deed does not, or do not, thereafter execute the deed)3 and cannot thereafter resile from it or recall it.4 This is so whether or not the deed has come into the possession of the party intended to benefit by it, and indeed even if this party does not know of it,5 has or has not assented to the making of the deed. 6 The two major exceptions to this general rule, which by their operation result in a party executing the deed not being bound until such time as the other party or parties execute the deed, occur if: (1) the deed is executed as an escrow, that is, conditionally upon execution by the other party or parties;7 or (2) equity intervenes to relieve the partys burden in the face of the failure of the other party or parties to execute.8 This equity has been described as arising where a deed is sought to be enforced against an executing party, and owing to the non-execution by another person named as a party to the deed, the obligation which is sought to be enforced is a different obligation from the obligation which would have been enforceable if the non-executing person had in fact executed the deed.9 An example of the operation of this equity occurs where only one of two co-sureties named in a deed in fact executes the deed, and it is sought to enforce the deed against the surety who did execute.10 If an ordinary surety has executed a guarantee under seal (that is, by deed), which is drawn in a form showing another or others as intended joint and several sureties, and has thereafter delivered the guarantee to the principal otherwise than as an escrow, the intending surety is generally bound at law even though the other, or those others, does not, or do not, execute the guarantee. However, the equity referred to may arise in this situation relieving the intending surety against the guarantee.11 Similarly, a deed of family arrangement signed by persons without the knowledge, or in the absence of, one member of the family intended to be affected thereby,12 is regarded, in the absence of any proviso to the contrary express or implied, as having been entered into on the assumption that the absentee will, in due time, join in the transaction.13 The concurrence of the absentee party becomes an implied condition of the validity of the arrangement, and if it is not obtained the arrangement is not binding on any of the parties to it.14 If a person is named as a party to a deed inter partes,15 notwithstanding that he or she has not executed the deed, this party may sue to enforce any covenant contained in the deed,16 provided, however, that execution by this party is not a condition precedent to the partys ability to enforce the covenant.17 Notes 1 Coke E, Commentary upon Littleton, Vol 1, 19th ed, London, 1832, p 230b. This proposition is subject to the exception that a person, named in a deed but who does not execute it, will be bound if he or she accepts some benefit conferred by the deed. See [140-200].2 See [140-25].3 Lady Naas v Westminster Bank Ltd [1940] AC 366 at 374-5; [1940] 1 All ER 485; (1940) 109 LJ

Ch 138; 162 LT 277 per Viscount Maugham ; Marston v Charles H Griffith & Co Pty Ltd (1985) 3 NSWLR 294 at 300-1. Compare Keith Murphy Pty Ltd v Custom Credit Corp Ltd (1992) 6 WAR 332 at 343 per Anderson J (instruments in which obligations are assumed jointly, or jointly and severally, are generally to be construed as making the instrument dependent on the execution of it by all persons named as obligors).4 See [140-165].5 Xenos v Wickham (1867) LR 2 HL 296 at 312 per Blackburn J.6 If the party intended to benefit by the deed (the obligee) has not previously assented to the making of the deed he or she may refuse it: Xenos v Wickham (1867) LR 2 HL 296. For the right of the party benefiting under a deed to disclaim the benefit see also [140-195].7 See [140-60].8 See [140-60], [140-70], [140-235]. See also Keith Murphy Pty Ltd v Custom Credit Corp Ltd (1992) 6 WAR 332 at 343 (instruments in which obligations are assumed jointly, or jointly and severally, are generally to be construed as making the instrument dependent on the execution of it by all persons named as obligors).9 Lady Naas v Westminster Bank Ltd [1940] AC 366 at 391; [1940] 1 All ER 485 at 500; (1940) 109 LJ Ch 138; 162 LT 277 per Lord Russell .10 Evans v Bremridge (1855) 2 K & J 174; [1843-60] All ER Rep 170; (1855) 69 ER 741 (affirmed Evans v Bremridge (1856) 8 De GM & G 100; 44 ER 327 ); Lady Naas v Westminster Bank Ltd [1940] AC 366 at 391; [1940] 1 All ER 485 at 500; (1940) 109 LJ Ch 138; 162 LT 277 per Lord Russell ; Marston v Charles H Griffith & Co Pty Ltd (1985) 3 NSWLR 294 at 301 per Powell J.11 Marston v Charles H Griffith & Co Pty Ltd (1985) 3 NSWLR 294 at 301 per Powell J. See also Russo v Resource Developments International Pty Ltd [2003] NSWSC 239; BC200301371 at [97] per Young CJ ; Gattellaro v Westpac Banking Corp (2004) 204 ALR 258; 78 ALJR 394; [2004] HCA 6; BC200400236 at [31] per Gleeson CJ, McHugh, Hayne and Heydon JJ .12 Notwithstanding that the absent party is not named as a party to the deed, provided that he or she is referred to in such a fashion as to make it plain that the deed was made on the supposition that this party would ultimately concur in the intended arrangement: Re Morton; Morton v Morton [1932] 1 Ch 505 at 508; [1932] All ER Rep 799 at 800 per Eve J .13 Re Morton; Morton v Morton [1932] 1 Ch 505 at 508; [1932] All ER Rep 799 at 800 per Eve J .14 Peto v Peto (1849) 16 Sim 590; 60 ER 1003 ; Bolitho v Hillyar (1865) 34 Beav 180; 55 ER 603 ; Re Morton; Morton v Morton [1932] 1 Ch 505 at 508; [1932] All ER Rep 799 at 800 per Eve J . Compare Wilson v Frost (1935) 52 WN (NSW) 212; 35 SR (NSW) 521 .15 For the meaning of deeds inter partes see [140-10] note 8.16 Clement v Henley (1643) 2 Roll Abr 22; Rose v Poulton (1831) 2 B & Ad 822 at 830; 109 ER 1348 at 1351 ; Wetherell v Langston (1847) 1 Exch 634 at 643-4; 154 ER 269 at 273-4 ; British Empire Mutual Life-Assurance Co v Browne (1852) 12 CB 723; 138 ER 1088 ; Morgan v Pike (1854) 14 CBNS 473; 139 ER 195 . See also Edwards v Skilled Engineering Pty Ltd (unreported, CA(NSW), Kirby P, Priestly and Meagher JJA, No 168/1988, 14 March 1989, BC8902414) at 4, 5 per Priestley JA.17 Soprani v Skurro (1602) Yelv 18; 80 ER 14; Pitman v Woodbury (1848) 3 Exch 4; 154 ER 732; Linwood v Squire (1850) 5 Exch 234 at 236; 155 ER 100 at 101 per Parke B; Wheatley v Boyd (1851) 7 Exch 20 at 21; 155 ER 838; Wilkinson v Anglo-Californian Gold Mining Co (1852) 18 QB 728; 118 ER 275; Swatman v Ambler (1852) 8 Exch 72; 155 ER 1264; Toler v Slater (1867) LR 3 QB 42 at 45-6; 37 LJQB 33 per Cockburn CJ. The paragraph below is current to 07 February 2012 [140-195] Disclaimer A party to whom some benefit under a deed is directed may, in the absence of some independent obligation to accept and abide by the provisions of the deed, disclaim the benefit.1 The common law provides that one cannot make a person accept as a gift that which he or she does not desire to possess.2 If there is a transfer of property to a person, even though it carries with it some onerous obligations, it vests in the party immediately, even before the party has knowledge of the transfer, subject however to the partys right to repudiate the gift.3 An assurance or transfer of property operates immediately to pass the property to the donee, even though the donee has not executed or assented to the deed which effects the transfer. However, the donee retains the overriding right to repudiate the benefit thereby assured.4 It is presumed that a party assents to a devise in his or her favour unless the benefit of the devise is disclaimed either by conduct, record or deed.5

Upon disclaimer by the donee, the property or interest sought to be transferred divests the donee and revests in the donor.6 Notes 1 Butler and Bakers Case (1591) 3 Co Rep 25a at 26b; 76 ER 684 at 689 ; Siggers v Evans (1855) 5 El & Bl 367 at 380; 119 ER 518 at 523 ; Peacock v Eastland (1870) LR 10 Eq 17; Standing v Bowring (1885) 31 Ch D 282 at 286, 287-8; [1881-85] All ER Rep 702 at 704, 705; (1885) 54 LT 191; 34 WR 204 per Lord Halsbury LC and Cotton LJ respectively , CA; Re Birchall; Birchall v Ashton (1889) 40 Ch D 436 at 439 ; Mallott v Wilson [1903] 2 Ch 494 at 5012; [1900-3] All ER Rep 326 at 329-30 ; Matthews v Matthews (1913) 17 CLR 8; [1913] VLR 466 at 478-9; (1913) 19 ALR 487 per Barton ACJ . See also [140-235], [140-240].2 Standing v Bowring (1885) 31 Ch D 282 at 286; [1881-85] All ER Rep 702 at 704; (1885) 54 LT 191; 34 WR 204 per Lord Halsbury LC .3 Standing v Bowring (1885) 31 Ch D 282 at 288; [1881-85] All ER Rep 702; (1885) 54 LT 191; 34 WR 204 per Cotton LJ ; Federal Commissioner of Taxation v Cornell (1946) 73 CLR 394 at 401-2; 20 ALJR 318 per Latham CJ ; Grey v Australian Motorists & General Insurance Co Pty Ltd [1976] 1 NSWLR 669 at 673 per Glass JA ; Vegners v FCT (1991) 21 ATR 1347 at 1349; 91 ATC 4213 , Fed C of A, Full Court.4 Butler and Bakers Case (1591) 3 Co Rep 25a; 76 ER 684 ; Thompson v Leach (1690) 2 Vent 198 at 202; 86 ER 391 at 393 ; Siggers v Evans (1855) 5 El & Bl 367 at 380; 119 ER 518 at 523 ; Standing v Bowring (1885) 31 Ch D 282 at 286; [1881-85] All ER Rep 702 at 704; (1885) 54 LT 191; 34 WR 204 per Lord Halsbury LC .5 Re Birchall; Birchall v Ashton (1889) 40 Ch D 436 at 439 per Lindley LJ .6 Standing v Bowring (1885) 31 Ch D 282 at 286; [1881-85] All ER Rep 702 at 704; (1885) 54 LT 191; 34 WR 204 per Lord Halsbury LC . The paragraph below is current to 07 February 2012 [140-200] Acceptance of benefit without execution At common law, a person named in a deed who knowingly accepts some benefit conferred by the deed is bound by the deed, even though he or she has not executed it and must thereby observe and perform all such covenants on his or her part upon which receipt of the benefit was conditional.1 It has been held that a person who has not executed a deed, but who has accepted benefits under it, is not liable to be sued upon those covenants of the deed which are expressed to be given by him or her unless the deed creates an estate or term in land.2 If a person conveys or leases land to another by a deed containing conditions or covenants on the part of the conveyee or lessee which touch and concern the estate or term, that person is bound in covenant to perform those conditions or covenants, notwithstanding that he or she has not executed the deed.3 Further, although at common law a conveyee of land is generally not bound by covenants given by the conveyor,4 an assignee of a lease is, by reason of privity of estate with the assignor (lessee), bound by all the covenants of the lease which touch and concern the term demised, notwithstanding that the assignee is not a party to, and has not executed, the lease.5 These rules, at least in New South Wales, are confined to deeds which are concerned with estates or terms in land, and to covenants which touch and concern such estates or terms and have no application to covenants which are collateral or in gross. Thus if a deed, unconnected with land, confers benefits and imposes obligations on a person who omits to execute it but who accepts the benefit, although this may be evidence of an implied agreement (perhaps constituting a collateral contract)6 to be bound by the terms of the deed, the donee does not become liable on the deed itself nor liable to be sued in covenant.7 Notes 1 Brett v Cumberland (1619) 1 Roll Rep 63; 81 ER 661 ; Webb v Spicer (1849) 13 QB 886 at 893; 116 ER 1502 at 1505; Macdonald v Law Union Fire and Life Insurance Co (1874) LR 9 QB 328 at 330, 332 per Blackburn J; May v Belleville [1905] 2 Ch 605 ; Elliston v Reacher [1908] 2

Ch 665 at 669 per Cozens-Hardy MR ; Commonwealth Dairy Produce Equalisation Committee Ltd v McCabe (1938) 38 SR (NSW) 397 at 402; 55 WN (NSW) 144 per Jordan CJ ; Lady Naas v Westminster Bank Ltd [1940] AC 366 at 373; [1940] 1 All ER 485 at 488; (1940) 109 LJ Ch 138; 162 LT 277; per Viscount Maugham ; Halsall v Brizell [1957] Ch 169 at 182-3; [1957] 1 All ER 371 at 377 ; Monarch Petroleum NL v Citco Australia Petroleum Ltd [1986] WAR 310 at 359 per Kennedy J ; Edwards v Skilled Engineering Pty Ltd (unreported, CA(NSW), Kirby P, Priestly and Meagher JJA, No 168/1988, 14 March 1989, BC8902414).2 Commonwealth Dairy Produce Equalisation Committee Ltd v McCabe (1938) 38 SR (NSW) 397 at 402; 55 WN (NSW) 144 per Jordan CJ .3 Commonwealth Dairy Produce Equalisation Committee Ltd v McCabe (1938) 38 SR (NSW) 397; 55 WN (NSW) 144 .4 For discussion of the burden and benefit of covenants which run with the land see real property [355-12500]-[355-12655].5 Commonwealth Dairy Produce Equalisation Committee Ltd v McCabe (1938) 38 SR (NSW) 397 at 402-3; 55 WN (NSW) 144 per Jordan CJ . See further real property [355-2170]-[355-2215], [355-12500]-[35512655].6 A collateral contract is a contract where the consideration is the entry into another contract, and co-exists side by side with the main contract.7 Commonwealth Dairy Produce Equalisation Committee Ltd v McCabe (1938) 38 SR (NSW) 397 at 403; 55 WN (NSW) 144 per Jordan CJ . The paragraph below is current to 07 February 2012 [140-205] Concealment of execution If a deed is validly executed and as a consequence of execution purports, for example, to confer a benefit upon some person, the benefit will immediately vest in the person so named and the deed will take effect notwithstanding that at the time of the execution the benefit (and the fact of execution) is concealed or he or she does not know of the conferral of the benefit or of the execution of the deed.1 This is subject to the donees right to disclaim the benefit.2 Notes 1 Thompson v Leach (1690) 2 Vent 198; 86 ER 391 at 393 ; Hall v Palmer (1844) 3 Hare 532; 67 ER 491 (failure to part with possession of instrument does not effect its validity); Fletcher v Fletcher (1844) 4 Hare 67; 67 ER 564 (failure to part with possession of instrument does not effect its validity); Jones v Jones (1874) 31 LT 535; Standing v Bowring (1885) 31 Ch D 282; [1881-85] All ER Rep 702; (1885) 54 LT 191; 34 WR 204 ; Re McCallum; McCallum v McCallum [1901] 1 Ch 143 ; Mallott v Wilson [1903] 2 Ch 494; [1900-3] All ER Rep 326 .2 See [140-195], [140-235], [140-240]. The paragraph below is current to 07 February 2012 [140-210] Enforcement by a non-party At common law, a person cannot sue to enforce a covenant for his or her benefit which is contained in a deed inter partes1 unless he or she is named as a party to the deed.2 However, a person who executes a deed, when not named as a party, may be liable for any obligation which he or she expresses to undertake.3 As a general rule, a deed cannot be enforced except by a party to the deed, although equity recognises the exception that if the deed is intended to secure some benefit for the third party (that is, the person not named as a party to the deed), such that the third party has a beneficial interest as a cestui que trust under the deed, then equity will allow the third party to enforce the covenant.4 Notes 1 For deeds inter partes see [140-10] note 8.2 See [140-185]. This proposition is subject to the exceptions noted at [140-185].3 Salter v Kidley (1688) 1 Show 58; 89 ER 447 .4 Touche v Metropolitan Railway Warehousing Co (1871) LR 6 Ch App 671 at 677; Re Empress Engineering Co (1880) 16 Ch D 125 at 129 (dicta); Lloyds v Harper (1880) 16 Ch D 290 at 315 per James

LJ, at 317 per Cotton LJ; 50 LJ Ch 140; 43 LT 481 ; Re Flavell (decd); Murray v Flavell (1883) 25 Ch D 89; [1881-85] All ER Rep 267 ; Gandy v Gandy (1885) 30 Ch D 57 at 67, 69, 70, 73-4; 53 LT 306 ; Kershaw Re Equiticorp Tasman Ltd (2005) 54 ACSR 214; [2005] NSWSC 313; BC200502112 at [36] .

Source

[Halsbury's Laws of Australia]

View Full Date/Time Thursday, October, 25, 2012, 12:30 EST 1 of 1 About LexisNexis | Terms & Conditions | My ID Copyright 2012 LexisNexis . All rights reserved. Back to Top

(F) Avoidance of Deeds The paragraph below is current to 07 February 2012 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [140-215] Grounds for avoidance Notwithstanding that a party may have executed a deed in full compliance with all of the applicable common law and statutory formalities, it may be possible, in certain instances, for the party to subsequently avoid the operation of the deed on the basis of some overriding vitiating factor which renders the deed either voidable or void ab initio.1 If a party executes an instrument (whether a deed or under hand) upon the inducement2 of some false3 representation or misstatement of a material fact, 4 the deed is voidable by the party so deceived or misled.5 Misrepresentation may be either fraudulent, negligent or innocent, with damages being the major remedy for fraudulent and negligent misrepresentation and rescission the remedy for innocent misrepresentation.6 There is also extensive legislation both federally and in the individual Australian jurisdictions dealing with contracts entered into on the basis of an operative misrepresentation.7 Similarly, where one or more parties enters an agreement as a consequence of some common, mutual or unilateral mistake,8 the contract may be either void or voidable at the suit of either party.9 Other common vitiating factors are duress10 and undue influence.11 More recently, the doctrine of unconscionable conduct has been used by the courts as a basis for relief in some contractual

situations.12 A deed (or, indeed, an instrument under hand) may also be void for want of capacity on the basis of minority,13 mental disability14 or intoxication.15 The (CTH) Corporations Act 2001 appears to have effectively done away with the doctrine of ultra vires as it applied to companies acting otherwise than in pursuance of the stated objects of the company by conferring on corporations the legal capacity of a natural person.16 Even where a corporation acts contrary to an express restriction in its constitution or otherwise in pursuance of its stated objectives this will not invalidate the act of the company.17 A deed may be void on the grounds of illegality or because it is contrary to public policy.18 In the case of bankruptcy, a deed may be void (or be subsequently declared void) if it was entered into with the intention of defeating creditors19 or if it has the effect of conferring a preference upon a creditor.20 Statutes in all jurisdictions provide that any alienation of property made with intent to defraud creditors is voidable at the option of the party prejudiced.21 A voluntary alienation of land made with intent to defraud a subsequent purchaser is similarly voidable at the instance of the subsequent purchaser.22 Notes 1 See generally contract [110-5001]-[110-6055].2 See contract [110-5110]-[110-5125].3 See contract [110-5080]-[110-5105].4 See contract [110-5045]-[110-5075], [110-5130], [110-5135].5 See contract [110-5025].6 See contract [110-5140]-[110-5265].7 See contract [110-5270]-[1105375]. See also consumer protection [100-110]-[100-355].8 As to the distinction between the different kinds of mistake see contract [110-5385]-[110-5405].9 See contract [110-5380].10 See contract [110-5665]-[110-5805].11 See contract [110-5810]-[110-5870].12 See contract [1105875]-[110-5960].13 See contract [110-2580]-[110-2745].14 See contract [110-2750]-[1102800].15 See contract [110-2750]-[110-2800].16 (CTH) Corporations Act 2001 s 124(1).17 Ibid s 125. See corporations [120-3015] and contract [110-2805]-[110-2865]. As to the contractual capacity of unincorporated associations see also contract [110-2870]-[110-2880] and voluntary associations [435-210]-[435-220].18 See contract [110-7001]-[110-7445].19 (CTH) Bankruptcy Act 1966 s 121(1). See also bankruptcy [50-865], [50-870] and contract [110-2910]-[1102920].20 Ibid s 122. See also bankruptcy [50-885]-[50-925] and contract [110-2910]-[1102920].21 (ACT) Civil Law (Property) Act 2006 s 239 (NT) Law of Property Act 2000 s 208(1) (NSW) Conveyancing Act 1919 s 37A(1) (QLD) Property Law Act 1974 s 228(1) (SA) Law of Property Act 1936 s 86(1) (TAS) Conveyancing and Law of Property Act 1884 s 40(1) (VIC) Property Law Act 1958 s 172(1) (WA) Property Law Act 1969 s 89(1). 22 (ACT) Civil Law (Property) Act 2006 s 240 (NT) Law of Property Act 2000 s 209(1) (NSW) Conveyancing Act 1919 s 37B(1)

(QLD) Property Law Act 1974 s 229(1) (SA) Law of Property Act 1936 s 87(1) (TAS) Conveyancing and Law of Property Act 1884 s 41(1) (VIC) Property Law Act 1958 s 173 (WA) Property Law Act 1969 s 90.

Source

[Halsbury's Laws of Australia]

View Full Date/Time Thursday, October, 25, 2012, 12:30 EST 1 of 1 About LexisNexis | Terms & Conditions | My ID Copyright 2012 LexisNexis . All rights reserved. Back to Top

(G) Non Est Factum The paragraph below is current to 07 February 2012 [140-220] Generally The plea of non est factum (literally, this is not my deed) will generally be available to relieve a party who for permanent or temporary reasons (not limited to blindness or illiteracy) and through no fault of their own is not capable of both reading and sufficiently understanding the deed or other document to be signed.1 The plea is not available to anyone who was content to sign without taking the trouble to try to find out at least the general effect of the document. The broad principle is that whenever a person of full age and understanding, who may read and write, signs a legal document which is put before them for signature that is, a document which on the face of it is intended to have legal consequences then, if the person does not take the trouble to read it, but signs it as is, relying on the word of another as to its character or contents or effect, he or she cannot be heard to say that it is not their document.2 By their conduct in signing, the party represents that it is his or her document and once another acts upon it as being the document of that party, he or she cannot go back on it and say it was a nullity from the beginning.3 Notes 1 Saunders v Anglia Building Society [1971] AC 1004 at 1034; [1970] 3 All ER 961 at 978-9 per Lord Pearson ; Petelin v Cullen (1975) 132 CLR 355 at 359-60; 6 ALR 129 at 133 ; Vella v Permanent Mortgages Pty Ltd [2008] NSWSC 505; BC200803886 at [621] per Young CJ ;

Ford v Perpetual Trustees Victoria Ltd (2009) 75 NSWLR 42; 257 ALR 658; 14 BPR 26,895; [2009] NSWCA 186; BC200905872 at [37] per Allsop P and Young JA (Sackville AJA concurring). See further contract [110-5625]-[110-5660].2 Gallie v Lee [1969] 2 Ch 17 at 36-7; [1969] 1 All ER 1062 at 1072 per Lord Denning MR (affirmed sub nom Saunders v Anglia Building Society [1971] AC 1004; [1970] 3 All ER 961 , HL); Vella v Permanent Mortgages Pty Ltd [2008] NSWSC 505; BC200803886 at [621] per Young CJ .3 Gallie v Lee [1969] 2 Ch 17 at 36-7; [1969] 1 All ER 1062 at 1072 per Lord Denning MR (affirmed sub nom Saunders v Anglia Building Society [1971] AC 1004; [1970] 3 All ER 961 , HL). The paragraph below is current to 07 February 2012 [140-225] Necessary conditions The plea of non est factum will be applicable in circumstances where the person sought to be held liable did not in fact sign the document.1 Of more importance are the circumstances in which the plea enables a person who did sign the document to say that it is not his or her deed. The plea originally extended to those who were unable to read owing to blindness or illiteracy and who needed to trust someone to tell them what they were signing.2 The plea is also available to those who are permanently or temporarily unable, through no fault of their own, to have without explanation any real understanding of the purport of a particular document, whether this be from defective education, illness or innate incapacity.3 A party seeking to rely on the plea must have taken reasonable precautions to ascertain the character of the document before signing it.4 The taking of such precautions is fundamental when the plea is asserted against an innocent person who relies on the document and signature and who is unaware of the circumstances in which the document came to be executed.5 The plea is not available to anyone (including persons who are blind or illiterate) who is content to sign without taking the trouble to try to find out at least the general effect of the document.6 In order to successfully plead non est factum, the party raising it must show that he or she signed the document in the mistaken belief that it was radically different from what he or she believed it to be and that, at least as against innocent persons, the failure to read and understand it was not due to carelessness on his or her part.7 The plea is not available to a person whose mistake was really a mistake as to the legal effect of the document, whether that was the persons own mistake or that of his or her advisor.8 A plea that a deed is void or voidable on the ground of mental incapacity is incompatible with the plea of non est factum, as the first admits the signing of the deed but denies capacity to understand it and the second denies the signature to the deed.9 Proof of mental incapacity may support a plea of non est factum. However, in order to do so the mental incapacity must be such as to deprive its victim of an understanding of what they are signing so that their mind cannot go with their signature.10 In circumstances where the plea of non est factum cannot be made out, another ground for avoiding the deed may nevertheless be available, such as misrepresentation, mistake or unconscionable conduct,11 or where, for example, there has been a material alteration of the deed following execution.12 There is a heavy burden of proof for a person seeking to invoke the remedy of non est factum.13 Notes 1 Saunders v Anglia Building Society [1971] AC 1004 at 1015; [1970] 3 All ER 961 at 963 per Lord Reid .2 Saunders v Anglia Building Society [1971] AC 1004 at 1015-16; [1970] 3 All ER

961 at 963 per Lord Reid .3 Saunders v Anglia Building Society [1971] AC 1004 at 1016; [1970] 3 All ER 961 at 963 per Lord Reid ; Ford v Perpetual Trustees Victoria Ltd (2009) 75 NSWLR 42; 257 ALR 658; 14 BPR 26,895; [2009] NSWCA 186; BC200905872 at [41] per Allsop P and Young JA (Sackville AJA concurring) .4 Petelin v Cullen (1975) 132 CLR 355 at 360; 6 ALR 129 at 134 .5 Petelin v Cullen (1975) 132 CLR 355 at 360; 6 ALR 129 at 134 .6 Saunders v Anglia Building Society [1971] AC 1004 at 1016; [1970] 3 All ER 961 at 963 per Lord Reid .7 Petelin v Cullen (1975) 132 CLR 355 at 360; 6 ALR 129 at 134 .8 Saunders v Anglia Building Society [1971] AC 1004 at 1016; [1970] 3 All ER 961 at 963 per Lord Reid ; Citic Commodity Trading Pty Ltd v JBL Enterprises (WA) Pty Ltd (unreported, Fed C of A, Heerey J, 16 March 1998, BC9800781) at 9 (a person was found to be negligent in not reading the documents and not seeking the advice of his own solicitors).9 Gibbons v Wright (1954) 91 CLR 423 at 442-4, 446; [1954] ALR 383; (1954) 28 ALJ 111; BC5400600 .10 Crago v McIntyre [1976] 1 NSWLR 729 at 737 .11 See [140-215].12 See [140-245]-[140-270].13 Newman v Ivermee (1989) NSW ConvR 55-493; BC8901600 at 28 per Cohen J. The paragraph below is current to 07 February 2012 [140-230] Forgery In the same manner in which a plea of non est factum is available where the person sought to be held liable did not in fact sign the document,1 a deed in which the seal or signature is forged is a nullity.2 However, if the person whose seal or signature has been forged represents the deed as his or hers and does not disclaim the deed, this person may be estopped from subsequently denying the deed.3 The onus of proof of forgery lies with the person whose seal or signature is claimed to have been forged.4 Notes 1 Re De Leeuw; Jakens v Central Advance and Discount Corp [1922] 2 Ch 540; [1922] All ER Rep 528 ; Saunders v Anglia Building Society [1971] AC 1004 at 1015; [1970] 3 All ER 961 at 963 per Lord Reid .2 Governor and Co of Bank of Ireland v Trustees of Evans Charities in Ireland (1855) 5 HL Cas 389; 10 ER 950 ; Re Cooper; Cooper v Vesey (1882) 20 Ch D 611; [1881-85] All ER Rep Ext 1643 ; Merchants of the Staple of England v Bank of England (1887) 21 QBD 160 ; Barton v North Staffordshire Railway Co (1888) 38 Ch D 458; [1886-90] All ER Rep 288 ; Brocklesby v Temperance Permanent Building Society [1895] AC 173 at 184; [189599] All ER Rep Ext 2099 ; Ruben v Great Fingall Consolidated [1904] 2 KB 712 , CA (affirmed Ruben v Great Fingall Consolidated [1906] AC 439; [1904-7] All ER Rep 460 , HL); South London Greyhound Racecourses Ltd v Wake [1931] 1 Ch 496; [1930] All ER Rep 496 .3 Leach v Buchanan (1802) 4 Esp 226; 170 ER 700; Ashpitel v Bryan (1863) 3 B & S 474 at 492-3; 122 ER 179 at 185-9; MKenzie v British Linen Co (1881) LR 6 App Cas 82, HL; Bank of England v Cutler [1908] 2 KB 208 ; Greenwood v Martins Bank Ltd [1933] AC 51; [1932] All ER Rep 318 ; Fung Kai Sun v Chan Fui Hing [1951] AC 489 .4 Damjanovic v York Agencies Pty Ltd [2003] NSWCA 222; BC200305304 at [80] per James J .

Source

[Halsbury's Laws of Australia]

View Full Date/Time Thursday, October, 25, 2012, 12:32 EST 1 of 1 About LexisNexis | Terms & Conditions | My ID Copyright 2012 LexisNexis . All rights reserved. Back to Top

(H) Disclaimer The paragraph below is current to 07 February 2012 [140-235] Right to disclaim A grantor cannot make a grantee accept a gift that the grantee does not desire to possess.1 However, if there is some transfer of property to a person, and though it may carry with it some obligations which may be onerous, the assurance vests in the grantee at once, even before the grantee has knowledge of the transfer, subject to the grantees right when informed of the transfer to refuse to take it.2 When informed of the transfer the grantee may disclaim or repudiate it, but the gift vests in the grantee until such time as he or she repudiates it.3 The law presumes that every grant is for the benefit of the grantee and as such presumes a grantees assent to the grant unless the grant is disclaimed by record or deed, orally or by conduct.4 A disclaimer may only be made with knowledge of the interest alleged to be disclaimed and with an intention to disclaim it.5 Disclaimer of a deed is a solemn irrevocable act and a court must be satisfied that it is fully proved by the party alleging it, who must also establish that it was made with full knowledge and intention.6 A disclaimer of an attempt inter vivos to make a gift cannot subsequently be withdrawn, and the rebuffed would-be donor, no longer willing to make the gift, will not be held to his or her offer to make the gift.7 Upon disclaimer by the donee the grant becomes void and the property or interest sought to be transferred divests the donee and revests the donor.8 However, a disclaimer operates by way of avoidance and not by way of disposition, so in the case of a transfer of shares which is disclaimed, the gift is avoided by disclaimer and the companys register is rectifiable as of right without the execution of any transfer.9 A trustee who disclaims a trust does not destroy the trust but the trust property revests in the settlor and the trust is imposed on the legal owner in whom, by operation of law, the estate is revested (that is, the settlor) after the creation of the trust.10 At common law, if a deed to which several persons are expressed to be parties is executed by one of them unconditionally, and not as an escrow subject to a condition that it is not to be binding unless the others execute it too, it is binding at law upon the party who executed it, notwithstanding that all or some of the other parties do not execute it.11 However, if one of the covenantees who has not accepted benefits under the deed disclaims it, this operates at least as a pro tanto avoidance of the deed at common law.12 In equity, if the deed was executed unconditionally by the obligor on an express or tacit understanding that the other parties were to execute it also, or were to be bound by it, equity will relieve the obligor from the deed if it is shown that one of the parties who has not adopted the deed has repudiated it or is otherwise incapable of being bound by it.13 Notes 1 Standing v Bowring (1885) 31 Ch D 282 at 286; [1881-85] All ER Rep 702 at 704; (1885) 54 LT

191; 34 WR 204 per Lord Halsbury LC .2 Butler and Bakers Case (1591) 3 Co Rep 25a; 76 ER 684 at 689 ; Siggers v Evans (1855) 5 El & Bl 367 at 380; 119 ER 518 at 523 ; Standing v Bowring (1885) 31 Ch D 282 at 286, 288; [1881-85] All ER Rep 702 at 704, 705; (1885) 54 LT 191; 34 WR 204 per Lord Halsbury LC and Cotton LJ respectively ; Mallott v Wilson [1903] 2 Ch 494 at 501-2; [1900-3] All ER Rep 326 at 329 .3 Standing v Bowring (1885) 31 Ch D 282 at 288; [1881-85] All ER Rep 702 at 705; (1885) 54 LT 191; 34 WR 204 per Cotton LJ 4 Townson v Tickell (1819) 3 B & Ald 31; [1814-23] All ER Rep 164; (1819) 106 ER 575 ; Re Birchall; Birchall v Ashton (1889) 40 Ch D 436 at 439 per Lindley LJ ; Mallott v Wilson [1903] 2 Ch 494 at 501; [1900-3] All ER Rep 326 at 329 ; Re Clout and Frewers Contract [1924] 2 Ch 230; [1924] All ER Rep 798 .5 Lady Naas v Westminster Bank Ltd [1940] AC 366 at 396; [1940] 1 All ER 485 at 504; (1940) 109 LJ Ch 138; 162 LT 277 per Lord Russell .6 Lady Naas v Westminster Bank Ltd [1940] AC 366 at 400; [1940] 1 All ER 485 at 506; (1940) 109 LJ Ch 138; 162 LT 277 per Lord Wright . Compare Re Paradise Motor Co Ltd [1968] 2 All ER 625 at 632; [1968] 1 WLR 1125 (where sufficient knowledge held to be suitable); Tantau v MacFarlane [2010] NSWSC 224; BC201001615 at [108] .7 Re Paradise Motor Co Ltd [1968] 2 All ER 625 at 632; [1968] 1 WLR 1125 .8 Standing v Bowring (1885) 31 Ch D 282 at 286; [1881-85] All ER Rep 702 at 704; (1885) 54 LT 191; 34 WR 204 per Lord Halsbury LC . See [140-195].9 Re Paradise Motor Co Ltd [1968] 2 All ER 625 at 632; [1968] 1 WLR 1125 ; Re Strattons Deed of Disclaimer; Stratton v IRC [1958] Ch 42 at 54; [1957] 2 All ER 594 .10 Mallott v Wilson [1903] 2 Ch 494 at 502-3; [1900-3] All ER Rep 326 at 330 .11 Wilson v Frost (1935) 52 WN (NSW) 212 at 213; 35 SR (NSW) 521 at 525 per Jordan CJ . See [140-60], [140-70], [140-190].12 Wilson v Frost (1935) 52 WN (NSW) 212 at 213; 35 SR (NSW) 521 at 525 per Jordan CJ .13 Wilson v Frost (1935) 52 WN (NSW) 212 at 213; 35 SR (NSW) 521 at 525 per Jordan CJ . See [14060], [140-70], [140-190]. The paragraph below is current to 07 February 2012 [140-240] When no right to disclaim A disclaimer, in order to be effective, must be an act whereby a person entitled to an estate immediately, and before dealing with it, renounces it.1 However, if a person has assented to a transfer and has taken possession of the estate and acted as its owner, this person cannot subsequently disclaim the property.2 Similarly, a person who is under some legal or equitable obligation to accept the property cannot disclaim.3 A trustee cannot accept a portion of a trust and disclaim the other portion, that is, the trustee must disclaim in toto or remain a trustee as to all.4 A party to a fraudulent transaction will not be permitted to rely on his or her own fraud in order to invalidate the partys deed.5 Similarly, if two persons agree to commit a fraud, neither will receive assistance from the court to relieve either or both from the consequences of the fraud as neither may impugn the deed and both are bound by it.6 Notes 1 Bence v Gilpin (1868) LR 3 Ex 76 at 81 per Kelly CB. See [140-235]. As to disclaimer see also succession [395-1205].2 Bence v Gilpin (1868) LR 3 Ex 76 at 81 per Kelly CB. See [140-235].3 See [140-195], [140-235].4 Re Lord and Fullertons Contract [1896] 1 Ch 228 at 233 per AL Smith LJ ; Re Will of Meshakov-Korjakin (decd) [2011] VSC 372; BC201106280 at [46] .5 Doe d Roberts v Roberts (1819) 2 B & Ald 367 at 369; 106 ER 401 at 401-2 per Holroyd J ; Fricker v Blower (1956) SR (NSW) 277 at 281;(1956) 73 WN (NSW) 409 at 413 .6 Doe d Roberts v Roberts (1819) 2 B & Ald 367 at 369; 106 ER 401 ; Fricker v Blower (1956) SR (NSW) 277 at 282; (1956) 73 WN (NSW) 409 at 413 .

Source

[Halsbury's Laws of Australia]

View Full Date/Time Thursday, October, 25, 2012, 12:32 EST 1 of 1 About LexisNexis | Terms & Conditions | My ID Copyright 2012 LexisNexis . All rights reserved. Back to Top

(I) Alteration The paragraph below is current to 07 February 2012 [140-245] Before execution Any writing which is to be executed as a deed may be altered in any way before execution without affecting the validity of the deed,1 and any such alteration which appears on the face of the deed is presumed, in the absence of evidence to the contrary, to have been effected prior to execution.2 Notes 1 Cole v Parkin (1810) 12 East 471; [1803-13] All ER Rep 560; (1810) 104 ER 184; Matson v Booth (1816) 5 M & S 223 at 226; 105 ER 1033 at 1034 per Bayley J; Doe d Lewis v Bingham (1821) 4 B & Ald 672; [1814-23] All ER Rep 540; (1821) 106 ER 1082; Hall v Chandless (1827) 4 Bing 123; 130 ER 714 (if one or more of several parties has signed the instrument and one partys interests would be affected by alteration, that partys consent and privity is required); Jones v Jones (1833) 1 Cr & M 721 at 723; 149 ER 589 at 590 per Bayley J; Koenigsblatt v Sweet [1923] 2 Ch 314 at 326; (1923) 92 LJ Ch 598; 129 LT 659 per Lord Sterndale MR (any alteration prior to the time the instrument became an agreement does not come within the rule which forbids the alteration of a written document, for such an alteration is merely the alteration of a proposal for an agreement); Morton v Black (1986) 4 BPR 9164 at 9165-6; (1987) ANZ ConvR 204; (1986) NSW ConvR 55-314; BC8600997 per Young J, SC(NSW) .2 Doctor Leyfields Case (1611) 10 Co Rep 88a at 92b; 77 ER 1057; Trowel v Castle (1661) 1 Keb 21 at 22; 83 ER 787; Fitzgerald v Lord Fauconberge (1729) Fitz-G 207 at 214; 94 ER 722 at 725 per Reynolds LCB; Doe d Tatum v Catomore (1851) 16 QB 745; 117 ER 1066 ; Simmons v Rudall (1851) 1 Sim NS 115 at 136; 61 ER 45 at 53 ; Williams v Ashton (1860) 1 John & H 115 at 118; 70 ER 685 at 686 per Page Wood VC. Compare the situation with testamentary instruments: see succession [395-1]-[395-45]. The paragraph below is current to 07 February 2012 [140-250] Alteration after execution The original common law position was expressed in Pigots Case1 and provided that when a deed was altered in any material way by either a party to the deed, or by a stranger without the privity or consent of the obligee (the party who takes a benefit under the deed), whether by interlineation, addition, erasure or by drawing a pen through a line, the deed would be rendered void as from the time of the alteration.2 Notwithstanding the position in Pigots Case,3 in Australia, it appears that an alteration which does not prejudicially affect any party liable will be regarded as immaterial and as such will not

render the deed void.4 The question of materiality depends on whether the altered writing purports to affect the legal relations previously existing that is, whether the alteration would result in a change in the contractual obligations between the parties, as they previously existed, so as to vary injuriously the rights against, and the duties to, the party making the alteration.5 Courts are not inclined to regard a deed as void for any form of unauthorised immaterial alteration, and the court is entitled to look at the nature of the alteration and there is no automatic sanction for the violation of the documents integrity.6 If an alteration was made to express more clearly the intent of the parties or to correct a real or supposed mistake, the instrument will generally not be avoided.7 If an agreement in fact has been reached between the parties and one of them subsequently executes the formal document and hands it over to the other, there is an implied authority conferred on the other party to fill up any blanks and otherwise alter the document if necessary to make it conform to the common contractual intention of the parties where by mistake it does not already do so.8 If a party seeks to allege that an instrument has been altered subsequent to execution, the onus of proving that the alteration is material is on the party who alleges it.9 If an alteration is made to a written instrument before it has come into operation as a binding agreement, the alteration either being made with the prior authority of the parties or being subsequently ratified by those parties, the signatures already on the document at the time when the alterations are made will operate in respect of the altered document.10 If a document is intended by both parties to be registered under the Torrens system and one party hands it to the other intending that the other should register it, or knowing that the other will endeavour to register it, an implied authority to the other will readily be presumed to make whatever alterations or additions are necessary to achieve registration provided that such additions or alterations do not have the effect of altering the bargain between the parties or varying their rights and obligations inter se.11 To the extent that Pigots Case remains applicable in respect of material alterations to a deed, the rule has no operation in respect of an instrument which takes its effectiveness from registration under the Torrens system of indefeasibility of title.12 Notes 1 Pigots Case (1614) 11 Co Rep 26b at 27a; [1558-1774] All ER Rep 50; (1614) 77 ER 1177 at 1178 . Compare Bishop of Crediton v Bishop of Exeter [1905] 2 Ch 455 at 458-9; [1904-7] All ER Rep 552 per Swinfen Eady J ; Aldous v Cornwell (1868) LR 3 QB 573. The rule in Pigots Case, that is, an alteration to a deed, has been applied to other written instruments, but the modern cases doubt the present justification for the rule and consider fraudulent intention in the alteration to be of importance: Leybourne v Permanent Custodians Ltd [2010] NSWCA 78; BC201002464 at [102] per Giles and Tobias JJA and Sackville AJA .2 Pigots Case (1614) 11 Co Rep 26b at 27a; [1558-1774] All ER Rep 50; (1614) 77 ER 1177 at 1178 . See the discussion of this rule in Armor Coatings (Marketing) Pty Ltd v General Credits (Finance) Pty Ltd (1978) 17 SASR 259 at 274-82; (1979) ANZ ConvR 97 per Bray CJ . See also Morton v Black (1986) 4 BPR 9164 at 9165-7; (1987) ANZ ConvR 204; (1986) NSW ConvR 55-314; BC8600997 per Young J, SC(NSW) . The rule in Pigots Case (1614) 11 Co Rep 26b; [15581774] All ER Rep 50; (1614) 77 ER 1177 is subject to the qualification that a material or immaterial alteration by the person who is bound by the deed (that is, the obligor) will not avoid the deed on the basis that the obligor must not be permitted to take advantage of his or her wrongdoing in order to avoid an obligation under the deed: Preston R (ed), Sheppards Touchstone of Common Assurances, 7th ed, London, 1820, pp 68-9. As to alteration by strangers see [140-260]; Karacominakis v Big Country Developments Pty Ltd (2000) 10 BPR 18,235; (2001) ANZ ConvR 513; [2000] NSWCA 313; BC200007016 at [47], [48] per Giles JA

(Handley and Stein JJA concurring).3 Pigots Case (1614) 11 Co Rep 26b at 27a; [1558-1774] All ER Rep 50; (1614) 77 ER 1177 (that it is not relevant that the alteration was ultimately immaterial or was for the benefit of the party now seeking to avoid the instrument (for example, by the obligee extending the obligors time for performance)).4 Armor Coatings (Marketing) Pty Ltd v General Credits (Finance) Pty Ltd (1978) 17 SASR 259 at 281-2; (1979) ANZ ConvR 97 per Bray CJ . See also (SASR) at 276 per Bray CJ (there is little reason for preserving, in a rational system of law, a rule which instead of adjusting the equities of the case to the circumstances and nature of the alteration visits the document with total nullity). See further Warburton v National Westminster Finance Australia Ltd (1988) 15 NSWLR 238 at 244-8; (1989) ANZ ConvR 229; (1989) ASC 55-719; (1989) NSW ConvR 55-477 per Hope JA, CA(NSW) . See also Brunker v Perpetual Trustee Co (Ltd) (1937) 57 CLR 555 at 592; [1937] ALR 349; (1937) 11 ALJ 108 per Latham CJ (dissenting).5 Armor Coatings (Marketing) Pty Ltd v General Credits (Finance) Pty Ltd (1978) 17 SASR 259 at 283; (1979) ANZ ConvR 97 per Walters J .6 Armor Coatings (Marketing) Pty Ltd v General Credits (Finance) Pty Ltd (1978) 17 SASR 259 at 275; (1979) ANZ ConvR 97 per Bray CJ .7 Armor Coatings (Marketing) Pty Ltd v General Credits (Finance) Pty Ltd (1978) 17 SASR 259 at 275; (1979) ANZ ConvR 97 per Bray CJ ; Warburton v National Westminster Finance Australia Ltd (1988) 15 NSWLR 238 at 248; (1989) ANZ ConvR 229; (1989) ASC 55-719; (1989) NSW ConvR 55-477 per Hope JA, CA(NSW) .8 Adsetts v Hives (1863) 33 Beav 52; 55 ER 286 ; Armor Coatings (Marketing) Pty Ltd v General Credits (Finance) Pty Ltd (1978) 17 SASR 259 at 277; (1979) ANZ ConvR 97 per Bray CJ ; Warburton v National Westminster Finance Australia Ltd (1988) 15 NSWLR 238 at 247-8; (1989) ANZ ConvR 229; (1989) ASC 55-719; (1989) NSW ConvR 55-477 per Hope JA, CA(NSW) ; Walsh v Westpac Banking Corp (1991) 104 ACTR 30 at 34; 104 FLR 37 per Miles CJ , SC(ACT).9 Dahlenburg v Dahlenburg (1996) 7 BPR 14,885 at 14,888 per Young J .10 Amalgamated Television Services Pty Ltd v Television Corp Ltd [1970] 3 NSWR 85 at 90 per Hope J . Compare CTM Nominees Pty Ltd v Galba Pty Ltd (1982) 2 BPR 9588 (a solicitor held not to have actual, implied or ostensible authority to alter contract after execution); Morton v Black (1986) 4 BPR 9164 at 9165; (1987) ANZ ConvR 204; (1986) NSW ConvR 55-314; BC8600997 per Young J, SC(NSW) .11 Armor Coatings (Marketing) Pty Ltd v General Credits (Finance) Pty Ltd (1978) 17 SASR 259 at 278; (1979) ANZ ConvR 97 per Bray CJ .12 Morton v Black (1986) 4 BPR 9164 at 9166; (1987) ANZ ConvR 204; (1986) NSW ConvR 55-314; BC8600997 per Young J, SC(NSW) . There is an exception to this rule in cases of fraud: see real property [355-8000]-[355-8380]. The paragraph below is current to 07 February 2012 [140-255] Alteration by consent It is implicit from Pigots Case1 that where a deed is materially altered following execution with the consent of the parties to the deed, then the deed will not be avoided and will be enforceable against all parties who consented to the alteration.2 If agreement is reached between the parties and executed by one and handed to the other, there is an implied authority by that party to the other to fill up any blanks and correct mistakes so as to make the document conform to the intention of the parties and to rectify immaterial deficiencies in the document.3 If an instrument, following execution, is altered to such an extent as to effect a new instrument this may result in implications as to the payment of stamp duty.4 Notes 1 See [140-250].2 Zouch v Claye (1671) 2 Lev 35; 83 ER 441; Paget v Paget (1688) 2 Rep Ch 410; 21 ER 701; Bates v Grabham (1703) 3 Salk 444; 91 ER 386; French v Patton (1808) 9 East 351 at 355-7; 103 ER 606; Langhorn v Cologan (1812) 4 Taunt 330; 128 ER 357 ; Matson v Booth (1816) 5 M & S 223 at 227; 105 ER 1033 at 1034 per Bayley J; Fairlie v Christie (1817) 7 Taunt 416; 129 ER 166. See [140-250].3 See [140-45], [140-250].4 See taxation and revenue [405-37000]-[405-37160].

The paragraph below is current to 07 February 2012 [140-260] Alteration by a stranger The rule in Pigots Case states that when a deed is altered in a material way by a stranger (a person who is not a party to the deed), without the privity or consent of the obligee (the party who takes the benefit under the deed), the deed becomes void.1 A non-material alteration by a stranger, without the privity or consent of the obligee, will not avoid the deed.2 The rule applies to material alterations by any person who is neither a party to the deed nor who takes any benefit under it.3 The rule extends not only to deeds, but also to instruments under hand and negotiable instruments.4 The rule is generally applied against the person who had custody of an instrument made for his or her benefit (the obligee), notwithstanding that this person did not know of, or consent to the alteration, on the basis that, having had custody of the document, this party was bound to preserve it in its original state.5 It has been suggested, however, that if an alteration is made in fraud of, and against the will of, the party having custody of the instrument, and who is entitled to benefit under it, the document will not necessarily be invalidated.6 If a person entitled to benefit under the deed is not in possession of the deed nor has any present right to custody of it, a material alteration made without this partys consent will not prevent this party from suing on the deed.7 If an instrument is altered by the agent of a party to the instrument (effectively, a stranger to the agreement), this party cannot ask a court to thereafter give effect to the agreement, but at the same time, the party against whom the alteration was made cannot assert that the situation is now one as if the agreement never existed and as such the instrument, though materially altered, will remain the governing document in determining the rights of the parties.8 If there is an alteration to a document, the party producing the document bears the onus of explaining the alteration.9 Notes 1 Pigots Case (1614) 11 Co Rep 26b at 27a; [1558-1774] All ER Rep 50; (1614) 77 ER 1177 at 1178 . See also [140-250].2 Pigots Case (1614) 11 Co Rep 26b at 27a; [1558-1774] All ER Rep 50; (1614) 77 ER 1177 at 1178 . See also [140-250].3 Pigots Case (1614) 11 Co Rep 26b; [1558-1774] All ER Rep 50; (1614) 77 ER 1177 ; Davidson v Cooper (1843) 11 M & W 778 at 802; 152 ER 1018 at 1028 (affirmed Davidson v Cooper (1844) 13 M & W 343 at 352; 153 ER 142 at 146 per Lord Denman CJ ); Suffell v Bank of England (1882) 9 QBD 555 at 559-60 per Jessel MR, at 571 per Cotton LJ .4 Master v Miller (1791) 4 Term Rep 320; 100 ER 1042 (affirmed Master v Miller (1793) 2 Hy Bl 141; 126 ER 474 ); Davidson v Cooper (1843) 11 M & W 778 at 800-1; 152 ER 1018 at 1028 per Lord Abinger CB . Suffell v Bank of England (1882) 9 QBD 555 at 560 per Jessel MR, at 571-2 per Cotton LJ ; Leybourne v Permanent Custodians Ltd [2010] NSWCA 78; BC201002464 at [102] per Giles and Tobias JJA and Sackville AJA .5 Davidson v Cooper (1843) 11 M & W 778; 152 ER 1018 (affirmed Davidson v Cooper (1844) 13 M & W 343; 153 ER 142 ); Robinson v Mollett (1875) LR 7 HL 802; Banque Nationale de Paris v Falkirk Developments Ltd (1977) 136 CLR 177 at 187; 13 ALR 377 at 384; BC7700031 per Mason J . See Norton R F, A Treatise on Deeds, 2nd ed, Sweet & Maxwell, London, 1928, pp 34-5. Since, in Davidson v Cooper (1843) 11 M & W 778; 152 ER 1018 , the unauthorised act appears to have been that of a clerk or servant (see Robinson v Mollett (1875) LR 7 HL 802 at 814 per Blackburn J) acting bona fide, but under a mistake of law, another interpretation of this case may be to say that a person having custody of a deed, and who is entitled to some benefit under it, will be estopped from asserting that the alteration by a servant or agent was made without authority. See also Bank of Hindustan, China and Japan Ltd v Smith (1867) 36 LJCP 241; 16 LT 518 .6 Lowe v Fox (1887) 12 LR App Cas 206 at 217 per Lord Herschell (I do not feel at present prepared to say that in every case an alteration, which would invalidate the document when made with the privity and knowledge of the person having custody of it and relying upon it, would invalidate it if made in fraud of him and against his will). See also

Banque Nationale de Paris v Falkirk Developments Ltd (1977) 136 CLR 177 at 186-7; 13 ALR 377 at 384; BC7700031 per Mason J ; Karacominakis v Big Country Developments Pty Ltd (2000) 10 BPR 18,235; (2001) ANZ ConvR 513; [2000] NSWCA 313; BC200007016 at [47] per Giles JA (Stein and Handley JJA concurring).7 See Dalston v Coatsworth (1721) 1 P Wms 731 at 732-3; 24 ER 589 at 590. Such a position would flow by analogy from the reasoning in Davidson v Cooper (1843) 11 M & W 778; 152 ER 1018 and is supported by the decision in Banque Nationale de Paris v Falkirk Developments Ltd (1977) 136 CLR 177 at 186-7; 13 ALR 377 at 384; BC7700031 per Mason J .8 Pattinson v Luckley (1875) LR 10 Ex 330 at 333-6; 33 LT 360.9 Earl of Falmouth v Roberts (1842) 9 M & W 469 at 471; [1835-42] All ER Rep 369 at 370; (1842) 152 ER 198 at 199 per Parke B ; Banque Nationale de Paris v Falkirk Developments Ltd (1977) 136 CLR 177 at 187; 13 ALR 377 at 384; BC7700031 per Mason J ; Farrow Mortgage Services Pty Ltd (in liq) v Slade (1996) 38 NSWLR 636; [1996] ANZ ConvR 490; (1996) NSW ConvR 55-778; BC9600249 at [10] per Cole JA . The paragraph below is current to 07 February 2012 [140-265] Alteration by accident If a deed (or its seal) is accidentally (in whole or in part) destroyed, lost or defaced, then, despite the rule in Pigots Case,1 the deed is not thereby avoided and it may still be given in evidence.2 If it has become wholly or partially illegible, secondary evidence is admissible as to its contents.3 These principles continue to apply notwithstanding that the damage was done, albeit unintentionally, by the person entitled to benefit under the deed and having custody of it.4 Modern cases have cast doubt on the justification of the present rule in Pigots case. Fraudulent intention behind the alteration now appears to be important.5 Notes 1 See [140-250], [140-260].2 Doctor Leyfields Case (1611) 10 Co Rep 88a at 92b, 93a; 77 ER 1057; Clerke d Prin v Heath (1669) 1 Mod Rep 11; 86 ER 691; Wilcox v Sturt (1682) 1 Vern 77 at 78; 23 ER 324; Dalston v Coatsworth (1721) 1 P Wms 731; 24 ER 589; Cowper v Earl Cowper (1734) 2 P Wms 720 at 748-50; [1558-1774] All ER Rep 216 at 227; (1734) 24 ER 930 at 93940 ; Cookes v Hellier (1749) 1 Ves Sen 234 at 235; 27 ER 1003 per Lord Hardwicke LC; Whitfield v Fausset (1750) 1 Ves Sen 387 at 389-90; 27 ER 1097; Saltern v Melhuish (1754) Amb 247; 27 ER 165; Read v Brookman (1789) 3 Term Rep 151 at 158; 100 ER 504 at 508; Master v Miller (1791) 4 Term Rep 320 at 339; 100 ER 1042 at 1052 per Buller J ; Atkinson v Leonard (1791) 3 Bro CC 218 at 224; 29 ER 499 at 502; Bolton v Bishop of Carlisle (1793) 2 Hy Bl 259 at 263-4; [1775-1802] All ER Rep 189 at 190; (1793) 126 ER 540 at 542; Ex parte Greenway (1802) 6 Ves 812 at 813; 31 ER 1321 at 1322 per Lord Eldon LC.3 Medlicot v Joyner (1667) 1 Mod Rep 4; 86 ER 685; Wilcox v Sturt (1682) 1 Vern 77 at 78; 23 ER 324; Cowper v Earl Cowper (1734) 2 P Wms 720 at 748-50; [1558-1774] All ER Rep 216 at 227-8; (1734) 24 ER 930 at 939-40 ; Cookes v Hellier (1749) 1 Ves Sen 234 at 235; 27 ER 1003 at 1004 per Lord Hardwicke LC; Whitfield v Fausset (1750) 1 Ves Sen 387 at 389-90; 27 ER 1097 at 10989; Saltern v Melhuish (1754) Amb 247; 27 ER 165; Doe d Gilbert v Ross (1840) 7 M & W 102; 151 ER 696 (deed withheld as solicitors lien); Moulton v Edmonds (1859) 1 De GF & J 246 at 251; 45 ER 352 at 354.4 Doctor Leyfields Case (1611) 10 Co Rep 88a at 92b, 93a; 77 ER 1057 at 1065-7; Clerke d Prin v Heath (1669) 1 Mod Rep 11; 86 ER 691; Read v Brookman (1789) 3 Term Rep 151 at 158; 100 ER 504 at 508-9 per Ashhurst J; Bolton v Bishop of Carlisle (1793) 2 Hy Bl 259 at 263-4; [1775-1802] All ER Rep 189; (1793) 126 ER 540; Fernandey v Glynn (1808) 1 Camp 426n; 170 ER 1009; Raper v Birkbeck (1812) 15 East 17; [1803-13] All ER Rep 394; (1812) 104 ER 750.5 Leybourne v Permanent Custodians Ltd [2010] NSWCA 78; BC201002464 at [102] per Giles and Tobias JJA and Sackville AJA . The paragraph below is current to 07 February 2012 [140-270] Immaterial alteration An alteration, by either a stranger or a party to the deed, which is not material will not render the instrument void.1 There is no automatic sanction for the violation

of a documents integrity and a court is entitled to look at the nature of the alteration to determine whether or not it is in fact material.2 An alteration which does not prejudicially affect any party liable on the deed (that is, which does not alter the legal effect of the instrument) will generally be regarded as immaterial and will not render the deed void.3 An alteration to a deed or other instrument may be material against some party or parties to the deed but not against others.4 In such a case the deed or other instrument will be enforceable against any party to whom the alteration is immaterial.5 The party who has materially altered the instrument will generally lose his or her remedy on the altered instrument, but may be able to rely on the original consideration unless, by the alteration, the other party has been deprived of some remedy over it.6 If an alteration is material so that the rule in Pigots Case applies to render the deed void, there is Australian authority that suggests that equity may intervene to order the execution of a deed to give effect to the underlying bargain of the contracting parties.7 A material alteration to a document is a substantial or significant alteration to a document made by one party without the consent of the other.8 To be material, the alteration should affect the contractual obligations of the parties to it.9 Notes 1 Aldous v Cornwell (1868) LR 3 QB 573 at 579 (dissenting from the rule in Pigots Case (1614) 11 Co Rep 26b; [1558-1774] All ER Rep 50; (1614) 77 ER 1177 ; see [140-250]); Bishop of Crediton v Bishop of Exeter [1905] 2 Ch 455 at 459; [1904-7] All ER Rep 552 ; Armor Coatings (Marketing) Pty Ltd v General Credits (Finance) Pty Ltd (1978) 17 SASR 259; (1979) ANZ ConvR 97 ; Warburton v National Westminster Finance Australia Ltd (1988) 15 NSWLR 238; (1989) ANZ ConvR 229; (1989) ASC 55-719; (1989) NSW ConvR 55-477 ; Walsh v Westpac Banking Corp (1991) 104 ACTR 30; 104 FLR 37 , SC(ACT).2 Armor Coatings (Marketing) Pty Ltd v General Credits (Finance) Pty Ltd (1978) 17 SASR 259 at 275; (1979) ANZ ConvR 97 per Bray CJ ; Dahlenburg v Dahlenburg (1996) 7 BPR 14,885 at 14,888 per Young J . As to the law generally on what is and what is not a material alteration see [140-250]. See also [140-45], [140-180].3 Armor Coatings (Marketing) Pty Ltd v General Credits (Finance) Pty Ltd (1978) 17 SASR 259 at 281; (1979) ANZ ConvR 97 per Bray CJ ; Warburton v National Westminster Finance Australia Ltd (1988) 15 NSWLR 238 at 248; (1989) ANZ ConvR 229; (1989) ASC 55719; (1989) NSW ConvR 55-477 per Hope JA . See also Brunker v Perpetual Trustee Co (Ltd) (1937) 57 CLR 555 at 592; [1937] ALR 349; (1937) 11 ALJ 108 per Latham CJ (dissenting) ; Baron v Upton (2001) ANZ ConvR 17; [2000] TASSC 20; BC200001150 at [6], [7] per Smith M .4 Doe d Lewis v Bingham (1821) 4 B & Ald 672; [1814-23] All ER Rep 540; (1821) 106 ER 1082.5 Hall v Chandless (1827) 4 Bing 123; 130 ER 714; Aldous v Cornwell (1868) LR 3 QB 573; Armor Coatings (Marketing) Pty Ltd v General Credits (Finance) Pty Ltd (1978) 17 SASR 259; (1979) ANZ ConvR 97 .6 Sutton v Toomer (1827) 7 B & C 416; 108 ER 778 ; Atkinson v Hawdon (1835) 2 Ad & El 628; 111 ER 242. Compare Alderson v Langdale (1832) 3 B & Ad 660; 110 ER 241.7 Dahlenburg v Dahlenburg (1996) 7 BPR 14,885 per Young J (dicta) (relying on the doctrine of estoppel in Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387; 76 ALR 513; 62 ALJR 110; BC8802656 ).8 Vaughan v Duncan [2005] NSWSC 670; BC200507048 at [117] per Macready AsJ .9 Armor Coatings (Marketing) Pty Ltd v General Credits (Finance) Pty Ltd (1978) 17 SASR 259; (1979) ANZ ConvR 97 .

Source

[Halsbury's Laws of Australia]

View Full Date/Time Thursday, October, 25, 2012, 12:33 EST

1 of 1 About LexisNexis | Terms & Conditions | My ID Copyright 2012 LexisNexis . All rights reserved.

Back to Top

(J) Rectification The paragraph below is current to 07 February 2012 [140-275] Doctrine of rectification The purpose of the equitable remedy of rectification 1 is to make a written agreement conform to the true agreement of the parties where the writing, by common mistake, fails to express the true agreement accurately.2 Rectification may be granted in cases of unilateral mistake if it would be inequitable or unconscionable for the mistaken party to be held to the unrectified terms of the agreement.3 Rectification may be granted where a binding antecedent agreement existed prior to execution of the writing for which rectification is sought, and the document, by common mistake, failed to embody the antecedent contract and either contained provisions not agreed upon, omitted something that was agreed upon, or otherwise departed from the terms of the antecedent agreement.4 Rectification may be granted of an agreement even where the agreement would be unenforceable for lack of writing,5 lack of capacity, 6 or lack of certainty. 7 Rectification will also be available where there is no antecedent agreement but instead there exists between the parties a continuing common intention as to the terms of the agreement but which the agreement sought to be rectified fails to reflect.8 Notes 1 See contract [110-5565]-[110-5620] and equity [185-1620], [185-1625].2 Maralinga Pty Ltd v Major Enterprises Pty Ltd (1973) 128 CLR 336 at 350; 1 ALR 169 at 178; 47 ALJR 352; BC7300020 per Mason J ; Decor Blinds Gold Coast Pty Ltd v Decor Blinds Australia Pty Ltd [2004] QSC 055; BC200401274 at [23] .3 Eroc Pty Ltd v Amalg Resources NL [2003] QSC 074; BC200301095 at [46] ; Taylor v Johnson (1983) 151 CLR 422; 45 ALR 265; 57 ALJR 197; BC8300058 at [432] per Mason ACJ, Murphy and Deane JJ .4 Craddock Bros v Hunt [1923] 2 Ch 136 at 159; [1923] All ER Rep 394 at 405 per Warrington LJ ; Majestic Homes Pty Ltd v Wise [1978] Qd R 225 at 231 per Stable SPJ .5 United States v Motor Trucks Ltd [1924] AC 196 at 200-1 ; Bosaid v Andry [1963] VR 465 .6 Shipley Urban District Council v Bradford Corporation [1936] Ch 375 per Clauson J.7 Issa v Berisha [1981] 1 NSWLR 261 . Compare Coolibah Pastoral Co v Commonwealth (1967) 11 FLR 173 at 190-1 per Blackburn J , SC(NT).8 Slee v Warke (1949) 86 CLR 271 at 280; 23 ALJ 665 ; Australasian Performing Right Assn Ltd v Austarama Television Pty Ltd [1972] 2 NSWLR 467 at 472-5 ; Maralinga Pty Ltd v Major Enterprises Pty Ltd (1973) 128 CLR 336 at 350; 1 ALR 169 at 178; 47 ALJR 352; BC7300020 per Mason J ; Pukallus v Cameron (1982) 180 CLR 447; 43 ALR 243 at 247 per

Wilson J, at 250 per Brennan J; 56 ALJR 907; BC8200115 ; NSW Medical Defence Union Ltd v Transport Industries Insurance Co Ltd (1986) 6 NSWLR 740 , SC(NSW); Anfrank Nominees Pty Ltd v Connell (1989) 1 ACSR 365; 8 ACLC 319 , SC(WA).

Source

[Halsbury's Laws of Australia]

View Full Date/Time Thursday, October, 25, 2012, 12:33 EST 1 of 1 About LexisNexis | Terms & Conditions | My ID Copyright 2012 LexisNexis . All rights reserved. Back to Top

(K) Discharge and Cancellation The paragraph below is current to 07 February 2012 [140-280] Cancellation generally A deed is cancelled where the seal is destroyed 1 or defaced, or the deed is otherwise obliterated, altered or defaced with the intention that the deed become void.2 Based on the rule in Pigots Case, as modified by Australian courts, a deed will clearly be cancelled where there is a material alteration by a stranger or by the party holding the deed and who is to benefit under it.3 Where a document is so altered, the party producing it bears the onus of explaining the alteration.4 A deed will be cancelled where it is delivered by the obligee to the obligor for the purpose of cancellation, and the obligor breaks the seal or destroys the deed.5 Cancellation by the obligor will only be effective if it occurs with the consent of the obligee.6 However, if a deed is produced in a cancelled state this may constitute prima facie evidence of cancellation with the consent of the obligee.7 A deed may be cancelled with the consent of all parties to it.8 However, if an obligee delivers a deed to the obligor to be cancelled and the obligor does not do this and the deed comes back into the hands of the obligee, who then seeks to sue the obligor on the deed, the deed remains valid for this purpose and the obligor cannot avoid his or her obligations under the deed.9 Cancellation of a deed does not mean that the deed is void from its inception10 and any old system conveyance of an interest or estate in real property made prior to the cancellation of the deed will validly effect the passing of the estate.11 This is particularly so in the case of a

conveyance under the Torrens system since a registered proprietor who acquired his or her interest under an instrument which is void for any reason whatsoever obtains, on registration, an indefeasible title.12 Notes 1 Sealing is an ancient requirement of the common law which would seem to have little operation in practice throughout Australia as most jurisdictions have enacted legislation deeming deeds to be sealed without the physical necessity of sealing: see [140-40].2 Harrison v Owen (1738) 1 Atk 520; 26 ER 328; Nicholson v Merry (1878) 4 VLR (L) 65 at 66 ; Banque Nationale de Paris v Falkirk Developments Ltd (1977) 136 CLR 177 at 186; 13 ALR 377 at 383-4; BC7700031 per Mason J .3 See [140-250], [140-260], [140-270].4 Banque Nationale de Paris v Falkirk Developments Ltd (1977) 136 CLR 177 at 186; 13 ALR 377 at 384; BC7700031 per Mason J ; Farrow Mortgage Services Pty Ltd (in liq) v Slade (1996) 38 NSWLR 636; [1996] ANZ ConvR 490; (1996) NSW ConvR 55-778; BC9600249 at 10 per Cole JA .5 Banque Nationale de Paris v Falkirk Developments Ltd (1977) 136 CLR 177 at 186; 13 ALR 377 at 384; BC7700031 per Mason J .6 Alsager v Close (1842) 10 M & W 576 at 583; 152 ER 600 at 604 per Lord Abinger CB ; Meiklejohn v Campbell (1940) 56 TLR 663 at 665; 162 LT 357 at 358 per Macnaghten J ; Banque Nationale de Paris v Falkirk Developments Ltd (1977) 136 CLR 177 at 187; 13 ALR 377 at 384; BC7700031 per Mason J .7 Alsager v Close (1842) 10 M & W 576 at 583-4; 152 ER 600 at 604 per Lord Abinger CB ; Meiklejohn v Campbell (1940) 56 TLR 663 at 665; 162 LT 357 at 358 per Macnaghten J ; Banque Nationale de Paris v Falkirk Developments Ltd (1977) 136 CLR 177 at 187; 13 ALR 377 at 384-5; BC7700031 per Mason J .8 Nicholson v Merry (1878) 4 VLR (L) 65 at 66 ; Banque Nationale de Paris v Falkirk Developments Ltd (1977) 136 CLR 177 at 186; 13 ALR 377 at 384; BC7700031 per Mason J .9 Waberley v Cockerel (1542) 1 Dyer 51a; 73 ER 112; Cross v Powel (1596) Cro Eliz 483; 78 ER 735 ; Preston R (ed), Sheppards Touchstone of Common Assurances, 8th ed, London, 1826, p 26 (as referred to in Banque Nationale de Paris v Falkirk Developments Ltd (1977) 136 CLR 177 at 186; 13 ALR 377 at 383-4; BC7700031 per Mason J ).10 Agricultural Cattle Insurance Co v Fitzgerald (1851) 16 QB 432; 117 ER 944 at 947 ; R v Paulson [1921] 1 AC 271 at 278; (1920) 124 LT 449 ; Morton v Black (1986) 4 BPR 9164 at 9166; (1987) ANZ ConvR 204; (1986) NSW ConvR 55-314; BC8600997 per Young J, SC(NSW) .11 Nelthorpe v Dorrington (1674) 2 Lev 113; 83 ER 475; Leech v Leech (1674) 2 Rep Ch 100; 21 ER 628; Lord Ward v Lumley (1680) 5 H & N 87; 157 ER 1112 ; Lady Hudsons Case (1704) 2 Eq Cas Abr 52; 22 ER 45; Harrison v Owen (1738) 1 Atk 520; 26 ER 328; Bolton v Bishop of Carlisle (1793) 2 Hy Bl 259 at 263; [1775-1802] All ER Rep 189 at 190; (1793) 126 ER 540 per Eyre CJ; Doe d Lewis v Bingham (1821) 4 B & Ald 672 at 677; [1814-23] All ER Rep 540 at 542; (1821) 106 ER 1082 at 1084 per Holroyd J; Gummer v Adams (1843) 13 LJ Ex 40; Davidson v Cooper (1843) 11 M & W 778 at 800; 152 ER 1018 at 1027 (affirmed Davidson v Cooper (1844) 13 M & W 343; 153 ER 142 ); Morton v Black (1986) 4 BPR 9164 at 9167; (1987) ANZ ConvR 204; (1986) NSW ConvR 55314; BC8600997 per Young J, SC(NSW) .12 Frazer v Walker [1967] 1 AC 569; [1967] 1 All ER 649; [1967] 2 WLR 411 ; Mayer v Coe [1968] 2 NSWR 747; (1968) 88 WN (Pt 1) (NSW) 549 at 558 ; Breskvar v Wall (1971) 126 CLR 376; [1972] ALR 205; (1971) 46 ALJR 68; BC7100630 ; Morton v Black (1986) 4 BPR 9164 at 9167; (1987) ANZ ConvR 204; (1986) NSW ConvR 55-314; BC8600997 per Young J, SC(NSW) . See further real property [355-8155]-[3558235]. The paragraph below is current to 07 February 2012 [140-285] Mode of cancellation A deed is cancelled by the destruction or defacement of the seal or where the deed itself is otherwise obliterated, altered or defaced with the intention that the deed become void.1 If the seal is destroyed by accident the deed is still good if there is proof that it was once sealed.2 If there are multiple parties bound by a deed severally, the valid breaking of the seal3 by one will avoid the deed only in respect of that party, 4 but if the parties are bound jointly, or jointly and severally, the valid breaking of the seal by one party will avoid the deed against all of the parties to it.5

Notes 1 See [140-280] note 2.2 Preston R (ed), Sheppards Touchstone of Common Assurances, 8th ed, London, 1826, p 26; Banque Nationale de Paris v Falkirk Developments Ltd (1977) 136 CLR 177 at 186; 13 ALR 377; BC7700031 per Mason J .3 See [140-280] note 5.4 Mathewsons Case (1597) 5 Co Rep 22b; 77 ER 84; Collins v Prosser (1823) 1 B & C 682; [1814-23] All ER Rep 143; (1823) 107 ER 250.5 Mathewsons Case (1597) 5 Co Rep 22b; 77 ER 84; Bayly v Garford (1641) March 125 at 129; 82 ER 441 at 442; Seaton v Henson (1678) 2 Show 28 at 29; 89 ER 772 at 773. The paragraph below is current to 07 February 2012 [140-290] Cancelled deed as evidence At common law, if a deed has been cancelled, a court will generally not permit either party to give evidence of it.1 However, a cancelled deed is not void ab initio, and as such, if the deed operated to convey some estate or interest in property prior to cancellation, it would appear that the cancelled deed may be pleaded to prove the validity of the conveyance prior to cancellation.2 Similarly, where a deed has been altered in a material way such as to render it void, while the party bound cannot ask the court to give effect to the deed, the deed remains the governing document to determine the rights of the other parties to the deed and to determine the existence of any collateral fact or matter upon which the obligor seeks to rely.3 Notes 1 Morton v Black (1986) 4 BPR 9164 at 9166-7; (1987) ANZ ConvR 204; (1986) NSW ConvR 55-314; BC8600997 per Young J, SC(NSW) (if the deed is dead equity cannot put life into it).2 Nelthorpe v Dorrington (1674) 2 Lev 113; 83 ER 475; Leech v Leech (1674) 2 Rep Ch 100; 21 ER 628; Lord Ward v Lumley (1680) 5 H & N 87; 157 ER 1112 ; Lady Hudsons Case (1704) 2 Eq Cas Abr 52; 22 ER 45; Harrison v Owen (1738) 1 Atk 520; 26 ER 328; Bolton v Bishop of Carlisle (1793) 2 Hy Bl 259 at 263; [1775-1802] All ER Rep 189 at 190; (1793) 126 ER 540 at 542 per Eyre CJ; Roe d Earl of Berkeley v Archbishop of York (1805) 6 East 86; [1803-13] All ER Rep 248; (1805) 102 ER 1219; Doe d Lewis v Bingham (1821) 4 B & Ald 672 at 676; [1814-23] All ER Rep 540 at 542; (1821) 106 ER 1082 at 1084 per Bayley J; Davidson v Cooper (1843) 11 M & W 778 at 800; 152 ER 1018 at 1027 per Lord Abinger CB (dicta) (affirmed Davidson v Cooper (1844) 13 M & W 343; 153 ER 142 ); Re Hancock; Hancock v Berrey (1888) 57 LJ Ch 793; 59 LT 197 ; Morton v Black (1986) 4 BPR 9164 at 9166-7; (1987) ANZ ConvR 204; (1986) NSW ConvR 55-314; BC8600997 per Young J, SC(NSW) .3 Hutchins v Scott (1837) 2 M & W 809; [1835-42] All ER Rep 181; (1837) 150 ER 984 ; Earl of Falmouth v Roberts (1842) 9 M & W 469 at 471; [1835-42] All ER Rep 369 at 370; (1842) 152 ER 198 at 199-200 per Parke B ; Agricultural Cattle Insurance Co v Fitzgerald (1851) 16 QB 432 at 440-1; 117 ER 944 at 947-8 ; Enthoven v Hoyle (1853) 13 CB 373 at 394; 138 ER 1243 at 1252-3 ; Pattinson v Luckley (1875) LR 10 Ex 330 at 335-6; 33 LT 360. The paragraph below is current to 07 February 2012 [140-295] Discharge of contracts made by deed At common law, a deed may only be discharged by performance or by another deed.1 However, in equity a deed may be discharged by simple contract or agreement.2 The courts of equity have always held themselves at liberty to allow the rescission or variation by a simple contract or a contract under seal (that is, a deed) by preventing the party who has agreed to the rescission or variation from suing under the deed.3 If two deeds are made by the same parties in respect of the same subject matter, then, in the absence of evidence of the circumstances under which the two documents were made, and in the absence of evidence of the intention of the parties, the latter deed does not, as a matter of law, effect a revocation or supersession of the earlier deed in so far as the subject matter of the two correspond.4

A party to a deed may be estopped from relying on its terms if it agrees to modify its strict rights under the deed with the intention that that agreement be legally binding and the other party to it acts to its detriment in reliance on the agreement, even though the agreement was made without consideration, to the extent that it would be inconsistent with the agreement to do so.5 Notes 1 Steeds v Steeds (1889) 22 QBD 537 at 539; [1886-90] All ER Rep 1021 at 1022 per Wills J ; Berry v Berry [1929] 2 KB 316 at 319; [1929] All ER Rep 281 at 283 ; Sklash Pty Ltd v Yarra Capital Group Pty Ltd [2004] VSC 385; BC200406545 at [14] per Evans M .2 Steeds v Steeds (1889) 22 QBD 537 at 540; [1886-90] All ER Rep 1021 at 1023 per Wills J ; Berry v Berry [1929] 2 KB 316 at 319; [1929] All ER Rep 281 at 283 ; Pappas v Rimar Pty Ltd (1984) 55 ALR 327 at 333; 75 FLR 175 , SC(QLD) (affirmed on other grounds Rimar Pty Ltd v Pappas (1986) 160 CLR 133; 64 ALR 9; 60 ALJR 309 ); Sklash Pty Ltd v Yarra Capital Group Pty Ltd [2004] VSC 385; BC200406545 at [14] per Evans M .3 Berry v Berry [1929] 2 KB 316 at 319; [1929] All ER Rep 281 at 283 ; Pappas v Rimar Pty Ltd (1984) 55 ALR 327 at 333; 75 FLR 175 , SC(QLD) (affirmed on other grounds Rimar Pty Ltd v Pappas (1986) 160 CLR 133; 64 ALR 9; 60 ALJR 309 ).4 Re Gundry; Mills v Mills [1898] 2 Ch 504 at 508; (1898) 79 LT 438 .5 Sklash Pty Ltd v Yarra Capital Group Pty Ltd [2004] VSC 385; BC200406545 at [14] per Evans M ; Combe v Combe [1951] 2 KB 215; [1951] 1 All ER 767 .

Source

[Halsbury's Laws of Australia]

View Full Date/Time Thursday, October, 25, 2012, 12:33 EST 1 of 1 About LexisNexis | Terms & Conditions | My ID Copyright 2012 LexisNexis . All rights reserved. Back to Top

(L) Bonds (I) Nature and use of Bonds The paragraph below is current to 07 February 2012 [140-300] Definition A bond is an instrument under seal 1 by which a person binds himself or herself to another to pay a specified sum of money at some fixed date. In other words, a bond is a debt security. Being an instrument under seal, a bond is a form of debt evidenced in writing in the form of a deed.2 The person who is bound under the deed (that is, the bond) is known as the obligor, while the person to whom the obligor is bound is known as the obligee. A bond is a form of specialty debt specialties generally being debts secured by a promise

contained in a deed. However, a debt need not necessarily be evidenced by a deed in order to be a specialty.3 Notes 1 Usually in the form of a deed poll: see [140-10]. See further National Telephone Co v IRC [1900] AC 1 ; British India Steam Navigation Co v IRC (1881) 7 QBD 165 at 172-3; 50 LJQB 517; 44 LT 378 per Lindley J .2 See [140-1], [140-315]. For an example of a form of a single bond (as to which see [140-305]) see Australian Encyclopaedia of Forms and Precedents, 3rd ed, Vol 2, bonds, Pr 5.1.3 Debts owed by the Crown or arising under statute are also specialties notwithstanding that they are not evidenced by deed. See Royal Trust Co v A-G (Alberta) [1930] AC 144 at 150-1 . The paragraph below is current to 07 February 2012 [140-305] Types of bonds Bonds1 generally fall into one of two categories. These are: (1) single bonds being a bond for the payment of a certain sum of money without any condition in, or annexed to, the deed. The expression single bond now usually signifies a bond given by one obligor only;2 and (2) double or conditional bonds being a bond with a condition annexed to it. Such a bond consists of two parts3 (a) the obligation, being the formal acknowledgment of debt, and (b) the condition, usually secured by some form of penalty which sets out the money to be paid or the act or acts to be performed, whereupon payment of the money due or performance of the specified act or acts the bond becomes void. Historically, the condition in a double or conditional bond provided for the payment of a sum less than that expressed in the obligation, but if the condition was not fulfilled, the whole of the sum expressed in the obligation became due.4 Such bonds were often known as common money bonds, the condition usually being that if the obligor paid a sum (less than that specified in the obligation), with interest, on a specified date, the bond would be void.5 Post obit bonds are bonds in which payment is conditional on the death of a specified person. Such bonds are frequently used in the context of life insurance contracts.6 Other specific types of bonds are usually defined by their usage.7 Notes 1 As to definition of bonds see [140-300].2 Australian Encyclopaedia of Forms and Precedents, 3rd ed, Vol 2, bonds, Pr 5.1.3 Australian Encyclopaedia of Forms and Precedents, 3rd ed, Vol 2, bonds, Pr 5.5. See also [140-390].4 See [140-400] and generally Simpson A W B, The Penal Bond with Conditional Defeasance, (1966) 82 Law Quarterly Review 392; Meagher R P, Gummow W M C, Lehane J R F, Equity: Doctrines and Remedies, 3rd ed, Butterworths, Sydney, 1992, pp 442-4; Chappenden W J and Carter J W, Helmores Personal Property and Mercantile

Law in New South Wales, 9th ed, Law Book Co, Sydney, 1985, p 22.5 Australian Encyclopaedia of Forms and Precedents, 3rd ed, Vol 2, bonds, Pr 5.5.6 Australian Encyclopaedia of Forms and Precedents, 3rd ed, Vol 2, bonds, Pr 5.95.7 See [140-310]. The paragraph below is current to 07 February 2012 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [140-310] Use of bonds Although there is little actual use of bonds in Australia in the manner in which they are traditionally defined,1 there are several modern versions of the bond (albeit such instruments are rarely, if ever, under seal) which are known and used other than for financial purposes. Most jurisdictions require that persons to whom a grant of administration is made file a bond to ensure the due and proper administration of the estate.2 Bonds are often required by the various rules of court as security for the costs of proceedings.3 Bonds may be given to secure the performance of a service or building contract,4 while corporations5 and Federal, State and local governments often issue bonds to raise money and to secure loans.6 Other common forms of bond are: (1) the arbitration bond, in which persons execute mutual bonds containing a condition to abide by an award;7 (2) the rental bond, in which money is placed with a lessor or agent as security for a lessee complying with the terms of his or her lease;8 and (3) the bail bond.9 Notes 1 See [140-300], [140-305]. It appears that the last decided case in Australia concerning the use of bonds was Day v Union Gold-Mining Co (Ltd) (1876) 2 VLR (L) 11 .2 (ACT) Administration and Probate Act 1929 Dictionary (definition of administration bond) (NT) Administration and Probate Act 1969 s 23 (NSW) Probate and Administration Act 1898 s 64 (see In the Estate of Jones (1900) 21 LR (NSW) B & P 35; 17 WN (NSW) 181 ) (SA) Administration and Probate Act 1919 s 31 (TAS) Administration and Probate Act 1935 s 25 (VIC) Administration and Probate Act 1958 s 57 (WA) Administration Act 1903 s 26.

A bond is not required in Queensland: (QLD) Succession Act 1981 s 51. See also Australian Encyclopaedia of Forms and Precedents, 3rd ed, Vol 2, bonds, Pr 5.10 and see generally succession [395-2400]-[395-3475], [395-4525]. 3 See practice and procedure [325-9635]-[325-9730]; Australian Encyclopaedia of Forms and Precedents, 3rd ed, Vol 2, bonds, Pr 5.20; Estates Property Investment Corp Ltd v Pooley (1975) 3 ACLR 256 at 262-3 , SC(NSW).4 Australian Encyclopaedia of Forms and Precedents, 3rd ed, Vol 1, building and engineering contracts Prr 10.300-10.560. See building and construction [65-1330].5 A companys power to borrow is found in the (CTH) Corporations Act 2001 s 124(1). See corporations [120-3005], [120-3015].6 Australian Encyclopaedia of Forms and Precedents, 3rd ed, Vol 2, bonds, [550]. See local government [265-1]-[265-140].7 Australian Encyclopaedia of Forms and Precedents, 3rd ed, Vol 2, bonds, Pr 5.90 and see generally arbitration.8 See leases and tenancies [245-1855], [245-1875].9 See criminal law [130-13315]-[130-13325]. For further examples of forms of bond see Australian Encyclopaedia of Forms and Precedents, 3rd ed, Vol 2, bonds, Prr 5.1-5.130. The paragraph below is current to 07 February 2012 [140-315] Requirements for a valid bond In order to be valid, a bond requires the following: (1) an obligor1 and an obligee;2 (2) a fixed sum of money in which the obligor is bound;3 and (3) compliance with all of the formal requirements necessary for the valid execution of a deed.4 Since execution of a deed imports consideration, consideration is not necessary for a valid bond.5 Notes 1 See [140-300], [140-330].2 Squire v Whitton (1848) 1 HL Cas 333 at 350; 9 ER 785 at 792 . See [140-300], [140-335].3 Loggins v Titheton (1612) Yelv 225; 80 ER 147. However, the bond is not void if the sum is merely improperly expressed, provided that the intention of the parties is clear: Hulbert v Long (1621) Cro Jac 607; 79 ER 518; Cromwell v Grunsden (1698) 2 Salk 462; 91 ER 399 ; Coles v Hulme (1828) 8 B & C 568; 108 ER 1153 .4 See [140-1], [140-25].5 Squire v Whitton (1848) 1 HL Cas 333; 9 ER 785 . See [140-175]. The paragraph below is current to 07 February 2012 [140-320] Form of bond A bond is usually in the form of a deed poll. 1 However, no particular form of words is necessary in order for an instrument to constitute a valid bond so long as the requirements for a valid bond are met.2 Of the two forms of bond that exist, a single bond has only one part, that is, the obligation,3 whereas the double or conditional bond consists of an obligation and a condition.4 As with other forms of deed, it is usual for a double or conditional bond to contain recitals stating the matters of fact necessary to explain the act or agreement that is being evidenced by the deed.5 Bonds will also contain other elements of deeds such as the testatum, or witnessing

(operative) part,6 and the testimonium, or execution clause.7 Notes 1 See [140-10].2 See [140-315].3 See [140-305].4 See [140-305].5 See [140-20].6 See [14020].7 See [140-20]. The paragraph below is current to 07 February 2012 [140-325] Execution Bonds, being a form of deed, are subject to all of the ordinary common law rules and legislation applicable to the general execution of deeds.1 Notes 1 See [140-30]-[140-70], [140-165]-[140-210]. The paragraph below is current to 07 February 2012 [140-330] Obligor The obligor is the person who is bound under the bond. An obligor is the party liable under the bond to fulfil the obligation and/or condition and as such this party must, according to the prevailing law in his or her jurisdiction, have full capacity to contract.1 Notes 1 As to capacity generally see contract [110-2575]-[110-2940]. The paragraph below is current to 07 February 2012 [140-335] Obligee The obligee is the person to whom the obligor is bound and the person to whom performance of the obligation is owed. The unilateral nature of a bond1 means that the obligor does not have any liability under the bond and as such a person who would otherwise lack capacity for the purposes of entering a binding contractual agreement may be an obligee under a bond.2 Notes 1 See [140-300], [140-305].2 As to capacity generally see contract [110-2575]-[110-2940].

Source

[Halsbury's Laws of Australia]

View Full Date/Time Thursday, October, 25, 2012, 12:33 EST 1 of 1 About LexisNexis | Terms & Conditions | My ID Copyright 2012 LexisNexis . All rights reserved. Back to Top

(L) Bonds (I) Nature and use of Bonds The paragraph below is current to 07 February 2012 [140-300] Definition A bond is an instrument under seal 1 by which a person binds himself or herself to another to pay a specified sum of money at some fixed date. In other words, a bond is a debt security. Being an instrument under seal, a bond is a form of debt evidenced in writing in the form of a deed.2 The person who is bound under the deed (that is, the bond) is known as the obligor, while the person to whom the obligor is bound is known as the obligee. A bond is a form of specialty debt specialties generally being debts secured by a promise contained in a deed. However, a debt need not necessarily be evidenced by a deed in order to be a specialty.3 Notes 1 Usually in the form of a deed poll: see [140-10]. See further National Telephone Co v IRC [1900] AC 1 ; British India Steam Navigation Co v IRC (1881) 7 QBD 165 at 172-3; 50 LJQB 517; 44 LT 378 per Lindley J .2 See [140-1], [140-315]. For an example of a form of a single bond (as to which see [140-305]) see Australian Encyclopaedia of Forms and Precedents, 3rd ed, Vol 2, bonds, Pr 5.1.3 Debts owed by the Crown or arising under statute are also specialties notwithstanding that they are not evidenced by deed. See Royal Trust Co v A-G (Alberta) [1930] AC 144 at 150-1 . The paragraph below is current to 07 February 2012 [140-305] Types of bonds Bonds1 generally fall into one of two categories. These are: (1) single bonds being a bond for the payment of a certain sum of money without any condition in, or annexed to, the deed. The expression single bond now usually signifies a bond given by one obligor only;2 and (2) double or conditional bonds being a bond with a condition annexed to it. Such a bond consists of two parts3 (a) the obligation, being the formal acknowledgment of debt, and (b) the condition, usually secured by some form of penalty which sets out the money to be paid or the act or acts to be performed, whereupon payment of the money due or performance of the specified act or acts the bond becomes void. Historically, the condition in a double or conditional bond provided for the payment of a sum less than that expressed in the obligation, but if the condition was not fulfilled, the whole of the sum expressed in the obligation became due.4 Such bonds were often known as common money

bonds, the condition usually being that if the obligor paid a sum (less than that specified in the obligation), with interest, on a specified date, the bond would be void.5 Post obit bonds are bonds in which payment is conditional on the death of a specified person. Such bonds are frequently used in the context of life insurance contracts.6 Other specific types of bonds are usually defined by their usage.7 Notes 1 As to definition of bonds see [140-300].2 Australian Encyclopaedia of Forms and Precedents, 3rd ed, Vol 2, bonds, Pr 5.1.3 Australian Encyclopaedia of Forms and Precedents, 3rd ed, Vol 2, bonds, Pr 5.5. See also [140-390].4 See [140-400] and generally Simpson A W B, The Penal Bond with Conditional Defeasance, (1966) 82 Law Quarterly Review 392; Meagher R P, Gummow W M C, Lehane J R F, Equity: Doctrines and Remedies, 3rd ed, Butterworths, Sydney, 1992, pp 442-4; Chappenden W J and Carter J W, Helmores Personal Property and Mercantile Law in New South Wales, 9th ed, Law Book Co, Sydney, 1985, p 22.5 Australian Encyclopaedia of Forms and Precedents, 3rd ed, Vol 2, bonds, Pr 5.5.6 Australian Encyclopaedia of Forms and Precedents, 3rd ed, Vol 2, bonds, Pr 5.95.7 See [140-310]. The paragraph below is current to 07 February 2012 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [140-310] Use of bonds Although there is little actual use of bonds in Australia in the manner in which they are traditionally defined,1 there are several modern versions of the bond (albeit such instruments are rarely, if ever, under seal) which are known and used other than for financial purposes. Most jurisdictions require that persons to whom a grant of administration is made file a bond to ensure the due and proper administration of the estate.2 Bonds are often required by the various rules of court as security for the costs of proceedings.3 Bonds may be given to secure the performance of a service or building contract,4 while corporations5 and Federal, State and local governments often issue bonds to raise money and to secure loans.6 Other common forms of bond are: (1) the arbitration bond, in which persons execute mutual bonds containing a condition to abide by an award;7 (2) the rental bond, in which money is placed with a lessor or agent as security for a lessee complying with the terms of his or her lease;8 and (3) the bail bond.9 Notes

1 See [140-300], [140-305]. It appears that the last decided case in Australia concerning the use of bonds was Day v Union Gold-Mining Co (Ltd) (1876) 2 VLR (L) 11 .2 (ACT) Administration and Probate Act 1929 Dictionary (definition of administration bond) (NT) Administration and Probate Act 1969 s 23 (NSW) Probate and Administration Act 1898 s 64 (see In the Estate of Jones (1900) 21 LR (NSW) B & P 35; 17 WN (NSW) 181 ) (SA) Administration and Probate Act 1919 s 31 (TAS) Administration and Probate Act 1935 s 25 (VIC) Administration and Probate Act 1958 s 57 (WA) Administration Act 1903 s 26. A bond is not required in Queensland: (QLD) Succession Act 1981 s 51. See also Australian Encyclopaedia of Forms and Precedents, 3rd ed, Vol 2, bonds, Pr 5.10 and see generally succession [395-2400]-[395-3475], [395-4525]. 3 See practice and procedure [325-9635]-[325-9730]; Australian Encyclopaedia of Forms and Precedents, 3rd ed, Vol 2, bonds, Pr 5.20; Estates Property Investment Corp Ltd v Pooley (1975) 3 ACLR 256 at 262-3 , SC(NSW).4 Australian Encyclopaedia of Forms and Precedents, 3rd ed, Vol 1, building and engineering contracts Prr 10.300-10.560. See building and construction [65-1330].5 A companys power to borrow is found in the (CTH) Corporations Act 2001 s 124(1). See corporations [120-3005], [120-3015].6 Australian Encyclopaedia of Forms and Precedents, 3rd ed, Vol 2, bonds, [550]. See local government [265-1]-[265-140].7 Australian Encyclopaedia of Forms and Precedents, 3rd ed, Vol 2, bonds, Pr 5.90 and see generally arbitration.8 See leases and tenancies [245-1855], [245-1875].9 See criminal law [130-13315]-[130-13325]. For further examples of forms of bond see Australian Encyclopaedia of Forms and Precedents, 3rd ed, Vol 2, bonds, Prr 5.1-5.130. The paragraph below is current to 07 February 2012 [140-315] Requirements for a valid bond In order to be valid, a bond requires the following: (1) an obligor1 and an obligee;2 (2) a fixed sum of money in which the obligor is bound;3 and (3) compliance with all of the formal requirements necessary for the valid execution of a deed.4 Since execution of a deed imports consideration, consideration is not necessary for a valid bond.5 Notes 1 See [140-300], [140-330].2 Squire v Whitton (1848) 1 HL Cas 333 at 350; 9 ER 785 at 792 . See [140-300], [140-335].3 Loggins v Titheton (1612) Yelv 225; 80 ER 147. However, the bond is not void if the sum is merely improperly expressed, provided that the intention of the parties is

clear: Hulbert v Long (1621) Cro Jac 607; 79 ER 518; Cromwell v Grunsden (1698) 2 Salk 462; 91 ER 399 ; Coles v Hulme (1828) 8 B & C 568; 108 ER 1153 .4 See [140-1], [140-25].5 Squire v Whitton (1848) 1 HL Cas 333; 9 ER 785 . See [140-175]. The paragraph below is current to 07 February 2012 [140-320] Form of bond A bond is usually in the form of a deed poll. 1 However, no particular form of words is necessary in order for an instrument to constitute a valid bond so long as the requirements for a valid bond are met.2 Of the two forms of bond that exist, a single bond has only one part, that is, the obligation,3 whereas the double or conditional bond consists of an obligation and a condition.4 As with other forms of deed, it is usual for a double or conditional bond to contain recitals stating the matters of fact necessary to explain the act or agreement that is being evidenced by the deed.5 Bonds will also contain other elements of deeds such as the testatum, or witnessing (operative) part,6 and the testimonium, or execution clause.7 Notes 1 See [140-10].2 See [140-315].3 See [140-305].4 See [140-305].5 See [140-20].6 See [14020].7 See [140-20]. The paragraph below is current to 07 February 2012 [140-325] Execution Bonds, being a form of deed, are subject to all of the ordinary common law rules and legislation applicable to the general execution of deeds.1 Notes 1 See [140-30]-[140-70], [140-165]-[140-210]. The paragraph below is current to 07 February 2012 [140-330] Obligor The obligor is the person who is bound under the bond. An obligor is the party liable under the bond to fulfil the obligation and/or condition and as such this party must, according to the prevailing law in his or her jurisdiction, have full capacity to contract.1 Notes 1 As to capacity generally see contract [110-2575]-[110-2940]. The paragraph below is current to 07 February 2012 [140-335] Obligee The obligee is the person to whom the obligor is bound and the person to whom performance of the obligation is owed. The unilateral nature of a bond1 means that the obligor does not have any liability under the bond and as such a person who would otherwise lack capacity for the purposes of entering a binding contractual agreement may be an obligee under a bond.2 Notes 1 See [140-300], [140-305].2 As to capacity generally see contract [110-2575]-[110-2940].

Source

[Halsbury's Laws of Australia]

View Full Date/Time Thursday, October, 25, 2012, 12:33 EST 1 of 1 About LexisNexis | Terms & Conditions | My ID Copyright 2012 LexisNexis . All rights reserved. Back to Top

(B) Conditions The paragraph below is current to 07 February 2012 [140-375] Validity In order to be valid, a condition in a double or conditional bond must be for the performance of an act which is legal, possible and not repugnant to the obligation.1 A condition will be void if it is for the performance of an act which is impossible but in such circumstances the bond becomes single and the obligation remains valid.2 If performance is possible, though improbable, the condition is valid.3 If one of two acts in the performance of the condition is possible, the obligor is only bound to perform the act which is possible.4 If one of the two acts is made impossible by the obligee, the obligor is excused entirely from performance.5 Notes 1 As to illegality see [140-385]. As to uncertainty and repugnancy see [140-380].2 Pullerton v Agnew (1703) 1 Salk 172; 90 ER 980; Holmes v Ivy (1678) 2 Show 15; 89 ER 764; Campbell v French (1795) 6 Term Rep 200 at 211; 101 ER 510 at 516 . However, if the condition is incorporated with the obligation and performance of the condition is impossible, the bond will be void: Pullerton v Agnew (1703) 1 Salk 172; 90 ER 980.3 Campbell v French (1795) 6 Term Rep 200 at 211; 101 ER 510 at 516 .4 Da Costa v Davis (1798) 1 Bos & P 242; 126 ER 882 .5 Duvergier v Fellows (1828) 5 Bing 248; 130 ER 1056. See also [140-390]. The paragraph below is current to 07 February 2012 [140-380] Uncertainty A condition which is so uncertain that its meaning cannot be ascertained is void but if the obligation is clear, the obligation is valid and binding.1 A condition which is repugnant to the obligation is void.2 Notes 1 Marker v Cross (1613) 2 Bulst 133; 80 ER 1011. As to uncertainty generally see contract [110455]-[110-525].2 Vernon v Alsop (1663) 1 Lev 77; 83 ER 305; Roberts v Harnage (1704) 2 Salk 659; 91 ER 561; Wells v Ferguson (1708) 11 Mod Rep 199; 88 ER 987. The paragraph below is current to 07 February 2012

[140-385] Illegality An illegal condition in a bond will render the bond void. 1 A bond will similarly be void where the consideration is either wholly or partly illegal, provided that the consideration or condition is entire and not capable of severance into legal and illegal parts.2 If a condition or consideration for a bond consists of a number of distinct parts, if the legal part may be severed from the illegal, the instrument will remain operative to this extent and the obligee will be subject to those conditions in the bond which are legal.3 If the condition of a bond, though legal, amounts to an unconscionable bargain with the obligee, equity will intervene to relieve the obligee from the burden of unfair and unconscionable dealings at the hands of a person exploiting a position of power over the other which the other is too weak to resist.4 Notes 1 Collins v Blantern (1767) 2 Wils 341; [1558-1774] All ER Rep 33; (1767) 95 ER 847 at 852 ; Paxton v Popham (1808) 9 East 408; 103 ER 628 ; Greville v Attkins (1829) 9 B & C 462; 109 ER 172; Lound v Grimwade (1888) 39 Ch D 605 per Stirling J . See also AG Australia Holdings Ltd v Burton (2002) 58 NSWLR 464; 58 IPR 268; [2002] NSWSC 170; BC200202299 at [111] per Campbell J .2 Collins v Blantern (1767) 2 Wils 341; [1558-1774] All ER Rep 33; (1767) 95 ER 847 ; Yale v R (1721) 6 Bro Parl Cas 27; 2 ER 910; Pickering v Ilfracombe Railway Co (1868) LR 3 CP 235 at 250; [1861-73] All ER Rep 773 at 777 per Willes J; Baker v Hedgecock (1888) 39 Ch D 520 ; Lound v Grimwade (1888) 39 Ch D 605 . See further contract [1107400]-[110-7445].3 Green v Price (1845) 13 M & W 695; 153 ER 291 ; Re Burdett; Ex parte Byrne (1888) 20 QBD 310; [1886-90] All ER Rep Ext 1609 ; Newman v Newman (1815) 4 M & S 66; 105 ER 759; Collins v Gwynne (1831) 5 Moo & P 276 at 282; 131 ER 163 at 165 per Tindal CJ; Yale v R (1721) 6 Bro Parl Cas 27; 2 ER 910. Generally, at common law the test for whether one part of an instrument may be severed from another is whether they are in substance so connected with each other as to form an indivisible whole which cannot be taken to pieces without altering its nature: McFarlane v Daniell (1938) 38 SR (NSW) 337 at 345; 55 WN (NSW) 132 per Jordan CJ . Some examples of illegal conditions or consideration include: (1) bonds in restraint of trade (Baker v Hedgecock (1888) 39 Ch D 520 ); (2) bonds conditioned on the commission of a crime or a tort (Collins v Blantern (1767) 2 Wils 341; [1558-1774] All ER Rep 33; (1767) 95 ER 847 ); and (3) bonds which affect the due administration of justice (Lound v Grimwade (1888) 39 Ch D 605 at 612-13) . See further contract [110-7400]-[110-7445]. 4 See Fry v Lane (1888) 40 Ch D 312; [1886-90] All ER Rep 1084 ; Nevill v Snelling (1880) 15 Ch D 679 at 704-5 per Denman J . See [140-215]. See further contract [110-5875]-[110-5925]. The paragraph below is current to 07 February 2012 [140-390] Performance of bonds A bond will only be avoided (that is, discharged as against the obligee) if the condition to which it is subject is strictly performed.1 Conditions are normally of two kinds: (1)

for the payment of money on or before a named day; or (2) for the performance of some act or acts on or before a named day.2 Failure to specify a time for payment or a time for performance will lead to the construction that the money is payable immediately,3 or that the act must be performed within a reasonable time.4 It is not necessary in such a case that there be a demand for payment or performance (as the case may be) by the obligor.5 In circumstances where the condition in a bond stipulates for payment by instalments or performance of several acts, and in the absence of any provision to the contrary, the liability under the bond will become absolute if the obligee defaults in any one payment or the performance of any one act.6 As in the general law of contract, if performance by the obligor is dependent on some prior performance by the obligee, the performance by the obligee is said to be a condition precedent to the obligors obligation to perform and performance by the obligor is generally excused until such time as the obligee fulfils the condition precedent.7 Performance of bonds, and performance of deeds and other instruments generally, is subject to the operation of the doctrine of frustration whereby, following formation of the agreement and without fault by either party, performance has become impossible or has been radically changed.8 The obligor will be excused if the obligees act has made performance impossible.9 However, the obligor will not be excused if the impossibility has been created by the obligor.10 There is authority that if there are multiple conditions and at least one of them becomes incapable of performance because of some frustrating event or because of some act of the obligee, the bond will, subject to the supervening intention of the parties as expressed in the bond, be discharged.11 Notes 1 Taylor v Bird (1750) 1 Wils 280; 95 ER 618; Bigland v Skelton (1810) 12 East 436; 104 ER 170; Bache v Proctor (1780) 1 Doug KB 382; 99 ER 247 ; Cutler v Southern (1667) 1 Saund 116; 85 ER 125; Ker v Mitchell (1786) 2 Chit 487; Skinners Co v Jones (1837) 3 Bing NC 481; 132 ER 495; London, Brighton and South Coast Railway Co v Goodwin (1849) 3 Exch 736; 154 ER 1042; Goad v Empire Printing & Publishing Co Ltd (1888) 52 JP 438.2 Bigland v Skelton (1810) 12 East 436; 104 ER 170; Hodgson v Bell (1797) 7 Term Rep 97; 101 ER 874. See [140305].3 Farquhar v Morris (1797) 7 Term Rep 124; 101 ER 889 ; Gibbs v Southam (1834) 5 B & Ad 911; 110 ER 1028.4 Coke E, Commentary upon Littleton, Vol 1, 19th ed, London, 1832, pp 208a, 208b.5 Gibbs v Southam (1834) 5 B & Ad 911; 110 ER 1028 at 1029 per Patterson J. Provided, however, that there is no express term in the bond to the contrary: Carter v Ring (1813) 3 Camp 459; 170 ER 1445; Capp v Lancaster (1597) Cro Eliz 548; 78 ER 794 ; Fitz-Hugh v Dennington (1704) 2 Salk 585; 91 ER 491.6 Grey v Friar (1850) 15 QB 901 at 910; 117 ER 699; Coates v Hewit (1744) 1 Wils 80; 95 ER 491.7 As to bonds see Buckland v Barton (1793) 2 Hy Bl 136; 126 ER 472; Campbell v French (1795) 6 Term Rep 200; 101 ER 510 . In relation to the doctrine of dependent obligations in contract see contract [110-8015]-[110-8045]. It does not appear necessary that the obligor should have notice of performance by the obligee: Ker v Mitchell (1786) 2 Chit 487; Cutler v Southern (1667) 1 Saund 116; 85 ER 125.8 In the context of bonds see Thomas v Howell (1692) 1 Salk 170; 91 ER 157; Brown v London Corporation (1861) 9 CBNS 726 at 747; 142 ER 286 at 294 per Williams J; Earl of Leitram v Stewart (1870) IR 5 CL 27 (act of God); Davis v Cary (1850) 15 QB 418; 117 ER 517 (act of Parliament). See generally contract [110-9595]-[110-10060].9 Duvergier v Fellows (1828) 5 Bing 248 at 266; 130 ER 1056

at 1063 per Best CJ.10 Bigland v Skelton (1810) 12 East 436; 104 ER 170.11 Laughters Case (1595) 5 Co Rep 21b; 77 ER 82 sub nom Eaton v Laughter (1595) Cro Eliz 398; 78 ER 643; Earl of Leitram v Stewart (1870) IR 5 CL 27; Duvergier v Fellows (1828) 5 Bing 248; 130 ER 1056; Barkworth v Young (1856) 4 Drew 1 at 25; 62 ER 1 at 10 .

Source

[Halsbury's Laws of Australia]

View Full Date/Time Thursday, October, 25, 2012, 12:34 EST 1 of 1 About LexisNexis | Terms & Conditions | My ID Copyright 2012 LexisNexis . All rights reserved. Back to Top

(III) Assignment of Bonds The paragraph below is current to 07 February 2012 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [140-395] Legal or equitable assignment The obligation created by a bond is a legal chose in action and any assignment at law must comply with the relevant statutory requirements in each jurisdiction.1 The legislation has essentially three elements:2 (1) absolute assignment, involving an intention to assign and not purporting to be by way of charge only; (2) the assignment must be in writing and signed by the assignor; and (3) express notice in writing of the assignment must be given to the debtor, trustee or other person from whom the assignor is entitled to receive the debt, by either the assignor or the assignee. The assignment will take effect from the date on which notice is given to the obligee or debtor and from this date the assignee has:3

(1) the legal right to the bond; (2) all legal and other remedies for the bond; and (3) the power to give a good discharge for the bond without the concurrence of the assignor. Failure to fully comply with the legal requirements for a valid assignment at law will not necessarily be fatal as equity will intervene to render any voluntary settlement valid and effectual if the settlor has 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 or her.4 This means that if an intending donor of property has done everything which it is necessary for him or her to have done to effect a transfer of legal title, then equity will recognise the gift.5 So long as the donee or assignee has been equipped to achieve the transfer of legal ownership, the gift is complete in equity, the question is whether the intending donor has done what is sufficient to enable the legal transfer to be effected without further action on his or her part.6 Notes 1 (ACT) Civil Law (Property) Act 2006 s 205 (NT) Law of Property Act 2000 s 182 (NSW) Conveyancing Act 1919 s 12 (QLD) Property Law Act 1974 ss 199, 200 (SA) Law of Property Act 1936 s 15 (TAS) Conveyancing and Law of Property Act 1884 s 86 (VIC) Property Law Act 1958 s 134 (WA) Property Law Act 1969 s 20. 2 (ACT) Civil Law (Property) Act 2006 s 205 (NT) Law of Property Act 2000 s 182 (NSW) Conveyancing Act 1919 s 12 (QLD) Property Law Act 1974 s 199(1) (SA) Law of Property Act 1936 s 15 (TAS) Conveyancing and Law of Property Act 1884 s 86(1) (VIC) Property Law Act 1958 s 134 (WA) Property Law Act 1969 s 20(1). 3 (ACT) Civil Law (Property) Act 2006 s 205

(NT) Law of Property Act 2000 s 182 (NSW) Conveyancing Act 1919 s 12 (QLD) Property Law Act 1974 s 199(1) (SA) Law of Property Act 1936 s 15 (TAS) Conveyancing and Law of Property Act 1884 s 86(1) (VIC) Property Law Act 1958 s 134 (WA) Property Law Act 1969 s 20(1). 4 Milroy v Lord (1862) 4 De GF & J 264 at 274; [1861-73] All ER Rep 783 at 789; (1862) 45 ER 1185 at 1189 per Turner LJ . See equity [185-420]. The assignor may also transfer the property to a trustee on trust or declare a trust of the property himself or herself. However, if the assignment is intended to be effected by one particular mode of transfer, equity will not give effect to an imperfect gift by applying a mode of transfer other than that actually used. Thus an intended transfer by assignment will not be held to operate as a declaration of trust: Milroy v Lord (1862) 4 De GF & J 264 at 274; [1861-73] All ER Rep 783 at 789; (1862) 45 ER 1185 at 1189-90 per Turner LJ .5 Corin v Patton (1990) 169 CLR 540 at 559; 92 ALR 1 at 13; 64 ALJR 256; BC9002936 per Mason CJ and McHugh J . See also Public Trustee v Jones (2007) 251 LSJS 364; [2007] SASC 390; BC200709666 at [53]-[55] per Layton J . In Queensland, this principle is embodied in (QLD) Property Law Act 1974 s 200. See further equity [185-420].6 Corin v Patton (1990) 169 CLR 540 at 559; 92 ALR 1 at 13-14; 64 ALJR 256; BC9002936 per Mason CJ and McHugh J . See also Public Trustee v Jones (2007) 251 LSJS 364; [2007] SASC 390; BC200709666 at [53]-[55] per Layton J . The paragraph below is current to 07 February 2012 [140-398] Estoppel An assignee of a chose in action for example, a bond taking without inquiry, takes subject to all the equities and perils attaching to the chose in action.1 However, if a person, before taking an assignment for value of a bond, actually inquires from the obligor whether it is a good bond, and the money secured by it is due, the obligor cannot set up against the assignee the allegation that the bond was obtained by fraud.2 This will be so notwithstanding that the bond was invalid in the hands of the assignor.3 Notes 1 Re Hercules Insurance Co; Bruntons Claim (1874) LR 19 Eq 302 at 310.2 Re Hercules Insurance Co; Bruntons Claim (1874) LR 19 Eq 302 at 310; Re South Essex Estuary Co; Ex parte Chorley (1870) LR 11 Eq 157 per Sir Malins VC. See also Ampol Ltd v Matthews (1991) 4 ACSR 592; (1991) 9 ACLC 757; BC9100438 at [17] per Olsson J .3 Re South Essex Estuary Co; Ex parte Chorley (1870) LR 11 Eq 157 at 162 per Sir Malins VC.

Source

[Halsbury's Laws of Australia]

View Full Date/Time Thursday, October, 25, 2012, 12:34 EST 1 of 1 Back to Top

About LexisNexis | Terms & Conditions | My ID Copyright 2012 LexisNexis . All rights reserved.

(IV) Enforcement of Bonds (A) Remedies The paragraph below is current to 07 February 2012 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [140-400] Relief against penalty It is common practice for a double or conditional bond to provide for the obligor to pay a larger sum (expressed in the obligation) than that which would have been payable by the obligor had the condition in the bond been fulfilled.1 Whether or not the sum expressed in the obligation may be recovered by the obligee will depend upon whether this sum is characterised as liquidated damages (that is, a genuine pre-estimate of the damages flowing from a breach of the condition) or as a penalty.2 If the sum payable on breach of the condition is a reasonable pre-estimate of the loss flowing from the breach and termination of the bond, then the clause will not be struck down as a penalty notwithstanding that the right to terminate may be exercised upon the occurrence of a trivial breach.3 If the clause is characterised as a penalty, 4 the clause will be unenforceable ab initio5 and the obligee will be restricted to recovery of the actual damages which flow from the breach in lieu of the penalty.6 Notes 1 See [140-305].2 See contract [110-11465]-[110-11515].3 AMEV Finance Ltd v Artes Studios Thoroughbreds Pty Ltd (1989) 15 NSWLR 564 at 575 per Clarke JA ; ODea v Allstates Leasing System (WA) Pty Ltd (1983) 152 CLR 359 at 397-8, 399-400; 45 ALR 632 at 660, 662; 57 ALJR 172; BC8300062 per Deane J .4 The essence of a penalty is a payment of money stipulated as in terrorem of the offending party: Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd [1915] AC 79 at 86; [1914-15] All ER Rep 739 at 741 per Lord Dunedin .5 AMEVUDC Finance Ltd v Austin (1986) 162 CLR 170 at 192; 68 ALR 185 at 200; 60 ALJR 741; BC8601381 per Mason and Wilson JJ . See also Integral Home Loans Pty Ltd v Interstar Wholesale Finance Pty Ltd (No 2) [2007] NSWSC 592; BC200705253 at [7] per Brereton J (where a contractual provision is void as a penalty, it is absolutely void).6 AMEV-UDC Finance Ltd v Austin (1986) 162 CLR 170 at 175-6 per Gibbs CJ, at 191 per Mason and Wilson JJ; 68 ALR 185; 60 ALJR 741; BC8601381 . In New South Wales, it appears that relief against a penalty contained in a common money bond (a specie of double or conditional bonds) may be based upon (NSW) Imperial Acts Application Act 1969 ss 33, 34: Metro-Goldwyn-Mayer Pty Ltd v Greenham [1966] 2 NSWR 717 at 727; (1966) 85 WN (Pt 1) (NSW) 468 per Holmes JA ; AMEV-UDC Finance Ltd v Austin (1986) 162 CLR 170 at 189; 68 ALR 185; 60 ALJR 741; BC8601381 per Mason and Wilson JJ . See also Simpson A W B, The Penal Bond with Conditional Defeasance, (1966) 82 Law Quarterly Review 392.

The paragraph below is current to 07 February 2012 [140-405] Penalties and liquidated damages Whether a sum stipulated in a bond is a penalty or liquidated damages (that is, a genuine pre-estimate of loss) is a question of construction to be decided upon the terms and inherent circumstances of each particular contract, judged as at the time of the making of the contract and not at the time of the breach.1 The general rules applicable in determining whether a term is a penalty or liquidated damages are as follows: (1) it will be held to be a penalty if the sum stipulated is out of all proportion, or extravagant, exorbitant or unconscionable in amount in comparison with the greatest loss that could conceivably be proved to have followed from the breach;2 (2) it will be a penalty if the breach consists only of non-payment of a sum of money and the sum stipulated is a sum greater than the sum which ought to have been paid;3 and (3) a presumption arises that it is a penalty when a single lump sum is made payable by way of compensation on the occurrence of one or more or all of several events, some of which may occasion serious and others only trifling damage.4 A genuine pre-estimate of loss means a pre-estimate which is objectively of that character, that is, a figure which may properly be so called in the light of the contract and the inherent circumstances and it will not be enough merely that the parties honestly believed it to be so.5 If the sum is in effect a penalty then it will be characterised as such regardless of the intention of the parties making it.6 Contemporary authority tends towards construing agreed damages clauses more readily as penalties.7 However, historically, obligations in bonds have been held not to be penalties, for example: (1) where a sum of money is payable by instalments and it is provided that in the event of one instalment not being punctually paid the whole sum will immediately become payable, the accelaration of payment is not a penalty;8 (2) where it is agreed to charge a certain rate of interest on condition that if payment is made punctually the rate will be reduced;9 (3) where an obligee agrees to accept payment of part of the debt in full discharge if certain conditions are met but stipulates that if the conditions are not met, the full amount of the original debt may be claimed;10 and (4) where a bond provides for the payment of the principal sum on some specified future day and interest at stated periods in the interim and further provides that in default of an

interest payment the principal will become payable immediately, the acceleration of payment of the principal is not a penalty and interest can also be claimed.11 Notes 1 Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd [1915] AC 79 at 86-7; [191415] All ER Rep 739 at 741-2 per Lord Dunedin ; ODea v Allstates Leasing System (WA) Pty Ltd (1983) 152 CLR 359 at 368; 45 ALR 632 at 636 per Gibbs CJ; 57 ALJR 172; BC8300062 ; AMEV-UDC Finance Ltd v Austin (1986) 162 CLR 170; 68 ALR 185; 60 ALJR 741; BC8601381 . See also contract [110-11470]. It has been stated that, in determining whether a sum stipulated is penal in character rather than a genuine pre-estimate of loss, the test is one of degree depending upon circumstances such as: (1) the degree of disproportion between the stipulated sum and the loss likely to be suffered by the plaintiff (a factor relevant to the oppressiveness of the term); and (2) the nature of the relationship between the contracting parties (a factor relevant to the unconscionability of the plaintiffs conduct in seeking to enforce the term): AMEV-UDC Finance Ltd v Austin (1986) 162 CLR 170 at 193; 68 ALR 185; 60 ALJR 741; BC8601381 per Mason and Wilson JJ ; Ringrow Pty Ltd v BP Australia Pty Ltd (2005) 224 CLR 656; 222 ALR 306; [2005] HCA 71; BC200509730 at [27] per Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ . 2 Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd [1915] AC 79 at 86; [1914-15] All ER Rep 739 at 742 per Lord Dunedin ; AMEV Finance Ltd v Artes Studios Thoroughbreds Pty Ltd (1989) 15 NSWLR 564 at 571 per Clarke JA ; ODea v Allstates Leasing System (WA) Pty Ltd (1983) 152 CLR 359 at 400; 45 ALR 632 at 662; 57 ALJR 172; BC8300062 per Deane J ; AMEV-UDC Finance Ltd v Austin (1986) 162 CLR 170 at 190; 68 ALR 185; 60 ALJR 741; BC8601381 per Mason and Wilson JJ ; Esanda Finance Corp Ltd v Plessnig (1989) 166 CLR 131 at 141; 84 ALR 99; 63 ALJR 238; (1989) ASC 55-699 per Wilson and Toohey JJ . It should be noted, however, that in determining whether a stipulated sum is a genuine pre-estimate of loss or a penalty, relevant loss is not restricted to the loss flowing immediately and merely from the actual breach; it includes the loss of the benefit of the contract resulting from the election to terminate for breach and a clause which imposes such a liability will not necessarily be characterised as a penalty: Esanda Finance Corp Ltd v Plessnig (1989) 166 CLR 131 at 140 per Wilson and Toohey JJ, at 147 per Brennan J; 84 ALR 99; 63 ALJR 238; (1989) ASC 55-699 ; Interstar Wholesale Finance Pty Ltd v Integral Home Loans Pty Ltd (2008) 257 ALR 292; [2008] NSWCA 310; BC200810413 at [113] per Allsop P (Giles and Ipp JJA concurring). See further contract [110-11490]-[110-11515].3 Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd [1915] AC 79 at 86; [1914-15] All ER Rep 739 at 742 per Lord Dunedin ; AMEV Finance Ltd v Artes Studios Thoroughbreds Pty Ltd (1989) 15 NSWLR 564 at 572 per Clarke JA . See contract [110-11490]-[110-11515].4 Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd [1915] AC 79 at 86; [1914-15] All ER Rep 739 at 742 per Lord Dunedin ; AMEV Finance Ltd v Artes Studios Thoroughbreds Pty Ltd (1989) 15 NSWLR 564 at 572 per Clarke JA . See contract [110-11490]-[110-11515].5 WT Malouf Pty Ltd v Brinds Ltd (1981) 52 FLR 442 at 462 per Samuels JA , CA(NSW).6 ODea v Allstates Leasing System (WA) Pty Ltd (1983) 152 CLR 359 at 400; 45 ALR 632 at 662; 57 ALJR 172; BC8300062 per Deane J .7 See AMEV Finance Ltd v Artes Studios Thoroughbreds Pty Ltd (1989) 15 NSWLR 564 ; AMEV-UDC Finance Ltd v Austin (1986) 162 CLR 170; 68 ALR 185; 60 ALJR 741; BC8601381 ; ODea v Allstates Leasing System (WA) Pty Ltd (1983) 152 CLR 359; 45 ALR 632; 57 ALJR 172; BC8300062 .8 Protector Endowment Loan and Annuity Co v Grice (1880) 5 QBD 592; 43 LT 564 ; Wallingford v Mutual Society (1880) LR 5 App Cas 685; [1874-80] All ER Rep Ext 1386.9 Astley v Weldon (1801) 2 Bos & P 346 at 353; [1775-1802] All ER Rep 606 at 609-10; (1801) 126 ER 1318 at

1322 per Heath J .10 Re Neil; Ex parte Burden (1881) 16 Ch D 675 ; Thompson v Hudson (1869) LR 4 HL 1 at 15-16 per Lord Hatherley LC, at 27-8, 30 per Lord Westbury; 38 LJ Ch 431.11 Goad v Empire Printing & Publishing Co Ltd (1888) 52 JP 438. The paragraph below is current to 07 February 2012 [140-408] Injunction where parties agree on penalty for breach A court will grant an injunction to restrain an apprehended breach of an agreement, notwithstanding that a condition in the bond provides for the payment of a stipulated sum upon breach of the condition, unless it was the intention of the parties that the sum was an agreed price for breaking the agreement.1 Notes 1 French v Macale (1842) 2 Dr & War 269; [1835-42] All ER Rep 6 ; Hardy v Martin (1783) 1 Cox Eq Cas 26; [1775-1802] All ER Rep 101; (1783) 29 ER 1046 ; Bird v Lake (1863) 1 Hem & M 111; 71 ER 49 ; Jones v Heavens (1877) 4 Ch D 636 ; London and Yorkshire Banking Co v Pritt (1887) 56 LJ Ch 987; 57 LT 875; National Provincial Bank of England v Marshall (1888) 40 Ch D 112 , CA.

Source

[Halsbury's Laws of Australia]

View Full Date/Time Thursday, October, 25, 2012, 12:34 EST 1 of 1 About LexisNexis | Terms & Conditions | My ID Copyright 2012 LexisNexis . All rights reserved. Back to Top

(B) Limitation of Actions The paragraph below is current to 07 February 2012 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [140-410] Limitation periods Each Australian jurisdiction makes specific legislative provision regarding the limitation period applicable to causes of action arising in respect of instruments variously described as deeds,1 specialties,2 bonds or other specialty.3 In the Australian Capital Territory, the Northern Territory, New South Wales, Queensland, Tasmania and Western Australia, an action founded on a deed, speciality or bond cannot be brought after the expiration of 12 years running from the date on which the cause of action first accrued.4

In South Australia and Victoria, an action is not maintainable on a bond following the expiration of 15 years from the date of accrual of the cause of action.5 It would appear that where performance of a condition in a bond calls for the performance of successive acts, such as the payment of money by instalments or the payment of interest at specified intervals, there may be a series of successive and separate breaches and a fresh cause of action will arise upon the occasion of each new breach.6 Notes 1 (ACT) Limitation Act 1985 s 13 (NT) Limitation Act 1981 s 14(1) (NSW) Limitation Act 1969 s 16 (WA) Limitation Act 2005 s 18. 2 (QLD) Limitation of Actions Act 1974 s 10(3) (TAS) Limitation Act 1974 s 4(3). 3 (SA) Limitation of Actions Act 1936 s 34 (VIC) Limitation of Actions Act 1958 s 5(3). 4 (ACT) Limitation Act 1985 s 13 (NT) Limitation Act 1981 s 14(1) (NSW) Limitation Act 1969 s 16 (QLD) Limitation of Actions Act 1974 s 10(3) (TAS) Limitation Act 1974 s 4(3) (WA) Limitation Act 2005 s 18. See limitation of actions [255-165]. 5 (SA) Limitation of Actions Act 1936 s 34 (VIC) Limitation of Actions Act 1958 s 5(3). See limitation of actions [255-165]. 6 See Amott v Holden (1852) 18 QB 593; 118 ER 224; Blair v Ormond (1851) 17 QB 423; 117 ER 1341. See also Re Dixon; Heynes v Dixon [1900] 2 Ch 561; [1900-3] All ER Rep Ext 1618 ; Amos v Smith (1862) 1 H & C 238; 158 ER 873 .

Source

[Halsbury's Laws of Australia]

View Full Date/Time Thursday, October, 25, 2012, 12:34 EST 1 of 1

1 of 1 About LexisNexis | Terms & Conditions | My ID Copyright 2012 LexisNexis . All rights reserved.

Back to Top

(B) Limitation of Actions The paragraph below is current to 07 February 2012 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [140-410] Limitation periods Each Australian jurisdiction makes specific legislative provision regarding the limitation period applicable to causes of action arising in respect of instruments variously described as deeds,1 specialties,2 bonds or other specialty.3 In the Australian Capital Territory, the Northern Territory, New South Wales, Queensland, Tasmania and Western Australia, an action founded on a deed, speciality or bond cannot be brought after the expiration of 12 years running from the date on which the cause of action first accrued.4 In South Australia and Victoria, an action is not maintainable on a bond following the expiration of 15 years from the date of accrual of the cause of action.5 It would appear that where performance of a condition in a bond calls for the performance of successive acts, such as the payment of money by instalments or the payment of interest at specified intervals, there may be a series of successive and separate breaches and a fresh cause of action will arise upon the occasion of each new breach.6 Notes 1 (ACT) Limitation Act 1985 s 13 (NT) Limitation Act 1981 s 14(1) (NSW) Limitation Act 1969 s 16 (WA) Limitation Act 2005 s 18. 2 (QLD) Limitation of Actions Act 1974 s 10(3) (TAS) Limitation Act 1974 s 4(3). 3 (SA) Limitation of Actions Act 1936 s 34 (VIC) Limitation of Actions Act 1958 s 5(3).

4 (ACT) Limitation Act 1985 s 13 (NT) Limitation Act 1981 s 14(1) (NSW) Limitation Act 1969 s 16 (QLD) Limitation of Actions Act 1974 s 10(3) (TAS) Limitation Act 1974 s 4(3) (WA) Limitation Act 2005 s 18. See limitation of actions [255-165]. 5 (SA) Limitation of Actions Act 1936 s 34 (VIC) Limitation of Actions Act 1958 s 5(3). See limitation of actions [255-165]. 6 See Amott v Holden (1852) 18 QB 593; 118 ER 224; Blair v Ormond (1851) 17 QB 423; 117 ER 1341. See also Re Dixon; Heynes v Dixon [1900] 2 Ch 561; [1900-3] All ER Rep Ext 1618 ; Amos v Smith (1862) 1 H & C 238; 158 ER 873 .

Source

[Halsbury's Laws of Australia]

View Full Date/Time Thursday, October, 25, 2012, 12:34 EST 1 of 1 About LexisNexis | Terms & Conditions | My ID Copyright 2012 LexisNexis . All rights reserved. Back to Top

(2) INSTRUMENTS UNDER HAND

This chapter was updated by Adrian Coorey BEc/LLB(Hons I)(Macq), LLM(Hons)(Cantab), BCom(Macq) Principal Lawyer, Australian Competition and Consumer Commission Lecturer, Macquarie University and University of Western Sydney

(A) Generally The paragraph below is current to 07 February 2012 [140-430] Definition An instrument under hand is any document in writing which creates or affects legal or equitable rights and/or liabilities and is authenticated by the signature of the maker of the document.1 Instruments under hand are distinct from deeds in that instruments under hand are not sealed. Written contracts are perhaps the most common example of an instrument under hand. Instruments under hand do not need to meet the various formalities required of deeds,2 and as such it is not uncommon that an instrument which fails as a deed may nevertheless be a valid instrument under hand.3 Notes 1 Chadwick v Clarke (1845) 1 CB 700 at 707-8; 135 ER 717 at 720 per Coltman J ; Mason v Schuppisser (1899) 81 LT 147 at 148.2 See [140-1], [140-25].3 Windsor Refrigerator Co Ltd v Branch Nominees Ltd [1961] Ch 88; [1960] 2 All ER 568 per Cross J (reversed on other grounds Windsor Refrigerator Co Ltd v Branch Nominees Ltd [1961] Ch 375; [1961] 1 All ER 277; [1961] 2 WLR 196 ). The paragraph below is current to 07 February 2012 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [140-435] Effect The effect of an instrument under hand will vary according to the circumstances in which it is used. For example, if it is concerned with a contract, the instrument may either contain the contract itself or simply be a memorandum of a contract already entered into orally.1 As in the case of deeds, it is open to a party, in particular instances, to avoid the binding effect of the instrument by demonstrating the existence of some vitiating factor which renders the instrument either voidable or void ab initio.2 Notes 1 See the operation of (IMP) Statute of Frauds 1677 s 4 as received into Australian law as regards contracts for the sale of land: (ACT) Civil Law (Property) Act 2006 ss 201-203 (NT) Law of Property Act 2000 ss 9, 10, 62 (NSW) Conveyancing Act 1919 ss 23C(1)(a), 54A(1) (QLD) Property Law Act 1974 ss 11(1)(a), 59 (SA) Law of Property Act 1936 ss 26(1), 29(1)(a) (TAS) Conveyancing and Law of Property Act 1884 ss 36(1), 60(2)(a) (VIC) Instruments Act 1958 s 126; (VIC) Property Law Act 1958 s 53(1)(a)

(WA) Property Law Act 1969 s 34(1). 2 See generally [140-215]-[140-230] and contract [110-5001]-[110-6055].

Source

[Halsbury's Laws of Australia]

View Full Date/Time Thursday, October, 25, 2012, 12:35 EST 1 of 1 About LexisNexis | Terms & Conditions | My ID Copyright 2012 LexisNexis . All rights reserved. Back to Top

(B) When Writing is Necessary The paragraph below is current to 07 February 2012 [140-440] Generally There is no general requirement at law or in equity that contracts be in writing.1 If writing is required, this will be the result of the parties intentions or because of some statutory requirement.2 Transactions by which statute requires a deed for the transfer of some proprietary interest, and which are consequently made only by way of instrument under hand, will be enforceable in equity if supported by valuable consideration or, if the agreement is oral, there are sufficient acts of part performance.3 Notes 1 See contract [110-965].2 See contract [110-965].3 See Carberry v Gardiner (1936) 36 SR (NSW) 559 at 567-70; 53 WN (NSW) 168 per Jordan CJ and Stephen J ; Terrex Resources NL v Magnet Petroleum Pty Ltd [1988] 1 WAR 144; (1988) 98 FLR 328 ; Watson v Delaney (1991) 22 NSWLR 358 at 365-6; (1991) NSW ConvR 54-418 per Meagher JA , CA(NSW). See generally equity [185-460]. The paragraph below is current to 07 February 2012 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [140-445] Specific instances There are a number of specific examples in which particular transactions and legal acts are required by statute to be evidenced in writing.1 These include:2 (1)

the creation or disposition of interests in land, declarations of trust in respect of land or any interest therein, and dispositions of an equitable interest or trust subsisting at the time of the disposition;3 (2) notice of the assignment of debts and other legal choses in action;4 (3) contracts for the sale or disposition of land or any interest in land;5 (4) acknowledgments of title of debts and confirmation of a cause of action under limitation of actions legislation;6 (5) notices served on tenants prior to the exercise of a right of re-entry or forfeiture;7 (6) statutory notices;8 (7) consents by beneficiaries to a breach of trust so as to entitle a trustee to an indemnity against the beneficiary;9 and (8) promises to answer for the debt, default or miscarriage of another person or upon a contract for the sale or other disposition of an interest in land.10 Notes 1 See contract [110-965]-[110-1095].2 This list is not exhaustive as to statutory requirements of writing. As to the form and content of an instrument in writing see [140-450].3 (ACT) Civil Law (Property) Act 2006 s 201 (NT) Law of Property Act 2000 s 10 (NSW) Conveyancing Act 1919 s 23C(1) (QLD) Property Law Act 1974 s 11 (SA) Law of Property Act 1936 s 29(1) (TAS) Conveyancing and Law of Property Act 1884 s 60(2) (VIC) Property Law Act 1958 s 53(1) (WA) Property Law Act 1969 s 34(1). 4 (ACT) Civil Law (Property) Act 2006 s 205 (NT) Law of Property Act 2000 s 182

(NSW) Conveyancing Act 1919 s 12 (QLD) Property Law Act 1974 s 199 (SA) Law of Property Act 1936 s 15 (TAS) Conveyancing and Law of Property Act 1884 s 86 (VIC) Property Law Act 1958 s 134 (WA) Property Law Act 1969 s 20. 5 (ACT) Civil Law (Property) Act 2006 s 201 (NT) Law of Property Act 2000 s 62 (NSW) Conveyancing Act 1919 s 54A (QLD) Property Law Act 1974 s 59 (SA) Law of Property Act 1936 s 26(1) (TAS) Conveyancing and Law of Property Act 1884 s 36(1) (VIC) Instruments Act 1958 s 126 (WA) Property Law Act 1969 s 34(1). 6 (ACT) Limitation Act 1985 s 32 (NT) Limitation Act 1981 s 41 (NSW) Limitation Act 1969 s 54 (QLD) Limitation of Actions Act 1974 s 35 (SA) Limitation of Actions Act 1936 s 42 (TAS) Limitation Act 1974 s 29(4) (VIC) Limitation of Actions Act 1958 s 24 (WA) Limitation Act 1935 s 44. See limitation of actions. 7 (ACT) Civil Law (Property) Act 2006 s 426(1) (NT) Law of Property Act 2000 s 137(2) (NSW) Conveyancing Act 1919 s 129(1) (QLD) Property Law Act 1974 s 124(1) (SA) Landlord and Tenant Act 1936 s 10 (TAS) Conveyancing and Law of Property Act 1884 s 15(1) (VIC) Property Law Act 1958 s 146(1)

(WA) Property Law Act 1969 s 81(1). See further leases and tenancies [245-4005]-[245-4080]. 8 (ACT) Civil Law (Property) Act 2006 s 427 (NT) Law of Property Act 2000 s 219 (NSW) Conveyancing Act 1919 s 170 (QLD) Property Law Act 1974 s 347 (SA) Law of Property Act 1936 s 112 (TAS) Conveyancing and Law of Property Act 1884 s 85 (VIC) Property Law Act 1958 s 198 (WA) Property Law Act 1969 s 135. 9 (NT) Trustee Act 1893 (SA) s 50 (NSW) Trustee Act 1925 s 86 (QLD) Trusts Act 1973 s 77 (SA) Trustee Act 1936 s 57 (TAS) Trustee Act 1898 s 53 (VIC) Trustee Act 1958 s 68 (WA) Trustees Act 1962 s 76. There are no equivalent provisions in the Australian Capital Territory. 10 (NT) Law of Property Act 2000 s 58 (QLD) Property Law Act 1974 s 56 (TAS) Mercantile Law Act 1935 s 6 (VIC) Instruments Act 1958 s 126 (WA) Statute of Frauds 1677 (IMP) s 4; (WA) Law Reform (Statute of Frauds) Act 1962 s 2. There are no equivalent provisions in the other jurisdictions.

Source

[Halsbury's Laws of Australia]

View Full Date/Time Thursday, October, 25, 2012, 12:35 EST 1 of 1 Back to Top

About LexisNexis | Terms & Conditions | My ID Copyright 2012 LexisNexis . All rights reserved.

(B) When Writing is Necessary The paragraph below is current to 07 February 2012 [140-440] Generally There is no general requirement at law or in equity that contracts be in writing.1 If writing is required, this will be the result of the parties intentions or because of some statutory requirement.2 Transactions by which statute requires a deed for the transfer of some proprietary interest, and which are consequently made only by way of instrument under hand, will be enforceable in equity if supported by valuable consideration or, if the agreement is oral, there are sufficient acts of part performance.3 Notes 1 See contract [110-965].2 See contract [110-965].3 See Carberry v Gardiner (1936) 36 SR (NSW) 559 at 567-70; 53 WN (NSW) 168 per Jordan CJ and Stephen J ; Terrex Resources NL v Magnet Petroleum Pty Ltd [1988] 1 WAR 144; (1988) 98 FLR 328 ; Watson v Delaney (1991) 22 NSWLR 358 at 365-6; (1991) NSW ConvR 54-418 per Meagher JA , CA(NSW). See generally equity [185-460]. The paragraph below is current to 07 February 2012 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [140-445] Specific instances There are a number of specific examples in which particular transactions and legal acts are required by statute to be evidenced in writing.1 These include:2 (1) the creation or disposition of interests in land, declarations of trust in respect of land or any interest therein, and dispositions of an equitable interest or trust subsisting at the time of the disposition;3 (2) notice of the assignment of debts and other legal choses in action;4 (3) contracts for the sale or disposition of land or any interest in land;5 (4)

acknowledgments of title of debts and confirmation of a cause of action under limitation of actions legislation;6 (5) notices served on tenants prior to the exercise of a right of re-entry or forfeiture;7 (6) statutory notices;8 (7) consents by beneficiaries to a breach of trust so as to entitle a trustee to an indemnity against the beneficiary;9 and (8) promises to answer for the debt, default or miscarriage of another person or upon a contract for the sale or other disposition of an interest in land.10 Notes 1 See contract [110-965]-[110-1095].2 This list is not exhaustive as to statutory requirements of writing. As to the form and content of an instrument in writing see [140-450].3 (ACT) Civil Law (Property) Act 2006 s 201 (NT) Law of Property Act 2000 s 10 (NSW) Conveyancing Act 1919 s 23C(1) (QLD) Property Law Act 1974 s 11 (SA) Law of Property Act 1936 s 29(1) (TAS) Conveyancing and Law of Property Act 1884 s 60(2) (VIC) Property Law Act 1958 s 53(1) (WA) Property Law Act 1969 s 34(1). 4 (ACT) Civil Law (Property) Act 2006 s 205 (NT) Law of Property Act 2000 s 182 (NSW) Conveyancing Act 1919 s 12 (QLD) Property Law Act 1974 s 199 (SA) Law of Property Act 1936 s 15 (TAS) Conveyancing and Law of Property Act 1884 s 86 (VIC) Property Law Act 1958 s 134 (WA) Property Law Act 1969 s 20. 5 (ACT) Civil Law (Property) Act 2006 s 201

(NT) Law of Property Act 2000 s 62 (NSW) Conveyancing Act 1919 s 54A (QLD) Property Law Act 1974 s 59 (SA) Law of Property Act 1936 s 26(1) (TAS) Conveyancing and Law of Property Act 1884 s 36(1) (VIC) Instruments Act 1958 s 126 (WA) Property Law Act 1969 s 34(1). 6 (ACT) Limitation Act 1985 s 32 (NT) Limitation Act 1981 s 41 (NSW) Limitation Act 1969 s 54 (QLD) Limitation of Actions Act 1974 s 35 (SA) Limitation of Actions Act 1936 s 42 (TAS) Limitation Act 1974 s 29(4) (VIC) Limitation of Actions Act 1958 s 24 (WA) Limitation Act 1935 s 44. See limitation of actions. 7 (ACT) Civil Law (Property) Act 2006 s 426(1) (NT) Law of Property Act 2000 s 137(2) (NSW) Conveyancing Act 1919 s 129(1) (QLD) Property Law Act 1974 s 124(1) (SA) Landlord and Tenant Act 1936 s 10 (TAS) Conveyancing and Law of Property Act 1884 s 15(1) (VIC) Property Law Act 1958 s 146(1) (WA) Property Law Act 1969 s 81(1). See further leases and tenancies [245-4005]-[245-4080]. 8 (ACT) Civil Law (Property) Act 2006 s 427 (NT) Law of Property Act 2000 s 219 (NSW) Conveyancing Act 1919 s 170 (QLD) Property Law Act 1974 s 347 (SA) Law of Property Act 1936 s 112

(TAS) Conveyancing and Law of Property Act 1884 s 85 (VIC) Property Law Act 1958 s 198 (WA) Property Law Act 1969 s 135. 9 (NT) Trustee Act 1893 (SA) s 50 (NSW) Trustee Act 1925 s 86 (QLD) Trusts Act 1973 s 77 (SA) Trustee Act 1936 s 57 (TAS) Trustee Act 1898 s 53 (VIC) Trustee Act 1958 s 68 (WA) Trustees Act 1962 s 76. There are no equivalent provisions in the Australian Capital Territory. 10 (NT) Law of Property Act 2000 s 58 (QLD) Property Law Act 1974 s 56 (TAS) Mercantile Law Act 1935 s 6 (VIC) Instruments Act 1958 s 126 (WA) Statute of Frauds 1677 (IMP) s 4; (WA) Law Reform (Statute of Frauds) Act 1962 s 2. There are no equivalent provisions in the other jurisdictions.

Source

[Halsbury's Laws of Australia]

View Full Date/Time Thursday, October, 25, 2012, 12:35 EST 1 of 1 About LexisNexis | Terms & Conditions | My ID Copyright 2012 LexisNexis . All rights reserved. Back to Top

(B) When Writing is Necessary

The paragraph below is current to 07 February 2012 [140-440] Generally There is no general requirement at law or in equity that contracts be in writing.1 If writing is required, this will be the result of the parties intentions or because of some statutory requirement.2 Transactions by which statute requires a deed for the transfer of some proprietary interest, and which are consequently made only by way of instrument under hand, will be enforceable in equity if supported by valuable consideration or, if the agreement is oral, there are sufficient acts of part performance.3 Notes 1 See contract [110-965].2 See contract [110-965].3 See Carberry v Gardiner (1936) 36 SR (NSW) 559 at 567-70; 53 WN (NSW) 168 per Jordan CJ and Stephen J ; Terrex Resources NL v Magnet Petroleum Pty Ltd [1988] 1 WAR 144; (1988) 98 FLR 328 ; Watson v Delaney (1991) 22 NSWLR 358 at 365-6; (1991) NSW ConvR 54-418 per Meagher JA , CA(NSW). See generally equity [185-460]. The paragraph below is current to 07 February 2012 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [140-445] Specific instances There are a number of specific examples in which particular transactions and legal acts are required by statute to be evidenced in writing.1 These include:2 (1) the creation or disposition of interests in land, declarations of trust in respect of land or any interest therein, and dispositions of an equitable interest or trust subsisting at the time of the disposition;3 (2) notice of the assignment of debts and other legal choses in action;4 (3) contracts for the sale or disposition of land or any interest in land;5 (4) acknowledgments of title of debts and confirmation of a cause of action under limitation of actions legislation;6 (5) notices served on tenants prior to the exercise of a right of re-entry or forfeiture;7 (6) statutory notices;8 (7) consents by beneficiaries to a breach of trust so as to entitle a trustee to an indemnity

against the beneficiary;9 and (8) promises to answer for the debt, default or miscarriage of another person or upon a contract for the sale or other disposition of an interest in land.10 Notes 1 See contract [110-965]-[110-1095].2 This list is not exhaustive as to statutory requirements of writing. As to the form and content of an instrument in writing see [140-450].3 (ACT) Civil Law (Property) Act 2006 s 201 (NT) Law of Property Act 2000 s 10 (NSW) Conveyancing Act 1919 s 23C(1) (QLD) Property Law Act 1974 s 11 (SA) Law of Property Act 1936 s 29(1) (TAS) Conveyancing and Law of Property Act 1884 s 60(2) (VIC) Property Law Act 1958 s 53(1) (WA) Property Law Act 1969 s 34(1). 4 (ACT) Civil Law (Property) Act 2006 s 205 (NT) Law of Property Act 2000 s 182 (NSW) Conveyancing Act 1919 s 12 (QLD) Property Law Act 1974 s 199 (SA) Law of Property Act 1936 s 15 (TAS) Conveyancing and Law of Property Act 1884 s 86 (VIC) Property Law Act 1958 s 134 (WA) Property Law Act 1969 s 20. 5 (ACT) Civil Law (Property) Act 2006 s 201 (NT) Law of Property Act 2000 s 62 (NSW) Conveyancing Act 1919 s 54A (QLD) Property Law Act 1974 s 59 (SA) Law of Property Act 1936 s 26(1) (TAS) Conveyancing and Law of Property Act 1884 s 36(1) (VIC) Instruments Act 1958 s 126 (WA) Property Law Act 1969 s 34(1).

6 (ACT) Limitation Act 1985 s 32 (NT) Limitation Act 1981 s 41 (NSW) Limitation Act 1969 s 54 (QLD) Limitation of Actions Act 1974 s 35 (SA) Limitation of Actions Act 1936 s 42 (TAS) Limitation Act 1974 s 29(4) (VIC) Limitation of Actions Act 1958 s 24 (WA) Limitation Act 1935 s 44. See limitation of actions. 7 (ACT) Civil Law (Property) Act 2006 s 426(1) (NT) Law of Property Act 2000 s 137(2) (NSW) Conveyancing Act 1919 s 129(1) (QLD) Property Law Act 1974 s 124(1) (SA) Landlord and Tenant Act 1936 s 10 (TAS) Conveyancing and Law of Property Act 1884 s 15(1) (VIC) Property Law Act 1958 s 146(1) (WA) Property Law Act 1969 s 81(1). See further leases and tenancies [245-4005]-[245-4080]. 8 (ACT) Civil Law (Property) Act 2006 s 427 (NT) Law of Property Act 2000 s 219 (NSW) Conveyancing Act 1919 s 170 (QLD) Property Law Act 1974 s 347 (SA) Law of Property Act 1936 s 112 (TAS) Conveyancing and Law of Property Act 1884 s 85 (VIC) Property Law Act 1958 s 198 (WA) Property Law Act 1969 s 135. 9 (NT) Trustee Act 1893 (SA) s 50 (NSW) Trustee Act 1925 s 86 (QLD) Trusts Act 1973 s 77 (SA) Trustee Act 1936 s 57

(TAS) Trustee Act 1898 s 53 (VIC) Trustee Act 1958 s 68 (WA) Trustees Act 1962 s 76. There are no equivalent provisions in the Australian Capital Territory. 10 (NT) Law of Property Act 2000 s 58 (QLD) Property Law Act 1974 s 56 (TAS) Mercantile Law Act 1935 s 6 (VIC) Instruments Act 1958 s 126 (WA) Statute of Frauds 1677 (IMP) s 4; (WA) Law Reform (Statute of Frauds) Act 1962 s 2. There are no equivalent provisions in the other jurisdictions.

Source

[Halsbury's Laws of Australia]

View Full Date/Time Thursday, October, 25, 2012, 12:35 EST 1 of 1 About LexisNexis | Terms & Conditions | My ID Copyright 2012 LexisNexis . All rights reserved. Back to Top

(3) INTERPRETATION OF DEEDS AND INSTRUMENTS UNDER HAND

This chapter was updated by Adrian Coorey BEc/LLB(Hons I)(Macq), LLM(Hons)(Cantab), BCom(Macq) Principal Lawyer, Australian Competition and Consumer Commission Lecturer, Macquarie University and University of Western Sydney

(A) Generally

The paragraph below is current to 07 February 2012 [140-490] Intention and construction of instruments In construing any written instrument, whether it is under seal or not, the object is to discover and give effect to the intention of the parties.1 All deeds and instruments under hand are to be construed, not only strictly according to their words, but, so far as possible without infringing any rule of law, in such a way as to give effect to the intention of the parties.2 If the words of an instrument are ambiguous or capable of more than one meaning, courts will look to the intention of the parties in construing the instrument and will generally construe the instrument in the manner which appears most consistent with the perceived intention of the parties.3 Similarly, an instrument ought not to be construed in such a way as to render it wholly inoperative4 and if one interpretation would effectuate the contract and another would invalidate it, the court will lean to that construction which effectuates the instrument on the basis that this must represent the intention of the parties.5 A contract of which there may be more than one possible meaning or which when construed may provide more than one result is not as a consequence void for uncertainty. If it is capable of a meaning, it will ultimately bear that meaning which the courts decide is its proper construction. The question becomes one of construction, of ascertaining the intention of the parties and applying it.6 If the language of the contract is not so obscure and so incapable of any definite or precise meaning that the court is unable to attribute to the parties any particular contractual intention, the contract will not be void. In the search for the parties intention this approach must not be narrow or pedantic, especially in the case of commercial arrangements.7 When a deed clearly contains errors of drafting or is otherwise unclear, the intention of the parties might best be deduced by asking what construction would make the most commercial sense.8 In order to give effect to the intention of the parties and to give business efficacy to a contract, courts may imply a term.9 It has been held that for a term to be implied a number of conditions must be satisfied. The term must:10 (1) be reasonable and equitable; (2) be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it; (3) be so obvious that it goes without saying; (4) be capable of clear expression; and (5) not contradict any express term of the contract. However, the court must take great care not to create a new agreement for the parties, nor create out of an unreasonable agreement something which would be reasonable, for the sake of upholding what would otherwise be void.11

In construing an instrument it is immaterial whether it is a deed or an instrument under hand12 and the words of a contract will be construed to have the same meaning in both courts of law and equity.13 In this regard, equity follows the law.14 In construing an instrument every part of it should be brought into action in order to collect from the whole one uniform and consistent sense, that is, the entire instrument must be construed, not merely disjointed parts of it.15 If the parties have used clear language in wording their agreement the court may not construe this clear language in such a way as to alter its meaning.16 Notes 1 Throckmerton v Tracy (1555) 1 Plowd 145 at 160; [1558-1774] All ER Rep 168; (1555) 75 ER 222 at 246-7 per Staunford J; Cholmondeley v Lord Clinton (1820) 2 Jac & W 1 at 91; 37 ER 527 at 559 per Plummer MR ; Evans v Vaughan (1825) 4 B & C 261 at 266; 107 ER 1056 at 1058 per Abbott CJ; Preston R (ed), Sheppards Touchstone of Common Assurances, 7th ed, London, 1820, p 86.2 Hilbers v Parkinson (1883) 25 Ch D 200 at 203-4 per Pearson J .3 Solly v Forbes (1820) 2 Brod & Bing 38 at 48; [1814-23] All ER Rep 437; (1820) 129 ER 871 ; Parkhurst v Smith (1742) Willes 327 at 332; 125 ER 1197 at 1200; Hayne v Cummings (1864) 16 CBNS 421; 143 ER 1191 ; Cochran & Son v Leckies Trustee (1906) 8 F (Ct of Sess) 975. See also Bowler v Hilda Pty Ltd (in liq) (2001) 112 FCR 59; 113 LGERA 186; [2001] FCA 342; BC200101432 .4 Butterley Co Ltd v New Hucknall Colliery Co Ltd [1909] 1 Ch 37 at 46 per Cozens-Hardy MR .5 Pugh v Duke of Leeds (1777) 2 Cowp 714 at 717; 98 ER 1323 at 1324-5 per Lord Mansfield LJ ; Atkinson v Hutchinson (1734) 3 P Wms 258 at 260; 24 ER 1053 at 1054 per Talbot LC; Solly v Forbes (1820) 2 Brod & Bing 38; [1814-23] All ER Rep 437; (1820) 129 ER 871 ; Rosin and Turpentine Import Co Ltd v B Jacob and Sons Ltd (1909) 101 LT 56 per Farewell LJ; Inland Revenue Commissioners v Williams [1969] 3 All ER 614 at 618; [1969] 1 WLR 1197 at 1201 per Megarry J ; Re Badens Deed Trusts v Smith [1969] 2 Ch 388 at 400 per Harman LJ ; Drew Robinson & Co v Shearer (1914) 18 CLR 209 at 221; [1914] HCA 35 per Isaacs and Rich JJ .6 Upper Hunter County District Council v Australian Chilling and Freezing Co Ltd (1968) 118 CLR 429; 41 ALJR 348; BC6800450 per Barwick CJ . See further Godecke v Kirwan (1973) 129 CLR 629; 1 ALR 457; 47 ALJR 543; BC7300037 ; Meehan v Jones (1982) 149 CLR 571; 42 ALR 463; 56 ALJR 813; BC8200103 .7 Upper Hunter County District Council v Australian Chilling and Freezing Co Ltd (1968) 118 CLR 429 at 429-30; 41 ALJR 348; BC6800450 per Barwick CJ (McTiernan, Kitto and Windeyer JJ concurring); Savoy Investments Qld Pty Ltd v Global Nominees Pty Ltd (2008) Q ConvR 690; [2008] QSC 56; BC200802173 at [43] per Lyons J.8 Tom Elvin Pty Ltd v Knell [2003] ACTSC 36; BC200302398 at [15] per Crispin J .9 See [140-545] and contract [110-2100]-[110-2220].10 Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 at 347; 41 ALR 367 at 369-70; 56 ALJR 459; BC8200083 per Mason J (followed Breen v Williams (1996) 186 CLR 71; 138 ALR 259; 43 ALD 481; 70 ALJR 772 (application of contractual principles to a doctor-patient relationship)). See [140-545] and contract [110-2125]-[110-2150]. As to requirements for implication in informal contracts see contract [110-2153].11 Mills v Dunham [1891] 1 Ch 576 at 580 per Chitty J .12 Seddon v Senate (1810) 13 East 63 at 74; 104 ER 290 at 295 per Lord Ellenborough CJ ; Southwell v Bowditch (1876) 1 CPD 374 at 376 per Jessel MR ; Robertson v French (1803) 4 East 130 at 135; [1803-13] All ER Rep 350 at 353; (1803) 102 ER 779 at 781 per Lord Ellenborough CJ ; Carr v Montefiore (1864) 5 B & S 408 at 428; 122 ER 883 at 890 per Erle CJ; Eshelby v Federated European Bank Ltd [1932] 1 KB 254 at 266 per Swift J ; Hart v Standard Marine Insurance Co Ltd (1889) 22 QBD 499 at 501 per Bowen LJ .13 Re Terry and Whites Contract (1886) 32 Ch D 14 at 21 per Lord Esher MR .14 Scott v Liverpool Corporation (1858) 3 De G & J 334; 28 LJ Ch 230 at 235; 44 ER 1297 .15 Metropolitan Gas Co v Federated Gas Employees Industrial Union (1925) 35 CLR 449 at 455; 31 ALR 117 per Isaacs and Rich JJ (in determining the intention of the parties, the whole context must be considered).16 Lindsay v Miller (No 2) [1949] VLR 154 at 158; [1949] ALR 627 per Herring CJ .

The paragraph below is current to 07 February 2012 [140-495] Ascertaining intention The intention of the parties is ascertained objectively by construing the written instrument1 and by having reference to such evidence of surrounding circumstances,2 as is admissible, to assist in the interpretation of the contract if the language is ambiguous or susceptible of more than one meaning.3 It is not admissible to contradict the plain meaning of the language of the contract.4 Generally, facts existing when the contract was made may not be used as an aid to construction unless they were known to both parties. However, if the facts are notorious, knowledge of them is presumed.5 The court must ascertain the meaning of a contract and the intention of the parties by looking to the words of the contract.6 When the issue is which of two or more possible meanings must be given to a contractual provision, the court must not look to the actual intentions, aspirations or expectations of the parties before or at the time of the contract (except in so far as they are expressed in the contract) but to the objective framework of facts within which the contract came into existence and to the parties presumed intention in this setting.7 Weight must be given primarily to the actual language of the written contract and to what is expressed by the parties therein.8 This should not be taken to the point of placing on words a meaning which the parties have united in rejecting and it is possible that evidence of mutual intention, if amounting to concurrence, is admissible to negate an inference sought to be drawn from surrounding circumstances.9 However, if evidence is admissible to show that both parties to a contract agreed to exclude a provision, evidence is also admissible that the parties to a written agreement in the course of pre-contract negotiations10 expressed a common intention that their written agreement would contain a comprehensive statement of the circumstances in which either party would be entitled to terminate it.11 Notes 1 Shore v Wilson (1842) 4 StTrNS 1370; (1842) 9 Cl & Fin 355 at 526 per Coleridge J, at 556 per Parke B; 8 ER 450 ; Northland Airlines Ltd v Dennis Ferranti Meters Ltd (1970) 114 Sol Jo 845.2 See [140-560]-[140-580].3 Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 at 352; 41 ALR 367; 56 ALJR 459; BC8200083 per Mason J ; Yuwana Nominees Pty Ltd v Ong (2008) ASC 155-092; [2008] NSWSC 156; BC200801358 at [8] per Rein AJ .4 Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 at 352; 41 ALR 367; 56 ALJR 459; BC8200083 per Mason J. 5 Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 at 352; 41 ALR 367; 56 ALJR 459; BC8200083 per Mason J. 6 Thames and Mersey Marine Insurance Co v Hamilton, Fraser & Co (The Inchmaree Case) (1887) LR 12 App Cas 484 at 491; [1886-90] All ER Rep 241 per Lord Halsbury LC; Barton v Fitzgerald (1812) 15 East 530 at 541; 104 ER 944 at 948 per Lord Ellenborough CJ ; McConnel v Murphy (1873) LR 5 PC 203 at 218-19; [1861-73] All ER Rep Ext 1075; Mackay v Wilson (1947) 47 SR (NSW) 315 at 320 per Davidson J .7 Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 at 352; 41 ALR 367; 56 ALJR 459; BC8200083 per Mason J ; Sunset Vineyard Management Pty Ltd v Southcorp Wines Pty Ltd [2008] VSCA 96; BC200804200 at [48] per Warren CJ .8 Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 at 352-3; 41 ALR 367; 56 ALJR 459; BC8200083 per Mason J (in interpreting the contract the court must take into account what reasonable people in the situation of the parties would have intended to convey by the words chosen).9 Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 at 353; 41 ALR 367; 56 ALJR 459; BC8200083 per Mason J. 10 See [140-565].11 New South Wales Cancer Council v Sarfaty (1992) 28 NSWLR 68 at 76; 44 IR 1; 34 AILR 294 per Gleeson CJ and Handley JA, CA(NSW).

The paragraph below is current to 07 February 2012 [140-500] Words in their ordinary sense The terms of any written instrument must be understood in their plain, ordinary and popular sense.1 An exception is if they have acquired some other well-known meaning, unless by some custom or usage, that meaning cannot be adopted if it contradicts the written instrument or is inconsistent with it.2 Accordingly, the ordinary sense of the words must be adhered to unless this would lead to some absurdity, repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified so as to avoid that absurdity and inconsistency, but no further.3 When the language of an instrument is construed in its ordinary and natural meaning it is irrelevant that it does not appear to carry out the view that one would in the first instance have imagined the parties intended.4 If the terms of an instrument, when read in their ordinary sense, are contradictory or would lead to an absurdity, then if the language admits one of two constructions, the court may adopt the construction which avoids these anomalies, even though the construction adopted is not the most obvious or the most grammatically accurate.5 Similarly, if the construction of a document is ambiguous (that is, where it is fairly open to two constructions), considerations of inconvenience may be significant in the courts interpretation of the instrument.6 However, if the words used are unambiguous, they cannot be departed from merely because they lead to consequences which are considered capricious, harsh or unreasonable.7 A court may admit evidence of surrounding circumstances in the form of mutually known facts to identify the meaning of a descriptive term and it may admit evidence of the genesis and, objectively, the aim of a transaction to show that the attribution of a strict legal meaning would make the transaction futile.8 There appears to be no general rule that in construing a document the same meaning must be assigned to an expression throughout and it is only in cases of doubt or ambiguity that it is permissible to resort to such a device.9 Notes 1 Robertson v French (1803) 4 East 130 at 135; [1803-13] All ER Rep 350 at 353; (1803) 102 ER 779 at 781 per Lord Eldon ; Hart v Standard Marine Insurance Co Ltd (1889) 22 QBD 499 at 501 per Lord Esher MR ; Stockton Coal Co v McIlwraith, McEacharn & Co (1899) 16 WN (NSW) 59; 20 LR (NSW) L 292 . See further [140-515] (technical words), [140-520] (foreign words).2 Stockton Coal Co v McIlwraith, McEacharn & Co (1899) 16 WN (NSW) 59; 20 LR (NSW) L 292 at 295 per Simpson CJ . See also [140-515] (technical words), [140-520] (foreign words).3 Grey v Pearson (1857) 6 HL Cas 61 at 106; [1843-60] All ER Rep 21; (1857) 26 LJ Ch 473; 10 ER 1216 per Lord Wensleydale; Lee v Alexander (1883) 8 App Cas 853 at 869-70 per Lord Blackburn ; Caledonian Railway Co v North British Railway Co (1881) LR 6 App Cas 114 at 131 per Lord Blackburn.4 Smith & Barrow Haemtite Steel Company Ltd v Cooke and Swinnerton; Storey v Cooke & Swinnerton [1891] AC 297 at 298 per Lord Halsbury LC .5 Abbott v Middleton (1858) 7 HL Cas 89; 11 ER 28 at 36-7 per Lord Chelmsford ; Manns v A-G (NSW) [2010] NSWSC 12; BC201000153 at [41] . 6 Re Alma Spinning Co (Bottomleys Case) (1880) 16 Ch D 681 at 686; 43 LT 620 per Jessel MR .7 Abbott v Middleton (1858) 7 HL Cas 89 at 89; 11 ER 28 at 37 per Lord Chelmsford .8 DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423 at 429; 19 ALR 223; 52 ALJR 360; BC7800034 per Stephen, Jacobs and Mason JJ ; Capital Radio Network Pty Ltd v Garrott [2008] NSWSC 17; BC200800205 at [36] .9 Watson v Haggitt [1928] AC 127 at 131 . Contrast this view with the presumption that the same word is used in the same sense and has the same meaning throughout a statutory enactment, although this rule yields where the context requires otherwise: Madras Electric Supply Corp Ltd v Boarland (Inspector of Taxes) [1955] AC 667 at 685; [1955] 1 All ER 753 per Lord MacDermott . Compare Re Birks; Kenyon v Birks [1900] 1 Ch 417 at 418 per Lindley MR . The paragraph below is current to 07 February 2012

[140-505] Common usage The ordinary meaning of a word is determined by the ordinary usage society applies to it.1 If there is a popular and common word used in an instrument, that word must be construed prima facie in its popular and common sense.2 If it is a word of a technical or legal character3 it must be construed according to its technical or legal meaning. However, before evidence may be given of the secondary meaning, the court must be satisfied that the word ought not to be construed in its popular or primary signification, but according to its secondary intention.4 Courts are generally reluctant to construe words in relation to any meaning other than their common and popular usage.5 However, there are two main situations where this may occur:6 (1) if the conventional meaning of a word or phrase is not the same as the words legal sense, in particular where it has been found as a fact that certain words are used in a special technical sense, then the court will construe the words in that technical sense;7 and (2) if the context in which the words are used affords an interpretation different from the ordinary meaning of the words.8 Resort may be had to dictionaries. Australian or English dictionaries are preferred,9 and care must be taken in relying on American dictionaries.10 Australian dictionaries may be preferred to English dictionaries in some instances.11 Notes 1 Shore v Wilson (1842) 4 StTrNS 1370; (1842) 9 Cl & Fin 355 at 527; 8 ER 450 at 518 per Coleridge J .2 Holt & Co v Collyer (1881) 16 Ch D 718 at 720; 29 WR 502 per Fry J . See, for example, Herbert Adams Pty Ltd v FCT (1932) 47 CLR 222 at 227; 6 ALJR 151a; 2 ATD 31 (a revenue law directed to commerce usually employs the descriptions and adopts the meanings in use among those who exercise the trade concerned); Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389; 43 ALD 193; [1996] HCA 36; BC9605933 at [10] per Brennan CJ, Dawson, Toohey, Gaudron and McHugh JJ .3 See [140-515].4 Holt & Co v Collyer (1881) 16 Ch D 718 at 720; 29 WR 502 per Fry J ; Burns Philp Hardware Ltd v Howard Chia Pty Ltd (1987) 8 NSWLR 642; (1987) ANZ ConvR 185 ; Max Cooper & Sons Pty Ltd v Sydney City Council (1980) 29 ALR 77; 54 ALJR 234 .5 Biddlecombe v Bond (1835) 4 Ad & El 332; 111 ER 811 ; Parker v Gossage (1835) 2 Cr M & R 617; 150 ER 262 ; Holt & Co v Collyer (1881) 16 Ch D 718; 29 WR 502 ; Mowbray, Robinson & Co v Rosser (1922) 28 ALR (CN) 7; 91 LJKB 524 .6 MCowan v Baine (The Niobe) [1891] AC 401 at 408; [1891-94] All ER Rep 343 at 346 per Lord Watson .7 Mallan v May (1843) 11 M & W 653 ; Studdy v Sanders (1826) 5 B & C 628; 108 ER 234; Goblet v Beechey (1829) 3 Sim 24; 57 ER 910; Shore v Wilson (1842) 4 StTrNS 1370; (1842) 9 Cl & Fin 355 at 555, 556; 8 ER 450 . See [140-515].8 MCowan v Baine (The Niobe) [1891] AC 401 at 408; [1891-94] All ER Rep 343 at 346 per Lord Watson; Vestry of the Parish of St John, Hampstead v Cotton (1886) LR 12 App Cas 1 at 6 per Lord Halsbury LC; Monypenny v Monypenny (1861) 9 HL Cas 114; 11 ER 671 ; Hill v Crook (1873) LR 6 HL 265 at 283; [187480] All ER Rep 62 ; Re Terrys Will (1854) 19 Beav 580; 52 ER 476 ; Pigg v Clarke (1876) 3 Ch D 672 ; Hext v Gill (1872) LR 7 Ch App 699 at 712; [1861-73] All ER Rep 388; Tucker v Linger (1882) 21 Ch D 18 at 36 . If a party discards words in an instrument which have been given a general interpretation by the courts over the centuries, and substitutes new words, one cannot infer that the same construction must be given to the new words: Ross v NRMA Life Ltd (1993) 7 ANZ Ins Cas 61-170; BC9301932.9 John While & Sons Pty Ltd v Changleng (1985) 2 NSWLR 163 at 164 per Samuels JA , CA(NSW).10 Re Hexham Textiles Pty Ltd and Collector of Customs (1978) 1 ALD 518 at 527 .11 Spunwill Pty Ltd v BAB Pty Ltd (1994) 36 NSWLR

290; (1995) Aust Contract R 90-053; BC9403535 at [14] per Santow J . The paragraph below is current to 07 February 2012 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [140-510] Statutory meanings Various statutory enactments throughout Australia have provisions relating to the interpretation of written instruments. Such a provision overrides the ordinary principles of construction.1 However, it is not uncommon for such a statute to be qualified so as to apply unless the contrary intention appears or unless the context otherwise requires.2 Notes 1 Master and Brethren of the Hospital of St Cross v Lord Howard de Walden (1795) 6 Term Rep 338; 101 ER 583.2 (ACT) Legislation Act 2001 s 155 (NT) Law of Property Act 2000 s 50(1) (NSW) Conveyancing Act 1919 ss 76, 181(1) (QLD) Property Law Act 1974 s 48(1) (TAS) Conveyancing and Law of Property Act 1884 s 64 (VIC) Property Law Act 1958 ss 61, 83 (WA) Property Law Act 1969 ss 8, 46. There are no equivalent provisions in South Australia. Although the masculine generally includes the feminine and vice versa in the above statutes, compare Automobile Fire & General Insurance Co of Australia Ltd v Davey (1936) 54 CLR 534; [1936] ALR 202 (words the insured or his wife did not, in the case of a female, indicate the insured or her husband in a policy of insurance). See also Bond v Hale [1969] 1 NSWR 395; (1969) 89 WN (Pt 1) (NSW) 404 (operation of (NSW) Conveyancing Act 1919 s 181(1) in the context of partnership deed). For rules relating to statutory interpretation see statutes and generally: (CTH) Acts Interpretation Act 1901 (ACT) Legislation Act 2001 s 155 (NT) Interpretation Act 1978 (NSW) Interpretation Act 1987 (QLD) Acts Interpretation Act 1954 (SA) Acts Interpretation Act 1915 (TAS) Acts Interpretation Act 1931 (VIC) Interpretation of Legislation Act 1984 (WA) Interpretation Act 1984.

The paragraph below is current to 07 February 2012 [140-515] Technical words In construing written instruments, the general rule of construction is to ascertain the expressed meaning or intention of the writer, and where unambiguous language is used (which is sensible with reference to extrinsic circumstances), the primary meaning of the writing is conclusively taken to state the writers intention and no evidence is admissible to show the writer used the language in any other sense or had any other intention.1 The exception to this rule and to the rule that words in an instrument be construed in their popular and common sense2 is that if a word is of a technical or legal character, it must be construed according to its technical or legal meaning and if the word is of a technical and scientific character, then it must be construed according to its technical and scientific meaning.3 Since the object of construction is to discover and give effect to the intention of the parties,4 the presumption that a party intended to use technical words or phrases according to their correct technical meaning may be rebutted.5 If the instrument tends to disclose that the writer used a technical word other than in accordance with its correct technical meaning, this may amount to sufficient contrary intent to lead the court to construe the word in accordance with its popular meaning.6 Paramount regard must be had to the meaning and intention of the author of the instrument.7 If the words being construed are words of limitation, it appears that there will be stricter attention to forms (especially in the case of deeds) and the words will more likely retain their strict legal effect.8 Notes 1 Shore v Wilson (1842) 4 StTrNS 1370; (1842) 9 Cl & Fin 355 at 525; 8 ER 450 at 517-18 per Coleridge J .2 See [140-505].3 Holt & Co v Collyer (1881) 16 Ch D 718 at 720; 29 WR 502 per Fry J ; Shore v Wilson (1842) 4 StTrNS 1370; (1842) 9 Cl & Fin 355 at 525; 8 ER 450 at 518 per Coleridge J ; Laird v Briggs (1881) 19 Ch D 22 at 34 per Jessel MR ; Leach v Jay (1878) 9 Ch D 42 at 45 per Bramwell LJ ; Re Bedsons Trusts (1885) 28 Ch D 523 at 525 per Brett MR .4 See [140-490].5 Cholmondeley v Clinton (1820) 2 Jac & W 1 at 91-2; 37 ER 527 at 559 per Plumer MR ; Phoenix Commercial Enterprises Pty Ltd v City of Canada Bay Council [2010] NSWCA 64; BC201001880 at [167] per Campbell JA.6 Cholmondeley v Clinton (1820) 2 Jac & W 1 at 92; 37 ER 527 at 559 per Plumer MR ; Sydall v Castings Ltd [1967] 1 QB 302 at 314 per Diplock LJ ; Leach v Jay (1878) 9 Ch D 42 .7 Cholmondeley v Clinton (1820) 2 Jac & W 1 at 92; 37 ER 527 at 559-60 per Plumer MR .8 Cholmondeley v Clinton (1820) 2 Jac & W 1 at 93; 37 ER 527 at 560 per Plumer MR ; Re Whistons Settlement; Lovatt v Williamson [1894] 1 Ch 661 ; Re Bostocks Settlement; Norrish v Bostock [1921] 2 Ch 469; [1921] All ER Rep 125 . The paragraph below is current to 07 February 2012 [140-520] Foreign words and words of special meaning If the court does not understand the language used in an instrument (for example, where it is written in a foreign language), the court may receive evidence of the proper meaning of that language.1 This is also the case where technical words2 or peculiar terms or indeed any expressions are used which, at the time the instrument was written, had acquired an appropriate meaning, either generally by local usage or among particular classes.3 Instances include use of a peculiar language employed by those conversant in trade and commerce and where words, in addition to their general common meaning, have acquired, by custom or otherwise, a well-known peculiar idiomatic meaning in the particular country in which the party using them was dwelling or in the particular society of which he or she was a member.4 If a written contract is made in a foreign country and in a foreign language, the court, in order to

interpret the contract, must obtain:5 (1) a translation of the instrument; (2) an explanation of any terms of art; (3) evidence of any foreign law applicable to the case;6 and (4) evidence of any peculiar rules of construction by the foreign law.7 Notes 1 Shore v Wilson (1842) 4 StTrNS 1370; (1842) 9 Cl & Fin 355 at 555; 8 ER 450 at 529 per Parke B .2 See [140-515].3 Shore v Wilson (1842) 4 StTrNS 1370; (1842) 9 Cl & Fin 355 at 555, 567; 8 ER 450 at 529, 533 per Parke B and Tindal CJ respectively .4 Shore v Wilson (1842) 4 StTrNS 1370; (1842) 9 Cl & Fin 355 at 567; 8 ER 450 at 533 per Tindal CJ .5 Di Sora v Phillipps (1863) 10 HL Cas 624 at 633; 11 ER 1168 at 1172 per Lord Cranworth .6 Neilson v Overseas Projects Corp of Victoria Ltd (2005) 223 CLR 331; 221 ALR 213; [2005] HCA 54; BC200507308 at [115] per Gummow and Hayne JJ (foreign law is a question of fact to be determined by expert evidence). See conflict of laws [85-1260], [85-2170]-[85-2290].7 See conflict of laws [85-1260], [85-2170]-[85-2290]. The paragraph below is current to 07 February 2012 [140-525] Exclusion of ordinary meaning An instrument must be construed according to its sense and meaning, as collected from the terms used in it.1 These terms are themselves to be understood in their plain, ordinary and popular sense,2 unless they have generally with respect to the subject matter3 (for example, by the known usage of trade or the like), acquired a peculiar sense distinct from the popular sense of the same words, or unless the context indicates that they must, in the particular instance, and in order to give effect to the immediate intention of the parties to that contract, be understood in some other special and peculiar sense.4 Regard must be had when construing the words of an instrument to the subject matter of the instrument and to the commercial or other context in which the words are used as to whether or not the ordinary or technical meaning of the words used is to be applied.5 Notes 1 Robertson v French (1803) 4 East 130 at 135; [1803-13] All ER Rep 350 at 353; (1803) 102 ER 779 at 781 .2 See [140-500].3 Doe d Freeland v Burt (1787) 1 Term Rep 701 at 703; 99 ER 1330 at 1331 per Ashhurst J.4 Robertson v French (1803) 4 East 130 at 135; [1803-13] All ER Rep 350 at 353; (1803) 102 ER 779 at 781 ; Board of Management of the Agricultural Bank of Tasmania v Brown (1957) 97 CLR 503; 31 ALJR 865; BC5700540 per Williams J .5 Robertson v French (1803) 4 East 130 at 135; [1803-13] All ER Rep 350 at 353; (1803) 102 ER 779 at 781 ; Hart v Standard Marine Insurance Co Ltd (1889) 22 QBD 499 at 501 per Bowen LJ ; Lord Provost and Magistrates of Glasgow v Farie (1888) 13 App Cas 657 at 669; [1886-90] All ER Rep 115 per Lord Halsbury LC . The paragraph below is current to 07 February 2012

[140-530] Instrument to be construed as a whole A written instrument must be construed as a whole and not by reference to parts of it alone.1 An instrument must be read as a whole in order to ascertain the true meaning of its several clauses, and the words of each clause should be interpreted so as to bring them into harmony with the other provisions of the deed, provided that interpretation does no violence to their natural meaning.2 An instrument must not be construed in such a way that one part would contradict another part,3 and effect must be given to each and every word and clause within the instrument.4 Notes 1 Every part of a deed ought to be compared with the other, and one entire sense ought to be made of it: Throckmerton v Tracy (1555) 1 Plowd 145 at 161; [1558-1774] All ER Rep 168; (1555) 75 ER 222; Shore v Wilson (1842) 4 StTrNS 1370; (1842) 9 Cl & Fin 355 at 511; 8 ER 450 at 513 per Erskine J ; Cholmondeley v Clinton (1820) 2 Jac & W 1 at 89; 37 ER 527 at 558 per Plumer MR ; Hume v Rundell (1824) 2 Sim & St 174 at 177; 57 ER 311 at 312 per Leach VC ; Re Jodrell; Jodrell v Seale (1890) 44 Ch D 590 at 605 per Lord Halsbury LC, CA.2 North Eastern Railway Co v Lord Hastings [1900] AC 260 at 267; [1900-3] All ER Rep 199 at 204 per Lord Davey ; Chamber Colliery Co Ltd v Twyerould [1915] 1 Ch 268 at 272 per Lord Watson .3 Re Bedsons Trusts (1885) 28 Ch D 523 at 525 per Brett MR .4 Butler v Duncomb (1718) 1 P Wms 448 at 457; 24 ER 466 at 469 per Parker LC . See also [140-495]. The paragraph below is current to 07 February 2012 [140-535] Several instruments If a series of instruments represents a single transaction between the same parties and if the documents are executed at the same moment or executed within so short an interval that having regard to the nature of the transaction, the court will conclude that the series of instruments represents a single transaction the instruments will be treated as one in order to determine the intention of the parties.1 When two instruments are executed on the same day, the court must inquire which was in fact executed first, although, if there is anything in the instruments themselves to show an intention, either that they are to take effect pari passu or that the later deed is to take effect in priority to the earlier, the court will presume that the instruments were executed in such order to give effect to the manifest intention of the parties.2 A contract may be established by a series of letters and become binding even if the parties did not realise they were settling the terms of the agreement. However, a contract will not be established if it appears that there were conditions of the agreement still in the course of negotiation, and without settlement of which the parties had no idea of concluding any agreement.3 Where a court has to find a contract in correspondence and not in a formal document, the whole of that which has passed between the parties must be taken into consideration.4 If two instruments are executed in circumstances in which neither would of itself achieve the purpose sought, one may supplement the other to achieve the purpose5 provided that there is an intent that the instruments operate conjointly.6 Notes 1 Smith v Chadwick (1882) 20 Ch D 27 at 62-3; 51 LJ Ch 597; 46 LT 702 per Jessel MR, CA (affirmed on other grounds Smith v Chadwick (1884) 9 App Cas 187; [1881-5] All ER Rep 242 , HL). See also [140-495].2 Gartside v Silkstone & Dodworth Coal and Iron Co (1882) 21 Ch D 762 at 767-8 per Fry J .3 Hussey v Horne-Payne (1879) 4 App Cas 311 at 323; [1874-80] All ER Rep 716 at 721 per Lord Selborne ; Howard Smith and Co Ltd v Varawa (1907) 5 CLR 68; 14 ALR 169 . For the law relating to the formation of a contract see generally contract [110-200][110-1095].4 Ballas v Theophilos (No 2) (1957) 98 CLR 193; 31 ALJR 917; BC5700750 per

Williams J.5 Earl of Leicesters Case (1675) 1 Vent 278; 86 ER 186.6 Hawkins v Kemp (1803) 3 East 411 at 439; [1803-13] All ER Rep 506; 102 ER 655 per Lord Ellenborough CJ. The paragraph below is current to 07 February 2012 [140-540] Contra proferentem rule The contra proferentem rule embodies a maxim of law which states that every mans grant shall be taken most strongly against himself.1 The rule means that the terms of an instrument will be construed by the court against the grantor or the person who, in some manner, confers a benefit under the instrument and in favour of the grantee or the person who is the recipient of the benefit being conferred.2 As a consequence of instruments being construed according to the contra proferentem rule, where there is a grant and an exception out of it, the exception is taken as having been inserted for the benefit of the grantor and is construed in favour of the grantee.3 The application of the contra proferentem rule is found most commonly in the interpretation of exclusion clauses in contracts.4 However, the application of the rule appears limited to circumstances where there is ambiguity in construing a clause5 and only when all other rules of construction fail.6 An instrument, or clause within it, must first be construed according to its natural and ordinary meaning, read in the light of the contract as a whole, giving due weight to the context in which the words appear, including the nature and object of the contract, and only then, if ambiguity remains, construing the words contra proferentem.7 Notes 1 Coke E, Commentary upon Littleton, Vol 1, 19th ed, London, 1832, p 183a.2 All the words of a deed shall be taken most strongly against him that doth speak them, and most in advantage of the other party: Preston R (ed), Sheppards Touchstone of Common Assurances, 7th ed, London, 1820, p 87; Neill v Duke of Devonshire (1882) LR 8 App Cas 135 at 149 per Lord Selborne LC (the words of a deed, executed for valuable consideration, ought to be construed, as far as they properly may, in favour of the grantee); Burton v English (1883) 12 QBD 218 at 220 per Brett MR ; Bob Lynch Insurance Agencies Pty Ltd v Facer (2005) ANZ ConvR 118; [2005] TASSC 3; BC200500113 at [18] per Holt M .3 Preston R (ed), Sheppards Touchstone of Common Assurances, 7th ed, London, 1820, p 100; Savill Bros Ltd v Bethell [1902] 2 Ch 523 at 537-8 per Stirling LJ , CA; Earl of Cardigan v Armitage (1823) 2 B & C 197 at 207; [1814-23] All ER Rep 33 at 35-6; (1823) 107 ER 356 at 360 ; Bullen v Denning (1826) 5 B & C 842 at 847 per Bayley J, at 850 per Holroyd J; 108 ER 313 .4 See contract [110-2465], [110-2470].5 Darlington Futures Ltd v Delco Australia Pty Ltd (1986) 161 CLR 500 at 510; 68 ALR 385 at 392; 61 ALJR 76; BC8601387 ; Nissho Iwai Australia Ltd v Malaysian International Shipping Corp Bhd (1989) 167 CLR 219 at 227; 86 ALR 375 at 378; 63 ALJR 468 ; Ian Delbridge Pty Ltd v Warrandyte High School Council [1991] 2 VR 545; (1990) 10 Aust Const LR 17 per Murphy J .6 Borradaile v Hunter (1843) 5 Man & G 639; 134 ER 715 ; Lindus v Melrose (1858) 3 H & N 177 at 182; 157 ER 434 at 436 per Coleridge J ; Pebruk Nominees Pty Ltd v Woolworths (Victoria) Pty Ltd (2003) 12 Tas R 159; 54 ATR 156; [2003] TASSC 94; BC200305754 at [31] .7 Darlington Futures Ltd v Delco Australia Pty Ltd (1986) 161 CLR 500 at 510; 68 ALR 385 at 392; 61 ALJR 76; BC8601387 ; Nissho Iwai Australia Ltd v Malaysian International Shipping Corp Bhd (1989) 167 CLR 219 at 227; 86 ALR 375 at 378; 63 ALJR 468 ; Ian Delbridge Pty Ltd v Warrandyte High School Council [1991] 2 VR 545; (1990) 10 Aust Const LR 17 per Murphy J .

Source

[Halsbury's Laws of Australia]

View Full Date/Time Thursday, October, 25, 2012, 12:36 EST 1 of 1

1 of 1 About LexisNexis | Terms & Conditions | My ID Copyright 2012 LexisNexis . All rights reserved.

Back to Top

(B) Implied Terms The paragraph below is current to 07 February 2012 [140-545] Implied terms generally Terms will be implied1 into instruments for a variety of reasons. The major reasons which exist for implying terms into an instrument involve: (1) the need to give business efficacy to the instrument;2 (2) the nature of the instrument itself or the nature of the rights and obligations it creates giving rise to the implication of terms;3 (3) the application of a statute to an instrument which requires certain terms to be implied;4 and (4) the existence of a particular custom or usage which has the effect of implying terms into the instrument.5 Notes 1 See also [140-490].2 See contract [110-2135]. See also requirements for implication of informal contracts contract [110-2153] and good faith contract [110-2178].3 See contract [1102155]-[110-2175].4 See contract [110-2180]-[110-2215].5 See contract [110-2220]. The paragraph below is current to 07 February 2012 [140-550] Expressum facit rule The maxim expressum facit cessare tacitum1 expresses the rule of construction (in relation to implied terms) that where parties have entered into a written agreement with express stipulations, it is undesirable to extend them by any implications, and it is presumed that, having expressed some, they have expressed all of the conditions by which they intend to be bound under the instrument.2 This would appear to be especially so where it is sought to imply a term which is expressly excluded in the instrument or where the term sought to be implied would be inconsistent with a term or terms of the contract,3 or where there already exists a term of the contract relative to the subject matter for which the new term is sought to be

implied.4 Notes 1 Literally, what is expressed makes what is implied to cease. See also Butterworths Concise Australian Legal Dictionary.2 Aspdin v Austin (1844) 5 QB 671 at 684; 114 ER 1402 at 1407 per Lord Denman CJ ; Rhodes v Forwood (1876) LR 1 App Cas 256 at 265; [1874-80] All ER Rep 476 at 480 per Lord Cairns LC; Castlemaine Tooheys Ltd v Carlton & United Breweries Ltd (1987) 10 NSWLR 468 ; Devonald v Rosser & Sons [1906] 2 KB 728 at 745 per Farwell LJ , CA.3 Castlemaine Tooheys Ltd v Carlton & United Breweries Ltd (1987) 10 NSWLR 468 at 492 per Hope JA .4 Mathew v Blackmore (1857) 1 H & N 762 at 771-2; 156 ER 1409 at 1412 per Pollock CB . The paragraph below is current to 07 February 2012 [140-555] Expressio unius rule The maxim expressio unius est exclusio alterius1 is a rule of construction which provides that the express mention in a provision of a particular person, power or thing indicates that the provision is not intended to include any others and any others are thereby excluded.2 If authority is given expressly, upon a defined condition, the expression of that condition excludes the doing of an act authorised under circumstances other than those so defined.3 It has been observed that the maxim has been frequently misapplied and stretched beyond its due limits4 and that while it is often a valuable servant, it is a dangerous master to follow in the construction of statutes or documents.5 The failure to make the expressio (the provision expressed in the instrument) complete often arises by accident, very often from the fact that it never occurred to the drafter that the thing supposed to be excluded needed specific mention of any kind.6 Consequently, the exclusion is often the result of inadvertence or accident and the maxim ought not to be applied when its application, having regard to the subject matter to which it is to be applied, leads to inconsistency or injustice.7 It should only be applied when the instrument apparently contains all the terms which the parties have agreed upon.8 Notes 1 Literally, the mention of one is the exclusion of another. See also Butterworths Concise Australian Legal Dictionary.2 Coke E, Commentary upon Littleton, Vol 1, 19th ed, London, 1832, p 210a; Blackburn v Flavelle (1881) LR 6 App Cas 628 at 634; 45 LT 52.3 North Stafford Steel, Iron and Coal Co (Burslem) Ltd v Ward (1868) LR 3 Ex Ch 172 at 177 per Willes J; R v New Queensland Copper Co Ltd [1917] St R Qd 194 at 205 per Lukin J (affirmed R v New Queensland Copper Co Ltd (1917) 23 CLR 495; 23 ALR 373 ); Attorney-General (NSW); Ex rel Franklins Stores Pty Ltd v Lizelle Pty Ltd [1977] 2 NSWLR 955 at 963 per Reynolds JA , CA(NSW).4 Colquhoun v Brooks (1887) 19 QBD 400 at 406 per Wills J ; North Broken Hill Holdings Ltd, Re (1986) 10 ACLR 270; (1986) 4 ACLC 131; BC8600401 at 26-7 per Fullagar J .5 Colquhoun v Brooks (1888) 21 QBD 52 at 65; 59 LT 661 per Lopes LJ , CA; Re North Broken Hill Holdings Ltd (1986) 10 ACLR 270; (1986) 4 ACLC 131; BC8600401 at 26-7 per Fullagar J ; Watson v South Australia (2010) 278 ALR 168; [2010] SASCFC 69; BC201009761 at [154] per Peek J .6 Colquhoun v Brooks (1887) 19 QBD 400 at 406 per Wills J ; Re North Broken Hill Holdings Ltd (1986) 10 ACLR 270; (1986) 4 ACLC 131; BC8600401 at 26-7 per Fullagar J .7 Colquhoun v Brooks (1888) 21 QBD 52 at 65; 59 LT 661 per Lopes LJ , CA. For an example of where the rule was not applied: Sigma Data Corp Pty Ltd v Wordflex Australia Pty Ltd (unreported, SC(NSW), Bryson J, No 3313 of 1992, 3 December 1992, BC9203249); Re North Broken Hill Holdings Ltd (1986) 10 ACLR 270; (1986) 4 ACLC 131; BC8600401 at 26-7 per Fullagar J .8 McClelland v Northern Ireland General Health Services Board [1957] 2 All ER 129 at 138; [1957] 1 WLR 594 per Lord Keith , HL.

Source

[Halsbury's Laws of Australia]

View Full Date/Time Thursday, October, 25, 2012, 12:36 EST 1 of 1 About LexisNexis | Terms & Conditions | My ID Copyright 2012 LexisNexis . All rights reserved. Back to Top

(B) Implied Terms The paragraph below is current to 07 February 2012 [140-545] Implied terms generally Terms will be implied1 into instruments for a variety of reasons. The major reasons which exist for implying terms into an instrument involve: (1) the need to give business efficacy to the instrument;2 (2) the nature of the instrument itself or the nature of the rights and obligations it creates giving rise to the implication of terms;3 (3) the application of a statute to an instrument which requires certain terms to be implied;4 and (4) the existence of a particular custom or usage which has the effect of implying terms into the instrument.5 Notes 1 See also [140-490].2 See contract [110-2135]. See also requirements for implication of informal contracts contract [110-2153] and good faith contract [110-2178].3 See contract [1102155]-[110-2175].4 See contract [110-2180]-[110-2215].5 See contract [110-2220]. The paragraph below is current to 07 February 2012 [140-550] Expressum facit rule The maxim expressum facit cessare tacitum1 expresses the rule of construction (in relation to implied terms) that where parties have entered into a written

agreement with express stipulations, it is undesirable to extend them by any implications, and it is presumed that, having expressed some, they have expressed all of the conditions by which they intend to be bound under the instrument.2 This would appear to be especially so where it is sought to imply a term which is expressly excluded in the instrument or where the term sought to be implied would be inconsistent with a term or terms of the contract,3 or where there already exists a term of the contract relative to the subject matter for which the new term is sought to be implied.4 Notes 1 Literally, what is expressed makes what is implied to cease. See also Butterworths Concise Australian Legal Dictionary.2 Aspdin v Austin (1844) 5 QB 671 at 684; 114 ER 1402 at 1407 per Lord Denman CJ ; Rhodes v Forwood (1876) LR 1 App Cas 256 at 265; [1874-80] All ER Rep 476 at 480 per Lord Cairns LC; Castlemaine Tooheys Ltd v Carlton & United Breweries Ltd (1987) 10 NSWLR 468 ; Devonald v Rosser & Sons [1906] 2 KB 728 at 745 per Farwell LJ , CA.3 Castlemaine Tooheys Ltd v Carlton & United Breweries Ltd (1987) 10 NSWLR 468 at 492 per Hope JA .4 Mathew v Blackmore (1857) 1 H & N 762 at 771-2; 156 ER 1409 at 1412 per Pollock CB . The paragraph below is current to 07 February 2012 [140-555] Expressio unius rule The maxim expressio unius est exclusio alterius1 is a rule of construction which provides that the express mention in a provision of a particular person, power or thing indicates that the provision is not intended to include any others and any others are thereby excluded.2 If authority is given expressly, upon a defined condition, the expression of that condition excludes the doing of an act authorised under circumstances other than those so defined.3 It has been observed that the maxim has been frequently misapplied and stretched beyond its due limits4 and that while it is often a valuable servant, it is a dangerous master to follow in the construction of statutes or documents.5 The failure to make the expressio (the provision expressed in the instrument) complete often arises by accident, very often from the fact that it never occurred to the drafter that the thing supposed to be excluded needed specific mention of any kind.6 Consequently, the exclusion is often the result of inadvertence or accident and the maxim ought not to be applied when its application, having regard to the subject matter to which it is to be applied, leads to inconsistency or injustice.7 It should only be applied when the instrument apparently contains all the terms which the parties have agreed upon.8 Notes 1 Literally, the mention of one is the exclusion of another. See also Butterworths Concise Australian Legal Dictionary.2 Coke E, Commentary upon Littleton, Vol 1, 19th ed, London, 1832, p 210a; Blackburn v Flavelle (1881) LR 6 App Cas 628 at 634; 45 LT 52.3 North Stafford Steel, Iron and Coal Co (Burslem) Ltd v Ward (1868) LR 3 Ex Ch 172 at 177 per Willes J; R v New Queensland Copper Co Ltd [1917] St R Qd 194 at 205 per Lukin J (affirmed R v New Queensland Copper Co Ltd (1917) 23 CLR 495; 23 ALR 373 ); Attorney-General (NSW); Ex rel Franklins Stores Pty Ltd v Lizelle Pty Ltd [1977] 2 NSWLR 955 at 963 per Reynolds JA , CA(NSW).4 Colquhoun v Brooks (1887) 19 QBD 400 at 406 per Wills J ; North Broken Hill Holdings Ltd, Re (1986) 10 ACLR 270; (1986) 4 ACLC 131; BC8600401 at 26-7 per Fullagar J .5 Colquhoun v Brooks (1888) 21 QBD 52 at 65; 59 LT 661 per Lopes LJ , CA; Re North Broken Hill Holdings Ltd (1986) 10 ACLR 270; (1986) 4 ACLC 131; BC8600401 at 26-7 per Fullagar J ; Watson v South Australia (2010) 278 ALR 168; [2010] SASCFC 69; BC201009761 at [154] per Peek J .6 Colquhoun v Brooks (1887) 19 QBD 400 at 406 per Wills J ; Re North Broken Hill Holdings Ltd (1986) 10 ACLR 270; (1986) 4 ACLC 131; BC8600401 at 26-7 per Fullagar J .7 Colquhoun v Brooks (1888) 21 QBD 52 at 65; 59 LT 661 per Lopes LJ , CA. For

an example of where the rule was not applied: Sigma Data Corp Pty Ltd v Wordflex Australia Pty Ltd (unreported, SC(NSW), Bryson J, No 3313 of 1992, 3 December 1992, BC9203249); Re North Broken Hill Holdings Ltd (1986) 10 ACLR 270; (1986) 4 ACLC 131; BC8600401 at 26-7 per Fullagar J .8 McClelland v Northern Ireland General Health Services Board [1957] 2 All ER 129 at 138; [1957] 1 WLR 594 per Lord Keith , HL.

Source

[Halsbury's Laws of Australia]

View Full Date/Time Thursday, October, 25, 2012, 12:36 EST 1 of 1 About LexisNexis | Terms & Conditions | My ID Copyright 2012 LexisNexis . All rights reserved. Back to Top

(B) Implied Terms The paragraph below is current to 07 February 2012 [140-545] Implied terms generally Terms will be implied1 into instruments for a variety of reasons. The major reasons which exist for implying terms into an instrument involve: (1) the need to give business efficacy to the instrument;2 (2) the nature of the instrument itself or the nature of the rights and obligations it creates giving rise to the implication of terms;3 (3) the application of a statute to an instrument which requires certain terms to be implied;4 and (4) the existence of a particular custom or usage which has the effect of implying terms into the instrument.5 Notes 1 See also [140-490].2 See contract [110-2135]. See also requirements for implication of

informal contracts contract [110-2153] and good faith contract [110-2178].3 See contract [1102155]-[110-2175].4 See contract [110-2180]-[110-2215].5 See contract [110-2220]. The paragraph below is current to 07 February 2012 [140-550] Expressum facit rule The maxim expressum facit cessare tacitum1 expresses the rule of construction (in relation to implied terms) that where parties have entered into a written agreement with express stipulations, it is undesirable to extend them by any implications, and it is presumed that, having expressed some, they have expressed all of the conditions by which they intend to be bound under the instrument.2 This would appear to be especially so where it is sought to imply a term which is expressly excluded in the instrument or where the term sought to be implied would be inconsistent with a term or terms of the contract,3 or where there already exists a term of the contract relative to the subject matter for which the new term is sought to be implied.4 Notes 1 Literally, what is expressed makes what is implied to cease. See also Butterworths Concise Australian Legal Dictionary.2 Aspdin v Austin (1844) 5 QB 671 at 684; 114 ER 1402 at 1407 per Lord Denman CJ ; Rhodes v Forwood (1876) LR 1 App Cas 256 at 265; [1874-80] All ER Rep 476 at 480 per Lord Cairns LC; Castlemaine Tooheys Ltd v Carlton & United Breweries Ltd (1987) 10 NSWLR 468 ; Devonald v Rosser & Sons [1906] 2 KB 728 at 745 per Farwell LJ , CA.3 Castlemaine Tooheys Ltd v Carlton & United Breweries Ltd (1987) 10 NSWLR 468 at 492 per Hope JA .4 Mathew v Blackmore (1857) 1 H & N 762 at 771-2; 156 ER 1409 at 1412 per Pollock CB . The paragraph below is current to 07 February 2012 [140-555] Expressio unius rule The maxim expressio unius est exclusio alterius1 is a rule of construction which provides that the express mention in a provision of a particular person, power or thing indicates that the provision is not intended to include any others and any others are thereby excluded.2 If authority is given expressly, upon a defined condition, the expression of that condition excludes the doing of an act authorised under circumstances other than those so defined.3 It has been observed that the maxim has been frequently misapplied and stretched beyond its due limits4 and that while it is often a valuable servant, it is a dangerous master to follow in the construction of statutes or documents.5 The failure to make the expressio (the provision expressed in the instrument) complete often arises by accident, very often from the fact that it never occurred to the drafter that the thing supposed to be excluded needed specific mention of any kind.6 Consequently, the exclusion is often the result of inadvertence or accident and the maxim ought not to be applied when its application, having regard to the subject matter to which it is to be applied, leads to inconsistency or injustice.7 It should only be applied when the instrument apparently contains all the terms which the parties have agreed upon.8 Notes 1 Literally, the mention of one is the exclusion of another. See also Butterworths Concise Australian Legal Dictionary.2 Coke E, Commentary upon Littleton, Vol 1, 19th ed, London, 1832, p 210a; Blackburn v Flavelle (1881) LR 6 App Cas 628 at 634; 45 LT 52.3 North Stafford Steel, Iron and Coal Co (Burslem) Ltd v Ward (1868) LR 3 Ex Ch 172 at 177 per Willes J; R v New Queensland Copper Co Ltd [1917] St R Qd 194 at 205 per Lukin J (affirmed R v New Queensland Copper Co Ltd (1917) 23 CLR 495; 23 ALR 373 ); Attorney-General (NSW); Ex rel Franklins Stores Pty Ltd v Lizelle Pty Ltd [1977] 2 NSWLR 955 at 963 per Reynolds JA , CA(NSW).4 Colquhoun v Brooks (1887) 19 QBD 400 at 406 per Wills J ; North Broken Hill

Holdings Ltd, Re (1986) 10 ACLR 270; (1986) 4 ACLC 131; BC8600401 at 26-7 per Fullagar J .5 Colquhoun v Brooks (1888) 21 QBD 52 at 65; 59 LT 661 per Lopes LJ , CA; Re North Broken Hill Holdings Ltd (1986) 10 ACLR 270; (1986) 4 ACLC 131; BC8600401 at 26-7 per Fullagar J ; Watson v South Australia (2010) 278 ALR 168; [2010] SASCFC 69; BC201009761 at [154] per Peek J .6 Colquhoun v Brooks (1887) 19 QBD 400 at 406 per Wills J ; Re North Broken Hill Holdings Ltd (1986) 10 ACLR 270; (1986) 4 ACLC 131; BC8600401 at 26-7 per Fullagar J .7 Colquhoun v Brooks (1888) 21 QBD 52 at 65; 59 LT 661 per Lopes LJ , CA. For an example of where the rule was not applied: Sigma Data Corp Pty Ltd v Wordflex Australia Pty Ltd (unreported, SC(NSW), Bryson J, No 3313 of 1992, 3 December 1992, BC9203249); Re North Broken Hill Holdings Ltd (1986) 10 ACLR 270; (1986) 4 ACLC 131; BC8600401 at 26-7 per Fullagar J .8 McClelland v Northern Ireland General Health Services Board [1957] 2 All ER 129 at 138; [1957] 1 WLR 594 per Lord Keith , HL.

Source

[Halsbury's Laws of Australia]

View Full Date/Time Thursday, October, 25, 2012, 12:36 EST 1 of 1 About LexisNexis | Terms & Conditions | My ID Copyright 2012 LexisNexis . All rights reserved. Back to Top

(E) Uncertainty The paragraph below is current to 07 February 2012 [140-605] Generally An instrument will be void for uncertainty where the language used by the parties is such that the court is unable to attribute to it a sufficiently clear and precise meaning in order to identify the scope of the rights and obligations agreed to.1 However, a contract of which there may be more than one possible meaning or which when construed may produce in its application more than one result is not void for uncertainty.2 If it is capable of a meaning, it will ultimately bear that meaning which the court or arbitrator decides is its proper construction and the court or arbitrator will decide its application.3 The question becomes one of construction, of ascertaining the parties intention and applying it, and so long as the language employed by the parties is not so obscure and incapable of any definite or precise meaning that the court is unable to attribute to the parties any particular contractual intention, the contract cannot be held to be void, uncertain or meaningless.4 In searching for the parties intention, a narrow or pedantic approach is not warranted, particularly in the case of commercial arrangements.5 The process of interpreting terms is a pragmatic process.6

The application of these principles is limited. A court will not enforce a contract where the promisor has a discretion, not only as to what he or she must do, but also as to whether to do anything, for such a promise is illusory.7 Nor will a contractual promise be enforceable if the manner of performance is a matter entirely in the discretion of the promisor and there is no criterion by which the performance required of the promisor may be measured.8 Notes 1 See contract [110-475]-[110-507].2 Upper Hunter County District Council v Australian Chilling and Freezing Co Ltd (1968) 118 CLR 429; 41 ALJR 348; BC6800450 .3 Upper Hunter County District Council v Australian Chilling and Freezing Co Ltd (1968) 118 CLR 429 at 436-7; 41 ALJR 348; BC6800450 per Barwick CJ .4 Upper Hunter County District Council v Australian Chilling and Freezing Co Ltd (1968) 118 CLR 429 at 437; 41 ALJR 348; BC6800450 per Barwick CJ .5 Upper Hunter County District Council v Australian Chilling and Freezing Co Ltd (1968) 118 CLR 429 at 437; 41 ALJR 348; BC6800450 per Barwick CJ ; Yuwana Nominees Pty Ltd v Ong (2008) ASC 155-092; [2008] NSWSC 156; BC200801358 at [8] per Rein AJ .6 Yuwana Nominees Pty Ltd v Ong (2008) ASC 155-092; [2008] NSWSC 156; BC200801358 at [8] per Rein AJ .7 Biotechnology Australia Pty Ltd v Pace (1988) 15 NSWLR 130 at 143; 26 IR 411 per Hope JA . See contract [110-500].8 Biotechnology Australia Pty Ltd v Pace (1988) 15 NSWLR 130 at 143; 26 IR 411 per Hope JA ; Thorby v Goldberg (1964) 112 CLR 597 at 605 per Kitto J, at 613 per Menzies J ; Placer Development Ltd v Commonwealth (1969) 121 CLR 353 at 356; [1969] ALR 801; (1969) 43 ALJR 265 ; Meehan v Jones (1982) 149 CLR 571 at 581; 42 ALR 463 at 469; 56 ALJR 813; BC8200103 per Gibbs CJ . See contract [110-500]. The paragraph below is current to 07 February 2012 [140-610] Removal by election On occasion, an uncertainty in a written instrument may be resolved by the election of one of the parties. The election lies with the party who must do the first act towards completion of the grant.1 This principle applies where: (1) there is a grant of one of certain definite things,2 or of a defined amount of land which is indefinite in its position;3 or (2) a grant of a definite thing may operate in either of two possible ways.4 In order that the uncertainty may be cured by election, the uncertainty may only exist as to the specific gift and there must be certainty in the actual nature or amount of the gift.5 A grant which is uncertain in either of the ways listed above cannot take effect until the election is made.6 If, by a deed, there has been a grant of a particular piece of property to be ascertained by election, it follows that until the election is made nothing passes and if the deed granted certain specified property with the exception of one item to be ascertained by election, the deed would at once pass the whole, subject to an exception which may only be ascertained and take effect once the election is made.7 Where there is no other way of resolving an inconsistency or ambiguity, the rule of interpretation is that a grant must be construed against the grantor.8 Notes 1 Heywards Case (1595) 2 Co Rep 35a at 36a, 37a; [1558-1774] All ER Rep 479 at 480-2; (1595) 76 ER 489 at 496-9 (instrument operating either as a demise or a bargain and sale);

Coke E, Commentary upon Littleton, Vol 1, 19th ed, London, 1832, p 145a.2 Mervyn v Lyds (1553) 1 Dyer 90a at 91a; 73 ER 195 at 197 (if I give you one of my horses, although that be uncertain, yet by your election that may be a good gift).3 Hungerfords Case (1585) 1 Leon 30; 74 ER 28.4 Heywards Case (1595) 2 Co Rep 35a at 35b; [1558-1774] All ER Rep 479 at 480; (1595) 76 ER 489 (instrument operating either as a demise or a bargain and sale); Coke E, Commentary upon Littleton, Vol 1, 19th ed, London, 1832, p 145a.5 Mervyn v Lyds (1553) 1 Dyer 90a; 73 ER 195 .6 Savill Bros Ltd v Bethell [1902] 2 Ch 523 at 539 per Stirling LJ , CA.7 Savill Bros Ltd v Bethell [1902] 2 Ch 523 at 539 per Stirling LJ , CA.8 Savill Bros Ltd v Bethell [1902] 2 Ch 523 at 539 per Stirling LJ, CA ; Stokes v MPC Systems Pty Ltd [2006] SASC 337; BC200610021 at [36] per Lunn J ; Mercantile General Life Reassurance Co v Permanent Trustee Australia Ltd (1988) 4 BPR 9534; (1989) NSW ConvR 55-441; BC8801373 at [36] per Powell J .

Source

[Halsbury's Laws of Australia]

View Full Date/Time Thursday, October, 25, 2012, 12:37 EST 1 of 1 About LexisNexis | Terms & Conditions | My ID Copyright 2012 LexisNexis . All rights reserved. Back to Top

(F) Recitals The paragraph below is current to 07 February 2012 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [140-615] Recitals and construction The recitals comprise that element of a deed which state (recite) the matters of fact necessary to explain the act or agreement that is being evidenced by the deed. If the words in the operative (or dispositive) part of a deed are clear and unambiguous they cannot be corrected by reference to other parts of the instrument, however, when those words are susceptible of two constructions the context may properly be referred to for the purpose of determining which of the two constructions is the true meaning.1 For the purpose of construing the operative part, the whole of the instrument may be referred to, though the recitals leading up to the operative part are more likely to furnish the key to the true construction of the deed.2 The three rules applicable to construction in this manner are:3

(1) if the recitals are clear and the operative part is ambiguous, the recitals govern the construction; (2) if the recitals are ambiguous and the operative part is clear, the operative part must prevail; and (3) if both the recitals and the operative part are clear, but they are inconsistent with each other, the operative part is preferred. It is therefore clear that words in the operative part of a deed, no matter how general may, in certain circumstances, be restricted by specific recitals.4 In addition to resolving ambiguity in the operative part it has been held that where there is a manifest discrepancy between the recital and the operative part, the recital being clear as to what was intended to be conveyed and the conveyance goes beyond the recital, the conveyance will have to be restricted.5 An incorrect recital of an interest which is referred to in the operative part does not affect the construction of the instrument if the parties intention is clear.6 A recital may amount to a direct affirmation of the facts so stated and as such may provide the grounds for raising an estoppel against a party seeking to deny the truth of the facts stated in the recital.7 Additionally, in all jurisdictions except the Australian Capital Territory, the Northern Territory and South Australia, recitals and certain other statements more than 20 years old are prima facie evidence between the parties for the purpose of the contract for the sale of land.8 In certain jurisdictions, an instrument expressed to be supplemental to a previous instrument has effect as if it contained a full recital of the previous instrument, and, in Tasmania and Western Australia, as if it were endorsed on the previous instrument.9 Notes 1 Orr v Mitchell [1893] AC 238 at 254; (1893) 9 TLR 356 per Lord Macnaghten; OLoughlin v Mount (1998) 71 SASR 206; [1998] SASC 6672; BC9801628 at [15] per Lander J .2 Orr v Mitchell [1893] AC 238 at 254; (1893) 9 TLR 356 per Lord Macnaghten.3 Ex parte Dawes; Re Moon (1886) 17 QBD 275 at 286; [1886-90] All ER Rep 479 per Lord Esher MR; Industrial Acceptance Corp Ltd v Tarulli [1974] WAR 125 at 127 per Wallace J ; OLoughlin v Mount (1998) 71 SASR 206; [1998] SASC 6672; BC9801628 at [15] per Lander J .4 Harris v Perpetual Trustee Co Ltd (1893) 14 LR (NSW) L 133 at 141 per Darley CJ; Danby v Coutts & Co (1885) 29 Ch D 500 ; Payler v Homersham (1815) 4 M & S 423; 105 ER 890 at 892 per Ellenborough CJ; OLoughlin v Mount (1998) 71 SASR 206; [1998] SASC 6672; BC9801628 at [15], [16] per Lander J .5 Jenner v Jenner (1866) LR 1 Eq 361 at 364-5; [1866] WN 22b per Sir Wood VC.6 Withes v Casson (1615) Hob 128 at 129; 80 ER 278.7 See [140-370].8 (NSW) Conveyancing Act 1919 s 53(2) (QLD) Property Law Act 1974 s 238(1), 238(6) (TAS) Conveyancing and Law of Property Act 1884 s 37(b) (VIC) Property Law Act 1958 s 45(6)

(WA) Sale of Land Act 1970 s 23(b). 9 (NSW) Conveyancing Act 1919 s 36D (TAS) Conveyancing and Law of Property Act 1884 s 66(1) (VIC) Property Law Act 1958 s 58 (WA) Property Law Act 1969 s 16. There are no equivalent provisions in the other jurisdictions. The paragraph below is current to 07 February 2012 [140-620] Recitals and covenants No technical language is required to create a covenant in a deed and any words in a deed (including a recital) which evidence an intention that one or more of the parties will be bound to do or not to do a thing will constitute a covenant.1 If words of recital or reference manifest a clear intention that the parties should perform certain acts, the courts have inferred a covenant to do such acts and have sustained actions for non-performance of a covenant as if the instrument contained an express covenant to perform the act.2 For a recital to amount to a covenant it must be plain upon the deed that this was intended by the parties.3 A court would normally be reluctant to construe a recital as a covenant because covenants are usually expressed in the operative part of the deed and not in the recitals, the proper role of a recital being to serve as a key to what comes afterwards.4 However, it will always be a question of construction as to whether the parties intended a recital to act as a covenant.5 The recital does not create a covenant where there is an express covenant in the operative part relating to the same subject matter, that is, if the covenant is clear, it cannot be controlled or affected by the recital.6 Notes 1 See [140-675].2 Aspdin v Austin (1844) 5 QB 671 at 683; 114 ER 1402 at 1407 per Lord Denman CJ ; Sampson v Easterby (1829) 9 B & C 505; 109 ER 188; (1830) 6 Bing 644 (agreement to pull down a mill and build a larger one); Buckland v Buckland [1900] 2 Ch 534 at 540 (agreement to settle property); Lay v Mottram (1865) 19 CBNS 479; 144 ER 874; Brooks v Jennings (1866) LR 1 CP 476 (agreement to pay a composition on debts); Saltoun v Houstoun (1824) 1 Bing 433; 130 ER 174; Carr v Roberts (1833) 5 B & Ad 78; 110 ER 721 (agreement to pay the debts of another); Farrall v Hilditch (1859) 5 CBNS 840; 141 ER 337 (agreement not to enforce a debt until security for it realised); Barfoot v Freswell (1675) 3 Keb 465; 84 ER 826 (agreement as to share of profits); Hollis v Carr (1676) 2 Mod Rep 86; 86 ER 956; Bruce v Kerr (1862) 1 W & W (L) 141; Ansett Transport Industries (Operations) Pty Ltd v Commonwealth (1977) 139 CLR 54; 17 ALR 513 at 528; 52 ALJR 254; BC7700099 per Mason J .3 Borrowes v Borrowes (1872) IR 6 Eq 368.4 Farrall v Hilditch (1859) 5 CBNS 840 at 854; 141 ER 337 at 342 per Williams J; Leasing Centre (Aust) Pty Ltd v Rollpress Proplate Group Pty Ltd [2010] NSWSC 282; BC201002265 at [80]-[81] per Barrett J .5 Isaacson v Harwood (1868) LR 3 Ch App 225 at 228 per Lord Cairns LJ.6 Dawes v Tredwell (1881) 18 Ch D 354 at 358-9 per Jessel MR , CA; OLoughlin v Mount (1998) 71 SASR 206; [1998] SASC 6672; BC9801628 at [16] per Lander J . See also [140-615].

Source

[Halsbury's Laws of Australia]

View Full Date/Time Thursday, October, 25, 2012, 12:37 EST 1 of 1 About LexisNexis | Terms & Conditions | My ID Copyright 2012 LexisNexis . All rights reserved. Back to Top

(G) Receipt Clauses The paragraph below is current to 07 February 2012 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [140-625] Conclusiveness of receipt At common law, a receipt clause contained in a deed does not preclude a party from proving that there has been non-payment of the whole or part of the money due.1 If the money has not in fact been paid, a receipt clause in a deed will not effect an estoppel.2 In all jurisdictions except South Australia, a receipt in the body of a deed is sufficient discharge for money actually paid.3 If the money has not in fact been paid, a receipt clause will not be conclusive as between the parties but will be conclusive in favour of a third party who does not have notice of the fact that the money has not been paid.4 In Tasmania and Victoria, where a banker, barrister or legal practitioner produces a deed with a receipt endorsed on it for the consideration money, this will constitute sufficient authority to pay the money to this person without their having to produce any separate or other authority signed by the person who executed the deed (usually a vendor or mortgagor) containing the receipt.5 Notes 1 Burchell v Thompson [1920] 2 KB 80 at 86; (1920) 89 LJKB 533; 122 LT 758 per Lush J ; Cousens v Grayridge Pty Ltd [2000] VSCA 96; BC200003313 at [58] per Batt JA .2 Cousens v Grayridge Pty Ltd [2000] VSCA 96; BC200003313 at [58] per Batt JA .3 (ACT) Civil Law (Property) Act 2006 s 220 (NT) Law of Property Act 2000 s 53 (NSW) Conveyancing Act 1919 s 39(1) (QLD) Property Law Act 1974 s 51(1) (TAS) Conveyancing and Law of Property Act 1884 s 67(1)

(VIC) Property Law Act 1958 s 67(1) (WA) Property Law Act 1969 s 14. See Reliance Finance Corp Pty Ltd v Heid [1982] 1 NSWLR 466; (1982) NSW ConvR 55-091 . 4 (ACT) Civil Law (Property) Act 2006 s 221 (NT) Law of Property Act 2000 s 54 (NSW) Conveyancing Act 1919 s 40(1) (QLD) Property Law Act 1974 s 52(1) (TAS) Conveyancing and Law of Property Act 1884 s 68(1) (VIC) Property Law Act 1958 s 68(1) (WA) Property Law Act 1969 s 15. 5 (TAS) Conveyancing and Law of Property Act 1884 s 69(1) (VIC) Property Law Act 1958 s 69(1).

Source

[Halsbury's Laws of Australia]

View Full Date/Time Thursday, October, 25, 2012, 12:37 EST 1 of 1 About LexisNexis | Terms & Conditions | My ID Copyright 2012 LexisNexis . All rights reserved. Back to Top

(H) Falsa Demonstratio Rule The paragraph below is current to 07 February 2012 [140-630] False description A conveyance of land must be by deed. 1 If land is not subject to the Torrens system2 (that is, the land is old system land), the land being conveyed must be described with sufficient certainty in the deed of conveyance.3 Where various terms are used to define property, some of which define the property with certainty and others which add an untrue description, the untrue part will be rejected and will not vitiate the conveyance.4 This rule is embodied in the maxim falsa demonstratio non nocet cum de corpore constat.5 If there is a

conveyance of land in which the land being conveyed is described with certainty, false statements as to the manner in which title to the land was derived,6 as to tenure,7 area,8 mode of user, 9 name,10 parish,11 or boundary,12 will be rejected. The falsa demonstratio rule is subject to a further rule which provides that the false words will not be rejected if they may be read as words of restraint that limit the generality of the former words.13 This latter rule is expressed by the maxim non accipi debent verba in demonstrationem falsam quae competunt in limitationem veram.14 If the principal words of the description lack the certainty necessary for the rejection of the subordinate description as falsa demonstratio and the subordinate description may be read as limiting the principal description, then this is how the subordinate description will be construed.15 Words which form an essential part of the description of the subject matter cannot be rejected.16 Notes 1 See [140-140].2 See [140-140] and generally real property.3 For an example of the general form of such a deed see Australian Encyclopaedia of Forms and Precedents, 3rd ed, Vol 13, real property-old system title, Pr 450.1. See also [140-635]. The question of determining what is described as the subject matter of the contract must be resolved by construction of the particular instrument: Gardiner v Orchard (1910) 10 CLR 722; 17 ALR 52; 11 SR (NSW) 18; 27 WN (NSW) 152 .4 Morrell v Fisher (1849) 4 Exch 591 at 604; 19 LJ Ex 273; 154 ER 1350 at 1355 per Alderson B ; Cowen v Truefitt Ltd [1899] 2 Ch 309 at 311-12; (1899) 81 LT 104 per Lindley MR (in relation to a devise by will); Guardian Mortgages Pty Ltd v Miller [2004] NSWSC 1236; BC200408878 at [87] per Wool CJ .5 Literally, a false description does not vitiate a deed when there is no doubt as to the thing or person meant. See also Butterworths Concise Australian Legal Dictionary.6 Preston R (ed), Sheppards Touchstone of Common Assurances, 7th ed, London, 1820, p 247; Wrotesley v Adams (1559) 1 Plowd 187 at 191; 75 ER 287 ; Windham v Windham (1581) 3 Dyer 376b; 73 ER 843.7 Re Bright-Smith; Bright-Smith v Bright-Smith (1886) 31 Ch D 314 . Travinto Nominees Pty Ltd v Vlattas (1973) 129 CLR 1 at 12; [1972-73] ALR 1153; (1973) 47 ALJR 279 per Barwick CJ (if an area of land is contracted to be sold without conditions the law imports an obligation on the vendor to show a good title in fee simple to the land).8 Llewellyn v Earl of Jersey (1843) 11 M & W 183; 152 ER 767 ; Preston R (ed), Sheppards Touchstone of Common Assurances, 7th ed, London, 1820, p 247; Lord Willoughby v Foster (1553) 1 Dyer 80b; 73 ER 172; Bank of Australasia v A-G (1894) 15 LR (NSW) L 256; Cuninghame v Platt (1882) 8 VLR (E) 55 .9 Cunningham v Butler (1861) 3 Giff 37; 66 ER 313.10 Rorke v Errington (1859) 7 HL Cas 617 at 626; 11 ER 246 at 249.11 Lambe v Reaston (1813) 5 Taunt 207; 128 ER 666.12 Francis v Hayward (1882) 22 Ch D 177 at 181 per Jessel MR.13 Morrell v Fisher (1849) 4 Exch 591 at 604; 19 LJ Ex 273; 154 ER 1350 at 1355 per Alderson B .14 Morrell v Fisher (1849) 4 Exch 591 at 604; 19 LJ Ex 273; 154 ER 1350 at 1355 per Alderson B (if it is unclear whether words import a false reference or description, or whether they are words of restraint that limit the generality of the former words, the law will never intend error or falsehood).15 Slingsby v Grainger (1859) 7 HL Cas 273 at 282-3; 11 ER 109 at 112-13 per Lord Cranworth .16 Magee v Lavell (1874) LR9CP 107; 58 LT 517. The paragraph below is current to 07 February 2012 [140-635] Description in conveyance Generally, the description of the land in the deed of conveyance (a document usually prepared by the purchaser) should correspond with the description of the land which appears in the agreement for sale.1 However, if the purchaser considers that the words used in the contract do not describe the land with sufficient distinctness, he or she has the right to frame a new description either by means of a plan or otherwise, as he or she deems most convenient, so that there may be no doubt as to the effect of the deed of conveyance.2 If there is an apparent repugnancy between different parts of a description so that full effect

cannot be given to the whole, the proper rule is to give effect to those things about which people are least liable to make a mistake.3 If the property has changed in description and the old description is no longer appropriate, the purchaser is entitled to have an appropriate description of the property as at the date of conveyance to himself or herself and the purchaser may insist that the modern description be connected with the old description so that there is a continuous description of the property.4 If the description in the contract is misleading, inadequate or obsolete, the purchaser is entitled to have inserted in the conveyance such a description of the property as will clearly identify the land and in these circumstances the vendor cannot refuse to convey the land by the new description.5 Notes 1 A deed of conveyance is required only in respect of old system conveyancing: see [140-630] note 3. See further real property [355-3600]-[355-3730], [355-4525]-[355-4610].2 Re Sansom and Narbeth's Contract [1910] 1 Ch 741 at 747 per Swinfen Eady J. 3 Phillips v R (1910) 12 CLR 287 at 292; [1910] HCA 60 per Griffith CJ ; Consolidated Gold Mining Areas NL v Oresearch NL (1990) 3 WAR 208 at 220-1 per Commissioner Heenan QC .4 Re Sansom and Narbeth's Contract [1910] 1 Ch 741 at 749 per Swinfen Eady J. 5 Re Sansom and Narbeth's Contract [1910] 1 Ch 741 at 749 per Swinfen Eady J.

Source

[Halsbury's Laws of Australia]

View Full Date/Time Thursday, October, 25, 2012, 12:38 EST 1 of 1 About LexisNexis | Terms & Conditions | My ID Copyright 2012 LexisNexis . All rights reserved. Back to Top

(I) Ejusdem Generis Rule The paragraph below is current to 07 February 2012 [140-640] Operation of the rule If general words follow particular or specific words the general words may be restricted to things of the same kind (genus) which preceded them.1 This ejusdem generis rule is a rule of construction only2 and is not a rule of law. 3 The rule is subordinate to the real intention of the parties and does not control it, that is, the rule is merely an instrument for getting at the meaning of the parties, and the parties, if they use language intimating such intention, may exclude the operation of the rule.4 Before the ejusdem generis rule can be applied it is necessary to identify a relevant genus to which the specific words which it is said qualify or restrict the general words belong.5

The ejusdem generis rule is not to be automatically applied. General words are to be taken in the larger sense unless in the particular case the true construction of the instrument requires the court to conclude that the words are intended to be used in a sense limited to things ejusdem generis with those which have been specifically mentioned before.6 The rule applies to restrict the general words not because a genus has been found but because the intention is that the general words are to be so restricted.7 The ejusdem generis rule is of no assistance in determining the actual intention of the parties,8 the rule being of assistance only where the intention is to be imputed rather than discovered.9 The tendency should be to adhere to the primary rule as to the meaning of words10 and to see the subordinate rule of ejusdem generis as explaining how, if there is to be a limitation of the general words, it may be accommodated to the language.11 Notes 1 R v Regos (1947) 74 CLR 613 at 623; [1947] ALR 308; (1947) 21 ALJ 110; BC4700270 per Latham CJ ; Cody v JH Nelson Pty Ltd (1947) 74 CLR 629 at 639; [1947] ALR 314; (1947) 21 ALJ 113; BC4700280 per Starke J .2 R v Regos (1947) 74 CLR 613 at 623; [1947] ALR 308; (1947) 21 ALJ 110; BC4700270 per Latham CJ. 3 Cody v JH Nelson Pty Ltd (1947) 74 CLR 629 at 639; [1947] ALR 314; (1947) 21 ALJ 113; BC4700280 per Starke J ; Canwan Coals Pty Ltd v FCT [1974] 1 NSWLR 728; (1974) 4 ALR 223 at 227; 23 FLR 129; 74 ATC 4231 per Sheppard J .4 Cody v JH Nelson Pty Ltd (1947) 74 CLR 629 at 639; [1947] ALR 314; (1947) 21 ALJ 113; BC4700280 per Starke J .5 Morgan v Municipality of Clarence [1987] Tas R (NC) N9; (1987) 62 LGRA 246; BC8700009 at 3 per Green CJ ; Canwan Coals Pty Ltd v FCT [1974] 1 NSWLR 728; (1974) 4 ALR 223 at 227; 23 FLR 129; 74 ATC 4231 per Sheppard J .6 Anderson v Anderson [1895] 1 QB 749 at 753; (1895) 72 LT 313 per Lord Esher MR; R v Regos (1947) 74 CLR 613 at 623; [1947] ALR 308; (1947) 21 ALJ 110; BC4700270 per Latham CJ.7 Mattinson v Multiplo Incubators Pty Ltd [1977] 1 NSWLR 368 at 376; [1977] WCR (NSW) 11 per Mahoney JA. 8 See also [140-490], [140-495].9 Mattinson v Multiplo Incubators Pty Ltd [1977] 1 NSWLR 368 at 376; [1977] WCR (NSW) 11 per Mahoney JA. 10 Cody v JH Nelson Pty Ltd (1947) 74 CLR 629 at 647; [1947] ALR 314; (1947) 21 ALJ 113; BC4700280 per Dixon J (general words should be understood in their primary and natural signification unless there are sufficient indications of some other meaning). See [140-500].11 Mattinson v Multiplo Incubators Pty Ltd [1977] 1 NSWLR 368 at 376; [1977] WCR (NSW) 11 per Mahoney JA .

Source

[Halsbury's Laws of Australia]

View Full Date/Time Thursday, October, 25, 2012, 12:38 EST 1 of 1 About LexisNexis | Terms & Conditions | My ID Copyright 2012 LexisNexis . All rights reserved. Back to Top

(J) General Words in Conveyances The paragraph below is current to 07 February 2012 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [140-645] Use of general words General words in a deed of conveyance may be restricted by a particular recital1 and may be limited with respect to the subject matter in relation to which they are used.2 Also, where the same words have for many years received a judicial construction the court should be aware that the parties may have contracted upon the belief that their words will be understood in this accepted sense.3 In all jurisdictions except the Australian Capital Territory and the Northern Territory, statute deems the inclusion of certain things (including, but not limited to, fixtures, fences, easements and profits prendre) in conveyances of land and buildings without the necessity of express mention or the use of general words.4 The provisions apply only in so far as a contrary intention is not expressed in the conveyance and they are subject to the terms of the conveyance itself.5 Additionally, with the added exception of Queensland, the provisions may not be construed as giving to any person a better title to any property right or thing mentioned in the provisions than the title which could have been conveyed to him or her by the conveying party or parties.6 Notes 1 See [140-615].2 Thames and Mersey Marine Insurance Co v Hamilton, Fraser & Co (The Inchmaree Case) (1887) LR 12 App Cas 484 at 490; [1886-90] All ER Rep 241 at 244 per Lord Halsbury LC ; Cody v JH Nelson Pty Ltd (1947) 74 CLR 629 at 646; [1947] ALR 314; (1947) 21 ALJ 113; BC4700280 per Dixon J .3 Thames and Mersey Marine Insurance Co v Hamilton, Fraser & Co (The Inchmaree Case) (1887) LR 12 App Cas 484 at 490; [1886-90] All ER Rep 241 at 244 per Lord Halsbury LC . If a party discards words in an instrument which have been given a general interpretation by the courts over the centuries, and substitutes new words, one cannot infer that the same construction is to be given to the new words: Ross v NRMA Life Ltd (1993) 7 ANZ Ins Cas 61-170; BC9301932 per Young J.4 (NSW) Conveyancing Act 1919 s 67(1), 67(2) (QLD) Property Law Act 1974 s 239(1), 239(2) (SA) Law of Property Act 1936 s 36(1), 36(2) (TAS) Conveyancing and Law of Property Act 1884 s 6(1), 6(2) (VIC) Property Law Act 1958 s 62(1), 62(2) (WA) Property Law Act 1969 s 41(1), 41(2). There are no equivalent provisions in the Australian Capital Territory and the Northern Territory. See Nelson v Walker (1910) 10 CLR 560; [1911] VLR 136; (1910) 16 ALR 285 . 5 (NSW) Conveyancing Act 1919 s 67(3) (QLD) Property Law Act 1974 s 239(3) (SA) Law of Property Act 1936 s 36(3)

(TAS) Conveyancing and Law of Property Act 1884 s 6(3) (VIC) Property Law Act 1958 s 62(3) (WA) Property Law Act 1969 s 41(3). There are no equivalent provisions in the Australian Capital Territory and the Northern Territory. 6 (NSW) Conveyancing Act 1919 s 67(4) (SA) Law of Property Act 1936 s 36(4) (TAS) Conveyancing and Law of Property Act 1884 s 6(4) (VIC) Property Law Act 1958 s 62(4) (WA) Property Law Act 1969 s 41(4). There are no equivalent provisions in the Australian Capital Territory, the Northern Territory and Queensland.

Source

[Halsbury's Laws of Australia]

View Full Date/Time Thursday, October, 25, 2012, 12:38 EST 1 of 1 About LexisNexis | Terms & Conditions | My ID Copyright 2012 LexisNexis . All rights reserved. Back to Top

(K) Exceptions and Reservations The paragraph below is current to 07 February 2012 [140-650] Exceptions An exception, as distinct from a reservation, 1 is always of part of the thing granted, as only a thing which exists may be made an exception.2 An exception is where the grantor excludes some part of that which he or she has already given in order that it may not pass by the grant but may be taken out of it and remain with the grantor.3 A valid exception operates immediately and the subject of the exception does not pass to the grantee.4 A vendor who wishes to except some part of the property from parcels which are clearly described and admittedly included in the conveyance must use clear language.5 In certain instances a reservation may, in substance, amount to an exception if the word used is reservation but in fact what is reserved is part of an existing thing granted.6

Notes 1 See [140-655].2 Coke E, Commentary upon Littleton, Vol 1, 19th ed, London, 1832, p 47a; Preston R (ed), Sheppards Touchstone of Common Assurances, 7th ed, London, 1820, p 80.3 Cooper v Stuart (1889) 14 App Cas 286 at 289-90; 10 LR (NSW) Eq 172 per Lord Watson , PC (not followed in De Rose v South Australia [2002] FCA 1342; BC200206460 for other reasons).4 Cooper v Stuart (1889) 14 App Cas 286 at 290; 10 LR (NSW) Eq 172 per Lord Watson , PC.5 Grigsby v Melville [1973] 3 All ER 455; [1974] 1 WLR 80; (1973) 26 P & CR 182 (cellar of house conveyed not excepted even though accessible only from other property of the vendor).6 Coke E, Commentary upon Littleton, Vol 1, 19th ed, London, 1832, p 143a; Doe d Douglas v Lock (1835) 2 Ad & El 705 at 744; 111 ER 271 at 287 per Lord Denman CJ ; Commissioner of Stamp Duties (NSW) v Commonwealth Funds Management Ltd (1995) 38 NSWLR 173 at 181; 31 ATR 457; 95 ATC 4756; BC9501768 per Brownie AJA . The paragraph below is current to 07 February 2012 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [140-655] Reservations A reservation is an action taken in relation to a thing which is not in existence but which is newly created out of the thing granted.1 A reservation is the creation of some new thing, as distinct from an exception, which is always part of the thing granted.2 It is an essential aspect of a reservation that it issue out of the thing which is being granted.3 For example, a right of way cannot, strictly speaking, be made the subject of either an exception or a reservation as it is neither a part of the thing granted, nor is it newly created out of the thing granted.4 While, in these circumstances, the word reservation is often used, it is strictly an easement newly created by way of grant from the grantee and will be of no effect unless the deed in which the reservation is contained is executed by the grantee.5 In a number of jurisdictions, the effect of this rule has been overcome by statute which provides that in a conveyance of land a reservation of any easement, right, liberty or privilege not exceeding in duration the estate conveyed, operates without the need for execution of the conveyance by the grantee of the land out of which the reservation is made so as to create the easement, right, liberty or privilege and so as to vest the same in possession in the person (whether being the grantor or not) for whose benefit the reservation is made.6 Notes 1 Coke E, Commentary upon Littleton, Vol 1, 19th ed, London, 1832, p 47a; Preston R (ed), Sheppards Touchstone of Common Assurances, 7th ed, London, 1820, p 80; Doe d Douglas v Lock (1835) 2 Ad & El 705 at 744; 111 ER 271 at 287 per Lord Denman CJ. 2 Preston R (ed), Sheppards Touchstone of Common Assurances, 7th ed, London, 1820, p 80; Doe d Douglas v Lock (1835) 2 Ad & El 705; 111 ER 271 . As to exceptions see [140-650].3 Durham and Sunderland Railway Co v Walker (1842) 2 QB 940 at 967; [1832-42] All ER Rep 52; (1842) 114 ER 364 at 374 per Tindal CJ. 4 Durham and Sunderland Railway Co v Walker (1842) 2 QB 940 at 967; [1832-42] All ER Rep 52; (1842) 114 ER 364 per Tindal CJ ; Yip v Frolich (2004) 89 SASR 467; (2004) 235 LSJS 425; [2004] SASC 287; BC200406054 at [65] per Bleby J .5 Durham and Sunderland Railway Co v Walker (1842) 2 QB 940 at 964; [1832-42] All ER Rep 52; (1842) 114 ER 364 per Tindal CJ. 6 (NT) Law of Property Act 2000 s 8(1) (NSW) Conveyancing Act 1919 s 45A(1) (QLD) Property Law Act 1974 s 9(1) (TAS) Conveyancing and Law of Property Act 1884 s 34C

(VIC) Property Law Act 1958 s 65(1). There are no equivalent provisions in the other jurisdictions.

Source

[Halsbury's Laws of Australia]

View Full Date/Time Thursday, October, 25, 2012, 12:38 EST 1 of 1 About LexisNexis | Terms & Conditions | My ID Copyright 2012 LexisNexis . All rights reserved. Back to Top

(L) All Estate Clauses The paragraph below is current to 07 February 2012 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [140-660] Effect of all estate clauses In each jurisdiction, except the Australian Capital Territory and the Northern Territory, it is provided by statute that every conveyance passes all the estate, right, title, interest, claim and demand which the conveying party has in (or on) the property conveyed or expressed or intended to be conveyed.1 The statute applies only if and so far as a contrary intention is not expressed in the conveyance, and has effect subject to the terms of the conveyance and the provisions contained in it.2 The effect of a conveyance which contains an all estate clause is that when a person having several estates and interests in a parcel of land conveys all of his or her estate or interest in the land to a purchaser, every estate or interest vested in the vendor passes by that conveyance, although not vested in him or her in the character in which he or she became a party to the conveyance.3 Notes 1 (NSW) Conveyancing Act 1919 s 68(1) (QLD) Property Law Act 1974 s 240(1) (SA) Law of Property Act 1936 s 37(1)

(TAS) Conveyancing and Law of Property Act 1884 s 75(1) (VIC) Property Law Act 1958 s 63(1) (WA) Property Law Act 1969 s 42(1). There are no equivalent provisions in the Australian Capital Territory and the Northern Territory. 2 (NSW) Conveyancing Act 1919 s 68(2) (QLD) Property Law Act 1974 s 240(2) (SA) Law of Property Act 1936 s 37(2) (TAS) Conveyancing and Law of Property Act 1884 s 75(2) (VIC) Property Law Act 1958 s 63(2) (WA) Property Law Act 1969 s 42(2). There are no equivalent provisions in the Australian Capital Territory and the Northern Territory. 3 Drew v Earl Norbury (1846) 3 Jo & Lat 267 at 284 per Lord St Leonards LC; Taylor v London and County Banking Co [1901] 2 Ch 231 at 256; (1901) 84 LT 397 per Stirling LJ .

Source

[Halsbury's Laws of Australia]

View Full Date/Time Thursday, October, 25, 2012, 12:38 EST 1 of 1 About LexisNexis | Terms & Conditions | My ID Copyright 2012 LexisNexis . All rights reserved. Back to Top

(M) Premises and Habendum The paragraph below is current to 07 February 2012 [140-665] Premises In conveyances of land, the premises comprise that part of the deed which precedes the habendum.1 The premises generally comprise the description of the instrument, the date, the names of the parties, the recitals and the consideration.2 Notes 1 Coke E, Commentary upon Littleton, Vol 1, 19th ed, London, 1832, pp 6a, 229b; Throckmerton

v Tracy (1555) 1 Plowd 145 at 151; [1558-1774] All ER Rep 168; (1555) 75 ER 222 at 232. As to the habendum see [140-670].2 See [140-20]. The paragraph below is current to 07 February 2012 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [140-670] Habendum In conveyances of land, the habendum is that part of the deed which describes or limits the estate or interest being conveyed.1 A deed may be effectual without an habendum if the estate is defined by the premises, and if the habendum is repugnant to the premises or otherwise void or incapable of construction, the habendum will be rejected and the deed will stand good upon the premises.2 The necessity for words of limitation3 in conveying an estate in fee simple has been abolished in a majority of Australian jurisdictions.4 If no estate is mentioned in the premises, the grantee will take nothing under that part of the deed, although if an habendum follows, the intention of the parties as to the estate to be conveyed will be found there. However, if the intention so expressed is contrary to the rules of law, the intention cannot take effect and the deed will be void.5 The habendum may limit and declare the estate which is to pass by the deed, however, it cannot, subsequent to a limitation expressed in the premises, cut down or abridge a limitation granted by the premises.6 The premises ought to contain the name of the grantee, however, if his or her name is omitted there, it is sufficient if it is mentioned in the habendum.7 Notes 1 Throckmerton v Tracy (1555) 1 Plowd 145 at 152; [1558-1774] All ER Rep 168; (1555) 75 ER 222 at 234 (the nature of every habendum in deeds is to declare and limit the certainty of the estate which shall pass by the deed).2 Goodtitle d Dodwell v Gibbs (1826) 5 B & C 709 at 717; 108 ER 264 at 267 per Abbott CJ.3 Words of limitation are those words which define the extent of the estate being given. In order to grant an estate in fee simple the grant needed to state that the estate was being transferred to the transferee and his heirs, the words and his heirs representing the words of limitation. Failure to use the correct words of limitation could result in an estate less than the fee simple (for example, a life estate) being transferred: see real property [355-2000]-[355-2165].4 (NT) Law of Property Act 2000 s 29(1) (NSW) Conveyancing Act 1919 s 47(1), 47(2) (QLD) Property Law Act 1974 s 29(1) (TAS) Conveyancing and Law of Property Act 1884 s 61(2) (VIC) Property Law Act 1958 s 60 (WA) Property Law Act 1969 s 37(1), 37(2). There are no equivalent provisions in the Australian Capital Territory and South Australia. For creation of estates in land generally see real property [355-2010]-[355-2215]. 5 Goodtitle d Dodwell v Gibbs (1826) 5 B & C 709 at 717; 108 ER 264 at 266-7 per Abbott CJ.

For creation of estates in land generally see real property [355-2010]-[355-2215].6 Kendal v Micfeild (1740) Barn Ch 46 at 47; 27 ER 549.7 Spyve v Topham (1802) 3 East 115 at 118-19; 102 ER 541 at 542.

Source

[Halsbury's Laws of Australia]

View Full Date/Time Thursday, October, 25, 2012, 12:39 EST 1 of 1 About LexisNexis | Terms & Conditions | My ID Copyright 2012 LexisNexis . All rights reserved. Back to Top

(N) Covenants The paragraph below is current to 07 February 2012 [140-675] Definition and construction A covenant is an agreement of the parties under seal, that is, a promise contained in a deed and every form of words which indicate an agreement will, when under seal, form a covenant.1 Strictly speaking, the word covenant is inapplicable to anything but an instrument under seal. However, the court may construe the word in terms of its use in common parlance in order to construe the instrument so as to give, if possible, effect to every word contained in it.2 No particular technical words are necessary for making a covenant.3 To charge a party with a covenant, it is not necessary that there should be express words of covenant or agreement although, the intention of the parties to create a covenant must be apparent.4 It must also be clear that the words are meant to operate as an agreement and not merely as words of condition or qualification.5 An implied covenant is, to all intents and purposes, the same as an express covenant and has the same legal effect as if it had been expressly included in the instrument.6 However, a covenant cannot be implied in circumstances in which there already exists an express covenant in relation to the subject matter.7 If in a deed there are such words as it is hereby agreed and declared between and by the parties to these presents to the effect that someone will do an act or make a payment, and that someone is a party to the deed, it is a covenant by him or her with the others, not a covenant by all of them.8 An agreement by all parties that property be dealt with in a particular way is a covenant, by those parties whose concurrence is required to give effect to the provision, with those who are to take the benefit of the transfer.9

Notes 1 Randall v Lynch (1810) 12 East 179 at 182; [1803-13] All ER Rep 197; (1810) 104 ER 71 at 72 per Lord Ellenborough CJ; Russell v Watts (1885) LR 10 App Cas 590 at 611 per Lord Blackburn; Argyle Developments Pty Ltd v Australia and New Zealand Banking Group Ltd (unreported, SC(TAS), Zeeman J, No CV2/1992, 15 October 1993, BC9300123).2 Hayne v Cummings (1864) 16 CBNS 421 at 426-7; 143 ER 1191 at 1194 per Willes J ; David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353; 109 ALR 57; 66 ALJR 768; 24 ATR 125; BC9202662 at [8] per Mason CJ, Deane, Toohey, Gaudron and McHugh JJ.3 Lant v Norris (1757) 1 Burr 287 at 290; 97 ER 317 at 319 per Lord Mansfield CJ; Sampson v Easterby (1829) 9 B & C 505 at 512; 109 ER 188 at 191; (1830) 6 Bing 644 ; Wolveridge v Steward (1833) 1 Cr & M 644 at 657; 149 ER 557 at 562 per Denman CJ ; Rigby v Great Western Railway Co (1845) 14 M & W 811 at 815; 153 ER 703 at 706 per Parke B; Rashleigh v South Eastern Railway Co (1851) 10 CB 612 at 632; 138 ER 242 at 250 ; Russell v Watts (1885) LR 10 App Cas 590 at 611 per Lord Blackburn; Re Cadogan and Hans Place Estate Ltd; Ex parte Willis (1895) 73 LT 387.4 Courtney v Taylor (1843) 6 Man & G 851 at 867; 134 ER 1135 at 1143 per Tindal CJ.5 Wolveridge v Steward (1833) 1 Cr & M 644 at 657; 149 ER 557 at 562-3 per Denman CJ .6 Williams v Burrell (1845) 1 CB 402 at 431; 135 ER 596 at 607 per Tindal CJ. As to implied covenants see [140-680]-[140-684].7 Sharp v Waterhouse (1857) 7 El & Bl 816 at 827; 119 ER 1449 at 1453-4 per Lord Campbell CJ . As to implied covenants see [140-680][140-684].8 Dawes v Tredwell (1881) 18 Ch D 354 at 359 per Jessel MR .9 Willoughby v Middleton (1862) 2 John & H 344 at 354; 70 ER 1089 at 1094; 6 LT 814; 10 WR 460 per Wood VC . The paragraph below is current to 07 February 2012 [140-680] Covenants implied by construction The circumstances in which covenants will be implied into deeds are generally the same as those for the implication of terms into agreements under hand.1 No precise word or form of words are necessary to constitute a covenant.2 A covenant arises by construction where the instrument shows an intention that the party shall be bound by the deed even though the instrument contains no express words of obligation provided the court may collect an agreement by the parties that a certain thing shall be done, that is sufficient for the creation of a covenant.3 However, a covenant will not be implied unless the implication is so necessary that the court may have no doubt what covenant or undertaking to write into the agreement.4 It is not material whether the words importing the covenant are contained in the recitals or in the operative part of the instrument5 and it is sufficient if the intention of the parties mutually to contract appears from the instrument as a whole.6 A recital will not imply a covenant where there is an express covenant relating to the same subject matter7 unless the express covenant is so ambiguous as to justify a reference to the recitals in order to explain it.8 Notes 1 See generally contract [110-2125]-[110-2178].2 Rashleigh v South Eastern Railway Co (1851) 10 CB 612; 138 ER 242 at 250 ; James v Cochrane (1852) 7 Exch 170; 155 ER 903 at 906 per Parke B .3 Rashleigh v South Eastern Railway Co (1851) 10 CB 612; 138 ER 242 at 250 ; James v Cochrane (1852) 7 Exch 170; 155 ER 903 at 906 per Parke B ; Gillett v Burke [1997] 1 VR 81 .4 R v Paddington and St Marylebone Rent Tribunal; Ex parte Bedrock Investments Ltd [1947] KB 984 at 990; [1947] 2 All ER 15 at 17 . As to the requirement that an implied term be necessary and obvious see contract [110-2125]-[110-2145].5 As to the construction of recitals see [140-615].6 Wood v Governor and Co of Copper Miners in England (1849) 7 CB 906 at 936; 137 ER 359 at 371 per Wilde CJ .7 Dawes v Tredwell (1881) 18 Ch D 354 at 358-9 per Jessel MR , CA.8 Re De Ros Trust; Hardwicke v Wilmot (1885) 31 Ch D 81 per Kay J . See [140-

615], [140-620]. The paragraph below is current to 07 February 2012 [140-682] Covenants implied for the continuance of a business If a party enters into an arrangement which may only take effect by the continuance of a certain existing state of circumstances, there is an implied covenant that he or she will do nothing of his or her own motion to end that state of circumstances.1 However, and notwithstanding that the effective operation of an agreement may depend for its efficacy upon the continuation of a business, where the agreement is in the nature of a contract of agency or employment, there is no implied covenant that the business shall continue to be carried on.2 Notes 1 Stirling v Maitland (1864) 5 B & S 840; 122 ER 1043 at 1047 ; Telstra Corp Ltd v Australis Media Holdings (1997) 24 ACSR 55; (1997) Aust Contract R 90-084; BC9702189 at 19 per McLelland CJ .2 Re English and Scottish Marine Insurance Co; Ex parte Maclure (1870) LR 5 Ch App 737; Rhodes v Forwood (1876) LR 1 App Cas 256; [1874-80] All ER Rep 476; Northey v Trevillion (1901) 18 TLR 648; 7 Com Cas 201 ; Lazarus v Cairn Line of Steamships Ltd (1912) 106 LT 378 ; Aspdin v Austin (1844) 5 QB 671; 114 ER 1402 ; Turner v Sawdon & Co [1901] 2 KB 653 . The paragraph below is current to 07 February 2012 [140-683] Covenants implied to perform a preliminary act When implying a covenant, the court must be satisfied that the language not only shows that the parties contemplated that something might be done, but that there is a binding agreement between them that something must be done.1 If the terms of an agreement show that the parties contemplated that a certain thing would be done (but there is no express covenant to this effect) before another thing is done (for which there is an express covenant), it will be a matter of construction as to whether the instrument may be read as implying a covenant to do the former. If the two things are so involved that the parties cannot be supposed to have intended to impose one obligation without also imposing an obligation to do the other, then there will be an implied covenant to do the first thing.2 However, an express covenant in an instrument which binds a party to do certain things which are incidental to or to be done after, a preceding act and which are not expressed to be conditional on the occurrence of the preceding act, does not imply a covenant for the performance of the preceding act.3 If parties enter an agreement with an expectation that a preliminary act is certain to take place before acts expressly covenanted for, it does not follow from this state of affairs that the parties intended that one party should be bound to perform the preliminary act.4 Notes 1 James v Cochrane (1852) 7 Exch 170; 155 ER 903 at 906 per Parke B .2 Burke v Gillett (1994) ANZ ConvR 542; (1994) V ConvR 54-507; BC9401174 (citing Halsburys Laws of England, 4th ed, Vol 12, para 1545 with approval).3 Rashleigh v South Eastern Railway Co (1851) 10 CB 612; 138 ER 242 at 250 ; James v Cochrane (1852) 7 Exch 170; 155 ER 903 at 906 per Parke B ; Smith v Mayor, Aldermen and Burgesses of the Borough of Harwich (1857) 2 CBNS 651; 140 ER 572 ; Burke v Gillett (1994) ANZ ConvR 542; (1994) V ConvR 54-507; BC9401174.4 Rashleigh v South Eastern Railway Co (1851) 10 CB 612; 138 ER 242 at 250 ; Burke v Gillett (1994) ANZ ConvR 542; (1994) V ConvR 54-507; BC9401174. The paragraph below is current to 07 February 2012 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations

[140-684] Covenants implied by law Apart from covenants which may be implied from the factual circumstances of the case, terms may also be implied as a matter of law from the nature of the contract and the words used in it.1 A covenant implied in law is an agreement which the law infers or implies from the use of certain words having a known legal operation in the creation of an estate. After they have had their primary operation in creating the estate, the law gives them a secondary force by implying an agreement on the part of the grantor to protect and preserve the estate.2 For example, the use of the word demise in a lease at common law imported covenants on the part of the lessor that he or she has good title3 and that the lessee shall have quiet enjoyment.4 The operation of statute in various jurisdictions affects the implication and construction of covenants as a matter of law.5 In certain jurisdictions, it is provided that no exchange or partition of any land made by deed implies any condition in law and the word give or the word grant in a deed does not imply any covenant in respect of any lands.6 In most jurisdictions, there exists legislation which implies certain covenants for title into conveyances.7 Notes 1 See generally contract [110-2125]-[110-2178].2 Williams v Burrell (1845) 1 CB 402 at 429-30; 135 ER 596 at 607 per Tindal CJ.3 Burnett v Lynch (1826) 5 B & C 589 at 609; [1824-34] All ER Rep 352; (1826) 108 ER 220 at 227 per Littledale J. 4 Burnett v Lynch (1826) 5 B & C 589; [1824-34] All ER Rep 352; (1826) 108 ER 220 per Littledale J ; Williams v Burrell (1845) 1 CB 402 at 430; 135 ER 596 at 607 per Tindal CJ; Moore v Western Australia (1907) 5 CLR 326 at 333 per Griffith CJ . See further leases and tenancies [245-3305]-[245-3315] and real property [355-12500]-[355-12520].5 (ACT) Land Titles Act 1925 ss 111-116 (NT) Law of Property Act 2000 ss 50-52 (NSW) Conveyancing Act 1919 ss 73-77 (QLD) Property Law Act 1974 ss 48-50 (TAS) Conveyancing and Law of Property Act 1884 s 64 (VIC) Property Law Act 1958 ss 61, 82, 83 (WA) Property Law Act 1969 ss 46, 50, 52. There are no equivalent provisions in South Australia. 6 (NSW) Conveyancing Act 1919 s 77 (SA) Law of Property Act 1936 s 35(1), 35(2) (TAS) Conveyancing and Law of Property Act 1884 s 61 (VIC) Property Law Act 1958 s 59 (WA) Property Law Act 1969 s 13. There are no equivalent provisions in the other jurisdictions. 7 Covenants for title are particular covenants implied by statute on the part of a transferor of so called old system land in favour of the transferee where the transferor is expressed to convey as

beneficial owner. See (NSW) Conveyancing Act 1919 s 78 (SA) Law of Property Act 1936 s 42 (TAS) Conveyancing and Law of Property Act 1884 s 7 (VIC) Property Law Act 1958 s 76 (WA) Property Law Act 1969 s 45. There are no equivalent provisions in the other jurisdictions. See also [140-510] and real property [355-12500]-[355-12655]. The paragraph below is current to 07 February 2012 [140-685] Qualified covenants A covenant may be absolute or qualified. The qualification may either be by way of condition precedent or condition subsequent1 or by way of limitation. The most common means by which covenants are qualified is by words which purport to limit or restrict the liability of the covenantor.2 If the application of the limitation to the particular covenant is clear, it is immaterial where in the deed the limitation occurs3 and such limitation may also arise by implication.4 The operation of a covenant will generally be restricted to all circumstances which were within the contemplation of the parties when the deed was made and will not be extended to encompass matters which are beyond the reasonable contemplation of the parties.5 Notes 1 See contract [110-2415].2 Sanderson v Berwick-upon-Tweed Corporation (1884) 13 QBD 547; 51 LT 495 ; Harrison, Ainslie & Co v Lord Muncaster [1891] 2 QB 680; (1891) 61 LJQB 102; 65 LT 481 .3 Brown v Brown (1661) 1 Lev 57; 83 ER 295.4 Sicklemore v Thistleton (1817) 6 M & S 9; 105 ER 1146.5 Harrison, Ainslie & Co v Lord Muncaster [1891] 2 QB 680 at 686; (1891) 61 LJQB 102; 65 LT 481 per Lord Esher MR . The paragraph below is current to 07 February 2012 [140-690] Joint and several covenants If there are multiple covenantors or covenantees, the burden and benefit of a covenant may be either joint, several or joint and several.1 If a number of persons covenant with each other in terms which import without ambiguity a joint and not a several obligation, the covenant must be held to be a joint one.2 In the absence of words of severance, liability will be joint.3 If ambiguity exists, the court may look to other parts of the deed, the interests of the covenantors and any other circumstances appearing on the face of the instrument which will aid in the determination of the parties intention.4 Further, there is no rule that every joint covenant is, in equity, to be considered as the several covenant of each of the covenantors.5 While a partnership debt has been treated in equity as the several debt of each partner, at law it is the joint debt of all, because all have had a benefit from the money advanced or credit given and the obligation to pay exists independently of any instrument by which the debt may have been secured.6 A covenant is several where there are several covenantors and each undertakes liability only in respect of his or her own acts or defaults.7

Covenants are most commonly joint and several, it being left to the election of the covenantee to choose the manner in which he or she sues upon the deed.8 Notes 1 See also [140-345], [140-350] which, while dealing specifically with the subject of bonds, express principles which are of application to joint and several covenants in deeds generally.2 White v Tyndall (1888) 13 App Cas 263 at 276; [1886-90] All ER Rep Ext 1527 at 1532 per Lord Herschell . See also [140-350].3 White v Tyndall (1888) 13 App Cas 263; [1886-90] All ER Rep Ext 1527 .4 White v Tyndall (1888) 13 App Cas 263; [1886-90] All ER Rep Ext 1527 .5 Sumner v Powell (1816) 2 Mer 30 at 36; 35 ER 852 at 854 per Grant MR .6 Sumner v Powell (1816) 2 Mer 30 at 37; 35 ER 852 at 854 per Grant MR ; Woodgate v Davis (2002) 55 NSWLR 222; 42 ACSR 286; [2002] NSWSC 616; BC200203846 at [10] per Barrett J .7 Mathewsons Case (1597) 5 Co Rep 22b; 77 ER 84.8 May v Woodward (1677) Freem KB 248; 89 ER 117 at 178. The paragraph below is current to 07 February 2012 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [140-695] Benefit and construction of covenants Legislation in most jurisdictions now provides that a covenant, whether express or implied, made with two or more persons jointly (to pay money, make a conveyance or do any other act for the benefit of the covenantees) is deemed to imply an obligation to do the act to or for the benefit of the survivor or survivors of the covenantees and to or for the benefit of any other person to whom the right to sue on the covenant devolves.1 In certain jurisdictions, covenants made by a person with himself or herself and another or others is construed and capable of being enforced as if the covenant had been made with the other or others alone.2 In those jurisdictions, covenants implied under the applicable legislation on the part of two or more covenantors will be deemed to bind the covenantors jointly and severally.3 Notes 1 (ACT) Land Titles Act 1925 s 109 (applies only in respect of real property dealings) (NSW) Conveyancing Act 1919 s 71(1), 71(2) (TAS) Conveyancing and Law of Property Act 1884 s 72(1), 72(3) (VIC) Property Law Act 1958 s 81(1), 81(3) (WA) Property Law Act 1969 ss 50, 51(1), 51(3). In Victoria and Western Australia, the bond is also deemed to have been made severally with each of the obligees. There are no equivalent provisions in the Northern Territory and Queensland. However, note the operation of (NT) Law of Property Act 2000 s 55(1)(a) and (QLD) Property Law Act 1974 s 54(1)(a) which provides that a promise made by two or more persons must, unless a contrary intention appears, be construed as a promise made jointly and severally by each of those persons. There are no equivalent provisions in South Australia.

2 (ACT) Land Titles Act 1925 s 110 (applies only in respect of real property dealings) (NT) Law of Property Act 2000 s 52(1) (NSW) Conveyancing Act 1919 s 72(1) (QLD) Property Law Act 1974 s 50(1) (VIC) Property Law Act 1958 s 82(1) (WA) Property Law Act 1969 s 52(1). There are no equivalent provisions in South Australia and Tasmania. 3 (ACT) Land Titles Act 1925 s 111 (applies only in respect of real property dealings) (NSW) Conveyancing Act 1919 s 73(1) (WA) Property Law Act 1969 s 50. There are no equivalent provisions in the other jurisdictions.

Source

[Halsbury's Laws of Australia]

View Full Date/Time Thursday, October, 25, 2012, 12:39 EST 1 of 1 About LexisNexis | Terms & Conditions | My ID Copyright 2012 LexisNexis . All rights reserved. Back to Top

FURTHER REFERENCES Bradbrook A J, The Delivery of Deeds in Victoria, (1981) 55 Australian Law Journal 267. Bullen R J, Rights of Strangers to Contracts under Seal, (1977) 6 Adelaide Law Review 119. Butt P, Deeds The Problem of Delivery, (1978) 52 Australian Law Journal 454. Butt P, Deed Binding Despite Invalid Attestation (2001) 75(9) ALJ 530. Coke E, Commentary upon Littleton, Vol 1, 19th ed, London, 1832. Diethelm A G, Execution of Deeds by Corporations, (1986) 2 Australian Bar Review 176.

Everett D, The Role of Deeds in Property Transactions Contractual and Dispositive Acts, (1989) 1 Bond Law Review 5. Kriewaldt J, Execution of Deeds by Corporations A Further Comment, (1986) 2 Australian Bar Review 183. McBain G, Abolishing Deeds, Specialities and Seals: Part 1 (2006) 20(1) CLQ 15. McBain G, Abolishing Deeds, Specialities and Seals: Part 2 (2006) 20(2) CLQ 3. Mulligan P and Neal C, When is a Document a Deed and When is a Deed Delivered Case Note; 400 George Street (QLD) Pty Ltd v GB International Ltd (2010) 48(11) LSJ 48. Needham G D, Deeds Formalities, (1985) 1 Australian Bar Review 3. Norton R F, Morrison R J A, Goolden H J, A Treatise on Deeds, 2nd ed, Wm Gaunt & Sons, USA, 1981. Preston R (ed), Sheppards Touchstone of Common Assurances, 8th ed, London, 1820. Simpson A W B, The Penal Bond with Conditional Defeasance, (1966) 82 Law Quarterly Review 392. Tebbutt H W, Surrenders and Assignments of Leases Is a Deed Necessary, (1961) 34 Australian Law Journal 353. Vann R J, Sealing of Deeds by Individuals, (1980) 54 Australian Law Journal 46. Vann R J, To Deed or not to Deed or, When a Deed is not a Deed, (1980) 54 Australian Law Journal 424.

Source

[Halsbury's Laws of Australia]

View Full Date/Time Thursday, October, 25, 2012, 12:39 EST 1 of 1 About LexisNexis | Terms & Conditions | My ID Copyright 2012 LexisNexis . All rights reserved. Back to Top