Breskvar v Wall

Breskvar v Wall (1971) 126 CLR 376, was an Australian court case, decided in the High Court of Australia on 13 December 1971. The case was an influential decision in Property Law, specifically in which equitable interests take priority, and also the application of Frazer v Walker[1] in Australia.

Breskvar v Wall
CourtHigh Court of Australia
Decided13 December 1971
Citation(s)(1971) 126 CLR 376
Case opinions
7:0
Court membership
Judge(s) sittingBarwick CJ, McTiernan, Menzies,Windeyer, Owen, Walsh and Gibbs JJ.

Facts
  • 15th Oct. 1968: Emilie & Franc Breskvar (Plaintiffs) were registered owners of two acre block of land at Acacia Ridge, Brisbane.
  • 5th Mar. 1968: Breskvar’s took a 12month loan from G. Petrie (2nd Def).
    • Breskvar used money to pay out the mortgage.
    • Transfer papers + title documents were given to Petrie as collateral.
      • Transfer papers were invalid as transferee was blank.
  • Oct. 1968: G. Petrie (2nd Def) fraudulently inserted G.W. Wall’s (1st Def) name onto transfer papers and had it registered with Titles Office.
  • Petrie was acting as agent for Wall + had power of attorney from him.
  • 31st Oct. 1968: Petrie (acting for Wall) sold the land to Alban Pty Ltd (3rd Def) – bona fide purchaser for value with no notice.
    • Search of Register of Titles showed Wall as owner.
    • Transfer 7th Nov. 1968 from G.W. Wall to Alban Ptd Ltd (3rd Def).
  • 13th Dec. 1968: Breskvar lodged a caveat – which was entered on 6th Mar. 1969.
  • 8th Jan. 1969: Transfer lodged for Wall to Alban Pty Ltd (3rd Def).

Judgment

Barwick CJ
  • ‘a registration which results from a void instrument is effective according to the terms of the registration. It matters not what the cause or reason for which the instrument is void.’[2]
  • ‘a right to sue to recover the land … is an equitable claim’[3]
  • Before the equitable claim was made, bona fide purchaser for value without notice intervened, giving 3rd party an equitable interest in land.[4]
  • ‘The priority of the creation of that right will only be lost by some conduct on the part of the [plaintiffs] which must have contributed to the assumption, false as the event proved, upon which the holder of the competition equity acted when that equity was created. Here the appellants armed the [2nd Def] with the means of placing himself … on the register.’[5]
  • Barwick CJ, agreed with Supreme Court ruling that by reason of Breskvars (Plaintiff) conduct in providing the means of transfer to G.P. Wall (2nd Def), their equity though prior in time was postponed to the equitable interest of the 3rd party bona fide purchaser for value and without notice.[6]

McTiernan J
  • ‘In my judgment the decision of the Privy Council in Frazer v Walker requires the conclusion that Wall’s certificate of title was good against all the world, except of course the defrauded Breskvars.’[7]
  • 'When the transfer which the appellants had given to Petrie [2nd Def] was completed with the name of Wall as purchaser it operated, in my judgment, as a representation, addressed to any person who might take it without notice of the appellants’ rights, that Wall had an estate in the land which he was entitled to transfer in his turn.’[8]
  • ‘Apart from priority in time, the test for ascertaining which incumbrancer has the better equity must be whether either has been guilty of some act or default which prejudices his claim.’[9]
  • ‘[T]he interest of Alban [3rd Def] should be accorded paramountcy.’[10]

Menzies J
  • ‘The appellants can, I have no doubt, displace Wall’s title. To succeed, however, at the expense of Alban Pty. Ltd., they must go further than they have to go against Wall. They must show either that Wall had no title at all, or, that their claim is to be preferred to that of Alban Pty. Ltd.’ [11]
  • ‘Frazer v Walker was not a case of conflict between unregistered interests.’[12]
  • ‘It must now be recognized that, in the absence of fraud on the part of a transferee, or some other statutory ground of exception, an indefeasible title can be acquired by virtue of a void transfer. It seems to me to follow that, where there is fraud or one of the other statutory exceptions to indefeasibility, a transferee does, by registration of a void transfer, obtain a defeasible title.’[13]
  • Contrast to ‘Gibbs v Messer[14] where, as the Privy Council has explained, there was no real registered proprietor at all but only a fictitious person.’[15]
  • ‘The authorities already cited establish that the appellants’ right or claim should, in the absence of a good ground for distinguishing them, be postponed and it becomes necessary to determine whether The Stamp Acts, s 53(5), affords any such ground for distinction.’[16]
    • ‘What [section 53(5) of the Stamp Acts] says is that no transfer signed in blank “shall be valid either in law or in equity”.’[17]
  • ‘Nevertheless, in executing the transfer in blank they were in breach of The Stamp Acts, s 53(5), and it was [the Breskvars’] breach of the law that enabled Wall in disregard of the section, to become registered as proprietor.’[18]

Windeyer J
  • Agreed with Barwick CJ.[19]
  • ‘[T]he decision of the Privy Council in Abigail v Lapin means that in the circumstances of this case the claim of the appellants founded upon fraud must give way to the rights of the bona fide purchaser for value. The appellants are therefore not entitled to the land. Their remedy lies in recovering damages from those who defrauded them of it.’[20]

Owen J
  • Agreed with Barwick CJ.[21]

Walsh J
  • If Breskvars had taken action before the 3rd party, then they would have been able to get it back despite Wall’s registration of title.[22]
  • ‘[W]hen the transfer was registered then, … “the registration of Wall as the registered proprietor was effective to vest the title in him and to divest the title of the plaintiffs”.’[23]
  • ‘The appellants placed in the hands of Wall a memorandum of transfer in a form which enabled him to complete it in such a way as to make it appear to be a valid absolute transfer of the appellants’ estate. They allowed Petrie to have possession of the certificate of title. Thus they enabled Petrie to procure the registration of Wall as the owner of an estate in fee simple.’[24]
    • ‘These acts of the appellants, coupled with their failure at the relevant time to place upon the register any notice of any interest retained by them in the land, enabled Wall and his agent Petrie to represent to an intending purchaser that Wall had an unencumbered estate in fee simple in the land.’[25]
  • ‘In this respect their conduct was precisely the same as the conduct described in Abigail v Lapin,[26] which was held to postpone the equity of the person who by that conduct enabled a representation to be made upon the faith of which another person acquired an equitable interest.[27]

Gibbs J
  • Agreed with others.[28]

Order
  • Appeal dismissed with costs

References
  1. Frazer v Walker [1967] 1 AC 569.
  2. Breskvar v Wall (1971) 126 CLR 376, 386 (Barwick CJ).
  3. Breskvar v Wall (1971) 126 CLR 387 (Barwick CJ).
  4. Breskvar v Wall (1971) 126 CLR 387 (Barwick CJ)
  5. Breskvar v Wall (1971) 126 CLR 388 (Barwick CJ).
  6. Breskvar v Wall (1971) 126 CLR 389 (Barwick CJ).
  7. Breskvar v Wall (1971) 126 CLR 391 (McTiernan J).
  8. Breskvar v Wall (1971) 126 CLR 393 (McTiernan J).
  9. Breskvar v Wall (1971) 126 CLR 393 (McTiernan J), citing Lord Wright in Abigail v Lapin [1934] AC 491, 504.
  10. Breskvar v Wall (1971) 126 CLR 394 (McTiernan J).
  11. Breskvar v Wall (1971) 126 CLR 395 (Menzies J).
  12. Breskvar v Wall (1971) 126 CLR 397 (Menzies J).
  13. Breskvar v Wall (1971) 126 CLR 397 (Menzies J).
  14. Gibbs v Messer [1891] AC 248.
  15. Breskvar v Wall (1971) 126 CLR 376, 398 (Menzies J).
  16. Breskvar v Wall (1971) 126 CLR 399 (Menzies J).
  17. Breskvar v Wall (1971) 126 CLR 398 (Menzies J).
  18. Breskvar v Wall (1971) 126 CLR 399 (Menzies J).
  19. Breskvar v Wall (1971) 126 CLR 399 (Windeyer J).
  20. Breskvar v Wall (1971) 126 CLR 400 (Windeyer J).
  21. Breskvar v Wall (1971) 126 CLR 400 (Owen J).
  22. Breskvar v Wall (1971) 126 CLR 401 (Walsh J).
  23. Breskvar v Wall (1971) 126 CLR 407 (Walsh J).
  24. Breskvar v Wall (1971) 126 CLR 409 (Walsh J).
  25. Breskvar v Wall (1971) 126 CLR 409 (Walsh J).
  26. Abigail v Lapin [1934] AC 491, 506.
  27. Breskvar v Wall (1971) 126 CLR 376, 409 (Walsh J).
  28. Breskvar v Wall (1971) 126 CLR 411 (Gibbs J).
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