Breskvar v Wall

What happened?

The Breskvars signed a memorandum of transfer of their land with the transferee's name left blank and gave it, with the certificate of title, to Petrie as security for a loan. Petrie wrote in the name of his grandson, Wall, and had the transfer registered. Wall sold the land on to Alban Pty Ltd, which bought in good faith, for value and without notice — but Alban had not registered by the time the Breskvars lodged a caveat. Section 53(5) of the Stamp Act 1894 (Q) made a transfer executed with the transferee's name blank invalid at law and in equity.

What did the Court decide?

Registration vested the estate in Wall anyway. "It matters not what the cause or reason for which the instrument is void," said Barwick CJ (385–386), so the Breskvars could not argue that Wall had nothing to pass on. What they had instead was an equity to have the transfer set aside, good against Wall because his agent had procured the registration by fraud — and so the appeal turned not on indefeasibility but on priority between two equitable interests. Theirs was earlier. It was postponed to Alban's because they had armed Petrie with a signed transfer in blank (Barwick CJ at 389; Gibbs J at 413). The appeal was dismissed unanimously. The Breskvars kept a damages judgment against Wall and Petrie, and lost the land.

Why does this case matter?

The case everyone remembers for indefeasibility was not decided by it. Neither party to the real contest was on the register: the Breskvars had an equity to have the transfer set aside, Alban had an equitable interest as purchaser, and Wall — who was registered — had already sold and was left with a damages judgment against him. What settled the appeal was the ordinary priority question between two equitable interests, and the conduct that cost the earlier one its priority.

So being registered is not the end of the analysis, and neither is the statutory list of exceptions. Barwick CJ was explicit that proceedings may be brought against a registered proprietor "by persons setting up matters depending upon the acts of the registered proprietor himself", and that a proprietor's liability for personal equities takes nothing away from the conclusiveness of the register (384–385). A claim of that kind runs against the person now registered rather than against the register, and it can end in an order that they divest the estate registration gave them.

Exam and application relevance

Take it in two steps. First ask what registration did, and expect the answer to be that it vested the estate whatever was wrong with the instrument — "the transfer was void" is the argument the Breskvars ran, and it failed. Then ask what claims survive against the person now registered, and whether anyone else has a claim to the same land. Where the contest is between competing equitable interests, the earlier one prevails unless the claimant's own conduct postpones it; here that conduct was executing a transfer in blank and handing it over with the certificate of title.

Check your understanding

The Breskvars could have compelled Wall to give the land back, and still they lost it. What made the difference between the claim against Wall and the claim against Alban?