Mahony v Hosken [1912] HCA 40; (1912) 14 CLR 379 (14 June 1912)

I am unable to distinguish this case from Perpetual Executors and Trustees Association of Australia Ltd. v. Hosken[1], which we decided last month. The application was one by the registered proprietors of land held under the Transfer of Land Act 1890 to compel the Registrar to register an instrument presented to him which was alleged to be in the form of a charge.

The appellants, no doubt, for sufficient consideration—that is not a matter for us—executed the instrument in question by which they purported to charge the land for the benefit of the Carlton Brewery Co. with an annuity of £150 to be paid at the times and in the manner following, that is to say £12 10s. on the first day of every month for a period of three years, subject to a proviso. The proviso was that if during each month of the period of three years certain covenants contained in the instrument, including a covenant to keep the premises as an hotel and to purchase all Australian beer and porter from the Carlton Brewery Co., should be duly observed and performed, the obligation to pay £12 10s. on the first of the succeeding month should be released. The Registrar refused to register the instrument on the ground that it is not a charge within the meaning of the Act. I confess, with all respect to the majority of the learned Judges of the Supreme Court, that I have some difficulty in appreciating the argument upon which they rely and which has been presented to us now by Mr. Irvine.

Sec. 113 of the Act provides that "The proprietor of any land under the operation of this Act ... may charge the same with the payment of an annuity by signing a charge thereof in the form in the Thirteenth Schedule hereto." Sec. 240 provides that "The forms contained in the several schedules hereto ... may be modified or altered in expression to suit the circumstances of every case; and any variation from such forms respectively in any respect not being matter of substance shall not affect their validity or regularity." The form given in the Thirteenth Schedule is:—"I A.B. ... being registered as the proprietor of an estate [here state nature of the estate] in All that piece of land being ... and desiring to render the said land available for the purpose of securing to and for the benefit of C.D. the annuity hereinafter mentioned Do hereby charge the said land for the benefit of the said C.D. with an annuity of to be paid at the times and in the manner following that is to say [here state the times appointed for the payment of the annuity and the events on which it shall cease to be payable also any special covenants or powers and any modification of the powers or remedies given to an annuitant by the Act]" &c.

The instrument in this case recites the desire of the charger to render the land available for the purpose of securing an annuity, it charges the land with what is called an annuity, and it proceeds to state the times appointed for the payment of the annuity and the events on which it shall cease to be payable. The only argument that can be adduced is that the sums secured are not an annuity. The definition of an in sec. 4 is "a sum of money payable periodically and charged on land." The alleged annuity in this case is the sum of £150 a year payable monthly, but ceasing to be payable in certain events. It seems to me to fall exactly within the definition given by the Act. Apart from that consideration, there is no doubt that such a transaction could be carried into effect at common law. As Mr. Irvine very properly concedes, an annuity contemplated by this Act secured by a charge is only a rent charge at common law called by another name, and the real objection taken is that an annuity or rent charge, if it is to be made a burden upon land under this Act, must be payable at all events. That is contradicted by the words of the form itself which directs the events upon which the annuity shall cease to be payable to be set out. There is nothing to show that the only event is to be the expiration of a certain time. The events may be as various and as numerous as the parties choose to make them. In Perpetual Executors and Trustees Association of Australia Ltd. v. Hosken[2] I expressed the opinion that the scheme of the Act was to facilitate, not to hamper, dealings with land. In my opinion any lawful bargain between parties, the effect of which is to create an interest in land, may be carried out and registered under the provisions of the Act. By "interest in land," of course, I mean something more than a mere right of recourse to an individual in respect to land and include an interest by way of mortgage or charge, using those terms in the widest sense. There may be cases in which it would be inconvenient to register the whole of an instrument of that sort. Mr. Irvine suggested the case of a marriage settlement which might contain some stipulation creating a rent charge. I can see no objection in point of law why in such a case an instrument of charge should not be registered under the Act to secure the rent charge, nor any reason why the events upon which that rent charge is to cease to be payable as stated in the marriage settlement should not be set out in the form of a schedule to the charge. It might be cumbrous, but I can see no objection in point of law to its being done. I think the illustration put by àBeckett J. in the Supreme Court is exactly applicable. It is this[3]:—"For valuable consideration A. agrees with B. to maintain him for the remainder of his life and to secure the performance of the obligation by charging an annuity of £100 a year during the life of B. on land under the Act. An instrument of charge is drawn up accordingly containing a covenant by A. that he will maintain B. during his life, that each year during which B. is so maintained he will on request give an acknowledgment to operate as a release of the annuity for that year, and that while B. is properly maintained the right given by the charge shall not be enforced."

I am unable to distinguish that illustration from the present case, and I think it is perfectly clear that such an instrument would be a valid charge under the Act. I think therefore that the appeal must be allowed.

I agree that the appeal should be allowed. I think the case is governed by Perpetual Executors and Trustees Association of Australia Ltd. v. Hosken[4].

I agree. The case is not distinguishable in principle from Perpetual Executors and Trustees Association of Australia Ltd. v. Hosken[5]. and the only other question is whether this is really an annuity. In my opinion the parties have agreed between themselves that one of them shall pay a specified sum per annum by monthly instalments, and that answers the definition of an "annuity" in the Act. The mere fact that in the same document that is on the same material there is added some proviso for relieving the charger of the obligation to pay does not prevent the instrument of charge itself from falling within the statutory definition. In some cases the Registrar's discretion may be properly exercised to prevent his records from being improperly incumbered by some unreasonably long or complicated written transaction which contains the instrument offered for registration. In the case I put in argument of a transfer of land on a dissolution of partnership being included in an extensive and cumbrous document of that nature, the Registrar might reasonably object to put that document upon his records. But that is a matter of discretion and is not within the present case. I agree that the appeal should be allowed.

Appeal allowed. Order appealed from discharged. Order to Registrar to register and to pay costs of the application. Respondent to pay costs of the appeal.

[1] [1912] HCA 31; 14 C.L.R., 286.

[2] [1912] HCA 31; 14 C.L.R., 286.

[3] (1912) V.L.R., 65, at p. 70.

[4] [1912] HCA 31; 14 C.L.R., 286.

[5] [1912] HCA 31; 14 C.L.R., 286.

High Court of Australia

Mahony v Hosken [1912] HCA 40; (1912) 14 CLR 379 (14 June 1912)

HIGH COURT OF AUSTRALIA