Wheeler v Baldwin [1934] HCA 58; (1934) 52 CLR 609 (13 December 1934)

Louisa Ann Baldwin, one of the respondents to this appeal, applied to bring certain lands under the provisions of the Real Property Act 1900, of New South Wales (sec. 14). About December 1933 the appellant Alice Ann Wheeler lodged a caveat with the Registrar-General forbidding the bringing of such lands under the Act (see sec. 24). She claimed, in the caveat, an estate or interest as owner in fee simple by virtue of a conveyance dated 25th November 1925 from James Wheeler to her, registered No. 107 Book 1368, and alternatively as owner in fee simple by virtue of possession adverse to the applicant for upwards of twenty years by her and her predecessors in title. In March 1934 the appellant issued an originating summons out of the Supreme Court of New South Wales, to which the respondent and the Registrar-General were made defendants, seeking an order that the defendants and each of them be restrained from bringing under the provisions of the Real Property Act 1900 the lands described in the application made by the respondent Mrs. Baldwin. During the course of this proceeding, both the appellant and the respondent Mrs. Baldwin stated in writing their cases or claims to the lands the subject of the application already mentioned (see Act, sec. 27). Street J., before whom the originating summons came, ordered that the following issues be tried:—1. Whether the caveatrix has a good possessory title to the lands in question. 2. Whether the caveatrix has a good and valid documentary title thereto. But he refused to direct an issue whether as against the caveatrix and her predecessors in title certain conveyances relied upon by the respondent Mrs. Baldwin as part of her title were void by reason of the Pretenced Titles Act (32 Hen. VIII., c. 9), so far as they purported to be a conveyance of the land the subject of the above-mentioned application. This old Act, it has been held, is in force in New South Wales (Nichols v. Anglo-Australian Investment Finance and Land Co.[1]; Salter v. Clarke[2]; Woods v. Williams[3]). The Real Property Act 1900 requires that a person lodging a caveat forbidding the bringing of land under the Act shall have or claim interest in that land (sec. 24). "It is only a person who has a legal or equitable interest in land, partaking of the character of an estate in it or equitable claims to it, who can lodge a caveat" (Municipal District of Concord v. Coles[4]; Tierney v. Loxton[5]). But a person in possession of land has such an interest (Sheridan v. Gilles[6]; Bethune v. Porteous[7]). "Possession is a definite legal right." "It is a root of title" effective against all but the true owner, and it "enures to the benefit of all who may be able to show title derived from it by any form of bequest, devolution or conveyance." It is prima facie evidence of the right to possess (Asher v. Whitlock[8]; Pollock and Wright on Possession in the Common Law (1888), pp. 20-23; Holdsworth, History of English Law, 1st ed. (1903), vol. i., pp. 77-88, particularly p. 83). A caveator in possession is not, however, in the same position as a defendant in ejectment (Solling v. Broughton[9]; Ex parte Hamilton[10]; Kelly v. Bentinck[11]). It must be observed, however, that proceedings taken in support of the caveat do not establish the caveator's title for the purpose of registration, and it is by no means necessary under the Act that the applicant's title be established to the satisfaction of the Registrar-General before a caveat is lodged. The provisions of the Act are nevertheless designed as a method of protecting the rights of any person having or claiming an interest in the land. But it is not an exclusive remedy (Public Trustee v. Murray[12]). The protection given by the section is possibly more important in New South Wales than in other States, for sec. 45 of the Act provides: "No title to land adverse to or in derogation of the title of the registered proprietor shall be acquired by any length of possession by virtue of any statute of limitations relating to real estate, nor shall the title of any such registered proprietor be extinguished by the operation of any such statute." The cases lodged by the parties pursuant to sec. 27 are treated as in the nature of pleadings in the matter (In re Austin[13]; In re Marshall[14]). But it is for the Court to decide whether any facts are in bona fide contest between the parties: if the Court finds there are no such facts it then decides the matter upon the cases: if there are such facts then issues may be directed (Re Lethbridge v. Mitchell[15]; Re Doust[16]; Re Bank of Australasia[17]; In re Houison[18]; Kelly v. Bentinck[19]). Very comprehensive powers are conferred upon the Court (Re Brodziak[20]): it can direct not only the issues to be tried, but who shall be plaintiff or defendant in any of those issues (In re Browning[21]). "I see no reason for thinking that the caveator is restricted to the case of possessory title which he sets up, or that he is not at liberty to impugn the title of the applicant by proving, if he can, that some conveyance, or will, on which the applicant relies, is invalid. It appears to me, he is no more restricted in so doing from disputing some matter of fact asserted by the applicant, than he is restricted from challenging some legal inference, or matter of law, on which the applicant relies. It may be that the caveator must show some ground of title in himself to give him a locus standi before the Court, but I see no reason for thinking that he cannot take advantage of any weakness in the applicant's case" (Re Doust[22], per Windeyer J.). But it is said that Nicholas v. Andrew[23] is contrary to this view, and that the only jurisdiction in the Court is to direct issues as to the caveator's interest in the land the subject of the application. I do not agree. Nicholas' Case[24] and Doust's Case[25] are not, I think, in conflict. They illustrate the wide discretion of the Court under the Act in differing circumstances. In Nicholas' Case[26] an application was made to bring land under the Act based upon a possessory title, whereas in Doust's Case[27] the application was based upon a documentary title. In the former case[28], the applicant could not succeed in her application unless she established her possessory title, whereas in Doust's Case[29] the caveators were or claimed to be in possession, and their rights ought, therefore, to be protected unless the documentary title was established. But it does not follow that a party should be allowed to challenge a documentary title generally; he may well be required to state the particular objection or defect to the title, and show that it is a bona fide or arguable matter (In re Austin[30]; In re Marshall[31]).

On the other hand, the following is a short abstract of the title claimed by the caveatrix, the appellant:—

It seems, on these allegations, a bona fide dispute whether the conveyances of the 20th May 1903, the 24th July 1911, and the 14th November 1911, upon which the respondent relies, were not made by persons then out of possession, contrary to the provisions of the statute 32 Hen. VIII., c. 9, sec. 2. And, as I follow the facts, the appellant is undoubtedly in possession of and has built a house upon the lands which the respondent has applied to bring under the provisions of the Real Property Act 1900. In these circumstances, the applicant's title should be established before her application is granted. The possession of the appellant—the caveatrix—should be protected unless that title is established. It is a good title against all but the true owner, and an issue directed to the applicant's title appears to me the only practicable method of protecting it. The issue should be whether the conveyances of the 20th May 1903, the 24th July 1911, and the 14th November 1911 are void under and by reason of the provisions of the statute 32 Hen. VIII., c. 9, sec. 2. But the appellant should be the plaintiff in the issue as she is attacking the title.

The result is that, in my opinion, the appeal should be allowed in so far as the order appealed from refused the issue last mentioned.

This is an appeal by leave from an order by Street J., by which he directed issues to be tried between a caveatrix and an applicant seeking to bring land under the provisions of the Real Property Act 1900. His Honor refused to direct any issues except whether the caveatrix had a good possessory title to the lands, the subject of the application, and whether she had a good and valid documentary title. The caveatrix sought an issue or issues upon the question whether three conveyances, upon which the applicant relies, are invalid because, contrary to the Pretenced Titles Act (32 Hen. VIII., c. 9), they were conveyances of a present right of entry only by a person who had not been in possession of the land within the space of one year before the dates of the respective conveyances. In New South Wales this statute was in force until the passing of sec. 50 of the Conveyancing Act 1919, and its operation had not been affected by any enactment making rights of entry alienable. The documents impugned by the caveatrix were executed before 1919. The effect of the Pretenced Titles Act (32 Hen. VIII., c. 9) is discussed in Holdsworth, History of English Law, 3rd ed. (1925), vol. vii., p. 50, and in Salter v. Clarke[32]. (Cf. Jenkins v. Jones[33]; Kennedy v. Lyell[34].) So far as material, its operation in New South Wales was to invalidate conveyances of lands pursuant to sale if the vendor had for a year before the sale been dispossessed of the land. The disputed land lies on the eastern side of the Narrabeen Lagoon and fronts a street called Goodwin Street. The expression "reserve" seems to have been used to describe land of which it formed a part. Apparently both the applicant and the caveatrix claim to derive title under one John Wetherill. The caveatrix alleges that in 1882 John Wetherill contracted to sell to her father-in-law certain lots "including reserve," that the purchase money was paid, that in 1885 a conveyance in intended fulfilment of the contract was made to her husband, but the parcels in the conveyance did not expressly include the reserve, and that in 1924 her husband conveyed the land in dispute to her. The caveatrix also claims that, until June 1890, her father-in-law and her husband were in exclusive possession of the land, that thereafter, until the conveyance to her in 1924, her husband was in exclusive possession, and that since then she has been in possession, and in 1929 erected a dwelling house thereon which she and her husband have occupied.

The applicant, on the other hand, disputes the allegation that John Wetherill sold the land in 1882, or intended to convey it in 1885. She contends that the expression "reserve" did not refer to the land in question. She alleges that in 1903 John Wetherill, being still the owner of the land, assigned it to trustees for the benefit of creditors, and these in July 1911 sold and conveyed it to one Desborough, from whom, in November 1911, she bought it and obtained a conveyance. The applicant denies that the caveatrix, her husband and father-in-law were in possession, at any rate prior to 1929, and says that she herself and her predecessors in title had possession of the land.

It is apparent from this brief statement of the controversy that the caveatrix has a difficulty to overcome in showing that the legal estate in the land passed to her husband from John Wetherill, and a further difficulty, perhaps, in showing that she is entitled to the benefit of her father-in-law's possession as that of a person under whom she took. It also seems not improbable that neither party so used and occupied the land as to make her possession an evident fact. In these circumstances, the caveatrix desires to rely as an alternative upon her possession since 1929, or some date later than would give her a statutory title, and not to stand or fall upon her ability to show that either by documentary title or by possession for the full twenty years she has acquired absolutely an estate in fee simple in the land, as the order of Street J., in effect, requires her to do. She contends that she is entitled to retain possession against all but the true owner, and accordingly, that when the applicant seeks to obtain a certificate of ownership by bringing the land under the Act, she should be allowed, in virtue of her exclusive possession, an opportunity of refuting the applicant's claim to be the owner of an estate in fee simple in the land, whether she herself has or has not acquired that estate. The attack she wishes to make upon the applicant's title is that the conveyance of 1903 by John Wetherill to trustees for the benefit of his creditors, that of July 1911 by the trustees to Desborough, and that of November 1911 by Desborough to the applicant, were each bad under the Pretenced Titles Act 1540, because none of the grantors was in possession of the land or had been within twelve months of the grant. Whether she is entitled to an issue upon this question depends upon the provisions of the Real Property Act 1900 dealing with caveats against applications to bring land under that statute. Sec. 24 of the Real Property Act 1900 enables any person, having or claiming an interest in land the subject of such an application, to caveat. The caveat must "particularise the estate, interest, lien, or charge claimed by the caveator, and the caveator shall if required deliver a full and complete abstract of his title." Sec. 26 provides that after three months the caveat shall lapse unless the caveator has taken proceedings to establish his title to the estate, interest, lien or charge therein specified, or has obtained from the Supreme Court an order or injunction restraining the Registrar-General from bringing the land under the Act. Sec. 27 provides that where a caveat has been lodged by a caveator claiming the land or an interest therein adversely to the applicant, the latter may state a case for the opinion and direction of the Supreme Court upon the matter. The caveator may apply for an injunction, and the Court may direct him to lodge a case on his own behalf stating whether he claims in his own right or under another person, together with such other particulars, if any, as the Court thinks fit to order. The Court shall thereupon direct issues to be tried, or, if no fact be in contest, it may decide the matter upon the case stated. The question is whether a person who, like the caveatrix, is in possession of land adversely to the applicant who seeks to bring it under the Act, may, although he has not yet acquired a statutory title by length of possession, caveat against the application, and obtain an issue as to the validity or sufficiency of the applicant's documentary title to the land. Upon this question a series of decisions of the Supreme Court of New South Wales is material. They do not, however, pursue a course which is altogether consistent.

In Ex parte Hamilton[35] it was decided that the person claiming to be owner of land might apply to bring it under the Act, although another person was in possession adversely to him. Both Stephen C.J. and Milford J. pointed out that the result was to impose upon a person in possession of land the burden of taking affirmative proceedings, by caveat and application for injunction, to establish his own right when an application is made to bring it under the Act, however shadowy may be the title of the applicant. In Re Doust[36] the applicant claimed the land under a will as devisee, and the caveator by more than twenty years undisturbed possession. The caveator obtained an issue whether the will was duly executed. Manning J. dissented, saying[37]:—"I think that a caveator claiming only by possession should not be allowed to pick holes in the applicant's title. That title has been passed by the examiners, who are the proper tribunal under the Act to decide on the validity of the documents ... The original Act required the caveator to put forward affirmatively the estate, title, and interest which he claimed, and made it necessary for him to make out his right. It has been decided in Ex parte Hamilton1(1864) 3 S.C.R. (N.S.W.) (L.) 311. that the caveator must take proceedings and make out his case although in possession."

In In re Lord[39] a caveator, setting up a possessory title, was refused an issue as to the general sufficiency of the applicant's title upon the ground that, though it was open to such a caveator to point to any specific defect in the applicant's title, he was not entitled to put the applicant to proof of his whole title. This rule was applied in In re Austin[40] and in In re Marks[41], where Windeyer J. said:—"If the caveator wants to attack the applicant's title, he must point to some blot in it. The Court has held that over and over again. The caveator cannot succeed unless he can show title by possession." In In re Marshall[42] the Court refused to allow to a caveator setting up a possessory title an issue whether a conveyance made fifty years before was bad as a pretenced title, in the absence of an affidavit that the conveying party was at the date of the conveyance out of possession of the land. In Brancker v. Stewart[43] the Court ordered the removal of a caveat setting up a possessory title because, consistently with the facts stated in the caveat, the caveator, who relied upon possession of the previous occupier to make up the full statutory period, might have been an independent trespasser whose possession was not derivative. This decision may appear to mean that a caveat cannot be sustained by any possession less than that giving a statutory title, but the applicant's documentary title had been passed, and perhaps was unquestionable unless extinguished by a possessory title. In Nicholas v. Andrew[44] it was the applicant who relied upon a possessory title, and the caveator upon a documentary title. The applicant sought an issue whether the caveator had a good documentary title deduced from a specified root. The Court refused any issue except whether the applicant had a good possessory title. The applicant alleged that the caveator was setting up a pretenced title, and pointed to a particular document. The Court appears to have acted upon the view that the applicant could not succeed in defeating the caveat except by the strength of the title which the applicant sought to bring under the Act. Such a view appears to be inconsistent with the principle to which previous authorities give at least partial effect, namely, that the caveator must establish the estate, interest, lien or charge upon which his competence as a caveator depends.

That, to enable him to lodge a caveat, the caveator must have some right falling within the description, estate, interest, lien or charge, is not open to dispute.

In Tierney v. Loxton[45] an order settling issues was rescinded upon the ground that it appeared that the caveator had no estate or interest in the land. Windeyer J. said[46]:—"We have come to the conclusion that the intention of the Legislature in using the word interest was that only a person having, or claiming to have, some legal or equitable interest in the land partaking of the character of an estate, or of an equitable claim upon the land, could be a caveator. This inference is to be drawn not only from the way in which the word interest is used in the latter part of the section in connection with the words estate, lien, or charge, which points to the conclusion that the interest is to be one ejusdem generis, and, therefore, one which gives the caveator a legal or equitable claim to or upon the land itself, but also from the concluding words of the section under which the caveator may be required to deliver a full and complete abstract of his title." This statement was approved in Municipal District of Concord v. Coles[47]. Indeed, the terms of secs. 24 and 26 clearly require that an estate, interest, lien or charge shall be claimed by the caveator. The existence of such an interest in the land gives him his locus standi to caveat. If this locus standi is established he is entitled to call in question the applicant's right to bring the land under the Act. But the applicant's right depends upon his title to an estate in the land. Except in cases when one or other of them relies upon a possessory title or possession, the question of the applicant's title cannot be separated from the question of the caveator's locus standi. Rival claims to interests in the same land depending upon derivative documentary titles must be traceable to a common root, and an investigation of the claim of one cannot be complete without a consideration of the claim of the other. It is probably for this reason that Mr. Hogg in his book upon the Australian Torrens System, (1905), at p. 744, formulates the principle that the power of making or concurring in an application to bring land under the Act and the power of caveating against such an application are correlative, so that the caveator must have an interest in the land sufficient to enable him to apply to bring the land under the Act. But when the caveator relies upon a possessory title of the statutory duration and the applicant upon a documentary title, or vice versa, the validity of the two titles depends upon independent considerations: the possessory title extinguishes the documentary title in virtue of extrinsic collateral facts. The question whether the applicant has a good documentary title or a bad one is usually irrelevant to the acquisition of the possessory title of the caveator. The doctrine, which the cases decided in the Supreme Court of New South Wales for the most part follow, appears to require that the caveator shall establish that he is entitled to an estate in land acquired by the statutory period of possession, but, at the same time, to allow him to impeach the validity of the documentary title of the applicant on the ground of some particular specified defect, notwithstanding that his own possessory title is not affected thereby. This doctrine appears to imply that the caveator may succeed either by showing that the documentary title has been extinguished by his acquisition of a possessory title, or, although he cannot show that, by his impugning the validity of the applicant's documentary title. Unless the doctrine does mean this, it involves an inconsistency. For, if the caveator's locus standi to caveat depends upon the existence in him of a complete possessory title, he ought not to be permitted to attack the documentary title, except in so far as it may chance to be material to the proof of his possessory title, unless and until he makes out his complete possessory title. But, if he does make that title out, the documentary title is extinguished whether the applicant is able to show a good or bad chain of title. On the other hand, if independent and exclusive possession of the land is enough to give a locus standi to caveat, the caveator should be entitled to attack the documentary title of the applicant. Such a person can be dispossessed only by the true owner of an estate or interest in possession. If the applicant obtains a certificate of title, he will become true owner, or, at any rate, he will have conclusive evidence of his ownership. The pending application thus endangers the continuance of his right to possession, and, if he is entitled to caveat, he must be entitled to contest the validity of the applicant's claim to bring the land under the Act and to obtain a certificate of title. The real question, therefore, is whether an independent and exclusive possession for less than the statutory period gives a locus standi to caveat. To do so it must answer the description, contained in secs. 24 and 26, estate, interest, lien or charge in the land. It cannot do this unless it is adverse to the true owner of the first estate or interest in possession. For mere possession under a person entitled gives no interest in the land. But does exclusive or adverse possession give such an interest? The answer to this question depends upon a principle of our law of property which at the present day we are apt to overlook, as a survival of legal doctrines which no longer obtain. This doctrine is stated by Mr. Joshua Williams in his lectures on the Seisin of the Freehold (1878), at p. 7, as follows:—

In Maitland's essay upon The Mystery of Seisin, Collected Papers (1911), vol. i., p. 370, he states what formerly was the law governing the position of the disseisor:—"He who is seised, though he has no title to the seisin, can alienate the land; he can make a feoffment and he can make a will (for he who has land is enabled to devise it by statute), and his heir shall inherit, shall inherit from him, for he is a stock of descent; and there shall be dower and there shall be curtesy, and the lord shall have an escheat and the king a forfeiture, for such a one has land to give and to forfeit. This may make seisin look very much like ownership, and in truth our old law seems this (and has it ever been changed?) that seisin does give ownership good against all save those who have better because older title. Nevertheless we err if we begin to think of seisin as ownership or any modification of ownership; after all it is but possession."

A full account of the development of the law will be found in Holdsworth's History of English Law, 3rd ed. (1925), vol. vii., pp. 23 to 81. He answers at pp. 59, 60, the question of Maitland, namely, "Has it ever been changed?" He says: "Thus the medieval principle that possession is ownership as against all the world except as against those who can show a better title, having been maintained in law of this period, remains part of our modern law."

But does this amount to an estate or interest in the land? That it is properly described by these words is shown by Perry v. Clissold[48]. The question in that case was whether a person occupying land as an adverse possessor or "squatter" had an estate or interest within the meaning of the compensation provisions of an enactment for the compulsory acquisition of land. Although some attention was paid by the Privy Council to the purposes of the Act, it does not appear that any special meaning was given to the words estate and interest. In giving an affirmative answer to the question, the Privy Council appears to have acted upon the doctrine discussed above, which Lord Macnaghten expressed as follows:—"It cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. And if the rightful owner does not come forward and assert his title by process of law within the period prescribed by the provisions of the Statute of Limitations applicable to the case, his right is for ever extinguished, and the possessory owner acquires an absolute title"[49].

For these reasons I think that a person in possession claiming inconsistently with the title of the owner of the first estate in possession has a locus standi to caveat, and that he is entitled to an issue as to the validity or sufficiency of the applicant's title. Whether an issue in general terms should be settled, or whether the caveator should be required to state his objections to the title in some specific way, is a matter within the discretion of the Court, which should be exercised upon a consideration of the nature of the title produced by the applicant, the opportunities of the caveator to examine it, and his knowledge of the facts. In the present case, the caveatrix asks for issues specifically directed to an attack upon the validity of particular conveyances on stated grounds. In my opinion the issues she seeks should be directed.

The appeal should be allowed with costs. The order of Street J. should be varied by adding after the second issue thereby directed, the following:—

By sec. 14 (2) of the Real Property Act the Registrar-General is directed to receive applications for the purpose of bringing old system land under the provisions of the Act. The applications are referred to in the sub-section as being "in the form of the Second Schedule." The form of the Second Schedule includes a statement: "And I further declare that there is no person in possession or occupation of the said lands adversely to my estate or interest therein." By sec. 16 of the Act the applicant is required to make and subscribe a declaration of the truth of the statements in his application, and is bound to state therein whether the land is occupied or unoccupied and, if occupied, "the name and description of the occupant and the nature of his occupancy and whether such occupancy be adverse or otherwise." (The italics are mine.)

If the matter were res integra it could be held readily that there is no inconsistency between the implied requirement evidenced by the declaration of the applicant, that there is no adverse possession, and the provision in sec. 16 (1) (b) that the applicant must state whether the occupancy of the occupier is adverse or otherwise. Sec. 14 (2) seems to demand the conclusion that where a stranger is in adverse possession of old system land, an application to bring lands under the Act should fail. If this is so, sec. 16 (1) (b) merely secures that the necessary information shall be placed before the Registrar-General. In other words, if the occupancy is adverse, the Registrar-General should be informed; if it is not adverse, that should also be stated. Moreover, sec. 103 contemplates variations from prescribed form only so long as they are not "in matter of substance."

Therefore, but for the prior history of the matter, it should be concluded that the intention of the Legislature was to remit to their rights under the general law both the person applying to bring old system land under the Act and the person in adverse possession of such land at the time of the application. If so, the latter would have been enabled, when proceedings for ejectment were instituted, to attack the title of the former at its weakest point. Incidentally the person in adverse possession could have relied upon the provisions of the Pretenced Titles Act 1540 which is in force in New South Wales (Hogg, Conveyancing and Property Law (1909), p. 8).

But the decision in Ex parte Hamilton[50] precludes this method of interpreting the Real Property Act. Stephen C.J. reached such a conclusion "with reluctance and ... after much hesitation"[51]; and Wise J., after stating that the form in the Schedule was inconsistent with his view of the Act, added the pious hope that "even if not bound to do so, I cannot doubt that the Registrar-General will, in such cases, require notice to be served upon the person so in possession, and that every care will be taken in working out the statute to prevent injustice being done"[52].

None the less, the examination of the cases which Dixon J. has made shows no sufficiently strong current of decision to prevent a person in adverse possession from assuming the rôle of caveator under the statute, with the result that there will fall to be determined similar issues to those which the adverse possessor could have raised had the applicant been remitted to his position outside the statute, and so been compelled to bring proceedings in ejectment.

I am in agreement with the judgment of Dixon J., and think that the appeal should be allowed and an issue directed as proposed.

Appeal allowed with costs. Order of Street J. varied by adding after the second issue thereby directed the following:—(3) Whether as against the plaintiff and her predecessors in title the undermentioned conveyances (so far as they are purported to be conveyances of the subject land) were void as being conveyances of a present right of entry in the land other than a conveyance to a person in possession thereof by a person who had not been in possession of the said land within the space of one whole year next before the date of such conveyance and as being conveyances of pretenced titles: (a) The conveyance of 20th day of May 1903 from John Wetherill to Clark and others; (b) the conveyance of 24th day of July 1911 from Clark and others to Desborough; and (c) the conveyance of 14th day of November 1911 from Desborough to the defendant. And in the direction of the said order that the caveatrix be plaintiff by substitution for the word "both" the word "all."

Solicitor for the Registrar-General, J. E. Clark, Crown Solicitor for New South Wales.

[1] (1890) 11 L.R. (N.S.W.) (L.) 354; 7 W.N. (N.S.W.) 57.

[2] (1904) 4 S.R. (N.S.W.) 280; 21 W.N. (N.S.W.) 71.

[3] (1905) 5 S.R. (N.S.W.) 212; 22 W.N. (N.S.W.) 65.

[4] (1905) 3 C.L.R., at p. 107.

[5] (1891) 12 L.R. (N.S.W.) (L.) 308; 8 W.N. (N.S.W.) 79.

[6] (1887) 21 S.A.L.R. 7.

[7] (1893) 19 V.L.R. 161; 14 A.L.T. 265.

[8] (1865) L.R. 1 Q.B. 1.

[9] (1891) 12 L.R. (N.S.W.) (L.) 189; (1893) A.C. 556.

[10] (1864) 3 S.C.R. (N.S.W.) (L.) 311.

[11] (1902) 22 N.Z.L.R. 235.

[12] (1922) 22 S.R. (N.S.W.) 555; 39 W.N. (N.S.W.) 173.

[13] (1892) 13 L.R. (N.S.W.) (L.) 263; 9 W.N. (N.S.W.) 64.

[14] (1899) 20 L.R. (N.S.W.) (L.) 63; 15 W.N. (N.S.W.) 207.

[15] (1887) 8 L.R. (N.S.W.) (L.) 249; 4 W.N. (N.S.W.) 21.

[16] (1881) 2 L.R. (N.S.W.) (L.) 299.

[17] (1894) 15 L.R. (N.S.W.) (L.) 256.

[18] (1897) 18 L.R. (N.S.W.) (L.) 300; 14 W.N. (N.S.W.) 3.

[19] (1902) 22 N.Z.L.R. 235.

[20] (1881) 2 L.R. (N.S.W.) (L.) 305.

[21] (1891) 7 W.N. (N.S.W.) 113.

[22] (1881) 2 L.R. (N.S.W.) (L.), at p. 301.

[23] (1919) 19 S.R. (N.S.W.) 119; 36 W.N. (N.S.W.) 48.

[24] (1919) 19 S.R. (N.S.W.) 119; 36 W.N. (N.S.W.) 48.

[25] (1881) 2 L.R. (N.S.W.) (L.) 299.

[26] (1919) 19 S.R. (N.S.W.) 119; 36 W.N. (N.S.W.) 48.

[27] (1881) 2 L.R. (N.S.W.) (L.) 299.

[28] (1919) 19 S.R. (N.S.W.) 119; 36 W.N. (N.S.W.) 48.

[29] (1881) 2 L.R. (N.S.W.) (L.) 299.

[30] (1892) 13 L.R. (N.S.W.) (L.) 263; 9 W.N. (N.S.W.) 64.

[31] (1899) 20 L.R. (N.S.W.) (L.) 63; 15 W.N. (N.S.W.) 207.

[32] (1904) 4 S. R. (N.S.W.) 280; 21 W.N. (N.S.W.) 71.

[33] (1882) 9 Q.B.D. 128.

[34] (1885) 15 Q.B.D. 491.

[35] (1864) 3 S.C.R. (N.S.W.) (L.) 311.

[36] (1881) 2 L.R. (N.S.W.) (L.) 299.

[37] (1881) 2 L.R. (N.S.W.) (L.), at pp. 300, 301.

[38] (1864) 3 S.C.R. (N.S.W.) (L.) 311.

[39] (1888) 9 L.R. (N.S.W.) (L.) 415; 5 W.N. (N.S.W.) 1.

[40] (1892) 13 L.R. (N.S.W.) (L.) 263; 9 W.N. (N.S.W.) 64.

[41] (1894) 10 W.N. (N.S.W.) 182.

[42] (1899) 20 L.R. (N.S.W.) (L.) 63; 15 W.N. (N.S.W.) 207.

[43] (1899) 16 W.N. (N.S.W.) 92.

[44] (1919) 19 S.R. (N.S.W.) 119; 36 W.N. (N.S.W.) 48.

[45] (1891) 12 L.R. (N.S.W.) (L.) 308; 8 W.N. (N.S.W.) 79.

[46] (1891) 12 L.R. (N.S.W.) (L.), at pp. 314, 315; 8 W.N. (N.S.W.), at p. 79.

[47] [1905] HCA 35; (1905) 3 C.L.R. 96.

[48] (1907) A.C. 73.

[49] (1907) A.C., at p. 79.

[50] (1864) 3 S.C.R. (N.S.W.) (L.) 311.

[51] (1864) 3 S.C.R. (N.S.W.) (L.), at p. 314.

[52] (1864) 3 S.C.R. (N.S.W.) (L.), at p. 319.

High Court of Australia

Wheeler v Baldwin [1934] HCA 58; (1934) 52 CLR 609 (13 December 1934)

HIGH COURT OF AUSTRALIA