1884

united with it, the estate at law and equity is vested in the Ex parte purchaser. That would be to impose a duty on the transCLISSOLD, action, whereas the statute only orders certain documents to be

Re

REAL PROPERTY

Аст.

Martin, C.J.

stamped.

Pring, for the Registrar-General-The duty is payable in respect of the transaction, and not in respect of the instrument of transfer. The property has passed to the purchasers, and the certificate of title is within the words of the interpretation clause, "any instrument whereby property is vested in any person or conveyed from one person to another."

[SIR G. INNES, J. The certificate is no more than conclusive evidence of title.]

The certificate operates as a transfer; the purchasers have no title until the issue of the certificate to them.

Lingen in reply.

HIS HONOUR THE CHIEF JUSTICE delivered the judgment of the Court. (Martin, C.J.; Windeyer, J.; and Innes, J.)

SIR J. MARTIN, C.J. By the Stamp Act (44 Vic. No. 3), certain duties are imposed, among other things, upon a conveyance or transfer on the sale of any property. By the interpretation clause, the word "conveyance" is to mean "any instrument or deed whereby property is vested in any person, or transferred or conveyed to one person or another," and by section 3 it is enacted that "there shall be charged, levied, collected and paid

for and in respect of the several instruments and matters described or mentioned in this Act, and in the several schedules hereto, the several duties or sums of money, and at the several rates specified herein as set down in figures against the same respectively in the said schedules.”

After the passing of this Act, the present applicants purchased from one Redman certain land which was to be paid for in some way which is not before us, and which is not material to consider. They took no conveyance from Redman, but they simply had an agreement with him, setting forth the purchase and the payment of the money, and which provided that the applicants, not having

any conveyance of the land to them, should apply to and obtain from the Registrar-General a certificate of their being entitled to the land in their own name; in other words, they were in this way, without any conveyance, to have the land brought under the Lands Titles Act, and a certificate issued in their name. Having made that agreement, and having the sanction of Redman, they applied for a certificate of title of this land. The title was investigated and passed, and the only thing remaining to be done was to issue the certificate and to register the applicants as owners. But before doing that, the Registrar-General required that a stamp duty, as on a conveyance of real property, should be paid. The question is whether the RegistrarGeneral was right or wrong in requiring that duty be paid as a condition precedent to issuing a certificate.

We are of opinion that the Registrar-General is not bound to register this title unless the duty is paid, and for this reason: The interpretation clause, as I have already pointed out, speaks of a conveyance as an "instrument." Now it is not necessary, in order to vest property in any one, that there should be a conveyance to him of the legal estate. If there is an agreement to transfer, and all that the purchaser has to do has been done by him, nothing more remaining to be done to complete the transaction but the execution, of the conveyance the property is, in Equity, just as much the purchaser's as if he had obtained his conveyance. This was clearly pointed out in the case of Holroyd v. Marshall (3), where Lord Westbury said:

In Equity it was not necessary for the alienation of property that there should be a formal deed of conveyance. A contract for valuable consideration, by which it was agreed to make a present transfer of property, passed at once a beneficial interest, provided the contract was one of which a Court of Equity would decree specific performance." Now, here it appears that there was an agreement to transfer to these applicants, and that all that the parties to it had to do had been done. The effect of that agreement was to transfer, in Equity, the complete title from Redman to the applicants. The examiners must

have so determined, since they passed the title. They must

(3) 10 H.L.; 33 L.J. Ch. 193.

1884

Ex parte CLISSOLD, Re REAL PROPERTY

Аст.

have considered that there was a conveyance in Equity to the applicants; and the Real Property Act authorises the person who has the equitable estate to apply for the issue of the certificate of title to him. The agreement is the instrument mentioned in the Act; it is the document which transferred and vested in the applicants an equitable right to the property. Referring to the Act, we find that the instrument conveying or vesting the estate in the purchaser is the thing liable to duty. There can be no doubt, therefore, that this agreement, and not the certificate of title, is the document which should be stamped, it being the efficacious instrument empowering the purchasers to have the title registered under the Act; and section 36 provides against the danger of a person having to pay the stamp duty twice over.

Application dismissed.

Attorneys for applicants: Stephen, Laurence & Jaques.

May 6, 7.

BROWN v. GROGAN.

Martin, C.J., Faucett, J. and

Sydney Corporation Act (43 Vic. No. 3), ss. 115, 116-Distress on tenant for rates due before his tenancy-Rates paid by landlord.

By sec. 115 of the Sydney Corporation Act, rates are made payable by the tenant Windeyer, J. in possession. By sec. 116, "where the tenant shall have been required to pay rates for a period of time during which he shall not have been in occupation of the premises, he shall be entitled to deduct the amount in excess from any rent due or accruing, or to recover the same from his landlord."

.

The plaintiff took a lease of premises in Sydney, which had been previously vacant, from the defendant. Shortly afterwards, the bailiff of the Sydney Corporation demanded from the plaintiff rates which had accrued due before his lease, and which the defendant had agreed with the plaintiff to pay. The plaintiff not paying the rates demanded, the bailiff went into possession, and remained there until the defendant, hearing of the matter, paid the rates. The plaintiff then brought his action in the District Court to recover damages for breach of agreement to indemnify and save him harmless against payment of any rates payable by the defendant; and against any distress or costs incurred by reason of the non-payment thereof.

Held, that the Act imposed on the tenant, while in possession, a liability to pay all rates. He is the person who ought to pay, and his remedy is to deduct what he has paid from the rent due, or to bring an action for it against his landlord. And the Court ordered a verdict to be entered for the defendant.

DISTRICT COURT APPEAL. The plaintiff sued the defendant, for that the plaintiff was tenant to the defendant of certain premises situate at Dowling-street, Sydney, at a certain weekly rent; and, in consideration that the plaintiff would become tenant to the defendant of the said premises at the said weekly rent, the defendant promised the plaintiff to indemnify and save harmless the plaintiff against the payment of any rates or taxes, assessments, or impositions, payable or to become payable in respect of the said premises by the said defendant, and against any distress or costs that might be made or incurred by reason of the non-payment thereof. Averment, that the plaintiff became tenant to the defendant. Averment of performance of conditions precedent. Breach that the defendant did not, during the continuance of the said tenancy of the plaintiff, indemnify or save harmless the plaintiff as aforesaid. Whereby, during the said tenancies respectively, a distress was lawfully made on the goods of the plaintiff on the said premises for city rates payable on the said premises by the said defendant as aforesaid, and then in arrear on the twenty-second day of January last past, whereby the said plaintiff was put to expense, trouble and annoyance, and was seriously injured in his reputation.

The second and third counts were in similar terms, for distresses for water and sewerage rates respectively.

The defendant denied the agreement, and denied the breaches.
The facts proved at the trial were as follows:-

On 3rd July, 1882, the plaintiff went into possession of the premises in question as tenant to the defendant, and on that day an agreement was signed, by which the "said Thomas Grogan doth hereby agree to let, and the said Thomas Henry Brown doth hereby agree to take all that messuage, &c., for the term of three years, commencing on 3rd July, 1882, at the weekly rent of, &c. And the said Brown doth hereby agree to pay the said rent at the times and in the manner aforesaid, without any deduction whatever, &c." The defendant had verbally agreed to pay arrears of taxes, but such agreement did not appear in the lease. For some time previously to the lease to the plainitff, the premises had been vacant, and rates were due to the Sydney Corporation in respect of the same.

1884

BROWN

V.

GROGAN.

1884

BROWN

v.

GROGAN.

In January, 1883, the Sydney Corporation put a bailiff in plaintiff's house for city rates accrued due before plaintiff's entry under his lease, and of which the plaintiff, at the time of such entry, had no notice. The defendant, on being informed that the bailiff was in possession, paid the rates. In February a bailiff again went into possession for unpaid water rates, which the plaintiff afterwards paid. And in April the same thing took place, in respect of sewerage rates long overdue. At the times when the bailiff went into possession, no rent was due from the plaintiff to the defendant.

The jury returned a verdict for the plaintiff.

Damages, 311.

A Rule nisi having been obtained to set aside the verdict, and to enter a verdict for the defendant, on the ground that the plaintiff had no cause of action:

:

Rogers, for the defendant, now (May 6th) moves to make the Rule absolute-The plaintiff's proper course was to pay the taxes demanded and deduct the same from his rent; he cannot maintain the present action. The liability to pay arrears of rates was known to the parties when the lease was executed, and there is no provision in the agreement obliging the landlord to pay such rates; no promise of indemnity can be implied from the Corporation Act; and there has been no breach of duty for which the defendant is liable. The remedy, given by the Statute, of deducting from the rent any money paid in respect of arrears of taxes, has taken away from the plaintiff all other remedies; it is in substitution of them :-Great Northern S.S. Fishing Coy. v. Edgehill (1); Ross v. Rugge-Price (2); 43 Vic. No. 3, ss. 115, 116 (3).

(1) 11 Q.D.D. 225.

(2) 1 Ex. D. 269.

(3) 43 Vic. No. 3, s. 115, enacts"The rate so made payable shall, in the case of the premises in respect of which the same is payable being occupied, be paid to the city treasurer by the tenant of such premises, at the time or respective times at which such rate is made payable or demanded, and in the case of such premises being vacant, then by such person, who, at the time or respective times at which

such rate is made payable, is the owner of such premises."

Section 116 enacts-"In any case where a tenant shall have been so required to pay either a greater amount of rates than he owes for rent, or for a period of time during which he shall not have been in occupation of the premises, he shall be entitled to deduct the amount in excess from any rent then due or accruing, or to recover the same from his landlord (after he shall have been asked and neglected to