Williams v Davis [2003] NSWSC 453

Williams v Davis [2003] NSWSC 453

The alteration by the registration clerk (Ms Moore), acting as agent for Mr Williams, in changing the transfer from joint tenancy to tenants in common constituted fraud for the purposes of the Real Property Act 1900. Responsibility for her fraud is attributable to Mr Williams’ estate. Mrs Williams is entitled to rectification of both the transfer and Register to reflect joint tenancy, as originally intended.

Parties
Plaintiff: Ivy Gladys Williams; First Defendant: Brian Arthur Davis, Executor of the Estate of the Late Malcolm Clarence Williams; Second Defendant: Registrar-General; Third Defendant: Sherril Louise Gisler
Jurisdiction
Australia
Judgment Date
03 June 2003
Procedural Posture
Claim for Rectification / Judgment After Hearing
Outcome
Plaintiff's claim for rectification allowed; defendants' cross-claim dismissed; defendants to pay costs.
Legal Topics
Rectification of Land Title, Fraud Under Torrens System, Agency Liability, Constructive Trusts
Real Property Equity Rectification of Land Title Fraud Under Torrens System Agency Liability Constructive Trusts

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Parties

Ivy Gladys Williams

Plaintiff

Brian Arthur Davis, Executor of the Estate of the Late Malcolm Clarence Williams

First Defendant

Registrar-General

Second Defendant

Sherril Louise Gisler

Third Defendant

Procedural Posture

Claim for Rectification / Judgment After Hearing

Legal Issues

  1. 1 Whether alteration of transfer to show tenants in common was fraud under s 42 of the Real Property Act 1900
  2. 2 Whether the transfer and Register should be rectified to reflect the parties' agreement
  3. 3 Whether the defendants are entitled to a constructive trust against Mrs Williams' share

Ratio Decidendi

The alteration by the registration clerk (Ms Moore), acting as agent for Mr Williams, in changing the transfer from joint tenancy to tenants in common constituted fraud for the purposes of the Real Property Act 1900. Responsibility for her fraud is attributable to Mr Williams’ estate. Mrs Williams is entitled to rectification of both the transfer and Register to reflect joint tenancy, as originally intended.

Court Disposition

Plaintiff's claim for rectification allowed; defendants' cross-claim dismissed; defendants to pay costs.

Orders

  • Rectification of the transfer and Register to reflect joint tenancy granted.
  • Defendants' cross-claim for constructive trust dismissed.