be distributed equally between Say-Dee and Farah.The development application lodged by Mr Elias with theCouncil was refused on the basis that the site was too narrow. Not allowed to build development. Need to acquire some surrounding properties.Mr Elias asked Say-dee whether they wanted to be part ofthe bigger property and they said no. Say dee said he never asked them.Mr Elias acquired adjoining properties and had them put into the names of his wife and daughters as well as another company controlled by him. The wife and daughters were volunteers.Held: Elias had breached a fiduciary duty which he owed to Say-Dee. Farah breached fiduciary duty because he didn’t disclose the greater land to them. The remedy was the imposition of a constructive trust andso the wife and daughters had received trust property withknowledge that it was in breach of trust imputed to them
from Elias as their agent.Held: HC: No fiduciary duty or breach existed and no liability in knowing receipt – to upset indefeasibility title is a finding of fraud or in personam exception, and the action based on simply knowing about trust property is not enough. Volunteers and IndefeasibilityBogdanovic v Koteff (1988) The sanctity of the Torrens title register is preserved by granting indefeasible title to volunteers.NSW says s 42 of RPA is more important as a proprietor takes subjectto only interests noted on the register and not to purchaser of value. Therefore, a volunteer or someone who has not provided consideration can still have indefeasible title upon registration. Mrs B claimed (and could prove) that Mr K the proprietorpromised that he would leave her a life estate in return forthe housekeeping and nursing services. Mr K left the property to his son Norman who was seeking to evict Mrs B. relying on his registered proprietorship. Mrs B had no interest on the register. Norman was not in breach of an agreement, so Mrs B has no inpersonam claim against him. N was aware that she lived in the house but was not awareabout their agreement. No evidence that the son was to uphold the agreement between Mrs B and Mr K – whether a volunteer was able to claim the benefits of a purchaser of value could and it was held that Norman could. Held:Mrs B did have an equitable interest in the propertybut that it could not prevail against Norman Koteff’s indefeasibility. The “equity” was against his father, not him and so he took free of her interest as it was not recorded on the register. Registration, whether of a voluntary transfer or a transfer for value attracted the full consequences of indefeasibilityunder the Act. King v SmallVictorian matter and volunteers were not able to gain indefeasibility.Did not want volunteers interest to defeat the unregisteredinterests which affected the title of the volunteer’s donor.
Volunteers to prior registrationMilroy v Lord (1862)Must do everything possible in order for a transfer of property to occur. Equity assistance is not needed if everything at common law has been done. Corin v Patton (1990)