Mahony v Hosken [1912] HCA 40

Proper

Netherby ether

Lenefos5 SAS 9

14C.L.R.] OF AUSTRALIA.

{HIGH COURT OF AUSTRALIA.] MAHONY AND ANOTHER. . : . APPELLANTS; AND HOSKEN (REGISTRAR OF TITLES). : . RESPONDENT.

ON APPEAL FROM THE SUPREME COURT OF VICTORIA.

Charge of land—Registration—Annuity charged on land to secure performance of a H.C. oF A.

contract—Annuity ceasing to be payable in certain events—Transfer of Land Act 1890 ( Vict.) (No. 1149), secs. 4, 113, 240; 13th Schedule.

By an instrument in writing A. purported to charge certain land with an annuity cf £150 a year for three years payable by equal monthly instalments in favour of B. The instrument contained a provision whereby it was ex- pressly agreed as to any instalment of the annuity that, if throughout the month immediately preceding the due date for payment of such instalment the whole of the covenants of A. with B. should have been duly observed and performed, B. should give A. a release in respect of that instalment. The instrument then contained several covenants on the part of A. including covenants to use the premises on the land asa hotel only, to keep in force the licence for the hotel, to perform and observe all the provisions of the Licensing Acts, and to purchase from B. at certain prices all colonial beer &c. sold in the hotel.

Held, that that which was called an annuity in the instrament was an annuity within the meaning of sec. 4 of the T'ransfer of Land Act 1890, and that the instrument was a charge within sec. 113 and the 13th Schedule of that Act, and therefore that the Registrar was not justified in refusing to register the instrument as a charge.

Perpetual Executors and Trustees Association of Australia Ltd. v. Hosken, 14 C.L.R., 286, followed.

Decision of the Supreme Court of Victoria : In re a Charye from Mahony to Carlton and United Breweries Proprietary Lid., (1912) V.L.R., 65, reversed.