Brunker v Perpetual Trustee Company (Limited) [1937] HCA 29

'ei eg ie a Sees, ad mie rele SERS gre 32 + Fol | Weak v eid of 57OLR] ay oF AUSTRALIA, SMS" 555 ae PPLivkaw ons ons Bin & 1OFUR At east ae conn ee ue) 169, Pry JAR St ial (HIGH COURT OF AUSTRALIA.] BRUNKER . ' , z ' : - . APPELLANT ; Derenpant,

AND

PERPETUAL TRUSTEE COMPANY (LIMITED) Responpenv. PLAINTIFF,

ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.

Gift—Land—Memorandum of transfer—Executed by donor and delivered to third H.C. or A. person—Death of donor—Authority of third person—Notification of encumbrance 1937. —Omission from document—Subsequent unauthorized insertion—Materiality of = 7 alteration—Right to register document—Imperfect gift—Donor—Capacity— S¥DNEY, Undue influence—Real Property Act 1900 (N.S.W.) (No. 25 of 1900), sec. 46. Rete 2, 5,

MgLB0URNE,

June 10.

A bachelor seventy-one years of age died from cardiac failure after an illness of seven days' duration. On the day before his death he executed a memoran- dum of transfer in respect of certain land under the Real Property Act 1900 (N.S.W.) in favour of the appellant, who for many years had been his house- ,fatham C.1.. keeper and had attended to him during his last and a previous illness. The McTiernan JJ. transfer was prepared by a law stationer, a friend of both the deceased and the appellant, and was handed to him after execution without any precise instructions ; it was expressed to be for a nominal consideration only and purported to transfer to the appellant an estate in fee simple in remainder expectant on the transferor's death ; it contained no notification of a mortgage to which the land contained in the transfer was, together with other properties, subject at the time of the execution of the transfer, because it appeared that

the transferor wished to procure a release of that land from the mortgage. After the transferor's death the law stationer handed the transfer to the appel- lant's solicitor, who then inserted particulars of the mortgage in the document and sought to register it. The relevant certificate of title was at all material times in the custody of the mortgagee. In a suit by the transferor's executor, which had entered a caveat against the registration of the transfer, the Supreme