Weekly property law round-up, 18 - 24 March 2024

Overview

The latest instalment in a weekly summary of cases involving property law (and selected planning, contract and equity decisions concerning land) in the State and Territory Supreme Courts, the County Court of Victoria, and the Land and Environment Court of NSW.

As I’m clearing the backlog, this edition covers judgments from the week of 18-24 March.

Just one judgment this week (Young & Young v Attorney-General of New South Wales [2024] NSWSC 282), involving an entirely novel claim by a pair of self-represented litigants, to the effect that the registration of a birth certificate with the government created some kind of legal estate in property connected to the plaintiff’s surname, that the Crown held on trust for them. As with most such claims by ‘sovereign citizen’ / ‘freeman on the soil’ types on the cutting edge of legal theory, the plaintiffs were unsuccessful.

Aside from the case summarised in this article, I’ve also listed some other cases that may be of interest for further reading. Catchwords and links are included.

Young & Young v Attorney General of New South Wales [2024] NSWSC 282 (20 March 2024)

Supreme Court of New South Wales (Kunc J)

EQUITY — Equitable interests in property — Nature of equitable interests — Birth certificate does not evidence or create any type of property or interest in property

Why this case may be of interest

This case involved every judge’s favourite type of self-represented litigant: the ‘sovereign citizen’ or ‘freeman on the soil’. The plaintiffs raised an entirely novel claim, to the effect that the registration of their birth certificates with the government created a legal interest, and served to ‘deposit’ an equitable interest with the Crown. They were not successful.

The key issues

It is a little difficult to identify precisely what relief was actually sought, but it appears to be something in the nature of a declaration. As is all too often the case in such filings, the full-stop button on the plaintiffs' keyboard was apparently broken while drafting, and their prayer for relief included the following 274-word sentence:

1. Where it appeared to the Court upon the discovery, and determination of a life or lives for the recovery of property pursuant to the Imperial Acts Interpretation Act 1969 No 30, Division 13:38 (5) Determination of a life or lives, where the plaintiff makes claim and thereby entitled (entitled "in-trust") to an equitable estate or right or to relief on an equitable ground against a Deed (Exhibit EX-1), and where it appears to the court no other party could possibly have a prior, equal or superior claim to the title, right(s), and interests claimed by the plaintiff, and upon grounds found that proper trust relations exist respecting the parties regarding the particular subject matter of the case: the parties involved ought to be put into the direct possession or direct control of the respective rights and corresponding duties touching and concerning the parties, given the plaintiff wishing to be discharged from the trusteeship, concerning a contingent right, namely, for the disposition of the legal title, right(s) and interest(s) of the legal estate, to be vested in the Crown; and the equitable estate or equitable title, rights and interests arising thereby in favour of the plaintiff, and where it urgently appears just, convenient and necessary to grant the order(s) for the relief(s) prayed for both generally and specially in nature, orders ought to issue out of and under the seal of the honorable (sic) court, made under the urgent nature of the plaintiffs case, and the court is warranted to grant the relief(s) unto the plaintiff duly prayed for, by virtue of the Supreme Court Act 1970 No.52, Section 58: Equities of the plaintiff…

The plaintiffs’ claim appears to have been, in essence, that the registration of a birth certificate with the government created some kind of legal estate in property connecting to an individual’s surname, that the Crown held on trust for that individual.

The underlying purpose of the litigation was, as the Court summarised it, “to give legal effect to [the plaintiffs’] objection to being part of civil society under the rule of Australian law”.

Reasoning and decision

The Court noted that if there was a way for the plaintiffs to give legal effect to such an objection, “they have not found it”. It struck out the plaintiffs’ claims with costs. Its reasoning was as follows:

The “birthright estate” which appears to lie at the heart of Shaun’s claim is not an estate known to law or equity. It is certainly not something which is brought into existence by the act of registration of a birth or is evidenced by a birth certificate. In Llewellyn I determined that a birth certificate, either in and of itself or by its registration, does not create or evidence anything which the law would recognise as a “security”. Similarly, the Court finds that a birth certificate, either in and of itself or by its registration, does not create, evidence or alter any kind of property or right in property known to Australian law, whether in law, equity or otherwise.

Other property law decisions last week

• Geneville Constructions Pty Ltd v Odisho-Benjamin [2024] NSWSC 290 (13 March 2024) Supreme Court of New South Wales (Parker J) LAND LAW — caveats — formal requirements —particulars of estate or interest claimed — where caveat claimed an estate in fee simple but by virtue of facts giving rise to security interest — whether caveat, read as a whole, “really” claimed a security interest — Real Property Act 1900, s 74L — application for extension of caveat dismissed  

• Langdon v Tradelink Pty Ltd [2024] VSC 113 (15 March 2024) Supreme Court of Victoria (Gray J) CAVEATS – Application for removal of caveat over property of spouse of director of company in administration where spouse had given guarantee of company’s debts and charge in support of guarantee – Lodgement of caveat after commencement of administration – Lodgement did not breach prohibition on enforcement of guarantee in Corporations Act 2001 (Cth) s 440J(1) – Transfer of Land Act 1958 s 90(3) – Prima facie case of interest justifying maintenance of caveat - Balance of convenience favouring maintenance of caveat.  

• Stevic v King [2024] NSWSC 272 (19 March 2024) Supreme Court of New South Wales (Weinstein J) LAND LAW – possession – default judgment  

• City of Parramatta Council v Sydney Metro [2024] NSWLEC 23 (21 March 2024) Land and Environment Court of New South Wales (Robson J) LAND LAW — Compulsory acquisition — Compensation — Assessment of amount payable — Market value — Adjoining owner premium — Special value — Disturbance  

• Orsini v Habambo [2024] NSWSC 289 (21 March 2024) Supreme Court of New South Wales (Parker J) REAL PROPERTY — caveats — solicitor’s costs agreement providing for client’s property to be charged as security for fees — caveat by solicitor — lapsing notice issued — application for extension of caveat — final relief not claimed — originating process defective  

• Byrne v Palmer [2024] QSC 46 (22 March 2024) Supreme Court of Queensland (Crowley J) REAL PROPERTY – BOUNDARIES OF LAND AND FENCING […] REAL  PROPERTY  –  EASEMENTS  –  EASEMENTS GENERALLY – CREATION [etc.]  

• Recycling Developments Pty Ltd & Anor v Bespoke Recycling Industries Pty Ltd & Anor [2024] QSC 42 (22 March 2024) Supreme Court of Queensland (Cooper J) REAL PROPERTY – TORRENS TITLE – CAVEATS AGAINST DEALINGS – REMOVAL – where the second defendant claims an interest in the subject land based upon its claim for an order for specific performance of a call option deed – where the plaintiffs contend that the call option deed was validly terminated prior to the purported exercise of the option [etc.]