Exit Distraction Free Reading Mode
- Notable Unreported Decision
SUPREME COURT OF QUEENSLAND
Hillman & Ors v Australian Securities and Investments Commission & Anor  QSC 129
PATRICIA MARY HILLMAN
PETER JOHN HILLMAN AND KRISTA ANN DAVIDSON (as personal legal representatives of JOHN JAMES HILLMAN (DECEASED))
AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION
COMMONWEALTH OF AUSTRALIA
REGISTRAR OF TITLES
(not a party to the application)
SC No 399 of 2020
Supreme Court at Rockhampton
25 May 2020
5 May 2020
REAL PROPERTY – TORRENS TITLE – UNREGISTERED INTERESTS – GENERALLY – where applicants purchased property in 1984 from their family company – where formal transfer was not effected – where family company deregistered with ASIC and property vests in Commonwealth of Australia – where no competing interest in property – whether first applicant should be registered as proprietor of the property
Corporations Act 2001 (Cth), s 601AD
Land Titles Act 1994 (Qld), s 114
Re Jackson, unreported, Supreme Court Queensland, Demack J, 27 August 1998, applied
Saunders v Vautier (1841) 41 ER 482
A B Fraser for the applicants
A J Skoien (sol) for the Registrar of Titles
Rees R & Sydney Jones for the applicants
Crown Law for the Registrar of Titles
- On 26 June 1956, Hillman Property & Investment Co. Pty Ltd (“the Company”) was registered. On 17 February 1967, the company was registered as the owner of a beach shack located at 7 Ray Street, Lammermoor, held on certificate of title volume 222, folio 83, county of Livingstone, parish of Hewittville (“the Property”).
- At the time the Property was purchased, the directors and shareholders of the Company were John James Hillman, his younger brother, Rodney Mark Hillman, and their mother, Eileen Josephine Hillman.
- By statutory declaration executed 18 June 1984, John James Hillman declared that on 1 March 1984, the company executed a memorandum of transfer of the Property in favour of John James Hillman and his wife, Patricia Mary Hillman. The notice of change of ownership, which was lodged with the Department of Valuer General Queensland on 1 March 1984, records the sale price from the company to John James Hillman and Patricia Mary Hillman as $20,000.
- Peter John Hillman, the son of John James Hillman and Patricia Mary Hillman, has set out the relevant family history. James Charles George Hillman (Peter John Hillman’s grandfather) established a diesel mechanical business in Rockhampton called “Hillman Motors”. James Charles George Hillman and his wife, Eileen Josephine Hillman, had two children, John James Hillman and Rodney Mark Hillman. When James Charles George Hillman passed away in 1977, John James Hillman and Rodney Mark Hillman took over ownership and management of Hillman Motors.
- Peter John Hillman recalls that prior to 1984, the beach shack at the Property, was used by all of the Hillman family. However, subsequent to the sale by the Company of the Property to John James and Patricia Mary Hillman, the extended family use of the beach shack ceased. By mid-1993, the beach shack had been demolished and a new home, being the principal residence of John James Hillman and Patricia Mary Hillman, had been constructed. From that date, John and Patricia lived at the new residence on the Property to the exclusion of all others.
- On 2 February 2002, John James Hillman executed his last will and testament by which, in summary, he left his property to his wife, Patricia Mary Hillman. In 2001 and 2002, properties owned by Hillman Motors’ were divided equally between the members of the Hillman family, to the exclusion of the Property (which had been sold in 1984).
- Since 1984, John James Hillman and Patricia Mary Hillman for all intents and purposes were the owners of 7 Ray Street, Lammermoor. Exhibit PJH-6 is the Queensland Valuer General’s record, a publicly available document, showing the owners of 7 Ray Street, Lammermoor Beach as John J and Patricia M Hillman, noting the sale price at $20,000, based on an agreement for sale dated 1 March 1984.
- On 17 September 2003, Rodney Mark Hillman passed away.
- On 31 December 2003, John James Hillman applied, pursuant to s 601AA(2) of the Corporations Act 2001 (Cth), for voluntary deregistration of the company, declaring that the company had assets worth less than $1,000. The application to deregister was received by the first respondent, the Australian Securities and Investment Commission (ASIC), on 27 February 2004. The company was deregistered on 23 May 2004, without the Property in fact being transferred, pursuant to the agreement for sale to John James Hillman and Patricia Mary Hillman.
- On 30 December 2018, John James Hillman passed away.
- By originating application filed 20 April 2020, the first and second applicants sought the following orders:
- (1)Pursuant to section 114 of the Land Title Act 1994 (Qld), Hillman Property and Investment Co Pty Ltd (“Company”) be removed from the freehold land register as proprietor of an estate in fee simple of the property situated at 7 Ray Street, Lammermoor in Queensland more particularly described as Lot 4 on registered plan 605847, title reference 30222083 (“Property”).
- (2)Pursuant to section 114 of the Land Title Act 1994 (Qld), the first applicant be registered as the owner of the fee simple interest in the Property.
- (3)In the alternative to paragraph 2, pursuant to s 114 of the Land Title Act 1994 (Qld):
- The first applicant and second applicants be registered as the owners of the fee simple interest in the Property as tenants-in-common in equal shares; or alternatively
- The second applicant be registered as the owner of the fee simple interest in the Property.
- (4)Such further or other orders as the Court may deem appropriate.
- The payment by John James Hillman and Patricia Mary Hillman of the purchase price of $20,000 to the company in 1984 created, at law, a trust by which the company was the bare trustee of the Property for the beneficiaries, John James Hillman and Patricia Mary Hillman, who were able to demand an immediate conveyance of the legal estate pursuant to the rule in Saunders v Vautier.
- I conclude that from the point of payment of the full purchase price in 1984, the company held the Property, upon a bare trust as the trustee for John James Hillman and Patricia Mary Hillman.
- Section 601AD of the Corporations Act 2001 (Cth) provides as follows:
“601AD Effect of deregistration
Company ceases to exist
(1) A company ceases to exist on deregistration.
- Note:Despite the deregistration, officers of the company may still be liable for things done before the company was deregistered.
Trust property vests in the Commonwealth
(1A) On deregistration, all property that the company held on trust immediately before deregistration vests in the Commonwealth. If property is vested in a liquidator on trust immediately before deregistration, that property vests in the Commonwealth. This subsection extends to property situated outside this jurisdiction.
Other company property vests in ASIC
- (2)On deregistration, all the company's property (other than any property held by the company on trust) vests in ASIC. If company property is vested in a liquidator (other than any company property vested in a liquidator on trust) immediately before deregistration, that property vests in ASIC. This subsection extends to property situated outside this jurisdiction.
Rights and powers in respect of property
(3) Under subsection (1A) or (2), the Commonwealth or ASIC takes only the same property rights that the company itself held. If the company held particular property subject to a security or other interest or claim, the Commonwealth or ASIC takes the property subject to that interest or claim.
- Note:See also subsection 601AE(3)--which deals with liabilities that a law imposes on the property (particularly liabilities such as rates, taxes and other charges).
(3A) The Commonwealth has, subject to its obligations as trustee of the trust, all the powers of an owner over property vested in it under subsection (1A).
- Note:Section 601AF confers additional powers on the Commonwealth to fulfil outstanding obligations of the deregistered company.
(4) ASIC has all the powers of an owner over property vested in it under subsection (2).
- Note:Section 601AF confers additional powers on ASIC to fulfil outstanding obligations of the deregistered company.
Company books to be kept by former directors
(5) The directors of the company immediately before deregistration must keep the company's books for 3 years after the deregistration.
(6) Subsection (5) does not apply to books that a liquidator has to keep under subsection 542(2), or subsection 70-35(1) of Schedule 2 (retention and return or destruction of books).
- Note:A defendant bears an evidential burden in relation to the matter in subsection (6), see subsection 13.3(3) of the Criminal Code.
Strict liability offences
(7) An offence based on subsection (5) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.”
- It is important to note, that subs (1)(A) was inserted into s 601AD of the Corporations Act on 1 July 2007 by the Governance Review Implementation (Treasury Portfolio Agencies) Act 2007. The amendment was not retrospective. Section 2(1) of Schedule 2 of the Governance Review Implementation (Treasury Portfolio Agencies) Act 2007 (Cth) provides:
“2 Pre‑existing property, money and financial liabilities
- (1)Subject to items 3, 4 and 5 of this Schedule, any real or personal property or money that is held by ASIC or CAMAC immediately before the commencement time is taken, immediately after that time, to be held by ASIC or CAMAC for and on behalf of the Commonwealth.”
- The Governance Review Implementation (Treasury Portfolio Agencies) Act 2007 (Cth) goes on to say, in s 4, Schedule 2:
“4 Vesting of other assets held on trust by ASIC
- (1)This item applies to any other assets held on trust by ASIC immediately before the commencement time.
- (2)At the commencement time, the assets to which this item applies cease to be assets held on trust by ASIC and become assets held on trust by the Commonwealth, without any conveyance, transfer or assignment. The Commonwealth becomes the successor in law in relation to those assets.
- Note:ASIC may, for and on behalf of the Commonwealth, perform all the duties and exercise all the powers of the Commonwealth as trustee in relation to assets held on trust by the Commonwealth (see subsection 8(6) of the Australian Securities and Investments Commission Act 2001).”
- On deregistration of the company on 23 May 2004, pursuant to s 601AD(2), the company’s property, being 7 Ray Street, Lammermoor, which was held on bare trust, vested in ASIC. By s 4(2) of Schedule 2 of the Governments Review Implementation (Treasury Portfolio Agencies) Act 2007, on 1 July 2007, the land at 7 Ray Street, Lammermoor, which had been held on trust by ASIC, was then deemed to be held on trust by the Commonwealth for John James Hillman and Patricia Mary Hillman. In this regard, the Commonwealth consented to being joined as a respondent at the application. The Commonwealth and ASIC do not object to the orders being sought.
- Section 114 of the Land Titles Act 1994 (Qld) provides:
“114 Applying for Supreme Court order
- (1)This section applies to—
- (a)the Attorney-General; or
- (b)a trustee or beneficiary under a trust; or
- (c)a personal representative, a devisee or anyone else interested in—
- (i)a lot of a deceased registered proprietor; or
- (ii)a trust involving a lot of a deceased registered proprietor; or
- (iii)a lot registered in the name of a person as personal representative.
Example of a person interested in a lot mentioned in subparagraph (iii)—
a person claiming to be entitled to be appointed as personal representative in the place of the person in whose name the lot is registered
- (2)A person to whom this section applies may apply to the Supreme Court for an order that a named person be registered as proprietor of a lot.
- (3)The Supreme Court may make 1 or more of the following orders—
- (a)that a person be registered as proprietor of the lot;
- (b)that a person be removed from the freehold land register as proprietor of the lot;
- (c)that a caveat be lodged to protect a person’s interest in the lot;
- (d)that a person advertise in a specified form, content or way;
- (e)that costs be paid by any person or out of any property.
- (4)The registrar must register particulars of an order if a request to register the order is lodged and an office copy of the order is deposited.
- (5)An order does not vest an interest in the lot until it is registered.”
- In Re Jackson, Demack J said:
“ Cyril William Jackson can then apply to be registered as proprietor of lot 202 (s 114(2)). It seems that the legislative intention behind s 114 was to provide a summary method for dealing with cases like this present one where there have been no contemporary dealings with the register to reflect changes of ownership through death. There may be other uses for s 114 as well, but its appropriateness in the present case is obvious. Without s 114, there would need to be a succession of vesting orders.
 In the usual course of making orders under s 114(3), some form of advertisement may be required. Dealings with the freehold land register involving the registering of unregistered interests not supported by contemporary documents signed by interested parties should be brought into the public domain by advertisement. Here the records of the Valuer General and of the Nebo Shire show Cyril William Jackson as the owner of lot 202. While this is not consistent with the freehold land register, it has brought Cyril William Jackson’s claim into the public domain to a degree which makes an advertisement unnecessary.
- The cases show that under s 114 of the Land Title Act 1994 the Supreme Court has a broad discretion to order that a person be registered as proprietor of a lot. In the present case, the first applicant is a beneficiary under the trust and the second applicants are the personal representatives of John James Hillman, a beneficiary under the trust. Accordingly, the applicants are qualified to apply for an order that person be registered as the proprietor of the Property.
- As Demack J pointed out in Re Jackson, in the usual course of making orders under s 114(3), some form of advertising may be required so that the true ownership of the land is “brought into public domain”. Demack J found in Re Jackson, where there has been long-standing undisputed ownership of a parcel of land and where a person’s claim to ownership is brought into the public domain by records of the Valuer General or the local council, advertisement may be rendered unnecessary.
- In the present case, I consider that advertisement is unnecessary. The Hillman family are the only family that have been interested in the land for the 53 years since 1967. Further, the Valuer General’s records are in the public domain and show the owners as John James and Patricia Mary Hillman. In view of the provisions of the last will and testament of John James Hillman, it is appropriate that orders be made registering the first applicant, Patricia Mary Hillman as the registered owner of the fee simple in the property.
- Accordingly, I make orders in terms of paragraphs 1 and 2 of the originating application.
Exhibit PJH-4 to the affidavit of Peter John Hillman filed 20 April 2020.
Now Lot 4 on RP 605847, title reference 30222083; Exhibit PJH-3 to the affidavit of Peter John Hillman filed 20 April 2020.
Exhibit PJH-7 to the affidavit of Peter John Hillman filed 20 April 2020.
Exhibit PJH-8 to the affidavit of Peter John Hillman filed 20 April 2020.
Affidavit of Peter John Hillman filed 20 April 2020.
Affidavit of Peter John Hillman filed 20 April 2020.
Exhibit PJH-2 to the affidavit of Peter John Hillman filed 20 April 2020.
Exhibit PJH-6 to the affidavit of Peter John Hillman filed 20 April 2020.
Exhibit PJH-5 to the affidavit of Peter John Hillman filed 20 April 2020.
Exhibit PJH-4 to the affidavit of Peter John Hillman filed 20 April 2020.
Affidavit of Gerard James Houlihan filed 20 April 2020.
(1841) 41 ER 482; See also Road Australia Pty Ltd v Commissioner of Stamp Duties  1 Qd R 327;  QCA 328.
Exhibit GJH-2 to the second affidavit of Gerard Hames Houlihan filed 5 May 2020.
Exhibit GJH-2 to the second affidavit of Gerard Hames Houlihan filed 5 May 2020; Exhibit GJH-1 to the first affidavit of Gerard James Houlihan filed 5 May 2020.
Unreported, Supreme Court Queensland, Demack J, 27 August 1998. See also Re Heathridge Pty Ltd  1 Qd R 259 at 251 per Atkinson J, Re Johnson  2 Qd R 502 at 510 per Wilson J and Grzegolec v Grzegolec & Anor  QSC 296 per Daubney J and Re: Browne  QSC 297 per Mullins J.
- Published Case Name:
Hillman & Ors v Australian Securities and Investments Commission & Anor
- Shortened Case Name:
Hillman v Australian Securities and Investments Commission
 QSC 129
25 May 2020
- White Star Case: