Tolstoy famously starts Anna Karenina with the line: “All happy families are alike; each unhappy family is unhappy in its own way.” There is nothing quite so unhappy as a dispute between family members which ends up in court. In Cassegrain v Gerard Cassegrain & Co Pty Ltd, the dispute was between siblings who all had interests in the family company, Gerard Cassegrain & Co. The dispute before the High Court was the latest in a long line which began when the family patriarch, Gerard Cassegrain, died in 1993. Gerard and his wife had six children. Gerard’s second child, Claude, was the appellant in this case. The dispute involved certain land which Claude had registered in his and his wife’s name, and then solely in his wife’s name.
In Australia, we have Torrens title. Torrens title is often said to have the benefit of indefeasibility, which means that when a person becomes the registered proprietor of land, that title is not subject to any unregistered interests which may have existed before registration. This means that a person who becomes the registered proprietor of a Torrens interest can be secure about their transaction; they will not be subject to any unknown pre-existing interests. However, it may operate unfairly to those who have pre-existing interests in the land. Consequently, there are a number of limited exceptions to indefeasibility, including the fraud exception. This was the exception which was considered in Cassegrain. Continue reading