I had considered the typo solution but it seemed equally as implausible as the alternative! Having said that, I'll go along with you with the typo solution - it is more satisfactory in many ways.
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From: Neil Foster
Sent: Friday, June 01, 2007 2:14 AM
Subject: RE: ODG: Say-Dee in the High Court of Australia
Dear Duncan et al
I was surprised to read you suggest that the cognition requirement for the first limb had "crept in" to the discussion of the second limb. On re-reading para [177] I see this is literally what the judgement says:
The result is that Consul supports the proposition that circumstances falling within any of the first four categories of Baden are sufficient to answer the requirement of knowledge in the first limb of Barnes v Addy.
BUT this must be a typo! The whole context of the discussion in paras [171]-[178] is the second limb ("knowing assistance" rather than "knowing receipt"). And the next para, [178] says:
These conclusions in Consul as to what is involved in "knowledge" for the second limb represent the law in Australia.
So I would maintain that the intention of the Court was not to discuss the first limb at all in this section of the judgement, and the word "first" in para [177] must be read as "second"!
{By the way, in my downloaded version of the judgement some of the paragraph numbers don't line up with the paragraphs in the online version, so I am using the online version here.}
And I think I agree with you (though I'm not sure that James Edelman does) that if the proprietary claim against the land is knocked out because of indefeasibility, then the personal claim is also knocked out, but I am still having problems finding enough time out from my pile of marking to spend working out why!
