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Fraud (False attestation (False attestation not always fraud (Russo) ((De…

- - - - Deprives the lodging party of honest belief it is a genuine doc
        
        Not false attestation if honest belief it is genuine (Grgic - bank employee thought was Mr G Senior)
- - - - Not if on frolic of own (Schultz - done on his own behalf)
      - Dollars broader application to whether A acting in course of agency
        
        What has the principal authorised?
        
        X authorised [A,B]
        
        Broad
        
        Was fraud so connected with the authorised acts they can be treated as mode of performing them
        
        Just because they didn't authorise forgery - doesn't mean beyond scope (Dollars)
        
        Even if done for exclusively for benefit of agent (Dollars)
        
        Even if of a criminal character (Dollars)
      - Not if principal passive recipient (Cassegrain)
      - Schultz test is the correct test (Cassegrain)
      - Act of putting on path to registration when no doc not genuine (De Jager)
  - - - Irrebutable presumption
      - Exception - agent's own fraud / party to fraud (Schultz)
      - Example Cases
        
        Employees knew F had not attested and put on path (De Jager)
- - - - Min = Y if not preserving the prior interest underlying the transfer (Mason CJ, Dawson J)
      - Maj = N - confined to acts acquiring title
- - - - Acting with good conscience - still indefeasible
      - Presents a fraudulent doc but honestly believe it is genuine (Grgic - thought was father)
    - - Negligence does not = fraud
        
        Less than meticulous (Grgic - Didn't verify identity of "father")
      - No knowledge of fraud but could have made more enquiries (lack of vigilance) (Pyramid - suspicions not aroused even though would have found out if checked company register)
  - - - Subjective knowledge of fraud
    - - Suspicions aroused + didn't make enquiries for fear of finding out the truth (Assets)
        
        N (Pyramid - suspicions not aroused even though would have found out if checked company register)
- - - - As a person sustaining loss or damage can apply to recover from fund (s 110(1))
        
        (d) Payment or consideration given on faith of the register
        
        (c) registration of any other person as proprietor
        
        (b) any amendment to register
      - Not entitled if:
        
        Claimant or agent caused or substantially contributed to loss by fraud, neglect or wilful default (s 110(3)(a))
        
        N (Fairless - Deceipt substantial cause, although negligent, trusted D soo much he would sign anything)
        
        Judged in light of the circs of fraud (Fairless)
        
        Was not agent (Fairless - not in scope, scope to construct)
      - Measure
        
        Loss of house = value of prop (110(4)(a)&(b))
        
        Didn't give mortgage but registered = principal + market rates 110(4)(c)
        
        Mee limited to claiming same amount from Mor (87D)
      - 6yrs to make claim (LAA)
  - - - Registrar give effect to Crt/VCATT order to have register rectified (s 103(1)/(1AA))
      - Order rectification of register
    - - RP take subject to prior interest
- - - - Consistent with 106A (Paper conveyancing req)
        
        100 pt check (Passport etc)
        
        Face to face interviews
        
        Sighting originals
      - Participation rules (eConveyancing) (s 87A(2))
      - Or anything else = reasonable steps in circs
    - - Removal of mortgage/variation = void and no longer indefeasible (5) / (6)
- - - - Notice of a prior interest does not equal fraud (s 43) - mere knowledge = not fraud
        
        Acknowledgment is more than mere notice (Bahr)
      - Actual fraud = requires personal dishonest OR moral turpitude (Assets Co)
        
        Not constructive or equitable fraud (if you had notice - conscience would be bound) BUT wider than CL fraud - reqrd deceit
        
        Wilful disregard of the rights of others (Russo - clerk thought mere formality, didn't realise effect)
        
        Suspicions aroused + failed to make inquiries
        
        Not enought that might of found out if more vigilant
      - Must bring it home to person asserting title (RP) or his agent (Assets Co)
      - Operative (Ferguson)
        
        Induce decision (detrimental reliance)
        
        Affect legal obligations (Ferguson - Internal doc-altered valuation but still same mortgage amount)