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Week 4 Torrens System of Land Registration - Part 3 - Equitable Interests,…

- - - - Land Title Act 1994 (Qld) ss 122, 124
        
        s 124 LTA, the lodgement of the caveat has the effect of forbidding the registration of a person as a transferee, or proprietor, or an instrument which may affect the estate or interest
        
        s 122 lodged in accordance with s 122 by the holder of the unregistered interests, by the Registrar, or by a registered owner.
    - - Caveats can be lodged in relation to estates or interests in land
        
        must be a interest in the land a mere personal or contractual right will not support a caveat
        
        Examples where a caveatable interest exists
        
        see text page 431 - 432
        
        Examples where an interest claimed is not a caveatable interest
        
        see text page 432 - 433
      - It is not necessary for a caveatable interest to be a ‘registrable’ interest.
      - What is required is that the caveatable interest in one for which equity will give specific relief.
      - Land Title Act 1994 (Qld) 122(1)(c) and 126(1)(a) LTA
        
        Conditional Contract
        
        Re Henderson's Caveat
        
        Mere equity
        
        competing views
        
        Re Henderson's Caveat
        
        the nature of mere equity is sufficient to support a caveat
        
        Mijo Developments Pty Ltd v Royal Agnes Water Pty Ltd [2007] NSWSC
        
        mere characterization of an interest as a mere equity does not assist in determining whether a claim is a cavetable interest
    - - Land Title Act 1994 (Qld) 121
        
        Caveats must be lodged in a particular form and manner.
    - - This was a NSW case however in Queensland Part 7 Division 2 LTA are the governing provisions
        
        Under the LTA, when the caveator (the person who assets a caveatable interest-described above) has lodged a caveat, the caveator must take legal action to establish the validity of the claim under the caveat. This must be done pursuant to s 126 LTA
    - - Land Title Act 1994 (Qld) 127
      - Kerabee Park Pty Ltd v Daley
        where Holland J made comments on the discretion of the court in relation to the removal of caveats.
      - Four ways can be removed from indefeasible title - see text pg 411
    - - Land Title Act 1994 (Qld) 130
        
        Beca Development Test
        
        see text 454
- - - - the case was one in which the equitable interest of the appellant was derived from a RP who had come to that place on the register by the misuse of his authority from the respondents and possession of the duplicate CT. That interest was in competition with the equitable interest of the respondents, as mortgagors.
        
        Abigail had been misled by the representations of Heavener to the effect that there was no outstanding equitable interest over the land. To that extent failure to lodge a caveat was superfluous to the question of postponement for the Privy Council in this instance
    - - a more general and flexible principle that preference should be given to what is the better equity in an examination of the relevant circumstances. It will always be necessary to characterize the conduct of the holder of the earlier interest in order to determine whether, in all the circumstances, that conduct is such that, in fairness and in justice, the earlier interest should be postponed to the later interest.”[33]
        
        AG (CQ) Pty Ltd v A&T Promotions Pty Ltd [2010] QCC 83 Supreme Court of Queensland, Court of Appeal
    - - J & H Just (Holdings) Pty Ltd v Bank of New South Wales (1971) 125 CLR 546
    - - Failure to lodge a caveat may be an important factor in determining priority. This will still be the case even where the second interest holder searches the title.
    - - Black v Garnock (2007) 230 CLR 438
  - - - a) Where the RP arms a 3rd party with the means to become the RP and another purchases an interest in the lot from the new RP: Abigail; Breskvar; Heid; and
      - b) Where the RP creates 2 inconsistent unregistered interests: J & H Just; and Platzer v CBA [Qd R]
  - - - Intended to be a cheap alternative to caveating. The provisions largely mirror the caveating provisions in the LTA discussed above but with some differences. The Settlement Notice is NOT a registrable instrument but operates as an administrative advice under s 34 of the LTA.
      - Lodging the relevant documents for registration: IAC (Finance) Pty Ltd v Courtenay (1963) 110 CLR 550