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Week 3 Land Registration II - Coggle Diagram
Week 3 Land Registration II
Key Terms
Indefeasibility of title
indefeasible - not subject to being lost, annulled, or overturned. (Dictionary definition)
Land Title Act 1994
(Qld) s 37-38
Breskvar v Wall
(1971) 126 CLR 376
https://lawcasesummaries.com/knowledge-base/breskvar-v-wall/
Text page 319
Fraud
an exception to indefeasibility of title pursuant to s 184(3) (b)
Land Tile Act 1994
(Qld).
Assets v Mere Roihi [1905] PC.
The case law has determined that for the relevant behaviour to constitute fraud within the meaning of the Torrens Act personal dishonesty or ‘moral turpitude’ must be established
Rights
in personam
Rights in personam may arise out of the conduct of the registered proprietor (RP) or the conduct of those for whose acts the RP was responsible (agents and employees-especially important where the RP is a corporate person).
There is no right in personam unless there is a known legal or equitable cause of action enforceable against the RP.
governed by s 185(1) (a) Land Title Act 1994 (Qld).
Fraud
nemo dat
does not apply under Torrens
Land Title Act 1994 (Qld)
S 184 (1)-(3) Quality of registered interests
Loke Yew v Port Sweetenham Rubber Co Lt
d [1913] AC 491 Privy Council
Fraud v carelessness
Hilton v Gray
[2007] QCA 401
Royalene Pty Ltd v Registrar of Titles
[2008] QSC 64
Young v Hodger
[2001] QCA 453
LTA and duty on mortgages
Land Title Act 1994
(Qld) s11A , 11B
11A Original Mortgagee to confirm identity of mortgage
11B Mortgage transferee to confirm identity or mortgage
developments to help address fraud as a result of irresponsible identity checking practices
Agents and employees
Schulz v Corwill Properties Pty Ltd
[1969] 2 NSWLR 576
Russo v Bendigo Bank Ltd
[1993] 3 VR 376
Fraud against the holder of a prior unregistered interest
Supervening fraud
Bahr v Nicolay (No 2)
(1982) 164 CLR 604
Mason CJ and Dawson J -
There is no fraud on the part of a registered proprietor in merely acquiring title with notice of an existing unregistered interest or in taking a transfer with knowledge that its registration will defeat such an interest…
These comments do not mean all species of equitable fraud stand outside the statutory concept of fraud. Far from it.
See;
Latec Investments Ltd v. Hotel Terrigal Pty Ltd (In Liquidation)
[1965] HCA 17; (1965) 113 CLR 265, Kitto J. (at pp 273-274) held that a collusive and colourable sale by a mortgage company to its subsidiary was a plain case of fraud
See;
Loke Yew v. Port Swettenham Rubber Co, Ltd
(1913) AC 491, Lord Moulton (at p 504)
actual fraud, personal dishonesty or moral turpitude lie at the heart of the two sections and their counterparts: see
Butler v. Fairclough
[1917] HCA 9; (1917) 23 CLR 78, at pp 90, 97
In Personam
(personal equity) exemption
may arise out of the conduct of the RP or the conduct of those for whose acts the RP was responsible (agents and employees-especially important where the RP is a corporate person).
relevant conduct can:
• Pre-date registration; or
• Post-date registration.
There is no right
in personam unless there is a known legal or equitable cause of action enforceable against the RP
Land Title Act 1994
(Qld) s 185(1)(a)
(1) A registered proprietor of a lot does not obtain the benefit of section 184 for the following interests in relation to the lot—
(a) an equity arising from the act of the registered proprietor
Commonly described as the
in personam
exception
Bahr v Nicolay (No 2)
(1982) 164 CLR 604
It is clear from this case that to purchase with “mere” notice of an unregistered interest is not enough to raise a personal equity, for that would set at naught the protection against notice…but a personal equity will be raised where there exist additional factors indicating the purchaser’s agreement to recognize and be bound by the unregistered interest.
It is also clear from the case that the personal equity may bind the registered proprietor even where the assurance or representation to be bound is given, not to the person asserting the interest, but to a third party
Requirement of unconscionability
Vassos v State bank of South Australia
[1993] 2 VR 316
White v Tomasel
[2004] Qd R 438
specifically on the in personam exception in Queensland in light of s 185(1) (a) LTA.
The Register
Bursill Enterprises Pty Ltd v Berger Bros Trading Co Pty Ltd
(1971) 124 CLR 74 HCA
Registrar’s powers of correction
Land Title Act 1994
(Qld) S 15(1) (a) and (b)
Other Exceptions to Indefeasibility
Short-Term Tenancies
LTA Ss 64-71 no distinction between short and long terms leases
Easements
LTA Ss 185 (1) (c), (3) and (4).
Adverse possession
Overriding legislation
Koompahtoo Local Aboriginal Land Council v KLALC Property Investment Pty Ltd
[2008] NSWCA 6
Prior certificates of title and erroneous description of land
Land Title Act 1994 (Qld) s 185(1) (e)
Medical benefits Fund of Australia Ltd v Fisher
[1984] 1 Qd R 606