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WK3 Land registration pt II - Coggle Diagram
WK3 Land registration pt II
Exceptions to indefeasibility
What are they?
In QLD certain categories of exceptions exist
Registrar's power to correct the register {LTA} ss 15, 186
Overriding statutes - eg. drainage charges
Express exceptions as part of Torrens
Land Title Act 1994
(Qld), ss 184(3), ss 195(1), 185(1A)
Land Title Act 1994
(Qld)
In personam exceptions
Where can they be found?
Land Title Act 1994
(Qld)
s 184(3)(b) fraud exception
if there has been a fraud by the registered proprietor, whether or not there has been fraud by a person from or through whom the registered proprietor has derived the registered interest
Torrens title fraud (statutory fraud)
Actual fraud by the registered proprietor (RP), usually personal dishonesty
RP can be caught y acts of agent
Bahr v Nicolay (No 2)
1988 164 CLR 604
at 614 Mason CJ & Dawson J
Includes wilful blindness and reckless indifference (carellessness is not enough)
Also Grgic v ANZ Banking Group (1994( NSWKR 202
Bank was careless but did not amount to wilful blindness
It is a high bar to prove fraud on an evidentiary basis. There must be actual intention at the time of registration
Causal link must be established between fraudulent act of RP and the loss claimed by the aggrieved party
Does not include constructive/equitable fraud
Examples
Fraud against previous RP - usually forgery of an RP's signature on the instrument of transfer
Current RP cases - involves forgery of signature on a mortgage - Grgic
Reading materials
Fraudulent misrepresentation/other misleading conduct
s 185(1) - a long list of exceptions
equitable interests
short leases (b)
easements if not registered (c)
adverse possession (d)
In personam exception
Wider than other exceptions
Found s 185(1)(a)
Bahr v Nicolay (No 2)
1988 164 CLR 604
An interest personally created by the RP
Goes beyond mere notice, RP must have promised something /done something more to establish the interest and attract the protection
s 184(3)(a) - refers to exceptions in s 185
s 185(1A) - Careless mortgagee
only applies to registered mortgages
How to approach a problem on exceptions
Work out the sort of interest
Interest in fee simple (most common)
Life interest (less common)
Easement etc
Lease
Mortgage
Is there a question of fraud? - s 184(3)(b) LTA
Does In Personam exception apply (s 185 (1)(a)?
depends on type of interest aggrieved is claiming
Often fraud and inpersonam are pleaded together in these cases.
CASE EXAMPLES
If no fraud and/or Inpersonam exception then does one of the other exceptions in s 185 apply?
CASES NOTE-UP