Law Notes Property and Equity 2 Notes
UNSW Property and Equity 2 notes. Includes detailed case and materials notes and super summaries ideal to take into an open book exam. Structure of cases and materials notes:
Class 1: The Torrens System and Indefeasibility
Class 2: Indefeasibility of What?
Class 3 - The in personam exception
Class 4 - Other exceptions and overriding statutes
Class 5 - The register, equitable interests and caveats
Class 6 - Competing equitable interests
Class 7 - Co-ownership
Class 8 - Rights of enjoymen...
The following is a more accessible plain text extract of the PDF sample above, taken from our Property and Equity 2 Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:
Such an exception was recognized by Lord Wilberforce in Frazer v Walker and constantly affirmed in Australian cases
The rationale as recognized by the PC was that a person cannot rely in being the RP of land in order to avoid the normal operation of the law of contract
E.g. Because someone is the RP they cannot refuse to complete an SP contract/trustees can’t evade obligations owed to beneficiaries
This also protects parties through equity’s inherent jurisdiction to prevent unconscionability
Bahr v Nicolay (No 2) (1988) 164 CLR 604 Facts: Mr and Mrs Bahr (B) couldn’t raise funds to develop their land and hence sold it to Nicolay (N) on terms giving them a lease over it and a right of repurchase (cl 6). N sold the land to Thompson (T – the SR) which included in the contract express acknowledgement of cl 6 (cl 4) and T subsequently told B that he ‘recognized’ cl 6 of their contract with N. When B attempted to repurchase and pay the deposit, T the RP refused to sell. B commenced action claiming an order that upon payment the land was vested in them: Mason CJ and Dawson J: There honours began by discussing the principles in Breskvar v Wall that the principle indefeasibility and corresponding sections didn’t protect an RP against equities arising out of subsequent transactions as long as that equity didn’t conflict with those sections. They went on to discuss what constitutes fraud – noting that mere notice does not amount to fraud subsequently holding that some species of equitable fraud fall within the purview of the sections (e.g. Latec Investments - ‘pretense and collusion in the conscious misuse of power’). Following this they held that the cases didn’t advocate a strict interpretation of the indefeasibility section to the effect that there is a distinction between dishonesty subsequent to registration:
They went on to discuss the effect of cl 4 in this case, paying regards to the matrix of circumstances:
Wilson and Toohey JJ: Their honours were not willing to hold that the case fell into fraud – saying that the evidence falls short of establishing that the designed object of the transfer to the SR, N, was to cheat the appellants of their right (while it may have been on the hope that they wouldn’t but it wasn’t their intention to make sure it didn’t). But their honours held that the consequence of the express acknowledgement of the right to resale and communications to them to that effect was to impose a constructive trust upon them – a personal equity which is enforceable against them.
Brennan J: Held that equity would compel an RP who purchases on terms that they will be bound to an interest. He noted that the idea of the indefeasibility provisions was not to protect an RP from interests that he himself burdens his title with but to protect a transferee from defects in the title of a transferor. A means by which equity does this is to impose a constructive trust upon a purchaser when they repudiate the unregistered interest |
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The lines aren’t so neatly drawn between a purchaser who knows of an unregistered interest and one who undertakes to be bound by it
Hinds v Uellendahl – mere knowledge of the existence of a prior contract of sale isn’t knowledge to indicate that there is some fraudulent/dishonest design
CB muses whether this would extend to an equity of rectification – such an equity is a mere equity, would this make a difference?
Executive Seminars v Peck [2001]
Facts: Purchaser takes transfer of land with notice that small sliver of land is occupied and claimed by plaintiff under an arrangement with the purchaser’s predecessor in title. The purchaser knew he was buying land as occupied by the vendor and didn’t include the sliver. The ppurchaser then, after registering, repudiated the interest of the plaintiff
Held: The purchaser was guilty of fraud and a constructive trust enforceable against him arose regardless of his title
Logue v Shoalhaven Shire Council - The personal equity exception isn’t confined to conduct of the RP after being registered but extends to equities arising as a result of conduct on his part...
Buy the full version of these notes or essay plans and more in our Property and Equity 2 Notes.
UNSW Property and Equity 2 notes. Includes detailed case and materials notes and super summaries ideal to take into an open book exam. Structure of cases and materials notes:
Class 1: The Torrens System and Indefeasibility
Class 2: Indefeasibility of What?
Class 3 - The in personam exception
Class 4 - Other exceptions and overriding statutes
Class 5 - The register, equitable interests and caveats
Class 6 - Competing equitable interests
Class 7 - Co-ownership
Class 8 - Rights of enjoymen...
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