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:
Concept | Key Cases | Issue | Principle | Ratio | Comments | |
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In Torrens the mortgage is a charge s 57(1) RPA Things to note – equity of redemption (value = difference between the debt and value of property; it is an equitable interest in land can be mortgaged again) as distinguished from the right to redeem (arises when the mortgage is made) The doctrine of tabula in naufragio (generally for subsequent equitable mortgagees) – if a first mortgagee exercises his power of sale and a subsequent mortgagee buys the legal estate, he will take priority over all other mortgagees in between as long as he does not have notice (Bailey v Barnes) In Torrens land priority is determined by date of registration (s 36(9) RPA)
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Tacking | Mercantile Credits v ANZ Banking Group | The rule of ‘tacking’ is that if the taker of a facility mortgage has no notice of a subsequent mortgagee then they do not lose priority to the extent of the increase (Hopkinson v Rolt)
Note: Only applies to legal/registered mortgages (Chase Corp v North Syd) | What about constructive notice? Donemore’s Case (NSWSC) says no, obiter in Sibbles v Highfern (HCA) says no taking if you have AOC notice
Scope of tacking
Matzner v Clyde - first mortgagee had knowledge of subsequent mortgagees and made further advanes. But he, under an agreement, had to build to complete works. Priority was altered since it would produce an unfair result for all involved otherwise (they would all be left with an incomplete security) |
Tacking
Vukicevic v Alliance Acceptance – X gives Y a mortgage, then later a profit a prendre to Z – both registered
If Y exercises the power of sale they can sell it free of the profit since they are registered first
How to exercise the power of sale?
S 109(5) CA gives the power, which is further regulated by s 111 which points you to s 57-59 of the RPA
S 57(2) gives the power of sale
S 61-62 gives the power of foreclosure
S 60 gives the power to enter into possession to effect sale
Concept | Key Cases | Issue | Principle | Ratio | Comments |
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Power of sale | Websdale v S&JD Investment Claim for principle not due | Duty of notice |
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| The power of sale exists under s 57(2)(b) and s 57(3) – it is the most common remedy. It is dependent on default of payment, breach of covenant + failure to remedy breach with notice Websdale qualified in Wongola v Mulingelbar – not only for non-existent defaults but also unequivocal insistence to pay a specified some and nothing less Note NRMA v Individual Homes – implied term that mortgagor facilitates mortgagee’s entry when POS exercised (hand over keys etc.) Sale to associate – Note: Benzla’s Case – sale to associate set aside; sale took place well before end of tender period Farrar v Farrar – mortgagee cannot sell to itself |
Conduct of sale (equitable duty) | Bangadilly’s Case Sale at Christmas? | Sale to associate |
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Southern Goldfields | Auction | Relying on Pendlebury
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| Approved in Caitlin v NAB
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Cuckmere |
| Policy debate ensues | |||
Westpac Banking v... |
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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