This website uses cookies to ensure you get the best experience on our website. Learn more

Law Notes Property and Equity 2 Notes

The Torrens System Notes

Updated The Torrens System Notes

Property and Equity 2 Notes

Property and Equity 2

Approximately 262 pages

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...

Available here

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:

Indefeasibility of Title

Concept Key Cases Issue Principle Ratio Comments
Immediate indefeasibility

Frazer v Walker

Recognized in s 135 of the Conveyancing Act

 Which view is to be preferred

  • Registration is conclusive to confer unimpeachable title; - this is so whether or not the RP acquires registration pursuant to a void instrument

    • This is in line with the general principle that an RP is immune from adverse claims except those specifically excepted but this in no ways denies the right of a plaintiff to bring an action against an RP in personam

  • A registered mortgagee is a registered proprietor for the purpose of the paramountcy sections

  • Even though the signature made the instrument void, it would confer indefeasible title unless brought within a specific statutory exception

  • The claim was bound to fail – the first respondents being bona fide purchasers and the appellants not being able to bring the second respondents into one of the statutory exceptions

Even though immediate indefeasibility is the confirmed theory – there remains the theoretical possibility that “the non-existence of a real person to accept the transfer” like in Gibbs v Messer renders title defeasible

Daniell v Paradiso – The mere fact that the RP entrusts the COT to another doesn’t create ostensible authority to deal with the land or estop the true owner from denying this is the case

Menzies J in Breskvar thought it was the breach of the Stamp Act in executing the blank transfer (and handing it over with the COT) that enabled Wall to, in disregard of the Stamp Act, become registered

Other void instruments come within the rule:

  • Unauthorized alteration by mortgagor’s solicitor (Morton v Black)

  • Registration purporting to be created by POA created after execution of the document (Broadlands v Sly)

  • Mortgage given by minor that was void by force of statute (Horvath v CBA)

  • Registration of invalidly executed mortgage (Co-op Property Dev v Cth Bank)

Breskvar v Wall

‘blank = void under stamp act – Petrie puts walls name’

 Whether the right to have a transfer set aside for fraud prevails over a subsequent SP contract

  • Clements v Ellis was not correctly decided – Frazer v Walker implies this

  • Here there is a competition between equitable interests to be resolved according to settled principles of equity as per Rice v Rice

  • Priority in time will only be lost by some conduct on the part of the appellants which have contributed to the false assumption that the competing equity holder acted upon

  • If there was no transaction to the third party, the appellants would have prevailed and set aside the transfer; it is the intervention of a BFPFVWN and the creation of their equitable right that changes this

  • The appellants armed the second respondents with the means of placing himself on the register:

    • They executed a memo of transfer without inserting the name of the purchaser

    • They handed over the duplicate COT and thus authorized the second defendant to act as a mortgagee

This case falls into Lapin v Abigail – it is also a case where ‘an agent exceeding the limits of his authority but acting within its apparent indicia’

Indefeasibility for what and for whom?

Concept Key Cases Issue Principle Ratio Comments
Indefeasibility of terms

Mercantile Credits

5+5+S defaults + not touching

 Is a right to renew indefeasible

Gibbs J – It must be “rightly said to be a part of the estate or interest”

Menzies J – What will be protected by indefeasibility “is a right conferred by covenant which touches and concerns the land and runs with the land”

Barwick CJ – it depends on whether or not the right is specifically performable (no other adequate remedies, court capable, no inequitable conduct etc.)

“the right of renewal is so intimately connected with the term granted to the lessee, which it qualifies and defines, that it should be regarded as part of the estate or interest”

  • A right to purchase on the other hand would not be – it is collateral and does not affect the estate or interest in land

By force of statute Gibbs J’s obiter is irrelevant – s 53(3) Conveyancing Act provides that an option to purchase can be included in a registered lease and if exercised the lessor is bound to the extent it is indefeasible.

Benmar v Makucha – lease registered in breach of LGA not defeasible (indefeasible)

Karacominiakis v Big Country – covenant to pay rent intimately related to lessee’s title upon registration even if it was contrary to the rule in Pigot’s Case that the deed was materially altered after execution and hence void

Travinto Nominees – registration can’t validate an option that was illegal

Caleo Bros v Lyon Bros – option is a contingent interest which though can be registered and indefeasible can expire

Re Eastdoro – series of options to renew enforceable even though original lease expired and the subsequent lease not being registered (this is relevant where the lease expires – else Mercantile operates)

Cf Amber v Herman – lease arising from exercise of option may not be indefeasible

Mortgages

Traditional mortgage – includes a statement of the principal sum lent and acknowledgement that it was advanced

Facility mortgage – mortgage secures money advanced as an independent and identified loan agreement or expressed to be an ‘all moneys’ mortgage intended to secure all moneys payable from time to time by the mortgagor under any future loan agreement

Yazgi v PC

Housing loan contract

 The extent of indefeasibility of a facility mortgage

  • The question is ‘indefeasibility for what’ and the answer depends on the wording of the covenants in the particular mortgage

  • In the case of a traditional mortgage the statement of the sum lent was prima facie evidence of the existence of a debt

  • Where there is no statement as to the amount lent, the indebtedness secured must be established in some other way

  • Here the mortgage agreement referred to ‘moneys…owing…under the Housing Loan Contract” which meant...

Buy the full version of these notes or essay plans and more in our Property and Equity 2 Notes.

More Property And Equity 2 Samples