Land Law

Week 1- Torrens System and the Principle of Indefeasibility

Crown Land
European land settlement commenced in 1788 land vested in the name of the Crown
Crown Lands
1791-1793 free grants of land to encourage settlement evidence by Crown Grant
1809-1821 Governor Macquarie leasing of lands
1825 system of selling land introduced
1831 free grants of land abolished land sold at public auction
Robertson Act 1861 (NSW) selection of Crown land
Crown Lands Occupation Act 1861 (NSW) leasing - could select up to 320 acres of
rural land and purchase the freehold opened up squatter-held lands for selection.
Crown Lands Alienation Act 1861 (NSW) sale of land sale of town and urban land by
public auction
Crown Land Acts 1884 (NSW) - grazing licences, homestead leases, conditional leases,
pastoral leases, wharf and jetty permits, division of NSW Crown land into divisions.
Crown Lands Consolidation Act 1913 (NSW) consolidated legislation
Now Crown Lands Act 1989 (NSW)
Crown Lands in NSW are managed by the Department of Primary Industries. LAWS204
does not focus on Crown Land. If you wish to learn more about Crown Lands see
http://www.lpma.nsw.gov.au/crown_lands/about_crown_land

Old System Land

1788-1802 No system for recording land transactions no documentary evidence of
transfer or maybe the particulars of sale written on back of land grant
1802 Old Register Judge Advocate: brief record only
1817 Governor Macquarie Office of the Judge Advocate registration of deeds
relating to land (also part of the Old Register)
1823 Charter of Justice office of Judge Advocate abolished and Supreme Court
constituted
Registration of Deeds Act 1825 (NSW) register Deeds in Supreme Court any Deed
or instrument executed bona fide and for valuable consideration take s priority according
to date of registration, not execution Vendors Index
Registration of Deeds Act of 1843 (NSW) - Office of the Registrar General est. - Register
for sworn, complete copy of deed . Existing records transferred to Registrar General
1849 - Office abolished - responsibilities went back to the Supreme Court. 1856
Office of the Registrar General established (B,D & M plus Torrens) and from 1857
responsibility for registration of deeds.
1896 - Purchasers Index for Old System land established. Based on English Common
Law separate deed each time land was sold, mortgaged, leased etc not mandatory
until 1961 needed to examine chain of title
The Registers
Grant Registers (1792 to 31.12.1862)
The Old Register (1802 to 1825)
Purchasers Index
Miscellaneous Register
Index to Instruments Evidencing Change of Name (1875 to 1967)
Greater ability to know about land. Greater (but not total) protection.
 Purchasers take subject to:
unregistered interests which have not been documented
unregistered instruments which ought to have discovered
Purchasers title is still dependant on the chain of title* and the risk that a prior interest
may be invalidated breaking the chain of title and destroying the purchasers interest
Chain of title was fraught with complexity to prove title, a it was necessary to trace title
back through an unbroken chain of events and documents, perhaps as far as the Crown
grant.
(English courts later ruled that it needed to go back only 60 years. Then Conveyancing
Amendment Act 1930 (NSW) reduced this period to 30 years.)

Torrens Title Land

Robert Richard Torrens (Sir Robert Torrens) devised the Torrens Title system of land
registration. Had worked previously in shipping and emigrated to SA in 1840 to take up
the position of Collector of Customs.
Torrens system based on merchant shipping registration system. Single document for
each parcel of land a Certificate of Title on which is recorded all dealings relating to
that parcel. Original plus copy. Central Register able to be searched.
The objective of the Torrens System is to save persons dealing with registered
proprietors from the trouble and expense of going behind the register, in order to
investigate the history of their authors title, and to satisfy themselves of its validity.
Gibbs v Messer [1891] AC 248, 254 (Lord Watson for the Lord Chancellor, Lords
Watson, Hobhouse, Herschell, Macnaghten, Morris and Shand)
The purposes and objects of the Torrens system of title were to simplify conveyancing, to
introduce a greater assurance, indeed certainty, of title and in consequence to reduce
the expense of establishing and protecting title under the old land titles system. Black v
Garnock (2007) 230 CLR 438, 461 (Callinan J)
The ideas enshrined in the Real Property Act 1858 (SA) were highly controversial at the
time but the system has now spread across Australia , Malaysia, New Zealand, Singapore,
Israel, Belize, parts of USA and Canada, parts of Carribean and of Central America
The Torrens Title System is now enshrined in the Real Property Act 1900 (NSW)

Torrens Title System- The Register

The cardinal principle is that the Register is everything Fels v Knowles (1906) 26 NSWLR
604, 620.
Section 31B RPA (1) The Registrar-General shall cause a Register to be maintained for
the purposes of this Act.
(2) The Register shall be comprised of: (a) folios,
(b) dealings registered therein under this or any other Act,
(c) the record required to be kept pursuant to section 32 (7),
(d) instruments of a prescribed class, and
(e) records required by the regulations to be kept as part of the Register.
(3)The Register may be maintained in or upon any medium or combination of mediums
capable of having information recorded in or upon it or them.
(4)The Registrar-General may, from time to time, vary the manner or form in which the
whole or any part of the Register is maintained.
S3RPA
Dealing
Any instrument other than a grant or caveat, including an electronic form of
that instrument, being an instrument:
(a)that is registrable or capable of being made registrable under the provisions of
this Act, or
 (b)in respect of which any recording in the Register is by this or any other Act or
any Act of the Commonwealth required or permitted to be made.
Charge
Any charge on land created for the purpose of securing the payment of an annuity,
rent-charge or sum of money other than a debt.
Instrument
S32 RPA a folio is a record of the description of land, estate, interest, proprietor etc
made by the Registrar.
S 33 RPA Issue of a copy of the Certificate of Title
Approved forms see http://www.lpi.nsw.gov.au/land_titles/public_registers/torr
ens_title_register
S36(9)RPA- Dealings registered with respect to, or affecting the same estate or interest
shall, notwithstanding any notice (whether express, implied or constructive), be entitled in
priority* the one over the other according to the order of registration thereof and not
according to the dates of the dealings.
S36(11) RPA - Upon registration, a dealing shall have the effect of a deed duly executed
by the parties who signed it.

Torrens Title Land- Indefeasibility

[T]he principle of indefeasibility of title, is the foundation of the Torrens system of title.
Bahr v Nicolay [No 2] (1988) 164 CLR 604, 613 (Mason CJ and Dawson J).
Indefeasible = A right or title in property that cannot be made void, defeated or cancelled
by any past event, error or omission in the title. http://www.duhaime.org/LegalDictionary/I/
Indefeasible.aspx
Yet, the term indefeasibility was not in the original legislation nor is it in the Real
Property Act 1900 (NSW) so what does this term actually mean?
Three sections of the RPA are fundamental to the creation of Torrens Title in NSW: ss40,
41 and 43.

Section 40
Real Property Act 1900 (NSW)
(1) A manual folio shall be received by all Courts or persons having by law or
consent of parties authority to hear, receive and examine evidence as evidence of
the particulars therein recorded and shall be conclusive evidence that any person
recorded in the folio as the registered proprietor of an estate or interest in the land
comprised in the folio is the registered proprietor of that estate or interest and that
the land comprised in that folio has been duly brought under the provisions of this
Act.
(1A) Where a computer folio certificate is issued in respect of a folio of the
Register: (a) the certificate is evidence of the particulars recorded in that folio,
and(b) it shall be conclusively presumed that:(i) the certificate contains all the
information that was recorded in that folio at the time specified in the certificate,(ii)
the land to which the certificate relates was, at that time, under the provisions of
this Act, and(iii) a person recorded in the certificate as the registered proprietor of
an estate or interest in the land to which the certificate relates was, at that time, the
registered proprietor of that estate or interest.
(1B) Where, in a manual folio or computer folio certificate, the estate or interest of a
registered proprietor is expressed to be subject to:(a) an estate or interest
evidenced by an instrument,(b) a provision of an instrument, or(c) an enumerated
provision of an Act or of an Act of the Parliament of the Commonwealth, the whole
of the contents of the instrument, provision or enumerated provision, as the case
may be, shall be deemed to be set forth at length in the folio or certificate.
Section 41
Real Property Act 1900 (NSW)
41 Dealings not effectual until recorded in Register
(1) No dealing, until registered in the manner provided by this Act, shall be effectual
to pass any estate or interest in any land under the provisions of this Act, or to
render such land liable as security for the payment of money, but upon the
registration of any dealing in the manner provided by this Act, the estate or interest
specified in such dealing shall pass, or as the case may be the land shall become
liable as security in manner and subject to the covenants, conditions, and
contingencies set forth and specified in such dealing, or by this Act declared to be
implied in instruments of a like nature.
Commonwealth v NSW (1980) 25 CLR 325, 342 (Isaacs and Rich JJ.) It is not the
parties who effectively transfer the land but the State that does so, and in certain
cases more fully than the party could. In short, a transferee seeking registration of
a transfer seeks State affirmance of his position.

Section 42
Real Property Act 1900 (NSW)
42 Estate of registered proprietor paramount
Notwithstanding the existence in any other person of any estate or interest which
but for this Act might be held to be paramount or to have priority, the registered
proprietor for the time being of any estate or interest in land recorded in a folio of
the Register shall, except in case of fraud, hold the same, subject to such other
estates and interests and such entries, if any, as are recorded in that folio, but
absolutely free from all other estates and interests that are not so recorded except:
Mayer v Coe (1968) 88 WN (NSW) (pt1) 549 - Mrs M left CT with solicitor
for safekeeping. Solicitor forged Mrss Ms signature on a mortgage in
favourofMrC,wholentmoneyonthesecurity., NeitherMrsMnorMrC knew of the
fraud. After the mortgage to Mr C was registered, Mrs M found out. Street J
concluded that Because Mr C has obtained registration and was innocent,
he was entitled to indefeasibility immediately on registration even though
that registration was obtained by lodging a forged mortgage.
Had Mrs M intervened before registration, Mr C would have had no
interest in the land but because he had obtained registration, his interest
had acquired the quality of indefeasibility.
Cf with the position under Old System Title, where a forgery remains of no
effect - Re Cooper (1882) 20 Ch D 611

Section 43
Real Property Act 1900 (NSW)
43 Purchaser from registered proprietor not to be affected by notice
(1) Except in the case of fraud no person contracting or dealing with or taking or
proposing to take a transfer from the registered proprietor of any registered estate
or interest shall be required or in any manner concerned to inquire or ascertain the
circumstances in or the consideration for which such registered owner or any
previous registered owner of the estate or interest in question is or was registered,
or to see to the application of the purchase money or any part thereof, or shall be
affected by notice direct or constructive of any trust or unregistered interest, any
rule of law or equity to the contrary notwithstanding; and the knowledge that any
such trust or unregistered interest is in existence shall not of itself be imputed as
fraud.
 Cf with Old Title situation where a person taking any interest always has the
concern that the person purportedly giving title does not possess it.

Section 45
Real Property Act 1900 (NSW)
(1)Except to the extent to which this Act otherwise expressly provides, nothing in
this Act is to be construed so as to deprive any purchaser or mortgagee bona fide
for valuable consideration of any estate or interest in land under the provisions of
this Act in respect of which the person is the registered proprietor.
(2)Despite any other provision of this Act, proceedings for the recovery of
damages, or for the possession or recovery of land, do not lie against a purchaser
or mortgagee bona fide for valuable consideration of land under the provisions of
this Act merely because the vendor or mortgagor of the land:
(a) may have been registered as proprietor through fraud or error, or by means of a
void or voidable instrument, or
(b) may have procured the registration of the relevant transfer or mortgage to the
purchaser or mortgagee through fraud or error, or by means of a void or
voidable instrument, or
(c) may have derived his or her right to registration as proprietor from or through a
person who has been registered as proprietor through fraud or error, or by
means of a void or voidable instrument. (3)Subsection (2) applies whether the
fraud or error consists of a misdescription of the land or its boundaries or
otherwise.

Indefeasibility of Title- deferred of Immediate

Debate as to whether infeasibility of title under s42 RPA meant immediate indefeasibility
or deferred indefeasibility
May v Coe Mr C immediately obtained indefeasibility immediately although the
mortgage was forged.
Deferred indefeasibility means that a person who registers a void dealing does not
personally acquire indefeasibility in relation to that dealing. Indefeasibility is deferred until
that person enters into a further transaction with another person who obtains registration.
The latter person obtains deferred indefeasibility. This view was preferred in Gibbs v
Messer [1891] AC 248 and followed in a number of Australian cases.
However, in Frazer v Walker [1967] 1 AC 569, the notion of immediate defeasibility was
preferred and has been since followed.

The Ambit of Indefeasibility

Bursill Enterprises Pty Ltd v Berger Bros Trading Co Pty Ltd (1971) 124 CLR 73
Ps land had the benefit of a right of way over Ds adjoining land. A building on Ps land
extended over the right of way. A easement was registered which also gave to Ps
predecessor
in title the right to possess all buildings erected over the right of way.
HC held P enjoyed indefeasibility not only of the right of way but also of the airspace
above it occupied by the building. Fels v Knowles (1906) 26 NZLR 604
Registered proprietors of land (trustees) had leased the land for 14 years. The registered
lease contained an option to purchase in favour of the lessee although the trustees had no
power to sell the property. The lessee exercised the option to purchase and trustees
refules to transfer the land on the basis of lack of power.
Argument was rejected because the lease containing the option was registered, the
lessee had an indefeasible right to enforce the exercise of the option. Kotell v Bogdanovic
(1988) 12 NSWLR 472
 Mrs B claimed an equitable interest in property owned by Mr K befoe his death. Said that
in exchange for living with and looking after Mr K, he had agreed to grant her a life estate
over the property.
In breach of that promise, Mr K left all his property to his son who became registered
proprietor.
Court held that indefeasibility provisions of s42 of the RPA enabled the son to prevail
although he had received the property by way of gift. Hence the principle of
indefeasibility extends to a volunteer.
State Bank of New South Wales v Berowra Waters Holdings (1986) 4 NSWLR 398
SB was registered mortgagee of property owned by BW. Officer of SB erroneously gave
a payout figure for the loan which was less than amount owed. Lesser figure was paid and
discharge of mortgage was executed, delivered and registered. SB sough court order to
cancel the discharge of the mortgage.
Unsuccessful Registration of a discharge of a mortgage resulting from a mistake or
inadvertence on the part of the registered mortgagee had the effect of destroying the
mortgage.

Gibbs v Messer [1891] AC 248

Facts: Mrs M left her Certificate of Title with her solicitor, Cresswell. Cresswell fraudulently
forged Mrs Ms name on a transfer to Cameron, a non existent person. Cameron became
the registered proprietor.
Cresswell prepared a Mortgage from Cameron to the McIntyres, who were also his
clients, as security for an advance from the McIntyres to Cameron. The Mortgage by
Cameron to McIntyres was registered.
Mrs Messer brought action to cancel the Certificate of Title and have a new one in her
name issued, without the mortgage to McIntyres being noted as an encumbrance.
Mrs M left her Certificate of Title with her solicitor, Cresswell. Cresswell frauduently forged
Mrs Ms name on a transfer to Cameron, a non existent person. Cameron became the
registered proprietor.
Cresswell prepared a Mortgage from Cameron to the McIntyres, who were also his
clients, as security for an advance from the McIntyres to Cameron. The Mortgage by
Cameron to McIntyres was registered.
Mrs Messer brought action to cancel the Certificate of Title and have a new one in her
name issued, without the mortgage to McIntyres being noted as an encumbrance.
Finding: PC found for Mrs M and ordered that her name be restored to the Register.The
mortgage to the McIntyres was held not to be an encumbrance on her Title. PC accepted
that a bona fide purchaser from the McIntyres would have obtained an indefeasible Title.
Clements v Ellis [1934] 51 CLR 217, High Court favoured the doctrine of deferred
indefeasibility

Frazer v Walker [1967] 1 AC 569

Facts: Mr and Mrs F were registered proprietors of a farm in Auckland.
Mrs F, purporting to act for both Mr F and herself, negotiated a loan from Mr and Mrs R. As
security, Mrs F gave Mr and Mrs R a mortgage over the farm.
Mrs F, without Mr Fs consent, forged his signature on the security document. She took it
to her solicitors office where she signed her own signature and the clerk witnessed both Mr
and Nrs Fs signatures, despite not having seen Mr F sign.
The mortgage was registered with the Land Title Office and the mortgage appeared as a
registered interest on the relevant folio.
Mrs F made no payment of either principle or interest under the mortgage. Eventually, Mr
and Mrs R exercised their power of sale and sold the property to Mr W. Mr W was
registered as the proprietor on the folio. Neither Mr W not Mr and Mrs R knew of the
forgery. Once Mr W brought action against Mr F for possession of the land.
Mr F counter claimed against Mr W, seeking a declaration that as his signature was
forged, the mortgage was null and void and that he be restored to the folio as the
registered proprietor.
Finding: Nothing in s 42 equivalent to suggest that indefeasibility deferred
Gibbs v Messer not strictly overruled but immediate indefeasibility applied.

Breskvar v Wall (1971) 126 CLR 376

Facts: Mr and Mrs B executed a transfer to Petrie as security for a loan.
P fraudulently used the transfer and sold to his grandson, W, who became registered
owner.
W sold to Alban Pty Ltd but before they could register their
interest Mr and Mrs B lodged a caveat which injuncted the sale.
Finding: A registration which results from a void instrument is effective according to the
terms of the registration. It matters not what the cause or reason for which the instrument
is void.

Perpetual Trustees Victoria Ltd v Xial & Anor [2015] VSC 21

Facts: Mr X obtained two loans from P in Mrs X's name. The loans were secured by a
mortgage over their home registered in Mrs X's name. Mr X was found to have acted
fraudulently in obtaining the loans - he did not tell Mrs X about the loans and he forged her
signature on the loan and mortgage documents.
P had no knowledge of the fraud and retained indefeasibility of title. The question was
whether the mortgage secured anything given Mrs X's signature on the loan agreement
was forged. This answer to this turned on the construction of the documents.Does the
indefeasibility of the mortgage gained on registration extended to the covenant for
payment contained in the memorandum of common provisions (mcp) referred to NSW
decisions including Perpetual Trustees Victoria v English [2010] NSWCA 32
Finding: Those decisions say that the issue can be resolved by determining whether the
covenant for payment in the mcp is, on a proper construction of the documents,
incorporated into the registered mortgage. Where the loan agreement sought to be
enforced was forged, there is in fact no "Secured Agreement" and no 'Secured Money.
Ultimately successful on other grounds.

(These are taken from Casebook, Adrian Bradbrook et al, Australian Property Law
(4th ed)(2011))
Discussion question 1 (5.85, question 1)
(a) What are the reasons for the decision of the court in Gibbs v Messer [1891] AC
248?
(b) Did the decision of the Privy Council depend upon the fact that the document
was void, forged or taken from a non-existent person?

Discussion question 2 (5.100, question 1)

Between which parties was the real dispute in Frazer v Walker [1967] 1 AC 569?

Discussion question 3 (5.110, question 1)

(re preceding cases and Registrar General of NSW v Van den Heuvel [2010] NSW
ConvR
56-266)
Slight changes to the mortgage documentation is making all the difference to the
results of these cases.
Is this promoting form over substance?

Discussion question 4
Does and should the Torrens System protect a volunteer?

Discussion question 5
Consider:
A steals Bs Certificate of Title and uses it to enter into a contract for sale with C
(who knew nothing of the theft).
A forges Bs signature and C registers the conveyance.
C sells the land to D (who knows nothing of the theft) who registers that
conveyance also.
(a) How would the concept of indefeasibility operate if interpreted as immediate? (b)
Would it operate differently if interpreted as deferred?
(c) Whatcaseswouldyoucite?
(d) Would there by a different result if the property was old system land?
(e) What can be done to remedy the situation?

Discussion question 6
See NSW Family & Community Services Guide to Purchasing Your Home - The A to
Z of Home Purchase (2014) - www.housing.nsw.gov.au/__data/assets/pdf_file/
0020/325613/Guidetopurchaseyourhom e.pdf
Referring to the above and thinking back to your study of legal interests in
LAWS205, Consider:
(a) What is conveyancing?
(b) How does it work in NSW?
(c) What interest in land does a purchase acquire when he/she exchanges contracts
with the vendor?
(d) What document does the purchase acquire once the contract of sale has been
completed?
(e) What does a purchase do with this document after completion?

Week 2- Equitable Interests

(Ch 9)
The Equitable Jurisdiction
The Difference Between Common Law and Equitable Interests
Different Forms of Equitable Title
Express equitable interests
Elements of a trust
Case: Westdeutsche Landesbank Girozentrale v Islington London
Borough Council
Case: DKLR Holding Co (No 2) Pty Ltd v Commissioner of Stamp Duties (NSW)
Formality Requirements for the Creation of Express Trusts
Formality Requirements for the Creation of Equitable Interests in Land: Statute of Frauds
Exceptions to writing requirements
 Doctrine of Part Performance
Implied Equitable Interests
Resulting trusts
Failed Express Trust
Specific Purpose Loan
Contributions to Property: Purchase Money Resulting Trusts Case: Trustees of the
Property of Cummins (a bankrupt) v Cummins
Other Forms of Implied Equitable Interests: The Equitable Lien

Imposed Equitable Interests

Remedial constructive trust Case:MuschinskivDodds

Case:BaumgartnervBaumgartner Case:GiumellivGiumelli

The Institutional Constructive Trust
Case: Lysaght v Edwards
Case:TanwarEnterprisesPtyLtdvCauchi
The Personal (Mere) Equity
Case: Latec Investments Ltd v Hotel Terrigal Pty Ltd (in liq)

Discussion questions: Torrens Title and Land Registration

1. What is the difference between deferred and immediate indefeasibility?
2. What is the meaning of a system of title by registration?
3. In Breskvar v Wall, Barwick CJ held at [15] that a registration which results from
a void instrument is effective according to the terms of the registration. It matters
not what the cause or reason for which the instrument is void. Does this approach
promote consistency and security at the expense of equity and fairness?
4. What is the difference between the approach of Barwick CJ and the approach of
Gibbs J in Mercantile Credit v Shell Australia Co on the issue of whether a right of
renewal should be protected as part of the lease agreement.
5. Able is the registered proprietor of Torrens title land at Tempe. Able
bought the land with the help of a loan from his parents. As security for the loan, he
executed a mortgage in favour of his parents and handed this, together with the
duplicate CT, to them. His parents were not sure what to do with these documents.
They confided in their bank manager, Bruce at LocalBank, who advised them to give
the documents to their solicitor, Claire, so that she could arrange to have the
mortgage registered. They did so. However, Claire did not register the mortgage but,
instead, fraudulently took the duplicate CT, forged Ables name on a Transfer which
transfer red the land to Claire. Claire then took this forged transfer along with the
duplicate CT to Bruce of LocalBank (see above) and obtaineda mortgage over the
property. LocalBank registered the transfer as well as the mortgage. Claire became
the registered proprietor subject to a registered mortgage in favour of LocalBank.
The duplicate CT was held by LocalBank. Claire did not pay the mortgage
instalments and LocalBank sought to enforce their security and sell the property to
Dino on 15 July 2016 with settlement to occur on 15 August 2016. On 1 August 2016,
Able lodged a caveat to prevent Dino from becoming registered and sought an order
from the Registrar amending the title to have it transferred back to his name with
out the registered mortgage encumbrance. Advise Able, Ables parents, LocalBank
and Dino.
6. Equine is the registered proprietor in fee simple under the Real Property Act of
Brownacre, which is situated in a country town. Upon Brownacre is erected an old
four-bedroom house and a stable to the side, part of which is erected 4 metres
above a 3 metre wide easement benefiting the adjoining property and giving access
to the back portion of the property. Equine is a veterinary surgeon who holds the
land on trust for himself and his two partners although of course this is not
disclosed on the certificate of title. The property was purchased some time ago with
a view to the veterinary practice being moved to the property. Unfortunately there
has been a falling cut between Equine and his two partners over the splitting of
profits and the fact that one of the partners is paying undue attention to Equine's
wife. Unbeknown to the other two partners, Equine on 1 December leases
Brownacre to Dr Fixit for a period of two and a half years. Dr Fixit intends trying to
establish a medical practice there but is delayed in taking possession as he is
waiting on certain equipment. Equine then sells the property to Oats, a hay dealer,
for $160,000. Oats inspects the property prior to exchange and finds it vacant. After
exchange of contracts and prior to settlement, Oats meets one of Equine's partners
in the street. The partner tells Oats that the partners may be dissolving their
partnership with Equine but that, in any event, they will shortly be moving their
practice to Brownacre. Oats instructs his solicitor to immediately settle the contract.
Settlement takes place on 2 February. The transfer is registered.After settlement
Oats, while inspecting Brownacre, discovers Dr Fixit on the property, about to take
possession of it for his surgery. Dr Fixit shows Oats the lease and insists on staying
for the full two and a half years. It is also discovered that the part of the stable
erected over the easement is claimed by the adjoining owner. The easement is
simply recorded on the title as "right of way created by transfer no 12345 dated
20-1- 1917". An examination of the transfer shows that the dealing not only gives a
right of way but also operates as a transfer of the buildings over the right of way, as
it gives the adjoining owner the building plus the right to pull down or re-erect any
other buildings over the right of way provided that such buildings be erected at
least 4 metres from the ground. Equine's partners now give notice to Oats that they
intend to claim rectification of the register or alternatively that Oats holds as trustee
for them on the basis that he was fraudulent in settling the purchase of Brownacre,
having had notice of their interest in the land. Advise Oats.
9.13
1. What, according to Hope JA in DKLR Holding Co (No 2) Pty Ltd v Commissioner
of Stamp Duties (NSW) were some of the differences between legal and equitable
ownership?
2. Where a trust is expressly created and the owner of the trust property declares
himself or herself trustee, is there any change in ownership?
3. Is equitable ownership better described as a personal obligation against the
legal owner rather than a bundle of rights enforceable against a particular
object? See rather Countess of Bective v Federal Commissioner of Taxation
(1932) 47 CLR 417 at 418-420 where the court held that the transfer of property
subject to an obligation created an equitable chare rather than at rust: see also D
Barnett, The Nature of a Beneficiarys Interest in the Assets of an Express
Trust (2004) 10 Australian Property Law Journal 169. It has been suggested that
an equitable interest may allow a potential beneficiary in an unadministered
estate to compel an executor to comply with the specific terms of the trust:
Official Receiver in Bankruptcy v Schultz (1990) 170 CLR 306.
4. What are the statutory formality requirements for the creation of an express trust
by declaration over a legal interest in land?
5. What is the rationale underpinning the Statute of Frauds 1677 and its legislative
equivalent in Australia?
9.18
1. Do you think that the views of Lord Millett regarding the Quistclose resulting
trust reflect the default status of the resulting trust or are they more analogous
with the creation of express trusts?
2. Is the Quistclose resulting trust more of a protective mechanism than an
assessment of the implied intentions of the lender?
3. How does the specific purpose loan resulting trust differ from a more general
failed express trust resulting trust?

9.30
1. Why did the High Court in Giumelli refuse to grant a remedial constructive trust?
2. Why was the constructive trust deemed inappropriate in circumstances
involving proprietary estoppel?

9.36
1. Why did the High Court in Tanwar suggest that the right of the purchaser prior to
the completion of a contract for the sale of land should not be classified as an
equitable beneficial title? What is the problem , if any, with suggesting that the
equitable title of a purchaser is capable of being protected by specific
performance and that a failure to complete the contract on the due date did not
bar the intervention of equity to order specific performances?

9.40
1. Do you think that the auxiliary mere equity should be classified as a remedial
possibility, or a proprietary interest contingent upon the holder seeking its
enforcement within a limited time frame?

Week 3 - Priority Rule (old system)

(Ch 10)

Priority Rules Chapter 10 Hepburn

Relevance of Priority Priority Rules, OK?

Legal Interests formalities

Nemo Dat Principle

Prior legal and subsequent equitable

Prior Equitable and Subsequent Legal

The Doctrine of Notice

Tacking: Tabula in Naufragio

Competing Equitable Interests

Estoppel
 Prior Mere Equity and Subsequent Equitable Interest

Josephina is seised of an estate in fee simple in Brushy Mountain, a property in

NSW under old system title. Josephina writes to her Aunt Robyn for a loan, which
Robyn agrees to in an email to Josephina subject to receiving a mortgage over
Brushy Mountain. Josephina emails back agreeing to the mortgage, saying that she
will have her solicitor draw up the necessary documents and send them to Robyn
with the title deeds. Robyn forwards the loan money to Josephina.
Josephina, of course, does not send the deeds to Robyn but instead hands them
over to Emma, her solicitor, as security for an additional loan. Emma places the
deeds in her safe.
John is Emmas assistant. John forges Josephinas signature on a contract for sale
and sells the property to Loki. Lokis solicitor searches the Registry of Deeds and
finds the title in Josephinas name. John completes the sale to Loki and hands
over, at settlement, the deeds he obtained from Emmas safe together with a
conveyance to Loki upon which he has forged Josephinas signature. John then
absconds to South America with his boyfriend.
Meanwhile, poor Robyn has made numerous requests to Josephina for the title
deeds. After consulting her solicitor, she decides that she must protect her interest
as mortgagee, so she registers her emails evidencing the agreement with Josephina
in the Registry of Deeds.
The next day, the Lokis solicitor lodges the conveyance for registration.
Discuss the competing interests.

Josephine-

Robyn-

Emma- If Josehinea grants equitable mortgage to Robyn and then Josephina grants
equitable mortgage to

John-

Loki- Norther Counties of England Fire Insurance Co v Whipp (1884)

S184G(1) CA - All instruments (wills excepted) ...made bona fide, ...for valuable
consideration, and registered ... shall have ... priority not according to their respective
dates but according to the priority of the registration