[EXAM NOTES] Immediate indefeasibility. Express Exceptions s68. Property II TLA

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1 TLA Pririty accrding t time f registratin CT = cnclusive evidence that persn named in certificate is prprietr f land RP prtected against ejectment EXCEPT in certain circumstances Ntice f unregistered interest NOT EQUAL TO FRAUD Bna fide fr valuable cnsideratin purchaser will be prtected even if registered thrugh fraud r errr. Immediate indefeasibility - Deferred indefeasibility psitin (Gibbs v Messer) RP dealing with a FICTITIOUS persn cannt acquire immediate indefeasibility. Can nly transfer gd title t 3 rd party. Read strictly cnfined t unusual facts: applied in NSW v Barnes where mtg acquired frm nn-existent prprietr - Frazer v Walker Indefeasible title passes even with vid instruments upn registratin (mrtgage here was nullity as Mrs F frged her husband s signature n the mrtgage instrument). - Breskvar v Wall Emphasised title by registratin EVEN f vid instrument Sectin 63 Because W was guilty f fraud, title was defeasible against B Curt ready t find B at an equitable interest (r at least a mere equity), and A (3 rd party) had equitable interest. Applying Rice v Rice A had pririty. Genereal principles still apply with Trrens system. Express Exceptins s68 (1A) - Reservatin in te grant - Encumbrances ntified n registrar - Adverse pssessin - Public rights f way and easements - Unpaid rates will have first charge ver land - Mining lease r licence - Prir unregistered lease/agreement fr lease/letting fr term NOT EXCEEDING 5 YEARS t tenant in ACTUAL POSSESSION; BUT n ptin f purchase/renewal in any such lease r agreement shall be valid as against subsequent registered interest UNLESS lease r agreement registered r prtected by caveat. Lers v Terara T had unregistered lease (5 yrs) with ptin t renew (7 yrs) Mrtgaged leased t NAB NAB ldged caveat prtecting wn interest in lease ptin t renew nt mentined

2 T caveated its interest after riginal RP transferred t anther RP (J) T s interest within shrt-term lease exceptin, thus enfrceable against subsequent RP Lers. T s caveat INEFFECTIVE ptin t renew extinguished n transfer t J. NEED TO CAVEAT BEFORE RP REGISTERS AN INCONSISTENT INTEREST Bank s caveat INEFFECTIVE nly prtected mrtgage f lease. Narrw cnstructin f s68. Need t mentin EVERY INTEREST t be prtected LEASE ITSELF NEEDS TO BE PROTECTED BY CAVEAT (2) - (b)(i) Prir (and current) certificate f land exceptin - (ii) wrng descriptin f parcels r bundaries (PHYSICAL bundaries MBF v Fisher) exceptin UNLESS a purchaser fr valuable cnsideratin - Registrar f Titles v Esperance Land C When s 202 and s 68(b)(i) prir CT cnflicts, s 68 verrides mre general sectin 202. Grey area what if E claimed under s68(b)(ii)? Nt clear hw t reslve cnflict between (b)(i) and (ii). - MBF v Fisher Prir CT exceptin requires fr CT t still exist!! Des nt apply t interests left ut (lease was left ff CT in errr) Fraud Exceptin 1. Fraud? - Actual fraud (Assets C v Mere Rihi) dishnesty f sme srt against RP r their agents - Fraud f 3 rd party irrelevant unless had ntice by RP r their agents. Knwledge f fraud = fraud - If fraud suspected by enquiries deliberately nt made, MAY = fraud - Where prir UNREGISTERED interest hlder defrauded ut f their interest, need t prve a deliberate, dishnest cheat/trick (knwledge f unregistered interests + engagement in ther cnduct that is dishnest) Waimiha Lke Yew Dishnest trick G s assurance t E was false and fraudulent representatin fr purpse f inducing E t enter int transactin Made knwing that withut such representatin, E wuld nt have entered int transactin Fllwing Waimiha MORE THAN MERE KNOWLEDGE OF EXISTING RIGHT - Timing traditinally refers t fraud prir/leading up t registratin. Fraudulent cnduct AFTER registratin des nt raise exceptin Bahr v Niclay T did nt just have ntice f B s interest. Undertk in the cntract f sale frm N t prcure registratin f that land. Like in Lke Yew. Masn & Dawsn J find fraud deliberate repudiatin f B s interest that they have undertaken t recgnise.

3 Fraud can capture cnduct ccurring AFTER registratin. They & Wilsn J Fraud needs t have been cmmitted in the act f acquiring registered title. N fraud befre: n dishnest intent befre becming registered. Only after registratin did they decide t repudiate/disavw B s rights t repurchase. Brennan J deliberate breach f cntract = equitable fraud. Nt ACTUAL fraud, therefre nt fraud within s 68 f TLA. Weight f authrity favurs traditinal view (nt certain). 2. Agency A) Where RP becmes registered thrugh fraud f agent (Respndeat superir applies) Was agent acting within scpe f his/her actual r apparent authrity? - Nathan v Dllar and Sense NZ case 1) Is fraudster an agent f RP? 2) Was agent acting within scpe f his authrity? Or can knwledge f fraud be imputed t RP? What was agent authrized t d? Here: btain mrtgage in registerable frm, Dup CT and insurance details. Was Rdney s fraudulent act in frging mther s signature s cnnected that he can be said t be dne in perfrmance f what he was suppsed t d? YES imprper mde f fulfilling task ESPECIALLY: when criminal act is an inherent risk in ding what was authrized. Nte: Rdney given specific instructins easier t determine scpe f agency!!!! - Schultz n agency as lawyer fund t be n frlick f his wn. Nt acting within scpe f agency. Slicitr nt given specific instructins B) Where agent has knwledge f fraud Irrebuttable presumptin: agent cmmunicates t P all inf that agent has knwledge in curse f transactin. Exceptin: where infrmatin sught t be imputed = knwledge f AGENT S OWN FRAUD r inf acquired whilst a party t fraud. P can then rebut presumptin that such inf nt cmmunicated by agent. 3. Fraud against the registrar - Where falsely attested mrtgage is ldged fr registratin (r put n the path fr registratin) - Resulting in prvisin f false representatin t registrar f registratin f prper mrtgage when cntrary was knwn (Beatty v ANZ) - Beatty lked at bank fficer s experience and high psitin (manager f security clearance). Fact that falsely attested dcument was registered by fficer - Cf. Russ v Bendig Bank Fraud requires: subjective, willful and cnscius disregard f rights f anther

4 Nne here: Gerada did nt understand significance f her false attestatin in whle cnveyancing prcess 17 y law clerk Did nt understand that by falsely attesting the dcument, its registratin wuld be a false and fraudulent representatin t the registrar that Mrs R signed in frnt f her when she did nt. Other Exceptins Rights in persnam - Cause f actin: Estppel (Barry v Heider) Breach f Bahr v Niclay CT (undertaking) Breach f CICT Rasmussen Breach f duty f care (Gsper; see Vasss). - Rights a persn has against RP relating t land that arises ur f RP s wn cnduct - 3 ways (befre r after registratin) 1. Cntractual undertaking f RP 2. RP = trustee f land (s 55 TLA trustee cannt hide behind indefeasible title as RP t deny rights f beneficiaries); e.g Baumgartner 3. Cnduct f RP; e.g. Luse v Diprse D had right in persnam against L fr pty, breach f fiduciary duties, undue influence, estppel, etc. - Elements 1) Claimant must establish knwn, recgnized legal/equitable cause f actin against RP 2) Apprpriate remedy f that cause f actin must relate t the land. Must recgnise that claimant has interest in the land. 3) (UNCERTAIN if required) Cnscience f RP affected (element f uncnscinability in subjective, descriptive sense. E.g. Baumgarnter, Luse v Diprse 4) Cannt be incnsistent with plicy and purpses f Trrens system Farrah v Say Dee knwing receipt cause f actin under Barnes v Addey cannt apply as in cnflict with s134 TLA - Bahr v Niclay 1) Cl 4 f cntract between 1 st and 2 nd resp acknwledge cntract agreement existing between B and N = cntractual undertaking by 2 nd Resp t be bund by App s interest. Was the very basis that 2 nd resp gt their interest Result f cl 4 2 nd resp held prperty ON TRUST fr benefit f App (Masn and Dawsn J fund express trust; Majrity fund cnstructive Breach f trust = cause f actin. 2) Remedy related t land 3) Arguably 2 nd resp s cnscience affected as well. 4) Nt incnsistent with TLA - Mercantile Mutual v Gsper Culd nt attribute fraud against RP thrugh agency principle

5 Letter addressed t bth Mr and Mrs G Mr G des nt appear t have been appinted as agent f MM Argued in persnam exceptin successfully (majrity) Kirby P general law reasning. Mrs G had persnal equity frm riginal mrtgage which was nt altered as frged variatin was nt effected by valid deed (fraudulent) Criticised nt fllwing principled apprach Mahney J 1) Duty f care breached by using dup CT t register frged variatin. BUT nt recgnized cause f actin!! 2) Unclear what basis the cause f actin had did remedy relate t land? Meagher J (dissent) registratin cures all defects, Mrs G liable t pay amunt wing under registered mrtgage. - White v Tmasel (NSW) T registered thugh curt rder subject t implicatin that registratin subject t validity f rder T (subsequent RP) fund t be subject t W s right in persnam THIRD REQUIREMENT NOT SATISFIED T fund t be whlly inncent Cf. Hayne J in Vasss - Vasss (VIC) Decided after Gsper decisin handed dwn heavily critcised Mere fact f frgery f instrument DOES NOT establish persnal equity RP here (State bank f SA) did nt meet 3 rd element f uncnsinability DOES NOT APPLY!! Crrecting the Registrar Dup CTs issued in errr, may upn ntice in writing, require persn wh was issued the dcument t deliver up fr crrectin r cnacellatin as may require. On nncperatin, can apply fr summns, if again nn-cmpliance, can apply fr warrant t be brught ebfre curt (3)-(6). Upn directin f Cmmissiner crrect errrs in Register r in entries made, r in dup CT. Has effect f as if errr never made. - Frazer v Walker s188(2) nly gives pwer t crrect very clear typgraphical and bvius errrs. CAN ONLY AFFECT FUTURE RP - Curts cautius f extending pwer in Aus nly in clear cases where n difficult q f law r fact. - Where difficulty arises, needs t be judicially decided - sufficient difficulty? - Sectin 76 needs t attach t anther reasn t find RP has n indefeasible title t prperty t allw amendment Lk t sme ther exceptin t explain why registrar can crrect register and effect prprietr s title. Overriding statutes

6 Vlunteers - e.g. Criminal Prperty Cnfiscatin Act 2000 s9 - Registerable real prperty can be cnfiscated upn declaratin - Will vest in State free frm ALL INTERESTS (registered r nt), defeats all caveats, and title passes t State. - Des RP withut value (vlunteer) acquire indefeasible title free frm any UNREGISTERED interest? - General law: NO - Trrens: Sectin 202: purchasers prtected wrds d nt seem t aid vlunteers Sectin 134: Purchaser in heading; text refers t persns. King v Smail (VIC) Equivalent f s 134, 202 fcussed n (fllwing Gibbs v Messer) Vlunteer exceptin recgnised. Gift there devised t defraud creditrs. NSW Bgdanvic v Kteff N vlunteer s exceptin Referring t Frazer, Breskvar s68 (paramuntcy prvisin) as central prvisin in TLA As s68 des nt distinguish between purchasers and vlunteers, indefeasible title passed t the vlunteer (beneficiary under will) NOTE: vlunteer did nt have ntice f P s interest s134 f n relevance. Obiter: if K had ntice, utcme might be different. Des nt have t answer questin f whether s 134 wuld prtect a vlunteer. VIC Rasmussen Recgnised vlunteers exceptin significant that vlunteer had NOTICE f previus unregistered interest WA Cnlan Fllwed Bgdanvic But left situatin pen where vlunteer has ntice HIGHLY UNCERTAIN HC Farrah Cnstructin des nt recgnise vlunteer s exceptin Extent that indefeasibility attaches MC v Shell C. lease - Gibbs J nly the rights that affect r are cnnected with state r interest in land which the instrument creates are indefeasible. - Here: lease creating leasehld interest ptin t renew affects/qualifies/cnnected with leasehld estate THUS prtected! s intimately cnnected - ** distinguish ptin t purchase and ptin t renew (biter Gibbs, Stephen J) - Qualify, - And define the estate r interest in land that instrument creates.

7 PT Ltd v Maradnna mrtgage - Persnal cvenant t repay defines the value f security interest intimate t interest created by mrtgage. - RENDERED INDEFEASIBLE UPON REGISTRATION even if mrtgage is vid. Trevint (HC) illegal cntract - Optin t renew NOT validated by registratin f an illegal instrument under statute. Perpetual Trustees v Tsai all mneys mrtgage - All mneys mrtgage - Althugh persnal cvenant indefeasible, nly liable t pay amunt wning under LOAN AGREEMENT - If lan agreement is VOID AND UNENFORCEABLE, nthing will be wing under it, - Therefre registered mrtgage secures nthing. - Here bligatin t pay nt in mtg, in the lan agreement (vid) Transfers f interest in land what rights pass? - 82(1A) all rights, pwers and privileges belnging r appertaining shall pass t the transferee; and such transferee shall thereupn becme the prprietr theref and whilst cntinuing shall be subject t and liable fr all and every the same requirements and liabilities t which he wul have been subject and liable if he ahd been the frmer prprietr r riginal lessee, mrtgagee r annuitant includes right t sue upn any mrtgage r ther instrument Recver any debt, sum f mney, annuity r damages And all interest in any such debt, etc, shall be transferred s as t vest the same at law as well as in equity in the transferee theref. - I.e. right t sue under persnal cvenant t pay passes nt transferee upn transfer - Cnsidated Trust C. v Naylr Guarantee by Naylr fr repayment f mneys brrwed by Gale t KWM ltd. KWM transferred said mtg t Cnslidated Trusts Gale defaulted CT sught t enfrce guarantee by N per s82, 83 equ f TLA Guarantee = separate arrangement between 2 different parties!! Can nly recver under s 82, 83 rights affecting transactin between mgee and mgr NOT between 3 rd party. NOT intimately cnnected with rights t prperty arising ut f mrtgage. - Queensland Premier Mine v French Fllwing Naylr Need t assign rights under persnal lan agreement fr it t be transferred S 82, 83 nly deals with rights under mrtgage as between mgr and mgee!!! Unregistered interests

8 1. TLA s 58 Barry v Heider (Isaac J) s58 nt t be read t extinguish equitable rights in unregistered interests In persnam claim based n estppel B = RP; executed transfer f part f land t Schmidt. Transfer t S actually vid due t fraud by S S granted unregistered mrtgage ver that land t Mrs H (unaware f fraud). S didn t have CT, but B signed letter authrizing Registar t issue CT t her and had executed transfer f land frm B t S (representatin) Mrs H s eqitable interest = exceptin t B s indefeasible title held interest in land subject t Mrs H s mrtgage. 2. Caveat system 137. Abslute caveats, ntice caveats, r subject t claims caveat t prtect claims in any estate r interest in land. Apprved frm Lers: needs t specify explicitly every interest seeking t prtect Indicate basis f claim 137(1B) ldger shall, if required by Registrar, supprt claim by stat dec stating nature f estate r interest claimed and title theret (1C) if nt ldged within 7 days frm date f requisitin, caveat will be abslutely null and vid Rle f Registrar purely administrative (Kuper v Kuper) Ldging caveat withut reasnable cause shall be liable t make t any persns sustaining damage such cmpensatin as a judge n summns shall deem just and fit. OK if caveatr has hnest belief n reasnable grunds that they have interest in land that is prtectable by caveat. 138 (1) RP t be ntified by Registrar upn ldgement f caveat (2) RP can summn caveatr befre Supreme Curt t shw why caveat shuld nt be remved pririty disupute (3) Where RP ntified, but des nthing, then wants t register a dealing: can summn caveatr t curt t shw why caveat shuld nt be remved. Pririty dispute between 2 UNREGISTERED interests. If Caveatr des nt respnd, curt lapses in 14 days. Expense f bringing actin in SC!! 138A (b) Des nt apply t caveats ldged by r n behalf f a beneficiary claiming under a will r settlement, r (c) Under curt rder 138B (1) If s138a activated, RP can apply (in an apprved frm and fr prescribed fee) fr Registrar t serve caveatr with ntice requiring caveatr t take actin as per (2) within 21 days after ntice served r caveat will lapse

9 (2) Exceptin t (1) if Caveatr btatins frm SC rder extending peratin f caveat (a). Cmpensatin **** NOTE: EXCEPTIONS TO COMPENSATION s196 - Breach f trust by RP - Imprper exercise f sale in mrtgage - Persns claiming under unregistered instrument, dcument r writing, r any equ mtg r charge by depsit r therwise withut writing - Interest nt prtected by caveat,

10 - Where misdescriptin f bundaries exceptin apply unless persn liable is bankrupt, dead, abscnded Franzn Parker - Under s 201: Prprietr = any registered interest hlder Fraud same meaning under s 68 (actual dishnesty by RP r agents) Registratin f any ther persn refers t errneus registratin f anther prprietr. I.e. discnfrmity in mtg instrument and actual registratin f mrtgage. Here: deprivatin = partial deprivatin as subject t M s mrtgage - Deprivatin referred t as trickery f fraudster + registratin f land. When prperty taken away frm persn Trrens System mrtgage - Trrens: mrtgage acts as charge (nt cnveyance) s 106 TLA. Frmalities - REGISTRATION s Needs t be in an apprved frm Instruments signed + registered has same efficacy as deed (legal estate cnveyed). - 53; 68. Registratin => indefeasible mrtgage Equitable Mrtgages under TLA Barry v Heider TLA des nt preclude equitable mrtgages. - Same rules apply under general law specifically enfrceable cntract; agreement f subject matter, parties, price (s 4 SF; s 36(d) PLA part perfrmance). - 34(1) PLA Right t discharge (right t redeem) - Mgr has right t btain discharge f mtg upn repayment f mtg debt. - Legal right (exercised n cntractual date and as per mrtgage instrument) - Equitable right (arising AFTER cntractual date fr repayment). - After legal right expires, Mr still has equitable right t redeem PROVIDED Mgee has nt sld ff land t pay debt, btain rder fr freclsure (s 121), etc. Implied cvenants TLA Mgr will repay principal mney n due date (even if nt cvenanted expressly in mtg instrument). Als requires mgr t keep prperty in gd repair.

11 Right t pssessin by mgee upn default f payment f principal sum r interest by mgr Mgee can deal with land as if legal wner (like at general law) BUT WITH PROVISO: mgr has right t retain pssessin withut interference until default Implied pwer f sale Duty t insure n Mgr Implied Cvenants PLA Pwer f sale Duty f insurance n Mgr (at their wn csts) Right t appint receiver Generally t remedies available t mgee These implied cvenants can be excluded/mdified by cntracting parties. Pririties - General law: Prir legal ver subsequent equitable Subsequent legal ver prir equitable IF BFPFVWN (Pilcher v Rawlins) Rice v Rice - Trrens 53. In rder f registratin. Tacking Tabula in nafragi - (General law) Where there is 1 legal mrtgage, and ther equitable mrtgages. Subsequent equitable mrtgages can imprve their psitin (ver prir equitable interests) by tacking nt the first legal mrtgage. BUT C cannt have had ntice f B s equitable mrtgage at the time he acquired his equ mtg. - Trrens 53. Cmpeting legal interest accrding t rder f registratin. N scpe t appy TIN Hlland J Macks Landslide If subsequent mrtgages are equitable, t gain pririty, just have t register their interests. Principle based n dctrine f estates! N applicability t Trrens Tacking f further advances - Applicable t Trrens based n cntractual right t make further advances in mrtgage. - IF mrtgage cntemplates making f further advances e.g. all mneys mrtgage, pen ended (discretinary). - Hpkinsn v Rlt Can nly tack withut ntice f subsequent mrtgages

12 + first mgee had discretin t make further advances - West v Williams NO TACKING WITH NOTICE (actual ntice Dnemre) Caveat des nt = ntice (Dnemre). When 1 st mgee gains knwledge f 2 nd mrtgage, bligatin t make further advances discharged. Uncles nly had pririty ver 2 nd mtg f advances made withut knwledge f it. - Matzner v Clyde building lan Regnised Hpkinsn applies t Trrens (based n justice and fair dealings) Distinguishes building lan t Hpkinsn and West v Williams Thse cases each FA diminished value f security f ther mgees HERE: FA made nly when value f prperty increased mre fr everyne else t share If based n fairness, tacking f FA shuld nt be precluded even if made with ntice Requirement: FA needs t be prprtinate t increase in value as matter f fact Pssible requirements: (1) stipulated maximum; (2) FA mandatry. Surces - Express: mrtgage instrument - If nt: Statutry incnsistencies and verlap between TLA + PLA Right t exercise Pwer f sale 1. Des Mgee have pwer f sale? - Registered mrtgage? 106, 108, 109 TLA Trrens system mrtgages ONLY - Unregistered mrtgage BY DEED? 57(1)(a) PLA Applies t Trrens registratin f deeds If TLA silent, PLA applies PLA applies cncurrently with TLA if nt incnsistent! If PLA incnsistent with TLA cvering same issue TLA PREVAILS! (PLA mre general statute) WHAT KIND OF MTG? WHAT KIND OF STAT PROV? WHAT DOES IT SAY ABOUT APPLICATION? - Unregistered mrtgages NOT by deed? Walsh v Lnsdale argument unreg mrtgage (like unregistered leases) shuld be enfrced n same terms as if were registered. Chan v Zachariah (HC) biter; dubted argument. TLA nly applies t registered mrtgages Thedre v Mistfrd (HC) biter; accepted argument in mrtgage cncept. UNLIKELY!!! LIMITED RIGHTS 2. Ntice requirements? Cmplied with?

13 - 59(1). PLA Regulatin f exercise f pwer f sale Only upn default + when ntice requiring payment f mrtgage mney served Default cntinues fr 1 mnth AFTER ntice served (r any ther perid f ntice expressed in instrument) (TLA) (1) Upn ANY default Default cntinues FOR ONE MONTH (r any perid expressed in mtg instrument) Then Mgee can serve ntice t mgr (2) Prper ntice a. Delivered persnally b. Sent by registered pst t: i. Address entrered in Register as address f Mgr ii. Address knwn t mgee as current address f mgr c. Ntice in cnspicuus place n charged land d. Ntice sent t number f fax machine f Mgr A mnth after ntice served as per s106, pwer f sale becmes applicable. - IF NOT COMPLIED = IMPROPER SALE! 3. True sale? - Flexibility s108 TLA: auctin, private cntract n terms and cnditins Mee deems fit. Can sell whle r part f land - Mr can still make gd the default UP UNTIL Mee enters int cntract f sale with third party - Overriding principle: must be a true sale Sale by mgee t himself IS NOT a true sale But sale by mgee t a cmpany in which a mgee has an interest (sharehlder) is NOT a sale t himself. Nthing fundamentally wrng (Farrah) BUT, highly suspicius. Onus shifts t mgee t shw that it was an independent, fair and hnest bargain (i.e. n cllusin) - Farrah: Cmpany nt frmed when negtiating purchase f quarry N intentin f purchasing quarry at start Here: independent, fair and hnest bargain N cllusin, negtiated independently Jhn Farrah wen t great lengths t ensure very best price achieved fr prperty Arrangements in place befre shares acquired. - Cf. Tse Kwng Lam TLA; 57 PLA: Mgee s right t buy in at auctin 4. Mgee meet the standard f care? - UK Negligence style test; reasnable care Cuckmere Brick - HCA Nt decided, but strng dicta suggest gd faith test. Acting hnestly Nt wilfully r recklessly sacrificing interest f mgr (Isaacs J in Pendlebury) Cachalt Nm (WA) Smith J favurs strict gd faith test.

14 - Factrs (lk at nature f prperty): Pendlebury Farming land in rural VIC Advertising: Did nt include salient features in CITY newspapers N advertising in lcal papers required as ptential buyers wuld be lcated in rural areas. Fact tha wner and neighbur didn t knw f auctin Lcatin f auctin Melburne city ffice Cmmn practice, but shuld have been in clsest twn Grss undervalue NOT NECESSARILY BREACH But: here reserve price set EXACTLY at mtg debt (extremely lw) Remedy: damages cannt set sale t BFPFVWO aside. Difference between what prperty sld fr and what it wuld have sld fr. Frsyth v Blundell Mgee entitled t prefer wn interests ver mgr s. BUT: if mgee s wn interests nt at risk, mgee cannt disregard entirely the interest f mgr Nt fllwing up expressin f interest f XL = calculated indifference. Needs t put parties in cmpetitin with each ther. Remedy: Can Blundell set aside sale t Shell? Assuming Shell hasn t registered and pwer f sale exercised imprperly by XL, B has REGISTERED INTEREST. Only entitled t damages if adpting negligence test Pssible injunctin t set sale aside if adpting gd faith test. Tse Kwng Lam Undervalue des nt mean imprper sale, BUT fact that mgee disclsed minimum price t auctineer befre sale ALSO disclsed reserve price t purchaser befre sale Multi-millin pund prperty 17 days befre 1 st advertisement and auctin; ADVERTISING LEAD TIME insufficient Expert advice/ evaluatin?? (nne here) Type f prperty meant purchaser culd have sld ff in parts t sette mrtgage debt. UK NEGLIGENCE APPROACH! Right t pssessin and make imprvements and expend mney TLA Upn default f PAYMENT f mrtgage debt! Nt any ther breach Brader prvisin WITH prvis right f mgr t quiet enjyment

15 - T: exercise pwer f sale requires pssessin first; OR when prperty is incme generating, needs pwer f pssessin t enter prperty t generate incme t reduce mtg debt. Prperty returned t mgr upn ding s. - Obligatins f Mgee: Accunt fr any rents/prfits. Actually, and wuld have been received, but fr willful acts f mgee Take reasnable steps t perfect, prtect and maintain security Reasnable expenditure in getting prperty in cnditin fit fr sale (Maztner) Any such expenditure = 1 st charge ver prperty. Right t appint receiver - Event f actual r threatened default - Cnferred by s57(1)(c) PLA (subject t any cntrary intentin in mrtgage) s57(4) Extends t Trrens registered mrtgages s58 - Arises after pwer f sale exercisable under PLA/TLA (s65) Ntice requirements fr pwer f sale - Receiver appinted by MGEE but = agent f Mgr s65(2) PLA; can be challenged by mgr where they cnsider appintment nt justified, r is fr ulterir purpse. - EQUITABLE MGEE needs t apply t curt Right t freclse - Last resrt - Mgee becmes abslute wner debt extinguished, mgr s right t redeem extinguished s53 PLA - Attaches t legal AND equitable mtg s - ADMINISTRATIVE PROCESS under TLA (121, 122) - Judicial prcess under general law PLA cannt repen freclsure; right t sue n persnal cvenant extinguished. 1. Is it a lease? Essential characteristics f leases: 1) Demise - Grant f pssessry interest in the land frm lessr t lessee - Lessr = wner f fee simple. 2) Exclusive pssessin - Grant f right f exclusive pssessin - Parties intend t grant right t exclusive pssessin (Radaich v Smith licence granted but lking at ther prvisins, clear that exclusive pssessin granted => lease) 3) Certainty f the term - Cmmencement

16 Date must be certain r capable f being rendered certain befre lease takes effect As sn as pssible in the new year UNCERTAIN n lease Dunlp Olympic v Ellis. - Maximum duratin Must be certain r capable f being rendered certain at the time lease takes effect. Lace v Chantler duratin f war UNCERTAIN. Must be a maximum duratin Culd ve saved by adding 5 years r fr s lng as war ends, whichever ccurs first. Until land is required by the purpses f widening the highway Prudential Assurance. 4) Rent (usual but nt essential) Types f leases - Fixed term Expressly created Of certain duratin (Lace) - Peridic Run frm perid t perid (cannt exceed 5 years under Trrens System) Expressed in deed frm; rally at cmmencement f agreement; Operatin f law tenant enters int pssessin and pays rent pursuant t invaid fix term agreement; OR: when fixed term lease expires and tenant remains in pssessin, WITH cnsent f landlrd and while paying rent. 71. PLA Law will nt imply yearly peridic tenancy 72. PLA when perid f peridic tenancy unclear 1 mnth ntice can be given fr terminatin 2. Hw was it created? Frmalities General law 1. Legal - Deed: s9, 31 PLA - Exceptin: shrt term lease NOT EXCEEDING 3 years t tenant in actual pssessin. Can be created rally (s33(2)(d), s35(2) PLA) - Peridic lease = legal lease (either express agreement r implied by law). Each perid = separate, distinct lease. 2. Equitable - Specifically enfrceable cntract - Final agreement n material terms; n equitable bar; reading, willing and able; specific acts f part perfrmance r satisfying s4 SF Trrens legal lease

17 - Registratin - IF NOT: general law principles - Equitable lease where there is specifically enfrceable cntract f lease - Unregisterable leases: leases nt exceeding 3 years (s91 TLA) general law principles!! Legal lease. 1. Is it an easement? - Essential characteristics (Re Ellenbrugh Park): 1) There must be a dminant and servient tenement; Identify DT: Has benefit f the easement ST: burdened by easement. NOT ver easement in grss (unless created by statute, e.g. Land Administratin Act). 2) Easement must accmmdate the dminant tenement; Re Ellenbrugh reasnably necessary fr better enjyment f tenement Cnnected with, and reasnably necessary fr Serve sme use that is rdinarily made f DT What is the nature f the right? Nature f DT? Is the right cnnected with r reasnably necessary fr better enjyment f DT as rdinarily used? Cf. right t free entry t Lrd s cricket grund Mdy v Steggles cmmercial prperty; right t put up sign n wall f neighburing prperty t advertise fr DT = easement. 3) Dminant and servient tenements must be wned r ccupied by different persns; 4) Right must be capable f frming a grant Right must nt be t vague/wide Capable f being defined s party knws what can/cannt be dne n ST Re Ellenbrugh: right t use a garden, NOT right t wander n grunds. Cannt be purely recreatinal needs sme utility and benefit City Develpments v Registrar Generals: right t lake in a develpment where ccupiers culd use fr swimming and fishing NOT an easement Whether right amunts t pssessin r jint ccupatin f ST Yes: NOT easement

18 N: OK 2. Hw did it arise? Prperly created? - Statute May be in grss Usually t public authrity - Express grant/reservatin Law: Deed s33(1) PLA OR: registratin s85 TLA (has same efficacy as deed) Equity: Specifically enfrceable cntract t cnvey an easement Sectin 4 SF; r sufficient acts f part perfrmance s36(d) PLA Walsh v Lnsdale Nt precluded by TLA given brad wrding f s68 - Implied grant/reservatin Bth DT and ST need t have been wned by same persn at sme pint; AND severance f ne f the prperty giving rise t easement Reservatin Easement f necessity STRICT TEST: nly when DT cmpletely landblcked Easement needs t be abslutely essential fr use f DT must be n alternative access (nt if precarius ) NO EASEMENT if alternative access has been cut ff by alleged DT by wn acts ST can rebut implicatin by shwing never an intentin fr DT t have access ver their prperty! Intended easements Per cmmn intentin f parties fr land t be used in defined and particular manner E.g. Jshua s Cntractrs JC sld part f prperty t Vic Electricity Cmmissin knwing t be used as electricity substatin NECESSARILY requires transmitting large amunt f nise Curt fund easement intended t allw DT t be fit fr intended use. Grant Easements f necessity Intended easements Nn-dergatin frm grant Usually fr negative easements against ST

19 Ward per Lrd Ungd culd still imply psitive easement nt t dergate frm grant (biter) Same rule as per leases Malzy; Aussie Traveller Wheeldn v Burrws Grant f part f wner s land (severance) Cntinuus and apparent Ward v Kirkland need fr sme bvius and permanent mark r feature n ST bservable n inspectin f ST Cannt be transitry r intermittent Designed/apprpriate fr easement E.g. Pathway, gate Necessary t reasnable enjyment f prperty granted Nature f right? Nature f prperty? Cnnectin? Fr DT itself, r sme permanent feature n DT enugh At the time f the grant used by riginal wners fr benefit f part granted Applied in Aus! Stevens & Evans v Allan & Armanasc Incnvenience f using alternative entrance enugh t render easement reasnably necessary fr use f prperty. General wrds s41 PLA Ward v Kirkland appears t have interpreted the equivalent sectin as able t CREATE an easement advantage (thrugh licence, r cntractual right) cnverted int an easement upn cnveyance. BUT: DT and ST must have ben ccupied by different peple IMMEDIATELY PRECEDING severance and cnveyance Implicatin frm descriptin f land Simultaneus cnveyances by 1 land wner Creatin f plan f subdivisin - Estppel Owner f ST represents easement exists Owner f DT relies n representatin and acts n it T their detriment (if easement was remved) Ward v Kirkland (drain easement) representatin by acquiescence. Althugh fund that drainage nly extended t bathwater, did nt grant injunctin ver

20 drainage f sewage as wuld nt make material difference (discretinary nature f equitable remedies). - Prescriptin (like adverse pssessin) Lss mdern grant (cmmn law) Easement enjyed fr 20 years (uninterrupted) Gangemi: distinguish between intermissin and interruptin Enjyment as f right Nt exercised by vilence, secretly, stealth r by asking permissin. Asking permissin will amunt t licence Gangemi perated laneway sa ften as chse. Perid where use was reduced classified as having n ccasin t use it. Actual enjyment f right raises inference that right cntinued thrugh intermissin ST acquiesced in exercised f alleged easement Knew (actual r cnstructive knwledge) that DT was exercising right and did nt d anything t stp it. Duty t act diligently in prtectin f interest includes inspectin f prperty frm time t time. Wuld he have btain knwledge f easement upn inspectin? Prescriptin Act After 40 years easement deemed abslute Perid f enjyment must immediately precede cmmencement f actin claiming easement s4; see Gangemi (pleaded in alternative) N interruptin t enjyment UNLESS DT submits/acquiesces in it fr at least 1 year after ntice f the fact f interruptin and persn respnsible fr causing it s4 3. Has it been extinguished? Once easement arises, cntinues in perpetuity until extinguished. - Agreement Bth DT and ST wners sui juris Extinguish/mdify Legal: deed f release Equitable: s4 SF; 33(d) PLA Apply t curt under s129c(1)(b) TLA - Abandnment by Nn-user Questin f intentin f wner f DT Mere nn-user nt enugh! Nt cnclusive evidence f intentin t abandn

21 Lk at length f time f nn-user Partial abandnment k Prprietrs Strata Plan Mere nn-remval f bstructins NOT enugh Treweeke Registered leases Treweeke (NSW) will be abandned if deemed t be s under cmmn law; cf. Riley v Penttila, will remained effective as lng as registered. Suggested that since WA legislatin is equivalent t NSW, Treweeke shuld be fllwed. - Alteratins t DT - Merger Cmmn law: when persn acquires and ccupies bth tenements extinguishes easement Where bth tenements wned by same persn but ne tenement is leased, easement EXTINGUISHED n terminatin f lease Richardsn v Graham Unity f title, but BOTH tenements leased t ONE persn easement suspended (nt extinguished) during term f lease. - Resumptin fr Public Purpses - Order f Curt 129C TLA Als applies t restrictive cvenants BUT: cnservative apprach by curt 4. If nt, interference with easement? - Matter f fact 5. Remedies? - Damages - Injunctin - Abatement D what is reasnably necessary t exercise the right Minimum necessary t put a stp t interference Cannt d anything t put stp t rights f inncent 3 rd party Demlishing requires ntice t be served Cannt demlish if ther lesser alternatives. - Declaratin e.g Gangemi