W1L1 What is examined in the mid-term is also examinable in the final. Lectures are recorded Three of four things that are relevant from IPCL to this

Transcription

1 W1L1 What is examined in the mid-term is als examinable in the final. Lectures are recrded Three f fur things that are relevant frm IPCL t this unit: The dctrine f tenure: under the English system f land law, land ultimately fundamentally wned by the land dctrine f tenure was that wners nly held estates in land, held indirectly r directly frm the Crwn. At varius stages in Aus legal histry, the applicability f the dctrine f tenure was challenged and it was always reaffirmed- Mab held that t late t sya tenure des nt exist in Aus. The Crwn wns all land in NSW and has granted ut freehld estates t varius peple.! In Mab, hwever, the HC distinguished between t the dctrine f tenure in English and Aus cntexts-- - in England, all land in England vested bneemfically in William the Cnquerer- all existing prperty rights f angl-saxn lrds were extinguished, and then re-granted by William the cnquerer. In Aus, Crwn acquired radical title, but did nt autmatically acquire beneficial title. This meant that native title culd survive--- big difference between England and Aus. Dctrine f estates: because Crwn wns land, a persn can nly hld a paritcularl interests in the land, nt the land itself, and that interest is called the estate--- allwed the land t be enjyed in successin--- thers having estates fllwing death f current hlder f the fee simple fr eg. Successive interests: present and future interests, in the same land eg life esttae with X hlding remainder. wner really nly hlds estate in the land Types f estate: largest is the fee simple interest- an estate that asts frever. Wll nly end when the current hlder dies withut a will and withut leaving next f kin in a sufficient degree f prximity- then the land will g back t the crwn, but therwise will last frever.! Anther is the life estate, where estate lasts fr the duratin f the measuring life! Des nt exist anymre in NSW: the fee-tail- descended t heirs f the grantee f a particular type eg female children f the riginal grantee, n lnger exists in NSW because f ss 19, 19A Cnveyancing Act. S nly fee simple and life estate in NSW. Requirements that exist fr the creatin f valid interests in land (prprietary interest).! Essential/substantive requiremenets Requires us t ask a questin: what packafe f rights has the grantr intended t create in apakcage f land? There are nly a limited categry f prprietary interests that can be created. David King v Allen- putting up advertising ntice n isde f building- that did nt fit in with any f the recgnised prprietary nights, and s it was persnal- a clsed number f types f prprietary rights. Fee simple: has the grantr intended t vest in the grantee a right f exclusive pssessin frever. If s, then substantive requirements fr fee simple met Has the grantr intended t vest in the grantee a right f exclusdive pssessin fr the duratin f smene s lifetime Intendd t vest right f exclusuive pssessin fr certain perid f time? Then have a lease. If yu say I grant a lease but dn t intend t grant exclusive pssessin, then it is nt a lease. Or if right f exclusive pssessin fr uncertain term, then that cannt be a lease either. S need t examine what package f rights intended t be vested in the grantee, nt s much the legal label used. If intend t grant rights that dn t amnt t right f exclusive pssessin- maybe an easement, but that wuld need t cmply with a certain package f rights, viz, intend t benefit r accmmdate land that grantee wns and gve grantee right t use grantr s land r t restrain use f grantr s land, then that is an easement. S will always have t cnsider whether the substantive requirements fr a particular intrest has been created.! Frmal requirements Has the grantr manifested the necessary intentin in the required frm? Has a particular dc been used (eg ld system land" deed). Legal interest in trrens title land" registratin f required dcuments. Additinally, may be necessary t lk at the frm f wrds used in the dcument- particular requirements f frm may need t be satisfied. Cncept f wrds f purchase and wrds f limitatin. In rder t create estate under general law, had t yse apprpriate wrds f limitatin if yu wanted t grant t A a fee simple estate, had t say t A and his heirs - nt enugh t say t A in fee simple f t A frever. t A are the wrds f purchase, and his heirs are the wrds f limitatin. Anther eg: t C fr life, t C being the wrds f purchase and fr life ebing the wrds f limitatin. At cmmn law, if n wrds f limitatin were used, then the grantee gt a life estate. This has been changed by s 47 Cnveyancing Act NSW- makes it easy t create fee simplecan use wrds fee simple r in fee, and if yu use wrds that wuld have histricaly created fee tail nw create fee simple (since impssible t create tail in NSW). Mrever, 47(2) says that if yu dn t use any wrds f limitatin, default estate is fee simple (nt life state as at cmmn law). [fr wills, beneficiary is deemd t get whle estate f testatr unless cntrary intentin appears Successin Act s 28]! Law/equity distinctin 1

2 ! Need t distinguish between legal and equitable interests in land fr the purpse f pririties.! A histrical questin- prir t the merging f curts f law and curts f equity with the judicature system, whetehr an interest is elga r equitable depends n which curt histrically recgnised the interest. Nw is is primarily whether cmplies with elgal requirements fr creatin f interest r nt.! Hw des the subatantive/frmal distinctive map against legal/equitable distinctin? Usually legal/euitable will relate t matters f frm--- mst interests can exist either in law r equity and the frm requirements will determine whether they are legal r equity. Can have legal fee simple and equitable fee simple etc. nly restrictive cvenants are nly equitable invented by the curts f equity nly type f interest in land that desn t exist in law and eqity bth. General law pririty rules.! Gvern when interests are incnsistent! When cmmn grantr: makes grant t A and incnsisten grant t B. pririty cntest ebtwen A and B. lks at rder f creatin f interest, whether lega r equitable, whetehr value was given, whether there was ntice.! Defective chain f title: A t B, B t C, but transfer frm A t B was defective (frged, prcured by fraud etc) but fr sme reasn that transfer is vid r can be set aside. Priity cntest between A and C.! Pririty rules we need t knw abput: three surces. 1) general law pririty rules, develpped largely independent f sttaute- when lega, equitable r mere equity is imprtant. 2) statutpry verlays f these rules--- neither cmpletely displaces these rules. Old system land registratin scheme s 184G Cnveyancing Act- this relates nly t ld system land. We cver this tday and in tut next week. 3) Ss 41-43A Real Prperty Act- Trrens Title system- imprtantly amends general law pririty rules. F interplay between general alw and statute.! Hierarchy f interests: 1) legal 2) equitable 3) mere equity. Prir legal v later legal---- nem dat, cant gve what yu dn t have. There is anther view that in certain circustamcs there are exceptins t this even in this cntext---- because a prir legal can smetimes lse t later eequitable, then it seems that in sme cases prir legal must in sme cases be deferred t later legal (ne cannt be in better psitin fr having later equitable interest rather than later legal interest) Prir legal v later equitable- PL can lse when PL guilty f fraud r has made the cmmn grantr an agent and they act within scipe pf authrity in granting LE, r when hlder f PL fails t get in the title deeds. Mst pririty cntests in this cntext will invlve trrens title land, and that is where ur real fcus is, and rare fr it t invlve PL v LE. PE v LL: PE will lse t LL if the hlder f the LL takes bna fide fr value and withut ntice f the PE interest. PE v LE: equity lks fr the meritrius interest, the better equity, and if the equtiies are equal it favurs the first interest. i..e the PE prevails unless hlder f PE is guilty f sme pstpning cnduct. PME v LE/LL- bfpfvwn succeeds.! PE v LL is the mst imprtant. Mst be bf (withut fraud) Fr value (includes prmise t marry) Withut ntice: actual, cntructive (wuld have had actual ntice if they had made reasnable inquiries) r imputed (actual r cnstructive tice that agent has and is imputed t yu). S 164 Cnveyancing Act- (1)(a) deals with actual r cnstructive ntice f purchaser. In (1)(b) impued ntice can nly arise when lnwledge arises in the same transactintherwise cannt be imputed t yu. Cnstructive ntice lks at tw things: searches f registers and inspectin f land. Old system- search f title deeds back t a gd rt f title at least 30years ld (s 53 Cnveyancing Act). Trrens: search the trrens register. Need t sinepct land t see whetehr evidnec f anyne being in pssessin f the land [rule in Hunt v Luck]. Cnstructive ntice is nt relevant t PL v LL LL will nt will simply because they lacked ntice. Cncept f csntrucige ntice v imprtant fr trrens title, especially re nt lging a caveat. Wilkes v Spner! PE v LL--- if PE lses t LL because LL taken bfpfvwn, the prtectin which applies t hlder f later legal interest can be taken advantage f by any subsequent hlder f the legal interest. If B tranfers legal interest t C, C will take free f A s interest even thugh C is a vlunteer, and even if C had ntice f the earlier equitable interest. Wilkes v Spner dnctrine allws prtectin t be affrded t subnsequent hlders f the elgal interest. Tw mst imprtant are PE v LL, and PE v LE S 184G Cnveyancing Act- registratin f deeds system Scheme fr registering dcuments which create interest in ld system land, and where a dcument is s registered it may displace the general law pririty rules, and if s then have regard t s 184G. because ef the uncertainty f the general law pririty rules and hw yu might be bund by interest f which yu have n 2

3 ntice, a registratin f deed system was prduced t give greater degree f certainty t pruchasers f land. When yu have an interest which creates na interest in ld system ladn, if that interest was executed and made bna fide, fr value, and registered under this scheme r registratin f deeds Act, the registratin means that pririty is given nt accrding t rder in which interest were created but accrding t date f registratin f the isntruments. A has n natural pririty ver B simply because A was created first. First registered has pririty. This scheme was intrduced t prtect purchasers frm prir legal interests f which they had n ntice. The gd rt f title cncept gave additinal prtectin- nly had t g back t gd rt f titlethat was ver 30 years ld. Under the general law, there was a measure f prtectin prvided against prir eqitable interest. But nt re prir legal. Vulnerability t prir legal that led t the creatin f this scheme. What can be registered under s 184G? the relavent nes are dcuments whhc create interests in ld system landif dc des nt create interest in ld system ladn, will nt get pririty under this scheme. Des nt need t be by deed. Any written insitrument can be registered. Effect f registratin is t give the hlder f registered interest pririty ver any later registered interest r ver any unregistered interest which culd be registered ut hasn t been, prvided that the interest was taken bna fide fr value. S 184G nly gives pririty advantages- it des nt validate an therwise inalid instrument if instrument was feged, registering it desn t help. If instrument culd be set aside nteh absis f fraud, this can still be dne. The legal/equty distinctin is nt imprtant fr s 184G- Mnking Gee v Tahs [can access n e-learning]! bna fide has an expansive meaning in s 184G- wideer thn general law r ttrrens regime. Bna fide extends t the presence f absence f ntice- des nt merely mean in gd faith, but it means withut ntice 9actual, cnstructive r imputed). Must als give valuable cnsideratin.! The relavnt time fr assessing the rpesenc f absence f ntice (within meaning f bna fide in s 184G) is the time the interest was taken, nt the time that it was registered [Mnking Gee v Tahs]. Often prmpted t register by discvering earlier interest. value extends t unexecuted cnsideratin (i.e. nly needs t be prmised, nt paid [Mnking Gee]. Shuld a vlunteer register, given that can t take diect advantage because nt fr value--- yes, gives cnstructive ntice t anyne taking later ntice- measn later interest cannt take adavtange f s 184G. S 184G applies whreer inccnsitent interests r incnsistent grants f same parcel f land--- but curts have given wide interpretatin f when incncsitent: assume O hlds FS in parcel A, B and C f land. O cnveys A t X, cnveys lands t which I am entitled t Y. Y registeres her cnveyance, but X des nt register his. Wh is entitled t A? One view: parcel A has gne t X,a dn eberything else t Y. but in Byce v Beckham, held that, in giving meaning t wrds such as lands t which I am entitled, curt is t cnstrue it as if cnveyance had nt eben made. When Y registers first, feeds wnership f land back t O be cnveyed t Y. Y is entitled t pririt rpvided Y gave value fr cnveyance and that Y was withut ntice f cnveyance t X. S lands t which I am entitled is scntrued t encmpass land such as parcel A that was given t X. There still is an imprtant palce fr the general law pririty rules. If cmpeting interests are bth unregistered, the s 184G is irrelevant and have t apply general law pririty rules. If ne f the interests is nt registerable, then als have t apply general law pririty rules. When might we nt be able t register an interest in ld system land? When the interest has been created rallyneeds t be interest in an instrument.! In what crcusmtances can an interest be created rally? Oral cntracts will be enfrceable where there are sufficient acts f part perfrmance. Equitable interest arises ut f sufficient acts f part perfrmance. Instrument unregisterable. And in nay cntest, general law pririty rules will apply. Mnking Gee v Tahs Realtes t s 184G (actually deals with s 12 Registratin f Deeds Act- same shit). 13/11/58 wner f land cntracted t sell ladnt t X. cntract nt cmpelted. X has gven value in frm f unexecuted cnsideratin. 11/2/59, O cntracts t sell same parcel f land t Y. 18/2/59, X gains ntice f secnd cntract, but des nt knw wh the purchaser is under the cntract. 6/3/59, cntract between O and Y is cmpleted. Deed f cnveyance executed, Y paid purchase price. At that stage, X knws smene else is in pssessin--- s X decided t register incmpleted cntract. Abut that time, X discvers identity f Y. Y then registers his cnveyance frm the wner. The curt cnludes that X had pririty- registered first, registered cntract, which was made bna fide, X did nt have ntice f nay interest f Y, and X had given value. X maes ut all requirements under the sectin. Did nt matter that:! X had equitable as ppsed t legal interest--- it just came within the statury regime! X had ntice frm time she registered- did nt at time f cntract! Whether X had prvided executed r unexecuted cnsideratin- X had primise t buy, that was cnsieeratin that wuld supprt X s cnsideratin under the cntract. The prmise t payt he purchase mney was sufficient t engage the peratin f the sectin. W1L2 Last time- lked at general law pririty rules and s 184G Cnveyancing Act- allw registratin fr prirty prupses f instruments creating interests in ld system lands. TACKING tabula in naufragi - means plank in a shipwreck. Will revisit ths when we d mrtgages in mre detail. But this relates t the general law pririty rules. In this situatin, O grants legal interest t A and a secnd equitable interest t B and 3

4 then anther equitable interest t C. three mrtagees. Wh gets first claim t prceeds f sale? A- PL, s unles they are guilty f sme kind f fraud, EL has pririty ver LE. Wh next? Then B- earlier equitable interest, and under general alw pririty rules earlier equitable interest has pririty unless guilty in pstping cnduct that is engaged in cduct that has mislead C int thinking B s interest desn t exist. S C will miss ut. One ptin fr C thugh is t rely n the frm f tacking: tabula in naufragi. Drwning equitable mrtgagee wants t grba fr safety n the plank f the elgal estate. Get C acquriignt he elgal estate frm A, therefre springbarding C in frnt f B in terms f pririty--- C pays A t buy ut the legal mrtgage, C then has a alegal interest, t which he r she can tack the amunt wing under their equitable mrtage. Tacking allws C t buy ut A s equitable mrtagge gets subsumed int legal mrtage. Size f mrtgaeg then becmes A + C. can nly apply when C acquires elgal estate bna fide fr value withut ntice--- but the timing f when ntice is present r absent is different- if C acquires equitable interest withut nntice f B s prir equitable interest, then C discvers this, C can acquire the legal estate and still be bfpfvwn- s the timing f ntice is crucial- if C has ntice f B s interest when C tk equitable interest, then cannt takc because had ntice- but if did nt have ntice at the time tk eqtuiable interest, then C can tack even if had since fund ut abut B s equitable interest. In thery B culd d the same thing t ensure C desn t get it. S this si tacking equitable mrtgage ntlegal mrtgage t secure the glbal sum, the ttal sum. Plicy reasn- designed t ebenfit mrtgagees wh btained legal interest ver thse yu dn t. Nt clear that it is justifiable. Can t tack when tacking wuld be in breach- when acquisitin f legal estate wuld be in breach f trust, and it is unclear abut the reach f the xceptin. Mumfrd v Sthwasser wener grants equitable interest t A and retains the legal interest- n ne view, wber then hlds land n trust fr A, even if A ahs taken interest such as a lease. Unclear if this in fact a trust because A des nt have equitable fee simple, but can be viewed as a trust- wner then grants equitable interest t B. What happens if B is withut ntice, later discvers it and then cnvinces the wner t transfer the legal estate--- held here that this is tacking in breach f trust, B cannt springbard ver A by gaining the legal estate frm O wh was the persn wh granted the equitable interest away in the first place. Really needs t be situatin where getting legal interest frm A- frm mrtagee, nt frm the riginal wner. Nt many cases n tacking. TORRENS TITLE Elements and indefeasibility Old system v trrens title re philspy, admisniteratin and legal cnsequences. Philsphy Old system title is based upn the ntin f registratin f title- s 184G- the registratin fr pririty purpses f a pre-existing title. In ld system, validity f transfer is based upn smene wh has a gd interest in land passing that t smene else- dg title is derivative, relies n being passed n A t B t C t D. registratin prtects r advances the pstiin f the persn wh has registered. Relies upn a gd title that exists prir t registratin. Trrens invlves title by registratin- the registratin itself creates title in the land- the act f registratin creates the right, nt any antecedent transactin betweent he parties. Trrens said t embrace the mirrr, curtain and insurance principles. mirrr principels is that the register perfectly mirrrs the state ft he title- if it is n the register, yur interest exist, if nt, interest desn t exist. Nt cmpletely true (can have unregistered interests), but, what fllws frm that is that yu nly eed t lk at the register- the curtain principle- dn t need t lk beynd the curtain arund the register, makes search much easier t undertake and nt subject t the vagaries f ld system title. Because register is everything, smene may be taken ff the register dishnestly fraudulently, and then allws bfpfvwn t register and get title. This brings in insurance principle- state needs t cmpensate peple wh have lst interest in land because f fraud and egistratin. Administratin Old system- dealings rerded in general register. Dealings with particular parcel f land aren t aggregated in a single particular place, but rather scattered thrughut the register. This may cnsist f thusands f bks, each ne cntaining lts f dealings. Eg bk 1, number 1, may invlve transfer f fee simple in land in camperdwn frm A t B. bk 1, number 2 may invlve dealing in taree. Etc. dealings with particular parcel yu are interested in are scattered thrughut register- very ahrd t wrk way thrugh rgister. N single place yu can lk t find ut what title t ld system land is. The ther thing t nte abut ld system register is the vast array f sintrumens and what they lk like- n unifrm standard f dealing fr ld system land- just type up dcument and it can be registered- dealing lk very different in ld system land. Trrens register v different. Much mre regulated, mre unifrm, and all inf regarding particular parcel f land is aggregated in the ne spt- the fli fr that parcel f land. S 31B RPA states that each parcel f land has a fli, dealings (transfers, leases, mrtgages, discharge f mrtages, easements etc which affect land), and the register can be kept in varius mediums capable f having infrmatin recrded. The fli f the register is the central dcument. Each parcel has its wn fli. If a fli has been issued fr the land under the RPA, then the land is under trrens title. Fli describes the land, usually by reference t lt in aparticular plan number. Says wh the prprietr f the land is (persn wh hlds fee simple) and includes aprticulars f estates and interest affecting the land eg easement, restrictive cveneant, mrtgage, lease etc all appear n the ne dcument, the 4

5 fli f the register, s it is very easy t get nline and d a quick search as t wh wn the land and what intersts burden it. Old system- dealing were whatever gt typed up- with trrens, regulatin made pursuant t RPA say that dealing msut be in particular frm- lease, surrender f lease, mrtgage, discharge f mrtagge, transfer etc all have unifrm frms dealing need t be in apprved frm, in registerable frm (signed in blue r black ink, inf inside relvant bxes etc). trrens system much mre highly regulated and unifrm than ld system register. Dealings when ldged are given distinctive reference number in trrens. Eg T45678 and can then g back and search fr the particular transfer dc r mrtgage etc t find ut what terms are- prmtes ease f searching. Dealing will nly be registered in mst cases where registrar general has authrity t use CT. gives sme frm f prtectin t LO bfpfvwn needs CT t register, s need t keep CT secure. When dealings are registered, given pririty accrding t date f registratin and date f dealing. Whever registered first get pririty s 36(9). When registerd, has effect f a deed s 36(11) s 23 summin says RPA des nt apply t ld system, but nce registered has effect f deed. S 41- dealing nt effective befre registered, in law r equity. There are exceptins t this exceptns als t indefeasibility when registered. CT (s 33): v imprtant in Trrens system. Duplicates what is n the fli, and is held by the wner f the land. If the wner f the land mrtgages, the mrtgagee wuld want CT t be handed ver. CT must be issued if requested by registered prprietr r registered mrtgagee f the land. Duplicate what is n fli- each time upated, CT cancelled and new ne issued reflecting what is n the fli. Rgistrar General (RG) invariable desn t register dealing withut the CT. S imprtant dcs fr trrens are fli, CT (which duplicates fli), and the dealing itself (which is the medium thrugh which trrens title transactins are cmpleted). Legal cnsequences Knw s 184G cvneyancing act states that registereing in accrdinacne with that prvisin will give pririty advantages ver peple wh register later r nt at all, but registering under s184g will nt cure defects in the title- title is subject t attack. Trrens, register fr bth validity and pririty, act f registratin itself vests and divests title- gives pririty advantages. Legal cncept f indefeasible title. Trrens based n the idea that mre efficient t cmpensate victims f fraud than attempt t eliminate fraud- sme safeguards, but insurance principle Indefeasibility f title What des this cncept mean? There are exceptins t indefeasibility- even thugh yu are n egister, des nt mean yu take freef all unregistered interests- still subject t sme. Frazer v Walker: ne f the tw leading cases that establish indefeasibility f title in Aus. This is Privvy Cuncil decisin. Land wned by mr and mrs W. Mrs w waned t brrw mney, arranged lan frm lender, granted lender mrtgage withut telling mr w. mrs F signed mrtgage and frged husband s name n mrtgage. Mrs F failed t keep up mrtgage payments, mrtgagee sld land t purchaser, nne knew abut frgery, Mr F realised been chucked ut f hand, tried t et land back n basis that mrtgage was invlaid because eh ehadn t signed it. He failed, Mrs F went t jail. In curse f judgment, Privvy puncil defined indefeasibility f title: nt used in the act itself, but the descriptin is descriptin f immunity f attack by adverse claims. Unimpeachable, except where the act r general law perates t the cntrary. Desn t mean that the registered prprietr is prtected frm claims in persnam (interest yu created persnally). Other than in persnam, and express statutry exceptins, egistered prprietr takes free frm any interests which are nt n the register. This si s even if the instrument is vid fr sme reasn. If vid, registered prprietr has interest in the land. If frged rvid fr ather reasn eg crp utside stat authrity- if registered still have interest. Breskvar v Wall- leading HC case n indefeasibilty f title. B wanted t brrw mney, went t P, P lent mney, but instead f granting P mrtgage he executed transfer in balnk, uncnditinal transfer f fee simple, signed, with name f purchaser in blank. Under QLd leg, such a transactin was vid. Withut B defaulting, P entered W s name, used CT he had t get W registered W is registered, but aprty t fraud- B culd get title back. But then W granted unregistered interest t A. Des B get back n register free frm interest f A, which is unregistered. Lked at this in IPCL in cntxt f PE v LE- B lst because pstpning cnduct. In this cnduct- lking at what interest W has--- he is registered prprietr, but ther thrugh fraud. Argued tht W has nthing he can give t A. HC rejected this- Barwick talsk abut cncept f immediate indefeasibility f title attaching t blah. While persn is n the register, he has title, even if he can be subsequently remved. While W is n fli f register, W is wner f land. Refers t certificiate - that was hw the fli as referred t, and duplicate certificate was the CT. s in ld case reference t CT is the fli. Barwick states that nt a system f registratin f title, but rather a system f title by registratin. Fli describes title hlder- frged instrument can pass gd title, r instrument that is vid by statute can als pass gd title. Menzies states same shit. While n register, have aninterest that can be given t smene else. Walsh J pints ut that W was nt apersn wh had nthing- n registere by wn fraud, but did nt ean that he had nthing- culd have granted interest t A. cannt be said that nthing has passed t W. S if n register, yu have title that is immune frm attack unless excpetin applies. But if yu are n register, can pass n interest even if yur title is defeasible. 5

6 indefeasibility is nt actually used- it is a glss placed upn varius prvisins f the act which re designed t entrench and prtect the psitin f a persn hlding a registered interest- it is nt simply the wner f land wh acquires registered interest- can be lease, mrtagee etc. that statement needs t be qualified fr restrictive cvenants. Leading prvisin is s 42(1)- the paramuntcy prvisin. It says that if yu have registered estate r interest, then yu take free frm any unregistered interest ver the land, even thugh under the general law yu wuld have been subject t it. Nt except in the case f fraud - first f the exceptins. Of curse subject t ther interests recrded in the register. But take it free frm estates and interest which aren t recrded. Tw prmary dmesnins t indefeasibility f title:! validatin f defective instruments- if instrument is vid r vidable, if it is registered the defect is cured (unless exceptin applies eg fraud).! Registered interests dn t lse ut in pririty cntests t unregistered interests under the genral law pririty rules, even when taken with ntice s 43. Eg A grants unregistered lease t B. B ges int pssessin f land. C purchases land rm A knwing f lease (ntice r cnstrucige ntice). C gets registered. C can then kick B ff land- ntice is nt fraud, and the fact that under general law pririty laws wuld be bund be PE interest f B because C had ntice, desn t matter. Nte exceptins that we examine later. S key prvisin is s 42(1). S 43- smetimes knwn as the ntice privisin- if yu are n the register, dn t have had t have made nay inurieis as t the state f title f yur predecessr. On the register is all that matters. Nr are yu affected by ntice (cntructive r direct) f a trust r unregistered interest. Because ntice des nt cnstitute fraud [s 43(1)]. Ntice cmbined with smething else, such as prmise t be bund by an interest, can cnstitue fraud, but mere ntice des nt. S 45- the prtectin p[rvisin- nthing in this act is t be cnstrued as t deprive any purchaser r mrtgagee bf,fv, yu have title which is free frm attack unless as act therwise applies. This sectin requires the giving f value, but s 42 des nt. S 45(2) says that preedings fr the recvery f land r damages des nt lie against bf,fvwn, even thugh there has been fraud in that transactin r a previus ne. S 118- if registered prprietr, cannt be deprived f pssessin except in certain circusmtances like defaulting n unregistered mrtage, r if yu default n terms f lease as registered lessr. S 42 is the mst imprtant, and maybe s 43. Differeing cnceptin sf indefeasibility Current view is immediate indefeasibility. Prir there had been thery f deferred indefeasibility- meaning that if yu gt n register thrugh frged instrument, yu did nt get unimpeachable title, but culd hand that n. Eg x, O, has signature frged n transfer by third party, and Y becmes registered. Y has n ntice. Y transfers land t Z, wh is als withut ntice f initial fraud. Under immediate defeasibility, Y gets unimpeachable title (n register withut fraud- under s 42- held t be the case in Frazer and breskvar). Under deferred indefeasibility [Gibbs v Messer], Y wuld n get indefeasibility, nly Z des. Because Y gt n thrugh frged instrument. Argument fr this came frm giving emphasis t s 43 rather than s 42. S 43 prtects a persn wh take s atransfer frm the registered prprietr. S 43 read as saying nly get prectin if dealt with registered prprietr- int his case, Y has dealt with rgue, nt the registered prprietr. Frazer v Walker says n- if yu get n register withut fraud yur title is unimpeachable. Nt that Frazer culd have been decided n the basis f deferred indefeasibility Frazer did nt need t endrse immediate indefeasibility, but the curt expressly adpted immediate indefeasibility. Prbs dn t even need t mentin deferred indefeasibility in exam. NSW especially quite clear that immediate indefeasibility applies. Breskvar says that even if Y was guilty ffraud, they still have a title that they culd pass t Z t get registered. Cnsider dealing affected trrens land- in crrect frm, registered- grantee has indefeasiility f title. Prprietary interest is nt subject t any attack. Dcument that is registered might be a lng dcument des indefeasibility attach t every clause f the dcument? N, nly attahces t the prprietary interest, any persnal bligatins d nt attract indefeasibility f title. Where d we draw the line? This is cnsidered Butt 20.22, and start in PT v Maradna Giles J- registratin des nt validaite all terms- nly thse that delimit r qualify the estate r interest r are therwise necessary t assure that estate r interest t the registered prprietr. Leases: which clauses f the dcument cme under the indefeasibility umbrella? Karacminaks- lease which was registered, but vid n the absis that unauthrised alteratins ahd been made after blah. Slcitrs acted hneslty, but in such a way that may have made the lease vid at CL. Lease was vregistered, validated. Which cvenants were rptected? The vcventnat t pa rent was- necessary t assure lessr s estate- that is central bligatin, prtected by indefeasibility. This lease had the payment f rent guaranteed by a third party. Lessee was private cmpany,a nd directrs gave persnal guarantee f cmpany s bligatins. They had signed the lease, this was registered. Was the guarantee given by the lessee s guarnatrs indefeasible? N- it was separate t the leasehld interest, nt part and parcel f leashld interst. What abut ptin t renew lease? It si a new term, a different interest t he riginal leasehld term. If the lease is vid, registratin f the lease will validate the lease, but will it validate the ptin. Nt clear what the answer is. In Travint, there was a lease registered but the ptin was illegal by statute. Curt said ptin wasn t prtected in that case. Incnsistely,HC later held in Shell, that where lease was valid, and ptin was valid and registered, then priity extended t the ptin. The mrtgagee had t sell subject t the lease, becaue the ptin 6