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The land transfer laws of Australasia: being the full text with side notes ... online

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grant certificate of title or other instrument so registered as seized of or ^^J^^ *'
taking any estate or interest shall be deemed to be the registered proprietor proprietor
thereof. {Mudgioay v. Day and Buick, 1 ; Pannan v. Fannan^ 16 ;
Barker y. Weld, 31 ; re Beattie, 53 ; re Woods, 96 ; Hall y. Loder, 158a ;
Bucket y. Xnohbe, 168 ; Jones y. Jones, 134 ; Mnnoran y. Weir, 136 ;
JBCasseU y. Colonial Bank, 138. Z. 82 ; Q. 61-84, 85 ; S. 8, 50, 68 ; T.
62-34; V. 66-41, 42.)

35. Except as is hereinafter otherwise proyided eyery^ grant or other £^J^"^
instrument presented for registration shall be in duplicate and shall dapUoTte
unless a Crown grant be attested by a witness and shall be registered in the

order of time in which the same is produced for that purpose and
instruments registered in respect to or affecting the same estate or iQstmmonu
interest shall notwithstanding any express implied or constructive notice «"|^^*^ ^
be entitled in priority the one over the other according to the date of SwirdLg
registration and not according to the date of each instrument i^elf and JJ^J^^^^
the Begistrar-General upon registration thereof shall file one original in
his office and shall deliver the other to the person entitled thereto and
so soon as registered every invtrument drawn in any of the several forms And when
provided in the Schedule hereto or in any form which for the same purpose b?d^^*^
may be authorised in conformity with tne provisions of this Act snail for gj^jjj* "*
the purposes of this Act be deemed and taken to be embodied in tbe Bo^l^d to
Eegister Book as part and parcel thereof and such instrument when so JjJJt^f^
constructively embodied and stamped with the seal of the Begistrar-General deed
shall have the effect of a deed duly executed by the parties signing the
same. {Mudgway v. Day and Buich, 1 ; Sharpe v. Hadley, 8 ; ex parte
Baynes, 82 ; Fatchell v. Maunsell, 118 ; Wilkinson v. Broum, 121 ;
Kissling v. Mitchelson, 128 ; Wildash v. Hutchinson, 182 ; ex parte
Hassell, 177. Z. 33 ; 8. 56, 58 ; T. 62-36 ; V. 66-37. See also 86 Vic.,
No. 7, sec, 2.)

36. In every instrument creating or transferring any estate or interest oenerai

in land under the provisions of this Act there shall bo implied the following SSto^^diS
covenant by the party creating or transferring such estate or interest that instnimente
is to say that he will do such acts and execute such instruments as in
accordance with the proyisions of this Act may be necessary to give effect
to all covenants conditions and purposes expressly set forth in such
instrument or by this Act declared to be implied against such party in
instruments of a like nature.

37. Every memorial entered in the Eegister Book shall state the Hemorki
nature of the instrument to which it relates the day and hour of the ^«^®^
production of such instrument for registration the names of the parties
thereto and shall refer by number or symbol to such instrument and shall

be signed by the Eegistrar-General. (Z. 34; S. 51; T. 62-37; V. 80,

^■^•) Hemorial to

88. Whenever a memorial of any instrument has been entered in the on'd^ifcl^
Eegister Book the Eegistrar-Oeneral shall except in the case of transfer gJ^rSitru-
or other dealing indorsed upon any grant certificate or other instrument menta



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12 NEW SOUTH WALES BEAL PEOPBBTT ACT— No. 1.

as hereinafter proyided record the like memorial on the duplicate ffXBxA

certificate or other instrument evidencing title to the estate or interest

intended to be dealt with or in any way affected unless the Begistrar-

G-eneral shall as hereinafter proyided dispense with the production of

the same and the Begistrar-General shall indorse on eyery instrument

so registered a certificate of the date and hour on which the said memorial

waa entered in the Begister Book and shall authenticate each such

. certificate by signing his name and affixing his seal thereto and such

re^S^Mon^ Certificate shall be receiyed in all Courts of kw and equity as conclusiye

^^!^ evidence that such instrument has been duly registered. (Aubrey y. Sootf^

e denee ^^ ^ Monqahahia y. New Zealand Timber Ckmpany.lQO, Q. 61-45; S. 63;

T. 62-38 ; V. 66-41.)

iofl^^ 39. No instrument until registered in manner hereinbefore prescribed
aniUentryiii shall be effectual to pass any estate or interest in any land under the
1^^^ provisions of this Act or to render such land liable as security for the
payment of money but upon the registration of any instrument in manner
hereinbefore prescribed the estate or interest specified in such instrument
shall pass or as the case may be the land shall become liable as security in
manner and subject to the coyenants conditions and contingencies set
forth and specified in such instrument or by this Act declared to be
implied in instrument of a like nature and should two or more instruments
executed by the same proprietor and purporting to transfer or encumber
the same estate or interest in any land be at the same time presented to the
Begistrar-G-eneral for registration and indorsement he shall register and
indorse that instrument under which the person claims propeily who shall
present to him the grant or certificate of title of such land for that purpose.
(Outhbertsan y. Stoann, 144.)

Eitoteof 40. Notwithstanding the existence in any other person of any estate

proS^rietor or interest whether derived by grant from the Crown or otherwise which

paramount |)ut for this Act might be held to be paramount or to have priority (a) the

(a) See 41 registered proprietor of laud or of any estate or interest in land under the

MO.' if ^' ^^' pi'ovisions of this Act shall except in case of fraud hold the same subject to

such encumbrances liens estates or interests as may be notified on the

folium of the Begister Book constituted by the grant or certificate of title

of such land but absolutely free from all other incumbrances liens estates or

interests whatsoever except the estate or interest of a proprietor claiming

the same land under a prior certificate of title or under a prior grant

registered under the provisions of this Act and except as regards the

omission or misdescription of any right-of-way or other easement created in

or existing upon any land and except so far as regards any portion of land

that may by vnrong description of parcels or of boundaries be included in the

grant certificate of title lease or other instrument evidencing the title of

such registered proprietor not being a purchaser or mortgagee thereof for

yaiue or deriying from or through a purchaser or mortgagee thereof for

yalue. (Z. 65 ; Q. 61-44 ; T. 62-40 ; V. 66-49.)

not^Jbf*** ^1* -^^ Begistrar-General shall not register any instrument purporting

ragister^ to transfer or otherwise to deal with or affect any estate or interest in
J^^J^ land under the provisions of this Act except in the manner herein provided
with nor unless such instrument be in accordance with the provisions hereof.



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NEW SOUTH WALES EEAL PEOPBETT ACT— No. 1. 18

PAET IV.

Dealings.

42. When land under the provisions of this Act or any estate or TmMrer
interest in such land is intended to be transferred or any right-of-way or
other easement is intended to be created or transferred tne registered
proprietor may execute a memorandum of transfer in form D or E of the
Schedule hereto which memorandiim shall for description of the land
intended to be dealt with refer to the grant or certificate of title of such land
or shall giye such description as may be sufiScient to identify the same and
shall contain an accurate statement of the estate interest or easement
intended to be transferred or created and a memorandum of all leases
mortgages and other incumbrances to which the same may be subject and
such memorandum of transfer if it purports to deal with an estate in respect
to which a certificate of title is by this Act authorised to be issued or if it be
endorsed on the instrument evidencing the title of the transferor need not
be in duplicate (a). (Ashhi^ v. Oook, 137 ; Raatet v. Oolonial Bank, 138 ; ^^^^^7
Bail^ v. Okrisp, 54 ; JSa parte Finlay, 55 ; D'Albrdyhill v. Albrdyhill, 82 ; re a«c.' a ' '
Wm. Wadham, 114 ; Kelly v. Fuller, 139 ; Falmer v. Andrew*, 146,147;
Ibrtnby v. Adelaide Corporation, 199 ; Anderson v. Maori EUl Boro\ 105, 124.
Z. 46, 76 ; T. 62-42, 80-11, 137 ; V. 66-57 ; Q. 61-48, S. 96.)



43. Whenever any easement or incorporealrightother than an annuity or i
rent charge in or over any land under the provisions of this Act is created ^^ila^''
for the purpose of being 'annexed to or used and enjoyed together with other '^^Jf.J^
land unaer the provisions of this Act the Begistrar- General shall enter a '•*"**'^
memorial of the instrument creating such easement or incorporeal right

upon the folium of the Begister Book constituted by the existing grant or
certificate of title of such other land. {Be Turner, 66 ; es parte Pennington,
64. Z. 61 ; Q. 61-51, 77-28, 85-9 ; S. 81 ; T. 62-43 ; V. 85-40.)

44. If the memorandum of transfer purports to transfer an estate of g^t»^oJ
freehold in possession in the whole or m part of the land mentioned in tnnsferred
any grant or certificate of title the transferor shall deliver up the grant or ^^Jj^a ^
certificate of title of the said land and the Begistrar-G-eneral shall after deUrered up
registering the transfer enter on such crant or certificate of title a memo- ^^^m fw
randum cancelling the same either wnolly or partially according as the •> '?g|^
memorandum of transfer purports to transfer the whole or part only of the ^Muferred
land mentioned in such Rrant or certificate of title and setting forth the par-
ticulars of the transfer (6). (Be Beattie, 53 ; Bi^y* v. Waterhouse, 58 ; re ^}^%^j
Wm. Biggi, 59 ; ex parte Biyhy, 77. Z. 78, 78; Q. 61-49, 77-28 ; S. i^li '
61-69 ; T. 62-138, 44 ; V. 66-62.)

45- The Begistrar-General upon cancelling any grant or certificate of Fnah^^-
title either wholly or partially pursuant to any such transfer shall make out iH^ed to
to tiie transferee a certificate ot title to the land mentioned in such memo- pn«*»w
randum of transfer and every such certificate of title shall refer to the
original grant of such land and to the memorandum or other instrument of a oertifloate
transfer and the Begistrar-G^neral shall retain every such memorandum of JS,JJJg^
transfer and cancell^ or partially cancelled grant or certificate of title and portion to b«
whenever required thereto by the proprietor of an unsold portion or balance ^J^^itor
of land included in any such partially cancelled grant or certificate of title or JLjS Sjjj.
by a registeied transferee of such portion or of any part thereof shall make r



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14 NBW SOUTH WALES EEAL PBOPEBTT ACT— No. 1.

out to Buch proprietor or transferee a certificate of title for such portion or
Wc^No^?, ^^^ *^y P^ thereof of which he is the proprietor or transieree. (a)
•ec'si ' ' (EBotherMtone t. Manlon, 4; ea parte Bowan, 13. Q. 61-50, 94, 180, 77-117 ;

T. 62-45 ; V. 66-48.)

TTMufewe 4g. In every instrument transferring an estate or interest in land

jeot to mort. Under the proyisions of this Act subject to mortgage or incumbrance there

e^bnuS' *^*^^ ^® implied the following coyenant by the transferee that is to say that

to indemniiy such transferee will pay the interest or annuity or rent charge secui^ by

tnnaferor g^^,jj mortgage or incumbrance after the rate and at the times specified in

the instrument creating the same and will indemnify and keep harmless ihe

transferor from and against the principal sum secured by such instrument

and from and against all liability in respect of any of the coyenants therein

contained or by this Act implied on the part of the transferor. (Q. 60-68 ;

T. 62-46 ; V. 66-68 ; S. 97.)

Transfer of 47. Upon the registration of any transfer the estate or interest of the

ui?o?ra. transferpr as set fori^h in such instrument with all rights powers and
a^ofiMMM pri^^^g®^ thereto belonging or appertaining shall pass to the truisf eree and
such transferee shall thereupon become subject to and liable for all and
eyery the same requirements and liabilities to which he would haye been
subject and liable if named in such instrument originally as mortgagee
encumbrancee or lessee of such land estate or interest, {i. 82 ; Q. 61-65 ;
S. 162 ; T. 62-68, 64.)

TnuiBferof 48. By virtuo of eyery such transfer the right to sue upon any memo-

jS22uJn^' randum of mortgage or other instrument and to recoyer any debt sum of
few right to money annuity or damages thereunder (notwithstanding the same may be

deemed or held to constitute a chose in action) and all interest in any such

debt sum of money annuity or damages shall be transferred so as to yest tha
SsTinff to same at law as weu as in eijuily in the transferee thereof : Proyided always
Bq^M to *!*** nothing herein contained shall preyent a Court of Equity from giying
*ro«u effect to any trusts affecting the said debt sum of money annuity or damages

in case the transferee shall hold the same as a trustee tor any other person.

(Saundert y. Oabot, 16 ; St. Qeorge y. Burnett, 67 ; Miller y. Stewart^ 172,

176. Q. 61-66 J Z. 63.)

5J?^^^ 49. When any land under the proyisions of this Act is intended to be
•imiB^f tius leased or demised for a life or liyes or for any term of years exceeding three
^**""**°^ years the proprietor shall execute a memorandum of lease in form E of the
Schedule nereto and eyery such instrument shall for description of the
land intended to be dealt with refer to the grant or certificate of title of the
land or shall epye such other description as may be necessary to identify such
land and a rignt for or coyenant by the lessee to purchase the land therein
described may be stipulated in such instrument and in case the lessee shall
pay the purchase money stipulated and otherwise obserye the coyenants
expressed and implied in such instrument the lessor shall be bound to execute
a memorandum of transfer to such lessee of the said land and the fee-simple
thereof and to perform all necessary acts by this Act prescribed for the
purpose of transferring to a purchaser the said land and the fee-simple
thereof. Proyided always that no lease of mortgaged or encumbered land
shall be yalid and binding against the mortgagee or encumbrancee unless such
mortgagee or encumbrancee shall haye consented to such lease prior to the
same being registered. (Q. 61-62 ; T. 62-47 ; Y. 66-76.)



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NEW SOUTH WALES EEAL PEOPEBTT ACT— No. 1. 16

50« WheneTor any lease ordenuse which is required to be registered bj LeAMw^
iihe provisions of this Act is intended to be surrendered and the surrender S^jyS?"
thereof is effected otherwise than through the operation of a surrender in indorsement
law or than under the proTisions of any law at the time being; in force in ^^^.
the Colony relating to insolvent estates there shall be endorsed upon such oarrenoeof
lease or on the counterpart thereof the word " Surrendered " with the date *"^'
of such surrender and such endorsement shall be signed by the lessee and
by the lessor as evidence of the acceptance thereof and sliall be attested by
a witoess and the Eegistrar-G-eneral thereupon shall enter in the Begister
Book a memorandum recording the date of such surrender and shall likewise
endorse upon the lease a memorandum recording the fact of such entry
having been made in the Begister Book and upon such entry having been so
made in the Begister Book the estate or interest of the lessee in such land
shall revest in the lessor or in the person in whom having regard to
intervening circumstances (if any) the said land would have vested if no
such lease had ever been executed and production of such lease or counter-
part bearing such endorsement and memorandum shall be sufficient
evidence that such lease had been so surrendered Provided that no lease
subject to mortgage or incumbrance shall be so surrendered without the
couBont of the mortgagee or incumbrancee. (l^enton v. Bichardton, 125.
Z. 89 ; Q. 61-54 ; S. 92, 120; T. 62-48 ; V. 66-82.)

51. In every memorandum of lease there shall be implied the following 0oT€Mnteto
covenants against the lessee that is to say: — to irery*^

(i) That he will pay the rent thereby reserved at the times therein Jj^'fJJ^'***
mentioned ana all rates and taxes which may be payable in ^
respect to the demised property during the continuance of the
lease,
(n) That he will at all times during the continuance of the said lease
keep and at the determination thereof yield up the demised
property in good and tenantable repair accidents and damage from
fire storm and tempest and reasonable wear and tear excepted.
{Sharpe v. Radley, 8 ; BucJcnall v. Beidy 145 ; ex parte Folk, 170 ;
in re James, 193. Z. 91, 92, 166 ; Q. 61-75, 70, 71, 88-28 ; S. 124,
125i., 180, 152 ; T. 62-49, 68-11, 50, 86-88, 74, 88 ; V. 66-76.)
52* In every memorandum of lease there shall be also implied the Powentob«
following powers in the lessor that is to say: — ^S?*"*

(i) That he may by himself or his agents twice in every year during
the term at a reasonable time of the day upon giving to the lessee
two days previous notice enter upon the demised property and
view the state of repair thereof and ma^ serve upon the lessee
or leave at his last or usual place of abode m this Colony or upon
the demised property a notice in writing of any defect requiring
him within a reasonable time to be therein prescribed to repair the
same. {Bucknall v. Beid, 145.)
(n) That in case the rent or any part thereof shall be in arrear for the
space of six calendar months or in case default shall be made in
the fulfilment of anv covenant whether expressed or implied in such
lease on the part of the lessee and shall be continued for the space
of six calendar months or in case the repairs required by such
notice as aforesaid shall not have been completed within the time
therein specified it shall be lawful for such lessor to re-enter upon
and take possession of such demised premises. {BucJcnall v. Meid^
145.)



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16 NEW SOUTH WALES EEAL PEOPEETT ACT— No. 1.

Bagirtnr- 53. In any snch case the fiegistrar-G^neral upon proof to his satisf ac-

SSpStten- *^^^ ®f lawful re-entry and recovery of nosBession by a lessor shall note the

Ian of re. eamo bv entry in the Kegister Boos and the estate of the lessee in such land

Ste7Bo^' shall thereupon determine but without releasing him from his liabUity in

respect of the breach of any covenant in such lease expressed or implied

and the Eegistrar- General shall cancel such lease if delivered up to him for

that purpose. (Q. 61, 72.)

ttS AcU?*' 54. Whenever any land or estate or interest in land under the
inortg»ged^ provisions of this Act is intended to be charged or made security in favour
oinmomn- q£ ^^^j mortgagee the mortgagor shall execute a memorandum of mortgage
in form Gt of the Schedule hereto and whenever any such laud estate or
interest is intended to be charged with or made securitr for the pajment of
an annuity rent charge or sum of money in favour of any encumbrancee
the encumbrancer shall execute a memorandum of encumbrance in
form H of the Schedule hereto and every such instrument shall contain an
accurate statement of the estate or interest intended to be mortgaged or
encumbered and shall for description of the land intended to be dealt with
refer to the grant or certificate of title of the land in which such estate or
interest is held or shall give such other description as may be necessary to
identify such land together with a statement of all mort^ges and other in-
cumbrances affecting the same (if any). (Q. 61-56; T. 62-52.)

Mortcftge or 55, Mortgage and encumbrance under this Act shall have effect as

bmoe not Bocurity but shall uot Operate as a transfer of the land thereby charged and

tnSf«**" in case default be made in the payment of the principal sum interest annuity

Procedure Or rent charge or an v part thereof thereby secured or m the observance of any

3^232**' covenant expressed in any memorandum of mortgage or encumbrance

registered under this Act or that is hereinafter declared to be implied in

such instrument and such default be continued for the space of one

calendar month or for such other period of time as may therein for that

purpose be expressly limited the mortgagee or incumbrancee may give to

the mortgagor or encumbrancer notice in writing to pa;p^ the money then

due or owing on such memorandum of mortgage or of incumbrance or to

observe the covenants therein expressed or implied as the case may be and

that sale will be effected unless such default be remedied or may leave such

notice on the mortgaged or encumbered laiid or at the usual or last known

place of abode in the Colony of the mortgagor or encumbrancer or other

person claiming to be then entitled to the said land or with his known agent.

(Bank of New South JPalesY. Fahner, 108 ; Manning v. Oroisman, 128. T.

74-10; V. 66-105.)

Power toteD 56. After such default in payment or in observance of covenants
continuing for the further space of one calendar month from the service of
such notice or for such other period as may in such instrument be for that
purpose limited such mortgagee or encumbrancee is hereby authorised and
empowered to sell the land so mortgaged or encumbered or any part thereof
ana all the estate and interest therein of the mortgagor or encumbrancer
and either aJto^ther or in lots by public auction or by private contract or
both such modes of sale and subject to such conditions as he may think
fit and to buy in and resell the same without being liable for any loss
occasioned thereby and to make and execute all such instruments as shall be
necessary for effecting the sale thereof all which sales contracts matters and
things hereby authorised shall be as valid and effectual as if the mor^;agor
or encumbrancer had made done or executed the same and the receipt or



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NEW SOUTH WALES SEAL PBOPEETT ACT— No. 1. 17

receipts in writing of the mortgag;ee or incumbrancee shall be a sufficient
discharge to the purchaser of such land estate or interest or of any portion
thereof for so much of his purchase money as may be thereby expressed to
be received and no such purchaser shall be answerable for the loss misappli-
cation or non-application or be obliged to see to the application of the
purchase money by him paid nor shall he be concerned to inauire as to the
tact of any default or notice having been made or c^iven as aforesaid and the
purchase money to arise from the sale of any such land estate or interest Appropri*.
shall bo applied first in payment of the expenses occasioned by such sale ^^^^^'
secondly in payment of the moneys which may then be due or owing to the
mortgagee or encumbrancee thirdly in payment of subsequent mortgages or
encumbrances (if any) in the order of their priority and the surplus (if any) *
sball be paid to the mortgagor or encumbrancer as the case may be. (Burne
V. Sfetoare, 28 ; Buehett v. Knobbe, 167 ; Bosm v. Victorian Permanent Bldg,
Society, 180 ; Boberf^on v. Keith, 195. S. 188, 185 ; T. 62-54 ; V. 66, 186,
85,44; Z. 98, 99; Q. 61-57, 58, 77-20.)

57« Upon proof to his satisfaction by statutory declaration that such segirtrar.
default has Deen made and continues as aforesaid the Begistrar-General ^^^^i^to
shall register any memorandum or instrument of transfer executed by a Maebymort-
mortgagee or encumbrancee for the purpose of such sale as aforesaid and S^ruoeo
upon such registration the estate or interest of the mortgagor or encum-
brancer as therein described to be conveyed shall pass to and vest in the
purchaser freed and discharged from iJl liability on account of such mortgage
or encumbrance or of any mortgage or encumbrance registered subsequent
thereto and if such memorandum of transfer purports to pass an estate of
freehold in possession not being a life leasehold the purchaser shall be
entitled to receive a certificate of title for the same. {Buc/cett v. Knobbe, 167 ;
Boa V. Victorian Bldg. Society, 180 ; Bobertson v. KeUh, 195. Q. 61-58.)

58, The mortgagee or encumbrancee upon de&ult in payment of the in cms of
principal sum or any part thereof or of any interest annuity or rent chai|;e ^^^^^



secured by any mortgage or encumbrance may enter into possession of the ^ <>'
mortgaged or encumbered land by receiving the rents and profits thereof or Hed^^nt o



Online LibraryAustraliaThe land transfer laws of Australasia: being the full text with side notes ... → online text (page 10 of 83)