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

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53 ; re WbodM, 95 ; Buchett v. Emhhe, 168. T. 62-83 ; V. 66-123 ; Z. 131 ;
Q. 61-106.)

74. The registered proprietor of any land in respect of which a power ^^^^f
of attorney has been executed may for the purpose oi revoking such power attomej
execute an instrument in the form L of the Schedule hereto or in any form
heretofore in use for the like purpose and the Eegistrar-General shall except

in any case where a registration abstract is outstanding enter the particulars
thereof in the Eegister Book and record thereon the date and hour in which
such entry was made and shall file the same in his office and after the date
of such entry the Eegistrar- General shall not give effect to any memorandum
of transfer or other instrument executed pursuant to such power of attorney.
(Z. 150; Q. 61, 62, 75, 101, 107, 108 ; S. 155, 156, 157; T. 62-70.)



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24 . NEW SOTJTH WALES EEAL PBOPERTT ACT— No. 1.

PART V.

Vic, No. 18, . ^ ^

B8. 6, 7, 8 75, TTpon the bankruptcy or insolvency of the registered proprietor of

any land estate or interest under the proyisions of this Act the assignees of
Transmifl- ®^^^ bankrupt or insolvent shall be entitled to be registered as proprietors
aionbjbaiik- in respect 01 the same and the^Begistrar-G-eneral upon the receipt of an
Sfo?Tenoy offico copy of the appointment of such assignees accompanied by an applica-
tion in writing under their hand to be so registered in respect to any land
estate or interest of such bankrupt or insolvent therein specified and des-
UpoQ entry cribod shall enter in the Eegister Book upon the folium constituted by the
mOT^^Mrig. S^^* ^^ certificate of title of such land a memorandum notifying the appoint-
nees to be meut of such asslgneos and upon such entry being made such assignees shall
priet^^'**" ^® deemed and taken to be registered proprietors of the estate or interest
of such bankrupt or insolvent in such land and shall hold the same subject
BataoMeot to the equities upon and subject to which the bankrupt or insolvent held the
to equities game but f or the purpose of any dealings with such land estate or interest
under the provisions of this Act such assignees shall be deemed to be absolute
proprietors thereof. (Pannan v. Fannan, 18 ; Kxckham v. The Queen, 47 ; I^eil
V. Lindsay, 94 ; KissUna v. MiteheUon, 123 ; Wtldash v. Huteheson, 132 ; Hall
V. Loder, 158. Z. 19 ; Q. 61-65-86 ; T. 62-66-76 ; V. 66-107 ; S. 171, 71-3-
17.)
Mortgagee 76, TJpon the bankruptcy or insolvency of the registered proprietop of

hoid^Siterest ^T^J Icase subjoct to mortgage under the provisions of this Act the Kegistrar-
of an infloi- General upon the application in writing of the mortgagee accompanied by a
InSJred*L a statemenrTn writing signed by the assignees of such bankrupt or insolvent
l^^**"* °' certifying their refusal to accept such lease shall enter in the Eegister Book
the particulars of such refusal a nd such entry shall operate as a foreclosure
and the interest of the insolvenFin such lease shall thereupon vest in such
mortgagee and if such mortgagee shall neglect or decline' to make such
application as aforesaid the Begistrar-G-eneral upon application by the lessor
and proof of such neglect or refusal and of the matters aforesaid shall enter
in the Eegister Book notice of such neglect or refusal of such assignee to
accept such lease and such entry shall operate as a surrender of such lease.
(Wildash v. Sutcheson, 132 ; Kin^ v. Stuart, 164.)
fomSjfpro? 7^* ^^® Begistrar-Q-eneral upon the production of the register or other
phetorlo be sufficient proof of the marriage of a female registered proprietor of any
S?B^^ land estate or interest under the provisions of this Act accompanied by an
trar-Generai application in Writing signed by such female proprietor to that effect shall
Particulars enter on the Register Book and also upon the certificate of title or other
S^^Btor^ instrument evidencing the title of such female proprietor when produced to
Book and on tim for that purposo the name and description of her husband the date of
mra?o4^' the marriage and where solemnized the day and hour of the production to
denoing tiUe ]^jq^ ^f jjjjg register or other sufficient evidence of such marriage and the
husband of such female proprietor shall unless such land be held for her
separate use be entitled to oe registered as co-proprietor of such land in
right of his wife and the Registrar- General upon application to that effect
and surrender of the existing certificate of title shall comply with such
application. (Aubret/ v. ScoU, 79 ; re Fykett, 171. Z. 165 ; Q. 61-87 ; S.
189, 62-73 ; T. 67-78, 189.)
TransmiK - 78. Whenever any mortgage encumbrance or lease affecting land
p^ OT?^ under the provisions of this Act shall be transmitted in consequence of the
0° iJSjto **' ^'^ ^^ intestacy of the registered proprietor thereof probate or ttn



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NEW SOUTH WALES EEAL PEOPERTT ACT— No. 1. 26

office copy of the will of the deceased proprietor or letters of administration
or the omer of the Supreme Court authorising the Curator of Intestate
Estates to administer the personal estate of the deceased proprietor of such
estate or interest as the case may be accompanied by an application in writing
from the executor administrator or curator claiming to be registered as pro-
prietor in respect of such estate or interest shall be produced to the Eegistrar-
General who shall thereupon enter in the Begister Book and on the lease or
other instrument eyidencmg title to the estate or interest transmitted the
date of the will and of the probate or of the letters of administration or wm or pro.
order of the Supreme Court as aforesaid the date and hour of the pro- J^^of ad-
duction of the same to him the date of the death of such proprietor when miniitntioD
the same can be ascertained with such other particulars as he may deem ooSh t^be
necessary and upon such entry being made the executors or administrators prodaced
or the Chirator of Intestate Estates as the case may be shall be deemed to
be registered proprietors or proprietor of such mortgage encumbrance or
lease and the Kegistrar-Q-eneral shall note the fact of such registration by
memorandum under his hand on the letters of administration probate or other
instrument as aforesaid. (Pannan y. Panncm, 18 ; re Oraig^ 76 ; Finnoran
V. Weir, 136; Campbell v. Jarrett, 142. T. 62-79, 74-10 ; V. 66-105; Q.
61-88.)

79. The heir-at-law devisee tenant by the courtesy or other Heir-at-law
person (a) claiming an estate of freehold in the land of a deceased proprietor 2ii*ap^
may make application in writing to the Eegistrar-G-eneral to be registered toBeg^trar-
as proprietor of such estate and shall deposit with him the certificate of the be^Juftered
death (b) the will or an office copy or probate of the will of the deceased HPr^^^i^'
proprietor or any settlement under which such applicant claims or in the °
case of intestacy such evidence of heirship as he may be enabled to produce ^^q^iJo^^b
and such application shall state the nature of every estate or interest held teo.'e




I applies to be registered
ments made in such application shall be verified by the oath or statutory ^lo^^o^is
declaration of such applicant Provided always that the heir-at-law devisee seo.'V
or other person making such application shall surrender the existing grant
or certificate of title of the land in respect to which he claims to be registered
as proprietor prior to his being entered in the Begister Book as hereinafter
mentioned. {See Sec. 6 Eeal Property Act, 1878, and note to Sec, 14 ante,
and 26 Fie., No. 20. Q. 61-89.)

80. The Ee^strar- General shall refer such application to the ^pj>^<»"o«»
Examiners for examination and report and thereafter shall submit the same tettllto
for the consideration of the Commissioners who may either reject such fn"SJcJJn,
application altogether or direct the Eegistrar-G-eneral to cause notice (a) misaioners
thereof to be published once in the Gazette and three times in at least ^,) See 4i
one daily newspaper published in Sydney and to give such further publicity mo.'s^*'' ^^'
to such application as they may direct whether by advertisement or the Notice
serving or posting of notices and shall limit and appoint a time not less than *Hu*v^
one month from the date of the advertisement m such Gazette upon or after
after which the Eegistrar- General may unless he shall in the interval Applicant
have received a caveat forbidding him so to do register such applicant as JJ^^ed
proprietor of such land by entering in the Register Book the particulars of
the transmission through which such applicant claims and by issuing to Vic, NoAs,
such applicant a certificate of title (h) tor the land so transmitted and ^^' ^



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26 NEW SOXTTH WALES EEAL PEOPBBTT ACT— No. 1.

the Commissioners may direct any caveat to be entered by the Begistrar-

Oeneral for the protection of the interests of such other persons (if any)

Bat to hold ^ J^^J bo interested in such land Froyided always that the person

■'^^yj^J'j registered consequent on such direction of the Commissioners or any

^^ executor or adnunistrator or the Curator of Intestate Estates when

registered in respect of any mortgage encumbrance or lease shall hold

such land estate or interest in trust lor the persons and purposes to which

it is applicable by law but for the purposes of any dealing with such land

estate or interest under the provisions of this Act he shall be deemed to

be absolute proprietor thereof. {Mudgway v. Davy andBmck, 1 ; Barker y.

Weld, 31 ; re Beattie, 58 ; re Woode, 95 ; Buckett v. Enohhe, 168 ; re Sellars,

32. T. 62-81, 89, 122 ; V. 66-53, 54.)

PART VII.

Obkebal PBOVTSIOHrS.

CaT«ftt may 81* Any settlor of land under the provisions of this Act transferring

be lodged ^^^^ ^0^6. to be held by the transferee as trustee or any beneficiary or

other persons claiming estate or interest in such land under any unregistered

(a) See 41 instrument or by devolution in law or otherwise may by caveat (a) in the

W,^No. 18, form M of Schedule hereto forbid the registration of any instrument

affecting such land estate or interest either absolutely or until after notice

of the intended dealing given to the caveator as may be required and

enjoined in such caveat and every such caveat shall state the name and

address of the person by whom or on whose behalf the same is lodged

and shall contain a sufficient description to identify the land and the

estate or interest therein claimed by the caveator or by the person on

whose behalf the caveat is lodged and except in case of caveats lodged by

order of the Supreme Court or by the Eegistrar-Qeneral as hereinbefore

provided shall be signed by the caveator or by his solicitor known agent

or attorney and evenr notice relating to such caveat or to any proceedings

in respect thereof if served at the address mentioned in such caveat or

at the office of the solicitor known agent or attorney who may have

signed the same shall be deemed to be duly served and every such caveat

And mfty be may be withdrawn by the caveator. (Be Carroll, 61 ; ex parte Bennington,

withdnwn Q^ . ^^ Charle9 Williamson, 65 ; re Turner, 66 ; re Rayton ex parte Dibbi,

67; re Davie Jones, 68. Q. 61-98, 77-30; Z. 148; S. 191-11; V.

66-11-6.)

Notice of 82. Upon the receipt of such caveat the Begistrar-G^neral shall notify

^^^^ the same to the person against whose application to bring land under the

provisions of this Act or to be registered as proprietor or as the case may be

to the registered proprietor against whose title to deal with land under the

provisions of this Act such caveat has been lodged and such applicant

pronrietor or registered proprietor may if he think fit summon the caveator

or tne person on whose behalf such caveat has been lodged to attend before

Careatorto the Supreme Court or a Judge thereof to show cause why such caveat should

show caoM ^^^ ^^ removed and it shall be lawful for such Court or Judge upon proof

that such person has been summoned to make such order in the -premises

wheneftTeet either ex parte or otherwise as to such Court or Judge may seem fit. And

to lapse except in the case of a caveat lodged by a settlor or by or on behalf of a

beneficiary claiming under any will or settlement or by the Begistrar-

Gtonend for the protection of incapable persons or for the prevention of



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NEW SOUTH WALES EEAL PEOPEBTT ACT— No. 1. 27

f raad as herembefore prescribed every such caveat lodged against a regis-
tered proprietor shall unless an order to the contrary be made by the
Supreme Court or a Judge thereof be deemed to have lapsed upon the
expiration of fourteen days after notice given to the caveator that such
registered proprietor has applied f er the registration of any transfer or other
dealing with such land estate or interest. (Be GarroU, 61 ; Summers em parte
Aylwin, 62 ; re H. O, Palmer, 71 ; 8addingt<m v. Rackett, 72 ; re Rattray,
73. Z. 143 ; Q. 61-99 ; T. 62, 83 ; Z. 143. 8ee also note to Sec, 23, ante.)

83. So long as any caveat shall remain in force prohibiting the transfer No regjitry
or other dealing with land the Eegistrar- General shall not enter in the SSSfJIue
Begister Book any memorandum of transfer or other instrument purporting o»TMt in
to transfer or otherwise deal with or affect the land estate or interest in ^^'^
respect to which such caveat may be lodged.

84. Any person lodging any caveat with the Eegistrar-General without S®"?*^
reasonable cause shall be liable to make to any person who may havein^oayaat*
sustained damage thereby such compensation as may be just and such com- ^t^o^t^j
pensation ehall be recoverable in an action at law by the person who has mm^
sustained damage from the person who lodged the caveat. {Bonnin and
another Y^Andretos, 86. Z. 182; Q. 61-103; S. 62-85; V. 66-120,144.)

85. The registered proprietor of any land or of any estate or interest ^^^P'jjV*'
in land under the provisions of this Act whether of the nature of real or MSoIjointiy
personal property may by any of the forms of instruments of transfer j^J^JJJ^Ii
provided by this Act modined as maj be necessary transfer such land estate without lim-
or interest or any part thereof to his wife or if such registered proprietor be OT^eoutSg
a married woman it shall be lawful for her to make such transfer to her «»y Mwgn-
husband or it shall be lawful for such registered proprietor to make such °^
transfer to himself jointly with any other person or persons or to create or
execute any powers of appointment or to limit any estates whether by
remainder or otherwise without limiting any use or executing any reassign-
ment but upon the registration of such transfer the said land estate or
interest shall vest in such registered proprietor jointly with any other person

or persons or in the person taking under such limitation or in whose favour
any power may have oeen executed or otherwise according to the intent and
meaning appearing in such instrument and thereby expressed.

86. Two or more persons who may be registered as joint proprietors of EegiBtefed
an estate or interest in land under the provisions of this Act sludl be deemed JJoii to^"'
to be entitled to the same as joint tenants and shall each receive a separate ^^ ^^^
and distinct certificate of such joint estate marked respectively with the common^
name of the owner to whom the same shall be delivered and m all cases 52^1^
where two or more persons are entitled as tenants in common to undivided oertifioatea
shares of or in any land such persons shall also receive separate and distinct
certificates of title or other instrument evidencing title to such undivided
shares. (Q. 40, 61, 92 ; S. 74 ; T. 62, 87, 88, 86-15 ; V. 66-44 ; Z. 64, 62.)

- 87. When any person is registered as joint proprietor with his wife of Begiitration
an estate in fee-simple in right of his wife if such person die in the lifetime 2fj'?i™**'
of his wife and before any transfer of such estate or if such wife die in the pwprieton
lifetime of her husband and the said husband is entitled as tenant by the
courtesy or upon the death of any person registered together with any other
person as joint proprietor of the same estate or interest in any land or when
the life estate in respect to which anjr certificate of title has been issued has
determined and the estate next registered in remainder or reversion has



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Remainder-
man or re-
▼ersioner
may be
registered ac
Buch



Implied
oo\enant8
maj be
modified or
negatiyed



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

become vested in possession or the person to whom such certificate of title
has been issued has become entitled to the said land for an estate in fee-
simple in possession the Eegistrar-General may upon the application of the
person entitled and proof to his satisfaction of any such occurrence as afore-
said register such person as proprietor of such estate or interest in manner
hereinbefore prescribed for the registration of a like estate or interest upon
a transfer or transmission. (JEic parte Locke, 43. S. 188 ; V. 66-44.)

88. Whenever a certificate of title has been issued in respect of a life
estate in any land any person entitled in reversion or remainder to such land
may apply to be registered as so entitled and the Eegistrar-Gkneral shall
cause the title of such applicant to be investigated by the Examiners and
thereafter submit the same for consideration by the Commissioners who
may either reject such application altogether or direct that the applicant be
registered forthwith or be so registered unless caveat be lodged after such
notice or advertisement and within such period as they may appoint and the
Eegistrar-General shall obey such direction or any order oi the Supreme
Court in the premises. (Miller v. Stuart, 172. Z. 18 ; Q. 61-36, 47 ; 8.
188, 4-6 ; T. 62-89, 63-11, 86-16 ; V. 66-54.)

89. Every covenant and power to be implied in any instrument by
virtue of this Act may be negatived or modified by express declaration in
any instrument or endorsed thereon and in any declaration in an action for
a supposed breach of any such covenant the covenant alleged to be broken
may be set forth and it shall be lawful to allege that the party against whom
such action is brought did so covenant precisely in the same manner as if
such covenant had been expressed in words in such memorandum of transfer
or other instrument any law or practice to the contrary notwithstanding and
every such implied covenant shall have the same force and effect and be
enforced in the same manner as if it had been set out at length in such
instrument and where any memorandum of transfer or other instrument in
accordance with the provisions of this Act is executed by more parties than
one such covenants as are by this Act declared to be implied in instruments
of the like nature shall be construed to be several and not to bind the parties
jointly. (T. 61-76 ; S. 262 ; V. 66-104.)

90. The Eegistrar-General may subject to the approval of the
Governor with the advice aforesaid from time to time make such alterations
in the several forms of instruments prescribed in the Schedule hereto as he
may deem requisite and shall cause every such form to be stamped with his
seal and to be supplied at the General Eegistry Office free of charge or at
such moderate prices as he may from time to time fix or may license any
person to print and sell the same. (Barker v. Weld, 31. S. 220-7, 275 ;
T. 62-92 ; V. 66-127 ; Z. 215 ; S. 275.)

Sm!^**' 91. The Eegistrar-General with the consent of the Commiisionera in

oates &0.' case they shall see reasonable cause for so doing may dispense vrith the
prai^^ production of any grant certificate of title lease or other instrument for the
after notice purpose of entering the memorial by this Act required to be entered upon
m^rtaiii ^^^ transfer or other dealing with land under the provisions of this Act and
upon the registration of such transfer or other dealing the Eegistrar-
General shdl notify in the memorial in the Eegister Book that no
entry of such memorial has been made on the dupEcate grant or other
instrument and such transfer or other dealing shall thereupon be as valid
and effectual as if such memorial had been so entered and the Begistrar-



Fonns of in<
stnunents
maybe
altered



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NEW SOUTH WALES EBAL PEOPEETY ACT— No. 1. 29

(General may with the like consent dispense with the production of the grant
or certificate of title hereinbefore required to be surrendered prior to the
registration of a devisee or heir-at-law upon the transmission of an estate of
freehold Proyided alwajrs that before registering such transfer transmission
or other dealing the Kegistrar- General shall in such case require the trans-
feror or other party deeding or deriving to make an affidavit that such grant
OP instrument has not been deposited as security for any loan and shall give
at least fourteen days' notice of his intention to register such dealing in the
Qazeiie and in at least one daily newspaper published in Sydney. {WUkin-
ton V. Brown J 121.)

92. No writ ol fieri facias or other writ of execution issued prior to the 8«ie« by
date of which this Act shall come into operation or thereafter shall bind SSSworSer
charge or affect any land estate or interest under the provisions of this Act ?f ^'®™*
but whenever any land or any estate or interest in land under the provisions

of this Act shall be seized or sold by the Sheriff or the Registrar or Bailiff
of any District Court under any writ or shall be sold under any direction
decree or order of the Supreme Court or District Court or whenever any
order of such Court shall be made authorising the Curator of Intestate
Estates to take the charge of the real estate of a deceased proprietor the
Registrar-General on being served with an office copy of the wnt direction
decree or order as the case may be shall enter in the Kegister Book and also
upon the instrument evidencing title to the said estate or interest if produced
for that purpose the date of the said writ direction decree or order and the
date and hour of the production thereof and after such entry as aforesaid the
Sheriff or person authorised by the Siipreme Court or the Eegistrar or Bailiff
of any District Court shall do such acts and execute such instruments
as under the provisions of this Act may be necessary to transfer or other-
wise to deal vrith the said estate or interest Provided always that unless
and until such entry has been made as aforesaid no such wnt shall bind or
affect any land under the provisions of this Act or any estate or interest
therein nor shall any sale or transfer by the Sheriff Registrar or Bailiff be
valid as against a purchaser or mortgagee notwithstanding such writ may
have been actually in the hands of the Sheriff Registrar or Bailiff at the
time of any purchase or mortgage or notwithstanding such purchaser or
mortgagee may have had actual or constructive notice of the issue of such
writ and upon production to the Registrar-General of sufficient evidence of
the satisfaction of any writ so entered as aforesaid he shall enter in the
Register Book a memorandum to that effect and such writ shall be deemed
to be satisfied accordingly and every such writ shall be deemed to have
lapsed unless the same shall be executed and put in force within three
months from the day on which it was entered in the Register Book as afore-
said, {a) {Rickham v. The Queen, 47 ; re JVm. Wadham, 114 ; Neil v. Adcmi, !ff) s^4i
130; Giles v. Lesser, 160; Hassett v. Colonial Bank, 173; Beath v. Ander- i£:'iS '
9on, 192 ; Bobertsonv, Keith, 195 ; re Benn and Qrice, 200 ; re A. Bosquet^
202. S. 71:2, 106 ; T. 62-94 ; V. 66-106 ; Q. 77-86.)

93. A Corporation for the purpose of transferring or otherwise deal- seai of
ing with land under the prorisions of this Act in lieu of signing the proper ^^'J"^
instrument for such purpose prescribed may affix thereto the common seal forngnatare
of such Corporation with a certificate that such seal was affixed by the proper

officer verified by his signature. (-B. N. 8. W. v. Fahner, 108 ; Kirk-
ham V. Jvlien, 109. Z. 18-166 ; Q. 61-114 ; S. 262-270 ; V. 66, 66-70, 103.)



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80 NEW SOUTH WALES BEAL PEOPEHTT ACT— No. 1.



whom
proved



iiutnimento 94. InBtrumentB executed pursnant to tbe proyisions of this Act if

Mdbefor^ attested by one witness shall be held to be duly attested and the execution



Online LibraryAustraliaThe land transfer laws of Australasia: being the full text with side notes ... → online text (page 12 of 83)