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

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thereof may be proved if the parties executing the same be resident within
the Colony then before the Kegistrar-G^ener^ or before a Notary Public
Justice of the Peace or a Commissioner for taking Affidavits if the said
parties be resident in the United Kingdom then before the Mayor or other
chief officer of any Corporation or before a Notary Public if the said parties
be resident in any British possession then before the Eegistrar-G^nend or
Becorder of Titles of such Possession or before any Judge or Notary Public
or before the Governor Government Besident or Chief Secretary thereof
and if the said parties be resident at any foreign place then before the
British Consular Officer resident at such place. (Guthbertson v. Svnmy 144.
Z. 160, 167-61. Q. 61-116, 77-5 ; T. 86-29 ; V. 66-115, 85-71 )



Mode of

proving

inatramenti



How MS

knowledg-

ment of

mwried

womrato

bet



Upon rar-
render of
exietmg
grants or
certiileatee
proprietor
mMjobUin
• nnffle
certifieetooi



95. The execution of any such instrument may be proved before any
such person as aforesaid by the oath or statutory declaration of the parties
executing the same or of a witness attesting the signing thereof and if
such witoess shall answer in the affirmative each of the questions following
that is to say — ^Are you the witness who attested the signing of this instru-
ment and is the name or mark purporting to be your name or mark as such
attesting witness your own handwriting ? Do [or did] you personally
know the person signing this instrument and whose signature you
attested ? Is the name purporting to be his signature his own handwriting
— is he [or was he when he so executed] of sound mind — and did he freely
aud voluntarily sign the same? Then the Begistrar-Gheneral Justice or
other person before whom such witness shall prove such signature as afore-
said snail endorse upon such instrument a certificate in Form N of the
Schedule hereto and if the person executing such instrument be personally
known to the Begistrar-Ueneral Justice or other person aforesaid and
alive and in the Colony he may attend and appear before such
Begistrar-General Justice or other person and acknowledge that he
did freely and voluntarily sign such instrument and upon such acknow-
ledgement the Begistrar-General Justice or other person shall endorse
on such instrument a certificate in form O of the Schedule hereto provided
that such questions as aforesaid may be varied as circumstances may
require in case any person shall sign such instrument by his mark. {Delaney
V. SandhurH Building Society, 179. Q. 61-116.)

96. The Begistrar-General shall not register any instrument signed by
any married woman purporting to transfer or otherwise to deal with any
land under the provisions of this Act in respect to which she may l>e
registered as proprietor either solely or jointly with her husband in her
right until such married woman shall have been examined apart from her
husband by the Begistrar-General or other person legally authorised to
take the acknowledgments of married women and shall have assented to
such proposed dealing after full explanation of her rights in the land and
of the effect of the proposed dealing and the Begistrar-Genecal or other
persons taking such acknowledgment shall indorse on the instrument of
transfer or other dealing a certificate of such acknowledgment and
examination and the date and hour thereof. {In re Kerr, 6 ; Hall v. JSallf
98. Q. 61-112 ; S. 255 ; V. 66-125.)

97« Upon the application of any registered proprietor of land held
under separate grants or certificates of title or under one grant or certificate
and tiie delivering up of such grant or grants certificate or certificateB of



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NEW SOUTH WALES EBAL PBOPEETT ACT— No.- 1.- 31

title it shall be lawful for the Begistrar-General to issue to such proprietor
a single certificate of title for the whole of such laud or seyeral certificates
each contaiuiug portion of such laud iu accordance with such application
and as far as the same may be done consistently with any regulations at the
time in force respecting the parcels of land that maj be included in one
certificate of title and upon issuing any such certificate of title the Eegistrar-
Qeneral shall cancel the grant or previous certificate of title of such land so
delivered up and shall indorse thereupon a memorandum setting forth the
occasion of such cancellation and referring to the certificate of title so issued.
{Es^parte Bighy, 11. Q. 61-4, 94, 98«4 ; 8. 78 ; T. 62-99 ; Z. 74, 185 ; V.
66-66.)

98. In the event of the grant or certificate of title of land under the ProTidon in

C visions of this Act being lost mislaid or destroyed the proprietor of such ^^f^^
i together with other persons (if any) having knowiedge of the
circumstances may make a declaration before the Eegistrar-General or
before any of the persons hereinbefore appointed as persons before whom
tbe execution of instruments may be proved stating the facts of the case
the names and descriptions of the registered owners and the particulars
of all mortfi^ages incumbrances or other matters affecting such land and
the title thereto to the best of declarant's knowledge and belief and the
Begistrar- General if satisfied as to the truth of such declaration and the
hona fidei of the transaction may with the consent of the Commissioners
issue to such applicant a provisional certificate of title of such land which
provisional certificate shall contain an exact copy of the original grant or
certificate of title bound up in the Eegister Book and of every memorandum
and indorsement thereon aud shall also contain a statement of the circum-
stances under which such provisional certificate is issued and the Eegistrar-
Qeneral shall at the same time enter in the Eegister Book notice of the
issuing of such provisional certificate and the date thereof and the circum-
stances under wnich it was issued and such provisional certificate shall be
available for all purposes and uses for which the grant or certificate of title
so lost or mislaid would have been available and as valid to all intents as
Buch lost grant or certificate Provided always that the Eegistrar-G-eneral
before issuing such provisional certificate shall give at least fourteen days'
notice of his intention so to do in the Gazette and in at least one daily
newspaper published in Sydney. (Z. 47, 76 ; Q. 61-117 ; 8. 79 ; T. 62-100;
V. 66-181, 86-60.)

99. Upon the production of the receipt of the Colonial Treasurer in dmUucs
full for the purchase money of any lands alienated in fee from the Crown JJJ^^;
together with a memorandum of transfer mortgage or lease duly executed to Ui« iisae
by the purchaser from the Crown of such land the Eegistrar- General shall ^f^^""
indorse upon such receipt such memorial as he is hereinbefore required to

enter in tne Eegister Book upon the registration of any dealing of a like
nature with land in respect to which a grant or certificate of title has been
registered and shall sign such indorsement and stamp the same with his
seal and such instrument shall thereupon be held to be duly registered in
accordance vdth the provisions of this Act and the Eegistrar-General shall
file such receipt and such instrument in his office and upon the registration
of the errant of such land the Uegistrar- General shall enter thereon a
memorial of such dealing and shall indorse such instrument with the
certificate of registration as hereinbefore prescribed for the registration of
iustruments generally.



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82 NEW SOUTH WALES EEAL PEOPBBTY ACT— No. 1.

Map of nib- 100. Any proprietor Bubdiyiding any land under the provisions of

diTidadiADd ^y^ j^^ f^^ ^^^ Durpose of Selling the same in allotments as a township

shall deposit with the Eegistrar-G^eneral a map of such township provided

that sucn map shall exhibit distinctly delineated all roads streets passages

thoroughfares squares or reserves appropriated or set apart for public use

and also all allotments into which the said land may be divided marked with

distinct numbers or symbols and every such map shall be certified as

Snrreyorsto accurato by declaration of a licensed surveyor before the Eegistrar- Gl^eneral

beiioeosed Qp a Justice of the Peace Provided that no person shall 1^ permitted to

practise as a surveyor under the provisions of this Act unless specially

licensed for that purpose by the Surveyor-General. (Q. 61-118, 119; S.

100, 243, 220-8; T. 62-103, 104. ; V. 66-134, 85-5.)

g^gT'- lOL The Begistrar-General may require the proprietor applying to

reqaire m^ havo any land brought imder the provisions of this Act or desiring to
JJ^J^ transfer or otherwise to deal with the same or any portion thereof to deposit at
the Begistry Office a map or plan of such land certified by a licensed
surveyor in manner aforesaid ana if the said land or the portion thereof
proposed to be transferred or dealt with shall be of less area than one
statute acre then such map or plan shall be on a scale not less than one
inch to two chains and if sucn land or the portion thereof about to be
transferred or dealt with shall be of greater area than one statute acre but
not exceeding five statute acres then such map shall be upon a scale not less
than one inch to five chains and if such land or the portion thereof as
aforesaid shall be of greater area than five statute acres but not exceeding
eighty statute acres then such map or plan shall be upon a scale of not less
than one inch to ten chains and if such land or ttie portion thereof as
aforesaid shall be of greater area than eighty statute acres then such map or
plan shall be upon a scale of one inch to twenty chains and if such
proprietor shall neglect or refuse to comply with such requirement it shall
not be incumbent on the Begistrar-General to proceed with the bringing of
such land under the provisions of this Act or with the registration of such
transfer or lease Provided always that subsequent subdivisions of the same
land may be delineated on the map or plan of the same so deposited if such
map be upon a sufficient scale in accordance with the provisions, herein
contained and the correctness of the delineation of each such subdivision
shall be acknowledged in manner prescribed for the case of the deposit of an
original map. {See note Sec, 100, ante.)

certiii©d 102. The Kegistrar- General upon payment of the fee specified in the

furaSh^^ Schedule P hereto shall furnish to any person applying for the same a

gjf**^" certified copy of any registered instrument affecting land under the

an?S*be provisions of this Act and every such certified copy signed by him and

eridenoe gcaled with his seal shall be received in evidence in any Court of Justice or

before any person having by law or by consent of parties authority to

receive evidence as prima facie proof of all the matters contained or

recited in or indorsed on the original instrument. (Z. 39 ; T. 62-105 ; V.

66-141; Q. 61-121.)

B«tfoh«i 103. Any person may upon payment of a fee specified in Schedule P

hereto have access to the Register Book for the purpose of inspection
during the hours and upon the days appointed for search. (Q. 77-50, 78-4 ;
S. 65 ; V. 66-141.)



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KEW SOUTH WALES EEAL PEOPBRTT ACf— No. 1. 38

104. The Begistrar-G^eneral shall not receiye any application for Anthoritjio
bringing land under the provisions of this Act or any instrument purporting "«*^'

to deal with or affect any land under the proyisions of this Act unless there
shall he endorsed thereon a certificate that the same is correct for the
purposes of this Act signed by the applicant or party claiming under or in
respect of such instrument or by his solicitor and any person who shall falsely
or negligently certify to the correctness of any sucn application or other
instnunent shall incur therefore a penalty not exceeding fifty pounds
Profided always that such penalty shall not prevent the person who may peiwit^ for
have sustained any damage or loss in consequence of eror or mistake in a^y JJJJj^^'
such certified instrument or any duplicate tnereof from recovering damages iattmmeote
agamst the person who shall have certified the same. {Sharpe v. Hadley,
3 ; Ashhy V. (hok, 187. Q. 61-189 ; S. 282, 278 ; T. 62-107.)

105. It shall be lawful for the Eegistrar-General to recover such fees f6m
u shall be appointed by the Governor with the advice aforesaid not

m any case exceeding the several fees specified in the Schedule hereto
marked P.

106. The Segistrar-General shall keep a correct account of all such Begistnr.
sums of money as shall be received by him in accordance with the provisions ™5J^^
of this Act and shall pay the same to the Colonial Treasurer at such times toto Ttm-
and shall render accounts of the same to such persons and in such manner ^^ ^
as may be directed in any regulations that may for that purpose be •««>'»*•
prescribed by the Governor with the advice aforesaid and the Begistrar-
G^eral shall address to the said Treasurer requisitions to pay moneys
received by him or by the said Treasurer in trust or otherwise on account

of absent mortgagees or other persons entitled in accordance with the
provisions of this Act which requisitions when proved and audited in
manner directed by any such regulations framed as aforesaid at the time
being in force in the said Colony and accompanied by warrant for payment p«rtie8
of the same under the hand af the Governor countersigned by the Chief JJ*jJ|jj^
Secretary thereof the said Treasurer shall be bound to obey and all fines TreMorOT
and fees received under the provisions of this Act except fees payable to the JSSLST'^
Commissioners for the bringing of land under the operation of this Act shall
be carried by the said Treasurer to account of the Consolidated Bevenue
Fund. (Q. 61-141 ; T. 62-109 ; S. 28 ; V. 66-142.)

PABT VII.

Bights Bemedies aitd Fbocedueb.

107. If upon the application of any proprietor to have land brought JjJ*PJjj^
under the provisions of this Act or to have any dealing or transmission mon h^-
registered or recorded or to have any certificate of title registration abstract Jj*;^^®'**
foreclosure order or other instrument issued or to have any act or duty o»»^.*^ ,
done or performed which by this Act is prescribed to be done or perform^ ^»»^"*^
by the Begistrar-G^neral the Begistrar-Goneral shall refuse so to do or if

such proprietor shidl be dissatisfied with the direction upon his application
given by the Commissioners as hereinbefore provided it shall be lawful for
such proprietor to require the Begistrar-General to set forth in writing
under his hand the grounds of his refusal or the grounds upon which such
direction was given and such proprietor may if he think fit at his own cost
nunmon the Begistrar-General to appear before the Supreme Court to



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84 NEW SOUTH WALES EEAL PBOPBETT ACT— No. 1.



Bubstantiate and uphold the grounds of his refusal or of such direction as
aforesaid such summons to be issued under the hand of a Judge of the said
Court and served upon the Eegistrar- General six clear days at least before
the day appointed for hearing the complaint of such proprietor and upon
such hearing the Kegistrar-General or his counsel shall have the right
of reply and the said Court shall if any question of fact be
involved direct an issue to be tried to decide such fact and the
said Court shall thereupon make such order in the premises as
in their judgment the circumstances of the case may require and the
Begistrar-General shall obey such order and all expenses attendant upon
any such proceedings shall be borne and paid by the applicant or other
person preferring such complaint unless the Judge or Court shall certify
that there were no probable grounds for such refusal or direction as afore-
said, (a) {ES'parte Bouman, 2. Z. 82 ; S. 152.)



(a) See 41
Vic., No. 18,
see. 10



Begistrar*

Oenoralmftj ^ . .

state a case Commissioners



108* It shall be lawful for the Begistrar-General by direction of the
missioners whenever any question shall arise with regard to the per-
CoiS?^'^* formance of any duties or the exercise of any of the functions by this Act
conferred or imposed upon him or them to state a case for the opinion of
the Supreme Court and thereupon it shall be lawful for the said Court to
give its judgment thereon and such judgment shall be binding upon the
Kegistrar-G^eneral and Commissioners respectively.



Registrar-
General to
carry oat
order of
Supreme
Court yeet-
ing trust
estate



109. Whenever any person interested in land under the provisions
of this Act shall appear in tne Supreme Court to be a trustee of such land
within the intent and meaning oi any Trustee Act then in force in the
Colony aud any order shall be made in the premises by the Court or a Judge
thereof the Eegistrar-Q^neral on being served with an office copy of such
order shall enter in the Eegister Book and on the grant or other instrument
evidencing title to the said land the date of the said order the date and hour
of its production to him and the name residence and description of the
person in whom the said order shall purport to vest the said land and such
person shall thereupon be deemed to be the registered proprietor of such
land and unless and until such entry shall be made the said order shall hare
no effect or operation in transferring or otherwise vesting the said land. (S.
184; V. 69-12 ; Q. 61-82 ; T. 62-86.)



Action may
be brought
bv person
claiming
beneficiary
interest in
name of
trustee



Trustee to
be indemni-
fled



110. Whenever a person entitled to or interested in land as a trustee
would be entitled under the last preceding clause to bring or defend any
action of ejectment in his own name for recovering the possession of land
under the provisions of this Act such person shall be bound to allow his
name to be used as a plaintiff or defendant in such action of ejectment by
any beneficiary or person claiming an estate or interest in the said land
Provided nevertheless that the person entitled or interested as such trustee
shall in every such case be entitled to be indemnified in like manner as a
trustee would before the passing of this Act have been entitled to be
indemnified in a similar case of his name being used in any such action or
proceeding by his cestui que trust. (Oakden v. G^bs, 7 ; Oriffin v. Dutm^
8 ; Louch v. Ball, 9 ; Fotheringham v. Archer^ 10 ; ^Uusk v. Downton^ 11 ;
National Bank v. National Mortgage Co ,12 \ re Beattie, 63 ; St, Qeorge v.
Barnett, 67 ; Dalbrdyhill v. Dalbrdyhill, 83 ; MiUer v. Stewart, 172. Q.
61.84 J S. 185; T. 62-113; Z. 128.)



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NEW SOUTH WALES EEAL PBOPERTT ACT— No. 1. 35

111. Except in the case of fraud no person contracting or dealing Pnrohaser
with or taking or proposing to take a transfer from the registered proprietor ^5 p!^'"
of any registered estate or interest shall be required or in any manner pnetor not
concerned to inquire or ascertain the circumstances in or the consideration %eXid by
for which such registered owner or any previous registered owner of the ^^^^
estate or interest in question is or was registered or to see to the applica-
tion of the purchase money or of any part thereof or shall be affected by

notice direct or constructive of any trust or unregistered interest any rule
of law or equity to the contrary notwithstanding and the knowledge that
any such trust or unregistered interest is in existence shall not of itself be
imputed as fraud. (T. 62-114.)

112. In any suit for specific performance brought by a registered fiegiitered
proprietor of any land under the provisions of this Act against a person sSm^fo?'
who may have contracted to purchase such land not having notice of any "peciflo pcr-
fraud or other circumstances which according to the provisions of this Act *'"°*"*^
would affect the right of the vendor the certificate of title of such registered
proprietor shall be held in every Court of law or equity to be conclusive
evidence that such registered proprietor has a good and valid title to the

land and for the estate or interest therein mentioned or described and shall
entitle such registered proprietor to a decree for the specific performance
of such contract. (Thompson v. Chipps, 27 ; Oeorge v. Australian Mutual
Provident^ 56 ; Van Damme v. Bloxam, 105 ; Ashhy v. Cook, 137 ; Ettershanh
V. The Queen, 153 ; Butler v. Saddle Hill Mining Oompany 163 ; Colechin v.
Wade, 203. Q. 61-96 ; T. 62-115 ; V. 66-48.)

113. When default has been made in the payment of the interest or Mortgagee
principal Bum secured by memorandum of moffcgage for six months a n/^JtL-
registered mortgagee or his solicitor attorney or agent may make applica- ^n^^S^^^fJ,.
tion in writing to the Eegistrar- General for an order for foreclosure and foreclosure
such application shall state that such default has been made as aforesaid and

that the land estate or interest mortgaged has been offered for sale at
public auction by a licensed auctioneer after notice given to the mortgagor
as in this Act provided and that the amount of the highest bid at such sale
was not sufficient to satisfy the money secured by such mortgage together
with the expenses occasioned by such sale and that notice in writing of tho
intention of such mortgagee to make such application has been given to the
mortgagor by leaving the same at his ususd or last known place of abode
if such place be within three miles of the residence of such mortgagee
or by forwarding the same by registered letter through the post office if
such place be beyond that distance and such application shall be accom-
panied by a certificate of the auctioneer by whom such land was put up
tor sale and such other proof of the matters' stated by the applicant as
the Registrar-General may require and the statements made in such
application shall be verified by the oath or statutory declaration of the
applicant or other person applying on his behalf. {8ee note to Sec. 58, ante.
Z. 97 ; Q. 61-61 ; T. 62-52, 121.)

114. The Eegistrar- General shall refer such application to the Com- Application
missionera who may direct the Eegistrar- General to cause notice to be ©ff^*S!^®
published once in the Gazette and once in each of three successive

weeks in at least one daily newspaper published in Sydney offering such
land for sale and shall further limit and appoint a time not less than one
month from the date of the publication in the Gazette upon or after
which the Begistrar-Gtoneral may issue to such applicant an order for



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86 NEW SOUTH WALES EBAL PEOPBBTT ACT— No. 1,



Begistered

proprietor

protected

againit

egeotment

except in

oertainoMes



In cue of

Sjeotment of
efendant
who haa
madeim-
proTements
their value
maybe
asfessed



And plaintiff
shall either
paj for
improTo-
ments or be
restricted to
damages for
the loss of
the unim-
proved land



f oreoloBore unless in the interval a sufficient amount has been realised by
the sale of such land to satisfy the principal and interest moneys due and
all expenses occasioned by such sale and proceedings and every such order
for foreclosure under the hand of the Begistrar-G-eneral and entered in the
Begister Book shall have the effect of Testing in the mortgagee all the
estate and interest of the mortgagor in the land mentioned in such order f r^e
/ from all right and equity of redemptio n on the part of the mortgagor or of
' any person claiming t^fdugb or under him. {See note to Sec, 58, ante, Cfrey
V. Wadson, 152. S. 140.)

115. No action of ejectment or other action for the recovery of any
land shall lie or be sustained against the person registered as proprietor
thereof under the provisions of tlus Act except in any of the following cas^
that is to say — (1) The case of a mortgagee as against a mortgagor in
default. (Z. 189, 190 ; S. 154, 167 ; V. 66, 88, 146 ; T. 62-126.) (2) The
case of an encumbrancee as against an encumbrancer in default. (3.) The
case of a lessor as against a lessee in default. (4.) The case of a person
deprived of any land by fraud as against the person registered as proprietor
of such land through fraud or as against a person deriving otherwise than
as a transferee bona fide for value from or through a person so registered
through fraud. (5) The case of a person deprived of or claiming any land
included in any grant or certificate of title of other land by misdescrip-



Online LibraryAustraliaThe land transfer laws of Australasia: being the full text with side notes ... → online text (page 13 of 83)