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

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tion of such other land or of its boundaries as against the registered
proprietor of such other land not being a transferee thereof hona fide for
value. (6) The case of a registered proprietor claiming under the instru-
ment of title prior in date of registration under the provisions of this Act in
any case in which two or more grants or two or more certificates of title or a
grant and a certificate of title may be registered under provisions of this Act
in respect to the same land. (T. 62-124 ; Y. 66-138.) And in any case
other than as aforesaid the production of the registered grant certificate of
title or lease shall be held in every Court of law or equity to be an absolute
bar and estoppel to any such action against the person named in such
instrument as seised of or as registered proprietor or lessee of the land
therein described any rule of law or equity to the contrary notwithstanding.
{re Thompsons, Ohipps, 26,70. S. 173-3 ; T. 62-124.)

116. Whenever an action shall be brought against a registered pro-
prietor or person holding a grant or certificate of title in either of the last
two cases excepted in the next preceding section if the defendant or any
person through whom he claims shall have made improvements on the land
since obtaining a certificate of title thereto then whether he admit or deny
the plaintiff's title he may plead the fact of such improvements being made
and may set a value thereon and also on the land as distinct therefrom and
give evidence thereof at the trial and if a verdict be found for the plaintiff
or his title be admitted the jury shall assess the value of the alleged improve-
ments and shall also separately assess the value which the land would have
possessed if the said improvements had not been made And no writ of
possession shall issue in such case unless the plaintiff shall first pay into
Court for the use of the defendant the value of the improvements so assessed
deducting only the costs (if any) to which he shall be entitled in the action
And if the plaintiff shall fail to make such payment within three montiiia
after verdict the judgment to which he is entitled shall thereafter be
limited to the sum separately assessed as the value of the land together with
costs of suit And the defendant shall upon satisfaction thereof be entitled



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3S:BW south WALES EBAL PBOPBBTT ACT— No. 1. 87

to retain the land and improyementB and in either case the Begistrar-
G^eral shall be entitled- under the power hereinafter conferred of cancel-
ing erroneous certificates to be required to be delivered up any certificate of
title which shall be held by the party whose right to the land shall have
determined Provided that in every case in which the defendant shall be Q^J^MUto
entitled to indemnity from the assurance fund the Registrar- General shall be mMie oo-
be made a co-def endiant as trustee of such fund and may defend the action ^^^o*^*
either severally or jointly or may leave the defence wholly to his co-defen-
dant as he shall see fit. And in no case shall the assurance fund be liable to f^!JJ*J^be
the |)rincipal defendant for any greater damages than he shall actually lubie only
sustain as the result of such action after using ^ reasonable diligence in [Jjg'jjj.
the defence thereof. (Fotheringham v. Archer ^10 ; Anderson v. Maori Hill tained by
Boro,\ 103 ; Schroeder v. Rarcourt, 104, ; Van Damme v. Bloxam, 105. Q. ^•^*«*^"*
77-47 ; Z. 53 J S. 206 ; T. 62, 133 ; V66-151.)

117. Any person deprived of land or of any estate or interest in land ^^Pf°~;^
in consequence of fraud or through the bringing of such land under the d^meSToi^
provisions of this Act or by the registration of any other person as proprietor ^°*^

of such land estate or interest or in consequence of any error omission or
misdescription in any certificate of title or in any entry or memorial in the
Register Book may in any case in which such land has been included in two
or more grants from the Crown bring and prosecute an action at law for the
recoveiy of damages against such person as the Governor with the advice
aforesaid may appoint as nominal defendant and in any other case' against
the person upon whose application such land was brought under the pro-
visions of this Att or sucn erroneous registration was made or who acquired
title to the estate or interest in question through such fraud error or mis-
description Provided always that in every case in which the fraud error or
misdescription shall occur upon a transfer made for value the person making
the transfer and receiving the value shall be regarded as the person upon
whose application -the certificate of title was issued to the transferee And
provided further that except in the case of fraud or of error occasioned by
any omission misrepresentation or misdescription in the application of such
person to bring such land under the provisions of this Act or to be registered
as proprietor of such land estate or interest or in any instrument executed
by him such person shall upon a transfer of such land bona fide for value
cease to be liable for the payment of any damages which but for such
transfer might have been recovered from him under the provisions herein-
before contained and in such last-mentioned case and also in case the person
against whom such action for damages is directed to be brought as aforesaid
shall be dead or shall have been adjudged insolvent or cannot be found
within the jurisdiction then and in any such case such damages with costs
of action may be recovered out of the assurance fund by action against the
Registrar- Generel as nominal defendant. (Ihtheringham v. Archer , 10;
Biggs v. Wdterhouse, 58 ; Anderson v. Maori Hill Borough, 103 ; Schroeder
V. Mareourt, 104 ; Van Damme v. Bloxam, 105 ; Colonial Bank v. Pye, 107.)
(S. 203 ; T. 62-126 ; V. 66-144 ; Q. 77-47.)

118. Nothing in this Act contained shall be so interpreted as to purohMArs
subject to action for recovery of damages as aforesaid or to action of ejection JJ^J^Tpro-
or to deprivation of the estate or interest in respect to which he is registered teot«d

as proprietor any purchaser or mortgagee bona fide for valuable consideration
of land under tne provisions of this Act on the plea that his vendor or
mortgagor may have been registered as proprietor or procured the r^is-



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88 NEW SOUTH WALES EEAL PEOPEETT AC5T— No. 1.

tration of the transfer to such pnrcliaser or mortgagee througH fraud or
error or may have derived from or through a person registered as proprietor
through fraud or error and this whether such fraud or error shall consist in
wrong description of the boundaries or of the parcels of any land or other-
wise howsoever.
When 119. Any person sustaining loss or damages through any omission

SflSS^^ mistake or misfeasance of the Eegistrar- General or any of his officers or
Sm^»ot«i ^^®^^ ^^ *^® execution of their respective duties under the provisions of this
M nomuua Act or by the registration of any other person as proprietor of such land or
defendant ^j ^^j q^tot omissiou or misdescription in any certificate of title or any entry
or memorial in the Eegister Book and who by the provisions of this Act is
barred from bringing action of ejectment or other action for the recovery of
such land estate or interest may m any case in which the remedy by action
for recovery of damages as hereinbefore provided is inapplicable bring an
action against the Eegistrar-General as nominal defendant for recovery of
damages. (Featherstone v. Hanlon, 4 ; Biffas v. Waterhouse, 58 ; Bailey v.
Chrihp, 54 ; Mann v. Bohertson, 191 ; re John Baton, 194. Q. 61-127.)
ijgjwof 120. In any case in which action for recovery of damages is permitted

* **" to be brought against the Registrar-General as nominal defendant as herein-
before provided notice in writing of such action and of the cause thereof
shall be served upon such nominal defendant one month at least before the
commencement of such action and if in any such action juds^ment be given
in favour of the nominal defendant or the plaintifE discontinue or bc^me
nonsuit the plaintifE shall be liable to pay the full costs of defending such
action and the same when taxed shall be levied in the name of the nominal
defendant by the like process of execution as in other actions on the case.
{Oakden v. Qibbs, 7. Z. 180 ; Q. 61 ; T. 62, 128-9.)
^fmSna»M 121. If in any such action the plaintiff recover final judgment against
Aindanp. such nominal defendant then the Court or Judge before whom such action
powflTiJat ^*y ^® *ried shall certify the fact of such judgment and the amount of
ofrobfic damages and costs recovered and the amount of such damages and costs shall
be paid to the person recovering the same and shall be charged to the
account of the assurance fund and in case the balance to the credit of the
assurance fund shall be inadequate to defray the amount specified such sum
as may be necessary for that purpose shall oe paid out of the Consolidated
Eevenue Fund and the amount so advanced shall be repaid from the assur-
ance fund as the same may thereafter accrue.

lamitetion 122. No actiou for recovery of damages sustained through deprivation

of actions ^£ j^^^ ^^ ^^ ^^^ estate or interest in land as hereinbefore described shall lie
or be sustained against the Begistrar- General or against the assurance fund
or against the person upon whose application such land was brought under
the provisions of this Act or against the person who applied to be registered
as proprietor in respect to such land or against the person certifying any
instrument as aforesaid unless such action shall be commenced within the
period of six years from the date of such deprivation. Provided nevertheless
that any person being under the disability of coverture infancy unsoundness
of mina or absence from the Colony may bring such action within six years
from the date on which such disability shall have ceased and the plaintiff in
any such action at whatever time it may be brought or the plaintiff in action
for the recovery of land shall be nonsuited in any case in which the depriv-
ation complained of may have been occasioned through the bringing of land
under the provisions of this Act if it shall be made to appear to tiie satis-



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NEW SOXITH WALES EEAL PEOPEETT ACT— No. 1. 89

faction of the Court before wUch such action shall be tried that such
plaintiff or the persons through or under whom he claims title had notice by
personal service or otherwise or was aware that application had been made
to bring such land under the provisions of this Act and had wilfully or
collusively omitted to lodge caveat forbidding the same or had allowed such
caveat to lapse. {Moyle v. Oihb*,4Q. S. 216; T. 62-120, 180; V. 66,
149; Z. 187.)

123. Whenever any amount has been paid out of the assurance fund Moo^paid
on account of any person who may be dead such amount may be recovered Sie^fw""
from the estate of such person by action a^nst his personal represeatatives n»ybe

in the name of the Eegistrar-General and whenever such amount has been '*^'*'**
paid on account of a person who shall have been adjude^ed insolvent the
amount so paid shall be considered to be a debt due from the estate of such
insolvent and a certificate signed by the Colonial Treasurer certifying the
fact of such payment out of the assurance fund and delivered to the official
assignee shall be sufficient proof of such debt and whenever any amount has
been paid out of the assurance fund on account of any person who may have
absconded or who cannot be found within the jurisdiction of the Supreme
Court and may have left any real or personal estate within the said Colony
it shall be lawful for the said Court or a Judge thereof upon the application
of the Begistrar-Gbneral and upon the production of a certificate si^ed by
the said Treasurer certifying that the amount has been paid in satisfaction
of a judgment against the Se^trar-General as nominal defendant to allow
the Kegistrar-Gbneral to siga judgment against such person forthwith for
the amount so paid out of the assurance fund together with the costs of the
application and such judgment shall be final and signed in like manner as a
final judgment by coiuession or default in an adverse suit and execution may
issue immediately and if such person shall not have left real or personal
estate within the said Colony sufficient to satisfy the amount for which
execution may have been issued as aforesaid it shall be lawful for the Ee-
gistrar-G-eneral to recover such amount or the unrecovered balance thereof
by action against such person at any time thereafter when he may be found
within the jurisdiction of the Supreme Court. (8. 218 ; T. 62-182 ; V. 66-
150.)

124. The assurance fund shall not under any circumstances be liable Afnmnoe
for compensation for any loss damage or 'deprivation occasioned hj the ^^e^m"^
breach by a registered proprietor of any trust whether express implied or ceruincMei
constructive nor in any case in which the same land may have been included

in two or more giants from the Crown nor shall the assurance fund be liable
in any case in wnich such loss or deprivation has been occasioned by any
land being included in the same certificate of title with other land through
misdeecription of boundaries or parcels of any land unless in the case last
aforesaid it shall be proved that the person liable for compensation and
damages is dead or has absconded or has been adjudged insolvent or the
Sherifi shall certify that such person is unable to pay the full amount
awarded in any action for recovery of such compensation and damages.
{Fotherin^ham v. Archer, 10 ; Moyle v. Oibha, 49; Maddison v. McArtney, 83;
Anderson v. Maori Hill Borough, 108; Schroeder y. Harcowrt, 104; Van
Damme v. Bloxam, 105. Q. 77-47.)

125. The Eegistrar-General shall not individually nor shall any person Begiitnur.
acting under his authority be liable to any action suit or proceeding for or in tobeuibie^
respect of any act or matter bond fide done or omitted to be done under this for Mto done
AcP(S.24.) *~^



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



Holder of
oeriifloate or
other iLstm-
ment of title
issued in
error or
wrongfully
retained to
show canse
to court
against can-
oellation or
oorreotion



Court maj
order the
deHreryof
the instru-
ment to the
BegiBtrar-
O^eral



In case of
neglect or
rerasal
Begistrar-
General mar
issue a ttM
certiilcate or
other instra*
ment



126. In case it shall appear to the satisfaction of the Begistrar-G^eneral
that any certificate of title or other instrument has been issued in error or
contains any misdescription of land or of boundaries or that any entry
or indorsement has been made in error on s^nj grant certificate of title
or other instrument or that any such grant certificate instrument entry or
indorsement has been fraudulently or wrongfully obtained or that any such
grant certificate or instrument is fraudulently or wrongfully retained he may
summon the person to whom such grant certificate or instrument has been
so issued or by whom it has been so obtained or is retained to deliver up the
same for the purpose of being cancelled or corrected as the case may require
and in case such person shall refuse or neglect to comply with such summons
or cannot be found the Begistrar-General may apply to a Judge of the Su-
preme Court to issue a summons for such person to appear before such
Court or Judge and show cause why such grant certificate or other instru-
ment should not be deliyered up to be cancelled or corrected as aforesaid
and if such person when served with such summons shall neglect or refuse
to attend before such Judge or Court at the time therein appointed it shall
be lawful for such Judge to issue a warrant authorising and directing the
person so summoned to be apprehended and brought before a Judge of the
Supreme Court for examination. {Be Beattie, 53; Bi^^t v. Waterhouse^ 68;
re Wm, Biggie 59 ; ex parte Bighy, 77 ; Campbell v. Qarrett, 96 ; HtuseU
T. a>Z. Ban/e, 188 ; De Lissa v. Coleman, 207. T. 62, 116-189, 69; S. 60 ;
V. 66-132.)

127. Upon the appearance before the Court or Jud^e of any person
summoned or brought up by virtue of a warrant as aforesaid it shall be law-
ful for the Court or Judge to examine such person upon oath and in case
the same shall seem proper to order such person to aeliver up such grant
certificate of title or other instrument as aforesaid and upon refusal or
neglect by such person to deliver up the same pursuant to such order to
commit such person to the common gaol of the Colony and in such case or
in case such person shall have absconded bo that summons cannot be served
upon him as hereinbefore directed the Eegistrar-G-eneral shall if the circum-
stances of the case require it issue to the proprietor of the said land such
certificate of title or other instrument as is nerein provided to be issued in
the caae of any grant or certificsfte of title being lost mislaid or destroyed
and shall enter in the Begister Book notice of the issuing of the said cer-
tificate of title or other instrument and the circumstances under which the
same was issued and such other particulars as he may deem necessary. {See
note to See 45, ante,)



Court may 128, Upou the rocovory of any land estate or interest bjr any proceed-

oeiiati^of ing at law or in equity from the person registered as proprietor thereof it
e6tiT *'*** ^' ®^*^ ^ lawful for the Court or Judge in any case in which such proceeding
is not hereinbefore expressly barred to direct the !Etegistrar-General to cancel
any certificate of title or other instrument or any entry or memorial in the
B^fister Book relating to such land and to substitute such certificate of
title or entry as the circumstances of the case may require and the Begistrar-
General shall give effect to such order. {Be Beattie, 53 ; Biggs v. Water-
house, 58. V. 66-139.)



Oath of
sworn Talo-
Biot



129. Every sworn valuator shall within fourteen days of the date of
his appointment and before performing any duties under this Act take the



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NEW SOUTH WALES REAL PBOPERTT ACT— No. 1. 41

following oath before the Begistrar-G^neral who is hereby authorised to
administer the same —

I do solemnly swear that I will faithfully and honestly and to

the best of my skill and ability make any yaluation required of me
under the provisions of the " Beal Property Act." (Z. 210.)

130. If any person fraudulently procures assists in fraudulently Oeruin
procuring or is privy to the fraudulent procurement of any certificate of 23S to^b?
title or other instrument or of any entry in the Register Book or of any deemed mis-
erasure or alteration in any entry in the Register Book or in any instrument ^"°*«"<"*"
or form issued by the Registrar-General or fraudulently uses assists in
fraudulently using or is privy to the fraudulent using of any form
purporting to be issued or sanctioned by the Registrar-G-eneral or knowingly
misleads or deceives any person hereinbefore authorised to demand
explanation or information in respect to any land or the title to any land
wmch is the subject of any application to bring the same under the
provisions of this Act or in respect to which any dealing or transmission is
proposed to be registered or recorded such person shall be guilty of a
misdemeanour and shall incur a penalty not exceeding five hundred pounds
or may at the discretion of the Court before whom the case may be tried
be imprisoned for any period not exceeding three years and any certificate
of title entry erasure or alteration so procured or made by fraud shall be
void as between all parties or privies to such fraud. iFotkerinffham v.
Archer, 10 ; National Bank v. National Mortgage and Agency Company, 12 ;
Saunders v. Cabot, 15 ; Chomley v. Mrehrace, 21 ; Wiggins, app,, v. Hammill,
resp^ 88 ; Qeorge v. Australian Mutual Frovident Society, 56 ; Biggs v.
Waterhouse, 58; Hall v. Hall, 98; Colonial Bank v. Fye, 107; Wildash v.
Huteheson, 182 ; Jones v. Jones, 184 ; Finnoran v. Weir, 186 ; Stuokdale v.
HamiUon, 154. Z. 200; Q. 61-126, 142 ; S. 187, 288 ; V. 66-153 ; T. 62-
139, 74-17.)

181. No proceeding or conviction of any act hereby declared to be a conyiotion
misdemeanour or a felony shaU affect any remedy which any person cwi*w^^y
aggrieved or injured by such act may be entitled to at law or m equi^
against the person who has committed such act or against his estate. (2j.
204 ; V. 66-156.)

132* If any person is guilty of the following ofEences or any of them Forger? to
(that is to say) — (1) Forges or procures to be forged or assists in forging ^^^^^^^y
^e seal of the Registrar- G-eneral or the name signature or handwriting of
any officer of the Registry Office in cases where such officer is by this Act
expressly or impliedly authorised to affix his signature. (2) Stamps or
procures to be stamped or assists in stamping any document with any forged
seal purporting to be of the Registry Office. (8) Forges or procures to be
forged or assists in forging the name signature or handwriting of any person
whomsoever to any instrument which is by this Act or in pursuance of any
power contained in this Act expressly or impliedly authorised to be signed
by such person. (4) Uses with an intention to defraud any person whom-
soever any document upon which any impression or part of the impression
of any seal of the Registry Office has been forged knowing the same to have
been forged or any document the signature to which has been forged
knowing the same to have been forged. Such person shall be guilty of
felony and if any person is guilty of making a false oath or decliuration
concerning any matter or procedure made or done in pursuance of this Act



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4.2 NEW SOUTH WALES EEAL PBOPBBTT ACT— No. 1.

Bach person shall be deemed gcdlty of perjury. {OoUmain and Another ▼.
Biria, 46 ; Bailey v. Ohrisp, 64 ; Be^f. v. Tideman, 99. Z. 200, 201 ; 8. 229-1 ;
T. 62-140; V. 66-164.)

JftS^I*^* 133. Any person convicted of felony or perjury under this Act shall
be liable to imprisonment for any term not exceeding four years and to be
kept to hard kbour or solitary confinement for any part o^ the period
aforesaid. (Z. 203 ; S. 229, 231 ; T. 62, 141 ; V. 66-145, 166.)

gjgjj^ 184, In the conduct of actions under this Act the same rules of

c^tto procedure and practice shall apply and there shall be the same rights of
MSSlfiiSwi *PIJ©*1 *8 are in force or exist for the time being in respect of ordinary
ofapjDeaiM actions in the Court in which such action may be tried Provided that the
inOTtoiMy j^^g^g Qf w^Q Supreme Court shall have power from time to time to make
Supreme rules and orders for regulating proceedings in the Supreme Court under
Court may this Act and from time to time to rescind alter or add to such rules and
2r* orders in like manner as at present. (T. 74-32 ; V. 66-162.)

JoriBdiotion 135^ Unless in any case herein otherwise expressly provided all

offences against the provisions of this Act may be prosecuted and all
penalties or sums of money imposed or declared to be due or owing by or
under the provisions of the same may be sued for and recovered in the name
of the Attorney or Solicitor-General before any Court in the Colony having
jurisdiction for punishment of offences of the like nature or for the
recovery of penalties or sums of money of the like amount.

m'^ISEtdTA^t 136. This Act shall commence and take effect from and after the first
day of January one thousand eight hundred and sixty-three.



SCHEDULES BEFEBBED TO.



AppltGoHon to bring Land under the prtwieioni of the Beat Property Act,

I, A.B. of do declare {that I am) or (on leha\f of of

that he is) seized of an estate of (here state whether ^inheritance
or of a Itfe estate or leasehold for a life or lives or term of years and
whether held in, trust) in all that piece of land situated (Jiere state the
situation) containing (here state the area) be the same a little more or less
(exclusive of roads intersecting the same if any) with (Jiere state rights-of-
way and other privHeies or easements appertaining and set forth a sufficient
description to identify the land) which piece of land is of the viJue of
£, and no more and is (the town allotment or country section or is

part of the town allotment country section or reserve) originally granted to
by land grant under the hand and seal of formerly

Q-ovemor of the Colony dated the day of



Online LibraryAustraliaThe land transfer laws of Australasia: being the full text with side notes ... → online text (page 14 of 83)