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

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ihat the applicant is entitled as alleged, the Eegistrar shall, with the trnu^
concurrence of such Examiner, proceed to register such transmission. (N. ■*<>»
78-6, 7 ; S. 176.) Provided that in case of an application by a person Trtoamia.
claiming by virtue of any intestacy or under the will of a deceased proprietor, Jf^lJ^^'JjJf"
tiie Regis^r shall, before registering such transmission, cause notice of the of deoMsed
application to be published in the Gazette and in one or more newspapers g^^]^^*
published in the district, and shall give such further publicitv to such tend
application as the Begistrar and Examiner shall direct, and shall in such
notice limit and appoint a time, not less than one month from the date of
the publication thereof in the Gazette, upon or after which the Begistrar
may register such transmission. (Panfum v. Pan/nan^ 18.) Such notice Saving
may be dispensed with in the case of a person claiming under any will or J^n^"*"
intestacy in respect whereof probate or administration has been granted by grftntad
any Court of competent jurisdiction within the Colony or under any JJJ^****
Buccession order issued by the Native Land Court. \

118. Upon the registration of a transmission under any will or oaTMtmAy
settlement the Begistrar and Examiner of Titles may direct a caveat to be Jj gj^jj^^^
entered by the registrar for the protection of the interests of persons benefioiariei
appearing by such will or settlement to be beneficially interestea in the Sm?r^
estate or interest the subject of such transmission. {National Bank v. tiemeat
HaHanal Mortgage and Agency Oo,, 12 ; Ohomley v. Mrehrace, 21 ; 8t. George

▼. Auetralian mutual Provident, 56 ; St. George v. Burnett, 67. N. 21 ; Q.
61-23 ; 8. 89 ; T. 62-22.)

119, Upon the bankruptcy of the registered proprietor of any lease Tranimis.
subject to mortgage under this Act the Begistrar, upon the application in "^^l*?^
writing of the mortgagee, accompanied by a statement in writing signed by ^SSi?*
the official assignee of the bankrupt's estate, certifying his refusal to accept [gg^y <*'
such lease, shall enter in the Begister the particulars of such refusal, and

such entry shall operate as a transfer on sale, and the interest of the
bankrupt m such lease shall thereupon vest in such mortgage. {Pannan t.
Pannan, 18. N. 76 ; Q. 61-66, 86 ; T. 62, 66, 76 ; S. 71-3, 17.)

120* If snch mortgagee shall neglect or decline to make such applica-


tion as aforesaid the Begistrar, upon application by the lessor and proof o^Jj^^^Jjf*^
such neglect or refusal and of the matters aforesaid, shall enter in the mort^ftgee
Begister notice of the refusal of the official assignee to accept such lease, ^pp^t^s
and such entry shall operate as a surrender of such lease.

121. The Begistrar, upon the production of proof of the marriage of a Hiisb«nd
female registered proprietor of any land, estate, or interest under this Act, JJg^^'
accompanied by a statement in writing signed by such female proprietor to joint pro.
that effect, shall enter in the Begister, and also upon the outstanding ^S?^^
duplicate of title the name and description of her husband, the date of
the marriage and when solemnized, the date and hour of the production to
iuzn of the evidence of such marriage. {E» parte Locke^ 48. 8. 60-7.)

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No entiyef
trusts to be
made on
except those



122. Except as provided in Appendix A to this Act in relfttion to
public reserves and other public lands, no entry shall be made in the
Register of any notice of trusts, and no such entry, if made, shall have any
effect ; but trusts affecting land under this Act may be declared by any
deed or instrument, and such deed or instrument, or a duplicate or attested
copy thereof, may be deposited with the Begistrar for safe custody and
reierence, but shall not be registered. {OuthberUon v. 8u>ann, 14A. N. 66 ;
Q. 61-80, 89 ; S. 161, 162 ; T. 62-66; V. 66-38.)

123. Upon the transfer of any land, estate, or interest under this Act to
foJraSy of ^0 or more persons as joint proprietors, the transferor may insert in the
"No Bunri- memorandum of transfer or other instrument the words " No survivorship,"
Ito^rter ^ and the Eegistrar shall note the same in the Begister, and shall also enter

the said words upon any certificate of title issued pursuant to such transfer.
(Q. 61-80 ; S. 163, 164; T. 62-68 ; V. 66-16.)

124* Any persons registered as joint proprietors of any land, estate,

* or interest under this Act, may, by writing under their hand, authorise the

Eegistrar to enter the words " No survivorship " upon the grant, certificate

of title or other instrument evidencing their title to such estate or interest,

and also upon the duplicate of such instrument.

125. After such entry has been made and signed by the Begistrar in
either case as aforesaid, it shall not be lawful for any less number of joint
proprietors than the number then registered to transfer or otherwise deal
with the said land, estate, or interest without obtaining the sanction of the
Supreme Court, or a Judge thereof, by an order on motion or petition. {See
note to See. 123, ante.)

126. Before making any such order the Court or Judge shall, if it
seem requisite, cause a notice of intention so to do to be advertised in the
Gazette, and in at least one newspaper published in the district in which the
land is, and shall appoint a time within which any person interested mav
show cause why such order should not be issued ; and thereupon the saia
Court or Judge in such order may give directions for the transfer of such
land, estate, or interest to any new proprietor or proprietors, solely or
jointly, with or in the place of any existing proprietor or proprietors, or may
make such order in the premises as the Court thinks just for the protection
of the persons beneficially interested in such land, estate, or interest, or in
the proceeds thereof. Upon such order being deposited with the Begistrar
he snail make such entries and perform such acts as may be necessary for
the purpose of giving effect to such order.

127. If the registered proprietor of any land, or of any estate or
a interest under this Act, is desirous of transferring the same to two or more

persons in trust, such proprietor, in the instrument or deed declaring such
trust, may^ nominate and appoint the Begistrar of the District within which
the land is, by the style or his office, to be one of such trustees ; and it shall
thereupon be the du^ of such Begistrar for the time being to act as such
trustee, so far as relates to the transfer of such land, estate, or interest.

Benefioiarj 128. Whenever a person entitled to or interested in land as a trustee

entitled to^^ would be entitled to bring or defend any action in his own name for recover-

restored I
joint pro-

Bflbot of
entrr. No
dealing ex-
cept bj
order of




may be

ing the possession of land under this Act, such person shall be bound to
printing ^jjow his name to be used as a plaintiff or defendant in such action by any

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beneficiaiT or person claimiiig any estate or interest in the said land. In indemnityto
every such case the person entitled or interested as such trustee shall be *"*■***
entitled to be indemnified in like manner as a trustee would, before the
commencement 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. (N. 110 ; Q. 61-84.)

Eegistbation Abstbact.
129- Eyery Begistrar, upon the application of any restored pro- Begietration
prietor of lana witmn his district, shall grant to such proprietor a regis- SSiS©'* ^
tration abstract in the Form H in the Second Schedule, enabling him to Jiui^iont
transfer or otherwise deal with his estate or interest in such land at any ^
place without the limits of the colony, for any period not exceeding twelve
months from the date of such abstract, and shall at the same time enter in
the Begister a memorandum recording the issue of such abstract, and shall
indorse on the outstanding duplicate of title a like memorandum. (N. 70 ;
Q. 61-3, 101, 105, 106 ; T. 62-71, 73.)

130. From and after the issuing of any such registration abstract, no ^?S^^^
transfer of, or other dealing with, the estate or interest in respect of which no entry to
such registration abstract is issued shall be entered in the Begister until S^SJjJj"*
such abstract shall have been surrendered to the Be^strar to be cancelled,

or the loss or destruction of such abstract proven to his satisfaction. {Sharpe
V. Hadleyy 3 ; Davidson v. Browfiy 183.)

131. Whenever any transfer or other dealing is intended to be effected JJS^*^^£J^
under any registration abstract, a memorandum of transfer or such other regS^ion'
instrument as the case may require shall be prepared in form hereinbefore »*»"*^f^*
appointed, and shall be produced to some one oi the persons appointed as
persons before whom the execution of instruments without the limits of the
colony may be proven. (N. 78 ; Q. 61, 106 ; T. 62-78 ; V. 66, 122. See

note to sec, 30, ante,)

132. Upon memorial of such instrument being entered upon the regis- ^S^^**"
tration abstract, and authenticated by the signature of such authorised have same
person, such instrument shall be held to be registered, and such transfer or ^"j^^atop
other dealins shall be as valid and binding to all intents as if the same had

been entered in the Begister by the Begistrar of the district within which
the land is ; and such authorised person as aforesaid shall record the like
memorial on the outstanding duplicate of title.

133. A certificate of registration, indorsed on the instrument of which ggj*jj^ •"'
the memorial has been so entered, and signed by such authorised person and abstraotto
sealed with his seal, shall be received in all Courts as conclusive evidence ^«^^««>®
that such instrument has been duly registered.

134. Upon the return of any registration abstract te the Begistrar he Proceedings
shall record in the Begister, in such manner as te preserve their priority, of^b^S?^
the particulars of every transfer or other dealing recorded thereon, and shdl

file in his office the duplicates of every memorandum of transfer or other
instrument executed thereunder which may for that purpose be delivered to
him, and shall cancel such abstract, and note the fact of such cancellation in
the Begister.

135. If a freehold estate in such land, or any part thereof, be 2rf£*°*^
transferred, the grant or certificate of title shall be delivered up to the origmai
B^strar, who shall thereupon proceed as is hereinbefore directed for the g^j^^Ja
case of the transfer of an estate of freehold. (N. 97 ; Q. 61, 49, 94 ; S. 78 ;

T. 63-99; V. 66-66.)

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Procedure 136. Upon proof at any time to the satisfaction of the Segistrar that

^JfJI ®'* any registration abstract is lost or so obliterated as to be useless, and that

regUteation the powers thereby given have never been exercised, or, if they have been

abetraot exerciflod, then, upon proof of the several matters and things that have been

done thereunder, the Ilegistrar may, as circumstances may require, either

issue a new registration abstract, as the case may be, or may direct such

entries to be made in the Register, or such other matter or thin^ to be done, as

might have been made or done if no such loss or obliteration had taken



c»Te»t 137. Any person having or claiming an interest in any land the subject

b^^ of an application to bring the same under this Act may, at any time within

knd raider ^\^q ^m^ limited for that purpose, by advertisement as hereinbefore provided,

lodge with the Registrar a caveat in the Form K in the Second Schedule.

(Be Thompson and Chipps, 26 ; re J. B. Slack, 85 ; re ISeUon Brothen, 36 ;

re David Le Oompte, 89 ; Biggt v. Waterhowe, 58 ; ex parte Martin Lyom,

59a ; ex parte Power, 59b ; ex parte Peck, 59o ; re Davis, 59d ; re William

Meld, 59e ; re Clark and Harvey, 59a ; re Rayton, 67 ; D^alhrdyhill v.

D'albrdyhill,S2', re William Wadham, 114; Kissling v. MitcheUon, 12^ ,

Neil V. Adams, 180 \ Butler v. Saddle Rill Mining Company, 168 ; Friehe v.

Onllen and others, 178 ; ex parte Brown, 185 -, re A. Bosquet, 202 ; ex parte

Davis and Inman, 208 ; re Pennington, 212 ; ex parte Bowan, 18. N. 13 ;

S. 25. See note to See. 21, ante)

^j2SSt 138. Any person claiming to be entitled to, or to be beneficially

deftfing with interested in, any land, estate, or interest under this Act by virtue of any
Jj^^^^' unregistered agreement or other instrument or transmission, or of any trust
expressed or implied, or otherwise howsoever; also Any person trans-
ferring any estate or interest under this Act to any other person, to be held
in trust, may at any time lodge with the Registrar a caveat in the Form L
in the Second Schedule, which caveat shall be entered on the Register as of
the day and hour of the reception thereof.

to*b^8Sted 139. Every caveat shall be si^ed by the caveator or by his attorney

in o»Te«t or agent, and shall state with sufficient certainty the nature of the estate or
interest claimed by the caveator, with such other information and evidence
as may be required by regulations under this Act, and shall appoint a place
or give an address within the district, at or to which notices and proceeoings
relating to such caveat may be served or addressed.

^•SjJ*^'^ 140. Every notice relating to a caveat and any proceedings in respect
oaTMts thereof, if served at the place appointed in the caveat, or forwarded through

the post-office by registered letter addressed as aforesaid, shall be deemed

duly served.

Effect of 141, So long as a caveat in the Form K shall remain in force, the

^^Smx, Begistrar shall not proceed with the bringing under this Act of the land
Smd^tS&er *^®^^^ thereby, nor shall it be lawful for the person making such
Act ^ " application to withdraw the same, except with the consent of the caveator,

or by leave of a Judge of the Supreme Court.
Effectof 142. So long as a caveat in the Perm L shall remain in force, the

Against Begistrar shall not make any entry on the Register having the effect of
^**^^"^ charging or transferring or otherwise afEecting the estate or interest

protected by such caveat, or issue any registration abstract in respect

thereof. {See note to Sec. 141, ante,)

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143. Upon the receipt of any caveat the Be^istrar shall notifjr the Notice or
same to the person against whose application to bring land under this Act ^rra^toper.
or to be registered as proprietor consequent on any transmission, or to the •<»■ •ffeoted
registered proprietor against whose title to deal with land under this Act

such caveat has been lodged. (Be Carroll, 61. N. 23-82 ; Q. 61-31 ; V.
66, 117.)

144. Such applicant or registered proprietor may, if he think fit, Prooednro
summon the caveator, or the person on whose behalf such caveat has been of'cftTMt
lodged, to attend before the Supreme Court or a Judge thereof, to show
cause why such caveat should not be removed ; and such Court or Judge,

upon proof that such person has been summoned, may make such order in
the premises, either es parte or otherwise, as to such Court or Judge may
seem meet. (Be Garrolly 61 ; ex parte Pennington, 64 ; re Chas. Williamson,
65 ; re Turner, 66 ; re Sayton, 67 ; re David Joneg, 68. Q. 77-88 ; S. 191,
6 ; V. 85-76.)

145' After the expiration of three months from the receipt thereof Lapse of
every caveat in the Form K shall be deemed to havo lapsed, unless the ^^t
person by whom or on whose behalf the same was lodged shall within that Jj^J'^^J
time have taken proceedings in any Court of competent jurisdiction to Act °" ^
establish his title to the estate, interest, lien, or charge therein specified,
and thereof shall have given written notice to the Registrar, or shall have
obtained from the Supreme Court an order or injunction restraining the
Registrar from bringing the land therein referred to under this Act.
{Summers, ex parte Aylwin, 62. N. 23-82; Q. 61, 21, 77-39; S. 45; T.
62-24, 83.)

146. Except in the case of a caveat lodged by or on behalf of a l»p8o of
beneficiary claiming under any will or settlement, or tor the protection of JJiS»t
any trust, or by the Registrar in exercise of the powers by this Act given d«uinge
to him in that behalf, every caveat in the Form L shall, upon the expiration
of fourteen days after notice given to the caveator that application has been
made for the registration of any instrument affecting the land, estate, or
interest protected thereby, be deemed to have lapsed as to such land, estate,
or interest, or so much thereof as is referred to in such notice, unless an
order to the contrary be made by the Supreme Court or a Judge thereof.

147' Any person lodging any caveat without reasonable cause shall be f ®"^
liable to make to any person who may have sustained damage thereby such cave«"with-
compensation as may be just ; and such compensation shall be recoverable cau8e"ii»bi«
in an action at law by the person who has sustained damage from the person for damages
who lodged the caveat.

148* Any caveat may be withdrawn by the caveator or by his attorney Cav»t may
or agent under a written authority, and either as to the whole or any part d»mi
of the land affected^ or the consent of the caveator may be given for the
registration of any particular dealing expressed to be made subject to the
rights of the caveator. (N. 81 ; V. m, 11, 6.)

149. When any caveat in either of the forms hereinbefore provided
shall have lapsed, it shall not be lawful for the Registrar to receive any second
caveat affecting the same land, estate, or interest, bj the same person, or in "
the same right and for the same cause, except by order of the Supreme
Court or a Judge thereof.


Digitized by VjOOQIC



powers of
before land
under Act

Snob powers
to be ftTail-
able for
under the

mar deal
witn land
under the
Act by

P0WIB8 07 Attobnxt.

150. No dealing under the proyiaions of "The Land Transfer Act,
1870," or any Act amending the same, by virtue of any power of attorney
shall be impeached by reason only that such power was executed prior to
the bringing of the land under the said Act. (N. 69-74 ; Q. 62-104, 107 ;
S. 155, 156 ; T. 62-70; V. 66-113, 114,)

151. The bringing of land under this Act shall not invalidate any power
of attorney previouslv executed, but such land may thereafter be dealt with
under such power, subject to the provisions hereof.

152* The registered proprietor of land under this Act or any person
claiming any estate or interest under this Act, may, by power of attorney in
the form in the Third Schedule or in any usual form, and either in general
terms or specially authorise and appoint any person on his behalf to execute
tranfers or other dealiugs therewith, or to make any application to the
Registrar or to any Court or Judge in relation thereto. (Finnoran v.
Weir, 138.)

StTraey'to 153. Every power of attorney intended to be used under this Act, or

bedefoaiteda duplicate or attested copy thereof, verified to the satisfaction of the
Begistrar, shall be deposited with the Registrar in manner provided by regu-
lations under this Act, but it shall not be necessary to register any power of
attorney. (Be Woods, 96. 8. 166.)

154. The grantor of any revocable power of attorney may, by notice
to the Begistrar in the form in the Third Schedule revoke the same either
wholly or as to the land specified in such notice ; but no power of attorney
shall be deemed to have been revoked by reason only of a subsequent power
of attorney bein^ deposited without express notice as aforesaid, nor tihall
any such revocation take efiect as to instruments executed prior to the re-
ception of such notice by the Begistrar.

155. No power of attorney made or used under this Act, or heretofore
used for the purpose of any dealing under the Acte hereby repealed, shall
be invalidated by reason of such power not having been created under seal.



of power of


for further

Short ooTe-
nantfl, form

CovBNAKTS Implied in Instbuments.

156. In every instrument charging, creating, or transferring any estate
or interest under this Act, there shall be implied the following covenants bv
the party charging, creating, or transferring such estate or interest to and vrith
each and every person taking any estate or interest under such instrument.
(1) That the (implied) covenantor will do all such acts as may be necessary
on his part to give efiect to all covenants, conditions, and purposes expressly
set forth in such instrument, or by this Act declared to be implied in instru-
ments of a like nature. (2) That the (implied) covenantor will, at the re-
quest and cost of the i)erson taking any estate or interest as aforesaid,
execute all such further intruments as may be necessary for further and
better assuring and perfecting the title of such person as last aforesaid to
the estate or interest expressed or intended to be granted, created, or trans-
ferred. (N. 51 ; Q. 61-75 ; S. 124, 130-152 ; T. 62-49 ; V. 66-76, 85-28.)

157. Such of the covenants, set forth at length in the Fourth Schedule
as shall be intended to be implied in any instrument executed for the purpose
of registration under this Act shall, if expressed in the short form of words
prescribed in the said Schedule for the case of each covenant respectiTely,

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be implied in Buch instrument as fully and effectually as if such covenants
were set forth therein at length in the words of the said Schedule. (N. 165 ;
Q. 61-75; S. 265; T. 62-66.)

158- Everjr covenant and power implied in or existing by virtue of any impUed
instrument by virtue of this Act may be negatived, modified, enlarged, or mJybTiwg*-
extended by express declaration in such instrument or indorsed thereon. t»^«d, Ac.
Every such implied covenant shall, subject to any modification thereof, 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. Where any such instrument is coTeiutntato
executed by more parties than one, such covenants as are by virtue of this t5§^JjJ*OT-*^^
Act therein implied shall be construed to be several, and also to bind the ally
parties or any two or more of them jointly.

159. In any declaration in an action for a breach of any such covenant* P®^>"^^,
the covenant alleged to be broken may be set forth, and it may be alleged oo^nMt °
that the party against whom such action is brought did so covenant preciselv
in the same manner as if such covenant had been expressed in words in such
memorandum of transfer or other instrument, ary law or practice to the
contrary notwithstanding. {Oeorae y, Australian Mutual Provident, 66. Q.

Execution of Instbuments.
160* Every instrument executed for the purpose of creating, trans' instramente
ferring, or charging any estate or interest under this Act shall be signed ^dait!eS«d
by the registered proprietor and attested by at least one witness, whose
occupation or other description and address or place of residence must be
specified with reasonable certainty ; and every instrument so executed shall,
-when registered, have the force and effect of a deed executed by the parties
signing the same. (Cuthbertson v. 8wann,l4i4i. N. 94 ; Q. 61-115, 77-5 ;
T. 86-29 ; V. 66-115, 85-71.)

161. Instruments executed as aforesaid shall be held to be duly at- when in-
tested, and- the execution thereof may be proved before a District Land SS^Tto
Hegistrar, Assistant Land Eegistrar, or any deputy of either of such officers ^ attested
or before a notary public. Justice of the Peace, or a solicitor of the Supreme
Court, if the parties executing the same be resident within the colony, by the

oath or statutory declaration of the parties executing the same, or of a

Online LibraryAustraliaThe land transfer laws of Australasia: being the full text with side notes ... → online text (page 20 of 83)