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

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Where it exceeds £800 ... ... ... ... ... 1

Whenever any implied covenant is modified, or any covenant,
not being of those for which abbreviated forms of words
are hereinbefore prescribed, is introduced in any instrument,
extra ... ... ... ... ... ... 5

Whenever an^ original section or allotment or parcel of land
included m an existing grant or other instrun^ent is broken
in any dealing, extra ... ... ... ... 10

Transfer of mortgage or lease or surrender of lease ... ... 6

Power of attorney without registration abstract ... ... 10

Power of attorney with registration abstract ... ... 1



SEVENTH SCHEDULE.

Beo.au Fees Payable poe the Pebfoemaitce op the setebal Acts, Matters,

AKD Thikos herein sfscipied.

£ s. d.
For the bringing land under the provisions of this Act, to be paid
over and above the costs of all advertisements herein pre-
scribed to be in such case published —

When the title consists of a Crown grant, and none of the

land included therein has been dealt with ... 2

When the title is of any other description and the value

exceeds £300 ... ... ... ... ... 1

When the title is of any other description and the value

exceeds £200 and does not exceed £300 ... ... 15

When the title is of any other description and the value ex-
ceeds £100 and does not exceed £200 ... ... 10

When the title is of any other description and when the value

does not exceed £100 ... ... ... ... 5

Contribution to Assurance Fund upon first bringing land under
this Act, and upon the registration of an estate of freehold
in possession derived by settlement, will, or intestacy —

In the pound sterling ... ... ••• ... ... Oi

Other fees —

For every application to bring land under the Act ... ... 5

For every certificate of title ... ... ... ... 1

Segistering memorandum of transfer, mortgage, incumbrance,

or lease ... ... ... ... ... ... 10

Begistering transfer or discharge of mortgage or of incum-
brance, or the transfer or surrender of a lease ... ... 5

t In the ease of lease, and of annuity secured by inoumbranoe, ten years' rent, or ten years of
such annuity, to be aasumed as the value for the purpose of caloulatmg the percentage.



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maw ZEALAND LAND TBANSFEB ACT. 105

Begistering proprietor of any estate or interest derived by £ s. d.
settlement or transmission ... ... ... 10

For every power of attorney deposited ... ... ... 10

For every registration abstract ... ... ... ... 1

Por caneelling registration abstract ... ... ... 100

Por every revocation order ... ... *.. ... 10

Noting caveat ... ... ... ... ... ... 10

Cancelling or withdrawal of caveat, and for every notice relating

to any caveat ... ... ... ... ... 5

Tor every search ... ... ... ... ... 2

For every general search ... ... ... ... 6

For every map or plan deposited ... ... ... 060

For every instrument declaratory of trusts, and for every will or

other instrument deposited ... ... ... ... 10

For registering recovery by proceeding in law or equity or re-
entry by lessee .. ... ... ... ... ll>

For registering vesting of lease in mortgagee, consequent on
refusal of Trustee in Bankruptcy to accept the same

For entering notice of marriage or death

For entering notice of writ or order of Supreme Court

Taking affidavit or statutory declaration

For the exhibition of any deposited instrument, or for exhibit-
ing deeds surreudered by applicant proprietor

For certified copy, not exceeding five folios ...

For every folio or part folio after first five ...

For every notice to produce deeds or instruments

For every outstanding interest noted on certificate of title

When any instrument purports to deal with land included in
more than one grant or certificate, for each registration
memorial after the first .. ... ... ... 2



10





10





10





5





5





6








6


5





5






EIGHTH SCHEDULE.

Acts and Enactments Eepealed. Se.JM

1870, No. 51.— The Land Transfer Act, 1870.

1871, No. 12.— The Land Transfer Act Amendment Act, 1871.
1874, No. 15.— The Land Transfer Act 1870 Amendment Act, 1874.
1876, No. 67.— The Land Transfer Act 1870, Amendment Act, 1876.
1880, No. 8.— The Land Transfer Act, 1880.

1883, No. 32.— The Land Transfer Act 1870 Amendment Act, 1883.

1868, No. 61.— The Deeds Eegistration Act, 1868. So far as relates to

Land after it has been brought under the provisions of

this Act.

u



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106 QUEENSLAND REAL PROPERTY ACT— No. 1.

1861.
QUEENSLAND.



THE LAND TRANSFER ACT

NO. 1.



Note. — The numlers following any case quoted at the end of a section Toill be found to
correspond with the same number in the Digest, The letters V. (Victoria) ;
S. (South Australia); Z. (New Zealand); N. (New South Wales); T. (Tas-
mania), followed by a number or numbers, refer to the respective Land Transfer
Acts of the Colonies above-named, and to the number of the section of such Act
where there is only one Act, or to the year and section of Acts where the original
is followed by a further Act or Acts, and all notes to sections will be found in
italics or other distinguishing type.



^'•^""We "TyrTHEREAS it is expedient to amend the laws relating
YV to the transfer and encumbrance of freehold and
other interests in land in the Colony of Queensland. Be it
therefore enacted by the Queen's Most Excellent Majesty by
and with the advice and consent of the Legislative Council
and Legislative Assembly of Queensland in Parliament
assembled and by the authority of the same as follows : —

Bepeai of 1. From and after the commencement of this Act all laws statutes Acts

prerioas Ordinances rules regulations and practices whatsoever relating to freehold
and other interests m land so far as they may be inconsistent with the pro-
visions of this Act and so far api regards their application to land under the
provisions of this Act or the bringing of the land under the provisions of
this Act shall be and the same are hereby repealed.

Short utto 2. This Act may be cited for all purposes as "The Real Property Act

of 1861."
intorpreta- 3. In the Construction and for the purposes of this Act and in all

tiSStwS" instruments purporting to be made or executed thereunder (if not incon-
sistent with the context and subject-matter) the following terms shall have
the respective meanings hereinafter assigned to them that is .to say —
LAND shall extend to and include messuages tenements and hereditaments
corporeal and incorporeal of every kind and description whatever may be
the estate or interest therein together with all paths passages ways waters
watercourses liberties privileges easements plantations gardens mines
minerals and quarries and all trees and timber thereon or thereunder lying
or being unless the same are specially excepted. G-BANT shall mean the



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QUEENSLAND SEAL PEOPEETT ACT— No. 1. 107

original grant of any land of the Crown by the Governor for the time being.
PEOPBIETOE shall mean any person seised or possessed of any freehold
or other estate or interest in land at law or in equity in possession in
fuiurity or expectancy. TEANSFEE shall mean the passing of any estate
or interest in land under this Act whether for yaluable consideration or
otherwise. MEMOEANDTJM OF TEANSFEE shall mean anj instru-
ment in form D of the schedule hereto or in such other form as under the
provisions of this Act may for the like purpose be authorised executed by any
person with a view of transferring any estate or interest in land. TEANS-
aQSSION shall mean the acquirement of title to or interest in land conse-
quent on the death insolvency or marriage of a proprietor. CEETIFICATE
OF TITLE shall mean any instrument evidencing the seisin of the fee-
simple or other estate of freehold in any land executed by the Eegistrar-
General in form C of the schedule hereto or such other form as under
with the provisions of this Act may for tho like purpose be authorised.
MOETGAGE shall mean any charge on land created merely for securing a
loan. MOETGAGOE shall mean the borrower of money on the security
of any estate or interest in land. MOETGAGEE shall mean the lender of
money upon the security of any estate or interest in land. BILL OF
MOETG-AGE shall mean any instrument in form F of the schedule hereto
or in such form as under the provisions of this Act may for the like purpose
be authorised executed by the intending mortgagor with a view to creating
any such mortgage as aforesaid. {Chomley v. Firehrace, 21 ; Bume v. Stewart,
28 ; Barker v. ff^eld, 31 ; Be^, v. Tideman, 99 ; Boss v. McNeil, 118 ;
Manning v. Orossman, 128.) ENCUMBEANCE shall mean any charge on
land created for the purpose of securing the payment of an annuity or sum
of money other than a loan. ENCUMBEANCEE shall mean any person
not being a mortgagor who shall have charged any estate or interest in land
with any annuity or sum of money other than a loan. ENCUMBEANCEB
shall mean any person not being a mortgagee for whose benefit any estate
or interest in land shall have been charged with any annuity or sum of
money other than a loan. BILL OF ENCUMBEANCE shall mean any
instrument in form G of the schedule hereto or in such other form as under
the provisions of this Act may for the like ourpose be authorised executed
by any person having estate or interest in land with the view of creating
any such encumbrance as aforesaid. EEGISTEATION ABSTEACT shall
mean any instrument under the hand and seal of the Eegistrar- General
executed in the form M of the schedule hereto or in such other form as
under the provisions of this Act may for the like purpose be authorised
available in lieu of the register book for the purpose of enabling a person
to mortgage or to sell in places without the limits of the said colony land
whereof he may be seised as proprietor. LUNATIC shall mean any person
who shall have been found to be a lunatic upon enquiry by the Supreme
Court or by any judge thereof or upon a commission of enqxury issaing out
of the Supreme Court in the nature of a writ de lunatico inqmrendo,
PEESON OF UNSOUND MIND shall mean any person not an infant
who not having been found to be a lunatic shall be certified by two duly
qualified medical practitioners to be incapable from infirmity of mind to
manage his own affairs. CONSULAE OFFICEE shall include consul-
general consul and vice-consul and any person for the time being discharg-
ing the duties of consul-general consul or vice-consul. INSTEUMENT
shall mean and include any land grant certificate, of title conveyance
assurance deed map plan will probate or exemplification of will or any



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108 QUEENSLAND EEAJL PEOPEBTT ACT— No. 1.



other document in writing relating to the transfer or other dealing with
land The describing any person as proprietor transferor transferee
mortgagor mortgagee encumbrancer encumbrancee lessor or lessee or as
trustee or as seized of or having any estate or interest in any land shall be
deemed to include the heirs executors administrators and assigns of such
person. And generally unless the contrary shall appear from the context
every word importing the singular number only snail extend to several
persons or things and every word importing the plural number shall apply
to one person or thing and every word importing the masculine gender
only shall extend to a female and shall include a body corporate and when-
ever a form in the schedule hereto is directed to be used such direction
shall apply equally to any form to the like effect signed by the Begistrar-
General or which for the same purpose may be authorised under the pro-
visions of this Act and any variation from such forms not being a variation
in matter or substance shall not affect their validity or regularity but they
may be used with such alterations as the character of the parties or the
circumstances of the case may render necessary. {Mudgway v. Davy and
BuicJCy 1 ; Barker v. Weld, 31 ; re BeaUie, 63 ; Bailey v. Chrisp, 64 ; Brady
V. Brady, 76 ; re Woods, 95 ; Buckett v. Enohhe, 168 ; re Ferguson, 127. 8ee
note to Sec 60 post. N. 3, 37, 70, 129 ; Z. 2, 8, 18. 32, 34 ; S. 3, 51, 98, 180 ;
T. 62-3, 74-3, 37, 71 ; V. 66-3-4, 17, 40, 59, 107, 121, 122.)

^^oM Of 4. The department of the Eegistrar- General shall be the department
trar-Gmerai authorised to carry into execution the provisions of this Act and of any
S^Mtoiont ^^" ^ amend or extend the provisions of this Act and the persons holding
^ ^ the office of Eegistrar- General at the time of this Act coming into opera-
tion shall perform all the duties of Eegistrar- General under this Act and
whenever by any law for the time being in force in the said colony anything
is appointed to be done b^ the Eegistrar- General the same may be lawfully
done by any Deputy Eegistrar- General. (Biggs v. Waterhouse, 58 ; re Wm,
Biggs, 59 ; re Chas. Williamson 65 ; re Hart v. Pegus, 84 ; Harper v. Hunter ^
112 ; Beg, v. Frice, 162 ; re John Eaton, 194.)

5. Upon the death resignation or removal from office of the Eegistrar-
General or of any Deputy Eegistrar- General it shall be lawful for the
Governor with the advice of the Executive Council by commission under his
hand and the seal of the Colony to appoint a fit and proper person to be
Eegistrar-General or Deputy Eegistrar-General as the case may be and
every such person to remove and to appoint another in his stead. {Biggs y.
Waterhouse, 58 ; re John Eaton, 194.)

6. The oath following shall be taken before a judge of the Supreme
Court by the present Eegistrar-General and Deputy Eegistrar-General and
by every Eegistrar-General and by every Deputy Eegistrar-General that
may hereafter be appointed before entering upon the execution of his office
— " I A. B. do solemnly swear that I will faithfully and to the best of my
ability execute and perform the office and duties of Eegistrar-General [or
Deputy Eegistrar-General] for the Colony of Queensland according to the

Certiflcatea provisions of * The Eeal Property Act 1861.' So help me God." (N. 10 ;
mentals;. T. 69-7 J V. 66-13.)

•ii^e/and 7. All documcuts purporting to be issued or written by or under the

J^iS^iiSi directions of the Eegistrar-General and purporting to be sealed with his seal

net to ^ of office or signed by him or by one of his deputies shall be received in

eti!£M«^ evidence and shall be deemed to be issued or written by or under the



Appoint-
ment of
Registrar-
Genend



Oaths of
offioe



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QUEENSLAND EEAL PBOPERTT ACT— No. 1. 109

direction of the I^egistrar^General without further proof unless the contrary
be shown. {Hx parte Eowan, U ; Chomley v. Firehrace, 21; Wilkinson v.
Brown, 121 ; Equitable Building Society v. Boss, 140. N. 33 ; 8. 62 ; T.
62-8 ; V. 66-47, 78-2 ; Z. 36.)

8 The Registrar-General shall hare and use a seal of oflfice bearing the s«ia of office
impression of the Boyal Arms of England and haying inscribed in the
margin thereof the words " Registrar-General Queensland " and the imprint
of such seal shall be valid whether made in wax ink or other substance.
(N. 9 ; S. 21 ; T. 62-91 ; V. 85-52.)

9* The Registrar-General may from time to time subject to the approval B«gittrAr.
of the Governor and the Executive Council make such alterations m the SSoSoi of^
fle?eral forms of instruments prescribed in the schedule hereto as he may ?^*y**' ***
deem requisite and shall before finally issuing any such altered form give of i^tra^
such public notice thereof as he may deem necessary and shall cause every ™«^*". *«•
such form to be sealed with his seal or marked with some other distinguish-
ing mark and to be supplied at the General-Registry 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 and every such form if made in a form
purporting to oe a proper form and to be sealed or marked as aforesaid shall
be taken to be made in the form hereby required or in the form sanctioned
by the Registrar- General unless the contrary is proved.

10. Every person who counterfeits assists in counterfeiting or procures Penalty for
to be counterfeited such seal or other distinguishing mark or who fraud u- S^,^'^*'"
iently alters assists in fraudulently altering or procures to be fraudulently fi»aduientiy
altered any form issued by the Registrar- General with a view of evading any fo!^fnd
of the provisions of this Act or any condition contained in such form shaU foJ^*i^*S55
for every such offence be deemed guilty of a misdemeanour and shall incur a bytheRegiB-
penalty not exceeding one hundred pounds or may at the discretion of the ^f^^-^^^*®"*
court before whom such case may be tried be imprisoned for any period not
exceeding twelve calendar months and every person who in any case in which

a form prescribed by this Act or sanctioned by the Registrar-General is by
this Act required to be used uses without reasonable excuse any form not
80 prescribed or sanctioned or who prints sells or uses any document pur-
porting to be a form so sanctioned Knowing the same not to be so sanctioned
tor the time being or not to have been prepared and issued by the Registrar-
General shall for each such offence incur a penalty not exceeding ten
pounds. {Ck>lon%al Bank v. Pie, 107.)

11. The Registrar- General may exercise the following powers that ispowenof
to say— ^^^^^

(1) He may require any proprietor or other person making application To inspect
to have land brought under the provisions of this Act or any pro- ^<»<»**™^**
prietor mortgagee or other person interested in land under the
provisions of this Act in respect of which any transfer lease mort-
gage encumbrance or other dealing or any release from any mort-
gage or encumbrance is about to be affected or in respect of which
any transmission is about to be registered or registration abstract
granted under this Act to produce all deeds wills or other instru-
ments in his possession or within his control affecting such land or
the title thereto. {Fisher v. Stuart, 44. N. 11-1 ; T. 62-11 ; V.
85-30.)



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110 QXJEEN8LAND SEAL PEOPEETY ACT— No. 1.



Tosaminon
and examine
witnesses



To adminis-
ter oaths



To correct
errors



To enter
oareats



Appoint-
ment of
Master of

Titles



(2) He may summon any such proprietor mortgagee or other person to
appear and give evidence respecting such land or the instruments
fiSecting the title thereto and if upon requisition in writing made
by the Eegistrar-General such proprietor mortgagee or other
person refuses or neglects to produce any such instrument or to
allow the same to be inspectea or refuses or neglects to give any
evidence which he is hereinbefore required to give or knowingly
misleads or deceives any person hereinbefore authorised to demand
any such evidence he shall for each such offence incur a penalty not
exceeding one hundred pounds and the Registrar- G^eneral if the
instrument or information so withheld appears to him material
shall not be bound to proceed with the bringing of such land under
the provisions of this Act or with the registration of such mortgage
or sale or with the issuing of such powers of mortgage or sale as
the case may be. (N. 11-2 ; T. 62-11-2, 6, 86-29.)

(3) He may administer oaths or in lieu of administering an oath may
require any person examined by him to make and subscribe a
declaration of the truth of the statements made by him in his
examination. (N. 11-3 ; Z. 175 ; T. 62-11-3 ; V. 66-29-1.)

(4) He may upon such evidence as shall appear to him and the Master
of Titles suflScient in that behalf correct errors in certificates of
title or in the register book or in entries made therein respectively
and may supply entries omitted to be made under the provisions of
this Act Provided always that in the correction of anv such error
he shall not erase or render illegible the original words and shall
affix the date on which such correction was made or entry supplied
together with his initials and every certificate of title so corrected
and every entry so corrected or supplied shall have the like validity
and effect as if such error had not been made or such entry omitted
except as regards any assurance or instrument which may have
been entered in the register book previously to the actual time of
correcting such error or supplying such omitted entry. (Sharpe v.
Radley^ 3 ; Wiggma app.^ Rammill resp., 38 ; ex parte Bighf, 77 ;
Campbell v. Jarrett, 96 ; Ashley v. Oook, 137 ; Rassett v. Colonial
Bank, 138. N. 11-4 ; Z. 68 ; S. 220-4 ; T. 62-11-4 ; V. 66-129.)

(5) He may enter a caveat on behalf of the Crown or on behalf of any
person who may be absent from the colony or who may be under
the disability of infancy coverture lunacy or unsoundness of mind
to prohibit the transfer or dealing with any land belonging to or
supposed to belong to the Crown or any such absentee or person
under disability as aforesaid or on behalf of any person whose
rights may appear to him likely to be endangered or compromised
by any misdescription of land or of its boundaries of which he may
be cognizant. (Bonnin and another v. Andrews, 86. N. 11-6,
78-9, 12; Z. 21-137; S. 191-10; T. 62-11-6; V. 66-21, 2, 3, 4,
116.)

12. It shall be lawful for the Governor with the advice of the Execu-
tive Council by commission under his hand and the seal of the colony to
appoint a person who shall be styled " the Master of Titles " and who
together with the Eegistrar-Greneral shall investigate and deal with applica-
tions for the bringing of land under the provisions of this Act. (N. 6.)



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QTTEENSLAND EBAL PEOPERTT ACT— No. 1. Ill

MMtarof

13. The Master of Titles shall be a barrister-at-law or an attomey of beaimnii.
the Supreme Court and he shall not directly or indirectly be concerned in iJ^jJ^orae^
any case relating to the title to freehold land. of supreme

14- It shall be lawful for the Segistrar- General and the Master of opinion of

Titles in any case under the provisions of this Act by order of a judge to SJpJJ™*

state any question or questions of law in a special case for the opinion of be ob£^
the Supreme Court.

15, All lands in the colony remaining unalienated from the Crown on L«id alien,
the day appointed for this Act to come into operation whether waste lands JhSfl^
or lands set apart as roads or as reserves for public purposes shall when besabpeotto
afienated in fee be subject to the provisions of this Act. ^'SJt*" **'

16, All lands alienated from the Crown in fee prior to the day Lands
appointed for this Act to come into operation whether such land shall con- ESj^tothe
stitute the whole or only a part of the land included in any grant may be Sa^onwiuch
brought under the provisions of this Act in the following manner that is to cSUetSto
say the Registrar- General shall receive applications in form A of the opcr^on
ecoedale hereto or in words to the like effect for bringing land under the bronght
provisions of this Act if made by any of the following persons that is to SSOT^JtJJn ^f
Bay — By any person claiming to be the person in whom the fee-simple of the this Act
land is vested in possession provided that wherever trustees seised in
fee-simple have no express power to sell the land which they may seek to

bring under the operation of this Act the person claiming to be beneficially
efQtitled for the first estate of freehold in the said land shall consent in sucn
application By any person claiming to be entitled beneficially to land for
an estate of freehold in possession Provided that where the applicant is a
married woman her husband shall consent in such application. By the father
if ho shall be living or if the father shall be dead by the mother or other
guardian of any minor claiming to be entitled to land for an estate of free-
bold in possession in the name of such minor By the committee or guardian
of any lunatic or person of unsound mind claiming to be entitled to land for
an estate of freehold in possession in the name of such lunatic or person of
unsound mind Provided always that the Eegistrar-General shall not receive undiyided
any such application from any person claiming to be entitled to an undivided •>»*'^ "^d
share of any land unless the persons who shall appear to be entitled to the SnS^fy
other undivided shares of the said land shall join in such an application with JJJJ*®i^t
a view to bringing the entirety of the said land under the provisions of this unaerAot
Act nor shall the Registrar- General receive any application from the conStioM^



Online LibraryAustraliaThe land transfer laws of Australasia: being the full text with side notes ... → online text (page 24 of 83)