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

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Davy and Buick, 1. N. 95.)

ProTirion in 117. In the ovout of the grant or certificate of title of land under the

caae of lort p|.ovi8ions of this Act being lost mislaid or destroyed the proprietor of such
land together with any other persons having knowledge of the circumstances
may make a declaration before the Registrar- General or before any of the
persons hereinbefore appointed as persons before whom the 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 mortgages
encumbrances or other matters affecting such land and the title thereto to
the best of the declarant's knowledge and belief and it shall be lawful for
the Registrar- General if satisfied as to the truth of such declaration and
the bona Jldes of the transaction to issue to such proprietor a provisional
certificate of title which provisional certificate shall contain an exact copy
of the original grant or certificate of title bound up in the register book and
of every memorandum and endorsement thereon at the time appearing and
shall aLso contain a statement of the circumstances under which such
provisional certificate is issued and the Registrar- General shall at the same
time enter in the register book notice of the issuing of such provisional
certificate and the date thereof and the circumstances under which 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 and purposes as such lost grant or
certificate Provided always that the Registrar- General before issuing such
provisional certificate shall by advertisement in the Government Gazette
and in at least one newspaper published in the city of Brisbane give not
less than thirteen clear days notice of his intention so to do. N. 98 ; Z.
47, 76 ; S. 79; T. 62, 100 ; V. 66-131, 86-60.)

Snrreyori Hg. TTpon the application of any person producing a certificate of

^aaSd competency signed by the Surveyor-General or other officer who may for

that purpose be appointed by the Governor and Executive Council the

Registrar- General snail license such person as a surveyor for the purposes

of ttiifl Act. (N. 100 ; Z. 170 ; S. 248 ; V. 86-6.)



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QUEENSLAND REAL PEOPEETT ACT— No. 1. 148

119. Any proprietor Bubdiriding any land under the proyisions of this ProoHetor
Act for the purpose of selling the same in allotments as a township shdl J^ deposit
deposit with the Registrar- G-eneral a map of such township provided that ^» 4i Vio.
such map shall exhibit distinctly delineated all roads streets passages S^*^®**'*^"
thorougUPares squares or reserves appropriated or set apart for puolic 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 accurate
by the declaration of a licensed surveyor before the Eogistrar-G-eneral or a
justice of the peace. (N. 100, 101 ; 8. 100, 220-8 ; T. 62-103, 104..)

120. The Eegistrar-Q-eneral may require the proprietor applying to Begiatntf.
have any land brought under the provisions of this Act or desiring to S^St^Sap
transfer or otherwise to deal with the same or any portion thereof to deposit tobe de-
at the re^stry oflSce a map or plan of such land certified by a licensed p^*®^
surveyor in manner aforesaid and 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 iE such 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 or plan 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 and Hot exceeding
eighty statute acres then such map or plan shall be on a scale of not less
than one inch to ten chains and if such land or the 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 vrith such requirement it shall not be
incumbent on the Registrar- General to proceed with the bringing of such
land under the provisions of this Act or with the registration of such
transfer or other dealing 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 such
subdivision shall be certified in manner prescribed for the case of the
deposit of an original map.

121. Any person may upon payment of the fee specified in the list Search
marked R in the schedule hereto have access to the register book for the ^^^^
purpose of inspection at any reasonable time during the hours and upon the
dajB appointed for search. (T. 62, 106.)

122. The Registrar-General upon payment of the fee specified in the list ^jSSjned
marked R in the schedule hereto shall rurnish to any person applying at a andaediedto
reasonable time for the same a certified copy of any registered instrument Sj^KSiRj^
affecting land under the provisions of this Act and every such certified *'^-^*'*^
copy signed by him and sealed with his seal shall be received in evidence J^vedln
in any court of justice or before any person having by law or by consent of ^j^f^yi^
parties authority to receive evidence m primd facie proof of all matters No. is ■. so'
contained or recited in or endorsed on the original instrument. (Ohisholm

V. (hpper, 86. N. 102; Z. 65 ; S. 80; T. 62-33, 105 ; V. 66-47, 78-2.)

123. Except in the case hereinbefore provided of a mortgagee or Ko act of
encumbrancee against a mortgagor or encumbrancer or in the case of a lessor Jj M^^Sept
against a lessee or tenant or m the case of a person deprived of any land by ^^gJJ^^jjj
fraud or against a person registered as proprietor through fraud or against ^ ISt



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144 QUEENSLAND BEAL PROPEBTY ACT— No. 1.

Vid$ 41 Vie, a person deriying otherwise than as a purchaser or morte;agee bona fide for
No. 18 8. 47 yafue from or through a person registered as proprietor through fraud or in
the case of a person deprived of any land by reason of a wrong description
of any land or of its Doundaries and except in the case of a registered
proprietor claiming under a prior certificate of title or under a prior grant
registered under the provisions o£ this Act in any case in which two grants
or two certificates or a grant and a certificate may be registered under this
Act in respect of the same land no action of ejectment shall lie or be
sustained against a registered proprietor for the recovery of land under
the provisions of this Act and except in any of the cases aforesaid the grant
or certificate of title 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 grant or certificate of title as seized of or entitled to such land.
(Featherstone v. Hanlon, 4t ; Slack v Downton^ 11 ; Fannan v. Fantiarty 16 ; re
Sellars, 82 ; Coleman and Clark v. Biria, 46 ; Jones v. Sellick, 78 ; Sanders
V. Wadham, 88 ; Kirkham v. Julien^ 109 ; Wilkinson v. Brown, 121 ; Kearton
V. Richardson, 125 ; Stuart v. BeUon, 125a ; Colonial Bank v. Bahhage, 126 ;
Dyke v. Elliott, 133 ; Finnorun v. Weir, 136 ; Wadham v. Buttle, 155 ;
Btickett V. JKnobhe, 167 and 168 ; Belaney v. Sandhurst Building Society^
179; Colonial Bank v. Boache, 187.)

CoSrtS^T 124u In the event of the recovery of any land by action of ejectment

order the from a fraudulent proprietor or from any of the persons against whom action
f!?M^ti7 ^^ ©j^tment is not by this Act expressly barred it shall be lawful for the
in the regia- Supreme Court to make an order for cancelling or alteriuff any certificate
obtftined of title or Other instrument or entry in the register book relating to the
fraud*Mid ^^^ ^*^^ *^^ ^^^ substituting any fresh certificate of title or instrument or
the snbstita. entry in lieu thereof and ordering such other acts and instruments to be
oOier^eni^ douo and executed as such court shall under the circumstances deem
necessary and just and the Begistrar- General shall give effect to any such
order. {Be Wm. Biggs, 59; Cullen v. Thompson, 74 ; Brady v. Brady, 75.)

Begistmtioii 126. For the purposc of bringing an action of ejectment against any

S^e«iuii»! porson against whom such action is not expressly barred or for the purpose
i^tto of suing for damages as hereinafter provided the registration as proprietor
'^^^'■'*""^^ of the person against whom such action or suit is brought shall be equivalent

to possession bv him of the land in respect to which such action is brought.

(Sharpe v. Haaley, 8 ; Featherstone v. Hanlon 4 j Chomley v. Firehrace, 21 ;

Qallash et uxor v. Schutz, 22 ; Coleman and Clarke v. Biria, 46 ; Cullen v.

Thompson, 74 ; Franklin v. Ind, 156 ; ex parte Brown, 185 ; Vicknall v.

Heymanson, 188 ; Bobertson v. £eith, 195 ; McQeary v. Brodziak, 213.)

PerMiis de. 126* Any person deprived of any land or of any estate or interest in

bringM^ln^ land in consequence of fraud or in consequence of the issue of a certificate
against of title to any other person or in consequence of any entry in the register
proprietor book or of any error or omission in any certificate of title or in any entry
for damagef in the register book may bring and prosecute an action at law in the
Supreme Court for the recovery of damages against the person who derived
benefit by such fraud or in consequence of the issue of such certificate of
title or by such entry or in consequence of such error or omission Provided
always that no such action shall lie or be sustained unless the same shall be
commenced within six years from the date of such deprivation except never-
theless that any person being under the disability of coverture or infancy or
absence from the colony or of unsoundness cf ::^.ad may bring such action
within six years firom tne date on which such disability shall have ceased



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QUEENSLAND EEAL PEOPEETT ACT— No. 1. 145

Froyided also that notliiiig in this Act contained shall be interpreted to SaTingtiio
Bnbject to any action of ejectment or for recovery of damages any purchaser ^^"Jy ^r
or mortgagee bona fide for yaluable consideration of any land under the mortgagM
proTisions of this Act although his vendor or mortgagor may have beenj^dderi^
registered as proprietor through fraud or error or may have derived ^joj^ ^ ^.^
from or through a person registered ai^ proprietor through fraud or error no.ws. si'
whether by wrong description of land or of its boundaries or otherwise.
(National Bank v. National Mortgage and Agency Oompanvy 12 ; Saunden v.
Oaboi, 15 ; Stoekdale v. Hamilton, 154 ; Wadham v. buttle, 155 ; Franklin
v. 2nd, 156. N. 110; S. 185 ; T. 62, 113.)

127. In case the person against whom such action for damages is if registered
directed to be brought shall be dead or shall have been adjudged insolvent O wtfra*
or shall have absconded out of the jurisdiction of the Supreme Court then in ^ beagamst
such case it shall be lawful to bring an action for damages against the e^e*^?^
Begistrar-General as nominal defendant for the purposes of recovering J^^^^
the amount of the said damages and costs against the assurance fund
hereinbefore described and in any such case and also in any case in

which damages may be awarded in any action against the person deriving
benefit by any fraud or in consequence of the issue of^any certificate
of title or otherwise as aforesaid and the sheriff shall make a return
of nulla bona or shall certify that the full amount with costs awarded
cannot be recovered from such person the Treasurer of the colony upon
receipt of a certificate of a judge of the Supreme Court and of a warrant
under the hand of the G-overnor as hereinafter provided shall pay the
amount of such damages and costs or the unrecovered balance thereof
as the case may be and shall charge the same to the account of the
assurance fund Provided always that the assurance fund shall not be
liable for payment of any damages after the eipiration of six years from
the time when the cause of action arose Provided also that any person so
absconding beyond the jurisdiction if subsequently found within the
torisdiction shall be liable to be sued in the name of the Begistrar- General
for the amount of the damages and costs so recovered from the assurance
fund. (J^. 119.)

128. Every action which shall be brought by any person te recover AoUons for
damages for or by reason of any loss or damage occasioned by any omission JJ^^ ®'
mistake or misfeasance of the Eegistrar-Genend or any of his ofi&cers or may in
clerks in the execution of their duties under the provisions of this Act shall ^^j^^
be brought against the Begistrar- G-eneral as nominal defendant and in case mnst&e
in any such action the plaintifE recover final judgment against such nominal q^^^u
defendant then upon the application or motion of such plaintiff any judge JJgj^^
of the Supreme Court shall and he is hereby directed to certify to the nS^4i vio.
Treasurer the fact of such judgment having been recovered and the amount ^^- ^® •• ^
of damages and costs recovered and thereupon or before the expiration of Treasurer
two calendar months after such judgment is so certified the said Treasurer w^Smt'^**^^
upon the receipt of a warrant under the hand of the Governor shall pay the ^^^^^^
amount of such damages and costs to the person recovering the same his ^oim?o?
executors or administrators and shall charge the same to the account of the ^^^^
assurance fund hereinbefore described Provided always that notice in Kotioe of
writing of every such action and of the cause thereof shall be served upon JJJi^^n^®
the Attomey-C^eneral and also upon the Begistrar- General one calendar Begistnur.
month at least before the commencement of such action Provided also that a.^^bj^
the Begistrar-G^eneral shall not be personally chargeable upon any judgment oeami



10



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146 QUEENSLAND REAL PEOPEETT ACT— No. 1.

recoYered as aforesaid nor shall any process or notice in or relating to any
ProoMs and such action (ozcept as aforesaid) be seryed upon the Begistrar-G^eneral but
22^ Jj^ all such processes and notices shall be served upon the Attorney- General
A^r^- for the time being. (Oakden v. Qibhs, 7 ; Fotheringham v. Archer, 10 ;

Anderson v. Maori Sill Borough, 103 ; Schroeder v. Sareourt, 104 ; Van

Damme y. Bloxam, 106. N. 120; Z. 180 : S. 208 ; T. 62-128 : V. 61-128,

66-147.)

Sw^Sned 1^* ^ ^ ^ "^^^ action judgment be given in favour of the nominal
or plaintiff defendant or the plaintifE discontinue or become nonsuit the plaintiff shall
thi?S^Li ^® liable to nay the full costs of defending such action and the same when
dof^djnt taxed shall be levied in the name of the nominal defendant by the like
^ts process of execution as in other actions on the case. (Kirkham v. Oat^enter,

BagiBfcrar. HI. Z. 188 ; T. 62-129.)
G6n6ral may

■Qinmon 130* If any grant certificate of title or other instrument affecting land

%^a oer- tinder the provisions of this Act or any entry memorandum or endorsement
titi?OT entry ^^ ^^ upou any such instrument shall be fraudulently or wrongfully obtained
haabewi ffom or procurod to be made or issued by the Eegistrar- General or if any
otJJJS!^'^^ such instrument shall be wrongftiUy retained by any person it shall be
ft»iiy Ob. lawful for the Eegistrar-Q-enerii to summon before him the person who
*"" shall have so fraudulently or wrongfully obtained or retained the same or

^sr^Xi P^^^^^^^ ^^® same to be made or issued and in case such person shall not
Begistrar- attend at the time so appointed having no lawful impediment to be notified
wij^i™*^ to the Eegistrar-General at the time so appointed the Eegistrar-General
warrant for may apply to a judge of the Supreme Court to issue a warrant authorising
to^i wp^ and directing some person to be therein named to apprehend and arrest the
hendedand nersou SO summoued and bring him before a judge of the Supreme Court
befolre a ioT examination and such judge shall thereupon issue a warrant for that
S$5^e*^* purpose,
onrt jgj j^ ^^^^ .^ gj^^l^ 1^^ shown by aflSdavit to the satisfaction of the

Mn*keJp^ Eegistrar-General that the person to whom a summons ought to be directed
oftheway^ as noreinbcf Ore mentioned is keeping out of the way and cannot be
JJ^'JJ" personally served therewith and that due pains have been taken to effect
sarrod upon such personal sorvice it shall be lawful for the Eegistrar- General to order
OT mSSTof ^y endorsement upon the summons that the delivery of a copy of such
too^* laoe ■^"°'^^^"' ^ *^® ^"^® ^' scrvaut of somo adult inmate of the house or family
of abode of such porsou at his usual or last known place of abode or business after
the purport thereof has been explained to such wife servant or inmate shall
be equivalent to personal service and in every such case the service of such
summons in pursuance of such order shall be deemed and taken to be of the
PartT ap. same force and effect to all intents and purposes as if the part^ to whom
peanng may euch summous was directed had been personally served therewith.

be examined ^ ''

on oath \212, TTpou the appearance before the Eegistrar-General or court or

G^^nOor j^dgo of any person summoned or brought up by virtue of a warrant as
S?d« SS^ aforesaid it stall be lawful for the E^strar-G^eneral or court or judge to
deUreryof oxamiue such person upon oath and in case the same shall seem proper to
themrtru. order such person to deliver up such grant certificate of title or other
incaaeof instrument as aforesaid and upon refusal or neglect by such person to
neffieot or deliver up the same within a time to be named for that purpose in such
oertiflJatoJr Order the Eegistrar-General shall issue to the proprietor of the said land
otber inatn^ such Certificate of title or other instrument as is herein provided to be
uS^t*'^ issued in the case of any grant or certificate of title being lost mislaid or



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QUEENSLAND EEAL PEOPEETT ACT— No. 1. 147

destro^red and the Segistrar-General shall enter in the register book notice
of the issuing of the said certificate of title or other instrument and the
circumstances under which the same was issued and such other particulars
as haying regard to the estate or interest of the registered proprietor of such
land he maj deem necessary to enter therein.

133* If the person who is charged with haying so fraudulently or wrong- if party
fully obtained from or procured to be made or issued by the Eegistrar- jJJSS^g,
General or with having wrongfully retained such grant certificate of title or to bo con-
other instrument of such enti^ memorandum or endorsement as hereinbefore th?^"f°
mentioned shall be proyed to the satisfaction of the Eegistrar- G-eneral or party attend-
court or judge to haye absconded so that the judge's warrant or summons of SSSoSs or
the Eegistrar- General cannot be served upon him the same proceedings may ^""^^t
then be taken as if such person had been duly summoned or been brought
up by virtue of a warrant as aforesaid and had refused or neglected to
deliver up such grant certificate of title or other instrument. (Sharpe v.
Sadley, 3 ; Ooher y. Spence, 5 ; Fisher y. Stewart, 44 ; Banh of Victoria y.
Bawlingsy 62 ; re Turnery QQ ; Campbell y. Jarrett, 96. Z. 183.)

134. In every proceedine; under this Act relating to any summons Begiatnr-
examination or warrant it shall be lawful for the Eegistrar- General court or ^t^**'
judge to give to or withhold from any of the persons who may attend any »ward oosta
such proceedings his reasonable costs and expenses and to direct b^ whom " ®^p*°^
such costs and expenses are to be borne and paid. (JETaZZ v. Mally 98 ;
JS^trton v. Bichardson, 125 ; Ashley v. Oooh, 137, 160 ; Campbell y. Jarretty 96,

142 ; Wilson v. King, 166 ; Miller y. Stewart, 172 ; Shacketl y. Lindsay, 174.)

135. In case such costs and expenses shall not be paid pursuant to the Cotti unpaid
direction for payment thereof the amount of such costs and expenses shall Il^^by
be levied by distress and the Eegistrar- General or judge shall issue his dirtreaa
warrant of distress accordingly and the sum therein directed to be levied

BbaU be levied by distress and sale of the goods and chattels of the person
liable to pay the same and the overplus arising from the sale of such goods
and chattels after satisfying such sum of money and the expenses of the
distress and sale shall be returned on demand to t£e person whose goods shall
have been distrained.

136. No distress levied by virtue of this Act shall be deemed unlawful No distress
nor shall any person making the same be deemed a trespasser on account ^f^wiAt
of any defect or want of form in the application warrant of distress or other o'^nn
proceeding relating thereto nor shall such person be deemed a trespasser ab

initio on account of any irregularity afterwards committed by him but all
persons aggrieved by such defect or irregularity may recover fuU satisfaction
tor the speciid damage in an action on the case. (Jellicoe v. Wellington Loan
Cb., 50 J Boss v. MoNeil, 118; Hart v. Stratton, 119.)

137* The Begistrar-General shall not except as hereinbefore is provided indenmity
be subject to be sued or prosecuted by any person whomsoever on account SSSf'*'"
of any act done or default made by him in nis character of Eegistrar- General
unless the same has happened through his wilful act or default and the person
goods or lands of the Eegistrar-General shall not be liable to execution of
any legal process by reason of any act or default made or done by him in
his character of Eegistrar-General but he shall be indemnified out of the
assurance fund or out of the general revenues of the colony in case such
assurance fund shall prove to be insufficient in respect of all losses costs or



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148 QTJEENSLAND BBAL PEOPBETT ACT— No. 1.

damages whicli may be incurred or recovered b^ any person under any action
or suit brought or prosecuted under the provisions of this Act touching or
concerning any matter or thing relating to the execution of this Act and
the powers hereby granted. {Biggs v. Waterhouse^ 68 ; re John Eaton^ IM.)

UTeS-*^ 13®' •^^'y person summoned to attend before the Begistrar-G^neral

penMs tiea- as a wituess in respect of any instrument required to be produced or any act

"*'** matter or thing by this Act authorised to be done proceeded with or enquired

into by or before the Begistrar- General shall have his necessary expenses

tendered to him in like manner as is now by law required upon service of a

subpoena to a witness in an action at law.

waSSI?*^ ^ 139. The Begistrar-G-eneral shall not receive any application for bring-

ngmer j^^ \s,uA uudor the provisions of this Act or any instruments purporting to

deal with or affecting any land under the provisions of this Act unless there

shall be 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 the Eegistrar-General

shall not be required to compare the said instrument with the duplicate

thereof and shall not incur or Decome subject to any liability action or other

PeiMitj for proceeding in consequence of any error mistake or discrepancy therein but

JJJJJJS?' the person who shall falsely or negligently certifiy to the correctness of any

inBtromeAtt Buch application or other instrument shall incur therefore a penalty not

exceeding fifty pounds Provided always that such penalty shall not prevent

the person who may have sustained any damage or loss in consequence of

error or mistake in any such certified instrument or any duplicate thereof from

recovering damages againt the person who shall have certified the same.

(OuthherUon v. atoann, 144. N. 104; Z. 39; S. 282, 273; T. 62-107;

V. 66-34.)

SSwi^* 140. It shall be lawful for the Begistrar-General to charge and recover

such fees as shall be appointed by the Governor of the said colony with the



Online LibraryAustraliaThe land transfer laws of Australasia: being the full text with side notes ... → online text (page 30 of 83)