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

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enabled to produce and such application shall state the estate or interest in
such land claimed by him and the nature of every estate or interest held by
other persons at law or in equity in such land within the applicant g
knowledge and that he verily believes himself to be entitled to tne estate
or interest in such land in respect of which he applies to be registered and
the statement made in such application shall be verified by the oath or
statutory declaration of such applicant Provided always that the applicant
shall surrender the existing grant or certificate or other instrument of title
of the land in respect to which he claims to be registered prior to his being
entered in the register book as hereinafter mentioned unless the production
of such grant or certificate or other instrument of title be duly dispensed

with. Protisionfl of

Prinoipal

33. The several provisions of the Principal Act respecting applications ^^^^
to bring land under the provisions thereof shall so tar as the same arei«Qdiioderit
applicable extend and apply to all applications made under the last preced- ll^pS^^

incr section. fortmnsmis-

° non

34. "Whenever transmission shall take place by reason of an adjudica- TraMmis-
tion of insolvency on which a transmission has been entered under the terod^i^
eighty-sixth section of the Principal Act being annulled an office copy or ^^^
other duly certified copy of the order annulling the adjudication shall be snbse^^itiy
left with the Eegistrar-General and he shall thereupon enter a memorandum •^«"®^
of the particulars of such order in the register book against any property
undisposed of under the previous entry and upon such entry being made the
person named in that behalf in the order annulling the adjudication or if no

Serson be so named then the person who was adjudged insolvent shall be
eemed to be the proprietor of the property so undisposed of. {Pannan y.
Pannan, 18 ; Wildaah v. Hutchison, 132.)

35. Whenever any land under the provisions of this Act or any estate ^^*
or interest therein or security thereon shall have been sold under any
judgment or writ of execution registered under the ninety-first section of

the Principal Act the Sheriff or the Eegistrar of the District Court (as the
case may be) shall execute a transfer thereof to the purchaser in form
TJ of the schedule hereto Such transfer shall be subject to all equitable
mortgages and liens notified by any caveat lodged with the Begistrar-
General prior to the date of the registration of the writ of execution and to



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164 QUEENSLAND BEAL PEOPEBTY ACT— No. 2,

all other encumbrances liens and interests notified bj memorandum entered
on the register and the Registrar- General shall on receiving such transfer
make an entry thereof in the register book and on the making of such entry
the purchaser shall subject as aforesaid be deemed the transferee or owner
of such land estate interest or security. {Neil y. Adams, 180 ; Seath v.
Anderson, 192 ; Robertson v. Keith, 195 ; re A, Bosquet. 202. N. 92 ; S.
7M.)

SlS^-*^ 36. Every caveat left under the provisions of the Principal Act with

dressee of the Eomstfar- General shall state so far as the caveator can do so the name



wSom"ti»e* and address of the person to whom the same is required to be notified by tbo

•amfisreto "^ ' " '^ " - •» • ■ • ' •• * .-. ^ . . , . .

be notified



Eegistrar-Qeneral under the ninety-ninth section of the Principal Act.



Notifloation 37. Notifications under the said ninety-ninth section may be sent

be poiSed*^ through the post in a prepaid registered letter addressed to the person

entitled to notice at his last known place of abode and if so sent shall be

sufficient.

to!ua«eted 3®* ^^^ person interested presently prospectively or otherwise in land

may procure or any estate or interest in or security upon land or any instrument affecting
wmT* ^' ^^^ whose right to deal therewith or to have any entry made in the register
with respect thereto is forbidden by any caveat or who is otherwise pre*
judicially affected by such caveat may proceed to procure the removal of
such caveat in the manner provided oy the ninety-ninth section of the
Principal Act. {Ex parte Pennington, 64 ; re Chas, Williamson, 65 ; re
Turner, 66 ; re Rayton, 67 ; re David Jones, 68. Z. 144 ; S. 191-6 ; V.
85-75.)

UpaToniMe 39. After the expiration of three calendar months from the lod^ent

proceedings with the Eegistrar- General of any caveat under the ninety-eighth section of
''^^ the Principal Act such caveat shall be deemed to have lapsed unless it shall

have been lodged with the written consent of an equitable mortgagee or the
registered proprietor of the land affected thereby or unless the person by whom
or on whose behalf the same was lodged shall within that time have taken
proceedings in any court of competent jurisdiction to establish his title to
the estate or interest therein specified and shall have given written notice
thereof to the Registrar- General. {Summers ex parte At/lwin, 62. N. 81 ;
S. 191-11.)

Second 40. Whenever any caveat shall have lapsed under the last preceding

bVSdgcd on section or shall have been ordered to be removed by any order made by the
^vadM Supreme Court or a judge thereof it shall not be lawful for the same person

to lodge another caveat on directly or substantially the same grounds upon

which the caveat so ordered to be removed was lodged.

LirtBof 41 The Registrar- General shall prepare and cause to be published in

ro^^rs to *^® ^^s* week of January in every year in the Gazette a list containing the
be ^liaiwd names and addresses of all persons licensed as surveyors under the one
"^ ^ hundred and eighteenth section of the Principal Act.

Licensed 42- Every person licensed as a surveyor for the purposes of this Act

cowSt*" ^ w^o sl"^ ^fl'VO made an error in any work entrusted to hun to be executed
OTTors at and which in compliance with the provisions of this Act is necessary to be
e^wise" done by such surveyor shall be liable at the request of the person so

entrustmg him or of the Eegistrar-Qeneral to correct such error at his own

expense.



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QUEENSLAND EEAL PEOPBBTT ACT— No. 2, 165

43. The licences of persons licensed as surveyors for the purposes of Licensed ^
this Act may be suspended or cancelled by the Eegistrar-General for J^^'^^y
negligence want of skill untrustworthiness or inability to perform their be "▼oked
duties Provided that any person whose licence shall he cancelled shall be ^^'■''■p®^^*^
eligible to receive a fresh licence at any time thereafter.

44. The Governor in Council may appoint a Board consisting of not ^PP^**y



more than five persons to whom an append shall lie by any person ag^eved Teyon to^e
by any action of the Registrar- General under the last preceding section and *o^oMd
the decision of such Board shall be final.

45. The Eegistrar-General may from time to time subject to the S^^^J:
approval of the Gt)vemor in Council make such regulations as may be makeregoia-
necessary to carry out the provisions of the last four preceding sections ou?iilrt^foS
and such regulations when published in the Oazette shall have the force of aeotions
law . {JEa parte Band, 89.)

46. Whenever the Supreme Court shall make any order that any land ^|^« ,
under the provisions of this Act or any estate or interest therein or security regiet«red^
thereon shall vest in any person for all the estate of the registered proprietor

of such land estate or interest or security the Eegistrar-General slmll on
production of such order to him enter the particulars thereof in the register
book anil mak^and issue all such certificates of title or other instruments as
may be necessary to give full efEect to such order.

47. "Whenever an action of ejectment shall be brought against a^?^*^^^
registered proprietor or any person holding a grant or certificate of title in defendant
any case other than the case of a fraudulent proprietor in which an action jliSilSi.
of ejectment is not barred by the Principal Act if the defendant or any g^^7®™*»
person through whom he claims shall have made improvements on the land mJy be ^
since obtaining a certificate of title thereto then whether he admit or deny •»««**^
the plaintiff's title he may give notice to the plaintiff of 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 shaU assess the
value of the alleged improvements 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. [Briggs v. Waterhouse, 58] And if ^pi^ttff
the plaintiff shall fail to make such payment within three months after pay fS im-
verdict he shall have judgment to recover the sum separately ^.^sessed Pj^^«»tj^
as the value of the land together with costs of suit and no more andtodamAgee
the defendant shaH upon satisfaction thereof be entitled to retain thej^'^^j^
land and improvements and in either case the Begistrar- General shall be proved laad
entitled under the powers in the Principal Act contained to require to
be delivered up any certificate of title which shall he held by the party EegiBtr»r-
whose right to the land shall have determined. (N. 116, 134. See ^^o^^^^J^
Sec. 60 of 1861 Aet) Provided that in every case in which the defen- co-defentUnt
dant shall be entitled to indemnity from the assurance fund the Begis- ^ggiuanoe
trar-General shall be made a co-defendant as trustee of such fund and fond to be
may defend the action either severally or jointly or may leave the defence f^ mSJT
wholly to his co-defendant as he shall see fit and in no case shall the {SJJdb*
assurance fund be liable to the principal defendant for any greater damages d«tend«at



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166 QUEENSLAND EEAL PBOPEETT ACT— No. 2.

than he shall actually sustain as the result of such action after using all
reasonable diligence in the defence thereof. (jOakden v. Qibht^ 7 ; Moyle y.
Qibh8, 49. N. 116, 124 ; Z. 63 ; V. 62-167.)

^*J«?^ 48* Every instrument signed by a proprietor or by others claiming

ment to^on' through or Under him purporting to pass an estate or interest in or securiW
S^^^JJ upon land for the registration of which provision is made by this Act shall
until registered be deemed to confer upon the person intended to take under
such instrument or other person claiming through or under him a right or
claim to the registration of such estate interest or security And the
Hegistrar-G^neral upon application made for that purpose by any person
other than the person immediately claiming under or in respect of the
instrument signed by a proprietor may either reject such app»lication
altogether or register the applicant as proprietor of the land estate interest
or security forthwith or at the expiration of some defined period of time and
may further direct such other entries to be made as may be in his opinion
necessary Provided that no such registration or entry as last aforesaid
which would interfere with the right of any person claiming under any
instrument previously registered under this Act snail be made except subject
thereto.

Frorifionfor 49. If any person entitled to be registered as the proprietor of any
Sf5SSS*of ^° ^^^^ estate or interest under the provisions of this Act jsaall die before
^rTriJtor ^^^^^ registered such land estate or interest shall be transmitted in like
udPdeaiing manner as if such deceased person had actually been registered as the
StOT^faJ?" proprietor thereof And any person claiming an estate or interest in land
Btramento under the provisions of this Act by virtue of unregistered instruments or
S^^J^^ other documents purporting to pass such estate or interest shall be deemed
a person entitled to be registered within the meaning of this section and the
Begistrar-Gleneral upon application to register an estate or interest so
claimed may either reject such application altogether or register the appli-
cant as proprietor of the land estate interest or security forthwith or at the
expiration of some defined period of time and may further direct such other
entries to be made and notices to be publishea as may be in his opinion
necessary Provided that no such registration or entry as last aforesaid
which would interfere with the right of any person claiming under any
instrument previously registered under this Act shall be made except subject
thereto.
BMrohMftnd 50, Any porsou shall upon payment of the fees prescribed by the
re^erad Principal Act De entitled to search for demand and obtain copies of any
inBtromeats instrument affecting land under the provisions of this Act which shall have
been lodged or deposited in the office of the Eegistrar- General whether the
same shall have been cancelled or not. (N. 103 ; S. 65 ; V . 66, 141.)

£quit«bie 51. Nothing contained in this Act shall be consl^med to take away or

nouboHAed aff©<5t the jurisdiction of the courts of law and equity on the ground of
actual fraud or over contracts or agreements for the sale or other msposition
of Ismd or over equitable interests generally And the intention of this Act
i« that without prejudice to the provisions therein contained for preventing
the particulars of any trusts from being entered in the register book and
without prejudice to the powers of disposition or other powers conferred by
this Act on proprietors of land or of any estate or interest in or security
upon land under the provisions of this Act equities may be enforced against
such proprietors in respect of their estate interest or security in the same
manner as equities may be enforced against proprietors in respect of land



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QUEENSLAND EEAL PEOPBETT ACT— No. 2. 167

not nnder the proyisionB of this Act Provided that no unregistered estate
interest security contract or agreement shall prevail against the title of
anv subsequent purchaser for valuable consideration duly registered under
this Act. {KUsUng v. Mitchelaotiy 123.)

52. This Act shall commence and take effect on and from the first day Commwwo.
of January one thousand eight hundred and seventy-eight. "®°' ^ ^



THE SCHEDTJLE.— T.

QtrEEKSLAlTD.

Momorandnm of Trangfer combined with Oreation of Charge.

This indenture made this day of 18 between A.B.

of registered as proprietor of the fee-simple of the land herein

described of the one part and C, D. of of the other part witnesseth

That in consideration of the sum of paid by the said C. D. to the

said A. B. the receipt whereof is hereby acknowledged [if there he any
valuable consideration other than money it must be also specified'] and in further
consideration of the charge hereby created the said A. B. doth hereby release
and transfer unto the said C. D. and his heirs all that piece of land situated
in the county of parish of containing more or less

commencing \here set out description'] and being the land described in the
Crown grant [or certificate of title] No. register book volume

folio and all his estate right title and interest therein to hold the same

subject to such encumbrances liens and interests as are notified by memo-
randum endorsed hereon and subject also to the charge [or easement] intended
to be hereby created as hereinafter expressed. And this indenture further
witnesseth that in consideration of the premises and to completely
effectuate the agreement upon which these presents are executed the said
C.D. doth hereby declare that he accepts the transfer hereinbefore contained
subject to the following conditions viz. — [Here state the particulars of the
charge or easement as in a bill of mortgage or conveyance of an easement]
Signed sealed and delivered &c, I desire that a certificate of title in my name
may issue with memorandum of encumbrance thereon accordingly. C. D.

[or]

Queensland.

Memorandum of Transfer combined with Oreation of Charge.

This indenture made this day of 18 between A. B.

of registered as proprietor of the fee-simple of the land herein

described of the first part and C. D. of of the second part and E. F.

of the third part witnesseth that in consideration of the sum of
paid by the said C. D. to the said A. B. the receipt whereof is hereby
acknowledged [if there be any valuable consideration other than money it must
be also specified] the said A. B. doth hereby release and transfer unto the
said CD. and his heirs all that piece of land situated in the county of

parish of containing more or less commencing

[here set out description] and being the land described in Crown grant [or
certificate of title] No. register book volume folio and all

his estate right title and interest therein to hold the same subject to such
encumbrances liens and interests as are notified by memorandum endorsed
hereon and subject also to the charge [or easement] intended to be hereby



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168



QUEENSLAND INTESTACY ACT.



created as hereinafter expressed. And tliis indenture further witnesseth
that in consideration that £. E. hath advanced to the said C. D. £
the said C. D. doth hereby declare that the land hereby transferred shall be
charged and subject to the following conditions — [Here state the particulars
of the charge or easement as in a hill or mortgage'] Signed sealed and delivered
<&c. I desire that a certificate of title in my name may issue with memo-
randum of encumbrance thereon accordingly.



QXTBENSLAKD.

Memorandum qf Transfer under writ ofji, fa.

I [insert name] as the Sheriff of Queensland [the person appointed to
execute the writ hereinafter mentioned] in pursuance of a writ oifi.fa. tested
the day of and issued out of the Supreme Court [or as the

case may he] in an action wherein is the plaintifE and the

defendant which said is registered as the proprietor of an estate

[here state nature of the estate or as the case may he] in the land [or as the
case may he] hereinafter described do hereby in consideration of the sum of
pounds paid to me by E. F. [insert addition] bargain sell release
and transfer from to the said E. F. and his heirs all the estate and

interest of the said in all that piece of land situated in the county

of parish of containing more or less commencing

[here set out description] and being the land described in Crown grant [or
certificate of title] No. register book volume folio

to hold the same subject to such encumbrances liens and interests as are
notified by memorandum endorsed hereon. In witness whereof I have here-
unto subscribed my name this day of Signed on the day
above named by the said [Sheriff^ in the presence of Mortgages
and encumbrances referred to.



THE



1878.



QUEENSLAND INTESTACY ACT,

Preamble \\t HEREAS it is expedient to alter the succession to real estate and to
W amend the law relating to the distribution and administration of
the estates of persons who die intestate and to make provision for the due
administration of* such estates and of the estates of such other deceased
persons as are left unadministered and further to amend the law relating to
wills and intestacy Be it therefore enacted bv the Queen's Most G-racious
Majesty by and with the advice ond consent of the Legislative Council and
Legislative Assembly of Queensland in Parliament assembled and by the
autnority of the same as follows —

1. In the interpretation of this Act the following terms shall unless the
context otherwise indicate have the meanings set against them respectively
that is to say — LAND — Any freehold land (including an estate pur autre vie
whether it would heretofore have passed or gone to heirs or to executors or
administrators) whereof the owner had power to dispose by will otherwise
than solely by appointment by will or writing in the nature of a will in
exercise of a power or whereof the owner being a married woman would
have had such power of disposition otherwise than as aforesaid had she been
0^j^^ afemme sole &OODS — Any leasehold lands or other chattels real and any
moneys shares of Government or other funds securities for money debts
choses in action rights credits goods and other property whatsoever not



Inteiprete-
tion

Land



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QUEENSLAND EEAL PROPEETY ACT— No. 2. 169

being land which would heretofore have passed or gone to an execator or
administrator ESTATE — The land or goods or both as the case may be E«tftte
of a deceased person CURATOE— The Curator of Intestate Estates Cu»tor
appointed under this Act ADMINISTBATOE— The Curator or other AdmiDiatra-
administrator appointed under this Act whether of real or personal ^'
estate.

2. This Act is divided into five parts that is to say— PAET I.— DiTisioii of
Ourator of Intestate Estates PAET IL—Belattnato Beal Estate PAET

in. — Belating to Personal Estate PAET TV. — Relating to Administration
PAET "Y,— General Provisions.

3. to 10. [Eelating to Curator of Intestate Estates only,]

PART II.

Eeal Estate.

11. Whenever any person shall hereafter die being at the time of his Land of
decease seized or possessed of or otherwise entitled to any land within the a^SHSTto*
Colony of Queensland and shall not by his will have disposed of such land Curator
then such land shall instead of descending to his heir at law as heretofore

pass to and become invested in the Curator of Intestate Estates. {Be
MeCaHhy, 19.)

12. The Supreme Court or a judge thereof may by a grant of letters of AdminiBtm-
administration in the manner heretofore used as to personal estate appoint mly'b^^
any person to be administrator of the land of any such deceased person appointed
and upon such appointment being made all the land' of such deceased person
whereof he had not disposed by his will shall be divested from the Curator

and become vested in the administrator so appointed. No application for
any such grant shall be made until seven days after notice in writing of the
intention to make such application shall have been left at the office of the
Curator.

13. All land of any deceased person whereof he shall not have disposed HfJ*^^
by his will shall be divisible and distributable in the same manner as tnbatabie in
personal estate is now divisible and distributable and amongst the same manner m
persons aud the Curator or other administrator shall administer and personalty
distribute the same accordingly. (Saunders v. Cabot, 15. T. 74-12)

14. The title of any administrator appointed under this Act to theTheti^f
land to be administered and to the rents and profits thereof shall upon such Sitr^or to"'
appointment being made relate back to and be deemed to have arisen upon ^JS ^ the**
toe death of the owner of such lands as if there had been no interval of death of the
time between such death and appointment Provided that any acts lawfully ^^^
done by the Curator before the appointment of the administrator shall be

as valid and efEectual as if they had been done by the administrator. (T.
74-14; V. 74-14.)

15. The practice and proceedings upon granting letters of administra- P«>o»«<i»«a
tion of the goods of a person dying intestate shall be applicable so far as

may be to the grant oi letters of {^ministration of land under this Act and
administration of both land and goods may be granted by the same letters. Srery ad.

, ministrator

16- The Curator and every administrator of land appointed under this under this
Act shall be deemed a trustee within the meaning of any statute now or d^^ »
hereafter to be in force relating to trusts and trustees. (Pannan v. Pannan, truatoo with-

— ^ -mM- j^ -T *«. mte^«^ ■»▼ A A te ,. \ mstatuteeoi

18 ; re MeCarihy, 19. T. 74-16 ; V. 66-74.) tnuts



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170 QUEENSLAND EEAL PEOPERTT ACT— No. 2.

OMeofUnd 17- WhoD any person shall have heretofore died or shall hereafter die

deTiMi*not l^^vi^g made a will devising any land within the colony of Queensland and
ftppetfiDK or the devisees thereof shall not within six months after the death of the
being infanta ^^^g^^p }^q^^q taken possossion of the land or the devisees shall be infants
the Curator upon information on oath being given to him of the facts may



Online LibraryAustraliaThe land transfer laws of Australasia: being the full text with side notes ... → online text (page 33 of 83)