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

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of the lease-
hold interest
of an insoU
Tent or
assignormay
be entered
as transferee
of a lease



Protection
to subse-
quAnt mort-
gagees and
enoom-
branoeee



Where
Official
Keoeiver,
trustee, and
mortgagee
neglect to
become
proprietors



of a trustee under sucb insolyency, enter in tbe Begister Book a memo-
randum notifying the same, and thereupon the Official Eeceiver, or the
trustee under such insolvency, as the case may be, shall be the registered
proprietor of the estate and interest of the insolvent and of tbe trustee
und!er sucb assignment in the land.

173. In any case where the registered proprietor of a lease has here-
tofore, or shall hereafter, become insolvent, or has heretofore made or shall
hereafter make, a statutory assignment —

(i) If such lease be not mortgaged or encumbered under tbe
provisions of this Act, the Registrar- General shall, upon tbe
application in writing of the lessor, accompanied by a statement in
vn'iting, signed by the Official Eeceiver or the trustee under such
insolvency or assignment, certifying his refusal to accept such lease,
enter in the Register Book a note of sucb refusal, and sucb entry
shall operate as a surrender of such lease :

(n) If such lease be mortgaged or encumbered, the Registrar-GFeneral
shall, upon the application in writing of any mortgagee or
encumbrancee, accompanied by a statement in writing signed by
the Official Receiver, or the trustee under such insolvency or
assignment, certifying his refusal to accept such lease, or by proof
that the Official Receiver or trustee has neglected or refused to
certify such refusal or to become registered as proprietor of sucb
lease within one month after being thereunto required by notice
in writing given to him by the mortgagee or encumbrancee, enter
in the Register Book a noto of such refusal or neglect, and sucb
entry shall operate as a foreclosure, and the estate or interest of
the insolvent or assignor in such lease shall thereupon vest in sucb
mortgagee or encumbrancee, free from all other charges subsequent
to bis mortgage or encumbrance, and sucb mortgagee or
encumbrancee shall thereupon be deemed to be the registered
proprietor of sucb estate or interest, and shall, while he remains
such registered proprietor be subject to and liable for the same
requirements and liabilities to which he would have been subject
and liable if named in the lease originally as lessee : ( Wildaah v.
Hutchison, 132 ; re O'Connell, 169 )

(hi) No such entry shall be made unless it be proved to tbe satisfaction
of the Registrar- General that the applicant mortgagee, or
encumbrancee, has given fourteen days' notice in writing of bis
intended application to every subsequent mortgagee or encum-
brancee of the lease, or has obtained his written consent ; and any
such subsequent mortgagee or encumbrancee shall be entitled to
pay to the applicant mortgagee or encumbrancee the amount due
to him under nis mortgage or encumbrance, with costs, at any time
before foreclosure, and shall thereupon be entitled to a transfer
from him of sucb mortgage or encumbrance. ( 8t, George y.
Burr,ett, 67; Jonet y. Sellick, 78; Meg, v. Tidemany 99; Van
Damme v. Bloxam, 105 ; Delaney v. Sandhurst Building Society ^
179. K115.)

(rv) If the Official Receiver or the trustee under the insolvency or
assignment shall certify his refusal to accept the lease, or shall
neglect or refuse to become registered as proprietor of tbe lease,
within one month after having been thereunto required by notice



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SOTTTH AFSTBALIAN EBAL PEOPBBTT ACT. 211

in writing given' to him by the lessor, and the mortgagees or
encumbraneees (if any) of the lease shall neglect or refuse to have
an entry operating as a foreclosure made in the Eegister Book
under the provision in that behalf hereinbefore contained within
the period of two months after having been thereunto required by
notice in writing given to them by the lessor, the Eegistrar- General
shall, upon the application in writing of the lessor, and, upon
proof of such certificate or such neglect or refusal as aforesaid,
enter in the Eegister Book a note of such neglect or refusal, and
every such entry shall operate as a surrender of such lease.
(JVildash V. HutchUon, 132. Q. 61-55 ; T. 62-77 ; V. 66-107.)

174. Under the preceding provisions as regards a lessee becoming Entry of
insolvent or making a statutory assignment, no entry of surrender or fore- SSJfosSre'
closure respectively shall prejudice any cause of action in respect of any "^®^^
breach or non-observance of any covenants in such lease, encumbrance, or oaaM o?
mortgage respectively contained or implied which shall have accrued pre- ^^^^
viously to such lessee becoming insolvent or making a statutory assignment.

175. On the death of the registered proprietor of any estate or interest ^J^^f^^^
in land, his estate or interest shall be transmitted to his executor or admi- of deoeaMd
nistrator, or to the Public Trustee in any case where the Court shall make an p*"**"
order authorising the Public Trustee to administer the estate of the deceased
registered propnetor.

176. The executor, administrator, or Public Trustee shall, before dealing ^^^^
with such estate or interest, make application in writing to the Eegistrar- msuchoaae
General to be registered as proprietor, and shall produce to the Eegistrar-
General the duplicate certificate, or other instrument of title, and the probate

or letters of administration, or the order of the Court authorising the Public
Trustee to administer the estate of the deceased registered proprietor, or an
office copy of the probate, letters of administration, or order, as the case
may be.

177. The Eegistrar-General shall thereupon enter in the Eegister Book, Jfjj^"^
and on such duplicate, a memorial of the date of the will and of the probate, be ma3^ in
letters of administration, or order of the Court, as aforesaid, the aate and SIbS^^^
hour of the production of the same to him, and the date of the death of such trar-G^nerai
registered proprietor, when the same can be ascertained, with such other
particulars as he may deem necessary. (Fannan v. Fannatij 18.)

178. Upon such entry being made in the Eegister Book, the executor, ^f'^L
administrator, or Public Trustee, as the case ma^ be, shall be the registered
proprietor of such estate or interest, and his title shall relate back to and

take effect from the date of the death of the deceased registered proprietor.
(^Parman v. Panncmy 18.)

179. Where probate or letters of administration shall be granted to JJ^J^*^^
more persons than one^ all of them for the time being shall concur in every exeOTtow
instrument relating to the real estate of the deceased registered proprietor, t^f!^'
(^Sattnders v. Cabot, 15 ; Fannan v. Fannan, 16, 18 ; McArtnei/ v, Kesiersan, ^ colour
17 ; re McOarthy, 19 ; Ckmpbell v. Jarrett, 142.) Penons

180. Any person registered in place of a deceased registered proprietor, registered in
or as Official Eleceiver, or as trustee of a registered proprietor becoming SecSiMd,
insolvent or making a statutory assignment, shall hold the land in respect of *°"^2'*®'
which he is so registered upon the trusts and for the purposes for which the J?!)prietor,^
same is applicable by law ; but shall, for the purpose of any dealing with J?o^®o?bSd"
such land, be deemed to be the absolute proprietor thereof. forporpoM



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Proceedings
incase
ezeontor
refuses to
transfer



Court may
order
transfer to
person
entitled



212 SOUTH AFSTEALIAN EEAL PEOPEETT ACT.

181. Whenever an executor, or administrator, or the Public Trustee, is
registered as proprietor of any land, and shall refuse, or, after tender of a
transfer, unnecesparily delay to transfer such land to the devisee, next of
kin, heir-at-law, or other person entitled thereto, the person claiming to be
entitled to the land may, by motion or summons before the Court, apply for
an order that the executor, administrator, or Public Trustee shall transfer
the said land to him.

182. The Court may either refuse such application, with or without
costs, to be paid by the applicant, or may make an order for the transfer, and
may direct the transferor personally to pay all the costs of such application
and any damages the person aggrievea may have sustained, or may order
such costs to be paid out of the estate of the deceased registered proprietor,
or in such other manner as the Court may think proper.

d^de*que8- 183. The Court may, on any such application, decide on questions
tions of title, relating to the title of any person party to the application or proceeding,
and generally may decide any question that it may De necessary or expedient
to decide for the purpose oi ordering the laijd to be transferred, or may
direct an action to be brought or an issue to be tried in which the rights of
the parties may be decided, or any question of law settled.

184. Whenever any registered proprietor of land under the provisions
of this Act shall appear to the Court to be a trustee of such land within the
intent and meaning of " The Trustee Act, 1855," or otherwise, and any
order shall be made by the Court vesting such land in any other person, the
Begistrar- General shall, on being served with an office copy of such order,
enter in the Eegister Book and on the duplicate certificate, or other instru-
ment of title to the land, the date of the order, the date and hour of its
production to him, and the name, residence, and description of the person
m whom the order shall purport to vest the said land ; and, upon such entry
in the Eegister Book, such person shall be the registered proprietor of the
land ; and unless and until such entry in the Eegister Book shall be made,
the order shall have no effect or operation in transferring or otherwise
vesting the land.

185. Every trustee who shall be registered as proprietor of any land,
shall, on being indemnified, be bound to allow his name to be used by any
beneficiary, or person claiming an estate or interest in the land, as plaintiff
or defendant in any action for recovery of possession of the land or any
part thereof. And, in case there shall be any dispute as to the sufficiency
of any indemnity, the same shall be decided by the Master of the Court.
(Be Xerr, 6 ; Oahden v. QMa, 7 ; Oriffin v. Dtmn, 8 ; Louch v. Ball, 9 ;
Fotheringham v. ArcJier, 10 ; 8lach v. Downton, 11. N. 110; T. 62-113 ; Q.
61-81, 61-126.)

froS^SSi. ^^®* "^^ person contracting or dealing with, or taking or proposing to

tered pro-' take a transfer or other instrument from the registered proprietor of any
gbJSfeSed estate or interest in land, shall be required, or in any manner concerned to
by notice inquire into or ascertain the circumstances under, or the consideration for,
which such registered proprietor or any previous registered proprietor of
such estate or interest is or was registered, or to see to the application of
the purchase-money, nor be affected by notice direct or constructive of any
trust or unregistered interest, any law or equity to the contrary notwith-
standing.



Begistrar-
Oeneralto
carry out
order of
Court Test-
ing trust
esUte



Action may
be brought
by person
olaimin^
beneficial
interest in
name of
trustee



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SOUTH AUSTRALIAN EEAL PEOPEETY ACT. 213

187* Tlie last preceding section shall not protect any person who has Except in
acted fraudulently or been a party to fraud, but the contracting, or dealing, o»^of fr»^
or taking, or proposing to take a transfer or other instrument as aforesaid
with actual knowledge of any trust, charge, or unregistered instrument,
shall not of itself be imputed as fraud. {National Bank y. National Mortgage
and Agency Company, 12 ; Biggi v. Waterhowe, 58 ; Colonial Bank y. Pie,
107. N. 130 ; Z. 200 ; Q. 61, 126, 142 ; V. 66-153.)

188. Upon the death of any person registered together with any other Jf^jjjlj^^r*"
person as joint proprietor of any estate or interest in land, or when the life of joint pro.
estate in respect of which any certificate has been issued has determined, 5f5p^S2;ider
and the registered estate next in remainder or reversion has become vested man entiued
in possession, or the person to whom such certificate for a life estate has ^otaw^o^
been issued has become entitled to the land for an estate in fee-simple in
possession, the Eegistrar- General shall, upon the application of the person
entitled, and upon proof to his satisfaction of any such occurrence as
aforesaid, make an entry thereof in the Eegister Book, and thereupon such
person shall be the registered proprietor of the estate or interest to which
ne is entitled, as if the same had been transferred to him. {Miller v.
/Stewart, 172. N. 87, 88 ; Z. 18 ; Q. 61-36 ; T. 62-89, 86-216 ; V. 66-4f4, 54.)

189 The Eegistrar- General upon the production of an oflBcial certi- J^^f^®/
ficate, or other sufficient proof of the marriage of a female registered prietor^o^be
projjrietor, shall enter on the Eegister Book and also upon the duplicate the^Sfgistor
certificate, or other instrument evidencing her title, when produced to him Book and
for that purpose, the name and description of her husband, the date and SSTi^Sra'
place of the marriage, and the time of making such entry. (Ux parte Folk, ment of title
170 ; re Pykett, 171. N. 77 ; Z. 165 ; Q. 61-87 ; T. 67-78; V. 66-108.)

190. The husband of any female registered proprietor shall, unless HoBband
she holds the land estate or interest for her separate use, or the same is her ^g^rad as
separate property, be entitled to be registered as co-proprietor in right of co:pro-
his wife ; and the Eegistrar-Q^neral shall, upon application to that effect, ^"®
and upon production of the duplicate cert^cate, or other instrument of title,
comply with such application ; and upon the husband being so registered,
he shall be seized of and entitled to the same estate and interest in the said
land as he would have been had such lands not been under the provisions
of this Act, and until such registration the wife shall, for the purpose
of this Act, be deemed to be the sole proprietor for her separate use.

PART XVI.

Caveats.

191* Any settlor of land or beneficiary claiming under a will or Caveats
settlement, or any person claiming to be interested at law or in equity,
whether under an agreement, or under an unregistered instrument, or other-
wise howsoever in any land, may lodge a caveat with the Eegistrar-Gteneral
forbidding the registration of any dealing with such land, either absolutely
or unless such dealing shall be expressed to be subject to the claim of the
caveator, or to any conditions conformable to law expressed therein : —

(i) A caveat may be in the form or to the eff'ect of the Twelfth Form of
Schedule hereto, and shall be under the hand and verified by the ^^**^
declaration of the caveator or his agent, and shall contain an "^^^
address within the city of Adelaide to which notices may be sent
or at which proceedings may be served :



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monB
oareator



214 SOUTH AUSTRALIAN EEAL PEOPEBTT ACT.

B«gi8tr«r- (n) TJpon the receipt of a caveat the Begistrar-G^eneral shall make a

SSkSmeSo- memorandum thereon of the date and hour of the receipt.thereof,

nadum of and shall enter a memorandum thereof in the Register Book, and

'^^*^^ shall forthwith send a notice of such caveat through the post

office to the person against whose title such caveat shall have been
lodged, diredied to his address appearing in the Register Book :

ro^iaur (^ ®^ ^^^ *® ^^^ cavcat shall remain in force the Registrar-General

dMdmgs shall not, contrary to the requirements thereof, register any deal-

m^mT^ to jQg, y^^Yi the land in respect of which such caveat shall have been

lodged :

SSMt^d ^^^ '^^ registered proprietor or any other person claiming estate or

Bujsnm- interest in the land, may by summons, call upon any caveator

including the Registrar-General, to attend before the Court to
show cause why the caveat should not be removed ; and the Court
may, upon proof that the caveator has been summoned, and upon
sucn evidence as the Court may require, make such order in the
premises, either err parte or otherwise, as shall seem just. (Sodding-
ton V. SackeU, 72. Z. 66-117 ; T. 62-88.)
mlTwiyto ^^^ "^^^ caveatee may, except when the caveat is lodged by a settlor,
hftTo cftToat or by a beneficiary under a will or settiement, or by the Registrar-

"^^^•^ General under rart XX. of this Act, make application in writing

to the Registrar-General to remove the caveat, and shall in sucn
application give an address in Adelaide to which notices or pro-
ceedings reUting to the caveat may be sent, and the Registrar-
General shall thereupon give twenty-one days* notice in writing to
the caveator, requiring that the caveat be withdrawn :
JJ^g^' ^ (vi) The Registrar-General shall, after the lapse of twenty-one davs
diTChArfi^g from the posting of such notice to the address mentioned in the

^•^••* caveat, or of such extended time as may be ordered by the Court

remove the caveat from the Register Book by entering therein a
memorandum that the same is discharged. {JEa parte Pennington,
64 ; re Ohas, Williameon, 65 ; re Twnier, 66 ; re Sayton ex parte
Dibbi, 67 ; re Davis Jonee, 68. Z. 86-75 ; Q. 77-38 ; V. 144.)
CftTMtor (vn) The caveator mav appljr to the Court, by motion or summons, for

cll^i^t^ an order to extend the time beyond the twenty-one days mentioned

S^d^time ^^ ^^^'^ notice, and notice of such motion or such summons may be

served at the address given in the application of the caveatee ; and
the Court may, upon proof of the service of such notice of motion
or summons, and upon such evidence as the Court may require,
make such order in the premises, either ex parte or otherwise, as
shall seem just.
M»y with. (vni) Any caveator may, by notice in writing to the Registrar- General

draw o»Te»t withdraw his caveat at any time ; but the Court may, notwithstanding

SS*? '^- ^^^'^ withdrawal, order payment by the caveator to the caveatee or

meDfc'o^ooats Other porsou interested of any costs incurred by the caveatee prior

to the receipt by him of notice in writing of the withdrawal of the
caveat. (Sharpe v. Radley^ 3 ; Coker v. I^ence^ 5 ; Msher v. Stewartp
44 ; Bank of Victoria v. Bawlingi, 52 ; re Twrner, 66 ; re Oraig, 76;
Watton V. Watson, 93 ; Campbell v. Jarrett, 96, 142 ; re FeamUw, 97 ;
Mall V. Hall, 98 ; Kearton v. Bichardson, 125; Aihlevy. Oook, 187,
160; Qrey v. Watson, 152 ; Wilson v. King, 166 ; MiUer v. Stewart^
172 ; Shackell v. Lindsay, 174.)



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SOUTH ATTSTEALIAN EEAL PEOPEETT ACT. 216

(re) An entry shall be made hj the Eegistrar-General in the Eegister Entry to be
Book of any order made by the Court relating to any caveat, or of ™*^*
the withdrawal, lapse, or removal of any caveat.

(i) Any caveator other than the Eegistrar-Gteneral who shall have 5?^"*3to
lodged or refused or neglected to withdraw any caveat wrongfully entSJ order
and without reasonable cause, shall be liable to make compensation of Court
to any person who may have sustained damage thereby, and OftTantor,
such compensation may be recovered by action. Provided that, if r^J^.
proceedin£:s shall have been taken in the Court by the caveatee or Geueni,



proceedings shall have been taken in the Court by i

other person interested, the amount of such compensation may be ^e



liable to
oom-



assessed by the Court acting in the same proceedings ; or the Court pen^tion
may direct an action to be brought to ascertain and recover such
amount. (Be Kennedy, 23 ; re NeUon Bros,, 36 ; Bonnin v. Andrew*,
85 ; Droop v. Colonial Bank, 122 ; Kissling v. MitcheUon^ 123.
See note to See. 44, ante, N. 109 ; V. 69-12.)

(xi) It shall not be lawful for any caveator other than the Eegistrar- Nottoiodgo
General, (ft for any one acting on behalf of such caveator, to lodge SjSirwith.
a further caveat relating to the same matter without the leave of oat leare
the Court. (N. 81 ; Q. 61-98, 77-30.)

(xii) Where any caveat lodged by the Eegistrar-General shall beconrtmaj
removed by the Court, such Court may order the costs sustained ^ ^JJ^by
by the person at whose instance such caveat was removed to be Begistrar.
paid out of the estate on behalf of which such caveat was entered, ^o^by

Court

PART XVII.

Ejbctmekt.

192, Any of the following persons, in the following sections called sammons to
" the claimant," may cause any person in possession of land under the ^jjj^^n
provisions of this Act to be summoned to appear before a Judge in chambers

to sho^ cause why the person summoned should not give up possession to
the claimant. {Feathentone v. Hanlon, 4 ; Slack v. Doumton, 11 ; Pannan
V. Pannan, 16 ; re Sellare, 82 ; Coleman Sf Clark v. Biria^ 46 ; Sandert v.
Wadham, 88 ; Jonee v. Sellick, 78 ; Kirkham v. Julien, 109 ; Dyke v. Elliott,
183 ; Finnoran v. Weir, 136 ; Wilkinson v. Brown, 121 ; Kearton v. Biehard-
son, 126 ; Colonial Bank v. Bahhage, 126 ; Wadham v. Buttle, 155 ; BuckettY,
Kkobbe, 167, 168 ; Delaney v. Sandhurst Building Society ^ 179 ; Colonial Bank
V. Boache, 187.)

(i) The registered proprietor of a freehold estate in possession :

(n) Any registered mortgagee or encumbrancee where the person in
possession is a mortgagor or encumbrancer in default, or a person
claiming under such mortgagor or encumbrancer :

(m) Any lessor with power to re-enter where the rent is in arrear for
three months, whether there be or be not sufficient distress found on
the premises to countervail such rent, and whether or not any
previous demand shall have been made for the rent :

(rv) Any lessor where a legal notice to quit has been given, or the
lease become forfeited, or the term of the lease has expired.

193. The summons shall contain a description of the land, and shall sammons to
require the person summoned to appear at the Judge's chambers on a day J^JJ^tjon
not earlier tnan sixteen days after the service of the summons, and there- of imS



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216 SOUTH AUSTRALIAN EEAL PEOPEETY ACT.

upon, or BO eoon thereafter as a Judge shall be in attendance, the same shall
come on to be heard. The summons shall be served in the same manner as a
writ of summons in an action for the recovery of possession of land in the
Supreme Court. (Equitable Building Society v. Boss^ 140; Wadham y.
Buttle and others^ 155.)

194. If, on the hearing of the summons, the person summoned do not
nuj^rder appear, then upon proof of the service of the summons, and of the claimant's
poMMri^ ^^^^®» ^^ ^^ *^® production of a consent to an order by the person summoned,

the Judge may order immediate possession to be given to the claimant.
Judge 195. If the person summoned shall appear, the Judge shall hear the

J^g^^J]^ summons, and may make such order thereon and impose such terms as he may
with oorts, think fit. Provided that in the case of a lessor against a lessee, if the lessee
*®* before or at the hearing pay or tender all rent due, and all costs incurred

by the lessor, the Judge may dismiss the summons.
Dismiaaai VdQ. The dismissal of any such summons shall not prejudice the right

of "jamoM of the claimant to take any other proceedings against the person summoned
dfoe o^r °' to which he may be entitled.

"* ** 197. Every order for possession under this part of this Act shall have

OTde?for *^® effect of, and may be enforced in, the same manner as a judgment in the
poBMssion Court for the recovery of possession of land.

Writ of 198, Any claimant having obtained an order for possession under the

*^*^*/'»<*»* provisions hereof, shall be entitled to enter and take possession of the land
SmISST*^ mentioned in the order, without issuing a writ of habere facias if there shall
**^ be no person in actual possession of the land, or if the person in possession

shall voluntarily give up possession to the claimant.
Exiting 199. Nothing hereinbefore contained shall repeal, affect, or abridge

MMlwTod *^y remedies to which a claimant is otherwise entitled. (JBecUh v. Anderson^

192. V. 66-12.)

Local Court 200< Local Courts of Full Jurisdiction shall have jurisdiction to try

^ply^to^tWi ^tions of ejectment in respect of land under the provisions of this Act, and

Act other actions in respect of such land in the same manner as though the

words "The Eeal Property Act, 1886," were substituted for the words

" The Real Property Act, 1860," in the " Local Court Act, 1861," or in any

Act amending or repealing the same.



Online LibraryAustraliaThe land transfer laws of Australasia: being the full text with side notes ... → online text (page 40 of 83)