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

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PART XVIIL

The Assubancb Fitnd.

Contribn- 201. Upou the first bringing of land under the provisions of this Act,

i€v?ed for Consequent upon the application of the owner as hereinbefore provided, and

Msoranoe of and also upou the registration of the title to an estate of freehold in land

derived through transmission in consequence of the death of a registered

proprietor, there shall be paid to the Registrar- General the sum specified in

Fij^ that behalf in the First Schedule hereto, and the value of the land shall be

® ascertained by the declaration of the applicant : Provided that the Eegistrar-

G^era^ General may, if he shall not be satisned as to the correctness of the value

requiro ^? SO declared, require the applicant to produce a certificate of such value under

T^Si** ^' *^® hnxidi of a sworn valuator, which certificate shall be received as conclusive

evidence of the value for the purpose aforesaid. {Be Thompson and

ChippSy 70 ; re Fearnley, 97 ; re Wm, Wadham^ 114 ; ex parte Davies

and Inman, 208 ; re Williamson, 209 ; ex parte Vincent, 210 ; ex parte The

Metropolitan Building Society, 211.)



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SOUTH AUSTRALIAN EEAL PROPERTY ACT. 217

202. All sums of money received as aforesaid shall be paid to the Assnranoe
Treasurer, for the public uses of the said province. ^^ pubKo

203- Any person deprived of land in consequence of fraud, or through p^ty
the bringing of such land under the provisions of this Act, or of any Act ^^"^ °'
hereby repealed, or by the registration of any other person as proprietor of suef^oom-
such land, or in consequence of any error, omission or misdescription in any p«"**>o**
certificate, or in any entry or memorial in the Register Book, may bring and
prosecute an action at law for the recovery of compensation against the
person upon whose application such land was brought under the provisions
of this Act, or of any Act hereby repealed, or such erroneous registration
was made, or who acquired title to the land through such fraud, error,
omission, or misdescription. (Biggs v. Wat^rhouse, 58. N. 117 ; T. 62-125 ;
V. 66.M4.)

204. Except in the case of fraud, or of error occasioned bv any Eionera-
omission, misrepresentation, or misdescription in the application of such priitor^iSer
person to bring the land under the provisions of this Act, or of any of the ^JJufgjp**''^
Acts hereby repealed, or to be registered as p.oprietor of such land, or in JnccrttdT^
any instrument executed by him, such person shall, upon a transfer of such ^""
land, hona fide for value, cease to be liable for the payment of any
compensation which but for such transfer might have been recovered from

him under the provisions herein contained.

205. In any such case of cesser of liability, and also in any case where Proceedingt
the person agamst whom such action for compensation is permitted to be SSSstrar-
brought as aforesaid shall be dead, or shall have been adjudged insolvent or General, m
made a statutory assignment, or cannot be found within the jurisdiction of defendant
the Court, it it shall be lawful to take proceedings against the Registrar-
General, as nominal defendant, as hereinafter provided, for the purpose of
recovering the amount of compensation and costs from the Assurance Fund.

206. In any case where compensation shall be awarded against any when com.
person other than the Registrar- General, and the SherifE or bailiff shall SSSJ3S3"in
make a return of nulla hona or of no effects^ or shall certify that the full ^^'^ b°e
amount awarded with costs, cannot be recovered, the Treasurer, upon reoorered
receipt of a certificate under the hand of the Master or Clerk of the Court I^YiUbic
before which the action was tried, of the amount remaining unsatisfied, and

of a warrant under the hand of the Governor countersigned by the Chief
Secretary, shall pay the amount of such compensation and costs or the
unsatisfied balance thereof, as the case may be, and charge the same to the
account of the Assurance Fund. {Bonninv, Andrewt, 85. N. 116, 124;
Z. 53 ; Q. 77-47 ; T. 62-183 ; V. 66-151.)

207. Nothing in this Act contained shall leave subject to action for Porchasen,
recovery of compensation as aforesaid, or to action for recovery of possession t^i^^
of land, or to deprivation of the estate or interest in respect of which he is
registered as proprietor, any transferee, mortgagee, or encumbrancee, or
lessee, hona fide for valuable consideration of land on the ground that the
proprietor, through or under whom he claims, or any previous proprietor has •
been registered as proprietor through fraud or error, whether such fraud or

error shall consist m wrong description of boundaries, or parcels, or other-
wise howsoever. {Mudgway v. Davy and Buick, 1 ; Featherstone v. Hnnlon,
4 ; Colonial Bank v. Pie, 107 ; Uassett v. Colonial Bank, 173 ; Main v.
BoherUon, 191. N. 118 ; V. 66-145.)



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218 SOUTH ATJSTEALIAN EBAL PEOPBRTT ACT.



Proo«edings
against the
Registrar-
General aa
nominal
defendant



Notice of
action to be
served on
Registrar-
General and
Attorney-
General

Value of
bnildings to
bo ezcladed



Persons
claiming
ma:f , before
taking pro-
oeedingSy
applj to the
Registrar-
General in
writing for
compensa-
tion



Assurance
Fund not
liable tor
breach of
trust, or
improper
exercise of
power of
sale.

Nor for mis-
description
of boun.
daries or
parcels,
ezcei)t in
certain
cases



Claims
against the
Assurance '
Fund, how
enforced

Mode ol
application
by claimant



208. Any person sustaining loss or damage through any omission,
mistake, or misfeasance of the Registrar- G-eneral or any of his officers or
clerks in the execution of their respective duties under the provisions of this
Act, or of any Act hereby repealed, and any person deprived of any land
through the bringing of the same under the provisions ot this Act, or of any
Act hereby repealed, or by the registration of any other person as proprietor
of such land, or by any error, omission, or misdescription in any certificate,
or in any entry or memorial in the Begister Book, and who by the provisions
of this Act is barred from bringing an action for the recovery of such land,
may, in any case in which the remedy by action for recovery of compensa-
tion as hereinbefore provided is banned, or inapplicable, institute proceedings
against the Eegistrar- General, as nominal defendant, for recovery of
compensation as hereinafter provided, but notice in writing of the intention
to institute such proceedings, and of the cause thereof, shall be served upon
the Attorney-Q-eneral and upon the Eegistrar- General one month at least
before the commencement of such proceedings. (Z. 180; Q. 61-128; V.
66-147.)

209. In estimating the compensation for any deprivation or loss under
this part of this Act, the value of all buildings and other improvements
erected or made subsequently to such deprivation or loss, and with notice
thereof shall be excluded.

210. Any person sustaining loss or damage in any case in which he
shall be entitled to institute proceedings to recover compensation against
the Registrar- General as nominal defendant, may, before commencing sach
proceedings, make application in writing to the Registrar- General, for
compensation, and such application shall be supported by affidavit or
declaration. If the Registrar- General admits the claim, or any part thereof,
and certifies accordingly, the Governor may, if he shall think fit, issue a
warrant to the Treasurer for payment of the amount so certified out of the
Assurance Fund. {Bonnin v. Andrews^ 85.)

211. The Assurance Fund shall not under any circumstances be liable
for compensation for loss, damage, or deprivation occasioned \>j any breach
by a registered proprietor of any trust, whether express, implied, or con-
structive, or by the improper exercise of any power of sale expressed or
implied in any mortgage or encumbrance. (Z. 185.)

212. The Assurance Fund shall not be liable for compensation for loss,
damage, or deprivation occasioned by any land being included in the same
certificate with other land, through misdescription of boundaries or parcels,
unless it shall appear that no person is liable or that the person liable for
compensation is dead, or cannot be found within the jurisdiction of the
Court, or has been adjudged insolvent, or has made a statutory assignment,
or the Sheriff or bailiff shall certify that such person is unable to pay the
full amount and costs awarded in any action for recovery of such compensa-
tion ; and in the last-mentioned case the said fund shall be liable for such
amount only as the Sheriff or bailiff shall fail to recover from such person.

213. All proceediugs against the Registrar-General as nominal defen-
dant, for the purpose of obtaining compensation from the Assurance Fund,
shall be instituted and carried on in the following manner : —

(i) The claimant shall apply to the Court upon affidavit for a rule or
summons calling upon the Registrar-General, as nominal defendant,
to show cause why compensation should not be paid out of the



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SOUTH AFSTBAUAN EEAL PBOPEETY ACT. 219

Assurance Encd to the claimant ; and tbe Court may grant a rule
or summons accordingly, and such rule or summons shall be
returnable not less than seven days after service thereof, on the
Eegistrar-General :

(ii) The Eegistrar-General may show cause against such rule or g^^rai^^y
summons, and the Court may thereupon, or if no cause be shown, show cause
upon proof of service of the rule or summons, make absolute or
discharge the same, or make such order as the circumstances shall
require, with or without costs ; or may, if satisfied that other
persons should be represented on the rule or summons, require such
persons to be served with notice thereof, and for that purpose
adjourn the consideration of the rule or summons :

(ill) The Court may direct any question of fact to be decided before Coort m»y
the said Court, and either with or without a jury, and for that ^orofl!^'
purpose mav direct an issue to be tried wherein the claimant shall to ^ tne^
be plaintiff, and the Eegistrar-General and such person or persons
(if any) as the Court shall direct, shall be defendant or defendants,
and the Court shall direct when and where the trial of such issue
shall take place ; and may adiourn the further consideration of the
rule or summons until after the trial of the issue. (^8ee note to Sec,
189, ante,)

(iv) The Court may also direct the parties to the proceedings or issue Couh may
to produce on oath all deeds, books, papers, and writings in their alS^tfoS'iJf
custody or power, before the Court or the Master, on a day to be p»p«»
named by the Court, and each party shall have liberty to inspect
the same, and take copies thereof, at his own expense ; and such
of them as either party shall give notice to have produced at the
trial shall be produced accordingly ;

(v) The issue (if any) may be in the following form, or in such other Form o
form as the Court shall approve : — ""^^

In the Supreme Court,

The day of in the year of our Lord, 18

South Australia 1 Whereas A. B. affirms, and C. D. denies [here
to toity ) state the questions of fact to he tried] and

it has been ordered by His Honor Mr Justice according to

" The Eeal Property Act, 1886," that the said questions shall be
tried by a Jury : Therefore let the same be tried accordingly. And
in case the piurties differ upon the questions of fact to be tried, the
Court may either settle the same or refer them to the Master :

(vi) After the trial of the issue the Court may, upon further considera- Court may
tion of the rule or summons, make such order, either with or with- S?er Safof
out costs, as the circumstances shall require : "«°®

(vn) Every order of the Court on such rule or summons shall have the Effect of
effect of a judgment of the Court in an action. (Bonnin v. ^
Andrews, 85.)

(viii) The Treasurer shall, on the production of any such order directing Treasurer to
payment of compensation with or without costs out of the Assurance H^oa^'
Fund, pay the same accordingly.



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220 SOtJTH ATJSTEALIAN BEAL PfiOPEETT ACT.



Proceedings
where same
land is
incladed in
two or more
grants firom
the Crown

Assoranoe
Fund not
liable in
snchcase

Limitation
of actions



If person
damaged
ffuilty of
laeM, jndg<
ment to ^
against bun



214. Any person deprived of any land in consequence of any such land
having been included in two or more grants from the Crown, may commence
and prosecute proceedings for the recovery of damages against such person
as the Governor may appoint as nominal defendant, in manner provided for
by Act No. 6 of 1853, or by any other Act for enforcing pecuniary claims
against Her Majesty, her heirs and successors, and in every such case the
Assurance Fund shall not be liable for compensation. {Ea parte Mlwm,
48 ; Moyle v. Gibbs, 49. Z. 2-30, 186 ; T. 86-9 ; V. 66-59.)

215. No application to the Eegistrar- Genera] nor action or proceeding
for compensation for or by reason of any deprivation, loss, or damage
occasioned or sustained as aforesaid, shall be made, brought, or taken,
except within the period of twenty years from the time when the right to
make such application or bring or take such action or proceeding first accrued.
{Mudgway v. Davy and Buick, 1 ; Featherstone v. Hanlon^ 4 ; re 0* Briefly 34 ;
re Knapman, 41 ; Moyle v. Oibbs, 49. N. 122 ; T. 62-180.)

216» If it shall appear to the satisfaction of the Court by which or
before whom such action or proceeding shall be adjudicated upon that the
' plaintilS or claimant or the person through or under whom he claims or
derives title, had actual notice of the fact occasioning the deprivation, loss,
or damage complained of, and wilfully or negligently omitted to lodge a
caveat, or allowed a caveat to lapse, or otherwise neglected to protect him-
self against such deprivation, loss, or damage, judgment shall be given
against the plaintiff or claimant in such action or proceeding. {Mudgtoay v.
Davy Sf Buick, 1 ; Butler v. Saddle Hill Mining Company, 163. Z. 188 )

217. Any amount paid out of the Assurance Fund in consequence of
any person being dead, or having been adjudged insolvent, or having made
a statutory assignment, or in consequence of its not being possible to find
any person within the jurisdiction of the Court, shall be aeemed to have
been paid on account of such person.

Moneys paid 218. Whenever any amount has been paid out of the Ajssurance Fund

am^^m ^° account of any person who shall be dead, such amount may be recovered

Fund may be from the estate of such person by action against his personal representatives,

pecoTered '^^ ^^le name of the Ee^istrar-General. Whenever any such amount has

been so paid on account of a person who shall have been adjudged insolvent,

or made a statutory assignment, such amount shall be considered to be a

debt provable upon the estate of such insolvent or assignor ; and a certificate,

signed by the Treasurer, certifying the fact of such payment out of the

Assurance Fund, and delivered to the Official Eeceiver or trustee, shall be

sufficient proof of such debt. {Moyle v. Oibbs, 49. N. 123 ; T. 62-132 ;

V. 66-150.)

Judgment 210. Whenever any amount has been paid out of the Assurance Fund

entered bj ou accouot of any pcrsou who cannot be found within the jurisdiction of
olSSSffip *^® Court, the Court may, upon the application of the Eegistrar- General,
amount paid and upou production of a certificate signed by the Treasurer certifying that
"" -"""""•^^ ^jj^ amount has been paid in satisfaction of an order on proceedings taken
against the [Registrar- General as nominal defendant, allow the Begistrar-
Oeneral to sign judgment against such person forthwith for the amount so
paid out of the Assurance Fund, together with the costs of the appbcation ;
and such judgment shall be final, and shall have the effect of a final judg-
ment in an ordinary action, and execution thereon may issue immediately.



Payments
out of
Assuranoe
Fund to be
deemed
made on
account of
certain per-
sons



on account
of absent
persons



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SOUTH AUSTRALIAN EEAL PEOPEBTl* ACT. 221



PART XIX.

Special Powsbs ajstd Duties of Registbab-Gekebal.
220. The Eegistrar-General may exercise the following powers, that is Powew

»v Begistrw

*J General

(1) He may summon the proprietor or other person making application to compel
to have any land brought under the provisions of this Act, or the JJ^^^^^^**
proprietor, or mortgagee, or any other person interested in any ments "
land in respect of which any instrument, transmission, or other
dealing is about to be registered, issued or transacted, to produce

any document of title, instrument of title, or other instrument in
his possession or under his control afEecting such land, or the title
thereto, and to appear and give any explanation or information
respecting such land, and the documents and instruments of title
relating thereto, and may examine any such person in respect To examine
thereof ; and the Registrar-General, if the document, instrument, ^JJ^^^
explanation, or information required by him be withheld, and the
same appear 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 or issuing of such instrument, transmission, or
dealing as the case may be. (N. 78-5 ; Q. 61-46, 95 ; V. 66-126.)

(2) He may administer oaths, or, in lieu of administering an oath, may Toadminii.
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 ; T. 62-11-3 ; V. 66-70.)

(8) He shall, whenever the production of any duplicate certificate, or Totwmnon
other instrument of title is required, for the purpose of entering g«^" ^^
or making on the same any memorial or entry by this Act directed swaion o?'
to be entered or made thereon, or for the purpose of cancelling or 2S»trument
correcting the same under the provisions of tnis Act, summon any
proprietor, mortgagee, encumbrancee, or other person having the
possession, custody, or control thereof, to produce the same for
such purpose, and such proprietor, mortgagee, encumbrancee, or
other person shall thereupon produce the same on payment of a
sum 01 One Pound Provided that he may, at his discretion, before
so summoning any person, require evidence that such person has
neglected or refused to produce such duplicate instrument on being
requested so to do, and on being offered a reasonable sum for bis
expenses of production. {Skarpe v. Hadley, 3 ; Wiggins^ app. v.
Hammilly reap,^ 38 ; ex parte Bighy^ 77 ; Campbell v. Jarrett, 96 ;
Ashley v. Cook, 137 ; HasseU v. Colonial Bank, 138.)

(4) He shall, upon such evidence as shall appear to him sufficient in Toooneot
that behalf, correct errors in certificates, or in the Register Book, ®"*"
or in entries made therein respectively, and supply omitted entries :
Provided that, in the correction of any 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, and bis initials.
Every certificate, or 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 instrument which may have
been registered previously to the actual time of correcting the
error or supplying the omitted entry; (N. 11-4; Z. 68; Q.
61-11^; T. 62-11-4; V. 66-129.)



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222 SOUTH AUSTRALIAN HEAL PEOPBETT ACT.



ToeDt«r



SluUl with,
draw oftveftt
on peyment
of monej

Toftlter
forma of
inttniment,
&o.



HftyreqoiEe
map to be
deposited



To diipente
with the
duplicAtef of
oertiilcstee
and other
inetnunentt
inoertain
caees



Bat notice to
begiTen
before regia>
tering any



(5) He may, on behalf of Her Majesty, her heirs or successors, or for
the preyention of any fraud or improper dealing, or in any case in
which it shall appear to him that an error has been made by
misdescription or otherwise in any instrument or for the protection
of aDy person absent from the province, or under the disability of
infancy, coverture, lunacy, or uusoundness of mind, enter caveats
forbidding: the registration of any instrument, transmission, or
dealing affecting any land : (Be Jones, 116. N. 78-9, 12, 11-6 ; Z.
21-137 ; Q. 61-11-6 ; T. 62-11-6 ; V. 60-21, 2, 3, 4.)

(6) He shall, where a caveat is entered to protect a sum of money,
upon payment of such sum to him, withdraw such caveat :

(7) He may, with the consent of the Governor, from time to time,
make such alterations in the several forms of instruments prescribed
in the Schedules hereto as he mav deem requisite ; and every form
of instrument so altered shall be published in the Chvemment
Oazette, and may thereafter be used in lieu of, and shall have the
same effect as, the corresponding form prescribed by this Act, and
shall be deemed an authorised form : (Barker v. Weld, 31. T.
62-92 ; V. 66-127.)

(8) He may require any person applying to bring land under the pro-
visions of this Act, or any registered proprietor desiring to transfer
or otlierwise to deal with the land or any portion of the land
comprised in his certificate, or other instrument of title, to deposit
with him a map or plan of such land, verified by the declaration of
a licensed surveyor ; and if such person or proprietor shall neglect
or refuse to comply with such requirement, it shall not be
incumbent on the Eegistrar-Oeneral to proceed with the bringing
of such land under the provisions of this Act, or with the registra-
tion of such transfer or dealing :

(9) He may dispense with the production of any duplicate instrument
upon which any memorial of a transfer or other dealing is by this
Act required or authorised to be entered or made ; and upon the
registration in any such case of a transfer or other dealing the
B^strar-General shall notify in the memorial in the Begister
Book that no such entry has been made on the duplicate instru-
ment ; and such transfer or other dealing shall thereupon be as
valid and effectuid as if the duplicate instrument bad been
produced and such memorial or entry had been entered or made
thereon: Provided that, before dispensing with the production
of any such duplicate instrument, and before registering suoh
transfer or other dealing, the Begistrar-Oeneral shall, except in
the case of a transmission, require the transferor or other
party dealing to make a declaration that the duplicate instru-
ment has not been deposited as security for any loan, and is
not subject to any lien other than appears in the Begister Book,
and shall give at least fourteen days' notice of his intention to
register such transfer or dealing in the Ghvernmeni Oazette, and in
at least one newspaper publisned in the city of Adelaide. (N.
78-7, 6,91; Z.205, 218, 11, Ij Q. 61-46, 95; T. 62-93 V. 66,
126, 129.)



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SOUTH ATJSTEALIAN EEAL PEOPEETT ACT. 228

221. If, upon the application of any proprietor to have land brongbt Proprietor
under the provisions of this Act, or to haye any dealing or transmission JJJJ '^^a.
registered or recorded, or to have any instrument or foreclosure order issued, trsr-aenena
or to have any act or duty done or performed which by this Act is ^uisTf
prescribed to be done or performed by the Eegistrar-Q^neral, the Eegistrar- di«»«twfied
G-eneral shall refuse so to do, or, if such proprietor shall be dissatisfied with

the direction upon his application given by the Eegistrar- General such
proprietor may require the feegistrar-Gheneral to set forth, in writing under
his hand, the grounds of his refusal, or the gprounds upon which such
direction was given, and such proprietor may, if he think fit, at his own
cost, summon the Eegistrar- General to appear before the court to sub-
stantiate and uphold the grounds of his refusal or of such direction as
aforesaid. (V. 66-135.)

222. Such summons shall be issued under the hand of a judge, and Hearing of
shall be served upon the Eegistrar-General six clear days at least before the ■'»™°»o°*
day appointed for hearing ; and upon such hearing the Eegistrar-General,

or his counsel, shall open and have the right of reply, and the court may, it

any question of fact be involved, direct an issue to be tried to decide such



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