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

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question, and may make such order in the premises as the circumstances of

the case may require, and the Eegistrar-General shall obey such order.

All expenses of and incidental to any such proceedings shall be borne and Expenses to

paid by the person instituting the same, unless the Court shall certify that Jppu^nt**^

there were no reasonable grounds for such refusal or direction as aforesaid.

(Be Williamson, 209.)

223. The Eegistrar-General may, whenever any Question shall arise Pouw to
with regard to the performance or exercise of any oi the duties by this Qenewifto
Act conferred or imposed upon him, state a case for the opinion of the f^^
Court, and it shall be lawful for the Court to give judgment thereon, and

such judgment shall be binding upon the Eegistrar-General.


Pbocedubb akd Pkn-alties. Si^i?^

224. In the conduct of actions and other proceedings in the Court, ofi^pelS
provided for under the Act, there shall be the same rights of appeal, and the ^^™J,o.
same rules of procedure and practice shall apply as are in force or exist for ©edure to
the time being in respect of actions and other proceedings of a similar S?fdJic?of
nature in such Court, except as the same are varied or altered by the rules •ctionswat
and regulations contained in the Twenty-first Schedule hereto: Provided F^?i"*
that the Judges of the said Court shall have power, from time to time, to Jj^JJJ ®'
make other rules and orders for regulating proceedings in such Court under nature
this Act, and, from time to time, to rescind, alter, or vary such rules and ^f^J^^
orders. (Oakden v. Oibbs, 7 ; Griffin v. Dunn, 8 ; Louch v. Ball, 9 ; ««d orders
FotheHngham v. Archer, 10 ; Slack v. Downton, 11. Z. 199.; ^^i^""

2125* The Judges of the said Court shall have power from time to time p^^ ^f
to fix and regulate the fees payable upon all proceedings before the Court Court
under this Act ; and until the Judges shall otnerwiae order, the fees shall
be according to those payable in respect of proceedings of a similar nature
in the said Court.

226. Any summons issued by the Eegistrar-General under the Form of
authority of this Act may be in the form of the Twenty-second Schedule b^JSS-^^

hereto, OenenO.

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On refosai 227. If any person shall refuse or neglect to obey or comply with the

of p^on reqairements or any such summons the Eegistrar- General may apply to a
Kmmoned Judge for a summons calling upon such person to show cause why he should
G^Simfty not obey or comply with the same, and any Judge may, on the hearing of
Ja§«e'^ such summons, make such order in the premises as he shall think fit, and
unless the Judge shall on such hearing certify that such refusal or neglect
was reasonable, such person shall forfeit ana pay a penalty, to be enforced
by the said Judge, not exceeding One Hundred Pounds.
ti!!M*bef 228. Any declaration under this Act may be made before the

whom to be Eogistrar-Goneral, any Deputy Eegistrar- General, a Notary Public, Justice
°*^® of the Peace, or Commissioner for taking Affidavits in the Supreme Court.

undS^ 229. If any person is guilty of the following offences, or any of them

Act ' (that is to say) : — (1) Forges or procures to be forged or assists in forging

or fraudulently affixes procures to be affixed or assists in affixing the seal
of the Eegistrar- General, or an impression or part of an impression of such
seal to any instrument. {Coleman and Clark v. Hiria, 46 ; Bailey v.
Chrispy 54 ; Beg. v. Tideman, 99.) (2) Forges or procures to be forged op
assists in forging the name, signature, or handwriting of the Eegistrar-
General or of any officer in any case where such officer is by this Act
expressly or impliedly authorised to affix his signature: (X. 132; Z. 200,
201; T. 62-140; V. 66-154.) (3) Stamps, or procures to be stamped, or
assists in stamping, any document with any forged seal purporting to be
the seal of the Eegistrar-General : (4) Forges or procures to be forged
or assists in* forging the name, signature, or handwriting of any person
whomsoever, to any instrument which is by this Act, or in pursuance of any
power contained in this Act, expressly or impliedly authonsed to be signed
by such person : (5) Uses, with an intention to defraud any person whom-
soever, any document upon which any impression or part ot tne impression
of any seal of the Eegistrar-General has been forged, or fraudulently
affixed, knowing the same to have been forged or fraudulently affixed, or
any document the signature to which has been forged, knowing the same to
have been forged : Such person shall be guilty of felony. (N. 133 ; Z.
203; T. 62-141; V. 66-15«.)
Peijnry 230- If any person wilfully makes a false oath or declaration

concerning any instrument, dealing, matter or procedure, under or in
pursuance of this Act, such person shall be guilty of perjury. (Z. 202)
i^shment 231. Axy person convicted of felony or perjury under this Act shall

peijoiy^ °' be liable to imprisonment for any term not exceeding fourteen years, and
to be kept to hard labour and solitary confinement for any part of such term.
(Z. 203.)
Pen^tyfor 232. Any porson who shall falsely or negligently certify to the

SnoorwS;^ corrcctuess of any application or instrument under this Act shall incur
iostnunento therefor a penalty not exceeding Fifty Pounds ; but such penalty shall not
prevent any person sustaining loss or damage in consequence of error
or mistake in any such application or instrument from recovering damages
against the person who shall have certified the same. (N. 104 ; Q. 61-139 ;
T. 62-107.)
Ceruin 233, If any person is guilty of any of the following offences, that is

ActetolSi to say — (1) Wilfully and fraudulently makes any false statement in any
JJ**^*" application to bring land under the provisions of this Act, or in any applica-
meftnoim ^^^ ^^ ^^ registered as proprietor, whether in possession, reversion, remainder
or otherwise on a transmission, or in any other application to be registered

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under this Act as proprietor of any land, or any estate or interest in any
land. (2) Wilfully and fraudulently suppresses, withholds, or conceals, or
assists, or joins in, or is privy to the suppressing, withholding, or concealing
from the Eegistrar- General, the Acting Eegistrar-General, or any Deputy
lieffistrar- General any material document, fact, or matter of information. (3;
Wilfully and fraudulently gives false evidence, or makes a false statement in
his examination before the Eegistrar-G-eneral, the Acting Eegistrar-General or
any Deputy Eegistrar-General (4) Fraudulently procures or makes, or assists
in fraudulently procuring or making, or is privy to the fraudulent procurement
or making of any certificate or other instrument or of any entry in the Eegister
Book, or of any erasure or alteration in any entry in the Eegister Book, or in
any instrument or form issuedby the Eegistrar-General. {Biggs v. Waterhouse,
68.) (5) Fraudulently uses, assists in fraudulently using, or is privy to the
fraudulent using of any form purporting to be issued or sauctioned by the
Eegistrar-General. (6) Knowingly misleads or deceives any person herein-
before authorised to demand explanation or information in respect of any
land, or the title to any laud, which is the subject of any application to
bring the same under the provisions of this Act, or in respect of which any
instrument or dealing is proposed to be registered or recorded. Such person Penalty
shall be guilty of a misdemeanour, and shall incur a penalty not exceeding
Five Hundred Pounds, or may, at the discretion of the Court before which
the case may be tried, be imprisoned with or without hard labour for any
period not exceeding three years. {National Bank v. National Mortgage and
Agency Co., 12. N. 130 j Z. 200 ; T. 162-139, 74-17 ; V. 66-153.)

234. Any certificate, instrument, entry, erasure, or alteration procured Certiacate,
or made by fraud as in the last preceding section mentioned shall, whether ^;i|* "'
there shall be a conviction under such section or not, be void as regards all frand to be
parties or privies to such fraud. ^°*^

235- All penalties for any offence against this Act, or any Act hereby Penalties,
repealed, not made punishable, in the first instance, by imprisonment, or, cohered
in the discretion of the Court, by fine or imprisonment, may be recovered
before a Special Magistrate or two Justices oi the Peace in a summary way
on an information at the instance of any person.

236. AH proceedings for recovery of penalties under this Act may be Proceedings
conducted as appointed by, and shall be regulated under. Ordinance No. 6 justtces
of 1850, and " The Justices Procedure Amendment Act, 1883-4."

237. In every case of the imposition of a pecuniary penally under this Prooeeding^s
Act, and of default in immediate payment thereof, the Special Magistrate pjj^enf of"
or Justices of the Peace imposing such penalty, may commit the person penalty
making default to any gaol in the province for any time not exceeding six
months, such imprisonment to cease on payment of the penalty, and or the

costs of such proceedings as may have been taken for the recovery thereof ;
but this section shall not affect any remedy under the said Ordinance No. 6
of 1850, or under "The Justices Procedure Amendment Act, 1883-4.'*

238. There shall be an appeal from any conviction by any Special Appeal
Magistrate or Justices under this Act, or any Act hereby repealed, or from

any order dismissing any information thereunder, which appeal shall be to
the Local Court of Adelaide of Full Jurisdiction only, and the proceedings
on such appeal shall be conducted in manner appointed by the said Ordinance
No. 6 of 1850 for appeals to Local Courts ; ana the Local Court of Adelaide
aforesaid may make such order as to payment of costs of appeal as the
Court shall think fit, although such costs may exceed Ten Pounds. {Beg, v.
Tidman, 99. T. 62-148 ; V. 66-152.)


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Local Court 239* The Local Court of Adelaide may, upon the hearing of any appeal
SlroiftuSftw under the last preceding section, state one or more special case or cases for
the opinion of the Supreme Court and the Supreme Court shall hear and
decide such special case or cases according to the practice of the Supreme
Court on special cases, and the Supreme Court shall make such order as to the
costs of any such special case as to the said Court shall appear just, and any
one or more Justices or the Local Court-of Adelaide shall make an order or
adjudication in respect of the matters referred to the Supreme Court in
conformity with the certificate of the said Supreme Court, which order of
the Justices of the Peace or Local Court may be enforced in manner pro-
vided by this Act for the enforcement of orders of Justices of the Peace,
and, save as herein provided no order or proceeding of Justices or of any
Local Court, made under the authority of tnis Act, shall be appealed against
or removed by certiorari or otherwise into the Supreme Court. Provided
that nothing herein contained shall affect the provisions of '' The Justices
Procedure Amendment Act, 1883-4."
n^to*!^ti 240. No proceeding or conviction for any act hereby declared to be a
oWii remedy f elonv or a misaemeaDour shall affect any remedy which any person aggrieved
or injured by such act may be entitled to against the person who has com-
mitted such act, or against his estate. (T. 62-142 ; V. 66-156.)



^•ofmapi 241. Every map or plan required to be deposited as hereinbefore
**' ^ provided shall be in accordance with the following rules as to scale : — If the

land proposed to be dealt with shall contain not more than one statute acre,
such map or plan shall be on a scale of not less than one inch to two chains ;
if such land shall contain more than one statute acre, but not more than five
statute acres, then such map or plan shall be upon a scale of not less thaa
one inch to five chains ; if such land shall contain more than five statute
acres, but not more than eighty statute acres, then such map or plan shall
be upon a scale of not less than one inch to ten chains ; and if such land
shall contain more than eighty statute acres, then such map or plan shall be
upon a scale of not less than one inch to twenty chains.
fl^orStk 242. Every certificate of title for land brought under the provisions of
shftU hare a this Act after the passing hereof, shall have a diagram drawn in the margin
Bhowi^* of such certificate, showing the measurements of the land contained therein,
such plan to be supplied by the Surveyor- General when practicable without
involving any cost to the Government, or shall refer to a plan deposited in
the Lands Titles Office showing such measurements,
snn^ror to 243- No person shall be deemed a licensed surveyor for the purposes

HcewS^^ of this Act, unless specially licensed for such purposes by the Surveyor-
General. (N. 100 ; Z. 170 ; Q. 61-118 ; V. 85-5.)
ProTision 244. Where any person who (if not under disability) might have made

under dS? ^^J application, given any consent, done any act, or been party to any pro-
f^M^T^^ ceeding under this Act, is an infant, idiot, or lunatic, the guardian or
idiotcy,*or Committee of the eptate of such person may make such applications, give
lunwy g^^jj consent, do such acts, and be party to such proceedings as such person
himself, if free from disability, might have made, given, done, or been party
to, and shall otherwise represent such person for the purposes of this Act.
{St. George v. Burnett, 57; Rail y, Loder, 158, Z. 18; Q. 78-17: V,


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245- In any case where there is no guardian or committee of the estate when no
of any such infant, idiot, or lunatic, or where any person entitled to any SlSSute^'
estate or interest in land is a person of unsound mind, the Court may Oonrt or
appoint a guardian or committee tor the purposes of this Act, and from time ^ppli^traJ
to time may change such guardian or committee. The Court may also And may
appoint a person to act as next friend of a married woman for the purpose fSOT?of*»*'
or any proceedings under this Act, and may from time to time remove or married
change such next friend. (National jBank y. National Mortgage and Agency ^**™*'^
Company, 12 ; &t, George v. Burnett, 57, 176 ; re Fykett, 171 ; Miller v. Stewart,
172. Z. 18 ; V. 66-176.)

246. Every instrument signed by a registered proprietor, or by any ^"J^>-
person claiming through or under a registered proprietor, purporting to pass Sente^tJ*^"
an estate or interest in land for the registration of which estate or interest JJ*^®^."^**™
provision is made in this Act shall, until registered, be deemed to confer tion '^
upon the person intended to take under such instrument, or any person
claiming through or under him, a right or claim to the registration of such

estate or interest. The Eegistrar- General, upon application for such regis-
tration by any person other than the person immediately claiming from a
registered proprietor, may reject the same altogether or may register the
applicant as proprietor of the estate or interest, either forthwith or at the
expiration of some defined period of time, and may direct such other entries
to be made in the Eegister Book, and such advertisements to be published,
as he may deem necessary. (Franklin v. Ind, 156. Z. 48.)

247. The Eegistrar-General may, in the event of great loss or incon- informal
venience being likely to arise, register any document signed by a registered ^"J^"**"
proprietor, or by any person claiming tlirough or under a registered pro- wgwtewd
prietor, notwithstanding that such document be not in any of the forms
prescribed by this Act, nor otherwise in accordance with the provisions
hereof: Provided that such document purports to create an estate or
interest in land for the registration of which estate or interest provision is

made in this Act, and would in equity, apart from the provisions of this Act,
be regarded as vesting such estate or interest in the person intended to take
under such document. The Eegistrar- General, upon application for such AppHcation
registration, may reject the same altogether, or may proceed as directed in Q^Jg'"'"
the last preceding section. (Z. 37.)

248. On registering any such applicant, as mentioned in the two last Memorial to

I)receding sections, the i&gistrar-Gleneral shall, so far as possible, enter the ^ ®°*«"^
ike memorial of every document or instrument produced by the applicant
in the same manner as if such document or instrument had been presented
for registration in its proper order of time, and the duplicate certificate, or
other instrument of title shall be delivered up, and the like memorials or
other entries made thereon : Provided that no such registration shall be made
if it would interfere with the right of any person claiming under any instru-
ment previously registered under this Act.

249. Nothing contained in this Act shall afEect the jurisdiction of the Bqajties not
Courts of law and equity in cases of actual fraud or over contracts or agree- »'>o*"i»®d
ments for the sale or other disposition of land or over equities generally.

And the intention of this Act is that, notwithstanding the provisions herem
contained for preventing the particulars of any trusts from being entered in
the Eegister Book, and without prejudice to the powers of disposition or Proriao
other powers conferred by this Act on proprietors of land, all contracts and

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not to be

No title bf






tions and
General with
plans of new
streets, fto.

Oenexml to
of orders
opening of
new roads.

Power of
General to
make neces-
sary altera-
tions on
plans in his

ledgments to
be made bj

other rights arising from unregistered transactions may be enforced against
such proprietors in respect of their estate and interest therein, in the same
manner as such contracts or rights may he enforced against {>roprietors in
respect of land not under the provisions of this Act : Provided that no
unregistered estate, interest, contract, or agreement shall prevail against the
title of any bona fide subsequent transferee, mortgagee, lessee, or encum-
brancee, for valuable consideration, duly registered under this Act.
{Kickham y. The Queen, 47 ; Neil v. Lindeay, 94.)

250. No lU pendens affecting lands under the provisions of this Act
shall hereafter be registered. (V. 85-59.)

251. No person shall acquire any right or title to land under the
provisions of this Act by any length of adverse possession, nor shall the
right of the registered proprietor to recover possession of any such land be
barred by any length oi adverse possession. {Mudgway v. Davy and Bmek^
1 ; Sharpe v. Hadley, 8 ; FeatherMtone v. Hanlon 4 ; Ghomley v. Mrebrace, 21 ;
OalUieh et woor v. Sohutz, 22 ; Ooleman and Clarke v. Biria^ 46 ; OuUen y.
Thompsonj 74 ; ex parte Brovony 185 ; Bioknall v. Meymanson, 188 ; Boberteon
y. Xetth, 196 ; Mc Geary v. Brodziak, 218.)

252. So often as any new street or road shall become vested in any
Corporation or District Council by any means other than in pursuance of
an order for opening the same, the Corporation or Council afEected shall
immediately furnish the Eegistrar- General with a map or plan showing
particulars of the new street or road so having become vested as aforesaid.
{Kirkham v. Carpenter, 111 ; Stevens v. Williams, 186. Z. 171.)

253. Whenever an order for opening a new road or closing an old
road, or for the exchange of any water or other reserve, through or afEecting
land under the provisions of this Act shall have been duly confirmed, the
Surveyor-General shall forthwith after such confirmation forward to the
Begistrar- General particulars of the date of such confirmation, and of the
wi<uh, length, bearings, and measurements of such road, or of the exact
dimensions and position of such reserve, and of the land taken in exchange.
(Be Dr. O. Quinn, 40 ; Kearton v. Biehardsony 125.)

254. The Registrar- General shall make reference to the particulars so
furnished to him as aforesaid on any plan deposited in his office which is
affected thereby, and shall also make an entry on the certificate in the
Eecister Book, and alter the plan in the margin thereof in accordance with
sucn survey maps, plans, or particulars, and require the registered proprietor,
or any mortgagee or encumbrancee, who may nold the same, to deliver up
the duplicate certificate for the purpose of being cancelled or corrected, as
the case may require. (Kirkham y. Carpenter, 111 ; Stevens y. Williams,

255. Whenever any married woman shall make, or join in, anj
application to bring land under the provisions of this Act, to which she is
not entitled for her separate use or as her separate property, or whenever
any married woman whose husband shall be roistered as co-proprietor with
her, shall make, or join in, any dealing under tins Act, by means of which
her estate or interest in land may be alienated or diminished, it shall be
necessary and sufficient, in order to give effect thereto, that she be separately
examined apart from her husband, and declare that she fully understancb
the nature and effect of such application or dealing, and that the same was
freely and voluntarily executed by her. {Be j^rr, 6 ; MaU v. Hall, 98.
N. 96 ; Q. 161-112 ; V. 66-125.)

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256. Such acknowledgment sball be made before and certified under Mode of
the hand of some person authorised by either of the Acts, No. 15 of 1845, ^^J^t
or No. 23 of 1872, to take acknowledgments of the deeds therein mentioned,
or before and under the hand of the Begistrar-G^neral. And the certificate Fiiteenth
of such acknowledgment may be in the form of the Fifteenth Schedule sohedoie
hereto, or to the like effect.

257- Any certificate or other instrument evidencing the title of any Begistration
woman to land may contain a statement to the effect that she is seized of or eatiuSTto**
entitled to or takes such land for her separate use, or as her separate land for her
property, and, upon registration of such certificate or other instrument, she S^i'Jw"**
shall be deemed the registered proprietor of the land for her separate use ■epantte
or as her separate property accordingly ; and any married woman so P'^®^
registered, unless restrained from alienation, shall, for the purposes of this
Act, be deemed Kfemme sole,

^58. Where, in any Act now in force, reference is made to the Eeal B^moeto
Property Acts, or any of them, such reference shall be deemed to extend to pertj Acta

*^^8 ^«*- GenerU

259. Any special jurisdiction hj this Act giyen to the Court shall not g®^'^^
prejudice or take away the ordinary jurisdiction of the Court. affeot«d

260- Whenever in any action, suit, or other proceeding affecting the Vain»bie
title to any land, it shall become necessary to determine the fact whether any ^^'mlTbe
person is a purchaser, transferee, mortgagee, encumbrancee, or lessee, for proved by
yaluable consideration or not, any party to such action, suit, or other Sients *'™"
proceeding, may give in evidence any transfer, mortfi;age, encumbrance,
lease, or other instrument affecting the title to such land, although the same
may not be referred to in the certificate or may have been cancelled by the
Begistrar-General. (JEa parte Finlay, 56 ; ea parte Smart, 80.)

261. In every instrument charging, creating, or transferring any estate General
or interest in land, there shall be implied the following covenant by the JJ^eto^Ued
party charging, creating or transferring such estate or interest, with the in iutra-
party in whose favour such estate or interest is charged or created, or to °^®°**
whom the same is transferred, and his executors, administrators, and trans-
ferees, that is to say — ^That he, the covenanting party, will do such acts and
execute such instruments as in accordance with the provisions of this Act

may be necessary to give effect to all covenants, conditions, and purposes

Online LibraryAustraliaThe land transfer laws of Australasia: being the full text with side notes ... → online text (page 42 of 83)