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

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afford the caveator the same relief as in an ordinary action.
OTdCT* ^^ ^- Every order of the Court made under these Eules shall have the

same effect as a judgment or order of the Court given or made in an action ;
and the Begistrar- General shall make such entries in the Eegister Boot,
and do such things as may be necessary to give effect to the order of the
Court,
^mi may 9 j£^ ^^ ^]jg hearing of such petition, it shall appear to the Court

action to be that, f or the purposes of justice, it is necessary or expeaient that an action
brought should bo brought, the Court may order such action to be brought accord-
ingly, subject to such terms as to costs or otherwise as may be thought
proper.
SjitT'"' ^^- -"-^ ^ proceedines in the Court, either by the caveator or caveatee,

the Court may make such order as to the costs of the proceedings in the
Court and incidental to filing the caveat, as to the said Court shall seem fit.
Injunction H. The Court or a Judge may, without prejudice to the exercise of any

Oourt^""* other power of the Court, upon the application of any person interested in
any land, make an order restraining for a time, or until the occurrence of an
event to be named in such order, or generally until further order, the execu-
tion or registration of any dealing with land, and may impose any terms and
conditions upon making such order.
mS^wSer ^^' ^^® Court may discharge any such order, with or without costs,

and generally act in the premises in such manner as the justice of the case
requires ; and the Registrar- General, without being made a party to the
proceedings, upon being served with any order, or a copy thereof, shall obey

the same.

THE TWENTY-SECOND SCHEDULE.
Summons hy Bepstrar- General,
Sec. 226 In the matter of "The Real Property Act, 1886." A.B. [here

insert addition'] is hereby summoned to appear before me at the Lands Titles
Office, on the day of , one thousand eight hundred

and , at of the clock in the [fore or after] noon, then and

there [here insert purpose of summons and describe the documents or instru-
ments iff ant/) required to be produced. Given under my hand and seal the
day of , one thousand eight hundred and

, Registrar-General. (L,8.)



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TASMANIAN EEAL PEOPBETT ACT— No. 1. 246



1863.



TASMANIA.



REAL PROPERTY ACT,



-NO. 1.



Note. — The numbers following cny case quoted at the end of a section will be found to
correspond with the same number in the Digest. The letters V. (Victoria) /
Q. {Queensland) ; Z. {New Zealand); N. {New South Wales); S. {South
Australia) ^ followed by a number or numbers^ refer to the respective Land Transfer
Acts of the Colonies above-named^ and to the number of the section of such Act
where there is only one Act^ or to the year and section of Acts where the original
is followed by a further Act or Acts ^ and all notes to sections will be found in
italics or other distinguishing type.



WHEREAS it is expedient to amend the Laws relating Prewnwe
to the Transfer and Encumbrance of Ereehold and
other Interests in Land in the Colony of Tasmania : Be it
therefore enacted by His Excellency the Governor of
Tasmania, by and with the advice and consent of the
Legislative Council and House of Assembly in Parliament
assembled as follows ; that is to say : —

1. All Laws, Statutes, Acts, Ordinances, Eules, Regulations, and Repeal of
Practice whatsoever, relating to freehold and other interests in land, so far i"u ^'^
as inconsistent with the provisions of this Act, are hereby repealed so far

as regards their application to land under the provisions of tms Act, or the
bringing of land under the provisions of this Act.

2. This Act may be cited for all purposes as "The Eeal Property Act.*' short title

3« In the construction and for the purposes of this Act, and in all interpreta.
instruments purporting to be made or executed thereunder (if not inconsistent JjJS jJ^SJ"
with the context and subject matter), the following terms shall have the
respective meanings hereinafter assigned to them ; that is to say : — ^The
word LAND shall extend to and include messuages, tenements, and heredit- Land
aments, corporeal and incorporeal, of every kind and description (whatever
may be the estate or interest therein), together with all paths, passages,
ways, waters, watercourses, liberties, privileges, easements, plantations,
gardens, mines, minerals, and quarries, and all trees and timber thereon or
thereunder lying or being, unless the same are specially excepted : G-BANT ^**°^



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246



TASMANIAN HEAL PEOPERTT ACT-No. 1.



Proprietor

Tranflfer

Tranamifl-
rion

Mortgage

Mortgagor

Mortgagee

Encnm-

branoe



BooQin«
branoer



Enoam-
branoee



Lanatio



Perton of

unsoond

mind



Connlar
officer



Instrument



Person



Office of

Beoorderof

Tides



ehall mean the Land Grant of any Land of the Crown : (N. 8 ; Z. 32 ; Q.
61-3 ; S. 98 ; V. 66-4.) PEOPEIETOE shall mean any person seized or
possessed of any estate or interest in Land at Law or in Equity, in
possession, in futurity, or expectancy : (N. 3 ; Z. 2 ; Q. 61-3 ; S. 180 ; T. 66-4,
107.) TEANSPEE shall mean the passing of any estate or interest in
Land under this Act, whether for valuable consideration or otherwise : (N.
3; Q. 61.60; V. 66-59.) TEANSMIS8I0N shall mean the acquirement
of title to, or interest in Land, consequent on the death, will, intestacy,
bankruptcy, insolvency, or marriage of a Proprietor : MOETQ-AGE shall
mean any charge on Land created merely for securing a debt : (N. 3 ; Q.
61-107.) MOETGAGOE shall mean the borrower of money on the
security of any estate or interest in Land : (Jones v. Sellich 78 ; Hart v.
Stratum, 119. N. 3; Q. 61-3; 8.3.) MOET&AGEE shall mean the
proprietor of a Mortgage : ENCUMBEANCE shall mean any charge on
Land created for the purpose of securing the payment of an annuity or sum
of money other than a debt: (N. 3; Q. 61-3; S. 33 ; V. 66-4.)
ENCUMBEANCEE shall mean the proprietor of any Land, who shall
have charged any eutate or interest in Land with any annuity or sum of
money : ENCUMBEANCEE shall mean the proprietor of an Encumbrance :
LUNATIC shall mean any person who shall have been found to be a
Lunatic upon inquiry by the Supreme Court, or by any Judge thereof, or
upon a Commission of Inquiry issuing out of the Supreme Court in the
nature of a Writ de lunatico inquirendo : (N. 3 ; S. 3.) PEESON OF
UNSOUND MEND shall mean any person, not an infant, who, not having
been found to be a Lunatic, shall be incapable from infirmity of mind to
manage his own affairs : (N. 3 ; Z. 18 ; Q. 61-3 ; S. 3 ; V. 66-4, 17, 6.)
CONSULAE OFFICEE shall include Consul-Oeneral, Consul, and Vice-
Consul, and any person for the time being discharging the duties of Consul-
General, Consul, or Vice-Consul: INSTEUMENT shall mean and include
any grant, certificate of title, conveyance, assurance deed, map, plan, will,
probate or exemplification of will, or any other document in writing relating
to the transfer or other dealing with Land or evidencing title thereto:
PEESON shall include a female as well as a male, and shall include a body
corporate : The describing any person as Proprietor, Transferor, Transferee
Mortgagor, Mortgagee, Emcumbrancer, Encumbrancee, Lessor or Lessee, or
as Trustee, or seized of or having or taking any estate or interest in any
Land, shall be deemed to include the Heirs, Executors, Administrators, and
Assigns of such person : And generally, unless the contrary shall appear
from the context, every word importing the singular number only shall
extend to several persons or things, and every word importing the plural
number shall apply to one person or thing, and every word importing the
masculine gender only shall extend to a female, and whenever a Form in the
Schedule hereto is directed to be used, such direction shall apply equally to
any form to the like effect, signed by the Eecorder of Titles, or which, for
the same purpose, may be authorised m conformity with the provisions of
this Act; and any variation from such forms, not being in matter of
substance, shall not affect their validity or regularity, but they may be used
with such alterations as the character of the parties or the circumstances of
the case may render necessary. (N. 3 ; Z. 2, 18 ; Q. 61-3 ; S. 3 ; V. 66%
17.)

4. It shall be lawful for the Governor in Council, from time to time,
to appoint a fit and proper person to be Eecorder of Titles, who shall hold
office during pleasure.



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TASMANIAN EEAL PBOPEETY ACT— No, 1. 247

5. It shall be lawful for the Q-overnor in Council, to appoint two or Lands TiUea
more fit and proper persons, who, together with the Eecorder of Titles, shall Jjo™^*"
be Commissioners for investigating and dealing with applications for the
bringing of land under this Act, and that the style of such Commissioners

shall be '^ The Land Titles Commissioners,'' and in like manner it shall be
lawful for the Q-overnor, if he deem it necessary, to appoint one or more
Solicitors to advise and assist the said Commissioners in carrying out the
provisions of this Act, and such Commissioner or such Commissioners other
than the Recorder of Titles shall be remunerated by fees, as specified in the
Schedule hereto marked P.

6. It shall be lawful for the Governor in Council to appoint a Deputy- Appoint-
Recorder, together with such Officers and Clerks as may be required for "®"* **'



carrying into operation the provisions of this Act, and to remove from office ^^^J®"^®'
any such Deputy- Recorder, Officer, or Clerk, and upon such removal or upon officers^'
the death or resignation of any such Deputy -Recorder, Officer, or Clerk, to
appoint another in his stead (N. 5 ; V. 66-5, 8.)

7. The Oath following shall be taken before one of the Judges of the Oatha of
Supreme Court by the Recorder of Titles, and by every Deputy-Recorder, ^®°®
before entering upon the execution of his office : — I, A.B.y do solemnly
swear that I will faithfully, and to the best of my ability, execute and per-
form the office and duties of Recorder of Titles or Deputy-Recorder for the
Colony of Tasmania according to the provisions of " The Real Property Act."

So help me God. (N. 10 ; Q. 61-6 ; V. 66-13.)

8. All documents, whether purporting to be issued or written by or Oertaicatos
under the direction of the Recorder of Titles, and purporting either to be SsntapSr-
sealed with his Seal of Office or signed by him or by his Deputy, shall be \x^^^^^
received in evidence, and shall be deemed to be issued or written by or 4»fod fea
under the direction of the Recorder of Titles, without further proof, unless SiVto^r'
the contrary be shown ; and whenever by this Act, or by any Law for the received as
time being in force in the said Colony, anything is appointed to be done by ®^ *°*^®
the Recorder of Titles, the same may be lawfully done by Deputy-Recorder.
iSmall and another v. Olen, 20. N. 33 ; Z. 36 ; Q. 61-7 ; S. 52 ; V.

66-47, 78-2).



9 and 10 [Repealed by Sec. 11, Real Property Act, 1863.]



11, The Recorder of Titles may exercise the following powers, that is Powers of

ft^ Eeoordcrol

*J • Titles



(1) He may require the proprietor or other person making application To inspect
to have any land brought under the provisions of this Act, or the ^0®"™®°^
proprietor or mortgagee or other person interested in any land
under the provisions of this Act in respect of which any transfer,
lease, mortgage, encumbrance, or other dealing, or any release
from any mortgage or encumbrance, is about to be transacted, or
in respect of which any transmission i% about to be registered or
registration abstract granted under this Act, to produce any
grant, certificate of title, conveyance, deed, mortgage, lease, will,
or other instrument in his possession or within his control afEect-
ing such land or the title thereto. (Fisher v. Stewart, ^4i. Q.
61-11-1 ; V. 86-30.)



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248



TASMANIAN EBAL PEOPEETr ACT— No. 1.



To I

and examine

witnesses



To adminis-
ter oaths



Tooorreot
errors



To enter
oateats



(2) He may summon any sucb proprietor, mortgagee, or other person
as aforesaid, to appear and give any explanation respecting such
land or the instruments affecting the title thereto, and if, upon
requisition in writing made by the Recorder of Titles, such pro-
prietor, mortgagee, or other person refuses or neglects to produce
any such instrument or to allow the same to be inspected, or
refuses or neglects to give any explanation which he is herein-
before required to give, or knowingly misleads or deceives any
person hereinbefore authorised to demand any such explanation,
ne shall, for each such offence, incur a penalty not exceeding one
hundred pounds ; and the Recorder of Titles, if the instrument or
information so withheld appears to him material, shall not be
bound to proceed with the bringing of such land under the pro-
visions of this Act, or with the registration of such mortgage or
transfer, or with the issuing of such registration abstract, as the
case may be. (N. 11-2 ; Q. 61-11-2.)

(3) He may administer oaths, or take a statutory declaration in lieu of
administering an oath. (N. 11-3; Z. 175, 5; Q. 61-11-3; 8.220-2;
V. 66-70, 29, 1.)

(4) He may, upon such evidence as shall appear to him sufficient in
that bebalf, correct errors in certificates of title, or in the Register
Book, or in entries made therein respectively, and may supply
entries omitted to be made under the provisions of this Act : Pro-
vided always, that in the correction of any such error, he shall not
erase or render illegible the original words, and shall fix the date
on which such correction was made or entry supplied, with his
initials; and every certificate of title so corrected and every
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 entry made in the Register Book prior to the
actual time of correcting the error or supplying the omitted entry.
(Sharpe v. Hadley^ 3 ; Wiggins app. Hammill resp , 38 ; 60? parte
Bigbg, 77 ; Campbell v. Jarrett, 96 ; Ashleg v. Cook, 137 ; HasseU
V. Colonial Bank, 138. N. 11-4; Z. 68; Q. 61-11-4; S. 220-4;
V. 66-129.)

(5) He may enter caveat on behalf of any person who shall be under
the disability of infancy, coverture, lunacy, unsoundness of mind,
or absence from the said colony, or on behalf of Her Majesty, her
heirs or successors, to prohibit the transfer or dealing with any.
land belonging or supposed to belong to any such persons as here-
inbefore mentioned, and also to prohibit the dealing with any land
in any case in which it shall appear to him that an error has been
made by misdescription of such land, or otherwise in any certificate
of title or other instrument, or for the prevention of any fraud or
improper dealing. (Be Thompton and Ohipps, 26 ; re J, B. Slacks
35; re Nelson Bros, 36; re David Le Oompte, 39; Biggs v.
Waterhouse, 58 ; re Wm, Biggs, 59 ; ex parte M. Lyons, 69a ; ex
parte Potoer, 59b ; ex parte Peck, 59o ; re F, C, and A, Davis, 59d ;
re Wm, Field, 59e ; ex parte Peck, 59p ; re Clarke, 59g ; re Hcnfton
ex parte Bihbs, 67 ; re Wm. Wadham, 114; Kissling v. MitcheUon, 123 ;
Neal V. Adams, 130; WildashY. Rutchison, 132; Butler y. Saddle



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TASMANIA^ EEAL PBOPEETT ACT— No. 1. 249

Rill Mining Co,^ 163 ; THebe v. Cullen, 178 ; re A. Bosquet, 202.
N. 78-9, 11-2-5 ; Z. 21, 137 ; Q. 61-11-2-5 j S. 191-10, 220-5, 44;
V. 66-21, 2, 3, 4, 116.)

12 Whenever, by any law for tbe time being in force in tbe said 2?p°*J-
colony, anything is appointed or authorised to be done by the Recorder of may^Lt for
Titles, the same may be lawfully done by the Deputy-Recorder : Provided, ^JJiain olwei
that nothing herein contained shall be interpreted to authorise any Deputy- °* "* *'**^
Recorder, as such, to act as a Land Title Commissioner.

13 and 14. [Repealed by Sec. 11, Real Property Act, 1863.]

15. Every such applicant shall, when making his application, leave AppUcjnt to
with the Recorder of Titles all instruments in his possession, or under his L^sTrameots
control, constituting, or in any way affecting bis title, and also, if required, ^ J(^\£*^
an abstract of his title ; and shall, in his application, state the nature of the abstraots if
estate or interest held therein by any other person, whether at law or in '«<i»*»"^
equity in possession, or in futurity or expectancy, and whether the land be
occupied or unoccupied ; and it occupied, the name and description of

the occupant, and the nature of his occupancy, and whether such occupancy
be adverse or otherwise ; and shall state the names and addresses of the
occupants and proprietors of all lands contiguous to the land in respect to
which application is made, so far as known to him, and that the schedule so
f umishea includes all instruments of title to such land in his possession,
or under his control, and shall make and subscribe a declaration to the truth
of such statement ; and such applicant may, if he thinks fit, in his applica-
tion, require the Recorder of Titles, at tbe expense of such applicant, to
cause personal notice of his application to be seived upon any person whose
name and address shall, for that purpose, be therein stated. (Sharpe v.
Sadley, 8 ; Davidson v. Brovm, 183. N. 14; Z. 19 ; Q. 61-17 ; S. 29; V.
66-55.)

16. [Repealed by Sec. 11, Real Property Act,* 1863.]

17. If upon the coming in of such report it shall appear to the satisfaction Lands

of the said Commissioners that the land m respect of which such application when*ij>t'i-
is made, is held by the applicant for the estate or interest described in such <»?* p'®-
application free from mortgages, judgments or other encumbrance affecting SSToriginai
the title thereto, or if any such mortgage, encumbrances, or interest remains g^ante*
unsatisfied that the parties interested therein are also parties to such
application, and that the applicant has not reqJred notice or his application
to be served personally on any person, then, and in any such case, the said
Commissioners shall direct the Recorder of Titles to caune notice of such
application to be advertised once in the Hohart Town Gazette, and three
timee at least in one paper published in the City of Hobart Town and in one
paper published in the Town of Launceston ; and shall further limit and
appoint a time, not less than one month nor more than twelve months from
the date of the advertisement in the Gazette, upon or after the expiration of
which the Recorder of Titles shall, unless he shall in the interval have
received a caveat forbidding him so to do, proceed to bring such land under
the provisions of this Act. No lands shall be brought under the provisions
of this Act until the quit rent (if any) due to the Crown, and all arrears and
redemption thereof shall have been duly paid and satisfied.

18. But if it shall appear to the satisfaction of the said Commissioners whenevu
that any parties interested in any unsatisfied mortgage or encumbrance dence of
affecting tne title to such land, or beneficially interested therein otherwise ^if^t,"^



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250



TASMANIAN BEAL PEOPEETT ACT— No. 1.



partiM int«. than as lessees, are not parties to such application, or that tbe evidence of
r^jd^un. ^^|g g^^ forth by the applicanl is imperfect, or that the applicant has required
mortgftgM notice of his application to be served personally upon any person, then in
pwtiM to Buch case it shall be lawful for such Commissioners to reject such application
tioV^^^*^ altogether, or at their discretion to direct the Recorder of Titles to cause
notice of such application to be served in accordance with such requirement
and upon all persons, other than the applicant, who shall appear to them to
have any interest in the land which is the subject of such application, and
to be advertised three times in at least one newspaper published in the City
of Hobart Town, and in at least one newspaper published in the Town of
Launceston, and in auch newspapers published elsewhere as to such Com-
missioners may seem fit, and to be published in the Hobart Ibwn Gazette
and in such other official Gazettes out of the said colony or in any one or
more of such Gazettes as to such Commissioner shall seem fit, and that the
said Commissioners shall specify the number of times and at what intervals
such advertisemeuts shall be putilished in each or any of such Gazettes^ and
shall also limit and appoint a time not less than two months or more than
twelve months from the date of such advertisement in the Hobart Town
Gazette^ upon or after the expiration of which it shall be lawful for the
Becorder of Titles to bring such land under the provisions of this Act unless
he shall in the interval have received a caveat forbidding him so to do.
(N. 17.)



Notice of
•ppliofttioii

published



Lands
broaght
nnder the
Aot



19. The Becorder of Titles shall, under such directions as aforesaid,
or under any order of the Supreme Court, cause notice to be published, in
such manner as by such direction or ordermay be prescribed, that application
had been made for bringing the land therein referred to under the provisions
of this Act, and shall also cause a copy of such notice to be posted in a
conspicuous place in his office, and in such other places as he may deem
necessary, and shall fo]:j^ard through the post office copies of such notice
addressed to the persons, if any, stated in the declaration by the applicant
proprietor to be in occupation of such land or to be occupiers or proprietors
of land contiguous thereto, so far as his knowledge of the addresses of such
persons may enable him, and in case such applicant shall have required such
notice to be personally served upon any person named in his application,
then and in such case the Recorder of Titles shall cause copy of such notice
to be so served upon such person, so far as his knowledge of the addresses
of such persons may enable him. (Featherstone v. Hanlon, 4; Saunders v.
Cabot , 16 ; Ghomley v. Firebrace^ 21 ; re J, B, Slack, 35 ; re Nelson Bros.,
86 ; Warner v. Dot?^, 87 ; Wiggins, app, Hammill, resp.y 38 ; re David Le
Oompte, 39 ; re Dr. O'Quinn, 40 ; re Knapman, 41 ; ex parte Hamilton^ 42 ;
ex parte LocJee^ 43 ; Fisher v. Stewart, 44 ; ex parte Bumell, 44a. ; ex parte
Clissold, 45 ; Coleman and Clark v. Biria, 46 ; Van Damme v. Bloxam, 106 ;
Kirkham v. Julien, 109 ; Franklin v. Ind, 156 ; Shackell v. Lindsay, 174 ;
Boss V. Victoria Permanent Benefit Building Society, 180. N. 14, 18 ; Z. 24,
27 ; S. 36 ; Q. 61-21, 29, 77-9, 61-22 ; V. 86-12, 66-26.)

20. If| within the time limited in such direction, or under any order of
the Supreme Court, any notice forwarded by registered letter as aforesaid
shall not be returned to the Eecorder of Titles by the Postmaster- General,
and if, within the time so limited, he shall not have received a caveat aa
hereinafter described, forbidding him so to do ; and in any case in which
personal notice may be required as aforesaid, if he shall have received proof
to bis satisfaction that such notice has been served the Eecorder of Titles,



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TASMANIAN EEAL PBOPBErT ACT— No. 1. 261

Bhall, pursuant to such direction of the Land Titles Commissioners, bring
the land described in such application under the provisions of this Act, by
issuing to the applicant proprietor, or to such person as he or the person
applying in his behalf may, by any writing under his hand, direct, a certifi-
cate of title for the same, as hereinafter described. (N. 19 ; Z. 17 ; Q. 61-
22 ; S. 26, 27 ; V. 66-34.)

21. The Recorder of Titles, whenever any letter containing any notice Onrttumof
shall be returned to him by the Postmaster- Q-eneral, shall refer the case SSSp^of
to the Lands Titles Commissioners for their further direction, and whenever p«w?n»i
he shall be made aware that any notice required by any applicant to be Beoordfer of
served personally has failed to be or cannot be so served, he shall notii^- the ™S!jJ
same to such applicant who, if he thinks fit, may by writing under his hand, iLioa Titles
withdraw such requirement, and the Recorder of Titles shall thereupon SSaS!^
report the case to the Lands Commissioners who, in either such case, may

reject the application altogether, or direct the Recorder of Titles to bring
the land therein described under the provisions of this Act forthwith, or,



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