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Proprietors HO. Without lessening or prejudicing any of the other rights powers

J^^"" and remedies hereby given and conferred every proprietor and every trans-

thetime ferco wheu registered of any land lease mortgage or charge shall whilst

•tuSiathe Continuing so registered have the same estates rights powers and remedies

^l55ioM *°^ ^® subject to the same engagements obligations and liabilitieis and may

owners sue and be sued in his own name at law and in equity in respect thereof or

thereupon in like manner as if he had been the original proprietor of the

land by or %uth whom the engagement obligation or liability sued upon was

entered into or incurred or the original lessee mortgagee or annuitant.

111. [Eepealedby Sec. 12, Dower Act, 1869.]

Proprietor 112. The proprietor of any land or of any lease mortgage or charge

^^^me'to^ shall on the application of any beneficiary or person interest^ therein be

used by per- bouud to allow his name to be used by such beneficiary or person in any
TOn^mter- g^{Qjy g^it or proceeding which it may be necessary or proper to bring or
institute in the name of such proprietor concerning such land lease mortgage
or charge or for the protection or benefit of the title vested in such pro-
prietor or of the interest of any such beneficiary or person but nevertheless
such proprietor shall in any such case be entitled to be indemnified in like
manner as if being a trustee he would before the passing of this Act have
been entitled to be indemnified in a similar case of bis name being used in
any such action suit or proceeding by his cestuique trust.

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118. The proprietor of any land under the operation of this Act or of Powws of
any lease mortgage or charge may appoint any person to act for him in ^^J[^
transferring the same or otherwise dealing therewith by signing a power of t^'««f
attorney in the form in the Sixteenth Schedule hereto Every such power sixteenth
fihall be filed in accordance with the provisions of Part X. of the statute Schedule
relating to instruments and securities and if so filed within four months
after the date thereof shall be deemed to be in force at the time of the filing
thereof unless a revocation thereof shall have been previously registered
tinder the said statute but this shall not diminish the force and effect of any
such power if filed afterwards Any such power may be revoked in the cases
and manner specified in such statute and mer the registration of any revoca-
tion of the power the Eegistrar shall not give effect to any transfer or other
instrument signed pursuant to the power unless signed under any then
outstanding registration abstract. (Ee Woods, 95. N. 69-74 ; Z. 150 ; Q.
62-104, 61-107 ; S. 155, 156 ; T. 62-70.)

114, A power of attorney given by a person before as well as after ?^^^*"*
becoming a proprietor of any land or of any lease mortgage or charge shall powen of
be deemed to be within the meaning of the last preceding section and every JSot^SLl
power of attorney heretofore given or which shall hereafter be given when •y»iUbie
filed shall while continuing in force be valid and available within the scope

and to the extent of the powers and authorities given or to be given by such
power concerning the lands tenements and chattels real generally of the
principal for similar or corresponding dealings under this Act with any land
under the operation hereof or with any lease mortgage or charge. (^See note

Attestation op Instbxjments.

115. Instruments and powers of attorney under this Act signed by any Atteeution
person and attested by one witness shall be held to be duly executed and menUMd
Buch witness may be ; — Within the limits of Victoria — ^The Kegistrar or an powe« of
Assihtant Eegistrar or a Justice of the Peace Notary Public Solicitor of the •"*'"®^
Supreme Court or Commissioner for taking affidavits or any perpetual Com-
missioner or any other person authorised in that behalf by the Governor in
Council. {Mudgway v. Davy and BuicJc, 1.) And without the limits of
Victoria — Either a JNotary Public or Commissioner for taking affidavits or

else the Mayor or other chief officer of any city or municipal corporation
within the United Kingdom of Great Britain and Ireland or the officer
administering the government of or the Judge of any Court of record in any
Dritish possession or the British Consular Officer (which expression shall
include Consul- General Consul and Yice-Consul and any person for the
time being discharging the duties of Consul-General Consul or Vice-Consul)
at any foreign place. Such witness whether within or without the limits of J^^i
Victoria may also be any other person but in such case he shall appear ■^°*^'*
before one of the officers or persons aforesaid who after making due
enquiries of such witness shall endorse upon the instrument or power a
certificate in the form in the Seventeenth Schedule hereto and such certificate SeTmteenth
shall be deemed sufficient proof of the due execution of such instrument or ^*^^
power No fee shall be demanded or taken by any Eegistrar Assistant
Kegistrar or Justice of the Peace for attesting within Victoria any instru-
ment or power of attorney under this Act and any Itegistrar Assistant
Hegistrar or Justice of the Peace who shall demand or t^e any such fee
sbiul forfeit a sum of not less than five pounds nor more than twenty
pounds. (JBe Woods, 95. Z. 160 ; T. 86-29. See also See. 71 of 1885 Act.)

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h^V^ ™»y 116. Any beneficiary or other person claiming any estate or interest

^ ^ ^ m land under the operation of this Act or in any lease mortgage or chai^
under any unregistered instrument or by devolution in law or otherwise
Eighteenth may lodge a caveat with the Registrar in the form in the Eighteenth
Sohedoie Schedule hereto or as near thereto as circumstances will permit forbidding
the registration of any person as transferee or proprietor of and of any
instrument affecting such estate or interest either absolutely or imtil
after notice of the intended registration or dealing be given to the caveator
or unless such instrument be expressed to be subject to the claim of the
caveator as may be required in such caveat Every such caveat shall state
the name and addition of the person by whom or on whose behalf
the same is lodged and except in case of a caveat lodged by order
of the Supreme Court or by the Registrar pursuant to the (urection
of the Commissioner as hereinafter provided shall be signed by the
CftTeatmay Caveator or by his agent. The person lodging such caveat shall if re-
drm^' quired support the same by a statutory declaration stating the nature of
the title under which the claim is made and may withdraw any such caveat
SreaV^ No such cavcat shall be received unless some address or place within the
•ddresiin present limits of the City of Melbourne shall be appointed therein as the
for Msrri^ place at which notices and proceeaings relating to such caveat may be served
of notices A Caveator may however give an additional address out of the said city at the
An addi. foot of such cavoat in which case a registered letter shall be sent througii
^droBs ma *^® P.^®^ offico to such addross on the same day as that on which any m&tice
be given relating to such caveat is served in Melbourne Every notice relatiii^ to
fj^wndkig such caveat and any proceedings in respect thereof if served at the address
a registered or placo appointed as aforesaid shall be deemed to be duly served. {Be
letter Thompson and Chipps, 26 ; re J, B. Slack, 35 ; re NeUon Bros., 36 ; reB,U

Oompte, 39 ; Biggs v. Waterhouse, 58; re ^^^f/f^y 59 ; ex parte Martin Zfww,
59a ; ex parte Bower, 59b ; ex parte Beck, 59c ; re Davis, 59d ; re Wm,
Meld, 59e ; ex parte Beck, 59f ; re Clark and Harvey, 59o ; re BCayton, 67
re Wm. Wadham,114i; Kissling v. Mitchelson, 123; Neil v. AdamSy 1^
Wildash v. Hutchison, 132 ; Butler v. Saddle Hill Mining Company, 163
Friehe v. Cull en, 178 ; ex parte Brown, 185 ; re A, Bosqttet, 202 ; re I)aviei
and Inman, 208 ; re Bennington, 212. N. 11-5, 78-9, 12 ; Z. 148, 81 ; Q.
61-11-5 ; S. 44, 191-10, 220-5 ; T. 62-11-5. See Sec. 57 ^1885 Act.)

Notice of 117. Upon the receipt of such caveat the Eegistrar shall notify the

rivra* *^ ^ same to the person against whose application to be registered as proprietor

or as the case may be to the proprietor against whose title to deal with the

estate or interest such caveat has been lodged and such applicant or pro-

Careator prietor may if he think ^t summon the caveator to attend before the

BBmrnoned Supreme Court or a Judge in chambers to show cause why such caveat

Ttkwe^ should not be removed and such Court or Judge may upon proof that such

caveator has been summoned make such order in the premises either ex

parte or otherwise as to such Court or Judge may seem fit. Except in the

case of a caveat lodged by or on behalf of a beneficiary claiming under any

will or settlement or by the Eegistrar pursuant to the direction of the

MrtamcMM Commissioner every caveat lodged against a proprietor shall be deemed to

SveaTto*** have lapsed upon the expiration of fourteen days after notice given to the

fourths*' caveator that such proprietor has applied for the registration of a transfer

dajB' noUoe or other dealing or the issue of a registration abstract. A caveat shall not

MTMtor he renewed by or on behalf of the same person in respect of the same

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estate or interest or sttch fwrfher period as shall be specified in any order power to %
made under this section but if before the expiration or the said period of jJ^n^^Jhe
fourteen days the caveator or his agent appears before a Judge and gives operation of
such undertaking or security or lodges such sum in Court as such Judge * **'®**
may consider suf&cient to indemnify every person against any damage that
may be sustained by reason of any disposition of the property being delayed
then and in such case such Judge may direct the Eegistrar to delay regis-
tering any dealing with the land lease mortgage or charge or issuing a
registration abstract for a further period to be specified in such order or
may make such other order as may be just. (Summers ex parte Aylwin^ 62 ;
re Carroll^ 71 ; Saddington v. Rachett^ 72 ; ex parte Davies and Inman^ 208.
K 23, 82; Z. 145, 146; Q. 61-21, 99; S. 45, 194; T. 62-24, 83. See Sees,
58 and 74 o/1885 Act.)

118. In every case in which prior to a person becoming a registered insoWenoj

Proprietor of any land lease mortgage or charge whether under the " Etjal ?^Btered
'roperty Act *' or under this Act an order of sequestration of his estate proprietor-
shall have been or shall hereafter be made and any instrument affecting th?*gS)jwt
such land lease mortgage or charge is presented for registration the Registra JftJ/*J3it
shall forthwith notify to the Official Assignee of such estate by a letter minl^" ''
delivered or registered (in which shall be mentioned the insolvent's name) JotheoSoUi
that application has been made for the registration of such instrument and assignee
unless a caveat forbidding such registration shall be lodged within seven
days after the service or posting of such letter such instrument may be
registered and thereupon shall not be affected by such order of sequestration
either at law or in equity. If a caveat shall be lodged under this section
the same shall be dealt with and be subject to the same provisions as if it
had been a caveat lodged under the last preceding section with this variation
that the fourteen days notice therein mentioned need not actually be given
to the caveator but shall be deemed to have been given on the day on which
the caveat was lodged. ( Wildash v. Hutchison, 132. See provisional repeal,

119. So long as any caveat shall remain in force prohibiting any No entry
registration or dealing the Eegistrar shall not enter in the Register Book j^ J^lStiT*
any change in the proprietorship of or any transfer or other instrument book affect.
purporting to transfer or otherwise deal with or affect the estate or interest l™?ot^ir
in respect to which such caveat may be lodged or issue any registration which caveat
abstract. (See Sec, 28 of 1887 Act,) J^^^"*^ '"^

120« Any person lodging any caveat with the Eegistrar either against CompeDsa.
bringing land under this Act or otherwise without reasonable cause shall be f^J^l
liable to make to any person who may have sustained damage thereby such oaveatwith.
compensation as a judge on a summons in chambers shall deem just and abie'oaose'
order. (Bonnin v. Andrews, 85. N. 84 ; Z. 178, 182; Q. 61-103 ; T. 62-85.)

Eeqistbation Abstbacts.
121« The Eegistrar upon the application of any proprietor of land Begittratioa
under the operation of this Act shall issue to such proprietor a registration regiitSri^'
abstract in the Form in the Nineteenth Schedule hereto enabling him to dealings
transfer or otherwise deal with his estate or interest in such land at any place i[niit«*of
without the limits of Victoria and shall at the same time enter in the Eegister ^'»otoria
Book a memorandum recording the issue of such registration abstract and Nineteenth
shall endorse on the duplicate grant or certificate of title a like memorandum ^**«^"^®
and after the issuing of such registration abstract no transfer or other

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dealing in any way affecting the estate or interest in respect of whicli sncli
registration abstract is issued (excepting under the sections hereinbefore
contained relating to a sale under a writ of fieri faeioi or a decree or order
of the Supreme Court and to the insolvency of a proprietor) shall be entered
in the Eegister Book until such abstract shall have been surrendered to the
Eegistrar to be cancelled or the loss destruction or obliteration of such
abstract shall haye been proved to the satisfaction of the Commissioner or
the time during which it is to continue in force shall have expired. (N. 70 ;
Z. 129 ; Q, 61^, 10, 106 ; T. 62-71, 73.)

JrocedOTe 122. Whenever any transfer or other dealing is intended to be transacted

under uudor any registration abstract the transfer or such other instrument as the
a^raot***" case may require shall be attested by some one of the persons herein autho-
rised to attest the signature to instruments signed without the limits of
Victoria and upon a memorial of such instrument being entered upon the
registration abstract and also upon the duplicate grant or certificate and
authenticated by the signature of such authorised person as aforesaid the
instrument to which such memorial refers shall be held to be registered and
such transfer or other dealing shall be as valid and binding to all intents as
if the same had been entered in the Eegister Book by tne Begistrar and
signed by him and the certificate of registration endorsed on the instrument
of which the memorial has been so entered and signed by such authorised
person shall be received in all courts of law or equity as conclusive evidence
that such instrument has been duly registered. (N. 73 ; Z. 131 ; Q. 61-
106; T. 62-78.)
?!JJfdJu^? 123. Upon the delivery of any registration abstract to the Regis^tu*

ery of regis, he shall enter in the Register Book in such manner as to preserve tfadr
SrtSJjtto priorities every transfer or other instrument signed thereunder and shall
the regutrwr cancel such abstract and note the fact of such cancellation in the Register
Book and if the land be transferred the duplicate grant or certificate of title
shall be delivered up to the Registrar who shall thereupon proceed as is
hereinbefore directed in the case of an ordinary transfer. (N. 73.)
^ooednre^ 124. Upon proof st any time to the satisfaction of the Commissioner

tr»ti°n"^' that any registration abstract has been lost or destroyed or is so obliterated
ftbfltraot loet ^g ^^ Y)Q uscloss and that the powers thereby given have never been exercised
or if they have been exercised then upon proof of the several matters and
things that have been done thereunder it shall be lawful for him to direct
the Registrar as circumstances may require either to issue a new registration
abstract or to make such entries in the Register Book or do such acts as
might have been made or done if no such loss destruction or obliteration
had taken place.

Miscellaneous Pbovisions.

Power to 125. The Qovemor in Council may from time to time appoint such

Sm t?ukJ" persons residing within Victoria as he shall think fit to be perpetual Com-
^ow- missioners for taking acknowledgments of applications and instruments
by SSied sigucd by married women and may remove any such Commissioner and where
""— " Ijj reason of absence from Victoria or residence at a distance or ill health
or any other sufficient cause any married woman shall be prevented from
making the acknowledgment before the Registrar or an assistant Registrar
or one of the perpetual Commissioners it shall be lawful for the Commissioner
by writing under his hand to specially appoint any person to be a Commissioner
to take the acknowledgment by any married woman to be therein named of
any application or instrument and the certificate of such acknowledgment


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shall be deemed and received as sufficient evidence of the due acknowledg-
ment by her of the document therein referred to. (In re Eerr, 6 ; re Byhetty
171. N. 96 ; Q. 61-112 ; S. 266 ; T. 256.)

126. The Commissioner may by summons under his hand in the Form power to
in the Twentieth Schedule hereto require the proprietor or mortgagee or 2l?n«r1to^
other person interested in any land under the operation of this Act in require ex.
respect of which any transfer lease mortgage charge or other dealing or any SjjS^J^ao.
discharge from any mortgage or charge is proposed to be transacted or tion of
registered or in respect of which any transmission is proposed to be registered *^"™^
or registration abstract issued to appear at a time and place to be appointed gJjf^SJf*
in such summons and give any explanation concerning such land or any
document affecting the title thereto and to produce any grant certificate of

title will mortgage or other instrument or document in his possession or
within his control affecting such land or the title thereto and the Commis-
sioner is hereby authorised to examine upon oath (which oath he is hereby
empowered to administer) any such proprietor mortgagee or other person
as aforesaid and any such proprietor mortgagee or other person who shall
fail refuse or neglect to attend the Commissioner for the purpose of being
examined or to produce any such document or to allow the same to be
inspected or shall refuse or neglect to give any such explanation as aforesaid
shall be liable on any such default to be dealt with as in the case of a
contempt of the Supreme Court and if the information or document with-
held appears to the Commissioner to be material the Registrar shall not be
bound to proceed with the transaction. {Re Oraiff, 76. N. 78-6 ; Q. 61-
46, 95 ; S. 95, 220.)

127. The Commissioner may from time to time with the consent of the Power to
Governor in Council make regulations respecting the parcels of land that JJ^JSS£m°
may be included in one certificate of title and may with the like consent jn* to ^
repeal or alter such regulations and he may also with the like consent from i^ljt^ll^to
time to time make such alterations in the several Forms in the several *«•
Schedules hereto as he may deem requisite and may license any person to

sell the same forms and every form authenticated by the seal of the office
shall be taken to be in the legally authorised form unless the contrary be
proved. (Barker v. Weld, 31 ; OuihherUon v. Swantiy 144. N. 90 ; Z. 215 ;
S. 220-7, 275; T. 62-72, 92.)

128. It shall be lawful for the Commissioner whenever any question power to
shall arise with regard to the performance of any duty or the exercise of ■*•*«•<»»«
any of the functions by this Act conferred or imposed either on him or on oSnr?^""*
the Eegistrar to state a case for the opinion of the Supreme Court and
thereupon it shall be lawful for the said Court to give its judgment thereon

and such judgment shall be binding upon the Commissioner and Registrar

129. The Eedstrar may exercise and shall perform the following Powers of
powers and duties that is to say : — registrar

(1) He may administer an oath and may take and receive the declara- to admin-
tion of any person voluntarily making the same (in this Act called "^ <»*'*»
a statutory declaration)

(2) "He shall upon the direction of the Commissioner correct errors in Tooorreot
the Register Book or in entries made therein op in duplicate certifi- ''^''
cates or instnunents and may supply entries omitted to be made
under the provisions of this Act but in the correction of any such

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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 initial the same and every error 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 regardi
any entry made in the Eegister Book prior to the actual time
of correcting the error or supplying the omitted entry. {See Sec.
63 of 1886 Act)

^"▼Sto' ^^^ ^® ®^*^^ ^^^^ *^® direction of the Commissioner lodge a caveat on

**' behalf of Her Majesty or on behalf of any person who shall be

under the disability of infancy coverture lunacy unsoundness of
mind or absence from "Victoria to prohibit the transfer or dealing
with any land belonging or supposed to belong to any such person
and also to prohibit the dealing with any land in any case in which
it shall appear that an error has been made by misdescription of
such land or otherwise in any certificate of title or in any instru-
ment or for the prevention of any fraud or improper dealing.
(Sharps v. Hadley, 3 ; re Nelson Brothers, 36 ; ex parte ILi^hy, 77 ;
Campbell v. Jarretty 96 ; Ashley v. Cook, 137 ; Hassett v. Colomd
Bank, 138. K 11-1, 4; Z. 68, 205, 218 ; Q. 61-11^ ; S. 220-4 j
T. 62-11-4.)

^^^1^ 130, The Registrar with the consent of the Commissioner may dispense

SSae with with the productiou of any duplicate grant certificate of title or dupuei^ instrument (if any) for the purpose of entering thereon the memorial by tMs
oeruin cases Act required In every such case upon the registration of the dealing* i^
Eeristrar shall notify in the memorial in the Register Book that no entry of
such memorial has been made on the duplicate and such dealing shall ^fie-
upon be as valid and effectual as if such memorial had been entered thereon
The Registrar may with the like consent dispense with the production of tilie
duplicate grant or certificate of title required to be delivered up prior to the
registration of a devisee or other person on the transmission or an estate of
freehold Provided always that before registering such dealing or trans-
mission the Registrar shall require proof by statutory declaration that the
But noUoe ^^P^icate is not deposited or held as a security or lien and shall gire at
to be given least f ourteou days' notice of his intention to register such dealing in at
te^'giMttf*'' 1®^^ ^^® newspaper published in the City of Melbourne or circulating in
deding the neighbourhood of the land. (Q. 61-21 ; T. 62-69.)

Protision in 131^ In the ovout of the duplicate grant or certificate of title being
^t' ^ lost or destroyed or becoming so obliterated as to be useless the persons
having knowledge of the circumstances may make a statutory declaration
stating the facts and the particulars of all encumbrances affecting the land
or the title thereto to the best of declarants' knowledge information and
belief and the Commissioner if satisfied as to the truth of such declaration
and the hona fides of the transaction may direct the Registrar to issue to the
proprietor a special certificate of title to such land which special certificate
shall contain an exact copy of the grant or certificate io the Register Book
and of every memorandum and endorsement thereon and shall state why
such special certificate is issued and the Registrar shall at the same time

Online LibraryAustraliaThe land transfer laws of Australasia: being the full text with side notes ... → online text (page 60 of 83)