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

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enter in the Register Book notice of the issuing of such special certificate
and the date thereof and why it was issued and such special certificate shall
be available for all purposes and uses for which the duplicate grant or
certificate so loat or destroyed or obliterated would have been available and



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VICTORIAN LAND TR4NSFER ACT— No. 1. 849

shall be equally valid therewith to all intents Provided always that the
Begistrar beFore issuing such special certificate shall give at least fourteen
days' notice of his intention so to do in at least one newspaper published
in the City of Melbourne or circulating in the neighbourhood of the land.

132. In case it shall appear to the satisfaction of the Registrar that Fmon to
any certificate of title or instrument has been issued in error or contains Jc^or^
any misdescription of land or of boundaries or that any entry or endorse- jJi^SSJ^JJJ
ment has been made in error on any grant certificate of title or instrument been iasaed
or that any grant certificate instrument entry or endorsement has been Sk^^ng-
f raudulently or wrongfully obtained or that any grant certificate or instru- fuiir retaiiis
ment is fraudulently or wrongfully retained he may by writing require the mentmlybe
person to whom such document has been so issued or by whom it has been summoned
80 obtained or is retained to deliver up the same for the purpose of being
cancelled or corrected or given to the proper party as the case may require Person re.
and in case such person shall refuse or neglect to comply with sucn requisi- Sj^J^^p
tion the Registrar may apply to a judge to issue a summons for such certmcmte
person to appear before the Supreme Court or a judge and show cause why tfon^co^
such grant certificate or instrument should not be delivered up for the JJ'^JJ^y
purpose aforesaid and if such person when served with such summons shall and brought
neglect or refuse to attend before such Court or a judge thereof at the time ^^^J ^^^^
therein appointed it shall be lawful for a Judge to issue a warrant authoris- Supreme
ing and directing the person so summoned to be apprehended and brought ^^"^
before the Supreme Court or a judge for examination. (JRe Thompson and
Chipps, 26, 70 ; re Feamlei/, 97 ; re Wm. Wadham, 114 ; I)e Lissa v. Coleman^
207; ex parte Davies a/nd Inman, 208; re Williamson^ 209; ea parte Vincent,
210. N. 126 ; Z. 69, 71 ; S. 60, 61 ; T. 62-136.)

138» Upon the appearance before the Court or a judge of any person Partj
summoned or brought up by virtue of a warrant as aforesaid it shall be S?y^*
lawful for the Court or judge to examine such person upon oath and in case «xjmined on
the same shall seem proper to order such person to deliver up such grant cer- ***
tificate of title or instrument as aforesaid and upon refusal or neglect by such ^^Sr SJ^
person to deliver up the same pursuant to such order to commit such ])erson deiiyerj of
to gaol for any period not exceeding six months unless such grant certificate ^?*JJ^e
or instrument shall be sooner delivered up and in such case or in case such registrar
person cannot be found so that a requisition and summons may be served
upon him as hereinbefore directed the Registrar shall if the circumstances _
oi the case require it issue to the proprietor of the land such certificate of nedeot or
title as is herein provided to be issued in the case of any duplicate grant or J^^
certificate of title being lost or destroyed and shall enter in the Register vmj issoe a
Book notice of the issuing of such certificate and the circumstances under ^^ ««rtifl-
which the same was issued. (Q. 61-132, 31, 60 ; S. 43, 60 ; T. 62-137.)

134. Any proprietor subdividing any land under the operation of this ^^^^
Act for the purpose of selling the same in allotments shall deposit with the todepont*
Registrar a map of such land if so required Such map shall exhibit JJ^^
distinctly delineated' all roads streets passages thoroughfares squares or
reserves appropriated or set apart for the use of the purchasers and also all
allotments into which the said land may be divided marked with distinct
numbers or symbols and shall also show the areas and shall be declared to
be accurate by a statutory declaration of a licensed surveyor. No person
shall be permitted to practise as a surveyor under this Act unless specially
licensed for that purpose by the Surveyor- General. (N. 100, 101 ; Q. 61-119 ;
8. 100, 220 ; T. 62, 103, 104. See also Sees. 2 and 4a 0/1885 Aot.)



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360 VICTOEIAN LAND TBANSPEB ACT— No. 1.

Proprietor 135. If upon the application of any owner or proprietor to have

SSJJSJil- ^^^ brought under the operation of this Act or to have any dealing or
Sw?f*^ transmission registered or recorded or to have any certificate ot title regis-
■atisfled tration abstract foreclosure order or other document issued or to have any
act or duty done or performed which by this Act is required to be done or
performed by the Begistrar the ^Registrar shall refuse so to do or if such
owner or proprietor shall be dissatisfied with the direction upon his application
given by the Commissioner it shall be lawful for such owner or proprietor to
require the Eegistrar to set forth in writing under his hand the grounds of
his refusal or the grounds upon which such direction was given and such
owner or proprietor may if he think fit at his own costs summon the Eegistrar
to appear before the Supreme Court to substantiate and uphold the grounds
of his refusal or of such direction as aforesaid such summons to be issued
under the hand of a judge and to be served upon the Eegistrar six clear
days at least before the day appointed for hearing the complaint of such
owner or proprietor. Upon such hearing the Eegistrar or his counsel shall
have the right of reply and the said Court may if any question of fact be
involved direct an issue to be tried to decide such fact and thereafter the
said Court shall make such order in the premises as the circumstances of the
j^^^^tg case may require and the Eegistrar shall obey such order and all expenses
appU^t ^ attendant upon any such proceeding shall be borne and paid by the applicant
or other person preferring such complaint unless the Court shall certify
that there was no probable ground for such refusal or direction as aforesaid.
(Sharpe v. Hadleyy 3 ; Ooher v. Spence, 5 ; Fisher v. Stewart, 44 ; Bank cf
Victoria v. Bawlinga, 62 ; re Turner, 66 ; re Oraig, 76 ; Watson v. Watson, 93 ;
Campbell v. JarreU, 96, 142 ; re Feamley, 97 ; Rail v. Hall, 98 ; KearUm v.
Bichardson, 125; Ashley v. Cook, 137 and 160; Orey v. Wesson, 152;
Wilson V. Xiny, 166; Miller v. Stewart, 172; Shackell v. Lindsay, 174,
8. 221. See also Sec. 72 </1886 Act.)

b**]^dS3 136, The forms contained in the several schedules hereto and the

forms for the time being in force under this Act may be modified or
altered in expression to suit the circumstances of every case and any
variation from such forms respectively in any respect not being matter of
substance shall not affect their validity or regularity.

Officen not 137. The Commissioner shaU not nor shall the Eegistrar or any person

for Mtodone acting under the authority of either of them be liable to any action suit or
bonajide proceeding for or in respect of any act or matter bona fide done or
omitted to be done in the exercise or supposed exercise of the powers of this
Act.
Eeisistered 138. No action of ejectment or other action for the recovery of any

protected land shall lie or be sustained against the person registered as proprietor
*^*^D«nt tl^c^oof under the provisions of this Act except in any of the following cases
Sc^e^t^ that is to say: — (1) The case of a mortgagee as against a mortgagor in
T default. (2) The case of an annuitant as against a grantor in default. (3)
The case of a lessor as against a lessee in default. (4) The case of a person
deprived of any land by fraud as against the person rejgistered as proprietor
of such land through fraud or against a person deriving otherwise than as
a transferee bona fide for value from or through a person so registered
through fraud. (5) The case of a person deprived of or claiming any land
included in any grant or certificate of title of other land by misdescription
of such other land or of its boundaries as against the registered proprietor of
such other land not bei^g a transferee thereof bona fide iot value. (6) The



oertainoMes ,



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VICTOEIAN LAND TEANSPEB ACT— No. 1. 351

case of a registered proprietor claiming uuder a grant or certificate of title
prior in date of registration under the proyisions of this Act in any case in
which two or more grants or two or more certificates of title or a grant and a
certificate of title may be registered under the provisions of this Act in
respect of the same land and in any case other than as aforesaid the pro-
duction of the registered grant certificate of title or lease shall be held in
every Court of law or equity to be an absolute bar and estoppel to any such
action against the person named in such document as the grantee proprietor
or lessee of the land therein described any rule of law or equity to the
contrary notwithstanding. (Featherstone v. Sanlon, 4 ; Slack v. Dovmton^
11 ; Fannan v. Fannan, 16 ; re Sellars^ 32 ; Coleman Sf Clark v. Biria, 46 ;
Jone9 V. Sellicky 78 ; Sanders v. Wadhamy 88 ; Kirkham v. Julien, 109 ;
Wilkinson v. Broum, 121 ; Kearton v. Bichardson, 125 ; Colonial Bank, v.
Babhage, 126 ; Dyke v. Elliott, 133 ; Jones v. Jones, 134 ; Finnoran v. Weir,
136; Wadham v. BuUle, 155; Rail v. Loder, 168; Buckett v. KnoUe, 167
and 168 ; Delaney v. Sandhurst Building Society, 179 ; Colonial Bank v.
Boache, 187. N. 58, 115, 116 ; Z. 56 ; Q. 61-60, 123 ; S. 192 ; T. 62-124.)

189. Upon the recovery of any land estate or interest by any pro- Powers of
ceeding at law or in equity from the person registered as proprietor thereof ai^^.
it shall be lawful for the Court or a judge in any case in which such pro- ooUation of
ceeding is not herein expressly barred to direct the Registrar to cancel any entry S***^'
certificate of title or instrument or any entry or memorial in the Eegister *»^ "*'
Book relating to such land estate or interest and to substitute such certifi-
cate of title or entry as the circumstances of the case may require and the
Registrar shall give effect to such order. (Be Beattie, 53 ; Biggs v. Water-
house, 58 ; re Wfw. Biggs, 59 ; Jones v. Sellick, 78. N. 128 ; T. 62-138.)

140. [Eepealed by Sec. 75 of 1885 Act.]

141. Any person may on payment of the fee for the time being 8««wheaand
payable in that behalf inspect the Eegister Book during the hours and upon ^^^^
the days of business. The Registrar on payment of flie fee for the time

being payable for a certified copy shall furnish to any person applying for
the same a certified copy of any grant certificate of title caveat or registered
instrument afiecting land under the operation of this Act and every such
certified copy signed by him or by any Assistant Registrar and authenticated
by the seal of the office of titles shall be received in evidence in any Court
of Justice or before any person having by law or by consent of parties
authority to receive evidence as prima facie proof of the original grant
certificate caveat or instrument ana of all the matters contained or recited
in or endorsed thereon respectively. (N. 102, 103 ; Z. 89 ; Q. 77-50, 78-4 ;
S. 65 ; T. 62-105.)

142. The Registrar shall keep a correct account of all sums of money ^«^*^' ^
which shall be received by him under tLe provisions of this Act and shall to noeWer'
pay the same to one of the receivers of revenue at such times and shall J^^®^
render accounts of the same to such persons and in such manner as may be deraooonnts
directed by any statute or regulations for the time being in force relating to

the collection and payment of the public moneys and the audit of the public
accounts. All penalties and fees received under the provisions of this Act
except sums received as contributions to the Assurance Fund or in augmen-
tation thereof) shall be carried to and form part of the consolidated revenue.
(Ooker V. Spence, 5 ; Lange v, BudwoU, 143. N. 106 ; Q. 61-141 ; S. 23 ;
T. 62-109. See Sec. 55 o/1885 Act.)



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352 VICTORIAN LAND TEANSPBB ACT— No. 1.

AMUTMioe 143. All sums of moDey which shall be received by the Beg^istrar

i^^l^^ as contributions to the Assurance Fund or in augmentation thereof shall

OoTenunent bo paid to the Treasurer of Victoria who shall place such sums to tiie

McantiM j5p^^ Qf 1^ account to be kept in the Treasury to be called " the Assurance

Fund" and shall from time to time invest the same together witii iJl

difidends and profits accruing thereon in Victorian Government securities

to constitute an Assurance Fund for the purposes hereinafter mentioned.

(Moyle V. Qtbbi, 49. Q. 61-42 ; T. 62-29.)

comiMiiaft. 144. Any person deprived of land or of any estate or interest in land

S^rWeShS? ^ consequence of fraud or through the bringing of such land under the
i«nd operation of this Act or by the registration of any other person as proprietor

of such land estate or interest or in consequence of any error or misde-
scription in any certificate of title or in any entry or memorial in the
Eegister Book may bring and prosecute an action at law for the recovery of
damages against the person upon whose application such land was brought
under the operation of this Act or such erroneous registration was made or
who acquired title to the estate or interest through such fraud error or
misdescription Provided always that except in the case of fraud or of
error occasioned by any omission misrepresentation or misdescription in t^e
application of such person to bring such land under the operation of this
Act or to be registered as proprietor of such land estate or interest or in
any instrument signed by him such person shall upon a transfer of such
land bona fide for value cease to be liable for the payment of any damage
which but for such transfer might have been recovered from him under t£e
provisions herein contained and in such last-mentioned case and also in case
the person against whom such action for damages is directed to be broogiit
as aforesaid shall be dead or shall have been adjudged insolvent or cannot
be found within the jurisdiction of the Supreme Court then and in any
such case such damages with costs of action may be recovered out of the
Assurance Fund by action against the Registrar as nominal defendant
Provided also that in estimating such damages the value of aU buildings and
other improvements erected or made subsequently to the deprivation shall
be excluded. {Biggt v. Waterhouse, 58. N. 117; S. 203; T. 62-125. See
See,25ofl8S7 Act.)

145. Nothing in this Act contained shall be so interpreted as to leave
subject to an action of ejectment or to an action for recovery of damages
as aforesaid or for deprivation of the estate or interest in respect to which
he is registered as proprietor any purchaser bond fide for valuable considera-
tion of land under the operation ot this Act on the ground that the proprietor
through or under whom he claims may have been registered as proprietor
through fraud or error or may have derived &om or through a person
registered as proprietor through fraxid or error and this whether such fraud
or error shall consist in wrong description of the boundaries or of the
parcels of any land or otherwise howsoever. {Mudgway v. Davy and Buiek^
1 ; Feaiherstone v. Hamlon, 4 ; Main v. Bobertwn, 191. N. 115-1, 118 ; Z.
189,190; S. 167, 207.)

146, Any person sustaining loss through anv omission mistake or
misfeasance of the Eegistrar or any other officer or clerk in the execution of

^ their re8(.^ctive duties under the provisions of this Act or by any error
omission or misdeecription in any certificate of title or any entry or
memorial in the Begister Book or by the registration of any other person
as proprietor and who by the provisions of this Act is baired from bruiging



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VIOTOBIAlf LAim TEAlSrSPEE ACT— No. 1.

an aeidon of ejectment or other action for the recoyerj of the land estate
or interest may in any case in which the remedy by an action for recovery of
damages as herein provided is inapplicable bring an action against the
Hegistrar as nominal defendant for recovery of damages in estimating which
damages however the value of all buildings and other improvements erected
or made subsequently to the loss or deprivation shall be excluded. (Oakden
and others v OMs, 7 ; Qriffin v. Dimny 8 ; Lotteh v. Ball, 9 ; Foiheringham
V. Archer, 10 ; Slack v. Downton, 11 ; Anderson v. Maori Rill Borough, 108 ;
Schroeder v. Harcourt, 104 ; Van Damme v. Bloxam, 105. Q. 6J.-74, 128 ;
T. 62-63, 128. See See. 25 o/1887 Act)

147* Til any case m which an action for recovery of damages is Notio© of
permitted to be brought against the Eegistrar as nominal defendant notice Juried *°^*
m writing of such action and of the cause thereof shall be served upon such
nominal defendant one month at least before the commencement of such
action and if in any such action judgment be given in favour of the nominal
defendant or the plaintiff discontinue or become nonsuit the plaintiff shall
be liable to pay the full costs of defending such action and the same when
taxed shall be recovered in the name of the nominal defendant by the like
process of execution as in other actions. (Z. 180 ; Q. 61-128 ; S. 208.)

148. If in any such action the plaintiff recover final judgment against Fajmentof
such nominal defendant then the jud^e before whom such action may be S™^JJSd'*^
tried or the Supreme Court shall certify the fact of such judgment and the
amount of damages and costs recovered and the amount of such damages

and costs shall be paid to the person recovering the same and shall be
charged to the account of the Assurance Fund and in case the balance to
the credit of the Assurance Eund shall be inadequate to defray the amount
specified such sum as may be necessary for that purpose shall be paid out
of the Consolidated Eevenue and the amount so advanced shall be repaid
from the Assurance Fund as the same may thereafter accrue.

149. No action for recovery of damages sustained through deprivation i4mit»tioii
of land or of any estate or interest in land shall lie or be sustained against *>f »«*»<>°*
the Begistrar or against the Assurance Fund or against the person upon
whose application such land was brought under the operation of this Act or
against the person who applied to be registered as proprietor in respect to

such land unless such action shall be commenced within the period of six
years from the date of such deprivation Provided nevertheless that any
person being under the disability of coverture infancy unsoundness of mind
or absence from Victoria may bring such action within six years from the
date on which such disability shall have ceased so however that such action
be brought within thirty years next after the date of such deprivation The
plaintiff in any such action at whatever time it may be brought and the
plaintiff in any action for the recovery of land shall be nonsuited in any
case in which the deprivation complained of may have been occasioned
through the bringing of land under the operation of this Act if it shall be Penona
made to appear to the satisfaction of the judge before whom such action nJtiol or
shall be tried that such plaintiff or the persons through or under whom he cognizant
claims title had notice by personal service or otherwise or was aware that ?o^^J?^'^
application had been made to bring such land under the operation of this ^^rnd
Act and had wilfully or collusively or negligently omitted to lodge a caveat
forbidding the same or had allowed such caveat to lapse. {MudguHxg v. Davy
and Buick, 1. N. 122 ; Z. 187 ; T. 62-180.)



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864



VICTOBIAN LAND TBANSFBE ACT— No. 1-



Moneyi 150. Whenever any amount has been paid out of the Assurance Fund

gj^* e' ^^ account of any person who may be dead such amount may be recovered
fund may from the estate of such ])erson by action against his personal repreeen^tiveB
bewooTered ^ ^y^^ name of the Registrar and whenever such amount has been paid on
account of a person who shall have been adjudged insolvent the amount so
paid shail be considered to be a debt due from the estate of such inBolvent
and a certificate signed by the Treasurer of Victoria certifying the fact of
such payment out of the Assurance Fund and delivered to tiie offidai
assignee shall be sufficient proof of such debt and whenever any amount
has been paid out of the Assurance Fund on accoimt of any person who
may have absconded or who cannot be found within the jurisdiction of l^e
Supreme Court and may have left any real or personal estate within Victoria
it shall be lawful for the said court or a judge thereof upon the application
of the Registrar and upon the production of a certificate signed by the
Treasurer of Victoria certifying that the amount has been paid in satidfiekction
of a judgment against the Registrar as nominal defendant to allow the
Registrar to sign judgment against such person forthwith for the amount
so paid out of the Assurance Fund together with the costs of the application
ana such judgment shall be final and signed in like manner as a final judgment
hj confession or default in an adverse suit and execution may issue imme-
diately and if such person shall not have left real or personal estate within
Victoria sufficient to satisfy the amount for which execution may have been
issued as aforesaid it shall be lawful for the Registrar to recover such amount
or the unrecovered balance thereof by action against such person at any
time thereafter if he shall be found within the jurisdiction oi the Supr^u
Court. (N. 125 ; 8. 218 ; T. 02-132.)

151. The Assurance Fund shall not under any circumstances be Me
.for compensation for any loss damage or deprivation occasioned by ^

breach by a proprietor of any trust whether express implied or constructin
nor in any case in which the same land may have been included in two or
more grants from the Crown nor shall the Assurance Fund be liable in any
case in which such loss or deprivation has been occasioned by any land being
incladed in the same certificate of title with other land through misdescrip-
tion of boundaries or parcels of any land unless in the case last aforesaid it
shall be proved that the person liable for compensation and damages is dead
or has absconded or has been adjudged insolvent or the Sheriff shall certify
that such person is unable to pay the full amount awarded in any action for
recovery of such compensation and damages Provided always that any
amount paid out of the Assurance Fund on account of any person who may
have absconded may be recovered from such person by action in the name of
the Registrar at any time thereafter if such person shall be found within
the jurisdiction of the Supreme Court Provided also that the said fund
shall be liable for such amounts only as the Sheriff shall fail to recover from
the person liable as aforesaid. (Moyle v. Oibbs, 49. N. 116, 124 ; Z. 53 ;
Q. 77-47; S. 206; T. 62-133.)

152. In the conduct of actions under this Act the same rules of procedure
and practice shall apply and there shall be the same rights of appeal as shall
be in force or exist for the time being in respect of ordinary actions in the

in ordinftrj court iu which such action may be tried Provided that the judges shall have

^^^'^ power from time to time to make rules and orders for regulating proceedings

Sopmne in the Supreme Court under this Act and from time to time to rescind alter

SSSf^i or add to such rules and orders. (N. 134 ; Z. 193 ; S. 238 ; T. 62-143, 74-32.)

Ac.



Aaranaoe
ftind not
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RolMof
Sopreme
Court to
Kpply ftnd
same right



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VICTORIAN LAND TRANSFER ACT— No. 1. 355

153. If any person wilfully makes any false statement or declaration o«rtaiQ
in any application to bring lani under the operation of this Act or in any 2ESl?bo'
application to be registered as proprietor whether in possession remainder deemed mis.
reversion or otherwise on a transmission or in any other application to be ^•°**"®'*"
registered under this Act as proprietor of any land lease mortgage or
charge or suppresses or conceals or assists or joins in or is privy to the
suppressing withholding or concealing from the Commissioner or Registrar



Online LibraryAustraliaThe land transfer laws of Australasia: being the full text with side notes ... → online text (page 61 of 83)