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

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entitled to receive a new duplicate certificate with an amended description

in substitution for the duplicate certificate so brought in, and every new
certificate so issued shall bear the same number as that for which it is sub-
stituted with the word " substituted " prefixed to the number. (Featherstone
V. Ranlon, 4 ; ex parte Bowa/n, 13.)

17. On any application to bring land under the Act in which the land ij^d occu-
actually and hona fide occupied by the applicant differs in boundaries area brou^'^ ^*
or position from the land described in his muniments of title, he may apply J°J^*^®
to bring under the Act the land so occupied ; and in any such case the differait
applicant shall state in his application in addition to the other particulars f,^"i^t^
required by the Act that the land as occupied by him and as to which he the title on
applies for a certificate is not correctly described in the muniments of title JS^uo?'
lodged in support of the application, and shall specify to the best of his
knowledge and belief the reasons for the discrepancy between the land as
occupied and the land as described in the muniments of title.



46



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878 VICTOBIAN LAND TBANSFEB ACT— No. 7.

Am^mtion 13* On any application to bring land under the Act by a deeeription

Und^S&in different from that m the muniments of title or for the issue of an amended

^tOTto certificate, the Commissioner may grant the same as to the' land in the
^Se mmj ' occupatiou of the applicant if the discrepancy between the land as occupied

M touSd* and as described in the muniments or certificate of title shall appear to be

oooapied duo to the iuaccuracy of any survey or plan or description on the sale of the

SSf dii^ land by the Crown or on any subsequent dealing therewith, or to any dia-

erib«d in crepaucy between the actual measurements or bearings at any time made

^l^^o^ or marked on the ground and those represented or mentioned in any plan or

ocrtificafca description.

Title n*y ^>« 19, If the land included in any application to bring land under the Act

exceM of or for au amended certificate consists or a Crown section or Crown allotment
pSd unSi ^^ portion, and it shall be found by survey or otherwise that by reason of
Crown (fnmt orroueous measurements in the original Crown survey the actual dimeoBions
dScriSki ^^ ^"^^ section allotment or portion as marked on the ground exceed or
in Crown fall short of the dimensions given in the Crown grant of such land, the Com-
*'*°' missioner may issue a certificate in respect of such land as if the dimensioiw

marked on the ground had been the dimensions given in the Crown grant.

{Featherttone v. Ranlon, 4 ; ex parte Bowan 13.)

£?" *^hB ^®* ^^®^ * Crown section has been subdivided by the Crown into

Apportioned allotments or portions of equal area and by reason of erroneous measure-
^ewot ni©iit8 m the original Crown survey the area of the section as marked on the
owners or gfouud oxceods the sum of the areas of all the allotments or portions as
proprietors g^Qwu by any plan or description used at the Crown sale or by any grant or
certificate of title of any such allotment or portion, the total excess of ares
of the section shall be deemed originally distributable amongst the allot-
ments or portions equally ; and if the area of the land included in tnj
application to bring land under the Act or for an amended certificate is in
the applicant's possession and was in such applicant's possession or those
through whom he claims for over fifteen years previous to the application
and does not exceed the area obtained by dividing the area of the section
as shown on the ground by the number of original allotments or portions,
the Commissioner may without ascertaining the dimensions of the other
allotments or portions and without the conseni of the owner or owners
thereof issue a certificate in respect of the land included in such application
as if the whole of it had been included by metes and bounds in the
original grant or certificate of such allotment or portion.

PersoM sns. 21. Any porsou sustaining any loss or damage by any rectification of a
b^^iSSiS!" certificate under this amending Act or by the bringing of land under the
ncj in Act, if the rectification or the issue of the certificate by which such Iobs or
jejmAj"' damage was occasioned was in consequence of or justified by any inaccuracy
diunlgea ^^ ^^J survoy or plan or description of land used upon any sale of land
ftf^inst the by the Crown, then notwithstanding the provisions of section one hundred
Msurance ^^^ forty-four and section one hundred and forty-six of the Act, but with-
out prejudice to the rights (if any) of such person thereunder, he may in
the first instance and without any obligation to pursue the remedies pro-
vided by such sections bring an action against the Eegistrar as nominal
defendant for recovery of damages, and may recover the damages awarded
together with the costs of the action out of the Assurance Fund. {EqwtM^
Building Society v. Bot9, 140.)

22. [Repealed by Sec. 8 of 1887 Act.]



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VICTOEIAN LAND TRANSFER ACT— No. 7. 379

23. When any land has been or shall be brought under the Act subject Title to

to any mortgage, and the mortgagee or any person claiming under him shall SSdOT^ii^e'^*
apply for a certificate of title to the land foreclosed or purchased, the Act subjeot
mortgage shall be deemed to have conferred upon the mortgagee or the Jj be^^h^?®
purchaser under the power of sale contained in the mortgage the right to be f°^^^f
registered as proprietor at law as well as in equity of the same estate in the mortgagee
land as that for which the mortgagor was registered, and the only inquiry f^^'i^®'
into title shall be as to the validity of the foreclosure or sale and of any subse- applying to
quent transfers or transmissions of title to the applicant, and no caveat ^^r^^
which might have been or which was lodged against the original application f°}^'
shall be lodged or renewed in respect of the same estate or interest against or saie"^^
the application of the mortgagee or any person claiming under him. (N. 13 ;
8. 28.)

24. The proprietor of any lease under the Act may subject to any i-ewee
provisions in his lease affecting his right so to do sub-let for a term not less lot ma/
than three years by signing a sub-lease in the Perm in the Second Schedule "ab-iet
hereto ; but no suo-lease of any land subject to a mortgage or charge upon second
the lease of the land comprised in the sub-lease shall be valid or binding Schedule
against the mortgagee or annuitant of the lease unless he shall have
consented in writing to such sub-lease previously to the same being regis-
tered.

25. A sub-lease shall be deemed and taken to be registered when a Mode of
memorial thereof as described in section forty of the Act has been endorsed !^^^'
on the original lease in the Register Book, and the person named in any
sab-lease registered as the sub-lessee shall be deemed and taken to be the
pronrietor thereof. The Registrar shall endorse on the sub-lease a certificate

of the time at which the memorial was endorsed on the original lease, and
shall authenticate such certificate by signing his name thereto, and such
certificate shall be received in all Courts as conclusive evidence that such
sub-lease has been duly registered.

26. Notwithstanding the provisions of section thirty-seven of the Act, Sub-ieMee
a sub-lease shall not be bound up in the Register Book, but upon registra- JJ^B^p^?^"^
tion one original shall be lodged and retained in the Office of Titles, and a register
book to be called the " Sub-lease Register " shall be kept in the office,
wherein entry shall be made of the date parties term and distinguishing
memorial number or symbol of such sub-lease, and such book shall be open

to inspection by the public during the hours and days of business on pay-
ment of the fee provided in that behalf.

27. The word " instrument '* used in the Act shall include a sub-lease, ^^oviwons
and the provisions of the Act affecting leases lessors and lessees shall apply feaaes^t'o ^^
to sub-leases sub-lessors and sub-lessees with such modifications and excep- *PP^y ^*^
tions as the difference between a lease and sub-lease and in the mode of modia^
registration thereof shall require, and the entries of recovery of possession J^uWowea
and of surrender provided for by sections eighty and eighty-two of the Act

shall in the case of a sub-lease be made on the sub-lease and not in the
Register Book, and the memorandum directed by section eighty-two to be
endorsed on the duplicate shall be written across the entry of such sub-lease
in the sub-lease register, and in case of a surrender evidenced by a separate
document such document shall be annexed to the original sub-lease. If the
lease be determined by forfeiture or operation of law or by surrender under
any Statute relating to insolvents and their estates, such determination or
surrender Bhall determine the sub-lease.



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380 VICTOEIAIT LAND TBANSFBK ACT—No. 7.

CoT«nanta 28. In addition to the coyenants specified in section serentj-six of the

^beimpiied ^^ ^ |j^ implied in every lease, there shall be implied in every sub-lease
iwwe the following covenant with the sub-lessee and his transferees oy the sub-

lessor binding the latter and his executors administrators and transferees
(that is to say) — ^That he or they will during the term thereby granted pay
the rent reserved by and perform and observe the covenants and agreem^its
contained in the original lease, and on his or their parts to be paid performed
and observed.

Fenon 29. Any persou desiring information as to whether a proprietor is able

fol^&JTii *^ ^^ ^^^ *^® ^*°^ comprised in his certificate free from obstruction

to whether causcd by any caveat instrument lodged for registration order injunction or

£2to^i* other cause mown to the Eegistrar but not appearing upon the certificate,

™*yobt»m may sign an application for search certificate in the Form in the IMid

^^ ^ ' Schedule hereto ; and on payment of the fee in that behalf provided the

^pj^^ Registrar shall cause the necessary searches and inquiries to be made for the

Schedule purpose of afiordiug the information required, and the result thereof shall

be certified in the form in the said Schedule contained by affixing the seal of

the office with the initiak of the officer attaching the same and the day hoar

and minute at which the seal is affixed.

Person 30. Such search certificate shall refer to the dealing or encumbrance

!SSS*oerti- '*^* noted on the certificate of title for the purpose of shovdng the state of

ficate the Begister at the time of issuing the searcn certificate but not of informing

^ecf oer. ^ho porson applying for the search certificate as to what is upon the certificate

ttj^te of of title, and such person shall be entitled to inspect the certificate of H^e

and shjJl be deemed to know all of which an inspection of the certificate of

title would have informed him. (Fither v. Stewart, 4i^, N. 11-1 ; Q. 61-11-1;

T. 62-11.)

Perjwnpro. 31. Any porsou proposing to deal for value with a proprietor may,

SSITinth with the consent in writing of such proprietor or his agent authorised in
proprietor writing iu that behalf and on stating the particulars of the proposed deding.
^j of lodge with the application for search certificate an application for stay of
foff<M?^*^° registration in the form in the Fourth Schedule hereto ; and if the result of
eight hoars the search shows that the proprietor is free to deal the Eegistrar shall on
dear* ^ payment of the fee in that behalf provided sign an order in the form in the

said Schedule staying registration of any instrument affecting the land to be
Schedule Comprised in the proposed dealing for forty-eight hours from the tdnae

mentioned in the search certificate, and the said onler shall be affij:ed to tiie

certificate and a copy thereof given to the applicant. (Be Battray^ 73. K.

22; S.40; 1.62-23.)

instrnment 32. If withiu the Said period of forty-eight hours a properly perfected

*ro*^o^ instrument effecting the proposed dealing be duly lodged for registration,
^flSSoff such instrument sh^ll have priority over an^ other instrument which may
Miori^ if ^® lodged for registration after the time mentioned in the search certificate,
lodged and the same shall be registered notwithstanding any caveat copy of writ or
eight hem " application by assignee in insolvency which may liave been lodged in the

office after the time mentioned is such search certificate. {Mudgtjoay v. Dacjf

and Buichy 1 ; Sharpe v. Hadley, 3 ; JParman v. Pannan, 16 ; FaichsU v.

Mautuell, 113 ; Ktuling v. MitcheUon, 123 ; Wtldoih v. Eutchisan, 1S2. S.

66,68; T. 62-36,)



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YICTOEIAN LAND TEANSPEE ACT— No. 7. 381

^ 33. Sjibjecttothe lodging of such duly perfected instrament within such instnunenfc
period, any other instrument and any caveat copy writ or application Jji^tnd
received in the office during such period shall be dealt with in tne same ^^^
manner shall have the tame priority as between themselves and shall be as ^ ^ ^
effectual as if no stay of registration had been obtained.

34. On an^ application to bring land under the Act, the Commissioner Frodaotion
may dispense with the production of any lease and may accept the memorial £• ^s^ns^
of the registration thereof as sufficient evidence of its contents ; and if the jj^^
memorial does not disclose any right of renevral or purchase, no such right lud under
shall be assumed to have existed and the lease snail be deemed to have ^^
expired at the time at which it would have expired according to the date

and term appearing in the memorial. (Be Craig, 76.)

35. Where for the purpose of bringing land under the Act a memorial ^^ fee pay.
shall be acted on as evidence of a conveyance in fee under the provisions of of mem<^
section thirty-one of the Act no payment to the Assurance iiind shall be S^SSLSm
required for acting on such memoriaJ where it shall appear to the Commis- forSSeen
sioner that the applicant has or the applicant together with those under ^^*"
whom he claims have been in continuous possession of the land included in

such memorial for a period of not less than fifteen years. (Equitable
Building Society v. Bobs, 140 ; Wadham v. Buttle and others, 155.)

36. On an application to bring leasehold property under the Act, the Onbrinffing
amount to be paid into the Assurance Fund under section thirty of the Act ^3^^
shall be based on the value o£ such leasehold, to be ascertained or certified fo« to b«
to in manner authorised by the said section. Tftine^of ^

leatehold

37f Section twenty-seven of the Act is hereby repealed, and in lieu needs to be
thereof the following shall be taken to be and may be cited as the twenty- JSj^n^SSt
seventh section of the Act : — " Upon registering a certificate of title, the of fid
^Registrar shall endorse upon the last material registered document lodged ^^^i|^
in support of the application a memorandum that land included in such broaght
document has been brought under the Act, without specifying the land or 5St wiJoan.
referring to the certificate in which the land brought under the Act is JjHjJjJ**
included, and shall endorse a like memorandum on the memorial of such when^mu ii
document in the Eegistrar- General's office and shall sign each such memo- J^^eS^*
randum ; and if the documents lodged shall relate to any property other
than the land included in such certificate, the Begistrar shall return them to
the applicant or to the person appearing by the application to be entitled
thereto, otherwise the Eegistrar snail stamp each oi them as cancelled, and
after he has so stamped them shall retain the same in the office ; and no
person shall be entitled to an inspection of such documents or to have any
copy thereor or extract therefrom without the written order of the applicant
or of some person claiming through or under him or upon the oraer of a
judge or of the Commissioner. No action shall be brought upon any covenant
or agreement for the production of the documents which shall be so retained
or upon any agreement to give or enter into a covenant for the production
thereof ; and if any such action shall be commenced, it shall be a sufficient
answer thereto that such documents have been retained under this Act.
But every person entitled to production under any such covenant or agree-
ment shall be entitled to obtain from the Commissioner the order herein-
before mentioned.*' (Be Beattie, 5d ; Bigge v. Waterhouse, 58 ; re William
BiggB, 59. N. 78-5 ; Z. 28, 175 ; S. 51, 64.)



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882



TICTOEIAN LAND TEANSTER ACT— Ho. 7.



Begittnrto
ffiTe receipt
for doou-
ments
lodged



Subiiftiog 38. Where any subsistiiig lease has been lodged, the Begistrar shall,

endoned^ after he has endorsed the same as above provided in the case of the last

ftDdretorned material registered document, return such lease to the person lodging the

same upon the applicant lodging with the Begistrar a certified copy of such

lease.

SbS^^rJf ^®' ^® Begistrar shall keep a book to be called the " Becord Book "

dooamrato^ in which shall be kept a record of all deeds and documents produced and

'•*^®^ used in support of each application to bring land under the Act which shall

hereafter be granted. Such record shall state briefly the nature and date of

and parties to every such deed or document, by whom executed or signed,

and whether registered under the general law or not, and if registered the

date of such registration, and the Becord Book shall be open for inspection

by the public during the hours and days of business on payment of a fee for

one hour's search therein of one shilling or such other tee as may hereafter

be prescribed. (Z. 28 ; S. 60.)

40. On any documents being lodged with the Begistrar for any of the
purposes of the Act the Begistrar shall if required so to do give to the
person lodging the same an acknowledgment of the same having been
lodged, l^ovided always that to obtain such acknowledgment the person
lodging such documents shall fill in duplicate lists of the same upon printed
forms supplied by the Office of Titles, one of which signed by such person
shall be retained by the office and the other with the seal of the Office of
Titles attached and bearing the initials of the officer attaching the same shall
constitute the acknowledgment so to be given. Provided adso that docu-
ments so lodged shall be returned only to the person who lodged the same
or to some person claiming through or under him or authorised in wriHag
by the person entitled to receive the same.

4L Notwithstanding the reservation in section forty-nine of the Act
of any easements subsisting over or upon or affecting any land comprised in
any grant or certificate of title, the Begistrar shall after this amending Act
shall have come into operation specify upon any future certificate of such
land and the duplicate thereof as an encumbrance affecting the same any
subsisting easement over or upon or affecting the same which shall appear
to have been created by any deed or writing. And notwithstanding the
proviso to the said section forty-nine of the Act, the Begistrar shall endorse
as an encumbrance upon all futiire certificates of title and the duplicates
thereof any special building condition or condition giving the Crown
power to resume land for railway purposes, or condition against free aliena-
tion contained in any grant of tne land described in such certificate and
duplicate, and such endorsement may be in the words following or to the
like effect (that is to say): — '* Special building condition contained in grant
to [A.B.] registered vol. fol ." " Special railway concHtion

contained in grant to [A.B.] registered vol. fol. ." " Con-

dition against free alienation contained in grant to [A.B.] registered toL
fol. ." {Jones V. Park, 81 ; Anderson v. Maori Mill

Borough, 103, 124. N. 43 ; Z. 61 ; Q. 61-51, 77-28, 85-9 ; S. 81 ; T. 62-43.
See Sec. IZ of l%%7 Act,)

42. Any lease or mortgage presented for registration may be in tripli-
cate, and upon the registration thereof as provided by section thirty-seven
of the Act the parts not retained shall be delivered to the person presenting
the lease or mortgage for registration ; but in every case of registration in
triplicate the woid tripUcate shidl be perforated tlirough each instrument^



exifldnff
under deed
or writing
to be netted
uencum-
bnuices



Alio build-
ing condi-
tion and
condition
againtt
alienfttion



LeMefMid
mortngee
mftjr Bein
tr^Iioftte



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VICTOBIAN LAND TRANSPBB ACT— No. 7. 888

and the words "lessor's part" shall be perforated through one lease and the
words " lessee's part " tli'ough the other of the two leases returned, and
the words " mortgagor's part " shall be perforated through one mortgage
and the words " mortgagee's part " through the other of the two mortgages
returned. (jOhamley v. Mrebrace, 21 ; Burne v. Stewart^ 28 ; Barker v. Weld,
31 ; Beg, y. IHdeman, 99 ; Bos9 v. MeNeil, 118 ; Matming t. Oroisman, 127 ;
STiacheil y. Lindeay, 174; St. George v. Burnett, 176. Q. 77-16; S. 98 ; T.
86-3.)

43. When any instrument subsequent to a first mortgage is made by Fint mort-
the proprietor of any land and such proprietor or the person entitled to the S^jdnoe
benefit of such subsequent instrument desires the registration of such sub- ^'^^..
sequent instrument the first mortgagee should he hold the duplicate grant of subsJ^"
or certificate of title which comprises the land in such substquent instru- JU.n"/*"'*"*"
ment shall upon being requested so to do by the proprietor of the land or

the person entitled to the benefit of such subsequent instrument but at the
cost of the person making such request produce such duplicate grant or
certificate ot title to the Begistrar so that such subsequent instrument may
be registered.

Unaatiafied

44. Where money secured b^ a mortgage under the Act is made demand of
payable on demand a demand in writing pursuant to the mortgage shall be ^t to ^ims
equivalent to the notice in writing to pay the money owing provided for Jj™*^*"^®
by section eighty -four of the Act, and no other notice shall be required to def^t upon
create the default in payment mentioned in section eighty-fiye of the Act. ^^^^^1^
(N. 56 ; Z. 98, 99 ; Q. 61-57 ; T. 62-54.) be exeroi^

45. Every duplicate or special certificate of title hereafter to be issued certifloatee
shall be on parchment. One certificate of title may be issued for several ^h^t
parcels of land though the same are not contiguous if in the opinion of the ^^^ ^^^.^
Kegistrar their relative positions can be sufficiently and conveniently shown o^ may be
upon the plan on the certificate ; and in any case in which it is inconvenient ^^^^
to draw the plan in the margin of a certificate it may be drawn upon the contiguons
back thereof.

46» It shall not be necessary to mention the area of any parcel of land ^^n Vb***
included in a certificate where the area of such parcel is less than one acre, mentioned^
and the omission to refer to the area of the land comprised in a certificate "* ^^^^^^o***
shall not in any case invalidate the certificate. And where the consideration Transfer to
for a transfer shall not consist of money the words " the sum of " in the SS^dSL
forms of transfer contained in the Fifth Schedule to the Act shall not be A^^f"^ °°*
used to describe the consideration but the true consideration shall be con- money^oon.

Ciaely stated. sideration

47. After the subdivision of land and deposit of plan under section Nomber of
one hundred and thirty-four of the Act, the numbers of the allotments jJJ^^^J"*^ ®°
marked upon such plan may be used as sufficient description of the land for subdiTision
the purpose of dealings with any one or more of such allotments on the SeSription
sale thereof according to such plan of subdivisior, and on any subsequent for P«rpoeet
dealings comprising the whole of one or more allotment or allotments. ° ^ ^
(^Mudgway v. Davy and Buichy 1.)

48. On an application to bring land under the Act or for an amended ^y^o^^ci
certificate, the land included in the certificate to be issued shall, at the in deaorip.
request of the applicant, and may at the discretion of the Commissioner, ^^S^^'^te
notwithstanding sections twenty-one and thirty-four and the Third Schedule



Online LibraryAustraliaThe land transfer laws of Australasia: being the full text with side notes ... → online text (page 65 of 83)