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

. (page 68 of 83)
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respectively or subject to an easement of right-of-way has been exclusively ^SluS2i<m

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eonthnioiislT and adrendj occupied br tbe applka&i or bj Ub md tiune
throng bixn whom he claims for & period of not Ie« tiim tUztj jean» Ik
CommisnoDer maj Dotwithstandiiig lection fortr-ooe of Act DCCCLXIIL
at his discretion issue a certificate for the fee simple of mxk laad wAoui
Dotifjiiig such road rights or easement of nght-of-waj aa an eDexaahnaK,
and thereafter the same shall not be pfo se r r c d bj section brtj-mne of the
Act. (See noie to See. 4B,^ISS6 Act.)

wwr«^ 14. If upon an application to bring land under the Act or to amezid a

^ certificate it is foona that a bailding of a permanent nature has been

erected prior to the pasaing of this Act so as to encroach upon the vidth or

'^^ ali^ment of a public road street or way within the limits of the dty of

2J*"^^ Melbourne or town of Geelong, but it is prored to the satisfaction of the
^ Commissioner that such encroachment has continued for a period of not ktf

than fifteen years, the Commissioner may issue a certificate for or incladi&g
the land covered by such building, provided notice of such application idJ
alleged encroachment shall have been duly given to the corporation council
board or other body in whom such road street or way is vested or who hsie
the trust or legal control thereof. In the event of such body sending in
objections it shall be heard m support thereof, and the Commissioner shill
hare power to examine witnesses upon oath on behalf of the applicant and
the corporation council board or other body and make such order as to bim
may seem fit. Provided always that no encroachment so allowed br the
Commissioner shall exceed three feet. Provided also that the Gt>verDor in
Council may from time to time upon a petition in that behalf signed \fj
two-thirds of the totsl number of members of the council of any shiie
borough town or city sealed with the common seal of the municipslin
affected, order that the operation of this section be extended to such ehiie
borough town or city, and every order so made shall be published in tk
Oavernment Gazette and shall take effect as from the day of sod publi-

^ Com- 15, Where a block of land has been subdivided and the whole or ptrt

Bsj de^. thereof sold in allotments according to a plan of subdivision but such hloA
p^xJ^^ i« altogether or in part unoccupied, and by reason of errors of surveyor
dam of old misdescription in the muniments of title the boundaries and positions of
•abdiTiaioiii ^^^^ subdivisional allotments cannot be ascertained with certainty or are
found to be inconsistent with each other and with the scheme of subdivision
indicated by what appears on the ground or in the muniments of title, then
if it is upwards of fifteen years since the original subdivision was made vA
if the onginal external survey boundaries of such block can be determined
and sufficient evidence is available to satisfy the Commissioner as to
the governing features of the original scheme, the number and relatfre
position and relative dimensions of the subdivisional allotments roads
streets and ways, he may upon an application to bring any such sub-
divisional allotment or allotments under the Act, or where such land
is already under the Act, to have a separate certificate of title issued
for such allotment or allotments, or an existing certificate amended,
cause a survey to be made and if it be found that such land or uiy
portion thereof has been erroneously described as regards position
dimensions or area, or that an excess or deficiency of measurement exists
he may, if of opinion that such a course is necessary and expedi&it
for the recognition or issue of titles to land comprised in the said block,
prepare a scheme of subdivision of the whole or any portion of such Uoek

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agreeing as near as may be with the original scheme as indicated by such
evidence as aforesaid, and for that purpose may adjust and determine all or
any of the boundary lines and the position and dimensions of the roads
streets and ways, and apportion any excess either in accordance with section
twelye of this Act or in such other manner as he shall deem equitable and
expedient for the purposes of such subdivision.

16. The scheme of subdivision so prepared shall be embodied in a plan ^f^ ^
and adopted provisionally for the purposes of the notices hereinafter b« m*de

17. After such plan has been constructed the Commissioner shall in Notice to be
addition to any other notices which he may think fit direct notice of the and^^^STto
proposed subdivision to be advertised once at least in a newspaper published J^^J^^
in Melbourne and in a newspaper (if any) published and circulating in the pT^pneton
neighbourhood of the land, and also to be served upon all persons appearing

by the Eegister to be owners or proprietors of the fee simple of any portion
of such land by sending the same through the post-office in a registered
letter marked on the outside " Office of Titles " to the address appearing
upon the Begister and also to any other address ascertained by the Com-
missioner to be the address for the time being of the person notified ; such
notice shall state that such provisionally adopted plan can be inspected at
the Office of Titles, and appoint a time not less than fourteen days nor more
than six months within wnich objections or proposals to alter the same and
evidence in support of such objections or proposals will be received by the
Commissioner. But it shall be in the discretion of the Commissioner
whether or not he will concede to any objections or adopt any alteration
submitted to him upon such notice ; and if he do adopt any such alteration,
whether or not any and what notice thereof shall be given to all or any of
the persons previously notified.

18. After a scheme of subdivision has been finally decided upon, the The tub.
plan embodying it shall be verified by the Commissioner and Chief Drafts- pSi'tobe
man or officer discharging the duties of Chief Draftsman signing a state- J^*^.^
ment written on the face of the plan in the Eorm in the Second Schedule dnftmLn
hereto, and the plan so verified shall be marked with a distinguishing symbol JJJj^er wJd*"
and kept in the Office of Titles as an approved lodged map of subdivision, and b«»ome*»
shall as from the date of such verification govern the titles thereafter issued JS^sumT*^
under the Act to the block so subdivided or any portion thereof. And the ▼Won
remedy of any person having an estate or interest in the land subdivided or second

in any portion thereof who shall be injured by any certificate of title issued Schedule
in pursuance of such subdivision stall lie in damages only, and the same may
be sued for and recovered in manner indicated by section twenty -five of this

Act. Noticeof

19. Notice of such subdivision and verification of the plan shall be and plan to
published in the Ghvemment Gazette and in some newspaper circulating in jlf&e^^^®^
the neighbourhood of the land. Q<n«mmid

20. The expense of any survey which the Commissioner shall cause to

be made under section fifteen of this Act shall in the first instance be Expense of
defrayed out of the consolidated revenue, but every applicant who after such J3d*^ ^^^
subdivision shall apply to bring any portion of the land comprised in such
subdivision under the Act or to have a certificate issued or amended as to
any such land for the first time after such subdivision shall in addition to
any other moneys chargeable in such case pay to the Begistrar (to be by

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tion of lease
or iiib-leMe
by re-entry
to be entered




which hare


•ffeot the

title may be




Power to
doner to
make a
order m




under the

him paid into the consolidated rerenae) such amount as the Commiationer
shall under his hand certify to be in his judgment an equitable share of
such expense to be contributed in respect of the land comprised in such

21, In the case of a lease or sub-lease of land under the Act, if it be
proved to the satisfaction of the Commissioner that the lessor or sub-lessor
nis assign or transferee has re-entered upon the premises in strict conf ormitj
with the provisions for re-entry contained in the lease or sub-lease or under
the power of the second sub-section of section seventy-seven of the Act
where the lease or sub-lease is under the Act, or that the lessee or sub-lessee
has abitndoned the leased premises and the lease and that the lessor or sub-
lessor his assign or transferee has thereupon re-entered upon and occupied
the said premises by himelf or tenants undisturbed by the lessee or sub-lessee
the Commissioner may direct the Eegistrar to make an entry of such re-entry
in the Eegister Book or in the Sub-Lease Eegister (as the case may be), and
the term for which the land was leased or sub-leased shall upon such entry
being made determine and may be removed as an encumbrance from a
certificate, but without prejudice to any action or cause of action which shall
previously have been commenced or have accrued in respect of any breach
or non-observance of anv covenant expressed in the lease or sub-lease or by
the Act or any amendment thereof declared to be implied therein.

22, Where it shall bo proved to the satisfaction of the Commissioner
that the rights of an OfScial Assignee or trustee in insolvency, or of an
execution creditor notified as an encumbrance on the certificate, have been
f ullv satisfied extinguished or otherwise determined and no longer affect the
land comprised in the certificate, the Commissioner may either direct a
statement to that effect signed by the Registrar to be endorsed on the
certificate or permit any subsequent certificate dealing with the same land to
be issued free from such encumbrance.

23. If it be proved to the satisfaction of the Commissioner that land
under the Act has been sold by the proprietor and the whole of the parchase
money paid and that the purchaser or those claiming under him have entered
and taken possession under such purchase and such entry and possession
have been acquiesced in by the vendor or his representatives but that no
transfer or formal conveyance has ever been executed by the vendor and
cannot be obtained by reason that the vendor is dead or residing out of the
jurisdiction or cannot be found, the Commissioner may in his discretion
make a vesting order in the premises, and the Begistrar on being served
with such order shall make the entries directed to be made by section one
hundred and eleven of the Act in the case of the vesting orders therein
mentioned and the making or the omission to make such entries shall be
attended by the same results as declared by the said section in respect of
the vesting orders therein mentioned.

24. Upon granting an application made under Act 1872, for amendment
of a certificate, or made under this Act for the exercise by the Commissioner
of any of the powers conferred on him by sections twelve thirteen fourteen
fifteen twenty-one twenty-two and thirty-three of this Act or for the waiver
of any requisition made in connexion with a proposed dealing under the
Act, the Commissioner may grant such application conditioned upon the
applicant contributing to the Assurance Fund in augmentation thereof such
a sum of money as the Commissioner shall certify under his hand to be in
his judgment a sufficient indemnity by reason of the non-production of any

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document affecting the title or of inability to obtain a consent serve a
notice or comply with any otber requisition made in the case or by reason
of the imperfect nature of the evidence of title or as against any uncertain
or doubtful claim or demand incident to or which may arise upon the title
or any risk to which the Assurance Fund may be exposed bj toe granting
of the application.

25, Any person sustaining any loss or damage in or by the exercise by Panona sot.
the Commissioner after the coming into operation of this Act of any of the SJjJ'SSiJJIir
powers conferred on him by the " Transfer of Land Statute " or any statu- damages
tory amendments or modifications thereof and who shall not have been party Aummoe
OP privy to the application or dealing in connexion with which such power ^^^

was exercised may notwithstanding the provisions of section one hundred
and forty-four and section one hundred and forty-six of the Act and without
prejudice to the rights (if any) of such person thereunder in the first
instance and without any obligation to pursue the remedies provided by
such sections bring an action against the Kegistrar as nominal defendant
for recovery of damages, and may recover the damages awarded together
with the costs of the action out of the Assurance Eund. And where such
person shall have been party or privy to such application or dealing he shall
06 at liberty to join the Registrar as a nominal co-defendant in any action
brought by him m respect of such loss or damage against any other person
or persons who shall have been party or privy to such applicatiou or dealing,
and all damages and costs recovered against the EegiHtrar in such action
whether by the plaintiff or a co-defendant may be recovered out of the
Assurance Fund.

26. Any person sustaining loss or damage in any case in which hereto- ^JJJJ*
fore he would have been entitled to bring an action to recover damages majWore
against the Begistrar as nominal defendant may before commencing pro- JJ^JJ^j^^
ceedings against the Registrar make application in writing to the Commis- apply to
sioner for compensation, and such application shall be supported by affidavit sSSm in
or declaration. If the Commissioner admit the claim or any part thereof writing for
and certify accordingly to the Attorney-General, thereupon the Qovernor Son*****^
may if he shall think fit issue a warrant to the Treasurer for the amount so
certified out of the Assurance Fund.

27* From and after the coming into operation of this Act the Eegistrar- Memorial to
General shall refuse to register any deed conveyance or other instrument J5dr^ &o.
under Part XVII. of the " Eeal Property Statute 1864. " unless the memorial of each
thereof shall set forth in addition to the particulars required by section one SSedT^.
hundred and ninety-eight of that Statute the address and addition (if any)
given in such instrument of each party thereto, such address and addition to
appear after the name of such party in the column of the memorial corres-
pon^ng to the third column in the Fourth Schedule to the said Statute under
the besting " Names of the parties." t^Sf^^^

28. Where a caveat has been lodged by or on behalf of a beneficiary ^S^i^
claiming under a will or settlement and a change in the proprietorship of or or "****^
a transfer or other dealing with or affecting the land estate or interest in SS?*be*
respect of which the caveat was lodged is presented for registration, the JS^Juw
same may notwithstanding section one hundred and nineteen of the Act be trstiou^
registered without the caveat being withdrawn and without determining the ^^^Sg^d
operation of the caveat, provided the Commissioner is of opinion that such byUiewm
change of proprietorship or such transfer or other dealing is authorised by ^eof^^

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the will or settlement and the caveator either consents to the registration or
does not lodge a written protest against such registration within fourteen
days after being served with notice as such caveator.
Coot writ of 29. On a transfer from a sheriff being presented for registration it
"Se re v"** ^^*^^ ^^^ ^® registered nor deemed produced for registration within the
tered^efbre meaning of Boction thirty-seven of the Act unless previously and within
frSSfsheriff three months preceding the transfer being so presentea a copy of the writ of
produced fi fa in pursuance of which such transfer purports to have been made shall
^OTregwtra- j^^^^ ^^^ ^^^ servod upou the Eegistrar for entry by him in the Begister

Book in accordance with section one hundred and six of the Act.
Notices of 30. Upon any application being made to bring land under the Act the

•ppUofttion Commissioner shall direct the notice thereof mentioned in section nineteen
of the Act to be served on all persons appearing on the Itegister to hare
a then subsisting estate or interest in the land, by the Eegistrar sending
through the post-office a registered letter marked outside '' Office of Tities "
containing a copy of such notice addressed to such person at the address (if
any) appearing upon the Begister.

See. 3 Application has been made to bring the land hereunder described

under the " Transfer of Land Statute " on a titie claimed by possESSiof
(insert if applicable " as to part "). The number of the application is
' Date of lodging in Office or Titles Name address and occupation

of applicant Land applied for [here insert description the

same as in advertisement^ Dated this day of 188 .

[Signature of applicant or his agent.]


8eo. 18 This map correctly embodies the scheme of subdivision of the land

therein comprised, prepared, approved, and adopted by the Commissioner of

Titles under the provisions of Act No. . v erified this day of

188 [Signature] Commissioner of Titles [Signature]

Chief Draftsman in the Office of Titles (or Acting Chief Draftsman,

as thelcase may he) .

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Alphabetical Index to Cases.


Alltworth and Wiie t. Perry ... 182

Anderson t. Maori HUl Borough 108, 124

Aahley t. Cook ... ... 137, 160

Aubrey t. Scott ... ... 79

Bank New South Wales t. Palmer ... 108

Barker T.Weld ... ... 81

Barnes, r0 ... ... ... 60

Bailey t. Ohrisp ... ... 54

Baynes, taparU ... ... 82a

Beath t. Anderson ... ... 192

Beattie, re ... ... ... 68

Benn, re ... ... ... 20

Birby T. Prendergast ... ... 220

Bicknall t. Heymanson ... ... 188

Biggs T. Waterhouse ... ... 6S

Bigg«»**« Wm. ... ... ... 69

Bond^ea parte ... ... ... 89-90

Bonnin and Another y. Andrews ... 86

Bosquet, Alfred, r0 ... ... 202

Bowman, 007 ^or^ ... ... 2,190

Brady t. Brady ... ... 75

Brodziak,re ... ... ... 206

Browxif ex parte ... ... 186

Buokett T. Knobbe ... 167, 168

Buoknall t. Beid ... ... 145

Bume y. Stewart ... ... 28

Bumell, em parte ... ... 44a.

Butler y. Saddle Hill Mining Oo. ... 168

CalTert y. Pate ... ... 218a

Oampbell t. Jarrett ... ... 96, 142

Carroil,r« ... ... ... 61

Ohisholm y. Capper ... ... 86

Chomley y. Firebraoe ... ... 21

Christie y. Powles ... ... 129

Clarke and Harrey, re ... ... 69a

Clissold, ea parte ... ... 45

Coker y. Spenoe ... ... 6

Colechin y. Wade ... ... 203

Coleman and Clark t. Biria Puwhanga 46

Coleman, re ... ... ... 162

Colonial Bank y. Babbage ... ... 126

Colonial Bank y. Roaohe ... ... 187

Colonial Bank y. Pie ... ... 107

Craig, re ... ... ... 76

Cnllen y. Thompson ... ... 74,157

Cuthbertson y. Swann ... ... 144

D'Albrdyhill y. D'AlbrdyhiU ... 82

Davidson T. Brown ... ... 188

Dayies y. Herbert ... ... 68

Dayies y. Inman, ex parte ... 208, 219

Dayies, re ... ... ... 69d

Delaney y. Sandhurst Building Society... 179

Do Lisaa y. Coleman ... ... 207


Doust, re


Droop y. Colonial Bank


Dyke y. EUiott ...



Eagles y. Blain ...


Saton, John, re


Sllison, ex parte


Equitable Building Society y. Boss


Bttershank y. The Queen ...



Feamley, re


Featherstone y. Hanlon


Ferguson, r»


Field, Wm., re ...


Findlay, ex parte


Pinlay, ex parte


Finnoran y. Weir


Fisher V. (Hffney


Fisher v. Stewart


Fitzgerald y. Archer


Folk, ex parte ...


Fotberingham y. Archer ...


Formb^ y. Adelaide Corporation


Franklm v. Ind.


Friebe y. Cullen


Gkkllash and Another y. Sohuta ... 22

George y. Australian Mutual Proyident 56

Giles y. Lesser ... ... ... 160

Gtreig v. Watson ... ... 91, 176

Grice, re ... ... . ... 200

Ghiffiny. Dunn ... ... 8


Hally. Loder ... ... ... 158

HaUy. Hall ... ... ... 98

Hamilton, M? ^orto ... ... 42

Harty. Pegus ... ... ... 84

Hart V. Stratton ... ... 119

Harvey y. Inglis ... ... 28a

HasseU, ex parte ... ... 177

Hassett y. Colonial Bank ... 1 88, 178

H&y ton ex parte Dihhe ... ... 67

HUl V. Cox ... ... 221

Hodgson y. Hunter ... ... 112

House y. G'Farrell ... ... 61

Hunter y. Player ... ... 24

Jellicoe y. Wellington Loan Co. ... 60

Jones y. Jones ... ... ... 184

Jones, David, re ... ... 68

Jones, re ... ... ... 116

Jones V. Hill ... ... ... 161

Jones V. Park ... ... ... 81,87

Jones y. Sellick ... ... 78

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nn>ix TO OAan.




Eeamey T. Bryan


Peek, em parte ...

690, 69t


Pennington, ex parte


KeUyv. Fuller...


PhiUips y. MoLachlan ...

... 216

Kennedy, Mire...


Pond, J. A., re...




Power, re

69b, 198

Kiokham t. The Qaeen

... 47, 169

Preston's Cayeat


King T.Stewart
Kirkham y. Carpenter


Pykett, re


TTirkliftin v. Julien
Kisaling T. MitohelBon

... 109

Battray, re
Begina y. Price

... 7«A



Begina y. Tideman



Bigby, ea?9arto...


Lange T. Badwolt
Ijocie, ew parte

... 29, 148

B^rtson y. Keith

... 196


Boss y. McNeill


LouchT. Ball ...


Boss y. Victorian Permanent Buildmg So. 180

Le Oompce, Dayid



B^msa^ ex parte


... 18,14

ITCarthey, re ...


St. CK»rge y. Burnett

... 176

H'Oartney t. KeBterM>n . . .
M'DonaldT. Bowe


Saddington y. Hackett


... 166a


ITGeary t. Brodriak


Saunders y. Cabot


H'Glone y. Begistrar of Titlei


Schroeder y. Haroourt


H'Intoth, ea parte


Seldon. re


McManaway t. Cleland


Schmid, re


Maddieon t. McCarthy ...


ShackeU y. Lindsay


Biahoney, em parte


Sharpe y. Hadley


Mangakahia t. New Zealand Timber Go. 100

Skerrett, re

... 177a

Mann t. Bobertaon


Sbwk, J. B., re ...


... 127

Slack y. Downton


Martin t. Lyons


Small y. Glenn ...


Matthews t. James


Smart, ex parte


Meredith's Cayeat



Metropolitan Building Society
Miller, re


Steyens y . Williams
Stewart v. Bolton


Miller y. Morrissey

181, 214

Stockdale y. Hamilton


Miller y. Stewart


Strong, re


Morrissey y. Clements

... 116

Summer, ex parte Aylwin ...


Morrison, re




... 49,120

Terry, re

Thompson y. Chipps
Tranter y. Lord ...


Mudgway y. Dayy and Buick
Munro y. Sutherland




Murphy y. Michel



Umpherstone y. Wadham ...

Mutual Benefit Building Socie^
Mutual Trust and Inyestment Society

... 117

... 149


Nathan, re ... ... ... 131

National Bank y. National Mortgage and

Agency Co. ... ... 12

Nealy. Adams... ... ... 130


Tan Damme y. Blozham ...
Victoria, Bank of, y. Bawlings
Vincent, ex parte

... 105


... 210

NeiU y. Lindsay



Nelson, Bros. ...


Wadham y. Buttle

... 165


Wallis, re


Oakden y. Qibbs


Warner y. Dove


O'Brien, re



0»Connell, re ...


WiHash y. Hutchison


O'Qumn, re


... 188

Otago Harbour Board y. Spedding


Wilkinson y. Brown



Williamson, Chas., re


Pabner, H. C, re


Williamson, in re

... 200

Pahner y . Andrews

146, 147

Willis, ex parte


Pannan y. Pftnnan

... 16,18

Wilson and King y. Brigfatling

Online LibraryAustraliaThe land transfer laws of Australasia: being the full text with side notes ... → online text (page 68 of 83)