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

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' °*" the land thereby granted on such scale as the Governor with the advice

aforesaid may from time to time direct and shall be delivered to the

Eegistrar- General who shall register the same in manner hereinafter

directed. {Saunders v. Wadham, 88.)



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NEW SOUTH WALES BEAL PEOPEETT ACT— No. 1. 5

13. Land alienated from the Crown in fee prior to the day on which Uadg
thifl Act shall come into operation (whether such land shall constitute ^i^ thj,
the whole or only part of the land included in any grant) may be brought Act may be
under the proyisions of this Act in the following manner that is to say The uSSS^its
Registrar- General shall receive applications in form A of the Schedule operation
hereto if made by anj of the following persons : — (a) By any person claim- (a) See 4i
ing to be the person m whom the fee simple is vested in possession either at ^*®-» ^^* ^®
law or in equity (b) Provided that wherever trustees seised in fee simple have (h) See mc.
no express power to sell the land which they may seek to bring under the Soaa^*''*
operation of this Act the person claiming to be beneficially entitled for the

first life estate or other greater estate than a life estate in the said land shall
join in such application By any person claiming a lifeestate in possession or
a leasehold for life or lives or having a term of not less than twenty-five years
then current Provided that except in the case of an application by a lessee
as regards the concurrence of his lessor all persons claimmg to be beneficially
entitled in rerersion or remainder shall join in such application Provided undivided
always that no such application shall be received from any person claiming '^^ "^
to be entitled to an undivided share of any land unless the person who shall SISd?SJ?
appear to be entitled to the other undivided share of the said land shall join Jjj \^
in rach application with a view to bringing the entirety under the provisions Sdef Act
of this Act nor from the mortgagor of any land unless the mortgagee shall "SSiticme**"
join in such application nor from the mortgagee of any land except in the
exercise of a power of sale contained in the mortgage deed nor for any land
Bubjectto the lien of any judgment or execution creditor unless such
creditor shall consent to such application nor from a married woman unless
her husband shall join in such application (c) Provided also that the father (e) See4i
or if the father be dead the mother or other guardian of any infant or the J^;*^^* ^®'
committee or guardian of any lunatic or person of unsound mind maj make
Buch application in the name of such infant lunatic or person of unsound
mind. {J£x parte Bowan, 13. Z. 10, 18, 137 ; S. 7, 25, 28 ; V. 66-16, 86-28,
21 ; T. 62-13.)

14. Every such applicant shall when making his application deposit AppUctnt to
with the Eegistrar-General all instruments in his possession or under JSJ^^onts
his control constituting or in any way affecting his title and in ff ^"J**
the case of a leasehold a duplicate or certified copy of the lease and of any •bstnc? if
other instrument under which the applicant claims title and shall furnish »q^»»w<i

a schedule of such instruments and also if required an abstract of his title
and shall in his application state the nature of his estate or interest and of
every estate or interest held therein by any other person whether
at law or in equity in possession or m futurity or expectancy and
whether the land be occupied or unoccupied and if occupied the name and
description of the occupant and the nature of his occupancy and whether
such occupancy be adverse or otherwise and shall state the names and
addresses of the occupants and proprietors of aU lands contiguous to the
land in respect to which application is made so far as known to him and
that the schedule so f umisheil includes all instruments of title to such land
in his possession or under his control and shall make and subscribe a
declaration to the truth of such statement and such applicant may if he
think fit in his application require the Eegistrar-Oeneral at the expense of
such applicant to cause personal notice of his application to be served upon
any person whose name and address shaU tor that purpose be therein
stated. {Sharpe v. Hadley^ 3 ; ex pa/rte Hafnilton, 42 ; Davidson y. Brouniy
188. Z. 19, 27 ; Q. 61, 17, 24, 29 ; S. 29, 31, 41 ; T, 16, 19, 26, 26, 62 ; V.
85-64,66-65,26; Q. 77-9.)



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6 NEW SOTJTH WALES EEAL PROPEETT ACT— No. 1.

^ppi^^on 15. Upon the receipt of such application the Registrar- General shall

doSt with cause the title of the applicant to be examined and reported upon by the
examiners and shall thereafter refer the case to the Lands Titles Gom-
mm appii- missioners for their consideration and if it shall appear to such Commis-
**"^Se d ^^°^®'^ *^* *^® applicant proprietor is the original grantee from the Crown
no^imns" of the land in respect to whicn application is made and that no sale mortgage
restored ^^ other incumbrance or transaction affecting the title of such land has at
any time been registered in the Colony and that such applicant has not
required notice of his application to be served personally upon any person
then in such case it shall be lawful for the Commissioners to direct the
Registrar- General to bring such land under the provisions of this Act forth-
with by issuing to the applicant proprietor or to such person as he or the
person applying in his behalf may by writing under his hand direct a
certificate of title for the same as hereinafter described. {Ex parte Bowan^
14i ; re J, B, Slack, 86 ; re Nelson Brothers, 36 ; Warner v. JJove, 37 ; re
David Le Compte, 39 ; re Dr O. Quinn, 40 ; re Knapman, 41 ; ex parte
Hamilton, 42 ; ex parte Locke, 43 / Fisher v Stewart, 44 ; ex parte Clissold,
45. Z. 17, 18 ; V. 66-18 ; Q. 61-18 ; T. 63-5.)

When appii. IQ, If it shall appear to the satisfaction of the Commissioners that the

originaT^ land in respect to which application has been made is held by the applicant

Sy^twttis' ^^^ *^® estate or interest described in such application free from mortgage

actionB ' eucumbrauce or other beneficial interest affecting the title thereto or if any

regiatered ^^^^ mortgage eucumbrance or interest remain unsatisfied that the parties

interested therein are also parties to such application and that the applicant

has not required notice of his application to be served personally on any

person then and in any such case the Commissioners shall direct the

jEtegistrar' General to cause notice of such application to be advertised once

in the Gazette and three times in at least one daily newspaper published in

Sydney and shall further limit and appoint a time not less than one month

nor more than twelve months from the date of the advertisement in the

Gazette upon or after the expiration of which the Registrar-General shall

unless he shall in the interval have received a caveat f oAiddiug him so to do

proceed to bring such land under the provisions of this Act. {Featherstone

V. Hanlon, 4 / McOlone v. Begistrar of Titles, 141. S. 32.)

When ©vi- YJ. If it shall appear to the satisfaction of the Commissioners that any

ia^^perfect* parties interested in any unsatisfied mortgage or encumbrance affecting the
title to such land or beneficially interested therein are not parties to such
application or that the evidence of title set forth by the applicant is imperfect
or that the applicant has required notice of his application to be served
personally upon any person then and in such case it shall be lawful for the
Commissioners to reject such application altogether or at their discretion to
direct the Registrar- General to cause notice of such application to be served
in accordance with such requirement upon all persons who shall appear to
them to have any interest in the land which is tne subject of such application
and to be advertised three times in at least one daily newspaper published
in Sydney and in such newspapers published elsewhere as to such Com-
missioners may seem fit and to be published in the Government Gazette and
in the London Gazette and in the oflficial Gazettes of each of the Colonies of
Victoria South Australia Queensland Tasmania and New Zealand or in any
one or more of such Gazettes and the Commissioners shall specify the
number of times and at what intervals such advertisements shall be published
in each or any of such Gazettes and shall also limit and appoint a time not



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NEW SOUTH WALES EEAL PHOPEBTT ACT— No. 1. 7

less than two months nor more than two years from the date of the first of
such advertisements in the Gazette upon or after the expiration of which it
shall be lawful for the Eegistrar-G-eneral to bring such land under the
provisions of this Act unless he shall in the interval have received a caveat
torbidding him to do so. (T. 62-18).

18. The Eegistrar- General shall under such direction as aforesaid or Notice of
under any order of the Supreme Court cause notice to be published in such JJ^JJ^^b!?'
manner as by such direction or order may be prescribed that application has Ushed
been made for bringing the land therein referred to under the provisions of

this Act and shall also cause copv of such notice to be posted in a conspicuous
place in his o£&ce and in such other places as he may deem necessary and
shall forward by registered letter marked outside " Land Titles Of&ce "
through the post of&ce copy of such notice addressed to the persons (if any)
whom the Commissioners shall have directed to be served with such notice
and to the persons (if any) stated in the declaration by the applicant
proprietor to be in occupation of such land or to be occupiers or proprietors
of land contiguous thereto so far as his knowledge of the addresses of such
persons may enable him and in case such applicant shall have required any
such notice to be personally served upon any person named in his application
then and in such case the Kegistrar- General shall cause copy of sucn notice
to be so served upon such person. (Featkentone v. Hanlon, 4 ; Saunders v.
Cabot, 16 ; Chomtey v. Firebrace, 21 ; Coleman and Clark v. Biria, 46 ; Van
Damme v. Bloxam, 105 ; Kirkham v. J alien, 109 ; Franklin v. Ind, 156 ;
Skaekell v. Lindsay, 174 ; Boas v. Victorian Building Society, 180. Z. 24,
Q. 61, 21, 22 ; S. 35 ; T. 62-19, 81 ; V. 85, 12, 18.)

19. If within the time limited in such direction or under any order of Lwd
the Supreme Court any notice forwarded by registered letter as aforesaid SnSef Act
shall not be returned to him by the Postmaster- General and if within the

time so limited he shaU not have received a caveat as hereinafter described
forbidding him so to do and in any case in which personal notice may be
required as aforesaid if he shall have received proof to his satisfaction that
such notice has been served the Eegistrar- General shall pursuant to such
direction of the Commissioners bring the land described in such application
under the provisions of this Act by issuing to the applicant proprietor or to
such person as he or the person applying in his behalf may by any writing
under his hand direct a certificate of title for the same as hereinafter
described. (Z. 17 ; Q. 61-22 ; 8. 26-27 ; T. 62-20 ; V. 66-34.)

20- The Eegistrar- General whenever any letter containing any notice On a return
shall be returned to him by the Postmaster-General shall refer the case to ^S^^ ^'
the Commissioners for their further direction and whenever he shall be made pors^iJ.Mr-
aware that any notice required by any applicant to be served personally has SS-GeSend
failed to be or cannot be so served he shall notify the same to such applicant co^J-*°
who if he think fit may by writing under his hand withdraw such require- sionere *
ment and the Eegistrar-General shall thereupon report the case to the
Commissioners who in either such case may reject the application altogether
or direct the Kegistrar- General to bring the land therein described under
the provisions of this Act forthwith or after such further interval notification
or advertisement as they may deem fit. {Biggs and another v. Waterhouse,
58 ; ex parte Bond, 90 ; re John Eaton, 194. S. 20, 23-38.)

21. Any person having or claiming any interest in any land so adver- Parties fa-
tised as aforesaid or the attorney of any such person may within the time by mteroiTeaf
any direction of the Commissioners for that purpose limited lodge a caveat



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8 NEW SOUTH WALES REAL PEOPEETT ACT— No. 1.

with tlie Begistrar-G^neral in form B of the Schedule hereto forbidding the
bringing of such land mider the proyisions of this Act and every such caveat
shall particularize the estate interest lien or charge claimed by the person
lodging the same and the person lodging such caveat shall if required deliver

I«) s«j " a full and complete abstract of his title (a) {See Sec, 24, post, 1878.

S,!-i • Q. 61, 23, 61-23 ; S. 89 ; T. 62, 22 ; Z. 118.)

If caveat be 23. The Registrar- General upon receipt of any such caveat within the

^l^^time time limited as aforesaid shall notify the same to such applicant proprietor

lim^ pro. and shall suspend further action in the matter and the lands in respect of

BUyed*" which such caveat may have been lodged shall not be brought under the

provisions of this Act until such caveat shall have been with£awn or shall

have lapsed from any of the causes hereinafter provided or until a decision

shall have been obtained from the Court having jurisdiction in the matter.

(S. 40 ; T. 62-23 ; V. 85-31.)

Caveato 23. After the expiration of three months from the receipt thereof every

pr^cdi^ such cavcat shaU be deemed to have lapsed unless the person by whom or on
tlSwi^SS ^^^s® behalf the same was lodged shall within that time have taken pro-
ceedings (b) in any Court of competent jurisdiction to establish his title to
iJlasyseo. *^® estate interest lien or charge therein specified and shall have given
* * * ' written notice thereof to the fiegistrar-General or shall have obtained
from the Supreme Court an order or injunction restraining the Registrar-
General from bringing the land therein referred to under the provisions of
{e) See 41 this Act. (c) (Summers ea parte Aylwin^ 62. See Sec. 4 L. T, Ac, 1878.
^o..No.i8, 2. 146, 146; Q. 61, 21, 77-39 ; S. 45 ; T. 62-83, 24; V. 66-24, 117.)

AppUcant 24. Any applicant proprietor may withdraw his application at any

ma'^withf ^°^® prior to the issuing of the certificate of title and the Begistrar-
£tm Us ' General shall in such case upon request in writing signed by such applicant
appUoation proprietor return to him or to the person (if any) notified in such applica-
tion as having a lien upon such instruments the abstract and all instruments
of title deposited by such proprietor for the purpose of supporting his
application. (See note to Sec. 4, ante. Z. 27 ; Q. 61-29, 77-9 ; T. 62-19.)

inrtramenfB 25. Upou issuiug a certificate of title bringing land under the provisions

to be deal? of this Act the Bogistrar- General shall stamp as cancelled every instrument
with of title deposited by the proprietor when making his application and in the

case of a leasehold shall endorse upon the lease so deposited a memorandum
stating that such lease has been brought under the provisions of this Act
and shall certify such memorandum under his hand and seal and shall return
such lease to the applicant annexing thereto fhe certificate of title as
aforesaid and shall file in his office the duplicate or certificate copy of such
lease hereinbefore directed to be furnished by such applicant. Provided that
if any such instrument shall relate to or include any property whether
personal or real other than the land included in such cert'ficate of title then
the Eegistrar- General shall indorse thereon a memorandum cancelling the
same in so far only as relates to the land included in such certificate of title
and shall return such instrument to such proprietor otherwise he shall
retain t^e same in hu office and no person shall be entitled to the produc-
tion of such instrument so stamped except upon the written order of the
applicant proprietor or of some person claiming through or under him or
upon the order of a Judge of the Supreme Court. (He^. v. Price, 162 ;
re Jno, Eaton, 194.)



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NEW SOUTH WALES EEAL PBOPEBTT ACT^No. 1. 9

26. In case an applicant proprietor or the person to whom an How oertm.
applicant proprietor may baye directea certificate of title to be issued shall ^ kme^
die in the interral between the date of his application and the date appointed om« ot pre-
for the certificate of title to issue in accordance with the nroyisions nerein- ^^p^l^t
before contained the certificate of title shall be issued in tlie name of such
applicant proprietor or in the name of the person to whom he may haye
directed it to be issued as the case may require and such land shall deyolye
in like manner as if the certificate of title had been issued prior to the death
of such applicant proprietor or person so named by him (a). (Z. 12 ; V. ^) ^^-
66-28.) Si's'

27* Upon the first brin^g of land under the prorisions of this Act PercanUge
whether by the alienation thereof in fee from the Crown or consequent ^ ^\S^^
upon the application of the proprietor as hereinbefore proyided and idso '^'*^;.i^
upon the registration of the title to au estate of freehold in possession in *^^
land under the prorisions of this Act deriyed through the will or intestacy
of a preyious proprietor or under any settlement there shall be paid to the
Begistrar-Gleneral the sum specified in the Schedule hereto marked F and
in the case of land brought under the proyisions of this Act by alienation
in fee from the Crown the price paid for such land shall be deemed and
taken to be the yalue thereof for the purpose of leyying such sum and in all
other cases as aforesaid such yalue shall be ascertained by the oath or
solemn affirmation of the applicant proprietor or ^rson deriring such land
by transmission Proyided always tnat if the Registrar- General shall not be
satisfied as to the correctness of the yalue so declared or sworn to it shall
be lawful for him to require such applicant proprietor or person deriring
such land to produce a certificate of such yalue under the hand of a sworn
Taluator which certificate shall be receiyed as conclusiye evidence of such
Talae for the purpose afosesaid. (Movie y. Qibbs, 49. Q. 61-41 ; T. 62-28 ;
y. 66-30, 14.)

28. All sums of money so receiyed shall be paid to the Colonial Mmm
Treasurer who shall from time to time invest such sums together with all fom wsar.
interests and profits which may haye accrued thereon in New South Wales ance fond
Goyemment securities to constitute an assurance fund for the purposes
hereinafter provided. (N. Z. 177.)

29. The bringing of land under the provisions of this Act shall not be Reyenkm
held to extinguish tne reversion expectant on any lease and the person fj^^^to
named in any certificate of title as entitled to the land therein described ^.^1^'
shall be held in eyery Court of law and equity to be seized of the reversion ^" ^
expectant upon any lease that may be noted by memorial thereon and to

have all powers nghts and remedies to which a reyersioner is by law
entitled and shall be subject to all covenants and conditions therein
expressed to be performed on the part of the lessor. (Be McCarthy. 19.
Q. 61-89.)

PABT III.

BseisTXB Book — Mode of BEGisiEBiNa Ann Effect of Begistbatiok.

30. The Begistrar-General shall keep a book to be called the BeRiBti«r.
"Begister Book " and shall bind up therein the duplicates of all grants and ^^rJ^
^ aU certificates of title and each grant and certificate of title shall ter Book
constitute a separate folium of such book and the Begistrar-Gheneral shall

record thereon the particuhirs of all instruments deaUi^^s and other matters



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10 NEW SOUTH WALES EEAL PEOPBETT ACT— No. 1.

by this Act required to be redstered or entered on the Eegiiter Book
affecting the land included under each such grant or certificate of title
distinct and apart. (Sharpe v. ffadlei/, 3 ; Fcmnan v. Pannan, 18 ; Chomlry
V. Firebraeey 21 ; House v. O'Farrell, 51 ; Ee Hayton^ ex-parte Dibit, 67 ;
WaUon V. WaUofiy 93 ; Rail v. Hall, 98 ; Fitzgerald v. Archer, 101.
Wadham v. Buttle, 165 ; re John Eaton, 194 ; Bohertson v. Keith, 196 ;
Fomiby v. Adelaide Corporation, 199; Miller v. Morrissey, 214; Murphy
Y. Mitchell, 215. Z. 39 ; S. 47 ; V. 66-34.)

ouBtot^^ 31. Every certificate of title shall be in duplicate in the form G of the
dt^<»to Schedule hereto and shall set forth the nature of the estate of freehold in
^inls^gif. respect to which it is issued and the Ee^trar- General shall note thereon
.*«' in such manner as to preserve their prionty the particulars of all unsatisfied

mortgages or other encumbrances and of any dower lease or rent charge to which
M^SSSmi^r *^® ^*°^ ™*y ^^ subject and if such certificate of title be issued to a minor
S^iiity or to a person otherwise under disabilities he shall state the age of such
bUi^y^tobe ^^^^^ ^^ ^^ nature of the disability so far as known to him and shall cause
•t»ted one original of each certificate of title to be bound up in the Eegister Book

and deliver the other to the proprietor entitled to the land described therein.

{Jonet V. Jones, 134. Q. 61-33 ; S. 48 ; T. 62-32 ; V. 66-34.)

SmwmS-*^ 32, Before bringing under the provisions of this Act an estate in fee-

tifloftte of' simple or in fee-tail in any land in respect to which a certificate of title has

i^2^^^^ been issued for any leasehold estate or interest the Eegistrar-General

shall close the folium of the Eegister Book constituted by the certificate of

title of such leasehold and shall carry forward upon the certificate of title

issued in respect to such estate in fee memorials of such leasehold estate or

interest and of ail mortgages or other interests affecting the same then

registered and still current and the memorials of all future dealings with

such leasehold estate or interest hereinafter directed to be registered shall

be entered upon the folium of the Eegister Book constituted by the

certificate of title representing the fee. (Z. 32 ; Q. 61-34 ; V. 66-41.)

certiflo»te 33. Every certificate of title duly authenticated under the hand and

dree^deiioe soal of the Eogistrar- General shall be received in all Courts of law and

^^*the^d ®<l^^*y *8 evidence of the particulars therein set forth and of their being

has been entered in the Eegister Book and shall be conclusive evidence that the

bronght persou named in such certificate of title or in any entry thereon as seized of

uttder the or as taking estate or interest in the land therein described is seized or

possessed of or entitled to such land for the estate or interest therein

specified and that the property comprised in such certificate of title has been

duly brought under the provisions of this Act and no certificate of title

shall be impeached or defeasible on the ground of want of notice or of

insufficient notice of the application to bring the land therein described

under the provisions of this Act or on account of any error omission or

informality in such application or in the proceedings pursuant thereto by

the Commissioners or by the Eegistrar-General. {Ex-parte Eotoan, 14-20 ;

Ghomley v. Firehrace, 21 ; Ohisholm v. Capper, 86 ; Jones v. FarJc, 87 ;

Wilkinson v. Brown, 121 ; Equitable Building Company v. Boss, 143 ;

Wilkinson v. Broton, 215a ; Small and another v. Qlen, 20. Z. 36, 65 ; S. 52,

80 ; T. 62-33 ; V. 66-47, 78-2 ; Q. 61, 7, 122.)

SrtlflJ tea ^* -^^^^ ^^^^ grant and certificate of title shall be deemed and taken

of title regis, to be registered under the provisions and for the purposes of this Act so
embodied\i ®^^^ *® *^® Same shall havo been marked by the Eegistrar-General with the
Register f olium and volume as embodied in the Eegister Book and every memorandoo^

Book '



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NEW SOTITH WALES EEAL PEOPEETT ACT— No. 1. 11

of transfer or other instrament purporting to transfer or in anj way to instraments
affect land nnder the proyisions of this Act shall be deemed to be so Ji^^^'^
registered so soon as a menaorial thereof as hereinafter described shall hare "^*JjJf
been entered in the Eegister Book upon the folium constituted by the Sgitter**
existing grant or certificate of title of such land and the person named in any ^^^^



Online LibraryAustraliaThe land transfer laws of Australasia: being the full text with side notes ... → online text (page 9 of 83)