Breskvar v Wall PDF

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Breskvar v Wall (1971) 126 CLR 376 Fact: B were the RP of land. As security for loan provided by Petrie, they handed the duplicate cert of title to Petrie and the also executed a transfer of the land. The name of the transferee was left out. According to the act, a transfer executed in such a way was a void document. The intention of the parties was that the transfer should only be completed and registered if the B defaulted in repayment. Despite there having been no such default, the name of Petrie's grandson, Wall was inserted into the transfer and Wall became the RP. Wall was a party to the fraud aimed at depriving B of their land. Before B had discovered the fraud, Wall had contracted to sell the land to Alban Pty Ltd and had executed a transfer. Held:  The invalidity in the process of transfer did not have the effect of preventing the passing of title upon registration. The fact that Wall was fraudulent rendered his title indefeasible, but he was still the registered proprietor and could hence create valid interests in third parties.  However, since title was passed to Alban, the dispute is between Alban v Breskvar o B had a right to sue and recover the land; A had an equitable interest under the contract for sale o A's interest prevailed Gibbs v Messer [1891] AC 248 Fact: M left a duplicate cert of title with her solicitor, Cresswell. C forged M's name to a transfer of the land in favour of Cameron, a non-existent person and Cameron became the registered proprietor. C then prepared a mortgage from Cameron to McIntyres, other client of his, as security for a loan of money from McIntyres to Cameron. The mortgage in favour of Cameron was registered and C absconded with the money. M discovered what had happened and she brought an action to cancel the cert of title and to have issued to her a new cert of title in her name subject to no encumbrance Held: Name of Mrs Messer was restored to the register. Mortgage of McIntyres was held not to constitute an encumbrance on her title.  Had the transfer executed by C to Cameron be to himself, McIntyres's title would be indefeasible as he was a bona fide purchaser  A person registering a void document cannot obtain indefeasible title Assets Co v Mere Roihi [1905] AC 176, 210 Frazer v Walker [1967] 1 AC 569 Fact: F were the registered proprietor of the land in question. Mrs F forged her husband's signature to a mortgage of the property in favour of Edward and Nellie Radomski. As Mrs F failed to make the mortgage repayments, the Radomskis, the registered mortgagees, exercised their power of sale and sold to Walker and became the registered proprietor. When W attempted to obtain possession of the land, Mr F claimed that the mortgage to R was null because of forgery and asked for the entries on the Register of the mortgage to the R and the interest of W to be cancelled. Held: W was one transaction removed from the invalid document and thus as a bona fide purchaser, would have defeated the F on deferred indefeasibility. But, court clarified that title held by R was indefeasibility from the time of registration. R had not committed fraud, relied on Roihi and distinguished Gibbs (on the basis that it involved a fictitious person). Bursill Enterprises Pty Ltd v. Berger Bros Trading Co Pty Ltd (1971) 124 CLR 73 Fact: registered proprietor of land granted to a neighbouring registered proprietor an extension of an existing right of way over his land and what was, in effect, a transfer of part of his land comprising a horizontal stratum of airspace ("together with all buildings on the road and the right to pull down the buildings and rebuild others at a height of not less than

12' from the ground over the road"). The cert of title relating to the grantor and Bursil being the successor of the grantee. Whether the title of Bursil was subjected to Berger's claimed right to a fee simple interest in the horizontal stratum of airspace. Held: A person who becomes the registered proprietor takes subject to any interest noted on the register. Since the transfer had been noted on the register, even if it is in the wrong name, the registered proprietor is bound to it be some further searching he or she could have discovered the exact nature of the interest Wicks v Bennett Held: fraud under the Torrens system is "something more than mere disregard of rights of which the person sought to be affected had notice. It imports something in the nature of 'personal dishonesty' or 'moral turpitude'" Assets Co v Mere Roihi [1905] AC 176, 210 Held: "[Fraud means] actual fraud, that is dishonesty of some sort, not what is called constructive or equitable fraud" (at 210) Held: "Fraud by persons from whom he claims does not affect him unless knowledge of it is brought home to him or his agents. … But if it be shown that his suspicions were aroused, and that he abstained from making inquiries for fear of learning the truth, the case is very different, and fraud may be properly ascribed to him." Bahr v Nicolay Held: "not … all species of equitable fraud stand outside the statutory concept of fraud" Loke Yew v Port Sweetenham Rubber Co. [1913] AC 491 Fact: A rubber company purchased a large area of land from the registered proprietor, Eusope. Although not registered as such, LY was the owner of part of this land and E only agreed to sell the whole of the land to the company when he was given assurance by the company that it would not disturb LY's possession Held: the rubber company had been fraudulent and the rubber company was ordered to transfer of the land in dispute. The rubber company had more than mere knowledge of LY's prior unregistered interest (statement made by representative of company that rights of LY will be protected- made falsely and fraudulently made to induce E to sign the transfer). There was a deliberate plan to deprive LY of his land. RM Hosking Properties Pty Ltd v Barnes [1971] SASR 100 Fact: D held possession under a two-year lease with an option to renew for a further two years. During the term of the lease, the lessor sold the property to the P, who knew the terms of the lease and agree to accept title sbj to the occupation of D. When D sought to exercise the option to renew, the plaintiff gave notice to quit stating it was not bound by the terms of the unregistered lease. Held: Since there was no proven plan of dishonesty/ fraud, no evidence that the lessor had been induced to sign the transfer by the P's statement. (knowledge of prior unregistered interest is not sufficient to constitute fraud) Waimiha Sawmilling Co Ltd (in liq) v Waione Timber Co Ltd [1923] NZLR 1137 Held: the true test of fraud was not whether the person knew for a certainty of the existence of an adverse claim, but whether he actually knew enough to make it his duty as an honest man to hold his land. If, knowing as much as this, he proceeds without further enquiry… he is guilty of that wilful blindness or voluntary ignorance which according to the authorities, is equivalent to actual knowledge and therefore amounts to fraud."

Grgic v ANZ (1994) 33 NSWLR 202 Fact: a bank officer witnessed the signature of the registered proprietor attesting that the mortgage document has been signed in his presence and that he knew the registered proprietor/mortgager personally. In fact, the signature was forged by an imposter Held: the conduct of the bank officer did not constitute fraud- there was no fraudulent intent, moral turpitude or even "reckless indifference" Australian Guarantee Corporation v De Jager [1984] VR 483 Held: Where employees of the mortgagee knew that the attesting witness had not =, in fact, been present when one of the mortgagors executed the mortgage, the presentation of the document to the Registrar constituted a deliberate misrep to the Registrar that the document had been properly executed and was thereby fraud within the meaning of s42 of the Transfer of Land Act 1958 (Vic). *Russo v Bendigo Bank and Reichman [1999] 3 VR 376 Fact: A young, inexperienced clerk of the solicitor for the mortgagee witnessed the signature of a person not present (improper execution of the mortgage). Held: No fraud for the purpose of s 42 of the Transfer of Land Act as the clerk was found to be unaware of the significance of a proper execution. There was no intention to deprive another person of an interest in land or to mislead the Registrar. *cf: decision was criticised as the clerk has three years handling conveyancing matters Davis v Williams (2003) 11 BPR 21, 313; [2003] NSWCA 371 Fact: A registration clerk gratuitously changed the executed transfer in order to save a small amount of government tax Held: There was no fraud as there was no evidence that she understood the alteration to be a material one which would induce the Registrar to act in a way materially different to the way he would otherwise have done. *Bank of South Australia v Ferguson (1998) 192 CLR 248 Fact: the mortgagor's signature was forged by an employee of the mortgagee on an internal document the mortgagee used in considering whether to approve the loan. Held: there was no fraud. The document sis not have the effect of harming or cheating the mortgagor. For the fraud to be operative, "it must operate on the mind of the person said to have been defrauded and to have induced detrimental action by that person". *Bahr v Nicolay (No 2) (1988) 164 CLR 604 ; 62 ALJR 268; 78 ALR 1 Fact: B was the registered proprietor of the land and they agreed to sell the land to N, The contract of sale included an agreement by N to lease the property back to B for three years and upon expiration of the lease to enter into a contract to resell the land to the B. N became the registered proprietor and then sold the property to Thompsons. T knew of the agreement between N and B, and at N's insistence, the contract for sale from N to T contained an expressed acknowledgement of it. After T became registered, their actions made it clear that they recognised the rights of B by writing to B regarding the sale of land back to them but the offers eventually lapsed. T sought to rely on their registered title to defeat the rights of B. (Dishonest conduct occurred after registration) Held: T is subjected to the rights of B and in personam exception applies. Mason CJ & Dawson J:  The fraud exception includes the fraudulent repudiation of a prior interest which the registered proprietor has acknowledged or recognised as a basis for obtaining title. There is no difference between the false undertaking which induces the execution of a transfer in Loke Yew

and an undertaking honestly given which induces the execution of the transfer and is subsequently repudiated for the purpose of defeating the prior interest.  The evidence showed a "matrix of circumstances" and was sufficient to establish that there was and intention to create an express trust. Wilson & Toohey JJ: fraud only consist of dishonest conduct in the period leading up to registration  Fraud can occur after registration by the dishonest repudiation of a prior interest which the registered proprietor has agreed to recognised as a basis of acquiring title (Mason CJ & Dawson J)  T by undertaking to respect the claims of B is acting in place of a constructive  The indefeasibility provisions do not protect a registered proprietor from his or her own where those actions have given rise to a registered proprietor from his or her own actions where those actions have given rise to personal equity in another. When someone is acting as an agent,  Consider whether the fraud committed by or "brought home to" the agent o Principle of respondeat superior  Whether the agent was acting within the scope of his actual or apparent authority  If yes, then the fraud can be brought home.  "an act of an agent within the scope of his actual/apparent authority does not cease to bind his principal merely because the agent was acting fraudulently and in furtherance of his own interest" (Dollar and Sense Finance Ltd v Nathan)  Whether the agent has knowledge of the fraud in issue  If the agent does have knowledge but there was no fraudulent intent or "reckless indifference" fraud cannot be brought home to the agent even if the transaction involved a false attestation or execution  Knowledge of the fraud may be imputed from the agent to the principal even where the agent does not have actual knowledge but has deliberately "closed his eyes" to the fraud  If the agent does have knowledge of the fraud, the agent's knowledge need to be imputed to the principal.  There is a presumption that all knowledge will be communicated to the principal.  But the presumption can be rebutted, if:  The matter concerned the agent's own fraud/the agent's participation in a fraudulent scheme *Cassegrain v. Cassegrain (2015) 254 CR 425 Fact: a director of the respondent company had, in breach of corporate fiduciary duties, bought a dairy farm for himself, debiting part of his loan account that was held with the company. At a subsequent time, he transferred the dairy farm to himself and his wife as registered joint tenants, then followed by a transfer of his interest as a joint tenant to his wife for a nominal consideration of $1. Held: There could be no fraud ascribed to the wife as there is no evidence of her being aware of what the husband was doing (husband was not her agent). However, the company could recover the interest that the wife had obtained in the first transfer prior to the second transfer as she was not a bona fide purchaser for consideration. The wife was a volunteer. Perpetual v Trustee Company Ltd v Smith (2010) 186 FCR 566

The tenant does not automatically take priority over the registered interest owner. The competition between the interest is decided by the application of common law principles as if between two unregistered interest. King v. Smail [1958] VR 273 Held: a registered owner did not acquire an indefeasibility title free from prior unregistered interests as protection is only intended for the registered proprietor/ purchaser.  Note that it was decided when there was deferred indefeasibility Frazer v Walker Held: Registered volunteers should acquire an indefeasible title because of the vital "paramountcy" provisions do not specifically require that the registered proprietor be a purchaser Bogdanovic v. Koteff (1988) 12 NSWLR 472. Held: A registered volunteer obtained an indefeasible title and was thereby not subject to a prior unregistered interest created by the previous registered proprietor. Conlan (As Liquidator of Oakleigh Acquisitions Pty Ltd) v Registrar of Titles (2001) 24 WAR 299; [2001] WASC 201 Held: Volunteer should obtain indefeasible of title on registration. Farah Constructions v Say-Dee Held: volunteers acquire indefeasibility of title upon registration Overriding statutes  "sequential" response  Argument and found Hillpalm Pty Ltd v Heaven’s Door Pty Ltd (2004) 220 CLR 472 Fact: An issue arose as to whether the condition in a development consent issued by the local council for a two-lot subdivision could be enforced against a subsequent registered proprietor of the burdened land. The condition required an easement to be constructed on the burdened land in favour of the other lot. The easement was never constructed and the only notification of the condition was an endorsement on the registered plan as to the site of a proposed "right of way". Originally, there was a specific notification on the cert of title of the servient tenement disclosing the existence and location of a proposed right of way, but this had disappeared from the Register. Held: There was no conflict between the Planning Act and the Torrens legislation. The easement was not a condition imposed. Even if it was, the subdivision had been allowed to continue without imposing a condition requiring the creation of an easement. Even if there was indeed a condition imposed, it would not have been enforceable against a subsequent owner of the burdened land, as it is a condition relating to the subdivision of the land. Each statute operated within its own timezone and parameters. City of Canada Bay Council v Bonaccorso Pty Ltd (2007) 156 LGERA 294 Fact: Councils cannot sell or dispose of "community" land. Council purchased land which became designated "Chapman reserve" and in 2003 sold the reserved to Omaya Holding Pty Ltd. O became the registered proprietor. Another resident in the area opposed to the decision on the ground that council had no power to sell the land. O claimed indefeasible title. Conflict between LGA and Real Property Act. Held: the land in question is "community land" There was no inconsistency between the statutory provisions and each of them operated in its own time zone.

Frazer v Walker [1967] 1 AC 569 Held: The immediate indefeasibility "principle in no way denies the right of a P to bring against a registered proprietor a claim in personam, founded in law or in equity, for such relief as a court acting in personam may grant" Mercantile Mutual Life v Gosper (1991) 25 NSWLR 32 Fact: P's husband forged her name to a variation of mortgage over property she owned. The mortgagee already had possession of the cert of title and used it to procure registration of the forged variation of mortgage. Held: Although the mortgagee was not fraudulent and was unaware of the forgery, Mrs G had a personal equity that was enforceable against the mortgagee. (Forgery + Unauthorised use of cert of tile). *Note: this case has been criticised for broadening that the scope of the in personam exception and weakening the immediate indefeasibility doctrine. Farah Constructions v Say-Dee (2007) 230 CLR 89 Held: A person acquires title under the Torrens system pursuant to the act of registration and not by any antecedent act, a person cannot be seen as having "received" trust property from the trustee. Title emanates from the state. White v Tomasel [2004] 2 Qd R 438 Fact: whether the contract for sale of land has been validly executed. T the purchasers secured an order for specific perf from the court while W the vendor refused to execute a transfer. The Registrar of the Court signed a transfer on the behalf of the vendor and T became the registered proprietor. The vendor appealed and the order for specific perf was set aside. T argued that they have received the title without fraud and should be able to keep the land since the title is indefeasible. Held: The in personam exception operated in this case to make the title of T defeasible. Williams JA: the principle that there is a right to recover money or other benefits under a court order that is subsequently set aside on appeal applied to Torrens land and did not impinge upon indefeasibility of title. The right would fall under the in personam exception. McMurdo J: the right of the vendor is a restitutionary right to have the title restored. Davies JA (dissent): the registered proprietor's title was indefeasible as the in personam exception encompasses only know legal and equitable causes of action and there must be unconscionable conduct on the part of the registered proprietor. *Heid v Reliance Finance Corp Pty. Ltd. (1983) 154 CLR 326 (Unregistered v Unregistered) Fact: Held: "while the conduct of the holder of the first equity may, in such a case, be blameworthy, the operative representation was neither made nor authorised by him" (there must be a representation)  Detriment means that there must be a material disadv o Mere alteration of position by entry into a contract is insufficient in itself to constitute detriment  Where there are two competing equitable interests, "[inquire] whose is the better equity, bearing in mind the conduct of both parties, …[e.g negligence of either party, representation made]" (341-342)

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More is required than a simple causal connection between the conduct of the holder of the equity and the acquisition of the interest by the holder of the second equity

Test: 1. Whether there is a postponing conduct on the part if the first equitable interest holder 2. If there is no such conduct, then the issue of notice in the holder of the subsequent interest is strictly irrelevant Jacobs v Platt Nominees [1990] VR 146 Fact: Held: priority disputes can be resolved using the method in Heid ("estoppel" or "negligence" approach) The failure to caveat wa...