LA2016 Lectures 16 PDF

Preview

Summary

Lecture notes ...

Description

1

LA2016 LAND LAW 2 LECTURE OUTLINE 1. THE TORRENS SYSTEM (a) The Register and the Process of Registration LTA ss 1-36 Bresker v Wall (1971) 126 CLR 376 (b) The Register and Registrable Instruments LTA s 14,30, 47, 48, 51, 52,71, 79, 98, 99, 108 (c) Priority Fixed by Date of Registration LTA s 174, 178 (d) Indefeasibility Principle LTA ss37, 38, 184, 185 Gibbs v Messer [1891] AC 248 Assets Co v Mere Roihi [1905] AC 176 Frazer v Walker [1967] AC 569 Breskvar v Wall (1977) 126 CLR 376 Tessman v Costello [1971] 1 Qd R 283 Elroa Nominees Pty Ltd v Register of Titles [2003] QCA 165 (e) Limits to Indefeasibility (i) Fraud LTA s 184(3) Assets Co v Mere Roihi [1905] AC 176 Bahr v Nicolay (1988) 164 CLR 604 Breskvar v Wall (1977) 126 CLR 376 Loke Yew v Port Swettenham Rubber Co Ltd [1913] AC 491 Friedman v Barrett ex parte Barrett [1962] Qd R 498 Grgic v ANZ (1994) 33 NSWLR 202 Cassegrain v Gerald Cassegrain & Co Pty Ltd (2015) HCA 2 (ii) In Personam Exceptions LTA s 185(1)(a) Frazer v Walker [1967] AC 569 Mercantile Mutual Life v Gosper (1991) 25 NSWLR 32 Tara Shire Council v Garner [2003] 1 Qd R 556 (iii) Short Term Leases LTA s185(2)(b) Friedman v Barrett ex parte Barrett [1962] Qd R 498 (iv) Omission or Misdescription of Right of Way or Other Easement LTA s185(1) (c) (v) Adverse possession LTA ss 185 (1) (d), 98, 99, 102, 108

2 Petkov v Lucerne (1992) 7 WAR 163 Allen v Roughley (1955) 94 CLR 98 (vi) Estate Claimed Under Prior Certificate LTA s 185 (1) (e) Medical Benefits Fund of Australia Ltd v Fisher [1984] 1 Qd R 606 (vii) Wrong Description of Land and its Boundaries LTA s 185 (1) (g); s 186 (viii) Overriding Provisions in Other Statutes (f)

Caveats (i) General LTA ss 17, 122 Butler v Fairclough (1917) 23 CLR 78 (ii)

(iii)

Lodgment of Caveats LTA s 122, 123 124 Duration of Caveat LTA s 125, 126, 127, 128, 129 Re Ocean Downs Pty Ltd (in Liquidation)'s Caveat [1989] 1 Qd R 648

(iv)

Liability for Wrongful Lodgement LTA s 130

(v)

The Equitable Mortgagee's Caveat LTA s 122(2), 126 Bell v Custom Credit Corporation Ltd [1976] QR 57

(vi)

Writs of Execution LTA s 116, 117, 118, 119, 120

(vii)

Caveats and Priorities Between Unregistered Interests J&H Just (Holdings) Pty Ltd v Bank of NSW (1971) 125 CLR 546 Black v Garnock (2007) 230 CLR 438 IAC (Finance) Pty Ltd v Courtenay (1968) 110 CLR 550 Butler v Fairclough (1917) 23 CLR 78 Clark v Raymor [1982] Qd R 790 Platzer v Commonwealth Bank [1997] 1 Qd R 266 Re McKean's Caveat [1988] 1 Qd R 524 Taleb v National Bank Australia (2011) 82 NSWLR 489

(g) Volunteers and Torrens System Transactions PLA s 200 LTA s 180 Brunker v Perpetual Trustee Co. (1937) 57 CLR 555

3 (h) Remedies under Torrens System for Deprivation of Interest (i) Recovery of possession LTA s 68, 78, 184 (ii) Compensation LTA s 188, 189, 191 Heid v Connell Investments Pty Ltd (1989) 16 NSWLR 629 Armour v Penrith Projects [1979] 1 NSWLR 98 (iii) Powers and Duties of the Registrar LTA s 7, 8, 9, 9A, 17, 18, 19, 20, 27, 28, 29, 30 2. MORTGAGES (a) Nature and Creation of General Law Mortgage Kreglinger v New Patagonia Meat & Gold Storage Co Ltd [1914] AC 25 (b) The Torrens System Mortgage Tessman v Costello [1987] 1 QR 283 LTA ss 74, 75, 78, 181; Part 7 PLA (c) Covenants in Mortgages PLA s 78; LTA s 63 (d) Equitable Doctrines Protecting the Mortgagor Knightsbridge Estates Trust Ltd v Byrne [1938] 2 All ER 444 Kreglinger v New Patagonia Meat & Cold Storage Co Ltd [1914] AC 25 Noakes & Co Ltd v Rice (1902) AC 24 Samuel v Jarrah Timber & Wood Paving Corp Ltd [1904] AC 323 (e)

Remedies of the Mortgagee (i) Right to Sue on Personal Covenants PLA ss 78,79, LTA 78 (ii)

Receiver LTA 78, PLA 83, 92

(ii)

Power of Sale PLA ss 83, 84, 85, 87, 88; LTA s 78 Forsyth v Blundell (1973) 129 CLR 477 McKean v Maloney [1988] 1 Qd R 628 Latec Investments Ltd v Hotel Terrigal (1965) 113 CLR 265 ANZ Bank v Bangadilly Pastoral Co Pty Ltd (1978) 52 ALJR 529

(iii)

Foreclosure PLA s 99 LTA s 78 Trusts Act 1973 (Qld) s46 Fink v Robertson (1907) 4 CLR 864 Rockhampton Permanent Building Society v Petersen (No 2) [1989] 1 Qd R 670

4 Finance Corp v Commissioner of Stamp Duties [1981] Qd R 493 (v)

Mortgagor and Mortgagee inter se 1. Mortgagor's right to redeem PLA ss 94, 95, 99 Ley v Scarff (1981) 33 ALR 653 Ex parte Tori [1977] Qd R 256 2. Mortgagee's right to possession LTA s 78 Southwell v Roberts (1940) 63 CLR 581 Fyfe v Smith [1975] 2 NSW LR 408

3. LEASES (a) Definition of a Lease (i) Exclusive possession Radaich v Smith (1959) 101 CLR 209 Isaac v Hotel de Paris [1960] 1 AIIER 348 Street v Mountford [1985] AC 809

(b)

(ii)

Certainty of duration Pirie v Saunders (1961) 104 CLR 149 Lace v Chantler [1944] KB 368 South Coast Oil Pty Ltd v Look Enterprises Pty Ltd [1988] Qd R 680 Prudential Assurance v London Residuary [1992] 3 All ER 504

(iii)

Proper Creation

Types of Leases and Tenancies (i) Fixed Term Cottage Holiday Associates [1983] QB 737 Smallwood v Shepherds [1895] 2 QB 627 (ii)

Yearly Tenancy PLA ss 129, 135 Moore v Dimond (1929) 43 CLR 105

(iii)

Weekly, Monthly and Other Periodic Tenancies. Turner v York Motors Pty Ltd (1951) 88 CLR 55

(iv)

Tenancy at Will Palmdale Insurance Ltd v Sprenger [1988] Qd R 415 Turner v York Motors Pty Ltd (1951) 88 CLR 55

(v)

Tenancy at Sufferance

(vi)

Tenancy by Estoppel Lee v Ferno Holdings Pty Ltd (1993) 33 NSWLR 404

5 (c)

Creation of Leases (i) Legal Leases PLA, ss 6, 10, 11, 12, 59 LTA s 64, 71, 185 (ii)

Equitable Leases Walsh v Lonsdale (1882) 21 Ch D 9

(d) Covenants in Leases (i) General (ii) Landlord's Covenants Implied at Common Law 1. Quiet Enjoyment Malzy v Eichholz [1916] 2 KB 308 Telex (Australasia) Pty Ltd v Thomas Cook & Son (Australasia) [1970] 2 NSWR 257 Lavender v Betts [1942] 2 All ER 72 2. No Derogation from Grant Telex (Australasia) Pty Ltd v Thomas Cook [1970] 2 NSWLR 257 Aldin v Latimer [1894] Ch 437 AF Textile Printers Pty Ltd v Thalut Nominees Pty Ltd (2007) 17 VR 334 Cruse v Mount [1933] Ch 278 Summers v Salford Corporation [1943] AC 283 Jones v Bartlett (2000) 205 CLR 191 (iii) Landlord’s Covenants Under Statutes PLA s 106, 107 (iv) Tenant's Covenants 1. Payment of rent PLA s105 2. Keep and yield premises in good and tenantable repair s105, 106 Proudfoot v Hart (1890) 25 QBD 42 (v) Express Covenants PLA s 109, 112 Proudfoot v Hart (1890) 25 QBD 42 (vi) Assignment and Subleases PLA ss 119, 121, 122 PLA Lam Kee Ying v Lam Shes Tong [1975] AC 247 Creer v P&O Lines of Australia [1971] 125 CLR 84 Barrow v Isaacs [1891] 1 QB 417 Davantry Holdings Pty Ltd v Bacalakis Hotels Pty Ltd [1986] 1 Qd R 406 Re Gibbs & Houlder Brothers & Co Ltd's Lease [1925] Ch 575 Bickel v Duke of Westminster [1977] QB 517 Bromley Park Garden Estates Ltd v Moss [1981] 1 WLR 1019

6 International Drilling Fluids Ltd v Louisville Investments (Uxbridge) Ltd (1986) 2 WLR 581 Re Archos (1994) 1 Qd R 223 (vi)

Covenants Implied Under General Principles of Contract

(vi)

Usual Covenants

(e)

Options to Renew Lease or Purchase Reversion LTA s 170; PLA s128 Friedman v Barrett [1962] Qd R 498 Mercantile Credits Ltd v Shell of Australia [1976] 136 CLR 326

(f)

Determination of Leases (i) Expiry of Time PLA s 138, 139 (ii)

Notice for Fixed Period and Periodic Tenancies PLA s 129-137 Queens Club Gardens v Bignell [1924] 1 KB 117

(iii)

Surrender PLA s10, 113, 115; LTA s 69

(iv)

Merger Shell v Zanelli [1973] 1 NSWLR 216

(v)

(vi)

(g)

(h)

(g)

Forfeiture PLA ss 107, 124, Rugby School (Governors) v Tannahill [1935] 1 KB 87 Ex Parte Whelan [1986] 1 Qd R 500 Shevill v Builders' Licensing Board (1982) 56 ALJR 793 Keswick Developments Pty Ltd v Keswick Island Pty Ltd [2012] 2 Qd R 114. Tenant's remedies Knockholt Pty Ltd v Graff [1975] Qd R 88

Privity of Contract and Estate PLA s 10, 11, 53, 55; Milmo v Carreras [1946] KB 306 McMahon v Ambrose (1987) VR 817 Benefit and Restrictive Covenants PLA s 53 Rural View Developments Pty Ltd v Fastfort Pty Ltd [2011] 1 Qd R 35 Residential Tenancies (i) General Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (ii)

Objectives and Definitions of Tenancy Agreement

7 s 4, 5, 12, 14, 16, 17, 18, 26, 27, 28, 29, 31, 32, 33, 34, 40, 44 RTRA (iii)

Payment of Rent S 83, 85, 91, 92, 93, 98, 100,105, 108 RTRA

(iv)

Rights and obligations s 182, 183, 185, 192, 193, 195, 238, 247, 249, 257, 258, 266, 268, 301, 302. 304, 310, 313 RTRA Summers v Salford Corporation [1943] AC 283 Proudfoot v Hart (1890) 25 QBD 42

(v)

Dispute Resolution : s 397, 398, 402, 405, 406, 407, 408, 410, 411, 414, 415, 418, 419, 424, 425, 426, 427 RTRA

(iv)

Tenancy Databases s 457, 458, 459, 460, 461 RTRA

(vii)

Residential Tenancies Authority s 465, 468 RTRA

(h) Retail Shop Leases Retail Shop Leases Act 1994 (Qld) (RSLA) (i) Objectives and Obligations S 3, 4, 6, 8, 12, 18, 20 RSLA (ii) Payment and Rent s 25, 26, 27, 27A RSLA (iii) Compensation s 43, 44, 46A, 46B RSLA (iv) Dispute Resolution s54, 55, 57, 58, 59 RSLA

4. PROPRIETARY INTEREST IN LAND OWNED BY ANOTHER (a) Easements (i) Nature and Characteristics of Easements under Common Law Re Ellenborough Park [1956] 1 Ch 131 Bursill Enterprises Pty Ltd v Berger Bros. Trading Co (1971) 45 ALJR 203 (ii) Statutory Modification LTA s 86, 87, 89 (iii) Creation and Registration LTA s 82, 83, 92; PLA 181 Westfield Management Ltd v Perpetual Trustee Co Ltd (2007) 239 ALR 75 Yip v Frolich (2003) 86 SASR 126; (2004) 89 SASR 467 Wheeldon v Burrows (1879) 12 Ch D 31 Aldridge v Wright [1929] 2 KB 117 Stuy v B C Ronalds [1984] 2 Qd R 578

8 Pryce v McGuinness [1966] Qd R 591 SS & M Ceramics (1996) Qd R 540 McGrath v Campbell [2006] NSWCA 180 Australian Hi-Fi Publications Pty Ltd v Gehl [1979] 2 NSWLR 618 Hare v Van Brugge (2013) 84 NSWLR 41. (iv)

Prescriptive Easements PLA 198A Williams v State Transit Authority (2004) 60 NSWLR 286

(v)

Statutory Rights PLA s 180 Tipler v Fraser [1976] Qd R 272 Mount Cathay Pty Ltd v Land Lease Funds Management Ltd [2013] 1 Qd R 528. Extinguishment of Easements LTA s 90, PLA s181. Pieper v Edwards [1982] 1 NSWLR 336 Treweeka v 36 Wolslely Rd Pty Ltd (1973) 128 CLR 234

(vi)

(b)

(c)

Covenants PLA, s13, 53, 55 Austerbery v Corporation of Oldham (1885) 29 Ch D 750 Rural View Developments Pty Ltd v Fastfort Pty Ltd [2011] 1 Qd R 35 Restrictive Covenants Tulk v Moxhay (1848) 41 ER 1143 Forestview Nominees Pty Ltd v Perpetual Trustees WA Ltd Elliston v Reacher [1908] 2 Ch D 3740

(d)

Heritage Law Queensland Heritage Act 1992 (Qld) Environmental Protection and Biodiversity Conservation Act 1999 (Cth) (g)

Profits a Prendre LTA 97A/F/G/I/L

5. STATUTORY INTERPRETATION Acts Interpretation Act 1954 (Qld) Fearnley v Finlay [2014] 2 Qd R 392 Lacey v Attorney-General for Queensland (2011) 242 CLR 573 National Rugby League Investments Pty Ltd v Singtel Optus Pty Ltd [2012] FCAFC 59 Essendon Football Club v Chief Executive Officer of the Australian Sports Anti-Doping Authority [2014] FCA 1019

9

1. THE TORRENS SYSTEM (a) The Register and the Process of Registration The essence of the Torrens system is that on each conveyance the land is effectively surrendered back to the state which then re-grants it to the new purchaser. Protected by the State which can be compensation if a problem arises. The main aspect of the Torrens system is that it involved a system of independent titles, rather than relying on the dependent nature of the old system titles which required a retrospective investigation of title each time the land was conveyed. This removes the need for a retrospective investigation of the title with the purchaser being protected against all prior interests under the principle of indefeasibility. Note that in Breskvar v Wall (1971) 126 CLR 376 it was stated that the Torrens system involves ‘cutting off the retrospective or derivative character of the title upon each transfer or transmission so that each freeholder is in the same position as a grantee direct from the Crown.’ All transactions affecting the land are then included on the folio, together with a description of the and usually a plan of it. Until the mid-1990s, when the system became computerized, the purchasers received a certificate of title which was effectively a copy of the folio from the register for the land concerned. (b) The Register and Registrable Interests Under s 14 LTA you must not knowingly use a form for the instrument that is not the appropriate form, while s 30 LTA states that the registrar must register the instruments. Once you lodge the instruments they must be registered. Section s 47 LTA states alienated state land must be registered, and under s 48 LTA the state may acquire, hold and deal with lots. Allowing the state to own property means that it can be used for development and also allows the state to own buildings to house things. Section s 51 LTA allows for the dedication of lot to public use in a plan of a subdivision and it becomes a reserve for community purpose, and under s 52 LTA, in registering a plan of a subdivision the registrar must record in the register each proposed lot that is not public use land and to the extent that is practicable – common property created under that plan. Each lot under a sub division needs to be registered. Section s 71 LTA states that mortgages may be registered, and s 79 LTA covers the effect of transfer after sale by mortgagee. A number of sections cover adverse possession, and under s 98 LTA an application for adverse possession cannot be for state land, or possession arising out of encroachment. Section 99 LTA states that a person may apply to be registered as owner of a lot by lodging an application, while under s 108 LTA, adverse possession can be registered. (c) Priority fixed by registration Note that under s 178 of the LTA registered instruments have priority according to when each was lodged, not when they were executed. Section 174 states an instrument is registered when the particulars are recorded in the freehold land register. You don’t get a legal interest in land until settlement and until the land is registered (under the Torrens system).

10

(d) The indefeasibility principle The Torrens system involves title by registration which means that on becoming the registered proprietor of an estate, the purchaser acquires good title even if there are fundamental defects in the purchaser’s title. The title therefore cannot be set aside on the grounds of a defect existing in the title. Since the doctrine of indefeasibility of title protects the purchaser, even if the purchaser becomes the registered proprietor by means of a forged transfer. Indefeasibility therefore forms the foundation of the Torrens system since its main characteristic is that it considers the interest of the registered proprietor to be paramount with the purchaser’s interests being protected against all prior interests. An issue, however, has been whether the indefeasibility is obtained immediately on registration, or whether it occurs later, that is, it is deferred. An early decision, Gibbs v Messer [1891] AC 248, suggested that indefeasibility was deferred, but later cases such as Frazer v Walker [1967] AC 569 and Breskvar v Wall clearly indicated that indefeasibility was immediate. Thus, overall the court decisions clearly assert that under the relevant Torrens statutes it is immediate indefeasibility that applies. It should also be noted that Gibbs v Messer has never actually been overruled, but can be considered to be limited to situations involving fictitious persons. Under the Torrens system the rule is no registration, no legal title, and registration ensures that the particulars are recorded since under s 37 LTA an indefeasible title for a lot is on the recording of the particulars of the lot on the freehold land register, with s 38 LTA stating that the indefeasible title for a lot is the current particulars in the freehold land register about the lot. Section 184 (1) LTA states that the registered proprietor holds the interest subject to registered interests affecting the lot, but free from all other interests, with ss2 stating that a registered proprietor is not affected by actual or constructive notice of an unregistered interest affecting the lot. Note that there are then some exceptions with (3) stating that it does apply if there is fraud by the registered proprietor. 

Short term lease is an exception to indefeasibility because if you buy a property with a short term lease in place, that lease is still enforceable against you. So you don’t have to keep registering short term leases

(e) Limits to the indefeasibility principle As well as s 184 (3) for fraud by the registered proprietor, there are further exceptions under s 185. These are: 1. Personal equity s185 (1) (a) 2. Interest under a short term lease (1b)  Short term lease is an exception to indefeasibility because if you buy a property with a short term lease in place, that lease is still enforceable against you. So you don’t have to keep registering short term leases 3. An easement (1c) 4. Adverse possession (1d)  People have fulfilled the requirement of adverse possession and then becomes an exception to adverse possession 5. Interest existing under an earlier title (e)

11 6. Another interest from a second certificate of title because the first has not been cancelled (f) 7. Wrong inclusion of land in another person’s land (g)  Taking care of situations where there has been faults in the registration process (i) Fraud Fraud is not defined in the statute and therefore relies on the common law definitions. In Assetts Co v Mere Roihi [1905] AC 176 the Privy Council defined fraud as being actual fraud, that is, involving dishonesty of some sort, but not to mean constructive or equitable fraud. Constructive fraud involves a fraudulent breach of an obligation, that is, it involves a person violating, however innocently, an obligation that a court of equity will assume was known to the person. Equitable fraud is conduct recognised by a court of equity as offending the conscience. In Loke Yew v Port Swettenham Rubber [1913] AC 491 it was held that the transfer was obtained by fraud and misrepresentation and the purchaser could not better their position by obtaining registration under circumstances which made it not honest to do so. In Friedman v Barrett [1962] Qd R 498 it was held that fraud means actual dishonesty, not constructive fraud and it was not fraud in this case to purchase with notice of an unregistered interest and then, on becoming registered as proprietor, to invoke indefeasibility of title to defeat that unregistered interest. Note that in Bahr v Nicolay (No2)164 CLR 604 there were obiter statements that not all equitable fraud stands outside the statutory concept of fraud. Similarly, in Grgic v ANZ (1994) 33 NSWLR 202 it was held that the types of equitable fraud that can be regarded as falling within the statutory concept of fraud are those in which there has been an element of dishonesty, or moral turpitude, on the part of the registered proprietor. Cassegrain v Gerald Cassegrain & Co Pty Ltd [2015] HCA 2 involved a family dispute involving the family company which was the registered proprietor in fee simple of a dairy farm. Transfers of the farm were registered, first from the company to Claude Cassegrain and his wife, Felicity, as joint tenants, and ...