Breskvar V Walker Case Summary
TORRENS TITLE * System of title by registration rather than registration by title (Breskvar v Wall (1971) 126 CLR 376. * Indefeasibility- The registered proprietor holds the title free of all unregistered interests. S42 Real Property Act 1900 (NSW). * Registration of a void instrument confers immediate indefeasibility in the absence of fraud (Frazer v Walker [1967]] 1 AC 569. * Sir Garfield Barwick sitting on the Privy Council in Frazer v Walker described it as: “a convenient description of the immunity from attack by adverse claim to the land or interest in respect of which he is registered, which a registered proprietor enjoys”
EXCEPTIONS TO INDEFEASABILITY * FRAUD- in the case of fraud a proprietor can be removed …show more content…
Son inherited house. Breskvar v Wall applied - no distinction is made between volunteers and purchasers hence indefeasibility is given to the son SHORT TERM LEASES Under 42(1)(d) of the Real Property Act, a registered interest is subject to a short-term lease if: * The term of the lease is less than 3 years including any options, * The tenant is in possession or entitled to immediate possession, * The registered proprietor before he or she became registered as proprietor had notice against which he or she was not protected: OVERRIDING STATUTES Pratten v Warringah Shire Council (1969) 90 WN (NSW) (Pt 1) 134, Barry v Heider (1914) 19 CLR 197
* Barry was the registered proprietor of Torrens land. He had signed a document of transfer under which he agreed to transfer his interest in the land to Schmidt for consideration of £1,200. * The transfer stated that this had been paid, but Barry’s evidence was that he had received nothing. He claimed that he thought he was signing a contract, not a transfer and that the agreed sale price was …show more content…
This means that a purchaser should at least undertake 2 types of enquiries: * The purchaser has a duty to physically inspect the land (Barnhart v Greenshields, Hunt v Luck), and, * The purchaser should search the documents of title and the register.
CAVEATS
S74F RPA- Lodgment of caveats against dealings, possessory applications, plans and applications for cancellation of easements or extinguishment of restrictive covenants.
A caveat may be lodged: * Where a person claims to be entitled to a legal or equitable estate or interest in the land; * Where the registered proprietor has lost the certificate of title and fears an improper dealing with the land; * To prevent the granting of a possessory application;. * To prevent the improper exercise by a mortgagee of a power of sale; * By the Registrar-General to protect interest of a person under a legal disability or on behalf of the Queen
Rule in Person-to-Person Finances Pty Ltd v Sharari [1984] 1 NSWLR
EXCEPTIONS TO INDEFEASABILITY * FRAUD- in the case of fraud a proprietor can be removed …show more content…
Son inherited house. Breskvar v Wall applied - no distinction is made between volunteers and purchasers hence indefeasibility is given to the son SHORT TERM LEASES Under 42(1)(d) of the Real Property Act, a registered interest is subject to a short-term lease if: * The term of the lease is less than 3 years including any options, * The tenant is in possession or entitled to immediate possession, * The registered proprietor before he or she became registered as proprietor had notice against which he or she was not protected: OVERRIDING STATUTES Pratten v Warringah Shire Council (1969) 90 WN (NSW) (Pt 1) 134, Barry v Heider (1914) 19 CLR 197
* Barry was the registered proprietor of Torrens land. He had signed a document of transfer under which he agreed to transfer his interest in the land to Schmidt for consideration of £1,200. * The transfer stated that this had been paid, but Barry’s evidence was that he had received nothing. He claimed that he thought he was signing a contract, not a transfer and that the agreed sale price was …show more content…
This means that a purchaser should at least undertake 2 types of enquiries: * The purchaser has a duty to physically inspect the land (Barnhart v Greenshields, Hunt v Luck), and, * The purchaser should search the documents of title and the register.
CAVEATS
S74F RPA- Lodgment of caveats against dealings, possessory applications, plans and applications for cancellation of easements or extinguishment of restrictive covenants.
A caveat may be lodged: * Where a person claims to be entitled to a legal or equitable estate or interest in the land; * Where the registered proprietor has lost the certificate of title and fears an improper dealing with the land; * To prevent the granting of a possessory application;. * To prevent the improper exercise by a mortgagee of a power of sale; * By the Registrar-General to protect interest of a person under a legal disability or on behalf of the Queen
Rule in Person-to-Person Finances Pty Ltd v Sharari [1984] 1 NSWLR