LAW316 Class Presentation

LAW316 Class Presentation - We have already looked at the...

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We have already looked at the indefeasibility of title and its importance in the Torrens System. Just to quickly summarise, it allows the registered holder conclusive title immune from attack by adverse claim to the land, and only subject to other interests on that title and established statutory and non-statutory exceptions. It is also important to examine the development of fraud. The question of what constitutes fraud is an issue that has been left for judicial determination. There is common law fraud, which requires proof of deceit, and also equitable fraud, which can be committed wherever it is clear that an unfair consequence may arise. In the case of Nocton v Lord Ashburton [1914] AC 932 , it was stated by Lord Haldane LC that equitable fraud is not so much moral fraud, but a breach of the sort of obligation that is enforced by a court. He stipulates that it is a mistake to suppose that an actual intention to cheat must always be proved. In other words, he basically makes no reference to mens rea, and intention, when determining fraud. In the case of Assets Company Ltd v Mere Roihi [1905] AC 176 , a much broader approach to the interpretation of fraud was taken. It was held that fraud exists where the registered proprietor intended to deceive, where his or her suspicions were aroused, or where he or she failed to make inquiries for fear of learning the truth (or wilful blindness).
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It is now commonly accepted that the form of fraud required is actual fraud. This is defined in Assets Company Ltd v Mere Roihi [1905] AC 176 as “ dishonesty of some sort, not what is called constructive or equitable fraud.” In Butler v Fairclough [1917] 23 CLR 78 it is referred to “personal dishonesty and moral turpitude” In Waimiha Sawmilling Co v Waione
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LAW316 Class Presentation - We have already looked at the...

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