Old System priorities & introduction to torrens title.docx...

Old System Priorities and Introduction to Torrens Title
Problem Questions
1. Jim is seized of the fee simple in a block of land in Parramatta New South Wales. He is
planning to travel overseas for 3 months so he locks the Certificate of Title to his old system
property securely in his safe at home. While he is away his neighbour Blake, who is supposed
to be watering his plants, breaks open the safe inside Jim’s house, and steals the Certificate of
Title.
Blake then pretends to be Jim and sells the property to Kim by forging Jim’s signature onto
the Deed of Conveyance. Kim who is unaware of Blake’s trick registers her conveyance on
the old system register of deeds.
Jim returns to find Kim living in his house. Advise Jim
Answer
The issue raised in this case is does Jim’s earlier legal interest prevail over Kim’s legal
interest?
The law relevant in this case is the nemo dat rule and the Conveyancing Act 1919 (NSW) s
148G.
Under the nemo dat rule, ‘no one can give what he or she does not have.’ An earlier legal
interest will prevail over a later legal interest.
Under s 148G of the Conveyancing Act, all registered deeds ‘shall have and take priority not
according to their respective dates but according to the priority of the registration thereof
only.’ Thus, when a registered deed will become a legal interest in the property at the date of
registration.
Kim, the bone fide purchaser, purchased Jim’s property, and unaware of Blake’s fraud,
registered her conveyance of the old system title property on the old system register of deeds
thus creating a legal interest for Kim. Under the nemo dat rule, Blake was not able to transfer

to the legal title to Kim as Jim had the earlier legal interest. Therefore, Jim’s legal interest