5 again distinguished from agc as in that case the

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5. AGAIN, distinguished from AGC, as in that case the person was aware of fraudulent activity also took it to registration place. FRAUD AND DISHONESTY 1. Assets Co – fraud means actual fraud, dishonesty 2. Test for fraud is subjective (inquiry into the wrongdoer’s motives, knowledge and intent) 3. In Russo , fraud said to mean ‘dishonesty or want of probity, a “willful and conscious seeking to defeat or disregard another’s rights” [or reckless indifference thereto – per Batt JA] 4. This test derives from Waimiha Sawmilling v Waione Timber Co (NZCA, 1923). Salmond J said Torrens fraud ‘means dishonesty – a willful and conscious disregard and violation of the rights of other persons’. 5. Is this test of dishonesty consistent with earlier authorities? FALSE ATTESTATION BY AGENT - SUMMARY 1. If Agent acts fraudulently for his own benefit – fraud won’t be brought home to RP ( Schultz ) 2. If the agent falsely attests the grantor’s signature, but not for his own gain, he is acting within the scope of his authority, but is it fraud? Yes, if He attested a signature knowing it was a forgery, 29
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30 His suspicions were aroused but he abstained for inquiry for fear of learning the truth, He knew that he was setting it on the path to registration, or The agent who registered it knew the attestation was false. This is saying that the test is about the Russo case??? IN PERSONAM CLAIMS 1. The principle of indefeasibility ‘in no way denies the right of a plaintiff 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’. Lord Wilberforce in Frazer v Walker This means the court can grant an equitable remedy against the RP personally, arising out of some action. That remedy might in fact deprive the RP of part OR all of the interest they have in the land. NOTE: Indefeasibility does NOT mean that RP can use their title to escape contractual obligations. An example might be if you have an RT/CT, RP R and Y. Y’s put up the money, but title give to R wholly. R is holding on trust (RT) for Y at acquisition. Equity will hold R to his obligation as trustee. Thus, Y can seek an order asking R to transfer title to her. CLAIMS IN PERSONAM (IP) AND CLAIMS IN REM 1. A claim in rem is one brought against the owner as owner ie against anyone who happens to have an interest in the land, i.e., it runs with the land. 2. A claim in personam is brought against the owner based on his own actions, conduct or transactions whether before or after registration (eg contract, trust, breach of statute). 3. On a claim in personam , court may make an order that deprives the owner of part or all of his registered interest (Barwick CJ in Breskvar) IP CLAIMS AND INDEFEASIBILITY 1.
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