Breskvar v wall 1971 1 bs were rps of land 2 as

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BRESKVAR V WALL 1971 1. Bs were RPs of land 2. As security for a loan, gave Petrie a signed transfer with transferee blank, and DCT 3. As agent for Wall, P fraudulently inserted W’s name as transferee and reg’d transfer At this point, Petrie has acted fraudulently, but the registration has been done, HOWEVER, this is defeasible. What if he’d been an innocent transferee? This is volunteer exception stuff that we’ll discuss later. 4. Wall then sold to Alban Pty Ltd, a BFP (bona fide purchaser) 5. Alban was unable to register because the Bs lodged a caveat. This was lodged BEFORE Alban could register their title. Under either immediate or deferred, if Alban HAD got registered, they’d get the property. BRESKVAR V WALL - HCA 1. HCA unanimously followed Frazer v Walker 2. Registration of a void instrument confers a title which is effective. 3. W’s registration, though effective, was defeasible for his fraud. 4. However, A has in the meantime acquired an equitable property right as purchaser, and this gives rise to a priority conflict with B’s rights. 5. B’s claim to rectification is an equitable property right. 6. Applying equitable priority rules, A prevails. 7. BASICALLY, read down s. 42 and in obiter, said you don’t consider the ‘purchaser at value’ reference. PRIORITY RULE: AS BETWEEN REGISTERED INTERESTS: TLA S 34(1) 22
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23 1. Every instrument lodged for registration shall be registered in order of lodging. This can be reversed. Is done by agreement between interest holders 2. Priority between instruments purporting to affect the same estate of interest is determined according to the order of lodging. PRIORITY RULE: REGISTERED VS UNREGISTERED INTERESTS 1. RP takes free of prior unregistered interests unless they are paramount interests (ie exceptions to indefeasibility listed in s 42(2) TLA) 2. Equitable doctrine of notice is abrogated by s 43 (notice provision) so RP is not affected by notice of a prior unregistered interest. If have two unregistered interests, have to look outside of statute for a resolution. Topic 6 stuff. SCOPE OF INDEFEASIBILITY 1. Does indefeasibility extend to all the covenants in a registered lease or mortgage? 2. What if the instrument itself is valid but one of the covenants is void? Will registration cure the invalidity? INDEFEASIBILITY OF LEASE COVENANTS 1. Mercantile Credits v Shell : Land owned by someone, Shell were under a registered lease, that allowed for renewal. The first option was exercised, which led to an extended lease that was registered. Celtic…mortgaged it to Mercantile Credits. Then Celtic Agencies folded, and Mercantile wanted to sell. The lessee had already exercised its second option to renew, but it hadn’t been registered yet. There’s a dispute whether Mercantile had to take upon it the Shell thing. Mercantile said that when Shell renewed their lease, it started a new one that was NOT registered. HC rejected this saying that the Mercantile credits the options, and is subject to the exercise of this option. SO, if a
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