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his purchase with Anita. Ben had lodged his caveat after David had searched the register and therefore, as laid out in Butler, the courts will find that the caveat will not protect Ben’s interest and thus the caveat is postponed. Had Ben lodged his caveat earlier and prior to
David paying Anita and receiving title, Ben’s caveat would have been successful in preventing his proprietary interest.David’s unregistered interest will prevail over Ben’s unregistered interest because Ben’s caveat will not be successful in protecting Ben’s proprietary interest as it has been lodged after David had checked the register, completed the purchase and received title. How would your advice be different if Caitlin had lodged Ben’s transfer, the mortgage and the certificate of title for registration, but then withdraws them before they are registered? The Registrar-General notes this fact on the folio. When David conducts his search of the register, he sees the notation on the folio, but decides not to look into it further.The issue raised in this case is does the registrar-general notes on the folio protect Ben’s unregistered interest over David unregistered interest.The case of Rice v Rice is the relevant law in this case. The rule found in Rice is that in the cases of an unregistered interest vs an unregistered interest involves the search for the best equity.As there had been a note left by the Registrar general on folio alluding to Ben’s interest on the property, Ben’s unregistered proprietary interest is protected because the note will constitute as notice. It is irrelevant that David had not looked at the note, he had a duty to inspect the land and the title. Therefore, David had constructive notice of Ben’s unregistered interest and Ben will have the better equity claim over the property. And applying Rice, as Ben has the best equity, his interest will prevail over David’s.Ben’s unregistered interest is protected by the notes on the folio as it acts as notice. Since David has a constructive notice over Ben’s unregistered interest, Ben’s interest will prevail over David’s.