Facts brief decide which are relevant Decision Rationale was the decision

Facts brief decide which are relevant decision

This preview shows page 98 - 100 out of 114 pages.

: what are you discussing, issues in paper. Facts : brief, decide which are relevant. Decision + Rationale : was the decision warranted, was reasoning fair, did the court use authority, was the decision unanimous, what was the reasoning, did it change/introduce law? Analysis : do you agree, did it achieve what the court intended, has it injured previous authority, will it be followed, what should the result have been? Conclude : final thoughts. Breskvar v Wall (1971) 126 CLR 376 General Court – High Court of Australia (HCA) Judges – Barwick CJ, McTiernan, Menzies, Windeyer, Owen, Walsh & Gibbs JJ (Unanimously dismissed the appeal) Parties : o Emilie and Franc Breskvar (appellants) o George Walter Wall (1st respondent) o George Petrie (2nd respondent) o Alban Pty Ltd (3rd respondent) Area of Law – Torrens Title – Immediate Indefeasibility – Fraudulent registration/instrument Facts Judicial History – Appeal from Supreme Court of QLD Breskvars were Registered Proprietors (RP) of Torrens Title land – handed over the CT + signed/executed a blank memorandum of transfer to Petrie as mortgagee of the property Petrie inserted his grandson (Wall’s) name onto the transfer and lodged for registration Wall become RP + was aware of Petrie’s fraudulent conduct (ie, the agreement between B and P) Wall entered into contract of sale with Alban Pty Ltd (who checked the register and saw Wall was the RP) BUT before registration of Alban’s purchase was complete – Breskvar’s lodged a caveat Issues Whether registration confers immediate indefeasibility upon a void instrument Held Found in favour of Wall – employing the immediate indefeasibility doctrine – “a registration which results from a void instrument is effective according to the terms of the registration” Applied Frazer v Walker [1967] – void instrument was effective as a result of registration under TT – Wall’s registration of the transfer was validated through registration despite his knowledge of the fraud – s 43 of RPA protects ‘mere notice’ (he was not involved in the fraud) Court used the principles in Abigail v Lapin [1934] to determine the priority of the competing equitable interests o Competing equitable interests – between Alban Pty + Breskvar’s o Breskvar’s conduct in handing over the memorandum of transfer + CT constituted postponing conduct – because it ‘armed [Petrie] with the means of placing himself or his nominee on the register’ Breskvar’s had first in time – but they lose this priority (based on postponing conduct above) o Albans Pty Ltd was a ‘bona fide purchaser for value without notice’ that bought the land in reliance upon the register and therefore retained priority o Albans Pty Ltd win priority dispute Breskvar’s appeal dismissed Analysis Confirmed Immediate Indefeasibility: o Confirmed the Australian position of immediate indefeasibility of title upon registration – rather than the notion of deferred indefeasibility which had previously been a contentious issue – paved the way for the current position
Image of page 98
o Indefeasibility has the effect of creating the title ‘anew’ – it cures the title of any inherent
Image of page 99
Image of page 100

You've reached the end of your free preview.

Want to read all 114 pages?

  • Left Quote Icon

    Student Picture

  • Left Quote Icon

    Student Picture

  • Left Quote Icon

    Student Picture