Butterworths austn property law dictionary 3 egs see

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Butterworths Austn Property Law Dictionary 3. Egs: see page 28 of reading guide Is a mere equity caveatable? 1. In Swanston Mortgage v Trepan Investments , the mortgagor sought to caveat on basis of his right to set aside the mortgagee’s improper sale. 2. Vic CA held that the mortgagor’s right to set aside was an equity, not an equitable interest, until satisfied by the granting of relief, and not a caveatable interest. 3. Mortgagor was still RP. Could that interest support a caveat? 4. Vic CA said: a RP cannot caveat his own title. He has to have a separate and distinct interest. Competing equitable interests under the Torrens System 1. The English legal system allows you to create two separate interests that are in competition with each other. Instead, it becomes a matter of priority. 2. Caveats halt registration of an inconsistent dealing 3. This leads to a priority competition between 2 unregistered interests 4. What does it mean to say one interest ‘has priority’ over another interest? Or that the earlier interest is ‘postponed’? Basically, the winner has priority, the loser is “subject-to” the priority holder. What rule do courts apply? 1. TLA provides no rule for deciding which of the competing unregistered interests has priority 2. Caveats per se do not determine priority (although they are relevant) 3. Courts apply general law priority rules Think of it like this: GL is what’s applied when deciding caveats and their worth. GL land is Kansas, Torrens is Oz. A caveat means that if you try to get to Oz from Kansas (by transfer of title), you can’t, as the caveat’s in the way, and you’re working within GL land rules. 40
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41 Prior v Subsequent Equitable interests: Rice v Rice 1. Someone created a equitable mortgage, with a SE K that’s oral, which creates the mortgage. Vendor has lien, which is an equitable interest over the land itself. 2. Kindersley VC states the ‘better equity’ rule: as between persons having equitable interests, if their equities are in all other respects equal, priority of time gives the better equity. 3. Look at 3 things in determining whether the equities are equal. 1. nature and condition of the respective equitable interests 2. circumstances and manner of acquisition of each interest 3. the whole conduct of each party Does the ‘better equity’ formulation apply to TS disputes? 1. Lord Wright in Abigail v Lapin said ‘The opinion of the Vice Chancellor [in Rice v Rice] no doubt has not been approved in so far as he says that priority in time is only taken as the test where the equities are otherwise equal; it is now clearly established that prima facie priority in time will decide the matter unless, as laid down by Lord Cairns in Shropshire Union Rys and Canal Co v the Queen LR 7 HL 496, that which is relied on to take away the pre- existing equitable title can be shown to be something tangible and distinct having grave and strong effect to accomplish the purpose.’ BASICALLY, IN EXAM MENTION THAT THEY BOTH EXIST, BUT THAT THEIR PRACTICAL EFFECT IS LIMITED.
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