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Frasier v walker bresfire v wall favoured immediate

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Frasier v Walker Bresfire v Wall - favoured immediate indefeasibility Chasfield v Taranto (don’t read) (Vic Supreme Ct) – resurrected deferred approach because of wide reading of fraud in s44(1). Means fraud by anybody. Prevails over S42(1). Vassos v State Bank of SA Pyramid Building Society v Scorpion (overruled Chasfield). Current law: Immediate indefeasibility applies ( Pyramid ) Fraser v Walker (READ) Facts: Mr and Mrs Fraser had a property. Mrs Fraser arranged for a loan. She executed a mortgage and signed by the solicitor. She said that her husband had already signed at home. The solicitor’s clerk attested to having witness both signatures. Mrs Fraser defaulted on the loan and the Mudonsky’s defaulted on their power of sale as mortgagees. They actually sold the property without first taking possession. It was purchased by someone called Walker who became the registered proprietor. Mr Fraser refused to give up possession. Walker sued for possession. Fraser counterclaimed for a declaration that his interest is unaffected by either the mortgage or the subject of sale. Argued on the basis that the mortgage was void because there was a forgery. [either doctrine it seems that Walker should win because he is one step away from the fraud]. Fraser’s lawyers argued that the provisions of the NZ Act said that the mortgagee could.. The privy council could not accept such an argument because it would undermine the whole system of registration. It is the registration and not its antecedents which vests and divests title. This means that registration of a void instrument would be effective to vest and divest title. Held: Indefeasibility is a convenient description of the immunity from attack. This conception is central to the system of registration. Indefeasibility does not protect against any claim whatsoever. A RP may have claims brought against him under the specific provisions of the Act. The RP may also be exposed to claims in personum – the conduct of the RP has lead to their personal liability arising. Walker was not subject to the fraud exception. PC: Favoured immediate indefeasibility. Reiterated that the principle of immediate indefeasibility does NOT deny the right to bring an action in personum. Actions of a personal character can be brought against a RP. The RP takes his interest subject to interests that he created. Registration of a void instrument passes title. Mortgage was void due to forgery. 25
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Fraser v Walker was applied in Breskvar v Walt Vic has S44(1) which has lead to some questioning about immediate indefeasibility. Breskvar v Walt Facts: B were RP’s of land, sought a loan. Borrowed money from P and loan was secured by a mortgage. The mortgage was created by way of deposit of the title deeds with the mortgagee. It is an equitable mortgage. B did not just deposit the CoT (then called duplicate). They gave the mortgagee a signed transfer which listed as consideration $1200 – which was the amount of the loan. It was signed but had not been completely filled out. P had not signed. P was only meant to do anything unless there was a default. The Stamps Act
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