Yazgi v permanent custrodians ltd 2007 nswca 240 1

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YAZGI V PERMANENT CUSTRODIANS LTD [2007] NSWCA 240 1. This case was brought down last week 2. The mortgage was void against Mrs. Yazgi, thus the mortgage secured nothing, so she got half the proceeds. Affirms Tsai case, but takes it further. BOGDANOVIC V KOTEFF 1. SK had entered into an agreement with B, which gave rise to an equitable interest. On death of SK, son NK inherits and registers (volunteer). The effect of the registration of the volunteer gave him a better status than the donor even had. Court has NO policy justification for this. 2. NSWCA said B’s interest would have been enforceable against SK and his executors, but not against NK as new RP. 36
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37 3. Court referred to cases on immediate indefeasibility, which read [our s. 42] as paramount, so no implied requirement of ‘purchaser for value’. Held this because it simplifies the TS by reducing exception of volunteers, does the job of a ‘mistake and improvement’ provision. RASMUSSEN V RASMUSSEN (VSC) 1. Single judge of the Vic SC. Agreed that each son would get his own block. Ernest was the P, got promised the block “Markies”, but remained registered in Paul’s land, So Ernest worked on it, Paul did, gave land to Ernest’s wife and his son. 2. Paul held ‘Markies’ under a common intention construction trust for his son Ernest. P devised Markies to E’s son Harold, who registered. 3. Held: As a volunteer, H took subject to E’s equitable interest. Only a purchaser for value gets the benefit of s 42. Coldrey J held that there was a CICT (same result if equitable estoppel). Thus, Ernest had an equitable interest in Markies. Harold took the interest, but subject to Ernest’s CICT. This involved saying s. 42 wasn’t applicable. To aruge his judgment, he said cases like Breskvar v Wall weren’t about volunteers, so they weren’t authority. For 3 rd point (below), he used a purposive approach to legislation, saying that the Act intended to protect the purchaser. 4. Coldrey J rejected Bogdanovich v Koteff Cases on immediate indefeasibility did not deal with volunteers HCA in Bahr v Nicolay referred to ‘purchaser for value’ Unfair that volunteers should defeat prior interest holders FARAH CONSTRUCTIONS PTY LTD V SAY-DEE PTY LTD (2007) 236 ALR 209 1. High Court unanimously, in obiter, appears to say that registered proprietors, even if they were volunteers, would take free of a prior unregistered interest. 2. No reasoning is given for this conclusion. However it may be taken as confirming the Bogdanovich v Koteff ruling. COMPENSATION OR INDEMNITY – SEE MY LECTURE NOTES 1. Fees and penalties go into Consolidated Fund 2. S 110(1): for what losses an indemnity is payable. Losses through fraud are impliedly included. 3. BUT: No indemnity is payable “where the claimant his legal practitioner or agent caused or substantially contributed to the loss by fraud neglect or willful default”: s 110(3)(a).
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