4 the mere fact that a mortgage was forged does not

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4. The mere fact that a mortgage was forged does not give rise to a personal equity to have it removed from the register. GRGIC- CAUSES OF ACTION 1. A number of causes of action (which may found an In Personam claim) were argued unsuccessfully on these facts: Tort of deceit Misleading and deceptive conduct (s 52 Trade Practices Act) Breach of statutory duty (re attestation and certification requirements in Torrens statute) Breach of duty of care in checking ID IP- QUESTION 1. Does the IP exception undermine indefeasibility? Yes 2. Does the IP exception undermine the limits on the fraud exception? S42. ESTATE OF REGISTERED PROPRIETOR PARAMOUNT – PARAMOUNT INTERESTS. (1) Notwithstanding the existence in any other person of any estate or interest ... the RP of land shall, except in case of fraud , hold such land subject to such encumbrances as are recorded on the relevant folio of the Register but absolutely free from all other encumbrances whatsoever, except (might occur where you accidentally get someone else’s already registered land) (a) the estate or interest of a proprietor claiming the same land under a prior folio of the Register; (b) as regards any portion of the land that by wrong description of parcels or boundaries is included in the folio of the Register or instrument evidencing the title of such proprietor not being a purchaser for valuable consideration or deriving from or through such a purchaser. (2) Notwithstanding anything in the foregoing the land which is included in any folio of the Register or registered instrument shall be subject to— (a) the reservations exceptions conditions and powers (if any) contained in the Crown 33
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34 grant of the land; (b) any rights subsisting under any adverse possession of the land; (c) any public rights of way; (d) any easements howsoever acquired subsisting over or upon or affecting the land; (e) the interest (but excluding any option to purchase) of a tenant in possession of the land; (Basically a LEASE) (f) any unpaid land tax, and also any unpaid rates and other charges which can be discovered from a certificate issued under section three hundred and eighty-seven of the Local Government Act 1958 , section 158 of the Water Act 1989 or any other enactment specified for the purposes of this paragraph by proclamation of the Governor in Council published in the Government Gazette— notwithstanding the same respectively are not specially recorded as encumbrances on the relevant folio of the Register. 1. s42(2)(a) Reservations contained in the Crown grant (such things as Crown wanting to mine on land) 2. s42(2)(b) Adverse possession (Most Aus jurisdictions don’t consider this a PI). In Vic, if register title, but have an AP, time does NOT start again here. This is contrary to indefeasibility, and puts onus on RP to check the land prior to, or after, purchase. And considering AP can’t do so in secret, then assume purchaser would notice.
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