words the section is supposed to give the purchaser legal title from settlement

Words the section is supposed to give the purchaser

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words, the section is supposed to give the purchaser legal title from settlement, but before registration in the Torrens system. o For section 43A to be applicable, the person receiving the dealing should have possession of the certificate of title or be in a position to compel its production: J & H Just (Holdings) Pty Ltd v Bank of New South Wales (1971) 125 CLR 546. o The certificate of title must be immediately registrable in the sense that no intermediate dealings need to be registered before it. The person relying on the dealing must also actually promptly lodge it for registration. There should not be a caveat lodged which prevents registration: Taleb v National Australia Bank (2011) 82 NSWLR 489. o In Moffett v Dillon (1999) 2 VR 480 , Brooking J states that priority disputes concerning competing equitable interests are governed by two separate tests: the notice rule & the better equity rule. o The person claiming the protection of the section should have dealt with the registered proprietor. A transfer by direction fulfils this requirement. The dealing should not be void. Although a void dealing will on registration confer an indefeasible title (in the absence of fraud), a void dealing does not fulfil the definition of a “dealing registrable” under section 43A: Jonray Pty Ltd v Partridge Bros Pty Ltd (1969) 89 WN (Pt 1) 568. o The rule in Wilkes v Spooner [1911] 2 KB 473 is also applicable to section 43A and is known as the “successive effect” doctrine. If the mortgagor or purchaser has completed but not registered an interest with a defect or encumbrance taken from the holder of the registered fee simple (i.e. mortgagee or vendor who is a bona fide purchaser for value without notice of the defect or encumbrance), then the purchaser will also enjoy the benefit of protection afforded by section 43A without the defect or encumbrance on the mortgage or fee simple: Jonray Pty Ltd v Partridge Bros Pty Ltd (1969) 89 WN (Pt 1) 568. o Two different views were expressed in IAC (Finance) Pty Ltd v Courtenay (1963) 110 CLR 550. (affect of s 43A) o Kitto J was of the opinion that s 43A provides the same degree of protection against notice before registration that s 43 provides after registration. This equates a ‘deemed legal estate’ with a ‘registered estate’. A person who otherwise fulfils the requirements of s 43A will be protected against notice whenever it is received (before or after settlement). o Taylor J argued a bona fide purchaser for value without notice would receive the protection afforded under s 43A, otherwise a purchaser who had notice of an unregistered interest before settlement would have a priority dispute between two unregistered interests according to the principles in Rice v Rice (1853) 2 Drew 73 . The situation is analogous to old system title, and Taylor’s view has come to be favoured. Barlin Investment Pty Ltd v Westpac Banking Co [2012] NSWSC 699 o Barlin secured an unregistered mortgage from Capital Finance and provided vendor finance of $400,000 to Equipped Constructions (EC) that was used to purchase two units for investment. In November 2004, Barlin lodged a caveat against EC
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  • Fee simple, Deed, Real property law

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