Onus of proof is on the claimant 4 s 111

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Onus of proof is on the claimant. 4. S 111: administrative settlement of claim by application to Registrar. 5. S 110(2): a person entitled under s 110(1) may bring action against Registrar as nominal defendant. 6. Registrar entitled to sue “the person actually responsible”: 109(3)(a) FAIRLESS V REGISTRAR OF TITLE 1. Mr. Doran conned F, persuaded him to transfer his land to Mr. D and his wife for no consideration. Mortgaged land to bank, defaulted, bank knew nothing of the fraud. The registrar argued s. 110 (3), saying that F had no argument, as F was negligent in trusting Mr. D. Alternatively, Mr. D was his (F’s) agent. 37
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38 2. Court (CoA) rejected both of these arguments, saying that any neglect on F’s part would only matter if it was the SOLE cause, or a Major contribution. Court held Mr. D’s fraud was the major cause. Rejected the 2 nd argument (Mr. D being F’s agent), saying Mr. D wasn’t acting within the scope of his authority. CoA said that the scope of fraud of an agent was different here to s. 42. Here, disentitled only if defrauded by agent acting under their ACTUAL authority. 3. S. 110 (4) – the fund does NOT cover the cost of taking matter to court. The Law Reform Commission, whenever they report on the subject, usually make it harder to claim, as Registrar’s always have a sook. TOPIC 6 – UNREGISTERED INTERESTS UNDER TS. BASIS FOR RECOGNITION OF EQUITABLE INTERESTS 1. Torrens hated equity. 2. S. 40(1) – “until registration, an instrument…” Torrens would argue you get no protection, sterile (sterility provision). Trusts are mentioned in the TLA too. Barry v Heider (1914, HCA) 1. Was preceded by a K. Says you can have an equitable interest in unregistered land. Was about whether an unregistered mortgage could be protected in equity. 2. The minority reasoning of the majority (Isaacs) is on the slide and is what we use now. 3. Isaacs J: “Torrens statutes do not touch the form of contracts. Consequently s [40],in denying effect to an instrument, does not touch whatever rights are behind it. Parties may have a right to have an instrument executed and registered; and 38
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39 that right, according to accepted rules of equity, is an estate or interest in the land.” 4. s. 40(1) simply talks about the effect of the instrument. Is merely a piece of paper. Equity enforces the underlying K, NOT the paper. Enforcing the obligation under the K. The instrument is pointless, because in equity, you had an interest at the point of agreeing to purchase (the K). **SETTLEMENT IS THE POINT OF DELIVERY** Corin v Patton 1. Majority judges held that a donee acquires an equitable interest prior to registration, once the donor has done all that is required by the donor to complete the gift [ and to place it beyond his recall – Deane J]. 2. Brennan and Toohey JJ said that a gift is not effective in equity prior to registration, because there is no transaction that is binding on the conscience of the donor and that equity will enforce.
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