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See barwick cj in breskvar theres nothing in ts law

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See Barwick CJ in Breskvar – There’s nothing in TS law that takes away power of equity to grant remedy. Basically said no law on indefeasibility prevents equity, and that the Torrens Acts aren’t needed to give power to courts to use “in personam”, and the remedies that follow, as the courts already have that power in equity (from the old courts of Chancery), and they’re given the power to adjudicate on these matters. 2. Why do we treat IP claims as an exception to indefeasibility? Because it deprives RP of right to use indefeasiblity. 3. What is the legal basis for the exception? SEE ABOVE 4. Equity can grant remedies in personam in both legal and equitable actions 5. The right to seek equitable relief is a ‘personal equity’ For the purposes of naming this exception, doesn’t matter if they’re personal or not. Are sometimes called “in personam claims” BAHR V NICOLAY 1. All judges thought the Bahrs had an in personam claim against the Thompsons, to 30
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31 compel the Ts to sell to them on the terms agreed with N. 2. Mason & Dawson JJ thought it was an express trust 3. Wilson, Toohey & Brennan JJ said it was a constructive trust W & T said it arise from a common intention B said it arose upon repudiation, to stop Ts acting unconscionably MERCANTILE MUTUAL LIFE INS CO V GOSPER 1. Mrs G purchased land using mortgage from MML. First regd variation of mortgage 1985. Second registered variation (the one we look at) 1988 was forged by Mr G. MML regd the 2d variation using Mrs G’s DCT without seeking her permission The mortgagee’s sought possession of the land, with mortgagees arguing that their title was indefeasible because they weren’t parties to the fraud. Mrs. Gosper argued she had a personal equity, and she succeeded at first instance. 2. Held : the mere fact that an instrument is forged is not enough to raise a personal equity (a rejection of the argument used AND accepted at first instance). 3. (By a majority): Unauthorised use of DCT gave Mrs G a personal equity to set aside the 2 nd variation. This gave rise to a personal equity in a way akin to a fiduciary duty. The duty says that a mortgagee should not be allowed to retain a benefit in breach of its obligations, such as getting a variation to a mortgage without letting the concerned party know. Marney J, Kirby J concurred. IP CLAIMS AND INDEFEASIBILITY 1. MUST have a known legal OR equitable cause of action. Examples? 2. Unconscionability: must affect the conscience of the RP and make it unconscionable for the RP to obtain/ retain the reg interest 3. Must arise from act of RP or someone for whom s/he is legally responsible. 4. Cause of action examples: Breach of contract (ie for sale of land) Enforcement of trust/ breach of trust Duress (RP obtained title through duress) Undue influence (RP obtained title through undue influence) Unconscientious dealing (RP obtained title through uncon dealing) 5. Not Forgery by itself per Vassos; Gosper Fraud of an agent outside their scope
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