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Held court said that the 2 pieces of legislation are

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Held: Court said that the 2 pieces of legislation are dealing with the same subject matter – ownership of the strip of land (specific – creating an interest in land). These 2 pieces of legislation are inconsistent. Public and statutory rights will normally prevail over private rights. Ultimately there is a presumption that the later provision will prevail. Local Gov Act prevailed. Horvath v Cth Bank Facts: Son wished to purchase a house. Loan was to be secured by a mortgage. He was a minor when he signed the mortgage. Defaulted on the loan. Bank sought possession of the house. Horvath’s resisted on grounds that the mortgage was void. Mortgage was void because of s49(a) which states that loan contract entered by minors are void. This is therefore a clash between s42 and s49. Tagel J: If there was an inconsistency the later act (Supreme Court Act) would prevail. But there is no inconsistency. Ormiston J: Distinguishes between a loan and a mortgage. There is a presumption that the legislature does not intend to contradict itself. Observed these 2 provisions and said that they could stand together and dealt with 2 different spheres of activity. S49(a) is directed at the law of contract. Its purpose is to affect the validity of certain contracts and not registration. The TLA is of course directed to the effect on registration. Any issues about the underlying contract being void are irrelevant so far as indefeasibility is concerned. 35
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Phillips J: Mortgage confers indefeasibility upon registration. Notes that s49(a) of the Supreme Court Act has nothing to say provided that the minor is not liable. [Other judges are in essence in agreement with Ormiston J] Rights that are required under other acts can be noted on the folio of the register. S88(2) allows for a charge/interest in land to lodge a notification in approved form. S88(3) not given any further force than under the previous Act. Are the Acts inconsistent? 1. Do they cover the same subject matter? (Horvath – no conflict. Calabro – conflict) 2. Tendency to read down statutes potentially conflicting with the TLA. – presumption that legislature should not wish to contradict itself (Horvath v Cth) 3. Differences between the purposes of the legislation Does it create or destroy rights/interests without registration, Legislation invalidates an instrument – no conflict. 4. Rules of interpretation Specific over general Public over private All else being equal, later provision prevails (Calabro). Volunteers A person who has taken an interest/ gift in property without consideration. May occur through a will. Should a volunteer receive the protection of indefeasibility? There are policy reasons. It varies from state to state.
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Held Court said that the 2 pieces of legislation are...

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