May occur through a will should a volunteer receive

Info icon This preview shows pages 36–38. Sign up to view the full content.

View Full Document Right Arrow Icon
May occur through a will. Should a volunteer receive the protection of indefeasibility? There are policy reasons. It varies from state to state. Although in NSW and Vic s42 is identical there are different positions. In Vic ( King v Smale ) registered volunteers do not receive indefeasibility. S42 does not mention whether you are a purchaser / volunteer. S43 does not talk about a purchaser but does mention purchase/ consideration. S44(2) any bona fide purchaser for value of consideration. King (1958) Adam J: Registered volunteers do not require indefeasibility from prior unregistered interests. He observed all of the provisions which talk about the indefeasibility of purchasers and concludes that s42 means “purchasers for value” when they become registered should receive indefeasibility. NB: This case was decided where deferred indefeasibility was the fashion. S42 not so important any more. 36
Image of page 36

Info icon This preview has intentionally blurred sections. Sign up to view the full version.

View Full Document Right Arrow Icon
Danovitch Facts: Cotect was the RP. Sold a life estate to a woman pursuant to a specifically enforceable K of sale. Left everything to his son in his will. Son became RP of the land. Woman claimed that the son was subject to her prior equitable interest because he was a volunteer. Priestly J: A registered volunteer had an indefeasible interest and was not subject to prior unregistered interests. He decided upon his position because of immediate indefeasibility as per Frasier v Walker . This makes indefeasibility central to the registration. Questioned whether a volunteer with notice might not be in the same position. Facts: Father was a RP. Worked farm with 4 sons. Each worked on the basis that they would each receive a portion for the farm. To save on stamp duty he left the property to his grandson. Ernie was unhappy and claimed that he had a prior unregistered equitable interest pursuant to a common intention constructive trust. Because Harold took as a volunteer his interest was not indefeasible. Held: Volunteers do not receive indefeasibility. Critical of NSW approach. Coldrie J: Is it fair to allow someone who has not paid anything for their rights over a prior equitable interest holder who has paid for their rights. Farrah Constructions v Say-Dee (2007) Facts: Wife and daughters were registered volunteers. Trust funds were said to be misapplied. Held in obiter: suggested that the NSW position could gain some ground. Should a volunteer receive indefeasibility? May encourage fraud to apply. Why should a failure of consideration be an issue! Compensation S110 - If your solicitor has wronged you, you may claim against the solicitors indemnity fund. - An inability to claim may result from overriding legislation, a shortfall for a value claimed by a mortgagee. - You can apply to the registrar at s111. The registrar will take it to court. - Registrar will seek to recover from the person responsible.
Image of page 37
Image of page 38
This is the end of the preview. Sign up to access the rest of the document.

{[ snackBarMessage ]}

What students are saying

  • Left Quote Icon

    As a current student on this bumpy collegiate pathway, I stumbled upon Course Hero, where I can find study resources for nearly all my courses, get online help from tutors 24/7, and even share my old projects, papers, and lecture notes with other students.

    Student Picture

    Kiran Temple University Fox School of Business ‘17, Course Hero Intern

  • Left Quote Icon

    I cannot even describe how much Course Hero helped me this summer. It’s truly become something I can always rely on and help me. In the end, I was not only able to survive summer classes, but I was able to thrive thanks to Course Hero.

    Student Picture

    Dana University of Pennsylvania ‘17, Course Hero Intern

  • Left Quote Icon

    The ability to access any university’s resources through Course Hero proved invaluable in my case. I was behind on Tulane coursework and actually used UCLA’s materials to help me move forward and get everything together on time.

    Student Picture

    Jill Tulane University ‘16, Course Hero Intern