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The provisions of s 203 of the local government act

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The provisions of s. 203 of the Local Government Act and s. 42 of the Transfer of Land Act 1958 dealt with the same subject matter and were inconsistent. The later Act prevails. Accordingly, the road vested in the council as from 1 November 1989 when s 203 LGA commenced. HORVATH V CTH BANK 1. A default on mortgage, bank sought to sell house, one of the mortgagor’s was a minor. TJ held for mortgagee. Kid appealed, went to court himself, Vic SCoA rejected his appeal, arguing a literalist interpretation of the Act, rather than purposive. 2. S 49(a) Supreme Court Act (minor’s relief provision) – loan contracts entered into by minors are void. This was the later Act. 3. Vic CA held that this was not inconsistent with s 42 TLA as they operated in different spheres. Minor’s relief provision is directed to the enforceability of certain contracts, says nothing about effect of reg’n S 42 deals with effect of registration and does not require a valid instrument or underlying contract VOLUNTEERS: 2 SCENARIOS 35
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36 1. S. 42(1) – nothing about being a purchaser for value. 2. Difference between devisee (takes gift in will) and done (takes an inter-vivos (not by death) interest). Volunteers cover these both. 3. The law DOES NOT protect them. 4. Case 1: R, a rogue, forges a transfer of O’s land to himself and registers it. He then transfers to V, his daughter, who knows nothing about the fraud. V is a volunteer. Can O recover her land from V, who is now the RP? This in an AFFIRMATIVE warranty POLICY – WHO SHOULD WIN AND WHY? 5. Case 2: Take facts of Ogilvie v Ryan. Assume O’s son is now the RP, having been left the property under O’s will. Can Mrs R enforce her common intention constructive trust against the new RP? DO VOLUNTEERS GET INDEFEASIBILITY? 1. Should a RP who has given no value for his or her transfer obtain an indefeasible title, i,e., one that Cannot be rectified for the fraud of the previous RP and Is not subject to prior unregistered interests (‘equities’) that bound the transferor? 2. Yes: NSW, Qld, NT, WA 3. No: Vic, SA, most countries. That is, should only get what donor has, so if donor hasn’t got indefeasible title, then neither should volunteer. 4. Undecided: rest of Aust and NZ 5. Note that under either rule, a purchaser for value dealing with the volunteer RP would get, on registration, an indefeasible title. VOLUNTEERS: WHAT DOES TLA SAY? 1. Section 42: “..the registered proprietor of land shall, except in case of fraud, hold such land subject to such encumbrances as are recorded on the relevant folio of the Register but absolutely free from all other encumbrances whatsoever, except ..” 2. Notice provision (s 43) - no reference to purchaser for value, but does refer to ‘purchase or consideration money’. 3. But s 44(2) (protection of purchasers provision) refers to “any bona fide purchaser for valuable consideration”.
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