Part 7 and 8

Dollars & Sense Finance v Nathan

- Agrees with Frazer v Walker that fraud exceptions in s 62, 63 are limited to "actual fraud by the RP of his agent" - Disagrees with Frazer v Walker that Registrar powers are more extensive then those available to Courts

Harvey v Prangley

Held it was unconscionable, as Prangley's had fullest knowledge of the existence of grazing rights, they were being exercised at the time of transfer and continue presently - Prangley's obligated to recognise grazing rights on basis of a constructive trust

Smith v Hugh Watt Society

Held unconscionable as Society had knowledge of breach of trust. By the rule changes made, the society deliberately deprived Labour party of their enjoyment of assets - Equity gives rise to in personam claim by virtue of constructive trust or by breach of fiduciary duty (or both)

Indefeasibility

Immediate: purchaser gains indefeasibility when title is registered Deferred: title of RP who acquired registration of a void instrument remains subject to other claims, deferred until transfer to another bona fide purchaser for value is registered

Dollars & Sense Finance v Nathan (in personam)

In personam claims must have 3 elements: a) Must not be inconsistent with objectives of the Torrens system: based merely on notice (constructive notice) of any trust or unregistered interest b) Must involve unconscionable conduct - "something more" than neglect is required c) Must be a recognised cause of action

Tapsell v Murray

Indefeasibility is not given to volunteers who gained title from a fraudulent person - s 63(c)

Supervening Fraud

Is when the RP initially intends to recognise the unregistered interest but changes their mind - dishonesty arises after knowledge

Potts v Anderson

Knew about rights and intended to defeat them BUT - Relied on advice from the solicitor which came out of the blue and was a surprise and therefore not fraudulent - If you have rights then standing on them is not fraudulent - Supervening fraud accepted as a possibility in NZ

Regal Castings v Lightbody

"Volunteer" = someone who has not given valuable consideration for the interest acquired - It is the fact of becoming the registered proprietor without fraud that is paramount to indefeasibility, not whether the RP has given value for the estate/interest Held: Trustees, despite being volunteers, acquired an indefeasible title under s 62 of the Act

Westpac v Clark

Supreme Court endorse the Privy Council's reading of s 62 (in Frazer v Walker) to confer immediate indefeasibility - Immediate indefeasibility states that registration cures a defect in transfer (in fraud) so that the new registered owner (subject to s 62) is now the legal title holder - Deferred indefeasibility states that this validity only comes into effect with the next transfer: when our innocent but vulnerable transferee transfers the property onto someone new

Khan v Hadid

When registered proprietors have not in fact been dealt with there is still indefeasibility

Gibbs v Messer

- Protection the statute gives to persons transacting on the faith of the register is limited to those who actually deal and derive a right from the proprietor whose name is on the register. Those who deal not with registered proprietor (but forger who uses his name) do not transact on the faith of the register - This has been formally overruled

Frazer v Walker

- RP acquires indefeasibility as soon as name is on register = immediate indefeasibility - S 63 LTA: Fraud must have been by the person who acquires title, Walkers were not fraudulent

Tuscany v Gill

- Tuscany knew of demolition clause and assured Gill that he wouldn't demolish it -"I wouldn't do that to you" - Tuscany aware that Gill had made a substantial investment in the restaurant Held: Tuscany's intentions as continuous from the outset, so later events were interpreted to reinforce the view that they had been fraudulent. -Tuscany under a duty as an honest man to either honour his assurance or make further inquiries before defying the demolition clause. By closing his mind to honouring the assurance or making further inquiries, guilty of willful blindness

Emslie v Genuine Investments

Deciding factors: - Emslie's acted foolishly by signing ownership over to GI who they knew were involved with 3rd parties - Failed to caveat properly - Nothing to "specifically alert them" to Emslie's claim (no constructive knowledge Held: these lead to the reversal of priority (Trust has better claim), and the fact that the Trust didn't ask questions is not detrimental here as it wouldn't have been reasonable to expect them to do that

Perkins v Purea

Facts: Perkins had an agreement for sale and purchase of land from Purea and therefore had an equitable interest in the property. However June lodged a caveat and the judge found that she was in the position of a purchaser and thus had acquired an equitable interest in the form of a trust Held: June was first in time and there was little more that she could have been expected to do, but there was more that the Perkins could have done, having been alerted to a problem. The burden was then on the Perkins to who are seeking to deprive the holder of the earlier equitable interest of priority - First interest in time prevails unless second in time can prove it has a better equity

Australian Guarantee Corporation Ltd v CFC Commercial Finance Ltd

Facts: competition between two unregistered mortgages, AGC first in line and CFC second. The lawyers for AGC did not caveat within 4 days, and the lawyers for CFC did search the register - Failure to register the caveat promptly can, but not necessarily will, be conduct that may justify a reversal of priorities of equitable charges over land Held: the combination of the delay in registering the caveat and the failure to obtain the title justify justify the priorities being reversed. CFC win

Mercury Geotherm v McLauchlan

First in time (McLaughlan) prevailed. Contact knew enough (constructive knowledge) to warrant further inquiry whether McLauchlan or his interests had prior existing rights in lot 1 and 2

Burmeister v O'Brien

O'Brien's knew that Burmeister's were being cheated out of their title and carried out actions to aid the process. O'Brien trust purchased the property fraudulently and did so to the knowledge of two of it's trustees

Satnam Investments Ltd v Worger

Satnam had right of first refusal to a property that was sold to Worger - Worger entered agreement to purchase without knowledge of Satnam's rights - Satnam's caveat lapsed - allowed the most tangible and public notice of its assertion of a right to the property to lapse. Worger's entitled to view Satnam as no longer interested - Worger did not acquire the title with the intention of depriving Satnam of it's rights. In fact it was ruled they made appropriate inquiries