Lecture - Exceptions to Indefeasibility Wednesday, 24 January 2024 1:01 am - Fraud - In personam - Adverse possession 1. Fraud Section 184(3) LTA - Est indefeasibility for registered interests Except to .. What is fraud? - Not defined in statute, but in: Butler v Fairclough (1917) 23 CLR 78 = 'personal dishonesty or moral turpitude' Waimiha Sawmilling Company Limited v Waione Timber Company Limited [1926] AC 101, 106 (NSW CASE) = 'If the designed object of a transfer be to cheat a man of a known existing right, that is fraudulent .. ' - look for 'designed cheating' - Kinda high bar to reach Grgic v ANZ Banking Group Ltd (1994) 33 NSWLR 202 · Worked out the parameters of this type of fraud · Mortgage fraud, son took out mortgage on behalf of dad . Dad sued bank - why? Because bank has registered interest w/ their mortgage over dad's property ; so non-defeasible - So dad would have to pay the mortgage; he claimed the bank was fraudulent - But bank didn't actually know it wasn't the dad, needed to be 'designed cheating' to be fraud - bank just less than merticulous Young v Hoger [2001] QCA; like not doing ur due dilligence - Argued that the solicitor who was being sued for not checking docs were legit committed wilful blindness - Qld court of appeal didn't find wilful blindness - can't just be not making further inquiries bcause u forgot or CBF, but because you know you'd finsd smthn bad
ions .
Fraud by whom? - Owner? Tenant? Mortgagee? · S 184 doesn't apply if there's been fraud by the registered proprietor only (or their agent - look at case law for this), regardless of if there's fraud by the person who got the Reg Prop their interest - Reg prop is just anyone w/ a registered interest remember - can be lessee or mortgagee Fraud against whom? - Current or previous holder of a registered interest . Now includes ppl w/ unregistered interest: Loke Yew v Port Swettenham Rubber Co Ltd [1913] AC 491 (MALASYAN CASE, they have torrens system tho so its relevant) Fraud when? . In the process of obtaining the interest: Waimiha Sawmilling Company Limited v Waione Timber Company Limited ; Loke Yew v Port Swettenham Rubber Co Ltd Court's powers if fraud is found S 187(2)(b) Land Title Act 1994 (Qld): Registrar can correct register if incorrect because of fraud Compensation for Fraud s 188 LTA: The claimant is entitled to compensation from the State for the deprivation LOOK AT S185 FOR 'SHORT' LEASES - Don't need to be registered to be covered by indefeasibility Adverse Possession - LTA Sch 2 To establish title by adverse possession under Torrens title: 1. Common law elements of adverse possession established