L5 Exceptions to Indefeasibility Indefeasibility "no subject to being lost annulled or overturned" Registered = legal = protected Unregistered = equitable = shaky protection Harsh? "Immediate" indefeasibility of title - is a harsh doctrine. This is the point. Any other approach diminishes the effectiveness of registration and compels that very investigation into the History of transaction and titles that Sir Robert Torrens was at pains to abolish o P Butt, 'Indefeasibility and Sleights of Hand' (1992) 66 ALJ 596 at 596 Section 184(3) Land Title Act Subdivision B Indefeasibility 184 Quality of registered interests (1) A registered proprietor of an interest in a lot holds the interest subject to registered interests affecting the lot but free from all other interests. (2) In particular, the registered proprietor- (a) is not affected by actual or constructive notice of an unregistered interest affecting the lot; and (b) is liable to a proceeding for possession of the lot or an interest in the lot only if the proceeding is brought by the registered proprietor of an interest affecting the lot. Current as at 3 July 2017 Authorised by the Parliamentary Counsel Page 151 Land Title Act 1994 Part 9 Registration of instruments and its effect [s 185] (3) However, subsections (1) and (2) do not apply- (a) to an interest mentioned in section 185; or (b) if there has been fraud by the registered proprietor, whether or not there has been fraud by a person from or through whom the registered proprietor has derived the registered interest.
This refers to quality of registered interests ... Questions about Fraud What is fraud? Fraud by whom? Fraud against whom? Fraud when? What is fraud? o Not defined in the statute (it just says ; where there has been fraud by the registered proprietor ... ) o Personal dishonesty or moral turpitude - Butler y Fairclough (1917) 23 CLR 78 o If the designed object of a transfer be to cheat a man of a known existing right that is fraudulent o Waimiha Sawmilling Compnay Limited v Waione Timber Company Limited [1926] AC 101 106 Example o Xavier tricks his father into transferring that family home to him. His father thought he was signing forms to entre a nursing home Cases reveal it is a high bar Grgic v ANZ Banking Group Ltd (1994) 33 NSWLR 202 o Grgic Snr owned. o Grgic Jnr and friend registered mortgage o Bank attested that the friend was Grgic snr. o AND bank found to have been 'less than meticulous' but not fraudulent Young v Hoger [2001] QCA o Mother and daughter took out extended loans in the property co-owned by father wihtout his knowledge o Solicitor for mortgagee failed to speak with her father o Was the solicitor fraudulent Was there wilful blindness? o Where 'suspicions were aroused and [the RP] abstained from making inquiries for fear of learning the truth: Assets Co v Mere Roihi Fraud by Whom? o Owner? o Tenant?
o Mortgagee? Section 184 Quality of