oLLB301 - WEEK 6 TUTORIAL - EXCEPTIONS TO INDEFEASIBILITY Question 5.1 1 Issue: 2. State the Law: 3. Exceptions: (a) Fraud 'personal dishonesty or moral turpitude' "If the designed object of a transfer be to cheat a man of a known existing right, that is fraudulent ... ' (i) Has to have been committed by the registered proprietor for their benefit (ii) Actual fraud is required Does Faye have a legal interest in the property? Section 184 infers the quality of registered S184 & 185 interests in a property. The exception to a registered title, section 184(3)(a)-(b), identified an interest outlined in section 185 or by fraud. At first instance, Faye has a legal interest because of the successful registration of the property under her name. However, there are exceptions to registration that may jeopardise this legal interest. [insert general statement about exceptions to indefeasibility] Faye is the registered proprietor and she committed fraud for her own benefit. One party does something to deprive another of their interest for their own benefit. Case authority/ section of Act LTA s 184(3)(b) Butler v Fairclough (1917) 23 CLR 78; Grgic;Waimiha Sawmilling Company Limited v Waione Timber Company Limited [1926] AC 101, 106 Assets Co v Mere Roihi
(iii) Fraud must occur prior to registration *only has to be considered on the facts Here, we don't have an agreement where one party reneges on it - therefore not applicable on these facts. (iv) 'personal dishonesty or moral turpitude' (v) Remedies Correction of register. (having the property transferred back to Veronica) (b) LTA. (vi) Sub-conclusion Veronica's title to the property will be reinstated or in alternative compensation (market value). (b) Exception 2 [identify the relevant exception here] (i) [insert requirement 1] (ii) 3rd party in receipt of trust property (iii) Sub-conclusion] (c) Exception 3 [identify the relevant exception here] (i) [insert requirement 1] (ii) [insert requirement 2] (iii) Sub-conclusion (d) [Other exceptions ?? ] Personal dishonesty has occurred as Faye has had the property transferred into her own name without her sister's knowledge, therefore fraud has occurred. Fraud occurred prior to registration, but for Faye's fraud the property would not have been transferred into her name Minority decision in Bahr v Nicolay (No 2) (1988) 164 CLR 604 Compensation $$$$$$ - Veronica would be Section 188 LTA. entitled to the market value of the property Section 187(2)
(e) Conclusion: Question 5.2 1. Issue: Does James have a legal interest in the property? 2. State the Law: Section 184 infers the quality of registered S184 & 185 interests in a property. The exception to a LTA registered title, section 184(3)(a)-(b), identified an interest outlined in section 185 (failure of mortgage, in personam, etc.) or by fraud. 3. Exceptions: [insert general statement about exceptions to indefeasibility] (a) Fraud See above (i) Has to have been committed by the registered proprietor for their benefit (ii) Actual fraud is required (iii) Fraud must occur prior to registration (iv) [Includes representation to uphold an agreement but later renege on