Property Law 2 Notes

 Indefeasibility * The conclusiveness of the register & bars ‘retrospective investigation of title’ aimed to achieve security and simplicity in matters of title to land * Protection of purchaser – they are ‘paramount from unregistered interests’ but still are bound by registered interests * Frazer v Walker – ‘indefeasibility of title is convenient description for the immunity from attack by adverse claim to the land or interest in respect of which he is registered, which a registered proprietor enjoys’ Real Property Act 1900 Indefeasibility| Statute| s 42 (1) – Key indefeasibility provisionThe registered proprietor’s title is not to be postponed against anyone (they are paramount from unregistered interests) * Paramount from unregistered interests.

* Subject to exceptions – i. e.previously registered interest in his land and frauds 40 (1) – Manual folio shall be conclusive that the person named in the folio as the registered proprietor is the registered proprietor of that estate or interest (evidence of title) * Not a major source of indefeasibility, but is designed to assist in relation to the proof of title * Should be read subject to the key indefeasibility section (s42)s 45 –Extension of protection: for registered proprietor who is a bona fide purchaser for value * this Act cannot be interpreted as to leave them open to a court action for recovery of damages or for ejectment or for the possession or recovery of land, on the ground that vendor may have been registered through fraud or error| | Case law| * Immediate indefeasibility: prevails in NSW:

Frazer v Walker [1967] * Affirmed in Breskvar v Wall (1971) * Torrens system is ‘not a system of registration of title but a system of title by registration’ * An indefeasible title can be acquired by virtue of a void transaction or instrument (not confined to forgery) * Exceptions: in situations as outlined in Gibbs v Messer [1891] – a fictitious person cannot by registration of a forged deed acquire a valid title – the mortgage attached to the title, although registered in good faith, is also defeated * Asset Co Ltd v Mere Roihi – narrowly defined Gibbs and confined it to its own facts * Garofano v Eliance Finance Corp – Gibbs is only good law where the forgery is in the name of a fictitious person ( fake/made up person) * Volunteer registered proprietors are also protected under the indefeasibility section in NSW (Bogdanovic v Koteff)| Notice| Statute| s 43 (1).

– Except in the case of fraud no person dealing with the registered proprietor shall be affected by notice (actual or constructive) of any trust or unregistered interest * i. e.‘the knowledge that any trust or unregistered interest is in existence shall not of itself be imputed as fraud’ * protect from equitable fraud (constructive notice – if one does not know but ought to have known) which was not protected in old system land| | Case law| * Purpose: (Templeton v Leviathan (1921)) * To prevent certain equitable principles applying to registered land * Narrow accordingly the definition of ‘fraud’ | | s 56 C| Mortgagee must confirm identity of mortgagor: before presenting a mortgage for lodgement, the mortgagee must take reasonable steps to ensure that the person who executed the mortgage as mortgagor is the same person who is, or is to become, the registered proprietor of the land.

* Cancellation of recordings in the Register if mortgagee committed fraud, failed to comply with this section or had actual or constructive notice of the fact that the mortgagor is not the same person as the soon-to-be RP. (subsection 6) – discretion of Registrar-General * Commences 1/11/11 – assumes it has commenced * The regulation on the procedure is not onerous (no face to face) – easy for forgery | | | | Immediate vs. Deferred indefeasibility (Policy) | Immediate indefeasibility| Deferred indefeasibility| Definition| Confers a good title ‘immediately’ on registration regardless of whether the instrument is forged or the transaction is being ultra virese. g. original RP (A) rogue forges.

A’s signature and transfers property to new RP (B) * B’s title is indefeasible | Good title is conferred by virtue of a valid transactioni. e..if the instrument of the transferor is a nullity, the transferee is unable to defeat a claim by the true owner; indefeasibility is deferred to the next person to be registered as owner of the lande. g. original RP (A) rogue forges A’s signature and transfers property to new RP (B) transfer property to newest RP (C – bona fide purchaser) * B’s title is not indefeasible but C’s title is. | Debate| Essentially, it is a debate on how to allocate loss arising from title frauds| How law should allocate loss – pg 469 (O’Connor)|.

* Dynamic security: provides an incentive to acquire assets for productive purposes * Provides ‘ease of transaction’ – make conveyance ‘quicker, cheaper and easieri. e.with deferred indefeasibility, purchasers must expend time and resources on title investigation in an attempt to remove insecurity | * Static security: protect the interests of existing owners in a third part property dispute with purchasers * Preserves the existing allocation of property * Without static security, there would be little incentive to invest in improving land or bringing it into production| | Sackville – argue for immediate indefeasibility (pg 490) * Most convincing rationale: no purchaser should be required to investigate the history of the vendor’s title or make inquiries that are burdensome or difficult * Cost and complexity of all conveyancing transactions

* Security of title: both undermines security of title somehow * To a lesser extent, court may be influenced by the belief that it is rather easier for a RP to protect himself against forgery than for a purchaser to do so| Lawrence v Maple Trust and Wright – argue for deferred indefeasibility (pg 491) * Under immediate indefeasibility – innocent homeowner has no defence to a mortgagee’s action for possession * Homeowner being evicted from their specific home is contrary to the notion of real property.

To take the property from lender does not offend that same notion * Homeowner has no opportunity to avoid the fraud. Whereas a lender will – deferred indefeasibility will encourage lenders to ve vigilant * Problem solved by s 56 C? | Cases| * Asset Co v Mere Roihi (1905) * Creelman v Hudson’s Bay Insurance Co (1920) * Boyd v Mayor (1924) – new Zealand case * Frazer v Walker (1967) * Breskvar v Wall (1971) * Garofano v Reliance Finance Corp (1992)| * Gibbs v Messer (1891) – fictitious person * Clement v Ellis (1934)| Umbrella of indefeasibility What terms are protected by the registration for second schedule rights? * Torrens’ priority rule – order of registration (s 56 of RPA) * i. e.

‘the lease is entitled to priority over the mortgage since the former was registered before the latter’ (Mercantile Credits) * Priority date for renewed lease (pursuant to option to renew) is the date of registration of a lease containing the option (Mercantile Credits v Shell) Indefeasibility of terms: * The registration of an instrument does not in all cases give priority or the quality of indefeasibility to every right which the instrument creates * For a term to be entitled the same priority upon registration, it must be ‘so intimately connected’ with the estate or interest in land given – ‘it should be regarded as part of the estate or interest’ (Mercantile Credits v Shell) | Indefeasible | Defeasible| Rule | If it is ‘so intimately connected with the term granted… that it should be regarded as part of the estate or interest’| If it is ‘a personal right by a covenant which…

in no way affects the estate or interest in land’| Examples| * Lease * Option to purchase (in statute s 53(3) but not in cases) * Right of renewal (Mercantile) * Rent (Karacominakis v Big Country) * Mortgage * Amount of charge cited on the mortgage document (Yazgi)| * Lease: * Piano lessons – although important to the leasor it is not intimately connected * Statutory illegality of the option to renew (Travinto Nominees v Vlattas) * Mortgage: * Covenant of guarantee (Consolidated Trust v Naylor) * Personal covenant – contractual obligation that the mortgager must pay (Grgic v Australia and NZ Banking Group) * Illegal covenants/ provision (Benmar Properties v Makucha).

* Forged collateral documents (Yazgi)| Void mortgage * quantum of charge i. much is charged on the land * The charge on the land depends on the wording of the documents (Yagzi v Permanent Cusodians) * Statement of the amount lent – the production of the mortgage document itself constituted prima facie evidence of the existence of debt * No statement of the amount lent – proof of the indebtedness and that the indebtedness is secured by the mortgage had to be established in some other way * Methodology is the same but the answer depends on interpretation (see difference in judgements in Perpetual Trustees Victoria Ltd v Van den Heuvel).

Situation| Rule| What does the mortgagee get? | Cases| Mortgage with a statement of amount lent (void – e. g. forged or minor)| * The mortgagee has indefeasible title * The personal covenant contained in the mortgage is not enforceable against the innocent party| If the property is worth less than the money owed * The mortgagee cannot ask the innocent party for the rest of the money. * Loan covenant will still be enforceable against the forger.

| * Grgic v Australia and NZ Banking Group * Perpetual Trustees Victoria Ltd v Tsai * Queensland Premier Mines v French| Mortgage refers to another (void) document specifying the amount of the loan| * No valid document with an amount – no debt secured by the mortgage * Equitable mortgage against the forger | Mortgagee sell the property * The innocent party receives his/her share of the proceeds * The forger’s half will be given to the mortgagee * The forger will also be liable for the rest of the debt| * Yagzi v Permanent Cusodians| Mortgage states that the amount owing is ‘all moneys lent to any one of more of you’ | * Does not refer to documents * The charge on the property is all moneys owed| Mortgagee sell the property * Mortgagee takes from the proceeds all the moneys owed| * Yazgi v Permanent Cusodians * Perpetual Trustees Victoria Ltd v Van den Heuvel| Volunteers.

* In NSW, a registered proprietor who acquired the legal estate as a volunteer is protected under the indefeasibility provision (Bogdanovic v Koteff) Volunteer| Protected by indefeasible provision| Not protected by indefeasible provision| Jurisdiction| * New South Wales – by interpretation * Western Australia (followed NSW) * Queensland (statute) * Northern Territory (statute)| * Victoria – by interpretation * South Australia (statute)| Cases| * Bogdanovic v Koteff (1988) * Farah Construction v Say-Dee – decision is obiter dicta | * Rasmussen v Rasmussen (1995)| Application |.

Registered proprietors who are volunteers are protected the same way as registered proprietors who acquired the legal estate for value | Volunteers obtains a registered title that is as good as, but not better than that of the transferor * If the transferor’s title was subject to equities enforceable against the transferor in personam, the equity would survive the registration & be enforeceable against the volunteer * If the transferor’s title was defeasible for fraud, the volunteer would take only a defeasible titleThe infirmities in the volunteer’s registered title would not affect a subsequent purchaser for value| Rationale | *.

Certainty and efficiency of the register – ‘each registered title comes from the fact of registration’ * Those registered with a forged document is able to have an indefeasible title, it is unfair to deny volunteers of it * Volunteers can incur high litigation cost – financial loss | * Torrens system is ‘predominantly a purchaser’s system’ – no need to protect volunteers who do not bear the risk of financial loss faced by purchasers (Baalman – Singapore) * Unfair for those holding equitable interest – the transferor can use this to strip himself from equitable interests on his property (dubious dealings) arguable| Note: certain sections in the RPA employs the term ‘purchaser for value’, therefore explicitly excluding volunteers e. g. s 45 Exceptions to indefeasibility.

Hinde, ‘Indefeasibility of Title since Frazer v Walker’ gives five main categories of exceptions (& limitations) to the indefeasible title of a registered proprietor i) Express exceptions created by the Torrens legislation itself ii) The Registrar’s power to correct the register in certain circumstances iii) Specific exceptions imposed by other statutes * e. g. those authorising the compulsory acquisition of land by public authorities or those dealing with encroachment of buildings iv) Overriding statutes – on general principles of statutory interpretation affect the Torrens legislation by subjecting the registered proprietor to interests not noted on the register v) Exceptions permitted by the courts * e. g. the in personam exception Fraud The fraud exception|.

Statute| s 42(1) – indefeasibility ‘except in case of fraud’ s 45 (2) – fraud of an earlier RP will not taint a present RP’s title (if that RP is bona fide purchaser for value) s 3 – definition: includes fictitious person (unhelpful)| Common Law| General : Loke Yew v Port Swettenham Rubber * Where the rights of third parties do not intervene, no persons can better his position by doing what is not honest to do. One cannot rely on the registration when seeking to enforce rights which formally belong to them only by reason of their own fraud. * Fraud made ‘the dealing void ab initio’ – appropriate order would have been one for direct rectification of the register since the registrant acquires ‘no interest’| | Fraud: how bad must it be?

* Statutory s 42 fraud – embraces less, not more than the species of fraud which, at general law, founds the recession of conveyance’ (Bank of South Australia v Ferguson)Rules: * Fraud requires something in the nature of personal dishonesty or moral turpitude (Wicks v Bennett; Butler v Fairclough) * Requires dishonesty in sense of a wilful and conscious disregard and violation of the rights of others (Waimiha Sawmilling v Waione Timber (NZCA) * Fraud can be based on knowledge or wilful blindness (abstaining from making inquiries for fear of learning the truth) of the fraud (Asset Co v Mere Roihi) * If there was no knowledge, even if he would have known if he was more vigilant, will not constitute fraud * Wilful blindness does not extent to negligence and want of due care in making inquiries. Thus, it is not fraud.

(Pyramid Building Society v Scorpion Hotels) * Mere knowledge of an unregistered interest is not itself fraud (s 43 notice section – Bank of South Australia v Ferguson, RM Hosking Properties v Barnes) * Distinguish knowledge of an unregistered interest and knowledge of a fraud * Knowledge that a prior interest will be defeated by the registration is not itself fraud (Mills v Stockman) * Knowledge that the RP is acting in breach of trust or is wrongfully destroying a prior interest does amount to fraud (Waimiha)| | Whose fraud? * Fraud that will impeach the registered title must ‘be brought home to the person whose registered title is impeached or to his agent’ (i. back to the person whose title you are challenging) (Asset Co v Mere Roihi)Agency (Schultz v Corwill Properties).

* Agent participated in fraud – principal is responsible if the agent is ‘acting within the scope of his actual or apparent authority’ * mere fact that the principle, by appointing the agent, gives that agent the opportunity to behave fraudulently, does not, without more make him liable * Agent have knowledge of fraud – principle responsible if the knowledge is imputed to the principle * Where the nature of the contract involves the duty of the agent to communicate any matter to the principle, an irrebuttable presumption arises that the agent communicated the matter to the principal * if it’s the agent’s own fraud or if the agent was a party to a scheme of fraud, then the principle is permitted to give evidence to rebut the above presumption| * Examples: Cases where an agent falsely attested to the RP’s signature to a mortgage – test whether there is any dishonesty distinguishing from mere ignorance (culpability vs.

Stupidity – depends on characterisation of the defendant) * Westpac Banking Corp v Sansom * Facts: bank officer’s false attestation, that the husband signed the mortgage in his presence when he did not. He thought it was a real signature. * Held: constituted fraud * Grgic v ANZ Banking Group * Facts: bank officer witnessed the signature and saw the cert of title. Also the client was introduced to the bank officer in the name of the RP by an established customer to whom the RP was known. * Held: did not amount to fraud as he did not act with conscious knowledge of falsity nor reckless indifference. * Russo v Bendigo Bank * Fact: young law firm clerk falsely attested to Mrs Russo’s signature on the mortgage.

Although the solicitors have informed her that she must witness the signature, she thought the process is mere formality/ technicality * Held: she did not commit fraud because she did not act dishonestly (just young and ignorantly). The solicitors were also not guilty of fraud as there is no actual fraud or dishonesty (just stupidity). * Australian Guarantee Corp v De Jager * Facts: mortgagee’s employees (bank officers) knowing lodged a falsely attested mortgage * Held: characterised as fraud on the registrar by mortgagee * Davis v Williams * Facts: A registration clerk made an unauthorised alternation to an executed transfer before lodging it for registration (joint tenant to tenants in common). She did not do it to deprive anyone an interest in land.

She did not understand the misrepresentation was material rather than a mere formality, and did not intend to induce the RG to act in a materially different way * Held: There was no fraud (arrived at by three very different judgments). Young J held Clerk’s conduct lacked the element of actual dishonesty or moral turpitude required for fraud. * Mair principle: principal cannot benefit from its agent’s fraud. * J Wright Enterprises v Port Ballidu * Facts: the solicitor added ‘by its duly constituted Attorney under Power of Attorney’ as he thought it was true but was, in fact, not true. * Held: not fraud Fraud (policy questions) Russo The in personam exception The in personam (personal equities) exception|.

General| Frazer v Walker * The principle of indefeasibility ‘in no way denies the right of a plaintiff to bring against a registered proprietor a claim in personam, founded in law or in equity, for such relief as a court acting in personam may grant’ * The indefeasibility provision protects transferee from defects in the title of a transferor, but does not free him from interests with which he has burdened his own title – consequences of his own actions which give rise to a personal equity in another.

* In personam can be brought against a RP despite the RPA * The in personam exception is narrowly defined in order to advance security of transaction * Broader than the fraud exception seen in Bahr v Nicolay * Most commentators favour confining the scope of the in personam exception| Timing | * Such an equity may arise from conduct of the registered proprietor after the registration (Barry v Heider) or before the registration (Logue v Shoalhaven Shire Council)| Notice exception (s 43)| * Unlike fraud, the in personam exception is protected by the notice section (s 43).

* Mere notice of the existence of a prior contract of sale would not indicate that there was some dishonest design (Hinds v Uellendahl) * Notice of an unregistered interest must be distinguished from an undertaking of that interest * E. g. Bahr v Nicolay – defendant gave an undertaking that they will honour the repurchase agreement. They did not merely know of the agreement. | Personal conduct| * If the result is not caused by the conduct of the RP or someone they are responsible for, there is no right in personam (Conlan v Registrar of Titles) * This is so despite unfairness between those who were promised to be given an interest * The registered mortgagee did not themselves do anything unconscionable; therefore there was no cause of action.

(Vasso v State Bank of South Australia) | Cause of action| Rule:‘Personal equity and right in personam encompass only known legal or equitable cause of action’ and ‘the relevant conduct which may be relied upon to establish a personal equity extends to include conduct not only of the RP but also of those for whose conduct he is responsible’ (Grgic v ANZ Banking Group)| | Contractual obligations : * A RP who enters into a contract/undertaking cannot refuse to complete that contract/undertaking.

* Bahr v Nicolay * Facts: RP has a clause in the contract acknowledging a repurchase agreement of the previous owner and the plaintiff. He refuses to carry out the repurchase. * Held: the undertaking lead to a personal equity. Therefore property is held on constructive trust for the plaintiff. (| | Court order obligations: * White v Tomasel * Facts: the District Court ordered specific performance, whereby the purchaser became the RP of land. However, the Court of Appeal reversed the decision. * Held: in seeking assistance of the court, one impliedly accepts that their title was subject to an order of the court.

Indefeasibility does not protect one from court orders| | Equitable obligations: * Special equity: mortgagees have an obligation to wives to ensure the surety she is signing is explained to her (Garcia v National Australia Bank) * Also concerning those suffering from a special vulnerability or disability (Commercial Bank of Australia v Amadio) – may be extended to relationships beyond wives and husbands * Based on the bank’s mortgagee’s unconscionable conduct by definition * The notice provision (s 43) only applies to notices of unregistered interest, but here is a notice of a relationship. | | | | No cause of action * Negligence does not amount to the in personam exception (Pyramid Building Society v Scorpion Hotels) * Section 42 does not protect the RP from an action in negligence. Negligence is a common law action which gives damages not right in property.

* If a mortgagee acted negligently but not fraudulently in acquiring its interest, the RP will not have an action through negligence to set aside the mortgagee’s interest * They will only have an action in negligence or conversion for damages * Examples: * Pyramid Building Society v Scorpion Hotels – when mortgagee’s solicitor acted negligently, it does not give rise to a personal equity * Ginelle Finance v Diakakis – if the mortgagee produces the certificate of title to enable the registration of a forged variation of mortgage, the mortgagee’s interest should not be deprived. * Distinguished from Mercantile v Gosper which is not a good authority as it is often criticised for undermining the indefeasibility provision * knowing receipt of trust property does not apply in Torrens land – i. e.

Becoming registered proprietor of an interest in Torrens land is not “receipt” of trust property (Macquarie Bank v Sixty –Fourth Throne) * Old system: Barnes v Addy two limbs 1. a stranger knowingly receives trust property in breach of trust holds the property subject to the trust (recipient liability) 2. where a stranger, although not receiving trust property, assist with knowledge in a fraudulent or dishonest design on the part of a trustee or fiduciary, and therefore takes the property as a constructive trustee (accessory liability) * Torrens: rule is sometimes within the fraud exception, NOT the in personam exception * Macquarie Bank v Sixty –Fourth Throne and adopted by the HC in Farah Constructions * Receiving trust property is inconsistent with (undermines) the indefeasibility exception.

* Previous proprietor is the trustee – RP receives a clean title, not trust property * Beneficiary may sue for damages but defeat the title of the RP * Weaker than old system land which allows non-fraudulent breach * Distinction between a notice of unregistered interest and notice of a breach of trust (s 43) * Prescriptive easements does not apply to Torrens land (Williams v State Transit Authority of NSW) * Section 42 RPA did not apply the possibility of easements by prescription.

* It is not consistent with indefeasibility (similar argument to trust property)| Unconscionability | * It is uncertain whether an element of unconscionability is required in an in personam action Unconscionability is a requirement| Unconscionability is not a requirement| A RP is not susceptible to an in personam action unless he or she is acting unconscionably or unconscientiously * Victorian Supreme Court – Vassos v State Bank of SA * NSW Appellate courts (Grgic v ANZ; Story v Advance Bank Aust)| Unconscionability itself is not a requirement for the in personam exception.

* However it may be needed to establish a cause of action needed to prove the in personam exception (e. g. estoppels and other equitable causes of action) * Queensland Supreme Court (White v Tomasel) * NSW Supreme Court (Harris v Smith) – on common mistake| * The High Court has not visited this issue. It is uncertain which element they will adopt as there has been inconsistency in opinion across jurisdictions. | Mistake| * The mistake is reversible if: * The mistake arose from a ‘sharp practice’ of the registered proprietor (Majestic Homes v Wise) * i. e. the registered proprietor took advantage of the transferor’s unilateral mistake or a mutual mistake (e. g.including a clause which should not be included).

* The registered proprietor contributed to the mistake (Minister For Eduation v Canham) * Tutt v Doyle – Where more land has been transferred than was bargained for, relief will be available where the transferee either knew, or had reason to know, that the transferor was, or might as well, be mistaken. * The circumstances make it unjust for RP to retain title. (Taipatu v Prouse) * Lukacs v Wood – D received a more valuable lot than he had contracted for. His refusal to retransfer was held to be unconscionable and unjust. * It is a common mistake – unconscionability not separate element for in personam claim.

(Harris v Smith [2008] NSWSC 545)| Restitutionary claims| Apart from certain forms of action expressly barred by the Act, proceedings may be brought against a registered owner in personam that ‘may have as their terminal point orders binding the RP to divest himself wholly or partly of the estate or interest bested in him by registration and endorsement of the cert of title| * Public authorities – irregularities by public authorities when receiving land will not create a personal equity of a kind that could prevail against the RP (public authority) * Logue v Shoalhave Shire Council * Facts: The council purchased land but failed to observe strictly the statutory requirements in selling land for overdue rates. * Held: The previous proprietor cannot rely on the irregularities to give him an equity which prevailed against the RP. * Palais Parking Station v Shea.

* Facts: Director- General of Medical resumed (compulsorily acquired) land in good faith – but was unauthorised * Held: the mere fact that he was registered for an interest to which eh was not entitled under the Act did not give rise to personal equity enforceable against him Registrar’s power of correction * Discretionary powers are rested on the Registrar to correct entries in the register and supply omitted entries (‘upon such evidence as appears to the Registrar-General sufficient’) (s 12(1)(d) RPA).

* Suggestions this provision is a mere ‘slip’ provision of no substantive importance (Frazer v Walker) * It cannot get around the fact that something has happened on the register * If a void document has been registered (e. g.due to mistake or error), this provision cannot be used * Gives the Registrar- General the power to commence the process of correction where * new RP is fraudulent * there’s a common mistake on the register (no contest) * Registrar are empowered to cancel an entry or document on the basis of fraud (ss 136, 137 RPA) Section 136 (1)

– Where the Registrar-General is satisfied that: a. a certificate of title has been issued in error or contains any mis-description of land or of boundaries, b. a recording has been made in error in the Register, c. a certificate of title or recording in the Register has been fraudulently or wrongfully obtained, or d.a certificate of title or duplicate registered dealing is fraudulently or wrongfully retained: e. or where the possessory applicant has pursuant to a possessory application made by the possessory applicant become registered as the proprietor of an estate or interest in land comprised in a folio of the Register for which a certificate of title has been issued, the Registrar-General may by notice in writing to the person to whom the certificate of title or duplicate registered dealing, require such person to deliver up the certificate of title or duplicate registered dealing, as the case may be, for the purpose of it being cancelled or corrected, as the case may require.

| * It must be ‘read with and subject to [the paramountcy provision]’ (Frazer v Walker referring to similar provision in NZ) * ‘with the consequence that the exercise of the registrar’s power must be limited to the period before a bona fide purchaser, or mortgagee, acquires a title under the latter section’ * A discretionary power to detract from indefeasibility of a registered title ought to be construed with the utmost strictness (Medical Benefits Fund of Australia v Fisher – QLD SC) * To recognise an unqualified power in this regard would have potentially destructive consequences * Note: natural rights do not need to be expressly stated on the certificate of title to operate e. g. * Riparian rights * Right to soil support from adjoining land Express exceptions (s 42) Provision| Interpretation|.

General: exceptions expressed in s 42 RPA | In this Act: * Omission: broadly interpreted means ‘left out’ (does not necessarily have to be by mistake) (Dobbie v Davidson) * Misdescription: mistake in describing the interest | (a) the estate or interest recorded in a prior folio of the Register by reason of which another proprietor claims the same land,| * Arises when two folios are attached to the same piece of land * Folio – connects each physical land to the register * Priority matter which only affects Torrens when it first came into effect – slowly fading out| (a1) in the case of the omission or misdescription of an easement subsisting immediately i. before the land was brought under the provisions of this Act ii. or validly created at or after that time under this or any other Act or a Commonwealth Act| * Easement may apply to land despite its absence on the register – burden on purchasers to check i.

Old system easements: apply to Torrens land despite lack of register to preserve status quo & encourage registratio