week four Flashcards
what is a manifest injustice situation where a mortgage can be taken off
where a mortgage is taken off a property and the property is given back without the mortgage because the fraud was manifestly injust
what does s55 (3) of the 2017 LTA say
if you can solve the problem with money you can do that instead of upsetting the system
what is compensation usually capped at
usually the value of the asset
what do sections 54 - 57 of the LTA say
in exceptional circumstances the situation can reverse and you can get the property back, or back without the mortgage. there are however guidelines around manifest injustice
what is the main exception to immediate indefeasibility
fraud
its not fraud if you know of the equitable interest but dont?
intend to cheat
unless there is fraud, someone taking or dealing with land from a registered proprietor need not?
- inquire as to how the RP became registered
- worry about what happened to the purchase money
- be affected by notice of any trust or unregistered interest
in hard copy times, there was a big gap between what 3 events that affected you depending on when you found out about the equitable interest
sale and purchase, settlement and registration
what were the 2 ratios of frazer v walker
immediate indefeasibility of title and that mortgagees are as safe as a purchaser
what are the two attacks on indefeasibility of title
fraud against the registered owner, fraud against an unregistered interest
what agreement was there between X and the NZ Meat Nominees in New Zealand Meat Nominees v Sim
an agreement for meat nominees to park in X’s carpark
X’s mortgage to Q fell in default and Q sold to Y. What didn’t Y like and what did they do? (New Zealand Meat Nominees v Sim)
that meat nominees were using the carpark - he put pamphlets on the cars telling them to leave
what was the question in New Zealand Meat Nominees v Sim
whether he was guilty of fraud for ignoring an unregistered lease outside the title
what was the result of New Zealand Meat Nominees v Sim
Mr Sim (Y) was guilty of fraud because he intended to cheat meat nominees out of their unregistered interest. He made it obvious with the pamphlets that he wanted to kick them out and because he knew about the interest and dishonestly intended to cheat this was enough for the court to say he was guilty of fraud
who scammed the Burmeisters out of their property
Mr O’Brien, junior
what did the O’Brien trust do with the Burmeisters property?
Mortgaged it to the ASB
what was wrong with the solicitor in Burmesiter v O’Brien
he was acting for both the ASB and the O’Brien family trust. He knew the O’Brien trust had been fraudulent and still registered the mortgage
is the ASB safe in Burmesiter v O’Brien
yes, they did everything properly
could the Burmesiters get their property back
Yes because of the fraud, but the mortgage to ASB was still on it because the ASB was innocent. They could get compensation from the state, but it would be capped at the $430k ish the house was worth not the $640k ish on the mortgage
what happened in Cook v Abdallah
Cook gave her property to Mr Abdallah because he said he wanted to come and live in Greymouth and needed to show that he had property in NZ to get a visa. It was obviously a scam and when she contacted him to get the property back he said she needed to pay him. She lost a lot of money but eventually got the title transferred back because there was no one defending the claim anyways.
what is a caveat
a warning to the world that somebody has a claim on that particular piece of land for whatever reason
who can lodge a caveat
anyone who claims an estate or interest in the land - a beneficial estate or interest
what is the person who lodged the caveat called
a caveator
what is the purpose of a caveat
to warn the world and means the registrar cannot take any action on that land
when will a caveat lapse
when the RO applies to the registrar for a lapse the registrar gives notice to the caveator and it is up to the caveator to make an application to the court in order that that caveat may not lapse
who was the caveator in North Shore Aero CLub v Black River
North Shore Aero Club
who were the registered owners in North Shore Aero Club v Black River
originally sunrise, who then sold to Black River (RO in these proceedings)
who were the mortgagors in North Shore Aero Club v Black River
Spinnaker + Black River
what order did the court make in North Shore Aero Club v Black River
removal of the Aero Club’s caveat
what was the conclusion of North Shore Aero Club v Black River
that Black River didn’t commit fraud because there was no equity left in order for there to be an equitable interest because it made sense for Sunrise to sell to pay for Black River to pay off the debt to Spinnaker and the Aero Club knew about the sale so it would be the exact same as if they were selling to a third party
under s6 of the LTA 2017, fraud means?
forgery or other dishonest conduct by the registered owner or the registered owner’s agent in acquiring a registered estate or interest in land
what are the two main categories of cases involving fraud?
fraud against a previous registered proprietor and fraud against the holder of an unregistered interest
what is a caveat
a warning to the world that somebody has a claim on that particular piece of land for whatever reason
who can lodge a caveat
anyone who claims an estate or interest in the land
when does a caveat lapse
when the RO applies to the registrar for the lapse of the caveat, who gives notice to the caveator and then the caveator would have to make an application to the court for an order that the caveat may not lapse if they want it to stay
