week three

Question 1

what is another type of fraud other than changing the title

Answer 1

Q forges the owners signature on the mortgage document, the bank hands out the mortgage money to Q and they dissapear. the title is still in X’s name but now theres a mortgage on it.

The bank gets full protection. The state will give X compensation, but it is capped.

Question 2

the path to immediate indefeasibility involves which cases

Answer 2

Gibbs v Messer, Boyd v Mayor of Wellington, Frazer v Walker

Question 3

what happened in gibbs v messer

Answer 3

mrs messer gives her land title to her lawyer because she is going away. the lawyer transferred it into a fictitious name (Mr Cameron).

The lawyer went to the Macintyre’s (mortgagee) and pretended to be Mr Cameron.

Mrs Messer comes back and wants to get rid of it all. The court cancels everything and puts its back in Mrs Messer’s name.

Question 4

what were the 3 potential ratio decidendi out of gibbs v messer which were destroyed throughout the path to immediate indefeasibility

Answer 4

void instrument = no indefeasibility

void instrument due to forgery = no indefeasibility

void instrument due to forgery by use of a fictitious name = no indefeasibility

Question 5

what happened in boyd v mayor of wellington

Answer 5

mr boyd owned land that wellington city council wanted for a tramway. the council used the wrong proclamation document (one for land only, not land with a house) and boyd took them to court for being so careless.

the wellington city council got it because it was a void instrument, therefore the person who was last on the title, the wellington city council, gets it.

therefore, registration of a void document instrument = indefeasibility

Question 6

what happened in frazer v walker

Answer 6

the frazers joint own a farm. mrs frazer needs some money and fills out the mortgage document, forging mr frazers signature.

she gets the money from the radomski’s, who then exercise their power of sale by selling it to Mr Walker because the interest rates kept going up.

mr frazer finds out and goes to court. they look at the mortgage to radomski and the transaction to mr walker and decide mr walker is too far away from Mrs Frazer’s fraud so Mr Walker gets the property.

Question 7

what did the privy council talk about that was considered obiter in frazer v walker, after agreeing with the lower court

Answer 7

they considered what would happen if the radomski’s hadn’t sold to mr walker, and decided the radomski’s would be safe.

a void instrument due to forgery still = indefeasibility

Question 8

what happened in morrison v bnz

Answer 8

the morrisons were the joint owner of a coatesville property and signed a contract for the browns bay property on the assumption they would sell their coatesville property

they didnt sell the property in time and mr morrison asked for a commercial bill facility for $600,000. the bank said he could have it but they needed mrs morrisons signature too.

she came in and freaked about about borrowing that amount. mr morrison said something about not embarrasing him infront of his friends and she signed.

later when it needed to become an proper mortgage, he just forged her signature as it was too hard. mrs m discovers the issue and wants to get rid of it all

Question 9

what was decided in morrison v bnz

Answer 9

with the marriage dissolved, she went to court and BNZ was protected immediately by indefeasibility of title. mrs morrison looses out.

Question 10

what were the two ratio decidendi of frazer v walker

Answer 10

1. immediate indefeasibility

2. a mortgage is just as safe as an owner

Question 11

in an answer, what should you mention preliminarily

Answer 11

the result, the applicable section of the LTA 2017, the cases that apply and other possible options

Question 12

is the unregistered interest further down than the registered interest

Answer 12

yes

Question 13

can you fight against a property registered interest

Answer 13

no

Question 14

why did legislators make manifest injustice

Answer 14

despite the uncertainty it brought to the new owner, the situation where the property is very special to the old owner and it is really unfair v the new owners who have no personal connection made them think twice

Question 15

why did legislators make immediate indefeasibility

Answer 15

because the owner wants it to know they have the property and are safe with it no matter what

Question 16

what is section 54 of the LTA 2017

Answer 16

a person (A) who has been deprived of an estate or interest in land or who suffers any other loss or damage by the registration under a void or voidable instrument of another person (B) as the owner of the estate or interest can apply for an order under s57

Question 17

explain s54 of the LTA2017

Answer 17

We can try to switch the whole immediate indefeasibility of title in very exceptional circumstances where both parties are innocent and A is the old owner and B is the new owner

Question 18

what is in sections 55/56 of the LTA 2017

Answer 18

the court may make an order cancelling the registration of person B only if it is satisfied that it would be manifestly unjust for person B to remain registered owner of the estate or interest. (Will not apply if person B has transferred estate or interest to 3rd person, if 3rd person acting in good faith).

Question 19

what are the issues the court can take into account for manifest injustice

Answer 19

• failure to comply with a statutory power or authority when acquiring estate
• how B acquired the estate
• nature of estate: fee simple of mortgage
• length of time A and B have occupied the land
• nature of improvements on the land
• conduct of A or B in relation to acquisition of land

Question 20

who are the parties in North Shore Aero Club v Black River

Answer 20

North Shore Aero Club, Sunrise was the original registered owner, followed by Black River who were the registered owner in these proceedings and Spinnaker and Black River were the mortgages

Question 21

why did Sunrise sell to Black River

Answer 21

to clear the first mortgage to Spinnaker

Question 22

what order did the court make in North Shore?

Answer 22

to remove the Aero Club’s caveat

Question 23

why was Black River not fraudulent

Answer 23

because there was no equity left in order for there to be an equitable interest because it made sense for Sunrise to sell to Black River to pay off the debt to Spinnaker and the Aero Club knew about the sale so it would be the exact same if they were selling to a third party

Question 24

indefeasibility is the foundation of the ___ system and central to our __ __ system

Answer 24

Torrens, land registration

Question 25

good faith purchasers are not affected by ___ ___ __ __ __ __

Answer 25

any vice in a predecessors title

Question 26

Frazer v Walker is a ____ case

Answer 26

landmark

Question 27

how did Frazer v Walker treat Gibbs v Messer

Answer 27

it was distinguished and reduced to its narrowest interpretation regarding a fictitious person