week three Flashcards
what is another type of fraud other than changing the title
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.
the path to immediate indefeasibility involves which cases
Gibbs v Messer, Boyd v Mayor of Wellington, Frazer v Walker
what happened in gibbs v messer
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.
what were the 3 potential ratio decidendi out of gibbs v messer which were destroyed throughout the path to immediate indefeasibility
void instrument = no indefeasibility
void instrument due to forgery = no indefeasibility
void instrument due to forgery by use of a fictitious name = no indefeasibility
what happened in boyd v mayor of wellington
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
what happened in frazer v walker
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.
what did the privy council talk about that was considered obiter in frazer v walker, after agreeing with the lower court
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
what happened in morrison v bnz
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
what was decided in morrison v bnz
with the marriage dissolved, she went to court and BNZ was protected immediately by indefeasibility of title. mrs morrison looses out.
what were the two ratio decidendi of frazer v walker
- immediate indefeasibility
2. a mortgage is just as safe as an owner
in an answer, what should you mention preliminarily
the result, the applicable section of the LTA 2017, the cases that apply and other possible options
is the unregistered interest further down than the registered interest
yes
can you fight against a property registered interest
no
why did legislators make manifest injustice
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
why did legislators make immediate indefeasibility
because the owner wants it to know they have the property and are safe with it no matter what
what is section 54 of the LTA 2017
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
explain s54 of the LTA2017
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
what is in sections 55/56 of the LTA 2017
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).
what are the issues the court can take into account for manifest injustice
- 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
who are the parties in North Shore Aero Club v Black River
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
why did Sunrise sell to Black River
to clear the first mortgage to Spinnaker
what order did the court make in North Shore?
to remove the Aero Club’s caveat
why was Black River not fraudulent
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
indefeasibility is the foundation of the ___ system and central to our __ __ system
Torrens, land registration
good faith purchasers are not affected by ___ ___ __ __ __ __
any vice in a predecessors title
Frazer v Walker is a ____ case
landmark
how did Frazer v Walker treat Gibbs v Messer
it was distinguished and reduced to its narrowest interpretation regarding a fictitious person
