(High Court of Australia) B, the registered proprietor of land, had obtained a loan of money from P. As security, he had given to P a signed memorandum of transfer and the certificate of title for the land. The memorandum of transfer was void under section 53(5) of The Stamps Act 1894 (Qld), which provided that any instrument of conveyance or transfer shall be void and inoperative ‘unless the name of the purchaser or transferee is written therein in ink at the time of the execution thereof. P, in fraud of B, filled in W’s name on the transfer and registered him as owner. W, who was a party to the fraud, sold the land to A Company. However, before A lodged its transfer for registration, B discovered the fraud and lodged a caveat.
The case came before the High Court on appeal from the Supreme Court of Queensland where B had sought a declaration of right and orders for the
cancellation of a dealing registered under The Real Property Acts 1861-1963 (Qld) and an amendment of the relevant certificate of title. The Supreme Court of Queensland held in favour of A, ordering B to remove the caveat.
B had an equitable right to have the void transfer ‘ set aside and to have his name restored to the Register as against the fraudulent W-although the Court did not attempt to characterize this as either an equitable interest or a mere equity. Thus, it was not called upon to discuss the difficulties caused by the judgments of Kitto J. and Taylor J. in Latec Znvestments Ltd v. Hotel Terrigal Pty Ltd (In Liq.).3 However, in this case Their Honours had to decide whether W had acquired a fee simple interest by registration. If not, he obviously could not pass any interest to A.
Held: The Court relied on the Privy Council decision in Frazer v. Walker in preference to the judgment of Dixon J. in Clement v. Ellis. Their Honours found that registration of his title by W conclusively passed the fee simple despite the fact that the transfer by which he obtained title was void due to the provisions of The Stamps Act 1894 (Qld). The fact that an instrument of transfer of land was void or voidable did not prevent the transferee from acquiring an indefeasible interest in accordance with the instrument when it was registered.
Citations:
(1972) 46 ALJR 68, [1972] MelbULawRw 23, [1971] 126 C.L.R. 376
Jurisdiction:
Australia
Cited by:
Cited – Frazer v Walker PC 1967
A forged memorandum of mortgage granted by one of two joint proprietors was registered and subsequently enforced by the mortgagees on default by the mortgagor. A purchaser in good faith at auction whose title was thereafter registered was held . .
Cited – Racoon Limited v Harris Turnbull, Executor of James Turnbull (Deceased) and others PC 22-May-1996
(British Virgin Islands) The land registrar had incorrectly registered land without mention of a lease of a right of way.
Held: ‘The philosophy underlying a system of registration of title is that it confers indefeasibility of title to the . .
Lists of cited by and citing cases may be incomplete.
Registered Land
Updated: 06 December 2022; Ref: scu.242120
