Torrens II

Vance and Nicole are the registered proprietors of an estate in fee simple in Oyster Bay under theReal Property Act. After living at the property for many happy years, Vance and Nicole want to retire to the North Coast to be closer to their grandchildren. After some discussion, they decide to sell the property. Vance engages a local real estate agent to advertise the sale. Logan is an interested buyer. Logan comes to you to review the Contract for Sale and assist in the conveyance. Contracts are promptly exchanged, and a settlement period of six weeks is set. On the day of settlement, as is standard procedure, a title activity check is conducted in the morning, and then again 55 minutes prior to settlement. As all the documents look to be in order, including a stamped and executed transfer, you sign off on settlement. Unbeknownst to you, 35 minutes prior to settlement, Vance and Nicole's neighbour, Zeke, lodges a caveat over the property. On the morning of settlement, Zeke hears from his old neighbours, (the biggest gossips in the Shire), that Vance and Nicole have sold the house. Zeke becomes concerned as he claims he is entitled under a written agreement with Vance and Nicole to use a 2.5 metre wide strip of land on Vance and Nicole's property as an alternate access path to a nearby road. The easement agreement was never lodged for registration, as Vance and Zeke have been long time friends and neighbours for many years. Logan has no idea about this arrangement. You explain to Logan that while the caveat does not prevent settlement and lodgement of the transfer, it does prevent Logan from registering his interest. Logan is confused and annoyed about this issue and seeks the following advice:

Is Logan subject to the easement?

*Hint: you do not need to consider the characteristics of an easement in order to answer this question. We will look at easements in detail in module (7). Start by looking at slide 56...

Please answer by four steps

1 Key legal Issues

2 Principles and Authorities

3 Application

4 Conclusion, Remedies and Advice

Reference

Statute

Conveyancing Act1919 (NSW), ss 23B-23E, 54A

Real Property Act1900 (NSW), ss 36, 41, 43, 43A, 53, 74F-74R, 74S-74Z

Cases

Creation of Unregistered Interests

Barry v Heider(1914) 19 CLR 197.

Chan v Cresdon(1989) 168 CLR 242.

Manton v Parabolic Pty Ltd(1985) 2 NSWLR 361.

Issues of Priority

Northern Counties of England Fire Insurance Co v Whipp(1884) 26 Ch D 482.

Walker v Linom[1907] 2 Ch 104.

Pilcher v Rawlins(1872) 7 Ch App 259.

*Breskvar v Wall(1971) 126 CLR 376.

Caveats and PriorityNotices

Butler v Fairclough(1917) 23 CLR 78.

*Abigail v Lapin[1934] AC 491.

*Heid v Reliance Finance Corporation Pty Ltd (1983) 154 CLR 326.

Courtenay v Austin[1962] NSWLR 296.

Section 43A

IAC (Finance) Pty Ltd v Courtenay(1963) 110 CLR 550.

Diemasters v Meadowcorp(2001) 52 NSWLR 572.

Westpac Banking Corporation v Ollis[2008] NSWSC 824.

Drulroad v Gibson(1992) NSW ConvR 55-637.

Wilkes v Spooner[1911] 2 KB 473.