LAW5018 Advanced Property
Reading Guide
Monash University
Master of Laws (Juris Doctor)
Trimester 3, 2022
Prepared by:
Professor Ann Monotti, Alicia Wright and Brett Harding
Based on material prepared by previous lecturers and Reading Guides for Property A and B with
permission
Produced and Published by:
Faculty of Law
Monash University Law Chambers
555 Lonsdale Street
Melbourne – VIC 3000
First Published 2008
Revised 2022
© Copyright 2022
NOT FOR RESALE. All materials produced for this course of study are protected by copyright. Monash
students are permitted to use these materials for personal study and research only, as permitted under
the Copyright Act. Use of these materials for any other purposes, including copying or resale may
infringe copyright unless written permission has been obtained from the copyright owners. Enquiries
should be made to the publisher.
2
Introduction
1.
Texts and materials
1.1
Prescribed text and legislation
1.1.1
Anthony Moore, Scott Grattan and Lynden Griggs, Bradbrook, MacCallum & Moore’s
Australian Real Property Law (Thomson Reuters, 7th ed, 2020) (“BMM7”)
OR
1.1.2
Anthony Moore, Scott Grattan and Lynden Griggs, Bradbrook, MacCallum & Moore’s
Australian Real Property Law (Thomson Reuters, 6th ed, 2016) (“BMM6”).
1.2
1.1.3
Property Law Act 1958 (Vic) (“PLA”).
1.1.4
Transfer of Land Act 1958 (Vic) (“TLA”).
1.1.5
Other legislative provisions referred to in this Reading Guide.
Highly recommended casebook
Anthony Moore, Scott Grattan and Lynden Griggs, Australian Property Law: Cases and
Materials (Thomson Reuters, 5th ed, 2016).
1.3
Recommended texts and casebooks
1.3.1
Brendan Edgeworth, Butt's Land Law (Thomson Reuters, 7th ed, 2017).
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2.
How to use this guide
2.1
Where a case or article is cited and followed by a paragraph citation to ‘BMM7’ or ‘BMM6’ you
need only read the extracts/case summaries in the casebook.
2.2
Where a legislative provision is cited and followed by a reference to the TLA, PLA or other
legislation, you need only focus on the provision cited, but you should note the meaning given
to the cited provision may be affected by, among other things, its position in the context of the
legislation as a whole and the purpose of the legislation.
2.3
All readings are essential except where specified as ‘Further Reading’ which is at your
discretion.
2.4
The unit consists of a set of discrete topics, but Advanced Property Law needs to be
understood holistically. Look for the links and overlaps between topics.
2.5
Do not rely on downloaded PowerPoints and transcribed lecture notes as a substitute for
reading cases and legislative provisions.
2.6
Examinations in this unit will proceed on the premise that students have undertaken all
prescribed readings and either attended all of the seminars.
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Reading Guide
1.
The Torrens system and indefeasibility
1.1
General Law land
General Law land is not examinable in this course. However, we look at the general law land
system to help us understand the history of the introduction of the Torrens system in Victoria.
BMM6/7 4.05
1.2
The Torrens system
BMM6/7 4.10 - 4.85
1.3
The principle of indefeasibility
BMM6/7 4.100–4.160, 5.235
TLA ss 34, 40 – 44
Frazer v Walker [1967] 1 AC 569 (BMM6/7 4.150)
Breskvar v Wall (1971) 126 CLR 376 (BMM6/7 4.130)
Further Reading
BMM6/7 4.255 – 4.280, 4.295 – 4.305
1.4
Can the Registrar correct an error in the register?
TLA ss 44Q, 103, 106(1)(e)
Frazer v Walker [1967] 1 AC 569 (BMM6/7 4.405)
BMM6/7 4.395 – 4.415
Further Reading
Land Use Victoria Bulletin No 190 August 2019 (See Moodle)
1.5
Compensation
TLA ss 87D, 87E, 109 – 111
5
BMM6/7 4.420 – 4.485 (Vic provisions only)
Registrar of Titles v Fairless [1997] 1 VR 404
1.6
Conveyancing and Electronic Conveyancing
BMM6/7 4.40
The TLA was amended by the Transfer of Land (Amendment) Act 2014 (the amending Act),
which commenced operation on 24 September 2014.
The amendments:
▪
facilitate efficiencies in the conveyancing process by enabling the adoption of the
same requirements for paper conveyancing as electronic conveyancing;
▪
enable the phasing out of paper Certificates of Title by:
−
giving the Registrar the power to decide whether to issue a paper certificate
of title; and
−
giving the Registrar the power to cease issuing paper certificates of title and
to declare that those issued have no effect from a specified date;
▪
facilitate nationally consistent conveyancing practices by enabling the Registrar of
Titles (Registrar) to establish requirements for paper conveyancing which, as far as
practicable, are consistent with those in other jurisdictions.
The new provisions facilitate the phasing out of paper Certificates of Title. It is intended that
phasing out will be progressive over a few years.
1.7
Electronic Conveyancing System
Eligible subscribers can now complete electronic conveyancing transactions through an online
‘Property Exchange’ platform known as ‘PEXA’. Use of PEXA is expected to increase over the
next few years – both in terms of the types of transactions that can be completed electronically,
and the number of users that are eligible to use the online system. While the platform used for
these transactions is electronic, the procedure that underpins the transaction is still based on
the procedure used in paper conveyancing.
See further: www.pexa.com.au
BMM6/7 4.40
6
1.8
Certificates of Title
TLA ss 27BAA, 27 (11)(b), 27(11A), 27B(7B), (7C), (7D), 86
1.9
Registrar’s requirements for paper conveyancing
TLA s 106A
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2.
The scope of indefeasibility
BMM6 4.165–4.170 (up to and including page 222) or BMM7 4.165–4.170 (up to and including
page 224)
2.1
Which covenants in a registered lease are indefeasible?
Mercantile Credits Ltd v Shell Co of Australia Ltd (1976) 136 CLR 326 (BMM6/7 4.165, 14.120)
2.2
Scope of indefeasibility where the mortgage is forged
It used to be the case that, in Victoria, a registered proprietor who was the victim of a forged
mortgage (whether by an unknown imposter, or by a known person), may still have been bound
by the terms of that mortgage. The registered proprietor could be required to pay to secure a
discharge of the fraudulent mortgage and could then generally request an indemnity from the
State under the assurance fund provisions.
The legislature has recognised that it is not appropriate that registered proprietors (and
ultimately the State) should be expected to reimburse mortgagees for fraudulent mortgages
when the mortgagee failed to properly verify the authority and identity of the person they were
transacting with. Under the new legislation, when identification requirements are not complied
with, and the mortgage has not been granted by the registered proprietor, the mortgagee will
lose the benefit of indefeasibility of the registered mortgage and the Registrar will remove the
mortgage from the Register.
This will mean the registered proprietor will not have to pay for a discharge of mortgage and
thus will not need to claim compensation from the State.
The verification of identity provisions will be discussed at 3.1.3.
Further reading
Brett Harding, ‘Under the indefeasibility umbrella: The covenant to pay and the ‘all-moneys’
mortgage’ (2011) 19 Australian Property Law Journal 231.
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3.
Exceptions to indefeasibility
BMM6/7 4.180 – 4.185
3.1
Fraud
TLA s 42(1)
Assets Company Ltd v Mere Roihi [1905] AC 176 (BMM6/7 4.225)
3.1.1
Fraud against a prior interest holder
BMM6/7 4.200–4.230
TLA s 43
Loke Yew v Port Swettenham Rubber Co [1913] AC 491 (BMM6/7 4.210)
Bahr v Nicolay (No. 2) (1988) 164 CLR 604 (BMM6/7 4.230)
Pyramid Building Society v Scorpion Hotels [1998] 1 VR 188 (BMM6/7 4.225)
3.1.2
Fraud by the registered proprietor’s agents or employees
(a)
Agency Cases
BMM6/7 4.235 – 4.245
Schultz v Corwill Properties Pty Ltd (1969) 90 WN(NSW) 529 (BMM6/7 4.240)
(See Moodle) (applied by the High Court in Cassegrain v Gerard Cassegrain
& Co Pty Ltd (2015) 254 CLR 425)
Dollars & Sense Finance Ltd v Nathan [2008] 2 NZLR 557 (BMM6/7 4.240)
(b)
Attestation Cases
AGC v De Jager [1984] VR 483 (BMM6/7 4.225)
Russo v Bendigo Bank Ltd [1999] 3 VR 376
Further Reading
Sharon Rodrick, 'Forgeries, False Attestations and Imposters: Torrens System Mortgages and
the Fraud Exception to Indefeasibility' (2002) 7(1) Deakin Law Review 97.
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Pam O’Connor ‘Immediate Indefeasibility for Mortgagees: A Moral Hazard?’ (2009) 21(2) Bond
Law Review 133.
Penny Carruthers and Natalie Skead, ‘Confirming Torrens Orthodoxy: The High Court
Decision in Cassegrain v Gerard Cassegrain & Co Pty Ltd’ (2015) 24 Australian Property Law
Journal 211.
3.1.3
Mortgages
(a)
Verification of Identity Requirements
TLA ss 87A–87E, and (generally) s 106A
C&F Nominees Mortgage Securities Ltd v Karbotli [2021] VSCA 134 [1]–[98]
Brett Harding, ‘Verification of identity: As simple as it seems?’ (2017) 6.3
Property Law Review 195. (see Moodle)
BMM6 4.225 at pages 235 (last paragraph) – 236 only; BMM7 4.225 at pages
238-9
Penny Carruthers and Natalie Skead, ‘A Law for Modern Times: The
Electronic Conveyancing National Law, Forged Mortgages and Immediate
Indefeasibility’ (2018) 7 Property Law Review 4.
An overview of the verification of identity procedure established by the
Registrar is contained in LTO Customer Bulletin 145:
http://www.dtpli.vic.gov.au/__data/assets/pdf_file/0014/260240/CustomerInfo
Bulletin_ed145.pdf
(b)
Void or unenforceable at law/in equity
TLA s 74(5)
Lisa Spagnolo, Ann Monotti, Christopher Lane and Sharon Rodrick, ‘The
mysterious s74(5) (2020) 28 Australian Property Law Journal 75
3.2
Equitable Interests under the Torrens System
BMM6/7 5.105–5.110
TLA s 40
Barry v Heider (1914) 19 CLR 197 (BMM6/7 2.440, 5.10)
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3.3
Other exceptions to Indefeasibility
BMM6/7 4.180 – 4.190, 4.315
3.3.1
Relief In Personam
BMM6/7 4.350 – 4.365, 4.385 – 4.390
Frazer v Walker [1967] 1 AC 569 (BMM6/7 4.355)
Bahr v Nicolay (1988) 164 CLR 604 (BMM6/7 4.365; 4.385)
Mercantile Mutual Life Insurance Co Ltd v Gosper (1991) 25 NSWLR 32 (BMM6/7
4.360)
Pyramid Building Society v Scorpion Hotels [1998] 1 VR 188
3.3.2
Paramount Interests
TLA s 42(2) (a) – (f)
BMM6/7 4.180 -4.185, 4.255 – 4.305, 14.130 - 14.135, 14.160
(a)
Tenant in possession: s 42(2)(e)
BMM6/7 4.295–4.300, 14.130–14.135
Downie v Lockwood [1965] VR 257 (BMM6 14.135)
(b)
When the tenancy arises prior to the mortgage
Perpetual Trustee Co Ltd v Smith (2010) 186 FCR 566 [1]– [2], [38]– [74] (see
also BMM6/7 4.295) (Note: we will consider this case further in topic 6)
(c)
When the mortgage arises prior to the tenancy
TLA ss 77(4), 78(1), 87C, 88A
Balanced Securities Ltd v Bianco [2010] VSC 162, [101] - [117].
3.3.3
Volunteers
BMM6/7 4.320 NB: The textbook discussion of cases provides some interesting
background to the obiter statements in Zekry v Zekry.
Bogdanovic v Koteff (1988) 12 NSWLR 472 (BMM6/7 4.320)
11
Rasmussen v Rasmussen [1995] 1 VR 613
Farah Constructions Pty Ltd v Say–Dee Pty Ltd (2007) 230 CLR 89, [198] (see also
BMM6/7 4.320)
Zekry v Zekry [2020] VSCA 336
3.3.4
Inconsistent Legislation
BMM6/7 4.325 – 4.345
Calabro v Bayside City Council [1999] 3 VR 688
Horvath v Commonwealth Bank of Australia [1999] 1 VR 643 (BMM6/7 4.335)
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4.
Co–ownership
4.1
What forms of co–ownership can exist in Australia?
BMM6/7 12.05– 12.10, 12.25–12.35
Victorian Law Reform Commission (‘VLRC’) , Disputes Between Co–Owners Discussion
Paper (2001) 1.1 - 1.8; https://www.lawreform.vic.gov.au/projects/disputes-between-coowners/disputes-between-co-owners-discussion-paper
4.2
Joint tenancy
BMM6/7 12.40–12.90
PLA ss 28, 184
Vedejs v Public Trustee [1985] VR 569
4.3
Tenancy in common
BMM6/7 12.95, 12.100–12.130, 12.140–12.170, 12.215 - 12.220, 12.230
TLA ss 30(2), 33(4)
Malayan Credit Ltd v Jack Chia – MPH Ltd [1986] 1 AC 549 (BMM6/7 12.160)
4.4
Severance of a Joint Tenancy
BMM6/7 12.330 - 12.385, 12.405 - 12.435, 12.460 – 12.475
Mischel Holdings Pty Ltd (in liq) v Mischel [2013] VSCA 375, [56] - [72]
VLRC, Disputes Between Co–Owners Discussion Paper (2001) 3.1 -3.12 (recommendation
not implemented, but the report provides a good summary of the law)
4.4.1
Unilaterally
(a)
Alienation by a joint tenant at law or in equity
BMM6/7 12.370, 12.380 - 12.385
Wright v Gibbons (1949) 78 CLR 313 (BMM6 12.380, see also 12.335)
PLA s 72(3)
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(b)
Co-owner operating on his or her own share
BMM6/7 12.375 - 12.380, 12.460-12.470
Lyons v Lyons [1967] VR 169 (BMM6/7 12.405 – 12.410)
Frieze v Unger [1960] VR 230, 242–43 (also BMM6/7 12.410)
TLA s 74(2)
(c)
Severance by merger
BMM6/7 12.425
4.4.2
By agreement
BMM6/7 12.340-12.355
Abela v Public Trustee [1983] 1 NSWLR 308
Public Trustee v Pfeiffle [1991] 1 VR 19, 20–28
4.4.3
Course of dealing
BMM6/7 12.360 -12.365
Williams v Hensman (1861) 70 ER 862 (BMM6/7 12.335–12.340)
Mischel Holdings Pty Ltd (in liq) v Mischel [2013] VSCA 375 [63]–[64] (also BMM6/7
12.340, 12.365)
4.4.4
By operation of law
BMM6/7 12.415–12.430
4.5
Termination of Co–ownership by proceedings for Sale or Division
BMM6/7 12.320 – 12.325, 12.440 - 12.450
PLA Part IV Div 2
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4.6
Rights and duties of co–owners
4.6.1
Rights of possession/ payment of occupation rent
BMM6/7 12.300 – 12.305
PLA s 233
4.6.2
Improvements to the land
BMM6/7 12.310-315
PLA ss 233(1) and (2)(a)
4.6.3
Rents and profits
PLA ss 28A, 233 and Part IV Div 3
BMM6/7 12.255 – 12.275
Statute of Anne (BMM6/7 12.255, 12.265)
Henderson v Eason (1851) 17 QB 701 (BMM6/7 12.260 – 12.265)
4.6.4
Damage and Proportionate Share
PLA ss 233 (2)(c), (d)
4.6.5
Adverse possession between co–owners
BMM6/7 3.270
Limitation of Actions Act 1958 (Vic) s 14(4)
Re Franklin [2009] VSC 496
Fourniotis v Vallianatos [2018] VSC 369 [93] (See Moodle)
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5.
Equitable interests arising by operation of law
BMM6/7 2.280, 2.300 – 2.320, 2.365 - 2.370, 8.175–8.185
5.1
Resulting trusts
BMM6/7 8.180, 9.75–9.95
Michael Bryan, Vicki Vann and Susan Barkehall Thomas, Equity and Trusts in Australia
(Cambridge University Press, 2nd Ed, 2017) 354–363 (Bryan, Vann and Barkehall Thomas)
(See online Reading Guide for free online access)
PLA s 53(2)
5.1.1
Are mortgage repayments regarded as contributions to purchase price?
Calverley v Green (1984) 156 CLR 242, 245–265
BMM6/7 9.80
5.1.2
The presumption of advancement
Trustees of the Property of Cummins (A Bankrupt) v Cummins (2006) 227 CLR 278
297–304; [55] – [74]
BMM6/7 9.75–9.95
5.2
Constructive Trusts
BMM 6/7 8.185
5.2.1
Common Intention Constructive Trusts
Bryan, Vann and Barkehall Thomas 369 - 375 (See online Reading Guide for free
online access)
Ogilvie v Ryan [1976] 2 NSWLR 504
Vedejs v Public Trustee [1985] VR 569
5.2.2
Estoppel/Equities
BMM6/7 8.195 - 8.235
Inwards v Baker [1965] 2 QB 29
16
Giumelli v Giumelli (1999) 196 CLR 101, 111–126
Sidhu v Van Dyke (2014) 251 CLR 505 [1]–[22], [77]–[86]
5.2.3
Unconscionable retention of benefit or Baumgartner Constructive Trusts
BMM6/7 8.185, 9.120
Muschinski v Dodds (1985) 160 CLR 583
Baumgartner v Baumgartner (1987) 164 CLR 137, 139–143; 146–150
Bryan, Vann and Barkehall Thomas 369–380 (See online Reading Guide for free
online access)
Further reading
Susan Barkehall Thomas, ‘Proprietary Estoppel and Common Intention Constructive
Trusts: Is it time to abandon the distinction?’ (2014) Singapore Journal of Legal
Studies 168.
5.2.4
Institutional vs. remedial constructive trusts and expectation relief vs. lesser
form of equity
McNab v Graham [2017] VSCA 352
5.2.5
For noting only
The Family Law Act 1975 (Cth) provides its own mechanisms for resolving property
disputes between married couples and same–sex and heterosexual de facto
couples, making recourse to the resulting trust, the constructive trust and proprietary
estoppel largely obsolete for resolution of property claims between parties to these
categories of relationships. However the equitable principles are still relevant where
issues arise outside the context of the breakdown of a relationship, such as on death
or bankruptcy, or between parties who are not in intimate domestic relationships (e.g.
parent and adult child).
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6.
Protecting Registered and Unregistered interests in the Torrens system
6.1
The caveat system
BMM6/7 5.25 – 5.100 (Victorian provisions only)
6.1.1
What is a caveatable interest?
TLA ss 89, 118
Black v Garnock (2007) 230 CLR 438 (BMM6/7 5.190)
Swanston Mortgage Pty Ltd v Trepan Investments Pty Ltd & Registrar of Titles (1994)
VR 672 (BMM6/7 5.40)
6.1.2
Removal of a caveat
BMM6/7 5.80 – 5.100
TLA ss 89(1), 89A, 90
Piroshenko v Grojsman [2010] VSC 240
Further reading
Robert Hay and Brett Harding, ‘The use and abuse of caveats’ (2018) 27 Australian
Property Law Journal 1
6.1.3
Caveats and Fraud
TLA s 106(1)(iii)
The improper lodgement of caveats by legal practitioners is a serious problem.
There is a growing number of cases where courts have made costs orders directly against legal
practitioners who have improperly lodged caveats, and in some cases, the referral of a practitioner to
the Legal Services Board for disciplinary action.
Please read the document titled ‘The improper lodgment of caveats by legal practitioners’ on Moodle.
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7.
Priority disputes between unregistered interests in land
7.1
Priority Tests: Determining priority between a prior equitable interest vs. a subsequent
equitable interest
BMM6/7 5.105 – 5.110
7.1.1
The ‘notice’ test
BMM6/7 5.120, 5.205
Moffett v Dillon [1999] 2 VR 480 (BMM6/7 5.120)
PLA (Vic) s 199 (BMM6/7 5.120)
Reconsider Perpetual Trustee Co Ltd v Smith (2010) 186 FCR 566 [1]–[2], [38]– [74]
especially [69]– [74] (BMM6/7 5.120)
7.1.2
The merits tests
BMM6/7 2.565–2.590, 5.115–5.210, 5.205, 5.215, 5.230
Rice v Rice (1854) 61 ER 646 (BMM6/7 2.575–2.580)
Abigail v Lapin [1934] AC 491 (BMM6/7 5.155 – 5.165)
J & H Just Holdings Pty Ltd v Bank of New South Wales (1971) 125 CLR 546
(BMM6/7 5.160–5.165)
Heid v Reliance Finance Corp Pty Ltd (1983) 154 CLR 326 (BMM6/7 5.115, 5.170 &
2.570 -2.575)
Jacobs v Platt Nominees [1990] VR 146 (BMM6/7 5.115, 5.180)
7.1.3
The effect of caveats on priority
J & H Just Holdings Pty Ltd v Bank of New South Wales (1971) 125 CLR 546
(BMM6/7 5.160–5.165, 5.185)
Heid v Reliance Finance Corp Pty Ltd (1983) 154 CLR 326 (BMM6/7 5.170)
Jacobs v Platt Nominees [1990] VR 146 (BMM6/7 5.180)
Black v Garnock (2007) 230 CLR 438 (BMM6/7 5.190)
19
Further reading
Sharon Rodrick, ‘Resolving Priority Disputes Between Competing Equitable Interests
in Torrens System Land: Which Test?’ (2001) 9 Australian Property Law Journal 172
7.2
Priority Test: Determining priority between a prior equity and a subsequent equitable
interest
7.2.1
What is an ‘equity’?
BMM6/7 5.245 – 5.280
7.2.2
The priority rule
BMM6/7 5.245 - 5.250, 5.275 - 5.280, 7.465 - 7.480
(a)
What is the position of a purchaser from a mortgagee who has improperly
exercised the power of sale after registration?
TLA s 77(4)
Latec Investments Ltd v Hotel Terrigal Pty Ltd (in liq) (1965) 113 CLR 265
(BMM6 5.40 note 66, 5.255, 5.275 or BMM7 5.40 note 67, 5.255, 5.275).
Copy available on Moodle
(b)
What is the position of a purchaser from a mortgagee who has improperly
exercised the power of sale prior to registration and what is the position at
the mortgagor?
(c)
Can the mortgagor lodge a caveat to stop registration?
Swanston Mortgage Pty Ltd v Trepan Investments Pty Ltd (1994) 1 VR 672
(BMM6/7 5.40 and end of 5.255)
Vasiliou v Westpac Banking Corporation [2007] VSCA 113 (BMM6 5.35 at
footnote 59 or BMM7 5.35 at footnote 60)
(d)
Can the mortgagor seek an injunction to stop registration?
Forsyth v Blundell (1973) 129 CLR 477 BMM6/7 7.475
Further reading
D Wright, ‘The Continued Relevance of Divisions in Equitable Interests to Real Property’
(1995) 3 Australian Property Law Journal 163.
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