Real Property - Real Property Acts, 1861 To 1963 PDF

633
THE
REAL PROPERTY ACTS, 1861 to 1963
Real Property Act of 1861, 25 Vic. No. 14

Amended by
Criminal Statutes Repeal Act 1865, 29 Vic. No. 14 (Repealed)
Real Property Act of 1877, 41 Vic. No. 18
Criminal Code Act, 1899, 63 Vic. No. 9
Acts Citation Act of 1903, 3 Edw. 7 No. 10
Land Surveyors Act of 1908, 8 Edw. 7 No. 3
Public Curator Act of 1915, 6 Geo. 5 No. 14
Justices Acts and Real Property Fees Act of 1932, 23 Goo. 5 No. 7
Real Property Acts Amendment Act of 1942, 6 Geo. 6 No. 14
Australian Consular Officers' Notarial Powers and Evidence Act of 1946,
10 Geo. 6 No. 43
Real Property Acts Amendment Act of 1952, 1 Eliz. 2 No. 43
Real Property Acts Amendment Act of 1956, 5 Eliz. 2 No.7
Limitation Act of 1960, 9 Eliz. 2 No. 7
Evidence and Discovery Acts and Other Acts Amendment Act of 1960,
9 Eliz. 2 No. 22
Real Property Acts Amendment Act of 1963, No. 25
An Act to simplify the Laws relating to the Transfer and Encumbrance

of Freehold and other Interests in Land
[Assented to 7 August 1861]
Preamble. Whereas it is expedient to amend the Laws relating to the
transfer and encumbrance of freehold and other interests in land in the
Colony of Queensland
1. Repeal of previous Acts. From and after the commencement of this
Act all Laws Statutes Acts Ordinances Rules Regulations and Practice
whatsoever relating to freehold and other interests in land so far as they
may be inconsistent with the provisions of this Act and so far as regards
their application to Land under the provisions of this Act or the bringing
of Land under the provisions of this Act shall be and the same are hereby
repealed
This section does not do away with the existence of equitable interests in
land under the Act, Re Wildash and Hutchison (1877), 5 S.C.R. 46; 1 Q.L.R., Pt.
II, 47; Barry Y. Heider (1914), 19 C.L.R. 197; Real Prl..'perty Act of 1877. s. 51,
p. 752, post.
The Registration of Deeds Act of 1843, s. 16, p. 785, post, does not apply
to land under this Act, Allison v. Petty (1899), 9 Q.L.J. 125.
634 REAL PROPERTY Vol. 14
This section has the effect of repealing the Statute of Uses, 27 Hen. 8, c. 10,
in its application to transfers of land under this Act, but not in its application
to wills, Holt v. Deputy Federal Commissioner of Land Tax (1914), 17 C.L.R.
720.
The provisions of Statutes 13 Eliz., c. 5, and 27 Eliz., c. 4, as to voluntary
settlements were held to apply to land under the Act, Colechin v. Wade (1817),
3 V.L.R. (Eq.) 266; Droop v. Colonial Bank (1881), 7 V.L.R. (Eq.) 71. See
now Mercantile Act of 1867. ss. 46-52, title MERCANTILE LAW, Vol. 12,
p. 124.
As to the effect of this section, see also Trust and Agency Co. v. Markwell
(1874).4 S.C.R. 50.
Parties cannot contract so as to exclude the application of the provisions
of this Act to dealings with land under this Act, Hill V. COX (1882). 1 Q.LJ. 78.
See also Power on The Real Property Acts of Queensland, p. 4.
2. Short title. This Act may be cited for all purposes as the "Real Property
Act of 1861"
Collective title conferred by Act of 1963, No. 25. s. 1 (3).
3. Interpretation of certain terms. In the construction and for the purposes

of this Act and in all instruments purporting to be made or executed
thereunder (if not inconsistent with the context and subject matter) the
following terms shall have the respective meanings hereinafter assigned to
them that is to say
"Land" shall extend to and include messuages tenements and
hereditaments corporeal and incorporeal of every kind and
description whatever may be the estate or interest therein
together with all paths passages ways waters water courses
liberties privileges easements plantations gardens mines
minerals and quarries and all trees and timber thereon or
thereunder lying or being unless the same are specially
excepted.
"Grant" shall mean the original grant of any land of the Crown
by the Governor for the time being
"Proprietor" shall mean any person seised or possessed of any
freehold or other estate or interest in land at law or in equity
in possession in futurity or expectancy
"Transfer" shall mean the passing of any estate or interest in land
under this Act whether for valuable consideration or otherwise
"Memorandum of transfer" shall mean any instrument in form D
of the Schedule hereto or in such other form as under the
provisions of this Act may for the like purpose be authorized
executed by any person with a view of transferring any estate
or interest in land
"Transmission" shall mean the acquirement of title to or interest in
land consequent on the death insolvency or marriage of a
proprietor
"Certificate of title" shall mean any instrument evidencing the seisin
of the fee simple or other estate of freehold in any land
executed by the Registrar-General in form C of the Schedule
hereto or such other form as under the provisions of this Act
may for the like purpose be authorised
"Mortgage" shall mean any charge on land created merely for
securing a loan
REAL PROPERTY ACTS, 1861 TO 1963 ss.1-3 635
"Mortgagor" shall mean the borrower of money on the security of

any estate or interest in land
"Mortgagee" shall mean the lender of money upon the security of
any estate or interest in land
"Bill of mortgage" shall mean any instrument in form F of the
Schedule hereto or in such form as under the provisions of
this Act may for the like purpose be authorised executed by
the intending mortgagor with a view to creating any such
mortgage as aforesaid
"Encumbrance" shall mean any charge on land created for the
purpose of securing the payment of an annuity or sum of
money other than a loan
"Encumbrancer" shall mean any person not being a mortgagor
who shall have charged any estate or interest in land with
any annuity or sum of money other than a loan
"Encumbrancee" shall mean any person not being a mortgagee for
whose benefit any estate or interest in land shall have been
charged with any annuity or sum of money other than a loan
"Bill of encumbrance" shall mean any instrument in form G of
the Schedule hereto or in such other form as under the
provisions of this Act may for the like purpose be authorised
executed by any person having estate or interest in land with
the view of creating any such encumbrance as aforesaid.
"Registration abstract" shall mean any instrument under the hand
and seal of the Registrar-General executed in the form M of
the Schedule hereto or in such other form as under the
provisions of this Act may for the like purpose be authorised
available in lieu of the register book for the purpose of
enabling a person to mortgage or to sell in places without the
limits of the said colony land whereof he may be seised as
proprietor
"Mentally sick person" shall have the meaning assigned to that
term by "The Mental Hygiene Act of 1938," and wherever
appearing in this Act the terms "insanity", "lunacy", and
"unsoundness of mind" and derivatives of those terms shall be
construed as referring to mentally sick persons
"Consular officer" shall include Consul-General Consul and Vice-
Consul and any person for the time being discharging the
duties of Consul-General Consular Vice-Consul
"Instrument" shall mean and include any land grant certificate
of title conveyance assurance deed will probate or exemplifica-
tion of will or any other document in writing relating to the
transfer or other dealing with land and any map or plan
lodged with the Registrar of Titles
The describing any person as proprietor transferor transferee
mortgagor mortgagee encumbrancer encumbrancee lessor or
lessee or as trustee or as seized of or having any estate or
interest in any land shall be deemed to include the heirs
executors administrators and assigns of such person
And generally unless the contrary shall appear from the context
every word importing the singular number only shall extend
to several persons or things and every word importing the
plural number shall apply to one person or thing and every
word importing the masculine gender only shall extend to a
female and shall include a body corporate and whenever a
form in the schedule hereto is directed to be used such
direction shall apply equally to any form to the like effect
signed by the Registrar-General or which for the same pur-
pose may be authorised under the provisions of this Act and
any variation from such forms not being a variation in matter
or substance shall not affect their validity or regularity
but they may be used with such alterations as the character
of the parties or the circumstances of the case may render
necessary
As amended by Acts Citation Act of 1903, s. 10; Act of 1952, 1 Eliz. 2 No.
43, s. 3.
Act referred to:
Mental Hygiene Act of 1938; see now Mental Health Acts, 1962 to J 964,
title MENTAL HEALTH, Vol. 11, p. 715.
As to what constitutes an instrument under the Act for purposes of applying
this section to construction, see Walters v. Eldridge (1891), 4 Q.L.J. 118; Hayes
v. Bourne (1895), 7 Q.L.J. 146.
"Land."-See also Acts Interpretation Acts, 1954 to 1962, s. 36, title ACTS
OF PARLIAMENT, Vol. 1, p. 95.
A right to all standing timber on land suitable for sawing with the right to
enter and remove the same was held to be land for purposes of this Act, Connolly
v. Noone, [1912] St. R. Qd. 70; [1912] Q.W.N. 19.
Semble, the words "messuages tenements and hereditaments corporeal and
incorporeal" have the same meaning as at common law, Sander v. Twigg (1887).
13 V.L.R. 765.
"Hereditaments" covers the ownership of mines and minerals severed in title
from the remainder of the land, Chirnside v. Registrar of Titles. [1921] V.L.R.
406.
"Proprietor."-See also Real Property Act of 1877, s. 3, p. 737 . •ryOSf. As
to "registered proprietor", see s. 34, post.
"Memorandum of transfer".-See also s. 48, and notes thereto. The form
now in use is printed immediately after form D of the Schedule.
"Transmission".-See ss. 88, 89; Real Property Act of 1877. S8. 32-34. 49.
post.
"Certificate of titIe".-See s. 33. The form now in use is printed immediately
after form C of the Schedule.
"Mortgage", "Bill of mortgage".--See s. 56.
"Encumbrance", "Bill of encumbrance".-See ss. 56 et seq.
As to what constitutes an annuity, see Mahony v. Hosken (1912). ]4 C'.L.R.
379.
"Registration abstract".-See s. 105.
"Heirs".-As to the present effect of the reference to "heirs" in the penultimate
paragraph, see Intestacy Act of 1877, s. 27, title SUCCESSION. The word "heirs"
in an instrument will be read as referring to the persons entitled under the law
as to devolution on intestacy as it stands at the time of the instrument becoming
operative. See Macnamara v. Macnamara (1929), 30 S.R.CN.S.W.) 245; Morrice
v. Morrice (1893),14 L.R.CN.S.W.) CEq.) 211; Re Goodwin (1904),4 S.R.(N.S.W.)
682; Re Crane (1908), 8 S.R.(N.S.W.) 132; Re Palmer (1902), 2 S.R.CN.S.W.)
CEq.) 200; In the Will of Connell, [1910] V.L.R. 471; Re Goodman's Trusts (1880), 6
V.L.R. (Eq.) 181. A devize "unto my nearest male heir" was held to mean the
testator's nearest male relative, Lightfoot v. Maybery, [1914] A.C. 782. See also
44 English and Empire Digest, p. 864.
The penultimate paragraph only applies to instruments in which persons are
described in the manner therein set out. Walters v. Eldridge (1891), 4 Q.L.l.
118.
With the earlier portion of the last paragraph, cf. Interpretation Acts, 1954
to 1962, s. 32, title ACTS OF PARLIAMENT, Vol. I, p. 93.
As to prescribed forms and their variation by the Registrar of Titles, iee
also S5. 9, 10. As to what constitutes a variation in matter or substance. see notes
to ss. 35, 56.
4. Functions of the Registrar-General and his department. The depart-

ment of the Registrar-General shall be the department authorized to
carry into execution the provisions of this Act and of any Acts to
amend or extend the provisions of this Act and the person holding the
office of Registrar-General at the time of this Act coming into operation
shall perform all the duties of Registrar-General under this Act
And whenever by any law for the time being in force in the said
Colony anything is appointed to be done by the Registrar-General the
same may be lawfully done by any Deputy Registrar-General
The duties powers and authorities conferred on the Registrar-General by this
Act and Real Property Act of 1877, p. 737, post, have been transferred to the
Registrar of Titles and references in this Act to the Registrar-General are to be
read as references to the Registrar of Titles. See Registrar of Titles Act of 1884,
p. 777, post. As to Deputy Registrars of Titles, branches of the Office of the
Registrar of Titles and duplicate register books within the Central and Northern
Divisions, see Real Property (Local Registries) Act of 1887, p. 773, post.
As to the nature of the duties of the Registrar of Titles, see cases cited under
s. 32.
5. Appointment of Registrar-General. Upon the death resignation or

removal from office of the Registrar-General or of any Deputy Registrar-
General it shall be lawful for the Governor with the advice of the
Executive Council by Commission under his hand and the seal of the
Colony to appoint a fit and proper person to be Registrar-General or
Deputy Registrar-General as the case may be and every such person to
remove and to appoint another in his stead
Deputy Registrars of Titles may be appointed under Registrar of Titles Act of
1884, s. 3, p. 778, post. As to Deputy Registrars of Titles in the Central and
Northern Districts, see Real Property (Local Registries) Act of 1887, p. 773,
post.
6. Oaths of office. The oath following shall be taken before a Judge

of the Supreme Court by the present Registrar-General and Deputy
Registrar-General and by every Registrar-General and by every Deputy
Registrar-General that may hereafter be appointed before entering upon
the execution of his office
I A.B. do solemnly swear that I will faithfully and to the best of
my ability execute and perform the office and duties of
Registrar-General [or Deputy Registrar-General] for the
Colony of Queensland according to the provisions of the
Real Property Act 1861 So HELP ME GOD
7. Certificates and documents purporting to be signed and sealed in a

given manner to be received as evidence. All documents purporting to be
issued or written by or under the directions of the Registrar-General
and purporting to be sealed with his seal of office or signed by him or by
one of his deputies shall be received in evidence and shall be deemed
to be issued or written by or under the direction of the Registrar-General
without further proof unless the contrary be shown
As to signed and sealed certified copies, see s. 122.
8. Seal of office. The Registrar-General shall have and use a seal of

office bearing the impression of the Royal Arms of England and having
inscribed in the margin thereof the words "Registrar-General Queensland"
and the imprint of such seal shall be valid whether made in wax ink or
other substance
See Registrar of Titles Act of 1884, s. 5, p. 778, post, and Real Property
(Local Registries) Act of 1887, s. 10, p. 775, post.
9. Registrar-General with sanction of Governor to issue forms of

instruments, etc. The Registrar-General may from time to time subject
to the approval of the Governor and the Executive Council make such
alterations in the several forms of instruments prescribed in the schedule
hereto as he may deem requisite and shall before finally issuing any such
altered form give such public notice thereof as he may deem necessary
and shall cause every such form to be sealed with his seal or marked
with some other distinguishing mark and to be supplied at the General
Registry Office free of charge or at such moderate prices as he may from
time to time fix or may license any person to print and sell the same
and every such form if made in a form purporting to be a proper form
and to be sealed or marked as aforesaid shall be taken to be made in the
form hereby required or in the form sanctioned by the Registrar-General
unless the contrary is proved
See also the last paragraph of s. 3, Merry v. Australian Mutual Provident
Society (1872), 3 S.C.R. 40, at p. 57.
The Registrar of Titles has substituted altered forms for those contained in
Schedules C and D, p. 726, post. The altered forms are printed following those
Schedules.
10. Penalty for not using forms issued by the Registrar-General. and
every person who in any case in which a form prescribed by this Act
or sanctioned by the Registrar-General is by this Act required to be used
uses without reasonable excuse any form not so prescribed or sanctioned
or who prints sells or uses any document purporting to be a form so
sanctioned knowing the same not to be so sanctioned for the time being
or not to have been prepared and issued by the Registrar-General
shall for each such offence incur a penalty not exceeding twenty dollars
As amended by Criminal Code Act, 1899, s. 3.
Decimal Currency reference substituted pursuant to section 7 of Decimal
Currency Act of 1965.
See also s. 143.
11. Powers of Registrar. The Registrar-General may exercise the

following powers that is to say
( 1) To inspect documents. He may require any proprietor or
other person making application to have land brought under
the provisions of this Act or any proprietor mortgagee or
other person interested in land under the provisions of this
Act in respect of which any transfer lease mortgage encum-
brance or other dealing or any release from any mortgage
or encumbrance is about to be effected or in respect of which
any transmission is about to be registered or registration
abstract granted under this Act to produce all deeds wills
or other instruments in his possession or within his control
affecting such land or the title thereto
(2) To summon and examine witnesses. He may summon any

such proprietor mortgagee or other person to appear and
give evidence respecting such land or the instruments affecting
the title thereto and if upon requisition in writing made
by the Registrar-General such proprietor mortgagee or other
person refuses or neglects to produce any such instrument
or to allow the same to be inspected or refuses or neglects
to give any evidence which he is hereinbefore required to
give or knowingly misleads or deceives any person herein-
before authorised to demand any such evidence he shall for
each such offence incur a penalty not exceeding two hundred
dollars and the Registrar-General if the instrument or
information so withheld appears to him material shall not
be bound to proceed with the bringing of such land under
the provisions of this Act or with the registration of such
mortgage or sale or with the issuing of such powers of
mortgage or sale as the case may be
(3) To administer oaths. He may administer oaths or in lieu
of administering an oath may require any person examined
by him to make and subscribe a declaration of the truth of
the statements made by him in his examination
( 4) To correct errors. He may upon such evidence as shall
appear to him and the Master of Titles sufficient in that
behalf correct errors in certificates of title or in the register
book or in entries made therein respectively and may supply
entries omitted to be made under the provisions of this Act
Provided always that in the correction of any such error he
shall not erase or render illegible the original words and shall
affix the date on which such correction was made or entry
supplied together with his initials and every certificate of title
so corrected and every entry so corrected or supplied shall
have the like validity and effect as if such error had not been
made or such entry omitted except as regards any assurance
or instrument which may have been entered in the register
book previously to the actual time of correcting such error
or supplying such omitted entry
(5) To enter caveats. He may enter a caveat on behalf of the
Crown or on behalf of any person who may be absent from
the Colony or who may be under the disability of infancy
or mental sickness to prohibit the transfer or dealing with
any land belonging to or supposed to belong to the Crown
or any such absentee or person under disability as aforesaid
or on behalf of any person whose rights may appear to him
likely to be endangered or compromised by any misdescription
of land or of its boundaries of which he may be cognizant
(6) To delegate powers. He may in relation to any particular
matter or class of matters or to any particular district, by
writing under his seal, delegate to an officer employed in
his office such of his functions, powers and duties under this
Act as he considers necessary (except this power of delega-
tion) so that any function, power or duty so delegated may be
exercised or performed by the delegate with respect to the
matter or class of matters, or to the district specified in the
instrument of delegation
Provided that every such delegation shall be revocable

at will and that no such delegation shall prevent the exercise
of any power by the Registrar of Titles:
Provided further that this power of delegation shall not
be exercised by a Local Deputy Registrar without the prior
consent of the Registrar of Titles
As amended by Act of 1952, 1 Eliz. 2 No. 43, s. 4.
Decimal Currency reference substituted pursuant to section 7 of Decimal
With regard to the power of the Registrar to require production of a certificate
of title under paragraph (1) before a transfer of the land comprised therein has
been lodged, see Registrar-General v. Wright (1917), 23 C.L.R. 214.
Refusal by the person who has possession of an instrument to produce it
may be justified, Re Armitage (1891), 17 V.L.R. 77; Anthony v. Speed, [1917]
S.A.L.R. 110; MafJey v. Tadgell, [1925] V.L.R. 58l.
For the right of a witness to expenses, see s. 13 8.
With paragraph (2), cf. the powers under ss. 120. 130.
As to paragraph (4), see Redapple v. Hely (1931), 45 C.L.R. 452; C/lOlI'ood
Ltd. v. Lyall [1930] 2 Ch. 156; [1930] All E.R. Rep. 402.
For an example of the powers of correction exercisable by the Registrar-General
under paragraph (4) of this section, see Re N. Jobson (1950), 51 S.R.(N.S.W.)
76. Semble those powers would not extend to the rectification of the description
of the land comprised in the certificate of title and the register-book where the land
had undergone a gradual process of accretion from, e.g., the silting caused by
change in the course of a river. Compare Humphrey v. Burrell, [1951] N.Z.L.R.
2621.
As to correction of certain errors in Crown grants, see Land Acts, 1962 to
1965, SS. 9, 10, title LAND, Vol. 9, p. 130.
The disability of a registered proprietor must be stated on his certificate of
title, s. 33.
The Registrar may enter a caveat only when land is under the Act, not
against bringing it under the Act, Re Walker (1890), 11 L.R.(N.S.W.) 369.
The Registrar can lodge a caveat under paragraph (5) to protect portion of
a public highway which has been included in a certificate of title, Municipal District
of Concord v. Coles (1905), 3 C.L.R. 96.
As to whether a caveat can be entered to prevent assignment of a lease in
breach of covenant, see Re Martin, [1900] S.A.L.R., at p. 82; [1902] A.C. 104.
The procedure for removal of caveats under s. 99, applies to caveats entered
under this section, Ex parte Davenport (1872), 3 S.C.R. 95; Re Hill and Dodgson,
[1903] SI. R. Qd. 101, at p. 106.
12. Appointment of Master of Titles. It shall be lawful for the Governor

with the advice of the Executive Council by commission under his hand
and the seal of the Colony to appoint a person who shall be styled "The
Master of Titles" and who together with the Registrar-General shall
investigate and deal with applications for the bringing of land under the
provisions of this Act
The Registrar of Titles now performs the functions conferred on the
Registrar-General. See note to s. 4.
13. Master of Titles shall be a Barrister-at-Law or an Attorney of the

Supreme Court. The Master of Titles shall be a Barrister-at-Law or an
Attorney of the Supreme Court and he shall not directly or indirectly be
concerned in any case relating to the title to freehold land
REAL PROPERTY ACTS, 1861 TO 1963 ss.Il-15A 641
14. Opinion of Supreme Court may be obtained. It shall be lawful for

the Registrar-General and the Master of Titles in any case under the
provisions of this Act by order of a Judge to state any question or questions
of law in a special case for the opinion of the Supreme Court
See also s. 27.
The court cannot be required to give directions as to administrative details
consequent on its decision of a question of law, Re Nerang Creek Portion (1879),
1 Q.L.J. Supp. 57. As to when a special case will be ordered to be stated, see
R. v. Registrar-General; Ex parte Roxburgh (1868), 1 S.C.R. 201.
The Master of Titles can only appear on a special case on his own behalf
or on that of the Registrar of Titles, Re Warry's Will (1865), 1 S.C.R. 136.
It is the duty of the court to answer the questions of law on the assumption
that the facts stated are correct; where the facts are disputed the matter should
not be raised by this procedure, Re Nerang Creek Portion, supra.
The parties are not bound by the decision of the court, ibid.
See hereon In the Will of Wockner, [1943] Q.W.N. 42, where, upon an
:tpplication for an order that the Registrar of Titles and the Master of Titles
,hould state a special case, the Master of Titles accepted the ruling of the judge
Zit chambers on the question at issue.
15. Land alienated after this Act to be subject to provisions of this Act.
All lands in the Colony remaining unalienated from the Crown on the day
appointed for this Act to come into operation whether waste lands or lands
set apart as roads or as reserves for public purposes shall when alienated
in fee be subject to the provisions of this Act
This Act came into operation from and after 1 January 1862, s. 144.
For payment to be made upon land being brought under this Act, see s. 41;
Land Acts. 1962 to 1968, s. 12, title LAND. Vol. 9, p. 132; State Advances
Reserve Fund, Real Property Acts Assurance Fund, etc., Transfer Approval Act
of 1931, s. 10 (not reprinted: see 1936 Reprint, title FUNDS, Vol. 3).
As to registration of Crown grant, see s. 34. See also, as to grants from
the Crown, Land Acts, 1962 to 1967, ss. 6-12, 285, title LAND, Vol. 9.
The Registrar has no authority to register dealings with land prior to its
alienation in fee by the Crown, Commonwealth v. New South Wales (1920),
33 C.L.R. 1.
Quaere, whether lands alienated prior to commencement of this Act which
have again become vested in the Crown are brought under the Act by this
sectIOn on subsequent alienation, Re Bourke's Application (1896), 7 Q.L.1. 133.
Where, however, a grant upon such subsequent alienation has been registered
under the Act in pursuance of an application in any form, the land is under the
provisions of this Act, ibid.
The Crown has always been assumed, when land is once under the Act, to
be bound by the Act, ibid., per Griffith, C.l. Compare Re Kelletfs Grant (1896),
7 Q.L.J. 10.
15A. Words of limitation. (l) Where, on or after the passing of "The

Real Property Acts Amendment Act of 1952,"-
(a) Any land not under this Act shall be conveyed, appointed or
otherwise assured to, or to the use of, any person without
words of limitation; or
(b) Any land, whether or not under this Act, shall be vested in
trustees upon any trusts declared, whether by the instrument
so vesting the land or by a separate instrument, and, whereby
equitable estates or interests are created or granted without
words of limitation; or
21
(c) Any other equitable estate or interest in any land, whether or

not under this Act, is created or granted by any deed or other
document in writing without words of limitation,
then-
(i) Such conveyance, appointment, or other assurance shall be
construed to pass the fee simple or other the whole estate
or interest which the grantor, appointor, or person otherwise
assuring has power to dispose of thereby in such land unless
a contrary intention shall appear by the conveyance, appoint-
ment or other assurance;
(ii) Such instrument declaring the trusts shall be construed, in
respect of the equitable estates or interests thereby created or
granted, to pass the fee simple or other the whole estate or
interest which the settlor had power to dispose of in the land
the subject thereof unless a contrary intention shall appear by
the instrument; and
(iii) Such deed or other document in writing shall be construed, in
respect of the equitable estate or interest thereby created or
granted, to pass the fee simple or other the whole estate or
interest which the person thereby creating or granting the same
had power to dispose of unless a contrary intention shall
appear by that deed or other document in writing.
(2) In this section-
(a) The term "instrument" means, in relation to the vesting of
land in trustees, any conveyance, appointment, assurance,
transfer, nomination of trustees, vesting order, declaration of
trust, or other document, whatsoever whereby land may be and
is vested in trustees; and
(b) The term "separate instrument" means, in relation to land
vested in trustees, any document whereby the trusts upon
which land is vested in trustees may be and are declared.
Inserted by Act of 1952, 1 Eliz. 2 No. 43, s. 5.
16. Lands granted prior to the day on which this Act comes into operation
may be brought under the operation of this Act. All land alienated from
the Crown in fee prior to the day appointed for this Act to come into
operation whether such land shall constitute the whole or only a part of the
land included in any grant may be brought under the provisions of this Act
in the following manner that is to say
The Registrar-General shall receive applications in form A of the
Schedule hereto or in words to the like effect for bringing land under the
provisions of this Act if made by any of the following persons that is to say
By any person claiming to be the person in whom the fee simple
of the land is vested in possession Provided that wherever
trustees seised in fee simple have no express power to sell the
land which they may seek to bring under the operation of this
Act the person claiming to be beneficially entitled for the first
estate of freehold in the said land shall consent in such
application
By any person claiming to be entitled beneficially to land for an
estate of freehold in possession
REAL PROPERTY ACTS, 1861 TO 1963 5S. 15A-17 643
By the father if he shall be living or if the father shall be dead

by the mother or other guardian of any minor claiming to be
entitled to land for an estate of freehold in possession in the
name of such minor
By the committee or administrator of the estate of any mentally
sick person claiming to be entitled to land for an estate of
freehold in possession in the name of such lunatic or person
of unsound mind
Undivided shares and mortgaged lands may not be brought under
Act except upon conditions. Provided always that the
Registrar-General shall not receive any such application from
any person claiming to be entitled to an undivided share of
any land unless the persons who shall appear to be entitled
to the other undivided shares of the said land shall join in
such application with a view to bringing the entirety of the
said land under the provisions of this Act nor shall the
Registrar-General receive any application from the mortgagor
of any land subject to mortgage to bring such land under the
provisions of this Act unless the mortgagee shall consent in
such application nor from the mortgagee of any land except in
the exercise of a power of sale contained in the mortgage deed
nor from the proprietor of any land in respect to which any
judgment may have been entered up unless the judgment
creditor shall consent to such application.
All applications must be made to the Registrar of Titles in Brisbane. Real
Property (Local Registries) Act of 1887, s. 7. p. 774, post.
As to application by an attorney with a power of sale, see s. 93. As to
application by a remainderman, see ss. 36-39. For power of the Public Curator
to apply, see Public Curator Acts, 1915 to 1957, 5S. 27 (1), 113, title TRUSTEES
AND EXECUTORS.
As to concurrence by persons having legal or equitable title where an
application is defective, see Real Property Act of 1877, s. 10, p. 738, post.
As to bringing under the Act land acquired by the Commonwealth, see Real
Property (Commonwealth Titles) Act of 1924, s. 3. p. 769, post.
With respect to bringing resumed land under this Act, see Acquisition of
Land Act of 1967, title WORKS; Railways Acts, 1914 to 1965, s. 50, title
RAILWAYS AND TRAMWAYS, p. 475, ({lite.
Land already under the Act cannot again be brought under the Act, Re
Bourke's Application (1896), 7 Q.L.J. 133.
It is sufficient that the applicant is entitled to an estate in possession; actual
physical possession is not essential, Ferguson v. Registrar of Titles, [1919] V.L.R.
509.
A trustee in whom the fee simple is not vested cannot apply to bring the fee
simple under the Act, Finucane v. Registrar of Titles, [1902] SI. R. Qd. 75.
As to existence of an unsatisfied judgment against the applicant see Re
Real Property Act of 1861, Special Case No. 1 (1862), 1 S.C.R. 56; Re Real
Property Act of 1861, Special Case No.2 (1862), 1 S.C.R. 60.
An application must be confined to one block or a contiguous tract of land,
Ex parte Burnell (1864), 3 S.C.R.(N.S.W.) 148.
See further Power on The Real Property Acts of Queensland, p. 23.
17. Applicant to deposit instruments of title and abstract if required. Every

such applicant shall in his application state the nature of his estate or
interest in such land and of every estate or interest held therein by any
other person whether at law or in equity in possession or in futurity or
expectancy and whether the land be occupied or unoccupied and if
occupied the name and description of the occupant and the nature of his
occupancy and whether such occupancy be adverse or otherwise and shall
state the names and addresses of the occupants and proprietors of all lands
contiguous to the land in respect to which application is made so far as
known to him and shall make and subscribe a declaration of the truth of
such statement and shall deposit with the Registrar-General all instruments
in his possession or under his control constituting or in any way affecting
his title to such land and also if required a plan of all Lands included in
such application and an abstract of title in which he shall set forth and
describe every instrument constituting or in any way affecting his title to
such land together with the names and so far as shall be within his
knowledge the addresses of all persons if any seised or possessed of any
estate or interest in such land at law or in equity in possession or in
futurity or expectancy and shall make and subscribe a declaration of the
truth of such abstract and that he has deposited with the Registrar-General
all deeds or other instruments in his possession or under his control
constituting or in any way affecting his title to such land or if such applicant
be the sole and only person having estate or interest in such land then he
shall make and subscribe a declaration to that effect
For contents of the application, see also form A in the Schedule, post. As
to certificate of correctness, see s. 139.
As to material alterations in an application, see Real Property Act of 1877, s. 9,
p. 738, post.
For application of the provisions relating to applications to bring land under
this Act to applications for transmission on death, see ibid., s. 33.
As to the interests of other persons which must be disclosed, see Re Beckett
(1894), 15 L.R.(N.S.W.) (L.) 94; Ex parte Pennington (1875), 13 S.C.R.(N.S.w.)
(L.) 305; Re Tanner (1886), N.Z.L.R. 5 S.C. 102.
An application by the owner in fee simple to bring land under the Act does
not lapse on the conveyance pending the application of the applicant's estate
to a purchaser, R. v. Registrar of Titles; Ex parte Murray, [1913] V.L.R. 546.
18. When applicant proprietor is original grantee and no transactions have

taken place certificate to be granted at once. Upon the receipt of any such
application the Registrar-General shall refer the same to the Master of
Titles for his consideration and if it shall appear to him that the applicant
is the original grantee from the Crown of the land in respect to which
application is made and that no sale mortgage or other encumbrance or
transaction affecting the title to such land has at any time been registered
then and in such case it shall be lawful for the Registrar-General to bring
such land under the provisions of this Act forthwith by issuing to the
applicant or to such person as he may by writing under his hand direct or
appoint a Certificate of Title for the same as hereinafter described
As to certificate of title, see s. 33.
19. Application to be advertised when title is complete. If it shall appear

to the satisfaction of the said Master of Titles that the land in respect to
which application is made is held by the applicant for the estate or interest
described therein free from mortgage encumbrance or other ber.eficial
interest affecting the title thereto or if any such mortgage encumbrance
or interest remains unsatisfied that the parties interested therein are also
parties to such application then and in any such case the Registrar-General
shall cause notice of such application to be advertised once in the
Queensland Government Gazette and at least once in each of two
newspapers published in this State, and where, in the opinion of the

Registrar of Titles, the land is situated at a distance more than twenty
miles from Brisbane, at least once in a newspaper circulating in the
neighbourhood of the land and shall further limit and appoint a time not
less than two weeks nor more than twelve months from the date of such
advertisement in the Government Gazette upon or after the expiration of
which the Registrar-General shall unless he shall in the interval have
received a caveat forbidding him so to do proceed to bring such land under
the provisions of this Act
As amended by Act of 1952, 1 Eliz. 2 No. 43, s. 8; Act of 1963, No. 25, s. 2.
As to a conveyance by the grantee from the Crown prior to the grant, see
Rcal Property Act of 1877, s. 8, p. 738. post.
Where a gOQd prima facie title, such as a purchaser WQuid be cQmpelled to'
take, is established, the land should be brQught under the Act, Re Eaton's Application
(1879), 1 Q.L.1. Supp. 9.
A person having a good title by adverse possession is entitled to have land
brought under the Act, Ex parte O'Neill (1897), 7 Q.L.J. 155. The Registrar must
determine the validity of such a title where it is advanced, ibid. To establish a
possessory title it must be shown that the proprietQr has been dispossessed, and
kept dispossessed, or has abandoned possession during the statutory period, and,
in addition, that there has been possession by some other person during the same
period, Maguire v. BrolVn (1913), 17 C.L.R. 365. With respect to the nature Qf
the possession necessary in order to support a possessory title, see also Clement v.
Jones (1909). 8 C.L.R. 133. As to possessory titles, see also Re Eaton's A pplicatiun
(1879), 1 Q.L.J. Supp. 9; Ex parte Hamilton (1864), 3 S.C.R.(N.5.W.) 311;
Re Cherry (1906), 2 Tas. L.R. 68; Soiling v. Broughton, [1893] A.C. 556;
Limitation Act of 1960, ss. 11 et seq., title LIMITATION, Vol. 9, p. 776.
See also the proviso to s. 20, post.
Where the Registrar of Titles is satisfied that a sale of the land in execution
of a judgment was invalid he may bring the land under the Act on the application
of a person claiming against such sale, without reference to the Supreme Court,
Re Baxter (1863), 1 S.C.R. 97.
Even where the Registrar has expressed himself as satisfied with a title and
directed the advertisement of the application and no caveat has been lodged, he is
still entitled to' refuse to bring land under the Act if information comes to' his
knowledge showing that the applicant has not a registrable title. Manning v.
Commissioner of Titles (1890), 15 A.pp. Cas. 195.
Caveats may be lodged under s. 23. The Registrar has no power to extend
the time fixed for filing caveats, Chappell v. Broughton (1889), 11 L.R.(N.S.W.)
(Eq.) 65; Gajjney v. McLaughlin (1901), 1 S.R.(N.S.W.) 373.
20. Applications to be advertised when title not complete. (1) If it shaii

appear to the satisfaction of the said Master of Titles that any parties
interested in any unsatisfied mortgage or encumbrance affecting the title
to such land or beneficially interested therein otherwise than as lessees are
not parties to such application or that the evidence of title set forth by such
applicant is imperfect or incomplete it shall be lawful for the Master of
Titles to reject such application altogether or to direct the Registrar-
General to cause notice of such application to be published in the
Queensland Government Gazette and in the London Gazette and in the
official Gazettes of each of the Colonies of New South Wales Tasmania
New Zealand Victoria South Australia and Western Australia or in any
one or more of such Gazettes and the said Registrar-General shall specify
the number of times and at what intervals such advertisements shall be
published in each or any of such Gazettes and shall also limit and appoint
a time not less than two months nor more than three years from the
date of the first of such advertisements in the Queensland Government
Gazette upon or after the expiration of which it shall be lawful for the
Registrar-General to bring such land under the provIsIOns of this Act

unless he shall in the interval have received a caveat forbidding him so
to do
Provided that if the Master of Titles is satisfied that the applicant has
established a title by possession for a period of thirty years or more of the
land except that the evidence of title set forth by the applicant is incomplete
or imperfect by reason of-
(a) A possible claim by any person who may have an estate or
interest in reversion or remainder or other future estate or
interest therein, or who may have had such an estate or
interest which has become an estate or interest in possession;
or
(b) The absence of the words of limitation "and his heirs" in any
conveyance, appointment or other assurance or instrument
forming part of the said evidence in which the words "in fee
simple" or the words "and his executors, administrators and
assigns" or other words of a similar import are used in place of
words of limitation,
then the Master of Titles may direct the Registrar of Titles to address the
said notice in particular by name (and so far as the knowledge of the
Registrar of Titles may enable him by last known address) to any and
every person who may upon investigation of the title appear to the Master
of Titles to have previously held or to possibly still hold any estate or
interest in the fee of such land.
Such a notice may be addressed to a person in particular by name
notwithstanding that there is evidence that he is not living.
Such a notice shall be addressed generally (but without naming them)
to all persons claiming through, under or from any person to whom it is
addressed by name.
The Registrar of Titles shall, under any such direction as last-
mentioned, cause the notice to be published in such additional manner as
by such direction may be specified and shall cause to be stated therein-
(i) That unless the Registrar of Titles shall have received a caveat
as hereinafter described forbidding him so to do, he shall bring
such land under the provisions of this Act by issuing to the
applicant or to such person as the applicant may by any
writing under his hand request or direct a certificate of title
for the same as hereinafter described; and
(ii) That thereupon any action for recovery of possession of the
said land or for recovery of compensation from the person
benefited by the bringing of such land under the provisions of
this Act or from the Assurance Fund by any and every person
to whom the notice is addressed in particular by name, or by
any and every other person claiming through, under or from
any of the persons so named shall be barred and the estate and
interest, right and title of any such persons shall be
extinguished.
Unless he shall, within the said time, have received a caveat forbiddinfr
him so to do, it shall be lawful for the Registrar of Titles to bring such
land under the provisions of this Act and thereupon the right to bring an
REAL PROPERTY ACTS, 1861 TO 1963 ss. 20, 21 647
action for the recovery of possession of the said land or any action for
the recovery of compensation from any person benefited by the bringing
of such land under the provisions of this Act or from the Assurance Fund
by any and every such named person or any person claiming through,
under or from him shall be barred and the estate and interest, right and
title of any and every such named person and of any and every person
claiming through, under or from any such named person to the said land
or any interest therein shall be extinguished:
Provided further that any such caveat lodged by any person claiming
an estate or interest in reversion or remainder or other future estate or
interest in the land shall not lapse until after the expiration of three months
from the date on which his right to bring an action for recovery of the said
land or the rent thereof or other interest has first accrued.
(2) Any person claiming to have an estate or interest in reversion or
remainder or other future estate or interest in any land not under this Act,
or claiming by virtue of such an estate or interest having become an estate
or interest in possession, may give written notice thereof at any time before
the issue of a certificate of title under this Act for that land to the Registrar
of Titles.
Such notice shall contain the following:-
(a) Such description as may be sufficient to identify the land in
respect of which the estate or interest is claimed;
(b) Particulars of the nature and of the origin of the estate or
interest claimed; and
(c) An address at which notices may be served on the claimant.
Any such person may at any time give written notice to the Registrar
of Titles of any change in the facts set forth in such firstmentioned written
notice.
As amended by Act of 1952, 1 Eliz. 2 No. 43, s. 9; Limitation Act of 1960,
s. 35.
Where the Master of Titles has information from some trustworthy sourct"
that the statements upon which the application is based are not true, he may
refuse the application, Municipal District of Concord v. Coles (1905), 3 C.L.R.
96. See also Manning v. Commissioller of Titles (1890), 15 App. Cas. 195,
cited under s. 19.
As to title by adverse possession, see also notes to s. 19.
21. Notice of application may be given by personal service or through the

post or by advertisement. It shall be lawful for the Registrar-General of
his own accord or at the request of the applicant to direct that notice of
any application to bring land under the provisions of this Act shall at the
expense of the applicant be given by personal service to any person named
in such direction and the Registrar-General shall preserve in his office the
affidavit or other evidence of such personal service and the proof of such
personal service or that any person had received notice of such application
through the post or by advertisement as herein directed or was cognizant
of such application having been made shall operate to bar any action of
ejectment or for the recovery of compensation from the person benefited
by the bringing of such land under the provisions of this Act or from the
Assurance Fund at the suit of the person so personally served with notice or
receiving notice through the post or otherwise cognizant of such application
or at the suit of any person claiming through under or from him unless it
shall be shown to the satisfaction of the Court before whom such action
shall be tried that such notice was not received or such cognizance
acquired in time to enable such person to lodge a caveat forbidding the
bringing of such land under the provisions of this Act as hereinafter
provided
As to the right to bring actions for recovery of land or for damages, see
S~. 123, 126, 127.
Noticcs under this section should be served within the time limited for
caveats under s. 19. See Chappell v. Broughton (1889), 11 L.R.(N.S.W.) CEq.) 65.
As to service by post, see also Acts Interpretation Acts, 1954 to 1962, s. 39,
title ACTS OF PARLIAMENT, Vol. 1, p. 100.
22. Notice of application to be published. Lands brought under the

Act. The Registrar-General shall under such direction as aforesaid
or under any order of the Supreme Court cause notice to be published
in such manner as by such direction or order may be prescribed that
application has becn madc for bringing the land therein referred to
under the provisions of this Act and shall also cause a copy of such
notice and of the map or diagram included in such application to be
posted in a conspicuous place in his office and in such other places as
he may deem necessary and shall forward through the Post Office
copies of such notice and of such map or diagram addressed to all
persons if any declared by the applicant to be in occupation of such land
or to be occupants or proprietors of land contiguous thereto and also to
such persons as may upon investigation of the title appear to have pre-
viously held estate or interest in the fee of such land so far as his
knowledge of thc addrcsscs of such persons may enable him or shall
cause the like notice to be served personally upon any person that he
may think fit or that the applicant may request and unless within the
time limited in such direction or order he shall have received a caveat
as hereinafter described forbidding him so to do he shall bring such land
under the provisions of this Act by issuing to the applicant or to such
person as he may by any writing under his hand request or direct a
certificate of title for the same as hereinafter described
As to certificate of title, see s. 33.
For contribution to be made to Consolidated Revenue upon land being brought
under this Act, see s. 41, and The State Advances Reserve Fund, The Real Property
Acts Assurance Fund, etc., Transfer Approval Act of 193 I, s. 10, title FUNDS,
(not reprinted: See 1936 Reprint, Vol. 3).
An application to bring land under the Act does not lapse on the con-
veyance to a purchaser in whose favour a nomination has been made. R. v.
Registrar of Titles; Ex parte Murray, [1913] V.L.R. 546.
When effect has been given to an application, in whatever form, to bring
land under this Act, by registering the title of the applicant, the registration under
the Act cannot be avoided by defects in the manner of procuring such registration.
Re Bourke's Application (1896), 7 Q.L.J. 133. See also s. 33.
23. Parties interested may enter caveat. Schedule B. It shall be lawful

for any person having or claiming an intercst in any land so advertised
or for the attorney of any such person within the time that may be
limited by su(:h direction or order as aforesaid to lodge with the Registrar-
General a caveat in form B of the schedule hereto forbidding the bringing of
such Jand under the provisions of this Act and every such caveat shall
particularize the estate intcrest lien or charge claimed by the person
lodging the same and the person lodging such caveat shall if required by
the Registrar-General deliver a full and complete abstract of his title which
REAL PROPERTY ACTS, 1861 TO 1963 5s.21·24 649
shall contain the same matters and be subject to the same regulations
as are hereinbefore prescribed for the case of an abstract deposited
by a person applying to have land brought under the provisions of this Act
As to abstract of title, see s. 17.
Only a person having a legal or equitable interest in land partaking of the
character of an estate or equitable claim may lodge a caveat, Municipal District
oj Concord v. Coles (1905), 3 C.L.R. 96; Tierney v. Loxton (1891), 12
L.R.(N.S.W.) 308.
There are cases in which a cestui que trust may lodge a caveat, Ex parte
Hodgson (1873), 3 S.C.R. 142; Re Ede (1873), 3 S.C.R. 162. As to the right
of a creditor claiming under an assignment for benefit of creditors to lodge a caveat,
see Ex parte Hodgson, supra.
As to whether the rights of a local authority in the material of roads entitle
it to lodge a caveat, see Concord Municipal District v. Coles (1905), 3 C.L.R. 96;
Local Government Acts, 1936 to 1967, s. 32 (12), title LOCAL AUTHORITIES,
Vol. 10, p. 443. A member of the public cannot caveat against an application
to bring part of a public road under the Act, Re Innes (1891), 12 L.R.(N.S.W.)
180. A Crown grantee of land described as bounded by a Government road cannot
caveat against an application to bring the road under the Act, Tierney v. Loxton,
supra.
A person in possession of the land and claiming adversely to the applicant,
but with no title under the Statute of Limitations is nevertheless entitled to lodge
a caveat and to put the sufficiency of the applicant's title to an issue, Wheeler
v. Baldwin (1934), 52 C.L.R. 609. A caveat claiming an interest as "owner
in fee simple by right of possession" is sufficient, Re Robertson (1907), 7
S.R.(N.S.W.) 474. A caveat claiming an estate or interest "by possessory title"
sufficiently claims an estate in fee simple by possession, Re Cooper (1904), 4
S.R.(N.S.W.) 470.
A person claiming a right of way is entitled to caveat, Re Houi!!O}l (1897), 18
L.R.(N.S.W.) 300. See also as to easements, Lean v. Maurice (1874), 8 S.A.L.R.
119; Re Schmid (1881), 15 S.A.L.R. 48.
A caveat "claiming estate or interest, documentary title" is bad, Re Mitchell
(1895), 16 L.R. (N.S.W.) 123. As to what is a sufficient statement of facts where
documentary title is claimed by the caveator. see also, Re Spencer (1904), 4
S.R.(N.S.W.) 471.
As to what is an "interest in any land", see also Sraples & Co. Ltd. v. Corby
(1900), 19 N.Z.L.R. 517.
A caveat is not bad for referring to the whole land when the interest claimed
is only in part thereof, Re Robertson (1907), 7 S.R.(N.S.W.) 474.
On the creation of easements, see Re Webb's Lease; Sandom v. Webb, [1951]
Ch. 808.
The section is only permissive and does not preclude an injunction to restrain
an application notwithstanding that no caveat has been filed. Public Trustee v.
Milrray (1922), 22 S.R.(N.S.W.) 555; Staples & Co. Ltd. v. Corby, supra. Com·
pare Walsh v. Alexander (1913), 16 C.L.R. 293, cited under s. 98. See also note
to s. 25.
24. If caveat be received within time limited proceedings stayed. The

Registrar-General upon receipt of any such caveat within the time limited
as aforesaid shall notify the same to the applicant and shall suspend
further action in the matter and the lands in respect of which such caveat
may have been lodged shall not be brought under the provisions of this
Act until such caveat shall have been withdrawn or shall have lapsed
from any of the causes hereinafter provided or until a decision shall have
been obtained from the Court having jurisdiction in the matter
See also s. 99.
The Registrar of Titles cannot extend the time limited, Gaffney v. McLaughlin
(1901). 1 S.R.(N.S.W.) 373; Chappell v. Broughton (1889), 11 L.R.(N.S.W.)
(Eq.) 65.
25. Caveats lapse unless proceedings taken within three months. After
the expiration of three calendar months from the receipt thereof every
such caveat shall be deemed to have lapsed unless the person by whom
or on whose behalf the same was lodged shall within that time have taken
proceedings in any Court of competent jurisdiction to establish his
title to the estate interest lien or charge therein specified and shall have
given written notice thereof to the Registrar-General or shall have obtained
from the Supreme Court an order prohibiting the Registrar-General from
bringing the land therein referred to under the provisions of this Act
The applicant may summon the caveator under s. 99, to show cause why the
caveat should not be removed. Where an applicant sought to oppose the
confirmation of an order restraining the Registrar made under this section, it was
held that his real object being to obtain the removal of the caveat, he must proceed
under s. 99, Re Cooper (1904), 4 S.R.(N.S.W.) 134.
Where proceedings to enforce the claim set up in the caveat have been
taken within three months the Registrar of Titles has no power to deal with the
caveat, Re Ede (1873), 3 S.C.R. 162.
Commencement of proceedings within three months prevents lapse of the
caveat even though final decision is not given within that time, Ex parte Hodgson
(1873), 3 S.C.R. 158. A caveat expires at the end of three months unless
proceedings are taken or an injunction obtained, Re Caird (1888), 9 L.R.(N.S.W.)
(L.) 424. When a writ to establish the title of the caveator lapses for non-service,
semble, the caveat lapses, Ex parte McIntosh (1871), 10 S.C.R. (N.S.W.) 146. Where
a writ was issued and renewed from time to time, but not served, the caveat was
removed under s. 99, Ex parte Pennington (1877), Knox (N.S.W.) 317, 376.
Where notice was not given to the Registrar of the commencement of proceedings
by the caveator, the caveat was held to have lapsed, Nicholls v. Lee (1890), 11
L.R.(N.S.w.) 122.
The limit of time and lapse of the caveat may be waived by the person
applying to bring land under the Act. Whether such waiver has taken place
is a question of fact, Wilson v. McIntosh, [1894) A.C. 129. See also, as to waiver,
Nichulls v. Lee, supra; Phillips v. Martin (1890), 11 L.R.(N.S.W.) 153.
A lapsed caveat cannot be revived by the court, nor can the applicant or
the Registrar be then restrained from proceeding with the application, Clissold v.
Bellomi (1889), 10 L.R.(N.S.W.) (Eq.) 187. But see Dwyer v. Caird (1888),
9 L.R.(N.s.W.) (Eq.) 119; Dwyer v. Caird (1889), 10 L.R.(N.S.W.) (Eq.) 83;
Collins v. Featherstone (1889), 10 L.R.(N.S.W.) (Eq.) 192. See also the
penultimate note to s. 23.
It is appropriate under this section for a caveator to bring an action complaining
that defendant has put plaintiff unjustifiably to expense by falsely asserting title,
Stockdale v. Hamilton (1866),5 S.C.R.(N.S.W.) 180; see also 6 S.C.R.(N.S.W.) 261.
On the withdrawal of an application to bring land under the Act, caveat
and injunction lapse and do not prevent a second application, Gaffney v. McLaughlin
(1901), I S.R.(N.S.w.) 373.
See Re N. lobsoll, [1950] 51 S.R.(N.S.W.) 76.
26. Caveats in certain cases not to bar the bringing of land under
this Act. The Registrar-General shall not notice any caveat prohibiting
the bringing of land under the provisions of this Act if the person lodging
the same claims only an estate or interest to take effect after the determina-
tion or in defeasance of an estate tailor prohibits the bringing of such
land under the provisions of this Act on the plea only of the absence
of legal evidence that a former proprietor was in being and capable at
the time when any power of attorney executed by such proprietor was
exercised by his attorney in the selling or purchasing or releasing of
such land
This section by no means gives the caveator a right to object to the title,
and merely provides that if the title is questioned then such and such objections
are not to be taken, Ex parte Hodgson (1873), 3 S.C.R. 158.
27. Applicant may summon Registrar-General to show cause if dis-

satisfied. If upon the application of any proprietor to have land of which
he is seized brought under the provisions of this Act the Registrar-
General shall refuse so to do or if such applicant shall be dissatisfied
with the decision upon his application given by the Master of Titles
it shall be lawful for him to require the Registrar-General to set forth
in writing under his hand the grounds of his refusal or the grounds upon
which such decision was given and such applicant may if he think
fit at his own costs summon the Registrar-General to appear before the
Supreme Court to substantiate and uphold the grounds of his refusal
or of such decision as aforesaid
and the summons in every such case shall be issued under the hand
of a Judge of the said Court at the request of such applicant or his
solicitor and shall be served upon the Registrar-General six clear days
at least before the day appointed for the hearing
and every such case shall be heard by the said Court upon motion
and if any question of fact shall arise upon the hearing the said Court
shall direct an issue to be tried to decide such fact and it shall thereupon
be lawful for the said Court to prohibit the bringing of such land under
the provisions of this Act or to order that such land may be brought
under the same after the expiration of such period of time as the said
Court shall think fit not exceeding the period limited by any law for the
time being in force in the said Colony as the period within which actions
of ejectment may be brought and the Registrar-General shall obey such
order
The Registrar of' Titles and the Master of Titles may apply for the court's
orinion under s. 14.
The Registrar of Titles should set forth clearly the specific defects in title
which are the grounds of his decision, Re Eaton's Application (1879), 1 Q.L.J.
Supp. 9. The grounds of refusal may be reasons in law as well as fact, Ex parte
Bond (1880), 6 V.L.R. 458, at p. 463.
Upon proceedings under this section, the whole substance of the matter in
dispute may be thoroughly examined, Manning v. Commissioner of Titles (1890),
15 App. Cas. 195.
As to issues which may be ordered to be tried, cf. Wheeler v. Baldwin
(1934), 52 C.L.R. 609.
28. Case may be argued by counsel. Expense to be borne by applicant.

Upon any such motion as aforesaid it shall be lawful for the Registrar-
General or for any person interested in any land touching or concerning
the title to which such motion shall be made by himself or his counsel
to argue the same before the said Court and all expenses attendant
upon any of the matters or proceedings aforesaid shall be borne and paid
by the person requiring such land to be brought under the provisions
of this Act
29. Applicant may withdraw his application. It shall be lawful for any
applicant to withdraw his application at any time prior to the issuing of a
certificate of title and the Registrar-General shall in such case upon
request in writing signed by such applicant return to him the abstract
and all instruments of title deposited by him for the purpose of supporting
his application
See also Real Property Act of 1877, s. 9, p. 738, post.
30. Instruments of title if they include other property to be returned

to applicant. Upon issuing a certificate of title bringing land under the
provisions of this Act the Registrar-General shall stamp as cancelled
and retain in his office every instrument of title deposited by the proprietor
when making his application
Provided that if any such instrument shall relate to or include any
property whether personal or real other than the land included in such
certificate of title then the Registrar-General shall endorse thereon a
memorandum cancelling the same in so far only as relates to the land
included in such certificate of title and shall return such instrument to
the proprietor otherwise he shall retain the same in his office
Provided also that the powers or authorities of the guardian of any
minor or of the committee or administrator of the estate of any mentally
sick person shall in no wise be altered or abridged in consequence of the
issuing of any certificate of title in the name of such minor or mentally
sick person.
As amended by Act of 1952, 1 Eliz. 2, No. 43, s. 10.
As to production of cancelled deeds, see s. 46.
Where any interest under a deed is outstanding and not brought under the
Act the deed should not be wholly cancelled, R. v. White (1904), 4 S.R.(N.S.W.)
379.
The cancellation of a conveyance does not have the effect of cancelling the
covenants contained therein, Staples and Co. v. Corby (1900), 19 N.Z.L.R. 517.
31. Certificate of title to issue in name of deceased applicant. Succession
not interfered with thereby. In case any person applying to have land
brought under the provisions of this Act or any person to whom any such
applicant may have directed a certificate of title to be issued shall die in
the interval between the date of the application and the date appointed for
the certificate of title to issue the certificate of title shall be issued in the
name of such applicant or in the name of the person to whom he may have
directed it to be issued as the case may require and the land shall devolve
in the same manner as if the certificate of title had been issued prior to the
death of such applicant or person so named by him
_AJmpare Land Acts, 1962 to 1968, s. 7, title LAND, Vol. 9, p. 129.
32. Registrar-General to keep register book. The Registrar-General shall
keep a book to be called the "Register Book," and shall enter therein the
duplicates of all grants and of all certificates of title and shall record thereon
the particulars of all instruments including any plans affecting the land
included under each such grant or certificate of title distinct and apart
As amended by Act of 1952, 1 Eliz. 2, No. 43, s. 11.
As to contents of the register book, see also s. 35.
As to Local Register Books established in the Central and Northern Districts,
and registration of transactions therein, see Real Property (Local Registries) Act of
1 S,)7. p. 773. post.
It is the duty of the Registrar to keep a correct register and he is therefore
not bound to register an instrument failing to comply with a requirement of the
Act, McGlone v. ReRistrar of Titles (1886), 2 Q.LJ. 182. But mandamus will lie
to compel the Registrar of Titles to register a bona fide instrument substantially
in the form required by this Act; any difficult question of law as to the effect of
the imirument when registered is not for him to decide. Mutual Assurance Society
v. RCRistrar-General (1883), 1 Q.L.J. 177; R. v. ReRistrar-General; Ex parte
Rox!JilI'!;h (1868), 1 S.C.R. 201; Re White and Shaw (1894), 6 Q.L.J. 55;
Perpetllal Executors and Trustees Assoc. v. Hosken (1912), 14 CoL.R. 286;
Crowley v. Templeton (1914). 17 CoL.R. 457, at p. 465; R. v. Registrar of Titles
(1915)' 20 C.L.R. 379. The Registrar may refuse to register an instrument which
he knows constitutes a breach of trust Templeton v. Leviathan Pty. Ltd. (1921),
30 C.L.R. 34. He cannot question the propriety of an order within the jurisdiction
of the Supreme Court and purporting to authorize a dealing sought to be registered,
ibid.; Assets Co. Ltd. v. Mere Roihi, [1905] A.C. 176. See also A.-G. v. Odell,
[1906] 2 Ch. 47; notes to ss. 35, 36.
It appears that the High Court has jurisdiction to issue a mandamus to the
Registrar to register an instrument at the suit of the Commonwealth. See R. v.
Registrar of Titles (1915), 20 C.L.R. 379.
As to duties of the Registrar of Titles, see also Power on The Real Property
Acts of Queensland, p. 16.
33. Certificates of title to be in duplicate and to be bound up in register.
Schedule C. Every certificate of title shall be in duplicate and in the form
C of the Schedule hereto and the Registrar-General shall note thereon in
such manner as to preserve their priority the particulars of all unsatisfied
mortgages or other encumbrances and of every lease rent charge or term
of years or outstanding estate or interest whatsoever affecting such land
which may have been registered or of which he may have notice and if
such certificate be issued to a minor or to a person otherwise under
disabilities he shall state the age of such minor or the nature of the
disability so far as known to him and shall cause one of such certificates
of title to be bound up in the register book and shall deliver the other to the
person entitled to the land described in such certificate
and every certificate of title duly authenticated under the hand and
seal of the Registrar-General shall be received in all Courts of Justice as
evidence of the particulars therein set forth and of their being entered in
the register book and shall be conclusive evidence that the person named
in such certificate of title or in any entry thereon as seised of or as taking
estate or interest in the land therein described is seised or possessed of
such land for the estate or interest therein specified and that the property
comprised in such certificate of title has been duly brought under the
provisions of this Act
and no certificate of title shall be impeached or defeasible on the
ground of want of notice or of insufficient notice of the application to bring
the land therein described under the provisions of this Act or on account
of any error omission or informality in such application or in the
proceedings pursuant thereto by the Master of Titles or by the Registrar-
General
See also the definition of "certificate of title" in s. 3.
The form now in use is printed following form C of the Schedule.
As to entry on the register book of an order for protection of the estate
of an aged or infirm person, see Public Curator Acts, 1915 to 1957, s. 85H, title
TRUSTEES AND EXECUTORS.
As to entry of caveat by the Registrar to protect interests of persons under
disability, see s. 11 (5).
For the effect of certificates of title, see ss. 44, 96, 109, 123 and notes thereto.
A Crown grant may be proved by the copy kept by the Registrar of Titles,
Evidence and Discovery Acts, 1867 to 1967, s. 40, title EVIDENCE, Vol. 5,
p. 500.
As to entry of unsatisfied mortga~es where land is alienated by the Crown,
see Land Acts, 1962 to 1968, s. 285, title LAND, Vol. 9, p. 310. The mortgagee
under an unsatisfied common law mortgage noted under this section does not
thereby become entitled to exercise the powers conferred by the Act on a registered
mortgagee, Re Smith (1893), 15 A.L.T. 85. But see the section lastly cited.
"Disabilities" means such as infancy, mental illness, or coverture, and does
not include the case of a person taking under a voluntary settlement, Ex parte
Cameron (1894), 15 L.R.(N.S.W.) 139. The Registrar cannot cancel registration
of an instrument executed under disability of which he had no notice at the
time of registration, Ex parte the Recorder of Titles, Barham v. Hog/?ins, (1909),
6 Tas. L.R. 6.
It has been held in Victoria that the rule of law that an infant who contracts is
entitled to avoid the contract before attaining his majority or within a reasonable
time thereafter does not prevail when such a contract has been followed by a
transfer duly registered under the Transfer of Land Act 1928 by one who had
no knowledge of the fact of infancy and who has been granted a certificate of
title free from encumbrance, Percy v. Youngman, [1941] V.L.R. 275; [1941] A.L.R.
358. See. also Caras v. Webb and Hoare, [1942] St. R. Qd. 66 (avoidance by
mfant subject to operatIOn of statute). As to infants, see now s. lIlA.
The Registrar has no duty to endorse on the certificate any notification of a
contingency which might result in a liability of the land to death duty, Ex parte
Dettman (1918), 18 S.R.(N.S.W.) 545.
A person who has the benefit of an easement is entitled to have it noted
as an encumbrance upon the certificate of title for the servient land, when such
land is brought under the Act, Re Schmid (1881), 15 S.A.L.R. 48. As to notation
of easements, see also s. 51.
As to entry on the certificate of a judgment recovered against an applicant
to bring land under the Act, see Re Real Property Act of 1861, Special Case No.1
(1862), 1 S.C.R. 56; Re Real Properly Acl of 1861, Speci.al Case No.2 (1862), 1
S.C.R. 60.
A certificate of title speaks from the moment it is issued, Lange v. Ruwoldl
(1872), 7 S.A.L.R., at p. 15.
As to the meaning of the expression "the land therein described", see Dabbs
v. Seaman (1925), 36 C.L.R. 538. The issue of a certificate describing the land
as bounded by "high-water mark" does not prevent the application of the doctrine
of accretion in favour of the owner, Verrall v. Manly Municipal Council C1939), 39
S.R.CN.S.W.) 89.
The ordinary rules for construction of written instruments are applicable
to certificates of title; extrinsic evidence is admissible to identify its subject matter
and the doctrine of falsa demonstratio non nocet is applicable, Overland v. Lenehan
(1901), 11 Q.L.J. 59, at p. 60. Semble, where land has repeatedly changed hands
on the basis of a certificate of title and the description of the parcels has for
a long period been accepted as sufficient, the description will not be read in the light
of that contained in the transfer by which the parcels were created. See
Boulter v. lochheim [1921] St. R. Qd. 105, at p. 119; [1921] Q.W.N. 18; affirmed,
29 C.L.R. 602.
As to the effect of showing land in a certificate of title as being bounded
by a lane, see Boulter v. lochheim, supra; Dabbs v. Seaman (1925), 36 C.L.R.
538.
Where the description of land was by a plan showing abuttals at each end
of a street, and the dimensions were shown in figures which were less than the
actual distance between such streets, the description by abuttals was held to prevail
over the dimensions given in the figures, Smail v. Glen (1880), 6 V.L.R. (L.) 154;
Archard v. Ellcrker C1888), 10 A.L.T. 196. Where there was a discrepancy between
the description of the area of the land given in a certificate of title and the figures
given in the plan in the margin showing the boundaries and measurements, the
laller was held to prevail, Re Irwin & Taylor's Contract, [1918] V.L.R. 661. Where
land in a certificate of title was described as containing a certain area "or
thereabouts" it was held that such description was not a representation that the
br,d cc'rnpriscd that area, but was merely an estimate. ibid. With regard to
eUl1strlJction of descriptions of parcels in certificates of title and Crown grants,
sec also Wale/Win V. A.-G .. [1919] A.C. 533; [1918-19] All E.R. Rep. 455.
It is now possible, within defined limits, to obtain a title by adverse possession
to land under the Act. See Real Property Acts Amendment Act of 1952, ss. 46
II 1"0., " 7.'(,. post. Mis(,I1/Ilhl{' v. Phillips. [19361 SI. R. Qd. 136, Rc BI'Yl/ulIl
(1899). 9 Q.LJ. (N.C.) 93, and cases to the like effect, must now be read subject
tn tl'·~ Act of 1952.
Sec :,],0 Power on The Real Property Acts of Queensland, p. 39.
34. Grants and certificates of title registered when embodied in register
book. Every land grant and certificate of title shall be deemed and taken
to be registered under the provisions and for the purposes of this Act so
soon as the same shall have been marked by the Registrar-General with
the folio and volume appertaining to it in the register book and every
memorandum of transfer or other instrument purporting to transfer or in
any way to affect land under the provisions of this Act shall be deemed to
REAL PROPERTY ACTS, 1861 TO 1963 8'>.33·35 655
be so registered so soon as a memorial thereof shall have been entered in

the register book upon the folium constituted by the existing grant or
certificate of title of such land and every such memorial shall state the day
and hour of the production for the purpose of registration of the instrument
to which it relates and shall contain such other particulars as the Registrar-
General may direct and shall be signed by the Registrar-General
and the person named in any grant certificate of title or other
instrument so registered as seised of or taking any estate or interest shall be
deemed to be the registered proprietor thereof
Provided that the Registrar of Titles having regard to the number of
dealings with registered leases which are likely to be registered on the one
certificate of title or deed of grant may determine that any dealing with the
estate or interest of a lessee under any such lease shall be registered on the
registered lease instead of on the certificate of title or deed of grant and in
that event such dealing with the estate or interest of the lessee under the
lease shall be deemed and taken to be registered under the
provisions and for the purposes of this Act so soon as a memorial thereof
shall have been entered on the lease so registered as aforesaid.
As amended by Act of 1963, No. 25, s. 3.
As to necessity for registration of instruments, see s. 43. Registered instruments
take effect from the date of production for registration. See Real Property Act of
1877, S5. 12, 14, pp. 739, 740, post. As to entry of memorials on duplicates, see
s. 45 of this Act.
Although there is no specific provision in the Act that the production of
the original grant or certificate of title is a condition precedent to the right
to have a memorial of a transaction registered, such a provision must be inferred,
Ex parte Bettie (1895), 14 N.Z.L.R. 129. For power to dispense with production
of the instrument on which the memorial is to be noted, see s. 95. Provision for
cases where a certificate of title or Crown grant is lost is made by s. 117.
Endorsement of a memorandum of transfer on the certificate of title is
evidence of registration of such transfer, Phillips v. McLachlan (1884), 5
L.R.(N.S.W.) (L.) 168; Great Central Freehold Mines Ltd. v. Chapman (1904),
29 V.L.R. 940.
Notice of an adverse claim does not bar completion of the registration,
ix parte Bettie (1895), 14 N.Z.L.R. 129.
On the requirements of the memorial, see Re Gough, [1950] Q.W.N. 9.
35. Upon entry of particulars instrument deemed to be part of register
book. Schedule. So soon as a memorial thereof shall have been entered
in the register book every instrument drawn in any of the several forms
provided in the Schedule hereto or in any form which for the same purpose
may be authorised as herein provided shall for the purposes of this Act be
deemed and taken to be embodied in the register book as part and parcel
thereof and any such instrument when so constructively embodied shall
create and impose the like obligations on the persons signing the same and
for the like period of time as if the same had been sealed and delivered
and every such instrument presented for registration shall be in duplicate
and the Registrar-General upon registration thereof shall file one original
in his office and shall deliver the other to the person entitled thereto
For contents of the register book, see also s. 32.
As to when instruments must be in duplicate, see also Real Property Act of
1877. s. 16, p. 741, post.
The Registrar need not compare duplicates, s. 139.
Instruments for registration must bear a certificate of their correctness.
See s. 139.
Instruments not complying precisely with the prescribed forms are registrable
provided there is no departure in matter of substance. See Drake v. Templeton
(1913), 16 C.L.R. 153; Crowley v. Templeton (1914), 17 C.L.R. 457. A registrar
was held to be obliged to register a mortgage containing a guarantee by a third

person, Perpetual Executors and Trustees Assoc. Y. Hosken (1912), 14 C.L.R.
286. See also s. 3, last paragraph, and notes to s. 56, and s. 32.
It was held that registration of a dealing ultra vires of a municipal corporation
was properly refused, R. v. Registrar of Titles for Victoria (1915), 20 C.L.R.
379. The Registrar may refuse to register an instrument where he knows facts
which show that it constitutes a breach of trust, Templeton v. Leviathan Pty. Ltd.
(1921), 30 C.L.R. 34. But the Registrar is not entitled to refuse registration
of an instrument which effects no violation of the rights of persons not parties
thereto merely because he happens to know of the former existence of equitable
rights in favour of such persons, Currey v. Federal Building Society (1929), 42
C.L.R. 421.
As to the effect of registration of a discharge of mortgage, see s. 63, and
Groongal Pastoral Co. Ltd. v. Falkiner (1924), 35 C.L.R. 157, cited thereunder.
As to the effect of the provision that a registered instrument shall have
effect as if sealed and delivered, see also Sinclair v. Gumpertz (1898), 15
W.N.(N.S.W.) 125; Merry v. Australian Mutual Provident Society (1872), 3
S.C.R. 40; Kelly v. Fuller (1867), 1 S.A.L.R. 15; Dal!?ety v. Beviss, [1921]
S.A.L.R. 252; Re Goldstone's Mortgage, [1916] N.Z.L.R. 489; Robertson v. Fink,
[1906] V.L.R. 554; In the Will of Currie (1900), 25 V.L.R. 224; Payne v. R.
(1901), 26 V.L.R. 705; [1902] A.C. 552.
Where the Commonwealth seeks to obtain the registration provided by
these Acts, it must take it on the terms of these Acts, Commonwealth v. New
South Wales (1918), 25 C.L.R. 325, at p. 340; Commonwealth v. New South
Wales (1920), 33 C.L.R. 1. A notification of compUlsory acquisition under the
Lands Acquisition Act 1906, s. 15 (Commonwealth), was not by virtue of that
section 8n instrument which could be registered under this Act, and s. 20 of that
Act, which purported to require the Registrar to register such notification was
invalid, Commonwealth v. New South Wales (1920), 33 C.L.R. 1. This position
was remedied by the legislature of the Commonwealth, who amended s. 20
by replacing the mandatory "shall" with the permissive "may". See now Lands
Acquisition Act 1955-1957, ss. 9-15 (Commonwealth).
See also Real Property (Commonwealth Titles) Act of 1924, p. 769. {)OI/.
36. Remainderman may be registered as such. Name of remainderman to

be endorsed on certificate of title. Whenever a certificate of title shall have
been issued to a proprietor in respect of a life estate or any other estate less
than an estate in fee-simple the person entitled as remainderman may apply
to be entered in the Register-book as a remainderman and the Registrar-
General shall thereupon cause the title of such applicant to the estate or
interest claimed by him to be investigated and shall take the direction of
the Master of Titles thereon and shall cause advertisements to be published
in manner hereinbefore directed for the case of bringing land under the
provisions of this Act and shall proceed to enter the name of such applicant
on the register-book as remainderman of the estate or interest to which
he shall appear to be entitled unless a caveat forbidding such entry shall be
received by him within the time for that purpose limited in such direction or
by any order of the Supreme Court
and the Registrar-General shall endorse upon the certificate of title
of such land if produced to him for that purpose a memorandum setting
forth that such applicant had been entered in the register-book as such
remainderman with the day and hour in which such entry had been made
and the Registrar-General shall in every such case receive the same
fees and payments excepting the sum payable to the assurance fund as are
required to be paid by persons applying to bring land under the provisions
of this Act
As amended by Acts Citation Act of 1903, s. 10.
With respect to publication of advertisements, see s. 20.
With respect to payments to the assurance fund, see s. 41, and notes thereto.
REAL PROPERTY ACTS, 1861 TO 1963 58.35-39 657
37. Remainderman registered as such prohibited from dealing with estate

except in manner prescribed in this Act. Every remainderman and every
person deriving through a remainderman registered as such in the register
book shall thereafter transfer mortgage encumber or otherwise deal with
the estate or interest in respect to which he is so registered in manner and
by the use of the instruments and forms by this Act prescribed and not
otherwise
and the Registrar-General shall enter in the register book the
particulars of every memorandum of transfer bill of mortgage bill of
encumbrance or other instrument duly executed by a remainderman or
person deriving through a remainderman in manner hereinafter directed
for the case of transfers mortgages encumbrances and other dealings with
land under the provisions of this Act
38. Certificate of title to be issued to remainderman as soon as his estate

shall revert into an estate in possession and to purchaser entitled to a
present estate in fee simple. Upon proof to the satisfaction of the Registrar-
General that the life estate or other less estate than an estate in fee simple
in respect of which a certificate of title shall have been issued is determined
or has become vested in the person entitled to the land for the estate next
in remainder or that the person to whom such certificate has been issued
or a purchaser is absolutely entitled to the said land for a present estate
in fee simple in possession it shall be lawful for the Registrar-General to
cancel the existing certificate of title of such land and in lieu thereof to
issue such new certificate of title as the nature of the case may require and
the Registrar-General shall in every such case enter in the register book
and on the certificate of title when delivered up the particulars by this
Act prescribed to be entered in the case of cancelling a certificate of title
consequent on a transfer or transmission
Provided also that previous to issuing any such new certificate of title
the Registrar-General may require the title of the person claiming to be
entitled in remainder to be investigated and may cause advertisements to
be published as hereinbefore directed in the case of applications for
bringing land under the provisions of this Act and shall receive the same
fees and payments including the sum payable to the assurance fund as are
required to be paid by persons applying to bring land under the provisions
of this Act
39. Reversioner or remainderman not to transfer land until brought under

the provisions of this Act. Whenever the life estate in any land in respect
to which a certificate of title has been issued shall have determined it shall
not be lawful for the reversioner or remainderman entitled to the next estate
of freehold in possession to transfer or otherwise deal with such land until
he shall have brought his estate therein under the provisions of this Act and
the death of a tenant for life shall not operate to defeat or in any way
prejudice any lease mortgage or other dealing lawfully made by such
tenant for life and duly registered under the provisions of the Act.
See s. 37.
40. Persons registered as joint proprietors to be joint tenants. Tenants in

common to receive each a distinct certificate of title. Two or more persons
who may be registered as joint proprietors of an estate or interest in land
under the provisions of this Act shall be deemed to be entitled to the same
as joint tenants and in all cases where two or more persons are entitled as
tenants in common to undivided shares of or in any land such persons shall
be bound to receive separate and distinct certificates of title or other
instruments evidencing title to such undivided shares unless the Registrar
of Titles, having regard to the value of the lands and any subsequent
transfer lodged, may otherwise determine:
Provided that he shall not so determine unless the tenants in common
request him so to do.
A husband and wife registered as joint tenants were held to be either
joint tenants or tenants by entireties, in Queensland Trustees Ltd. v. Concanon, [1910]
St. R. Qd. 162; [1910] Q.W.N. 24. See also Registrar-General v. Wood (1926), 39
C.L.R. 46.
As to presumption of survivorship where persons have died in circumstances
rendering it uncertain which of them survived, see Succession Acts, 1867 to 1968,
S. 88A. title SUCCESSION.
One of several joint tenants cannot make a disclaimer. The only disclaimer
that joint tenants can make is one made by them all. See Re Schar; Midland
Bank Executor and Trustee Co. Ltd. v. Darner, [1951] Ch. 280; 66 T.L.R. 1131.
See Toop v. Rutherford and Gilshenan, [1942] St. R. Qd. 168; 36 Q.J.P.R.
89 (attempt to sell part of un subdivided parcel of land; which part uncertain).
As to the position where two joint tenants have died under circumstances
suggesting that one may have murdered the other, see Re Thorp and the Real
Property Act 1900, [1962] N.S.W.R. 889. Compare Re BarrowclifJ; Elder's Trustee
and Executor Co. Ltd. v. Kenny, [1927] S.A.S.R. 147.
41. Percentage in the dollar to be levied for assurance of title. Schedule R.

Upon the first bringing of land under the provisions of this Act whether
by the alienation thereof in fee from the Crown or consequent upon the
application of the proprietor of an estate of freehold as hereinbefore
provided and also upon the registration of the title to any land under the
provisions of this Act derived through the will or intestacy of a previous
proprietor and also upon an application under Part III of "The Real
Property Acts Amendment Act of 1952," for a title by possession there
shall be paid to the Registrar-General the sum specified in the list marked
R in the Schedule hereto and in the case of land brought under the
provisions of this Act by alienation of the fee from the Crown the price
paid for such land shall be deemed and taken to be the value thereof for
the purpose of levying such sum and in all other cases as aforesaid such
value shall be ascertained by the oath or solemn affirmation of the applicant
or person deriving such land by transmission
Provided always that if the Registrar-General shall not be satisfied
as to the correctness of the value so declared or sworn to it shall be lawful
for him to require such applicant or person deriving such land by trans-
mission to produce a certificate of the value under the hand of a sworn
appraiser which certificate shall be received as conclusive evidence of the
value for the purpose aforesaid
Act referred to:
Real Property Acts Amendment Act of 1952, p. 755, post.
REAL PROPERTY ACTS, 1861 TO 1963 ss.40·43 659
Provision for the closing of the Assurance Fund by transfer of the moneys
therein to the Consolidated Revenue was made by The State Advances Reserve Fund,
The Real Property Acts Assurance Fund, etc., Transfer Approval Act of 1931, ss. 8,
9, title FUNDS, not reprinted. See 1936 Reprint, Vol. 3. The payments
formerly made to the Assurance Fund are now made into Consolidated Revenue
and upon the closing of the Assurance Fund claims which might formerly
have been made on that Fund are to be satisfied out of Consolidated Revenue, ibid.,
ss. 10·12.
The list marked R in the Schedule has been superseded by the list of fees
contained in Order in Council published Gazette 12 February 1966, p. 1147.
The payment under this section is to be made before the issue of a grant from
the Crown, Land Acts, 1962 to 1968, s. 12, title LAND, Vol. 9, p. 132.
As to sworn appraisers, see Real Property Act of 1877, 55. 6, 7, p. 738,
post.
42. Assurance fund to be invested in Government securities. All sums of
money so received as aforesaid shall be paid to the Treasurer of the Colony
who shall from time to time invest the same in Queensland Government
securities together with all interest and profits that may have accrued
thereon to constitute an assurance fund out of which shall be made good
the full amount awarded by any verdict judgment or decree of Court to
any person deprived of any land or of any estate or interest therein by
bringing such land under the provisions of this Act or by the issue of any
certificate of title or by the registration of any transmission transfer or other
dealing with land under the provisions of this Act failing recovery from
the person who derived benefit thereby
Provided always that in case of the insufficiency of such assurance
fund the full amount so awarded shall be made good to the person entitled
thereto out of the General Revenues of the said Colony
Provided also that no person shall be entitled to be indemnified out
of the said Assurance Fund or General Revenue of the Colony for any
loss occasioned by any breach of trust or default committed by any trustee
guardian committee of a lunatic or of a person of unsound mind executor
administrator or other person standing in the relation of trustee to any
other person
As to investments under this section, see note to s. 41.
For duty of the Registrar of Titles to account for and pay to the Treasurer
moneys received, see s. 141.
The prohibition against indemnification for breach of trust does not extend
to constructive trusts or trusts which can only be established with the aid of the
court, Finucane v. Registrar of Titles, [1902] St. R. Qd. 75.
The Supreme Court of Victoria has held that the Registrar of Titles has no
duty towards registered proprietors to take care to prevent forged instruments
from being registered, Davies v. Ryan, [1951] V.L.R. 283; [1951] A.L.R. 623.
43. Instruments not effectual until entry in registry book. No instrument

shall be effectual to pass any estate or interest in any lands under the
provisions of this Act or to render such land liable as security for the
payment of money until such instrument shall have been registered in
accordance with the provisions of this Act but upon the registration of any
such instrument the estate or interest intended to be thereby granted or
conveyed shall pass or as the case may be the land shall become liable as
security in the manner and subject to the covenants and conditions set
forth in such instrument or by this Act declared to be implied in
instruments of a like nature and if two or more instruments executed by
the same proprietor purporting to transfer or encumber the same estate
or interest should be at the same time presented to the Registrar-General
6CO REAL PROPERTY Vol. 14
for registration and endorsement he shall register and endorse that instru-
ment under which the person claims property who shall produce to him
the grant or certificate of title of such land.
Instruments take effect according to date of production for registration. See
s. 56; Real Property Act of 1877, ss. 12, 14, 15, pp. 739, 740, post. As to the
point of time at which registration takes place, see s. 34. As to what constitutes
registration, see also Great West Permanent Loan Co. v. Friesen, [1925] A.C. 208.
The Registrar must not register an instrument which is not duly stamped,
Stamp Acts, 1894 to 1968, s. 30, title STAMP DUTIES.
A transfer must be in prescribed form and registered in order to pass the
legal estate, Macindoe v. Wehrle (1913), 13 S.R.(N.S.W.) 500; Kelly v. Doody
(1871), 5 S.A.L.R. 132.
This section does not mean that an unregistered instrument has no effect
whatever but that it does not confer an unquestionable and indefeasible title,
O'Regan v. Commissioner of Stamp Duties, [1921] SI. R. Qd. 283; [1921] Q.W.N.
41. An unregistered instrument confers a claim to registration (see Real Property
Act of 1877, s. 48, p. 751, post), and equitable interests in land under this
Act may still be created and assigned by the forms of disposition recognised by
equitable principles, ibid., s. 51; Conroy v. Knox (1901), 11 Q.L.J. 112; Sempil/
v. Jarvis (1867), 6 S.C.R.(N.S.W.) (Eq.) 68; Barry v. Heider (1914), 19 C.L.R.
197; Great West Permanent Loan Co. v. Friesen, [1925] A.C. 208; Little v.
Dardier (1891), 12 L.R.(N.S.W.) (Eq.) 319. An instrument in registrable form
creates an equitable interest prior to registration. See Naumberg v. Albertson's
Executors (1888), 3 Q.L.J. 125. A transferee who is in possession of land under
an unregistered transfer has the ordinary rights of action of a person in possession
against a trespasser, Wilkinson v. Madorsky (1914), 16 W.A.L.R. 164.
There may be an equitable mortgage of land under this Act by deposit of
title deeds, Re Wildash (1877), 5 S.C.R. 46; Real Property Act of 1877, s. 30,
p. 745, post.
This section does not prevent an unregistered instrument from passing the
right to have a certificate of title set aside on the ground of fraud, McEllister v.
Biggs (1883), 8 App. Cas. 314.
As to unregistered voluntary instruments, see notes to Real Property Act of
1877, s. 48, p. 751, post.
As to the effect of unregistered instruments, see also Waitara v. McGovern
(1899), 18 N.Z.L.R. 372; Spiers v. Cape well, [1917] N.Z.G.L.R. 396; Orr v. Smith,
[1919] N.Z.L.R. 818; Smith v. Sturtevant, [1923] N.Z.L.R. 481.
This section does not apply to wills, Holt v. Deputy Federal Commissioner
of Land Tax (1914), 17 C.L.R. 720.
Competing Equitable Interests.-In determining priority as between equitable
interests, the principles applicable to land not under the Act are in general to be
applied, Lynch v. O'Keefe, [1930] SI. R. Qd. 74. A prior equity will, therefore,
ordinarily prevail over a later equity. But where the owner of an equity has
misled the holder of a later equity by conduct amounting to representations
inconsistent with the existence of his interest, his interest will be postponed, Barry
v. Heider (1914), 19 C.L.R. 197. Thus a prior equity will be postponed where
its holder's negligence in leaving the register clear or in enabling a third person
to represent himself as unencumbered legal owner has caused the holder of the
later equity to contract on the basis that the title was clear, Abigail v. Lapin,
[1934] A.C. 491; [1934] All E.R. Rep. 720; 51 C.L.R. 58; Connolly v. Noone,
[1912] SI. R. Qd. 70; [1912] Q.W.N. 19; Butler v. Fairclough (1917), 23 C.L.R.
78, approved in AbiRail v. Lapin, supra. Quaere, however, whether a prior
equity will be postponed where it is accompanied by possession of the certificate
of title, Lynch v. O'Keefe, [19301 SI. R. Qd. 74, at pp. 108, 87, 77; O'Keefe v. Lynch
[19271 St. R. Qd. 270, at p. 276. An unregistered instrument of transfer may
amount to a representation by the transferor to any person into whose hands
it may come without notice of any right to set it aside, that the transferee has
an assignable interest in the land. See Barry v. Heider, supra; Great West Permanent
Loan Co. v. Friesen, [1925] A.C. 208. A person proposing to take a mortgage
is not entitled to rely on the representation of the solicitor of the borrower who
purports also to act for the owner of a prior equitable interest that such equitable
interest has been extinguished, Barry v. Heider, supra. A mortgagee is under
no duty to inform a proposing purchaser of the mortgage where he has no
knowledge that the mortgagor is contemplating a fraud and no inquiry is made

of him as to the existence of the mortgage, Lynch v. O'Keefe, [1930] St. R.
Qd. 74. See also Kay v. Barnett, [1909] Q.W.N. 39, cited under s. 56.
The holder of the earlier equity will not be postponed where his negligence was
not the actual cause of the holder of the later equity being misled, Lynch v. O'Keefe,
[1930] St. R. Qd. 74, and the holder of the later equity, to be entitled to priority
of registration, must be actually prejudiced by the existence of the other interest,
ibid. The holder of a later equity who would otherwise be preferred by reason of
negligence of the holder of a prior interest will not be deprived of
his interest by failure to search where such search would have revealed nothing,
Abigail v. Lapin, [1934] A.C. 491; [1934] All E.R. Rep. 720; 51 C.L.R. 58.
See also Courtenay v. Austin, [1962] N.S.W.R. 196.
Semble, it is the intention of the Act to confer the same kind and degree
of security upon all persons who, transacting in reliance on the register, acquire
mere interests short of the legal estate as upon the transferee of a legal estate,
Gibbs v. Messer, [1891] A.c. 248.
44. Estate of registered proprietor paramount. Notwithstanding the

existence in any other person of any estate or interest whether derived by
grant from the Crown or otherwise which but for this Act might be held
to be paramount or to have priority the registered proprietor of land or of
any estate or interest in land shall except in the case of fraud hold the same
subject to such encumbrances liens estates or interests as may be notified by
entry or memorial on the folium of the register book constituted by the
land grant or certificate of title of such land but absolutely free from all
other encumbrances liens estates or interests whatsoever except the estate
or interest of a proprietor claiming the same land under a prior certificate
of title or a certificate of title issued under Part III of "The Real Property
Acts Amendment Act of 1952" or under a prior grant registered under the
provisions of this Act and except as regards the omission or misdescription
of any right of way or other easement created in or existing upon the same
land or the wrong description thereof or of its boundaries
Act referred to:
For other provisions for establishing indefeasibility of title, see ss. 33, 109,
123, 126.
As to unregistered leases for three years or less, see Real Property Act of
1Ri':'. '. 11, p. 739, post.
A judgment creditor who has registered his writ under s. 91 is not a registered
proprietor for purposes of this section, Bond v. McClay, [1903] St. R. Qd. 1.
"Quite independently of the amending Act of 1877, it is now clear that s. 44
must be read as allowing the existence of exceptions to the title of the registered
proprietor other than those ~pecifically mentioned in that section . . . . The
situation of this provision suggests to me that s. 44 deals with registrable instruments,
with interests created by registrable instruments," Pryce v. McGuinness, [1966]
Qd. R. 591, at p. 598.
For a case in which s. 11 of the Real Property Act of 1877, p. 739, post,
operated to protect an implied yearly tenancy from the provisions of this s. 44,
see Herrmann v. MacKenzie, [1965] Qd. R. 235.
Section 11 of the Real Property Act of 1877 provides an exception to the
fundamental principle, embodied in this s. 44, that the registered proprietor shall
hold his land free from unregistered interests, and should not be given an extended
construction, Friedman v. Barrett; Ex parte Friedman, [1962] Qd. R. 498.
A person in occupation cannot dispute the title of the registered proprietor
in the "bsence of fraud, Butler v. Kennedy, B.C.R., April 4, 1892. But as to
lessee" see Real Property Act of 1877, s. 11, p. 739, post.
For a brief summary of rights enforceable against a registered proprietor
see the Preliminary Note. '
662 REAL PROPERTY \'01. 14
By fraud in this section is meant actual fraud, i.e., dishonesty or moral

turpitude of some sort, and not mere constructive or equitable fraud, Assets
Co. Ltd. v. Mere Roihi, [1905] A.C. 176; Waimiha Sawmilling Co. v. Waione
Timber Co., [1926] A.C. 101; Butler v. Fairclough (1917), 23 C.L.R. 78,
at pp. 97, 98; Gregory v. Alger (1893), 19 V.L.R. 565; Conroy v. Knox
(1901), 11 Q.L.J. 112, at p. 122. Fraud means something more than mere
disregard of rights of which the person sought to be affected has notice, Wicks
v. Bennett (1921), 30 C.L.R. 80; Stuart v. Kingston (1922), 32 C.L.R. 309.
Where there is notice of an unregistered interest and nothing more, it is not a
fraud to take a transfer that will defeat the interest, Friedman V. Barrett; Ex parte
Friedman, [1962] Qd. R. 498. Notice of the existence of an unregistered lease and
of the lessee not concurring in the sale may not amount to fraud, Oertel v. Hordern
(1902), 2 S.R.(N.S.W.) (Eq.) 37. But as to leases, see Real Property Act of
1877, s. 11, p. 739, post. Where a registered proprietor had taken with notice
of unregistered interests inconsistent with his own interest. and had obtained a
registrable instrument by fraudulently alleging that he would make a separate
arrangement with the owners of the unregistered interests, it was held that there
was a case of fraud, Lake Yew v. Port Swettenham Rubber Co., [1913] A.C. 491.
"If the designed object of a transfer be to cheat a man of a known existing right,
that is fraudulent, and so also fraud may be established by a deliberate and
dishonest trick causing an interest not to be registered and thus fraudulently keeping
the register clear", Waimiha SawmillinR Co. v. Waione Timber Co., supra. A
mortgagee or his agent who buys the mortgaged land under the power of sale in
ignorance of the rule of law forbidding him to do so is not guilty of fraud, Conroy
v. Knox (1901),11 Q.L.J. 112. Registration of a married woman as proprietor of
land which was not her separate estate was held to be fraudulent as against her
husband's Official Assignee, Re McLeod (1867), 1 S.C.R. 173. For what constitutes
fraud, see also Anhaellsser v. Anhaeusser, [1930] St. R. Qd. 55; affirmed, 45
C.L.R. 600; Toohey v. Gunther (1927), 41 C.L.R. 181; Public Trustee v.
Arthur (1892). 25 S.A.L.R. 59; Cooke v. Union Bank (1893), 14 L.R.(N.S.W.)
(Eq.) 280; Josephson v. Mason (1912), 12 S.R.(N.S.W.) 249; Teira RangOll11i v.
Assets Co. (1902), 22 N.Z.L.R. 1; Sheerin v. Sheerin (1903), 5 N.Z.G.L.R.
421; Mayor oj Lower f/lltt v. lJayes (1913), 32 N.Z.L.R. 969; Smith v.
Registrar-General, [1909] S.A.L.R. 1; Re Leighton's Conveyance, [1936] 1 All
E.R. 667.
Where a certificate of title is put in evidence the onus of proving fraud lies
on a party alleging it, Lenneberg v. Schleusener, B.C.R., Aug. 24, 1885.
Fraud by persons through whom a registered proprietor claims does not affect
his title, unless he was party to such fraud, Assets Co. Ltd. v. Mere Roihi, [1905]
A.C. 176. As to the position of a purchaser from a registered proprietor who is
protected by this section where the purchaser has notice of a prior unregistered
interest, see Toohey v. Gunther (1927), 41 C.L.R. 181.
The interest of a registered mortgagee bona fide for value is protected,
Finucane v. Registrar oj Titles, [1902] St. R. Qd. 75; Bond v. McClay, [1903] St.
R. Qd. 1, 11; but s. 109 does not protect a registered mortgagee from the effect
of notice of a prior interest, Conroy v. Knox (1901), 11 Q.L.l. 112. As to the
rights of a bona fide mortgagee for value as against a tenant in possession, cf.
Burke v. Dawes (1937), 59 C.L.R. 1.
In Assets Co. Ltd. v. Mere Roihi, [1905] A.C. 176, various irregularities
prior to registration, but not amounting to fraud, were held not to be of any
effect in view of unimpeachability of the registered title.
It was held that one effect of a similar section in a Canadian provincial
Act was to prevent the purchasers under a contract for sale of land in respect
of which the vendor held a certificate, from contending that the contract was
void on the ground that the vendor company had no power under its constitution
to hold land, Creelman v. Hudson Bay Insurance Co., [1920] A.C. 194.
The register will only protect those dealing with, and deriving from, a
person who is registered proprietor, and will not protect those dealing with a
forger who uses the name of the registered pr9prietor. The obligation of
ascertaining the identity of the party registered as proprietor with the person
with whom they deal or with the principal of an agent with whom they
deal is upon transferees or mortgagees themselves, Gibbs v. Messer, [1891]
A.C. 248. The registered right of a transferee or mortgagee under a null
deed is not indefeasible. ibid. As to the effect of registration upon a forged
instrument, see also Bailey v. Crihb (1884), 2 Q.LJ. 42. As to the effect of
the issue of a certificate of title on a forged instrument, see also Clements v. Ellis
(1934), 51 C.L.R. 217, which, however, is not a decision binding on the High
Court itself, Tasmania v. Victoria (1934), 52 C.L.R. 157, at p. 183. Although
registration will not perfect a forged instrument, a forged transfer or mortgage
which is void at common law will, when duly entered on the register, become
the root of a valid title in a bona fide pu,chaser from the transferee or mortgagee,
Gibhs v. Messer, supra; Bailey v. Cribb (1884), 2 Q.L.l. 42. See also
i,211CCi.!/{(l1d investment and Land Mortgage Co. v. Grimley (1893), 4 Q.L.l.
224, Supp. p. 10; Boyd v. Mayor of Wellington, [1924] N.Z.L.R. 1174; Gallagher
v. Thomson, [1928] N.Z.G.L.R. 373; Kay v. Barnett, [1909] Q.W.N. 39, cited
under s. 56; A.-G. v. Odell, [1906] 2 Ch. 47.
In Davies v. Ryan, [1951] V.L.R. 283, it was held that a forged transfer was a
nullity and that the registration of the transferee as proprietor was of no validity as
against a defrauded proprietor, who was entitled to have his name restored to the
register.
Registration alone does not affect personal equities against the registered
proprietor. See notes to s. 43. The section refers to interests outstanding at the
time of the issue of the certificate, not to interests created by the proprietor himself,
Josephson v. Mason (1912), 12 S.R.(N.S.W.) 249; Cuthbertson v. Swan (1876),
11 S.A.L.R. 102.
Rights of public highway may exist over land comprised in a clean certificate
of title, Vickery v. Strathfield Municipality (1911), 11 S.R.(N.S.W.) 354. The
mere omission to note an easement as an encumbrance on the certificate of the
servient tenement, or to note it on the certificate of the dominant tenement does not
extinguish it, James v. Stevenson, [1893] A.C. 162. Where a certificate of title was
issued without a memorial as to a fencing covenant, it was held that a purchaser
was not bound by the fencing covenant, Brown v. Wellington and Manawatu Rail-
way Co. Ltd. (1898), 17 N.Z.L.R. 471. Quaere, whether an easement can be
acquired by prescription over land under this Act, Boulter v. Jochheim, [1921] St.
R. Qu. 105; [1921] Q.w.N. 18; affirmed, 29 C.L.R. 602. Miscamble v. Phillips,
[1936] St. R. Qd. 136; 30 Q.J.P.R. 71.
The exception by this section of cases of wrong description shows that extrinsic
evidence is admissible to identify the land in a certificate of title; an error in
description of boundaries will not displace the title otherwise good of a person in
possession of land erroneously included in a certificate of title, Overland v. Lenehan
(1901), 11 Q.L.J. 59. As to "wrong description," see also HlNI1ilton v. Iredale
(1903), 3 S.R.(N.S.W.) 535.
A title by aJverse possession can, within limits, be acquired against a registered
proprietor. See note to s. 33.
As to whether s. 44 is binding on the Crown, see Martin v. Cameron (1893),
12 N.Z.L.R. 769; Raven v. Keane, [1920] N.Z.G.L.R. 168.
The rule in Flureau v. Thornhill (1776), 2 W. Bl. 1078, and Bain v. Fothergill
(1874), L.R. 7 H.L. 158; [1874-80]. All E.R. Rep. 83, that where a vendor of real
property is unable, through no fault of his own but owing to a defect in his title, to
complete the contract the purchaser cannot recover damages for the loss of his
bargain, applies to land under this Act, Boardman v. McGrath, [1925] Q.W.N. 8;
Merry v. Australian Mutual Provident Soc. (1872), 3 S.C.R. 40.
45. Memorial to be recorded on duplicate grant or other instrument.

Whenever a memorial of any instrument shall have been entered in the
register book the Registrar-General shall record the like memorial on the
duplicate grant certificate of title lease or other instrument evidencing title
to the estate or interest intended to be dealt with or in any way affected
unless he shall in any case dispense with the production of the same and he
shall endorse on every instrument so registered a memorandum of the day
and hour on which the said memorial was entered in the register book and
shall authenticate each such endorsement by signing his name and affixing
his seal thereto
For the purposes of this section the name of the Registrar of Titles
may be signed and his seal affixed as aforesaid by any officer for the time
being employed in his office thereunto authorised by him pursuant to his
power of delegation, and any such authority may specify the manner in
which the officer named therein is to so sign the name and affix the seal of
the Registrar of Titles
Endorsement signed by Registrar-General to be evidence. and every
instrument so endorsed and authenticated shall be received in all Courts of
Justice as conclusive evidence of the particulars therein set forth and of all
covenants conditions and matters therein expressed or by this Act declared
to be implied and that such instrument has been duly registered
As to entry of memorials in the register book, see s. 34.
The Registrar of Titles has certain power under s. 95, to dispense with
production of duplicates. As to lost grants of certificates of title, see s. 117.
Endorsement on the duplicate instrument is conclusive evidence that the
instrument has been duly registered, and due registration includes the time of
registration, Great Central Freehold Mines Ltd. v. Chapman (1904),29 V.L.R. 940;
Phillips v. McLachlan (1884),5 L.R.(N.S.W.) (L.) 168.
46. Surrendered deeds and instruments dated prior to existing certificate

of title not to be produced. So soon as any land shall have been brought
under the provisions of this Act no transferee or mortgagee shall be entitled
to the production of any deed or other instrument surrendered by the
proprietor or any memorandum of transfer or other instrument dated
prior to the existing certificate of title of such land unless such instrument
be recorded in the register book and upon the existing certificate of title as
an encumbrance lien or interest affecting the said land
Provided that nothing herein contained shall interfere with any order
that may be made by a Judge of the Supreme Court for the production of
any such deed or instrument
This section appears to be somewhat modified by s. 50 of the Real Property
Act of 1877, p. 752, post.
As to when production will be ordered, see Hutton v. Lethbridge (1872), 3
S.C.R. 73.
Production of the deeds in legal proceedings may also be obtained by subpoena,
Hulton v. Lethbridge, supra. An order will not ordinarily be made under this section
for production in legal proceedings. See Newton v. Brown (1872), 3 S.C.R. 84;
Hutton v. Lethbridge, supra; Morrison v. Roberts (1871), 2 S.C.R. 146. Quaere
whether this section is applicable for this purpose. Any application for production
for purpose of legal proceedings in the Supreme Court should be made by summons,
Newton v. Brown, supra.
The production of title deeds will not be ordered in order to enable a plaintiff
to frame his action, Winmill v. Gallie (1889), 7 N.Z.L.R. 144, or where the applicant
fails to show title to the land and there is no fraud, Re Application under Land
Transfer Act, 1915, [1918] N.Z.G.L.R. 9.
The Registrar is not entitled to notice of an application for an order under this
section for leave to inspect title deeds, Re Heath (1897), 14 W.N.(N.S.W.) 108.
As to whether notice should be given to the proprietor of the land, see ibid.:
Friezer v. Kershaw (1895), 17 A.L.T. 41; Fisher v. Stuart (1885), 7 A.L.T. 45:
Re Slack (1873),4 A.J.R. 117.
47. Reve,rsioner's right preserved. The bringing of land under the

provisions of this Act shall not be held to extinguish the reversion expectant
on any lease and the person named in any certificate of title as seized of
the land therein described shall be held in every court of law and equity to
be seized of the reversion expectant upon any lease that may be noted by
memorial thereon and to have all powers rights and remedies to which a
reversioner is by law entitled
48. Transfer. Schedule D. When land under the provisions of this Act is
intended to be transferred the transferor shall execute a memorandum of
transfer in form D of the Schedule hereto and every such memorandum
shall be attested by a witness and shall for description of the land intended
to be transferred refer to the grant or certificate of title of such land or shall
give such description as may be sufficient to identify that particular portion
of land intended to be transferred and shall contain an accurate statement
of the estate or interest intended to be transferred and a memorandum of
all mortgages and other encumbrances affecting the same and if such land
be leased the name and description of the lessee with a memorandum of
the lease
For "transfer" and "memorandum of transfer", see s. 3.
;\s to transfers to a spouse and to the transferor and others, see s. 82. As
to c~'cct of a transfer to husband and wife, see note to s. 40.
Trzmsfer subject to a charge or easement may be made under the Real
p, j'c:ty Act of 1~77, 55. 23·28. p. 743. post.
Provision for transfer of mortgages, encumbrances ang leases is made by s. 65.
As to attestation, see 5S. 115, 116, and notes thereto.
The form of memorandum of transfer now in use is printed following form D
in the Schedule.
For manner of giving consent to or direction for a transfer, see s. 110.
For the certificate of correctness to be endorsed, see s. 139.
A. transfer of an estate in fee simple need not be in duplicate. See s. 35,
ar;d Re:!l Property Act of 1877, s. 16, p. 741, post.
A transfer not duly stamped should not be registered, Stamp Acts, 1894 to 1968,
s. 30, title STAMP DUTIES.
An instrument dealing with land in a subdivision must not be registered
m:k~s a plan of subdivision has been duly registered, Local Government Acts,
1936 to 1967, s. 34 (17), title LOCAL AUTHORITIES, Vol. 10, p. 458.
As to registration of the vesting of land on a resumption, see Acquisition of
bl1d Act of 1967, title WORKS; Railways Acts. 1914 to 1965, ss. 50, 51, 92, title
RAILWAYS AND TRAMWAYS, pp. 475, 489, ante. As to registration of title
0.' l::C Commonwealth on acquisition of land, see notes to s. 35, and Real Property
(C<';1lmonwealth Titles) Act of 1924, p. 769, post.
As to acquisition of land by a local authority where the rates have not been
paid. see Local Government Acts, 1936 to 1967, s. 27 (11) (vi), (vii), title
LOCAL AUTHORITIES, Vol. 10, p. 413.
The legal estate in land may pass by will without registration, Holt v.
DepUl)' Federal Commissioner oj Land Tax (1914), 17 C.L.R. 720. And see s. 89,
and Real Property Act of 1877, s. 32, p. 746, post.
A purported assurance to trustees upon uses, not in the statutory form and
not registered, was held to pass no estate and uses declared thereunder were held
to be of no effect, Re Ward (1872), 3 S.C.R. 74; Finucane v. Registrar of Titles,
[19021 51. R. Qd. 75. As to necessity for registration and the effect of an
unregistered transfer, see s. 43, and Real Property Act of 1877, ss. 48, 49, 51,
pp. 75 L 753, post, and notes thereto.
/\. memorandum of transfer does not, when registered, operate as an estoppel
so as to prevent the vendor from showing that the purchase money, acknowledged
in the transfer to have been received, has not in fact been received, Kelly v.
Fuller (1867), 1 S.A.L.R. 15. As to the effect of the provision in s. 35, that a
registered instrument shall be as effective as if sealed and delivered, see cases
cited under that section.
As to atte,tation and proof of instruments, see S5. 115, 116, and notes
thereto; Evidence (Attestation of Documents) Acts, 1937 to 1950, title EVIDENCE,
Vol. 5, p. 527.
It is primarily the obligation of the transferee to procure registration of a
transfer, but the transferor is also entitled to do so, Commonwealth v. New
South Wales (1918), 25 C.L.R. 325. Compare Ex parte Hunter (1892), 9 Q.L.I.
(N.C.) 59.
In certain cases where the purchase money for land has been paid and no
transfer executed. the Public Curator is authorized to execute a transfer, Public
Curator Acts, 1915 to 1957, s. 56A, title TRUSTEES AND EXECUTORS. As to
a vesting order under Trustees and Executors Acts, 1897 to 1964, s. 27, title
TRUSTEES AND EXECUTORS, where the vendor cannot be obtained to execute
a transfer, see Re Holloway and White's Contract, [1907] Q.W.N. 34; Re Campbell
(1861), 1 S.C.R. 39. For difficulties in the way of an action by a sub-purchaser
against a registered proprietor for a declaration that the sub-purchaser is entitled
to the land, that the registered proprietor is trustee for him and for a vesting
order, see Maltby v. Pang See, [1911] St. R. Qd. 12; [1911] Q.W.N. 2.
Quaere whether a person registered as proprietor of an estate tail can deal
with the land to the prejudice of the remainderman, Allison v. Petty (1899),
9 Q.LJ. 125. He may, however, dispose of the estate tail by a transfer under
this section, ibid., and an equitable tenant in tail of land under this Act may
dispose of his interest by an instrument in writing duly attested, ibid. See further
notes to Registration of Deeds Act of 1843, s. 16, p. 785, post.
As to transfer of a right to standing timber on land and the right to remove
same. see Connolly v. Noone, [1912] St. R. Qd. 70; [1912] Q.W.N. 19.
Execution of a blank transfer is improper, Halcrow v. Fletcher, B.C.R.,
1 June, 1886; Bishop v. Donkin, 7 June, 1887. A memorandum of transfer in
blank is absolutely void, Gilbert v. Bourne (1895), 6 Q.L.J. 270; Stamp Acts,
1894 to 1968, s. 53 (5), title STAMP DUTIES.
As to the duty of the Registrar of Titles to register transfers substantially
in the prescribed form, see notes to s. 35. A transfer not showing all encumbrances
to which the land is subject should not be registered, McGlone v. Registrar of
Titles (1886), 2 Q.L.J. 182; Perkins v. Registrar of Titles (1887), 3 Q.L.J. 47.
As to whether unauthorized insertion of a memorandum of a mortgage or
encumbrance after execution of the transfer will avoid the transfer, see Brunker v.
Perpetual Trustee Co. Ltd. (1937), 57 C.L.R. 555.
As to the effect of showing land transferred as being bounded by a strip
of land subject to a right of way, see Boulter v. Jochheim, [1921] St. R. Qd. 105;
[1921] Q.W.N. 18; affirmed, 29 C.L.R. 602; Dabbs v. Seaman (1925), 36 C.L.R.
538.
The doctrine that where parties enter into an executory contract to be
carried out by a deed afterwards to be executed, the contract becomes merged in
the deed upon its execution, applies to contracts for sale of land under this Act.
See Knight Sugar Co. Ltd. v. Alberta Railway and Irrigation Co., [1938] 1 All
E.R. 266, P.C.; Wellington Railway Co. v. Haselden (1899), 18 N.Z.L.R. 278.
But see Merry v. Australian Mutual Provident Society (1872), 3 S.C.R. 40,
at p. 63, where the transfer was void; West v. Read (1913), 13 S.R.(N.S.W.) 575.
49. If estate in fee-simple be transferred certificate of title to be delivered

up and cancelled so far as regards the portion of land transferred. If any
such memorandum of transfer purports to transfer an estate in fee-simple in
the whole or in any part of the land mentioned in any grant or certificate
of title the transferor shall deliver up the grant or certificate of title of the
said land and the Registrar-General shall in such case enter on such grant
or certificate of title a memorandum cancelling the same either wholly or
partially according as the memorandum of transfer purports to transfer the
whole or part only of the land mentioned in such grant or certificate of title
and setting forth the particulars of the transfer intended to be effected
Where the whole of the land is transf~rrcd. this section must be read suhject
to t he Real Property Act of 1877. s. 17. p. 741. [lO.I!.
50. Fresh certificate to be issued to purchaser. A certificate for the

balance if any untransferred to be issued to proprietor when demanded
or to a registered transferee thereof. The Registrar-General upon
cancelling any grant or certificate of title either wholly or partially pursuant
to any such transfer shall make out to the purchaser or other registered
transferee a certificate of title to the land mentioned in such memorandum
of transfer and every such certificate of title shall refer to the original
grant of such land and to the memorandum or other instrument of transfer
to the purchaser or other registered transferee thereof and the Registrar-
General shall retain every such cancelled or partially cancelled grant or
certificate of title and whenever required thereto by the proprietor of an
unsold portion of land included in any such partially cancelled grant or
certificate of title or by a registered purchaser or transferee of such
portion or of any part thereof shall make out to such proprietor purchaser
or transferee a certificate of title for such portion Or for the part thereof
of which he is the proprietor purchaser or transferee
Where the whole of the land is transferred, see Real Property Act of 1877,
s. 17, p. 741, PO,I/'
A mortgagee or encumbrancee taking a transfer is entitled to a certificate free
from his mortgage or encumbrance, ibid., s. 19.
As to issue of a single certificate upon surrender of certificates for separate
parcels or issue of certificates for separate parcels where a single certificate is
surrendered, see s. 94. For power of the Registrar to require a single certificate
to be issued where an owner purchases contiguous land, see Local Government
Acts, 1936 to 1967, s. 34 (18), title LOCAL AUTHORITIES, Vol. 10, p. 458.
5]. Easements and incorporeal rights to be registered. (1) Whenever

any easement or any incorporeal right other than an annuity or rent charge
affecting any land under the provisions of this Act is created for the
purpose of being annexed to or used and enjoyed together with other land
under the provisions of this Act the Registrar-General shall enter a
memorial of the instrument creating such easement or incorporeal right
upon the folium of the register book constituted by the existing grant or
certificate of title of such other land when such instrument is produced
to him for registration
(2) Whenever any easement affecting land under the provisions of
this Act is created for the purpose of being used or enjoyed by the Crown
in right of this State, any Crown corporation or instrumentality of this
State, or corporation or instrumentality representing the Crown in right
of this State, or any Local Authority the Registrar of Titles shall enter a
memorial of the instrument creating such easement on the folium of the
register book constituted by the existing grant or certificate of title of
such land when such instrument is produced to him for registration
notwithstanding that such easement is not being annexed to or used and
enjoyed together with any other land, whether under the provisions of
this Act or not.
As to transfer of land subject to an easement, see Real Property Act of 1877,
55. ::'3-28, p. 743, post.
An easement should also be entered on the certificate of titles to the servient

tenement, s. 33. As to the effect of omission of such entry, see s. 44, and lame'S
v. Stevenson, [1893] A.C. 162, cited thereunder.
A right to the uninterrupted access and enjoyment of light and air to the
doors and windows of buildings erected or to be erected on land is an easement,
Commonwealth v. Registrar oj Titles jar Victoria (1918), 24 C.L.R. 348.
As to creation of a right of way by description of adjoining land as a "lane",
see Dabbs v. Seaman (1925), 36 C.L.R. 538: Boulter v. lochheim, [1921] SI. R.
Qd. 105; [1921] Q.W.N. 18; affirmed, 29 C.L.R. 602.
QII(/('I"(' whether an ea-ement may be acquired by prescription over land under
the Real Property Acts of Queensland. Compare Nelson v. Hughes, [1947] V.L.R.
2"27, a decision of Lowe, 1., that an easement may be so acquired under the law
of Victoria.
For an example of the construction of an express grant of a right of way and

its extent and the user which it permitted, see Kain v. Norfolk, [1949] 1 Ch. 163;
[1949] 1 All E.R. 176.
Where a restrictive covenant registered under the Transfer of Land Act 1958
(Victoria) was expressed to be for the benefit of the registered proprietor "and
his heirs, executors, administrators and transr~rees, registered proprietor or pro-
prietors for the time being of the described land", it was held that such restrictive
covenant applies only in respect of the whole of such land and does not extend
to parts of such land subsequently transferred out of the parent title, and its benefit
does not pass to transferees of portion only of such land. See Re Arcade Hotel
Pty. Ltd., [1962] V.R. 274.
52. Lands under the provisions of this Act how leased. Schedule E.
When any land under the provisions of this Act is intended to be leased
or demised for a life or lives or for any term of years exceeding three
years the proprietor shall execute a lease in form E of the Schedule
hereto and every such lease shall refer to the description that is given in
the grant or certificate of title of the land or shall give such other
description as may be necessary to identify such land and shall be attested
by a witness
No lease of mortgaged land valid without consent of mortgagee.
Provided always that no lease of mortgaged or encumbered land executed
subsequently to the registration of any bill of mortgage or bill of
encumbrance shall be valid and binding 3gainst the mortgagee or
encumbr::mcee unless such mortgagee or enCllmbrancee shall h3ve
consented to such lease prior to the same being registered
. Leases for three years or less are valid and if in the proper form may be
regIstered, Re:tl Property Act of 1S77, s. 18. p. 741. post. As to the etlcct of
unregistered leases for three years or less as against a registered proprietor, see ibid.,
s. 11.
As to the cancellation of registration of leases of extinct corporations, see Real
Property Acts Amendment Act of 1956, p. 765, po)t.
As to attestation and proof of execution, see ss. 115, 116, and notes thereto.
As to certificate of correctness, see s. 139.
A lease for registration must be in duplicate and may be in triplicate, s. 35;
Real Property Act of 1877, s. 16. p. 741, post.
For manner of giving consent to a lease, see s. 110.
As to necessity for registration, see s. 43. A lease for more than three years
not registered under this Act is void at law, Hill v. Cox (1882), 1 Q.L.J. 78. But
where parties have entered and paid rent under a lease which is void because not
registered under this Act, a legal tenancy from year to yeur upon the terms
of the void lease so far as they are applicable to such a tenancy arises, Hill v.
Cox (18S2), 1 Q.LJ. n; Mars/wI! Y. COUpOIl Furnit!lre Co. Ltd., [1916J St. R. Qd.
120; [1916] Q.W.N. 29; Ilughes v. Graham, [1902] Q.W.N. 79; Edl1'ards Y. Horri"an,
[1923J St. R. Qd. 8; [1'!23] Q.W.N. 4: 16 Q.J.P.R. 159. An agreement to give :l lease
under this Act under which the lc,;see has entered and which is specifially enforceable,
comtitutes an equitable lease for the term specified, whether less or more than three
years, and in the Supreme Court rights will be determined between the parties
as if the specific performance had been granted and a lease at law had heen
made, Ahern v. L. A. Wilkinson (Northern) Ltd., [1929] St. R. Qd. 66.
An unregistered lease for more than three years, whether in registrable form
or not, will be treated as an agreement for a lease and if it would be specifically
enforce:::blc will have the same effect in constituting an equitable lease, National
Trustees and Executors Co. v. Boyd (1926), 39 C.L.R. 72; York House Pty. Ltd.
v. Federal Commissioner of Taxation (1930), 43 C.L.R. 427; Hill v. Cox (1882),
1 Q.LJ. 78; Smith v. Ritchie (1919). 15 Tas. L.R. 60; Mayor of Timaru v. Hoare
(1898), 16 N.Z.L.R. 5S2. Many of the New South Wales cases on this point
are distinguishable by virtue of the separate administration of law and equity
in that State. See D[l\'is v. McCol1ochie (1915). 15 S.R.(N.S.W.) 510, at p. :'15.
See further, as to the effect of unregistered instruments, s. 43, and Real Property
Act of 1877, S5. 48, 49, 51, pp. 751, 752, post, and notes thereto.
As to the necessity for leases for more than three years and agreements for
leases to be in writing, see the Statute of Frau1s and Limitations of 1867, ss. 2-5, title
FRAUDS, Vol. 6, p. 207.
Land subject to a tenancy from year to year arising by entry and payment
of rent under a purported lease for more than three years is "demised property"
within the Real Property Act of 1877, s. 31, p. 745, post, Hill v. Cox (1882) 1
Q.L.J. 78.
A lease not substantially in the form in the schedule is not registrable,
Marshall v. Coupon Furniture Co. Ltd., [1916] St. R. Qd. 120; [1916] Q.W.N.
29. As to when a lease is substantially in the form required by this Act so as to
make it registrable, see Crowley v. Templeton (1913), 17 C.L.R. 457, and notes to
s. 35.
The proviso does not apply to leases for three years or less; but it does not
give rise to the implication that such a lease has priority over a mortgage executed
before it, English, Scottish alld Australian Balik Ltd. v. City National Bank Ltd.,
[1933] St. R. Qd. 81; Gangell v. Townsend (1911), 7 Tas. L.R. 107; Daniher v.
Fitzgerald (1919), 19 S.R.(N.S.W.) 260. The proviso only validates a lease where
it is registered and the mortgagee's consent was prior to registration, Bacchus
Marsh Brick, etc., Co. v. Federal Building Society (1895), 22 V.L.R. 181, at p.
188. The proviso is for the protection of the mortgagee and does not affect the
validity of the lease as against anyone else, Daniher v. Fitz/?erald, supra. The
fact that a mortgagee has consented in writing to a lease by the mortgagor under
this section, the lease not being subsequently registered, does not entitle the
mortgagee to recover the rent from the lessee, National Trustees Executors and
Agency Co. of fiustra/asia Ltd. v. Tindall, [1933] V.L.R. 369.
Leases of minerals and mines appear to be within this Act in the same manner
as other leases. See Munro v. Didcott, [1911] A.C. 141.
If the description in a lease aided so far as permissible by extrinsic evidence
does not identify the land, the instrument is ineffective as a lease. Zuschlag v.
RL.H. Motors Pty. Ltd. (1959), 76 W.N.(N.S.W.) 471.
As to whether a lease of land and chattels can be registered under this Act,
see Boswell v. Reid, [1917] N.Z.L.R. 225.
A mortgagee of a leasehold interest by transfer of the lease is entitled to enter
into posses ion upon default under the terms of the mortgage, Mayeshiba v.
Hennessey, [1910] St. R. Qd. 351; [1910] Q.W.N. 53.
53. Right of purchase may be granted or covenant stipulated. In any

such lease a right to purchase the fee simple of the land thereby demised
may be granted to the lessee by a stipulation to that effect expressed in
such lease or a covenant to purchase the fee simple of the said land may
be entered into by the lessee and in such case the true amount of the
purchase-money to be paid the pcriod within which such right may be
exercised or such covenant is to be performed and such other particulars
as m;::y be considered necessary for explaining the terms of such right
or covenant shall be stated on such lease and in case the lessee shall pay
the purchase-money stipulated and otherwise observe his covenants
expressed and implied in such lease the lessor shall be bound to execute
a memorandum of transfer to such lessee of the said land and the fee
simple thereof and to perform all necessary acts by this Act directed to
be done for the purpose of transferring to a purchaser any land and the
fee simple thereof
See Fels v. Knowles (1906), 26 N.Z.L.R. 604; Horne v. Horne (1906), 26
N.Z.L.R. 1208; Eudunda Formers, etc., Ltd. v. Mattiske, [1920] S.A.L.R. 309.
54. Lease may be surrendered by endorsement by lessee with concurrence

of lessor. Whenever any lease or demise Vlihich is required to be
registered by the provisions of this Act is intended to be surrendered and
the surrender thereof is effected otherwise than through the operation of
a surrender in law or than under the provisions of any law at the time
being in force in the said State relating to bankrupt estates there shall be
endorsed upon such lease or on the counterpart thereof the word
"Surrendered" with the date of such surrender and such endorsement shall
be signed by the lessee and by the lessor as evidence of the acceptance
thereof and shall be attested by a witness
and the Registrar-General thereupon shall enter in the register book
a memorandum recording the date of such surrender and shall likewise
endorse upon the lease a memorandum recording the fact of such entry
having been made in the register book and upon such entry being so
made in the register book the estate or interest of the lessee in such land
shall revest in the lessor or in the person in whom having regard to
intervening circumstances (if any) the said land would have vested if no
such lease had been executed and production of such lease or counterpart
bearing such endorsement and memorandum shall be sufflcient evidence
that such lease has been so surrendered
Provided that except where the surrender is effected through the
operation of a surrender in law or under the provisions of any law at the
time being in force in the said State relating to bankrupt estates any lease
subject to a mortgage, encumbrance or sub-lease shall not be surrendered
without the consent of the mortgagee, encumbrancee or sub-lessee as the
case may be.
As to attestation, see ss. 115, 116, and notes thereto.
As to necessity for surrenders of leases to be in wntmg. see the Statute
of Frauds and Limitations of 1867, s. 4, title FRAUDS, Vol. 6, p. 208.
As to surrender in law, see 23 Halsbury's Laws of England, 3rd ed., p. 683.
55. Proceedings when lessee is insolvent. Whenever any lease shall be

delivered up by an insolvent lessee under the provisions of the Insolvent
Act to the lessor in consequence of the official assignee having declined
to accept the same the Registrar-General upon proof to his satisfaction
by affidavits or otherwise that the Official Assignee has declined to accept
such lease shall enter in the register book a memorandum to that effect
and shall also endorse upon such lease a memorandum of the fact of
such entry having been made
See the Bankruptcy Act 1924-1965, s. 104 (Commonwealth).
56. Lands under this Act how mortgaged or encumbered. Schedule F.

Whenever any land or any estate or interest in land under the provisions
of this Act is intended to be charged or made security in favor of any
mortgagee the mortgagor shall execute a bill of mortgage in form F of
the Schedule hereto
Schedule G. and whenever any such land estate or interest is
intended to be charged with or made security in favor of any en cum-
brancee for the payment of an annuity rent charge or sum of money the
encumbrancer shall execute a bill of encumbrance in form G of the
Schedule hereto
and every such bill of mortgage or bill of encumbrance shall contain
an accurate statement of the estate or interest intended to be mortgaged
or encumbered and shall refer to the description given in the grant or
certificate of title of the land in which such estate or interest is held or
shall give such other description as may be necessary to identify such
land together with a statement of all mortgages and other encumbrances
affecting the same (if any)
Priority of mortgages and encumbrances. and every such bill of

mortgage or bill of encumbrance shall be attested by a witness and shall
be registered in the order of time in which the same is produced to the
Registrar-General for that purpose and bills of mortgage and bills of
encumbrance registered in respect to or affecting the same estate or
interest shall notwithstanding any express implied or constructive notice
be entitled to priority one over the other according to the date of
registration and not according to the date of each instrument itself
For definitions of "bill of mortgage", "bill of encumbrance", "mortgage",
"encumbrance", etc., see s. 3.
Forms F and G in the Schedule may be used to secure payment of money
by weekly or other periodical instalments. See s. 59.
As to creation of charges and securities by memorandum of transfer and
charge, see Real Property Act of 1877, 5S. 23-28, p. 743, post.
As to mortgages entered into prior to grant of the land by the Crown, see
Land Acts, 1962 to 1968, s. 285, title LAND, Vol. 9, p. 310.
Provision with respect to mortgages to benefit and friendly societies and
trade unions is made by Real Property Act of 1877, s. 22, p. 742, post.
Provision with respect to moneys lent on joint account is made by Real
Property Act of 1877, s. 21. p. 742, rOlf.
As to attestation of mortgages, see ss. 115, 116, and notes thereto.
A consent to a mortgage may be given as provided by s. 110.
A certificate of correctness must be endorsed. See s. 139.
A mortgage for registration must be lodged in duplicate, s. 35.
As to time when registration takes place and the priority conferred by
registration, see also s. 43, and Real Property Act of 1877, ss. 12, 14, IS,
pp. 739, 740, post.
As to the necessity for registration, see s. 43, and Real Property Act of
1877. ss. 48, 49, 51. pp. 751, 753, rost, and notes thereto and to s. 60,
of this Act. An equitable mortgage may be created by deposit of title deeds, Real
Property Act of 1877, s. 30, p. 745, rost.
It is mandatory on the Registrar of Titles to register a mortgage or
encumbrance substantially in the form required by this Act, R. v. ReRistrar-
General; Ex parte Roxburgh (1868). 1 S.C.R. 201. See also cases cited under
s. 35. A mortgage containing a stipulation that it was agreed that the principal
sum belonged to the mortgagees in unequal specific proportions was held to be
registrable. Drake v. Templeton (1913), 16 C.L.R. 153. See also Real Property
Act of 1877, s. 21, p. 742, rost. The inclusion in a mortgage otherwise in the
statutory form of a covenant by a person not party to the mortgage guaranteeing
repayment of the mortgage money does not prevent its registr;)tion, Perpetual
Executors and Trustees Assoc. v. Hosken (1912), 14 C.L.R. 286. As to when
a mortgage is substantially in the required form, see also R. v. Registrar-General,
Ex rarte Roxhurgh, supra (mortgage for money advanced by several persons).
A sub-mortgage of a registered mortgage over the fee sim!1le by transfer
thereof or agreement is a mortgage of "land", City Mutual Life Assurance
Society Ltd. v. Smith (1932), 48 C.L.R. 532. And see Re Bennett and Jacobsen,
[1924] N.Z.G.L.R. 44.
An instrument may be an encumbrance even though the moneys secured
thereby "re not payable in certain eircuIlls~ances, i'vlallOllY v. lIoskclI (1912),
14 C.L.R. 379.
As to right of mortgagee of a building lease where an option of purchasing
the freehold reversion on redemption is included in the mortgage, see Nelson v.
Hal1l1alll and Smith (1942), 59 T.L.R. 9; [1942] 2 All E.R. 680.
For an example of a mortgage debt passing under a purported devise of the
relative mortgaged land. see Re Smellie, [1948] Q.W.N. 7.
A mortgage not executed by the registered proprietor or by his authority is
void as a security upon the land. See Ex parte Neil, [190S] Q.W.N. 69;
Kay v. Barnett, [1909] Q.W.N. 39. Leaving the certificate of title in the hands
of a solicitor or certificated conveyancer does not constitute a holding out by
the registered proprietor that the solicitor or conveyancer had authority to borrow
on the security of the land, Kay v. Barnett, supra. See also notes to ss. 43, 44.
A registered proprietor is not prevented from glvmg a second mortgage by

the fact that he has not possession of the certificate of title, Clarkson v. Mutual
Ufe Assoc. of Australasia (1879),5 S.C.R. 165.
As to the effect of an encumbrance, see Brown v. Abbott (1908), 5 C.L.R.
487.
See also Power on The Land Transfer Acts of Queensland, p. 78.
As to mortgages entered into prior to grant of the land by the Crown, see
Land Acts, 1962 to 1968, s. 285, title LAND, Vol. 9, p. 310.
57. Remedy when mortgagor or encumbrancer is in default. Power to sell.

In case default shall be made for the space of one calendar month in
payment of the principal money or interest or any part thereof secured by
any registered bill of mortgage or
if default shall be made in the observance of any covenant that
may be expressed in such bill of mortgage or that is therein as
against the mortgagor declared to be implied as hereinafter
provided or
in case such default for the space aforesaid shall be made in pay-
ment of the annuity rent charge principal money or interest
or any part thereof secured or charged by any registered bill of
encumbrance or
if default shall be made in the observance of any covenant that may
be expressed in such bill of encumbrance or that is therein
as against the encumbrancer hereinafter declared to be implied
the mortgagee or encumbrancee after giving to the mortgagor or encum-
brancer notice in writing to pay the money then due or owing on such bill
of mortgage or bill of encumbrance or to observe the covenants therein
expressed or implied as the case may be or after leaving such notice on
the mortgaged or encumbered land or at the usual or last known place of
abode in Queensland of the mortgagor or encumbrancer or other person
claiming to be then entitled to the said land and after such default in
payment or in observance of covenants continuing for the further space of
one calendar month from the date of such noticc is hereby authoriscd and
empowered to sell the said land so mortgaged or encumbered or any part
thereof and all the estate and interest therein of the mortgagor or encum-
brancer and either altogether or in lots by public auction or by private
contract or by both such modes of sale and subject to such conditions as
he may think fit and to buy in and resell the same without being liable for
any loss occasioned thereby and to make and execute all such instruments
as shall be necessary for effecting the sale thereof all which sales contracts
mattcrs and things hereby authorised shall be as valid and cffectual as if
the mortgagor or encumbrancer had made done or executed the same
Receipt of mortgagee or cncumbrancec sufficient discharge to a
purchaser. and the receipt or receipts in writing of the mortgagee or
encumbrancee shall be a sufficient discharge to the purchaser of such land
estate or interest or any portion thereof for so much of his purchase money
as may be thereby expressed to be received and no such purchaser shall be
answerable for the loss misapplication or non-application or be obliged to
see to the application of the purchase money by him paid nor shall he be
concerned to inquire as to the fact of any default notice or requisition
having been made or given as aforesaid
REAL PROPERTY ACTS, 1861 TO 1963 SS. 56, 57 673
Appropriation of proceeds. and the purchase money to arise from the

sale of any such land estate or interest shall be applied First In payment
of the expenses occasioned by such sale Secondly In payment of the
moneys which may then be due to the mortgagee or encumbrancee Thirdly
In payment of subsequent mortgages or encumbrances if any and the
surplus if any shall be paid to the mortgagor or encumbrancer as the
case may be
As amended by Act of 1952, 1 Eliz. 2 No. 43. s. 17.
As to variation of the period after which sale may be made, see s. 59.
As to addition to the principal moneys of rates paid by a mortgagee, see
Local Government Acts, 1936 to 1967, s. 27 (6), title LOCAL AUTHORITIES,
Vol. 10, p. 408.
Principal moneys may be retained out of proceeds of a sale for non-payment
of interest or instalments only, Real Property Act of 1877, s. 20, p. 742, post.
A notice of demand is sufficient if it sufficiently identifies the debt of which
payment is demanded, notwithstanding any error or omission in the description,
Barns v. Queensland National Bank Ltd. (1906), 3 C.L.R. 925. The notice is
not bad because it demands more than is due unless the mortgagee refuses to
accept less than the amount demanded when the amount due is tendered, Campbell
v. Commercial Banking Co. of Sydney (1879), 40 L.T. 137. But, semble, the
nature and circumstances of the demand itself may amount to a refusal to accept
the amount due, ibid. The notice must specify whether the demand is for I
overdue interest alone or principal and interest, McDonald v. Rowe (1872), 3
A.l.R. 90. As to the effect of a notice calling up principal and interest, when
the principal is not due, see Ewart v. General Finance, etc., Co. (1889), 15
V.L.R. 625. Notice to observe covenants must specify the covenants alleged to
have been broken, Stacey v. Hansen (1894), 20 V.L.R. 561. Notice is given
to the mortgagor or incumbrancer, if such notice in fact reaches the mortgagor,
McDonald v. Rowe (1872), 3 A.l.R. 90. As to what constitutes leaving notice
on the mortgaged or incumbered land, see Ex parte National Trustees Executives
and Agency Co. of Australia Ltd. (1898), 19 A.L.T. at p. 225. The fact that
notice is given before the mortgage is registered does not render such notice
invalid. Mathieson v. Mercantile Finance and Agency Co. Ltd. (1891), 17 V.L.R.
271. Where a mortgagee has given notice under this section, a subsequent
mortgagee is entitled to redeem the first mortgage, Gunn v. Commonwealth Bank
of Australia (1922), 18 Tas. L.R. 26.
The statutory notice required by this section must be given, notwithstanding
that a covenant in the bill of mortgage purports to enable the mortgagee to
dispense therewith. See Hall v. Hall, [1956] Q.W.N. 28.
An equitable mortgagee may sell under a power of sale contained in his
mortgage, Coakley v. Chalmers, [1930] Q.W.N. 30; Keogh v. Registrar-General
(1918),24 C.L.R. 413.
A mortgagee cannot sell to himself without the consent of the mortgagor.
Re White (1866), 1 S.c.R. 149.
For the obligations of a mortgagee exercising a power of sale, see Barns v.
Queensland National Bank (1906), 3 C.L.R. 925; Gunn v. Land Mortgage Bank
of Victoria Ltd. (1890), 12 A.L.T. 49.
This section does not preclude a mortgagee from retaining out of the
proceeds of sale just allowances other than the mere expenses of the sale, such
as expenses incurred for the preservation of the property, National Bank of
New Zealand v. Barclay (1899), 17 N.Z.L.R. 819; Murphy v. Stanley, [1922]
N.Z.L.R. 838. See also Bagnall v. Clements, [1928] N.Z.L.R. 737.
The proceeds of sale of land subject to an encumbrance under an order of the
court when paid into court remain subject to the encumbrance, Brown v. Abbott
(1908), 5 C.L.R. 487.
The exercise of the power of sale under this section does not affect the right
to sue the mortgagor for the moneys secured, Trust and Agency Co. v. Markwpll
(1874),4 S.C.R. 50.
As to rights under a mortgage given before the land came under this Act,
see Land Acts, 1962 to 1967, s. 285, title LAND, Vol. 9, p. 310; Re Smith
(1893), 15 A.L.T. 85.
22
58. Registrar-General to give effect to sale by mortgagee or encumbrancee.

Upon the registration of any memorandum or instrument of transfer
executed by a mortgagee or encumbrancee for the purpose of such sale as
aforesaid the estate or interest of the mortgagor or encumbrancer therein
described as to be conveyed shall pass to and vest in the purchaser freed
and discharged from all liability on account of such mortgage or encum-
brance or of any mortgage or encumbrance registered subsequent thereto
and if such memorandum of transfer purports to pass an estate in fee
simple the purchaser shall be entitled to receive a certificate of title for the
same
The Registrar is entitled to require proof of the default having continued up
to the time of sale, Ex parte Hassall (1871), 10 S.C.R.(N.S.W.) 292.
The title at law does not pass to a transferee from the mortgagee until
registration of the transfer, National Bank of Australasia v. United Hand-in-Hand
Co. (1879), 4 App. Cas. 391. But see Real Property Act of 1877, s. 51. p. 752.
post.
The transferee under a registered transfer from a mortgagee exercising his
power of sale is entitled to bring an action in ejectment against the mortgagor
who refuses to vacate the land, McLachlan v. Ryan (1922), 24 W.A.L.R. 94.
As to the effect of a sale by a mortgagee expressly subject to a contract to
grant a lease, see Thomson v. Finlay (1886), N.Z.L.R. 5 S.C. 203.
59. Payments by instalments. Schedules F and G. The payment of any sum

of money by weekly instalments or other periodical payments may be
secured on any land or on any estate or interest therein by bill of mortgage
or bill of encumbrance in the form F or G of the Schedule hereto by
varying such form so as to express fully the terms and modes of payment
of such sum of money.
Power to vary time of enforcing payment. Provided also that the
period of time hereinbefore limited as the period after expiration of which
it shall be lawful for a mortgagee or encumbrancee to sell an estate pledged
as security in the event of default made in payment of interest or principal
or of any annuity or rent charge or in consequence of the non-fulfilment
of any covenant may by condition expressed in any such bill of mortgage
or bill of encumbrance be extended or shortened and notwithstanding such
variations in such form the like covenants rights powers and obligations
shall be implied thereunder and thereby both against the mortgagor or
encumbrancer and the mortgagee or encumbrancee as would be implied if
no such variation had been made
See ss. 56, 57.
60. Bill of mortgage or bill of encmnbrance not a transfer. Every bill of

mortgage and bill of encumbrance shall be construed and have effect only
as a security for the sum of money annuity or rent charge intended to be
thereby secured and shall not operate or take effect as a transfer of land
estate or interest intended to be thereby charged with the payment of any
money
In case of default mortgagee or encumbrancee may entel' and take
possession or may distrain. but it shall be lawful for the mortgagee or
encumbrancee upon default in payment of the money secured by such bill
of mortgage or bill of encumbrance or any part thereof to enter into
possession of the mortgaged or encumbered land by receiving the rents and
profits thereof or to distrain upon the occupier or tenant of the said land
under the power to distrain hereinafter contained
May bring action for ejectment or may foreclose right of redemption.

Provided also that it shall be lawful for any registered mortgagee or encum-
brancee whenever any principal or interest money annuity or rent charge
shall have become in arrear to bring an action of ejectment to obtain
possession of the said land either before or after entering into the receipt of
the rents and profits thereof or making any distress as aforesaid and either
before or after any sale of such land shall be effected under the power of
sale given or implied in such bill of mortgage or bill of encumbrance and
any such registered mortgagee or encumbrancee shall be entitled by suit or
other proceedings in equity to foreclose the right of the mortgagor or
encumbrancer to redeem the said mortgaged or encumbered lands
For construction of this section when the mortgagor or encumbrancer is the
occupier or tenant of the mortgaged or encumbered land, see s. 61A.
A mortgagor in possession may sue for recovery of the land or trespass
thereto. See Judicature Act (1876), s. 5 (5), title SUPREME COURT.
It appears, however, that it is not necessary to rely on that section where
land is mortgaged under this Act as the title to the fee simple at law does not
pass to the mortgagee.
On the nature of a true redemption suit, see the judgment of Fullagar, J., in
Perry v. Rolfe, [1948] V.L.R. 297 at p. 301.
The power to distrain is contained in s. 61.
The court has power to order a sale instead of foreclosure, Equity Acts,
1867 to 1960, s. 74, title SUPREME COURT.
A mortgage does not upon registration effect a transfer to the mortgagee
of an estate in the land, or confer upon him an immediate right to possession
or to receive the rents and profits, but it gives him an interest in the land at
law in the nature of a charge, Partridge v. Mcintosh & Sons Ltd. (1933), 49
C.L.R. 453. As to how far a registered mortgage confers an estate or interest
in land, see also Conroy v. Knox (1901), 11 Q.L.J. 112; Gibbs v. Messer, [1891]
A.C. 248; Campbell v. District Land Registrar (1910), 29 N.Z.L.R. 350; City
Mutual Life Assurance Soc. Ltd. v. Smith (1932), 48 C.L.R. 532; Re Wi/liam3
(1931),26 Tas. L.R. 82; Coleman v. De Lissa (1885),6 L.R.(N.S.W.) (Eq.) 104.
For the distinction between a mortgage under this Act and a common law
mortgage, see Trust and Agency Co. v. Markwell (1874), 4 S.C.R. 50; Duncan v.
Wood (1876), 4 S.C.R. 205; 1 Q.L.R. PI. I, 49; City Mutual Life Assurance
Soc. Ltd. v. Smith (1932), 48 c.L.R. 532.
This Act does not entitle the mortgagee to the certificate of title, Clarkson
v. Mutual Life Assoc. of Australasia (1879), 5 S.C.R. 165.
A mortgagor may sue a mortgagee for an account and for an order that the
mortgagee accept principal and interest, National Bank of Australasia, v. United
Hand-in-Hand Co. (1879), 4 App. Cas. 391.
Although a mortgagee cannot, before registration, avail himself of the
rights and remedies conferred by the Act, the instrument may hav~ effect as a
contract between the parties to it, and may operate in equity as a security,
Mathieson v. Mercantile Finance and Agency Co. Ltd. (1891), 17 V.L.R. 271;
Visbord v. Irvine, [1921] V.L.R. 562. A mortgagee may bring an action on
the covenant for payment contained in a mortgage which has not been registered,
Seabrook v. McMullan (1908), 10 W.A.L.R. 47, and may enter into possession
pursuant to a provision contained in such a mortgage, ibid. Where land has
been sold under a power of sale in an equitable mortgage not registrable under
this Act, the mortgagor ceases to have an interest in the land entitling him to
lodge a caveat under s. 98, Keogh v. Registrar-General of New South Wales (1918),
24 C.L.R. 413.
An equitable owner of land under the Act can give an equitable mortgage,
Keogh v. Registrar-General, supra.
A mortgagee entering into possession under this section is still only 8
mortgagee in possession, Oelkers v. Merry (1872), 2 S.C.R. 193, at p. 195. A
mortgagee in possession is entitled to lease until redemption, Finn v. London
Bank of Australia (1898), 19 L.R.(N.S.W.) 364.
A mortgagee's right under this section to bring an action for recovery of the
land is not limited to actions against the mortgagor, Odker6 v. Merry, supra.
Where a mortgage under this Act is properly taken by a corporation constituted

by statute, such corporation is entitled to foreclose under the mortgage unless there
is something in its statute of incorporation taking away that right. See Bank of
New South Wales v. Campbell (1886), 11 App. Cas. 192, where it was held
that the Bank of New South Wales was not prevented from foreclosing by anything
in the New South Wales statute incorporating the Bank.
Judgment for foreclosure does not authorize the Registrar to register the
mortgagee as proprietor of the mortgaged land, wi,thout a vesting order or transfer
from the mortgagor, Wilson v. Brown (1896), 7 Q.L.J. 16, but the court will direct
the mortgagor to transfer to the mor,tgagee, ibid. A declaration of the right of the
mortgagee to be registered as proprietor of the mortgaged land will not be made,
British and Australasian Trust and Loan Co. v. South Queensland Pastorate Co.
(1894), 6 Q.LJ. 83, nor will a declaration that the mortgagee is entitled to an estate
in fee simple, Wilson v. Brown, supra.
As to proceedings for foreclosure where the mortgagor has died, see Thompson
v. Brisbane, [1908] Q.W.N. 36. As to the form of order for foreclosure where the
land remains registered in the name of a proprietor who is deceased, see Castlemaine
Brewery v. Spink (1899),9 Q.LJ. (N.C.) 120.
As to whether judgment for foreclosure extinguishes personal liability for the
mortgage debt, see Fink v. Robertson (1907), 4 C.L.R. 864. As to whether a
foreclosure can be reopened, see ibid.
As to the rights of redemption and foreclosure, see Trust and Agency Co. v.
Markwell (1874),4 S.C.R. 50.
For form of order for foreclosure see Stevens v. Hoberg, [1951] Q.W.N. 44,
which was followed by Matthews, J., in Overlack v. Martin, [1955] Q.W.N. 56, with
a proviso for payment by the mortgagors in redemption within three months.
A mortgagee under this Act cannot be made a garnishee in proceedings against
an absent defendant under the Common Law Process Acts, 1867 to 1960, title
SUPREME COURT, Duncan v. Wood (1876), 4 S.C.R. 205; 1 Q.L.R., Pt. I, 49.
The facts that a mortgage is in the form required by this Act and is registered
under this Act afford a strong inference, where the parties reside outside this State,
that the law of this State was intended to be that governing the transaction,
McClelland v. Trustees Executors Gnd Agency Co. (1936), 55 C.L.R. 483.
As to the distinction between actions for recovery of possession under R.S.C.,
Order 6, rule 7, and delivery of possession under R.S.C., Order 6, rule 11 (title
SUPREME COURT), see Donnan v. Petrie, [1940] Q.W.N. 12; Finance Allotments
Ply. Ltd. v. Young, [1961] Qd. R. 452.
61. Mortgagee or encumbrancee may distrain on tenant or occupier for

arrears not exceeding the amount of rent due by such tenant or occupier.
Besides his personal remedy against the mortgagor or encumbrancer as
the case may be every mortgagee or encumbrancee for the better recovery
of any principal sum or of any arrears of interest which may be due under
any bill of mortgage or of the arrear of any annuity or rent charge or
principal sum or any interest which may be due under any bill of encum-
brance shall be entitled after such principal sum interest annuity or rent
charge shall have become in arrear for twenty-one days and after
application in writing for the payment thereof shall have been made to
the occupier or tenant to enter upon the mortgaged or encumbered land
and distrain and sell the goods and chattels of such occupier or tenant and
to detain thereout the moneys which shall be so in arrear and all costs and
expenses occasioned by such distress and sale
No lessee liable for greater sum than the amount of rent actually
owing by him. Provided that no lessee or tenant or occupier occupying
such land, such lessee or tenant or occupier not being the mortgagor or
encumbrancer, shall be liable to pay to any mortgagee or encumbrancee of
REAL PROPERTY ACTS, 1861 TO 1963 ss.60-61A 677
such land a greater sum than the amount of rent or moneys payable in
respect of such occupancy which at the time of making such distress may
be then due and payable by such lessee or tenant or occupier as aforesaid
to the mortgagor or encumbrancer or to the person claiming the said land
under the mortgagor or encumbrancer.
As amended by Act of 1942, 6 Geo. 6 No. 14, s. 3.
For construction of this section when the mortgagor or encumbrancer IS the
occupier or tenant of the mortgaged or encumbered land, see s. 61A.
See also the second paragraph of s. 60.
The words "besides his personal remedy against the mortgagor" set aside the
rule of law which suspends the personal liability in debt during the time a distress
for rent is levied, A ustralian Mutual Provident Society v. Ceo. Myers & Co. Ltd.
(1931),47 C.L.R. 65, at p. 80.
Registration of the mortgage as a bill of sale is not necessary to allow of the
exercise of the power of distress under this section, even where the mortgage
contains an express power to distrain, Australian Mutual Provident Society v. Ceo.
Myers & Co. Ltd., supra. But it seems that such registration is necessary in order
to validate the express power, ibid., at pp. 82, 77.
The remedy under this section extends to the case where the mortgagor is the
occupier, Australian Mutual Provident Society v. Ceo. Myers & Co. Ltd. (1931),
47 C.L.R. 65; [1931] St. R. Qd. 83.
The goods and chattels of the occupier do not cease to be such when a
receiver is put into possession of the mortgaged premises under a floating charge,
ibid. As to when a receiver entering into possession under a floating charge on the
mortgagor's property is in possession as agent of the mortgagor, see ibid.
The goods of a husband living with his wife on her land cannot be distrained,
Trautweiler v. Federal Building Land and Investment Co. Ltd. (1896), 7 Q.L.J.
(N.C.) 78.
An express attornment clause in a mortgage under this Act does not confer
any right on a mortgagee to distrain on a person not a party nor a privy to the
estoppel created thereby, Partridge v. Mcintosh & Sons Ltd. (1933), 49 C.L.R. 453.
61A. (1) Construction of ss. 60 and 61 when mortgagor or encumbrancer

is occupier or tenant of mortgaged or encumbered land. Notwithstanding
anything contained in this Act, or in any other Act or law or rule of law or
practice or process of law to the contrary, where the occupier or tenant
referred to in sections sixty and sixty-one of this Act shall be the mortgagor
or encumbrancer of the mortgaged or encumbered land, the mortgagee or
encumbrancee shall have no power or authority under the said sections to
distrain the goods and chattels the property of such occupier or tenant
(being the mortgagor or encumbrancer) unless such power or authority so
to distrain shall have been expressly given to such mortgagee or
encumbrancee by the mortgagor or encumbrancer and evidenced by being
set forth in the bill of mortgage or bill of encumbrance concerned, and
unless such bill of mortgage or bilI of encumbrance shall have been
registered within three months of the date of the execution thereof, or if
executed prior to the passing of "The Real Property Acts Amendment Act
of 1942," then within the time or extended time provided in subsection two
of this section as a bill of sale, stock mortgage, mortgage, or security (as
the case may be) in accordance with the provisions of such of the following
Acts as shall be applicable to such registration, namely:-"The Bill.; of
Sale Acts, 1891 to 1941," or "The Mercantile Acts, 1867 to 1896:' or
"The Companies Act of 1931," or "The State Securities Registration Act
of 1925," or "The Primary Producers' Co-operative Associations Acts,
1923 to 1934," or "The Industrial and Provident Societies AC~1, 1920 to
1935," or "The Liens on Crops of Sugar Cane Acts, ] 93] to 1933," or
of any other Act which may be applicable to the registration of securities of

a like nature, or of any Act amending or in substitution for the said Acts
or any of them.
(2) Registration O'f mO'rtgages and encumbrances executed prior to'
the passing O'f "The Real PrO'perty Acts Amendment Act O'f 1942." Every
bill of mortgage or bill of encumbrance executed prior to the passing of
"The Real Property Acts Amendment Act of 1942" and subsisting at the
passing of such last-mentioned Act shall, unless otherwise provided therein,
and if registered in the manner and within the time hereinafter next
provided, be deemed to include power and authority so to distrain as
provided in sections sixty and sixty-one of this Act, and shall be duly
registered if registered in accordance with the provisions of the Acts
specified in subsection one of this section as shall be applicable to such
registration within a period of three months after the passing of "The Real
Property Acts Amendment Act of 1942," or within such extended period
not exceeding six months after the passing of such last-mentioned Act as
a judge of the Supreme Court of Queensland may allow.
(3) Meaning of "mortgagor" and "encumbrancer." For the purposes
of subsections one and two of this section the terms "mortgagor" and
"encumbrancer" shall include the person or company or corporation for the
time being registered as proprietor of such estate or interest in the land
as is mortgaged or encumbered.
Inserted by Act of 1942, 6 Geo. 6 No. 14, s. 4.
Acts referred to:
Real Property Act Amendment Act of 1942, not reprinted.
Bills of Sale Acts, 1891 to 1941; see now Bills of Sale and Other
Instruments Act of 1955, title MERCANTILE LAW, Vol. 12, p. 23.
Mercantile Acts, 1867 to 1896, title MERCANTILE LAW, Vol. 12, p. 119.
Companies Act of 1931; see now Companies Acts, 1961 to 1964, title
COMPANIES, Vol. 2, p. 31.
State Securities Registration Act of 1925, title CROWN, Vol. 4, p. 348.
Primary Producers' Co-operative Associations Acts, 1923 to 1965, title
PRIMARY PRODUCE, Vol. 13, p. 729.
Industrial and Provident Societies Acts, 1920 ,to 1935; see now Co-operative
and other Societies Act of 1967, title SOCIETIES.
Liens on Crops of Sugar Cane Acts, 1931 to 1965, title SUGAR.
62. Mortgagee or encmnbrancee of leasehold entering into pos.wessiO'n O'f

rent and prO'fits becomes liable to' lessor. Any mortgagee or encumbrancee
of a leasehold interest in land under the provision of this Act or any person
claiming through from or under such mortgagee or encumbrancee shall
after entering into possession of the said land or the rents and profits
thereof become and be subject and liable to the lessor of the said land or
the person for the time being entitled to the said lessor's estate or interest
in the said land to the same extent as the lessee or tenant was subject to
and liable for prior to such mortgagee encumbrancee or other person
entering into possession of the said land and the rents and profits thereof
A mortgagee of a leasehold interest is entitled upon default to enter into
possession of the property, and is not restricted to collecting rents from any IiUb-
tenants, Mayeshiba v. Hennessey. [1910] St. R. Qd. 351; [1910] Q.W.N. 53. This is
also the case where the mOI1tgage is effected by transfer Df the lease. ibid.
REAL PROPERTY ACTS, 1861 TO 1963 Si. 6IA-63 679
63. Discharge of mortgages and encumbrances. Upon the production of

any such bill of mortgage or bill of encumbrance having thereon an
endorsement signed by the mortgagee or the encumbrancee and attested by
a witness (or in lieu of that endorsement by one or more of the mortgagees
or encumbrancees upon the production of an instrument signed by the
mortgagee or encumbrancee and attested by a witness) discharging the
estate or interest by the said bill of mortgage or said bill of encumbrance
pledged or subjected as security from the whole or part of the principal
sum, annuity or sum of money thereby secured or discharging any part of
the land comprised in such bill of mortgage or bill of encumbrance from
the whole or part of such principal sum, annuity or sum of money the
registrar shall make an entry in the register book noting that the mortgage
or encumbrance is discharged wholly or partially or that part of the land
is discharged as aforesaid as the case may require
and upon such entry being made in the register book the estate or
interest which by such bill of mortgage or bill of encumbrance had been
pledged or subjected as security for any principal sum or annuity or the
portion of land mentioned or referred to in such endorsement as aforesaid
as intended to be discharged from such principal sum or annuity shall cease
to be subject to or liable for the same or as the case may be for the part
thereof noted in such entry as discharged
and in case any annuity or sum of money shall be secured by any such
bill of encumbrance during the life of any encumbrancee or other person
or contingent upon the occurrence of any event the Registrar-General on
the production of such bill of encumbrance together with proof of the death
of such annuitant or person or of the occurrence of the event upon which
such annuity or sum of money shall cease to be payable and upon proof
that all arrears of such annuity or sum of money and of all interest thereon
have been paid satisfied or discharged shall make an entry in the register
book noting that such annuity or sum of money is satisfied and discharged
and shall cancel such bill of encumbrance
and upon such entry being made in the register book the land estate
or interest which had been pledged or subjected as security for the payment
of such annuity or sum of money shall cease to be subject to or liable for
the same or any charges incident thereon and the Registrar-General shall in
any or either such case endorse on the grant certificate of title or other
instrument evidencing the title of the mortgagor or encumbrancer to the
land estate or interest mortgaged or encumbranced a memorandum of the
date on which such entry was made by him in the register book whenever
such grant certificate of title or other instrument shall be presented to him
for that purpose
Provided always that the discharge of part only of the land comprised
in any bill of mortgage or bill of encumbrance shall only have the effect
of discharging the portion of land described in such endorsement as
intended to be discharged and shall not have the effect of discharging the
whole of the land so comprised from such principal sum or annuity as
aforesaid
Statutory methods of discharging mortgages to registered building societies and
friendly societies respectively are provided by the Building Societies Acts, 1886 to
1968, s. 39, and Friendly Societies Acts, 1913 to 1965, s. 33, title SOCIETIES.
As to attestation, see ss. 115, 116, and notes thereto.

Until a memorandum of discharge is registered, it does not become effective,
and the rights and powers of the mortgagee remain, Taylor v. Wolfe & Co. (1892),
18 V.L.R. 727. See also Bree v. Scott (1904), 29 V.L.R. 692, at p. 699; OfficIOI
Assignee of Mordaunl v. Gibson (1914),33 N.Z.L.R. 1423.
The only person who can exercise rights under the mortgage is its registered
proprietor, and he is the only person who can give a discharge of it, Payne v.
R. (1901), 26 V.L.R. 705, at p. 752. It appears, however, that a mortgagee under
this Act is a mortgagee of land within the Trustees and Executors Acts, 1897 to 1964,
s. 30, title TRUSTEES AND EXECUTORS, which provides for a vesting order on
discharge where a mortgagee has died (see Re Cain (1893),5 Q.L.J. 93; City Mutual
Life Assurance Soc. Ltd. v. Smith (1932), 48 C.L.R. 532), and in certain cases
where a discharge cannot be otherwise had the Public Curator may receive mortg'!-ge
money and sign a discharge, Public Curator Acts, 1915 to 1957, s. 56, title
In Groongal Pa.,toral Co. Ltd. v. Falkiner (1924), 35 C.L.R. 157, it was held
that a discharge of mortgage when registered had the effect of a deed and discharged
the personal liability for the mortgage debt. In that case, however, the d!scharge
was in a form contained in the Schedule to the Act, whereas the form of dIscharge
under this section is not prescribed by the Act and it appears therefore to be doubtful
whether s. 35, will operate on it. See Toohey v. Gunther (1928), 41 C.L.R. 181, at
p.206.
On tender of what is due as principal and interest the mortgagee must take it,
otherwise the mortgagor may bring a suit to have an account taken and to compel the
mortgagee to receive the proper amount due, National Bank of Australasia v. United
fland-in-Hand Cn. (1879), 4 App. Cas. 391; Greig v. Watson (1881), 7 V.L.R.
(Eq.) 79.
As to the place where payment should be made, see Bank of Victoria v.
Robertson (1897), 23 V.L.R. 3; National Bank of New Zealand v. Barclay (1899),
17 N.Z.L.R. 819.
The Supreme Court of New South Wales has held that the corresponding
section of the Real Property Act 1900 does not authorize registration by the
Registrar-General of a memorandum of discharge of a mortgage signed by a
survivor of joint mortgagees who has not himself become registered as proprietor of
the mortgage. See Re Nicholas (1951),68 W.N.(N.S.W.) 193.
64. (Repealed.)
Repealed by Public Curator Act of 1915, s. 3, title TRUSTEES AND
EXECUTORS. See now ibid., s. 56.
65. Transfer of mortgage and of encumbrance and of lease. Schedule

H. A registered mortgage a registered lease or the interest of a registered
encumbrancee may be transferred to any person by memorandum of
transfer as aforesaid or by an instrument in the form H of the Schedule
hereto which instrument may be endorsed upon the bill of mortgage lease
or bill of encumbrance and upon such memorandum of transfer or other
instrument being registered the estate or interest of the transferor as set
forth in such instrument with all rights powers and privileges thereto
belonging or appertaining shall pass to the transferee and such transferee
shall thereupon become subject to and liable for all and every the same
requirements and liabilities to which he would have been subject and liable
if named in such instrument originally as mortgagee encumbrancee or
lessee of such land estate or interest
If the instrument in form H of the Schedule hereto is endorsed upon
the duplicate, or in the case of a lease, duplicate or triplicate original
(delivered out of the Office of the Registrar of Titles) of the registered
mortgage, lease, or bill of encumbrance, a duplicate of that instrument in
form H executed as a separate document (or in the case of a lease, a
duplicate and triplicate of that instrument in form H executed respectively

as separate documents) shall be lodged therewith in the office of the
Registrar of Titles for the purpose of registration.
As amended by Act of 1952. I Eliz. 2 No. 43, s. 18.
"Memorandum of transfer as aforesaid" refers to transfer under s. 48, and
form D in the Schedule, post. The form now substituted for form D in the Schedule
is printed following that form.
As to transfer of unregistered leases, see Statute of Frauds and Limitations of
1867, s. 4, title FRAUDS, Vol. 6, p. 208.
A transfer of a lease does not constitute a breach of covenant not to assign
until it is registered, Martin v. Coultas, [1911] S.A.L.R. 1.
The Registrar is not obliged to register a transfer without the consent of the
lessor under a lease which contains a covenant against assignment, as to do so would
result in the conversion of a limited interest into an unlimited one, Sullivan v.
Recorder oj Titles (1913), 9 Tas. L.R. 57. But see contra, Re Duggan (1882),
N.Z.L.R. 2 S.C. 144. See further, on this question, notes to s. 32.
An injunction may be obtained restraining transfer of a lease in breach of a
covenant not to assign without consent of the lessor, McEacham v. COIIOT!, [1902]
A.C. 104.
The rule that an original lessee is entitled to be indemnified by an assignee
against liability incurred for breach of a covenant in the lease during the assignee's
tenure, applies to land under this Act, Murphy v. Harris, [1924] St. R. Qd. 187;
[1924] Q.W.N. 40. See also Ahern v. L. A. Wilkinson (Northern) Ltd., [1929] Sl.
R. Qd. 66, cited under s. 66.
As to whether transfer of a mortgage to the mortgagor after he has transferred
the land mortgaged has the effect of extinguishing the personal covenant of the
mortgagor to pay principal and interest, see English, Scottish and A ustralian Bank
Ltd. v. Phillips (1936), 57 C.L.R. 302.
66. Transfer of mortgage or lease includes transfer of right to sue

thereunder. By virtue of every such transfer as is hereinbefore mentioned
the right to sue upon any bill of mortgage bill of encumbrance or other
instrument and to recover any debt sum of money annuity or damages
thereunder notwithstanding the same may be deemed or held to constitute
a chose in action and all interest in any such debt sum of money annuity
or damages shall be transferred so as to vest the same at law as in equity
in the transferee thereof
Saving powers to Courts of Equity to give effect to trusts. Provided
always that nothing herein contained shall prevent a Court of Equity
from giving effect to any trusts affecting the said debt sum of money
annuity or damages in case the transferee shall hold the same as a trustee
for any other person
As to enforcement of trusts, see also Real Property Act of 1877, s..' I, p. 752,
[!Ost.
A transfer in the statutory form of a mortgage under this Act does not vest in
the transferee the right to sue a guarantor on a covenant contained in the mortgage,
Consolidated Trust Co. Ltd. v. Naylor (1936), 55 C.L.R. 423.
Payments made by a mortgagor, who ha, had no notice of the transfer of the
mortgage, to the original mortgagee subsequently to the transfer are deemed pay-
ments to the transferee, Nioa v. Bell (1901), 27 V.L.R. 82.
The estate or interest of the transferor in the land with all the rights incidental
to present and future possession is transferred, but not mere choses in action in
respect of past and completed breaches of covenant, Measures v. McFadyen (1910).
11 C.L.R. 723. Thus a right under covenant in the lease to recover from the lessor
on termination of the lease the value of improvements made by the transferor does
not pass to the transferee. Cheyne v. Moses, [1919] St. R. Qd. 74; [1919] Q.W.N. 13.
A lessee remains liable to the lessor in respect of breaches of express covenants
in the lease committed after assignment, Ahern v. L. A. Wilkinson (Northern) Ltd.,
[192 Q ] St. R. Qd. 66. See also Murphy v. Harris, [1924J St. R. Qd. 187; [1924]
Q.W.N. 40, cited under s. 65.
67. General covenants to be implied in instruments. In every instrument

creating or transferring any estate interest or charge for valuable considera-
tion under the provisions of this Act there shall be implied the following
covenants by the person creating or transferring such estate interest or
charge that is to say
That he will at the cost of the person requiring the same do all such
acts and execute all such instruments as in accordance with the provisions
of this Act may be necessary to give effect to all covenants conditions
and purposes expressly set forth or by this Act declared to be implied
in any such instrument
An implied covenant may be negatived or modified, s. 76.
This section applies only to registered instruments, West v. Read (1913), 13
S.R.(N.S.w.) 575.
This section does not exclude the common law implication of a covenant that
he who lets agrees to give possession, Renshaw v. Moore (1917), 34 W.N.(N.S.W.)
95.
There is no covenant for further assurance of land to which the transferor has
no title and cannot therefore more effectively assure to the transferee. See Merry v.
Australian Mutual Provident Society (1872), 3 S.C.R. 40.
Words inaccurately describing land transferred were held not to amount to
covenants that the transferor was registered proprietor and that certain land was
included in the certificate of title, ibid.
68. Transferee of land subject to mortgage or encnmbrance to indemnify

transferor. In every instrument transferring an estate or interest in land
under the provisions of this Act subject to a bill of mortgage or bill of
encumbrance there shall be implied the following covenant by the
transferee of such estate or interest that is to say
That he will pay the interest or annuity secured by such bill of
mortgage or bill of encumbrance after the rate and at the times therein
mentioned and will indemnify and keep harmless the transferor from and
against the principal Sllm secured by such bill of mortgage or bill of
encumbrance and from and against all liability in respect of any of the
covenants therein contained or by this Act declared to be implied on the
part of the transferor
An implied covenant may be negatived or modified, s. 76.
The covenant implied is with the transferor, Federal Building Society v. Whalley,
2 Dec., 1891, cited in Willcocks v. Prentice, RC.R., 27 July, 1893.
A transferor is entitled to a declaration of his right to be indemnified against
interest and an order for payment of the same, although he has made no payment
to the mortgagor, but the transferee is entitled to have any money paid by him to the
transferor applied to payment of interest, Stanley v. Wiseman (1894), 6 Q.LJ. 84.
As to the right of the transferor to prove against the bankrupt estate of the
transferee in respect of the liability under this section, see Re Alfred Shaw & Co.
Ltd. (1897), 8 Q.LJ. 70; Bankruptcy Act 1924-1960, s. 81 (Commonwealth).
Where an agreement extending the due date of the mor,tgage was made between
the transferee of land subject to such mortgage and the mortgagee, it was held that
the mortgagor was not discharged from liability on his covenants in the mortgage,
Dennis v. Martin, [1932] V.L.R. 361.
As to whether the mortgagee can sue or enforce covenants against the transferee,
fee Australian Deposit and Mortgage Bank v. Lord (1876), 2 V.L.R. (L.) 31;
Re Burton; Ex parte Union Bank of Australia Ltd. (1901), 27 V.L.R. 437; Butters v.
Blackler (1887), 21 S.A.L.R. 37.
See also McDonald v. Gardiner, [1933] V.L.R. 129; Rowe v. Willcocks, [1923]
N.Z.L.R. 574; Official Assignee of Parsons v. Jarvis, [1923] N.Z.L.R. 1009; wvelock
v. Boyle Bros., [1931] N.Z.L.R. 808; Grove v. Public Trustee, [1931] N.Z.L.R. 1071.
69. Covenants to be implied in every bill of mortgage. In every bill of

mortgage there shall be implied the following covenants against the
mortgagor that is to say
( 1) That he will pay the principal money and interest ,thereby
secured after the rate and at the times therein mentioned
without any deduction whatsoever
(2) That he will repair and keep in repair all buildings or other
improvements erected and made upon such land and that the
mortgagee may at all convenient times until such mortgage
be redeemed be at liberty with or without surveyors or other
persons to enter into and upon such land to view and inspect
the state of repair of such buildings or improvements
As to liability of a husband on covenants where he has consented to a mortgage
by his wife, see Real Property Act of 1877, s. 29, p. 744, post.
An implied covenant may be negatived or modified. s. 76.
70. Covenants to be implied in every lease against the lessee. In every

lease there shall be implied the following covenants against the lessee
that is to say
( 1) That he will pay the rent thereby reserved at the times therein
mentioned and all rates and taxes which may be payable in
respect of the demised property during the continuance of the
lease
(2) That he will keep and yield up the demised property in good
and tenantable repair
Implied covenants may be negatived or modified, s. 76.
As to the covenant to keep in repair where buildings are destroyed, see Real
Property Act of 1877, s. 31, p. 745, post. As to the application of an express
covenant to repair buildings to rebuilding upon destruction, see O'Connor v.
Fitzgerald, [1927] St. R. Qd. 226; [1927] Q.W.N. 44.
As to application of this section to unregistered leases for less than three
years, see Hill v. Cox (1882), I Q.L.l. 78.
As to validity of stipulations as to payment of land tax, see Land Tax Acts,
1915 to 1966, s. 44, title LAND TAX, Vol. 9, p. 563.
Generally on the covenant to repair in relation to hotel premises, cf. Graham
v. Markets Hotel Ply. Ltd. (1943), 43 S.R.(N.S.W.) 272 (H.C.A.).
On the effect of emergency regulations restricting repair, cf. Maud v. Sandar3.
[1943] 2 All E.R. 783. See also Eyre v. Johnson (1946), 62 T.L.R. 400; [1946J
I All E.R. 719.
71. Powers to be implied in lessor. In every lease there shall also be

implied the following powers in the lessor that is to say
( 1) That he may by himself or his agents at all reasonable times
enter upon the demised property and view the state of repair
thereof and may serve upon the lessee or leave at his last or
usual place of abode in this Colony or upon the demised
property a notice in writing of any defect requiring him
within a reasonable time to be therein prescribed to repair
the same
(2) That in case the rent or any part thereof shall be in arrear
for the space of six calendar months or in case default shall
be made in the fulfilment of any covenant whether expressed
or implied in such lease on the part of the lessee and shall be
continued for the space of six calendar months or in case the
repairs required by such notice as aforesaid shall not have

been completed within the time therein specified it shall be
lawful for such lessor to re-enter upon and take possession
of such demised premises
The right of re-entry under subsection (2) arises on the breach of a negative
as well as a positive covenant, Naumberg v. Albertson's Executors (1888), 3 Q.L.J.
125.
A covenant not to sublet is not a covenant as to which default could be
continued for six months, Saunders v. Wadham (1870), 4 S.A.L.R. 73.
As to the inclusion of this implied power of re-entry in an unregistered lease,
see Harley v. Te Reneti Ie Whauwhau (1913), 33 N.Z.L.R. 256. See also Re
Duggan (1882), N.ZLR. 2 S.C. 144.
As to relief against forfeiture for non-payment of rent and for breach of
covenants to insure, see Distress Replevin and Ejectment Act of 1867, ss. 118
et seq., title LANDLORD AND TENANT, Vol. 9, p. 614, and Equity Acts,
1867 to 1960, 5S. 63 et seq., title SUPREME COURT.
72. Registrar-General to note particulars of re-entry in register book.

In any such case the Registrar-General upon proof to his satisfaction
of re-entry and recovery of possession by the lessor by any proceeding
in law shall note the same by entry in the register book and the estate
of the lessee in such land shall thereupon determine but without releasing
him from his liability in respect of the breach of any covenant in such
lease expressed or implied and the Registrar-General shall cancel such
lease if delivered up to him for that purpose.
This section applies only to cases where re-entry is made under the powers
contained in s. 71, Baker's Creek Consolidated Gold Milling Co. v. Hack (1894), 15
L.R.(N.S.W.) (Eq.) 207.
As to the proper course where a lease contains an option to purchase, see
Hawke v. McGrath (1900), 10 Q.L.1. 83. See also s. 53.
As to the case where the lease is subject to a subsisting mortgage, see Pantlin
v. Evalls, [19111 W.N. (Eng.) 80.
Relief may be granted against forfeiture for non-payment of rent notwith-
standing an entry made in the register under this section, Brooker's Colours Ltd.
v. Sprollies (1910), 10 S.R.(N.S.W.) 839.
Notation in the register book of the re-entry is not requisite in order to make
lawful the possession of a lessor who has re-entered, Cairns v. Burgess (1910), 6
Tas. L.R. 85. But see Suttie v. Te Winitana Tupolahi (1914), 33 N.Z.L.R. 1216.
73. Abbreviated form of words for expressing covenants to be as effectual

as if such covenants were set forth in words at length. Such of the
covenants hereinafter set forth as shall be declared in any lease or
mortgage to be implied against the lessee or mortgagor shall if expressed
in the form of words hereinafter appointed and prescribed for the case
of each such covenant be implied against such lessee or mortgagor as
fully and effectually as if such covenants were set forth fully and in words
at length in such lease or mortgage that is to say
Insure. The words "that he will insure" shall imply as follows that
he will insure and so long as the term expressed in the said mortgage or
lease shall not have expired will keep insured in some public insurance
office to be approved by such mortgagee or lessor against loss or damage
by fire to the full amount specified in such lease or bill of mortgage
or if no amount be specified then to their full value all buildings tenements
or premises erected on such land which shall be of a nature or kind capable
of being insured against loss or damage by fire and that he will at the
request of the mortgagee or lessor hand over to and deposit with him the
policy of every such insurance and produce to him the receipt or receipts
for the annual or other premiums payable on account thereof
Provided always that all moneys to be received under or by virtue
of any such insurance shall in the event of loss or damage by fire be laid
out and expended in making good such loss or damage
Provided also that if default shall be made in the observance or
performance of the covenant last above-mentioned it shall be lawful for
the mortgagee or lessor without prejudice to and concurrently with the
powers granted him by his bill of mortgage or lease in manner in and by
this Act provided to insure such building and the costs and charges of
such insurance shall until such mortgage be redeemed or such lease shall
have expired be a charge upon the said land
Paint outside. The words "and paint outside every alternate year"
shall imply as follows viz. and also will in every alternate year during the
currency of such lease paint all the outside woodwork and ironwork
belonging to the hereditaments and premises mentioned in such lease with
two coats of proper oil-colors in a workmanlike manner
Paint and paper inside. The words "and paint and paper inside every
third year" shall imply as follows viz. and will in every third year during
the currency of such lease paint the inside wood iron and other works now
or usually painted with two coats of proper oil-colors in a workmanlike
manner and also re-paper with paper of a quality as at present such parts
of the said premises as are now papered and also wash stop whiten vr
color such parts of the said premises as are now whitened or colored
respectively
Fence. The words "and will fence" shall imply as follows viz. and
also will during the continuance of the said lease erect put up and maintain
on the boundaries of the land therein mentioned or upon such boundaries
upon which no substantial fence now exists a good and substantial fence
Cultivate. The words "and cultivate" shall imply as follows viz.
and will at all times during the said lease cultivate use and manage all
such parts of the land therein mentioned as are or shall be broken up
or converted into tillage in a proper and husbandmanlike manner and
will not impoverish or waste the same
Not use as a shop. The words "that the lessee will not use the said
premises as a shop" shall imply as follows viz. and also that the said lessee
will not convert use or occupy the said hereditaments and premises
mentioned in such lease or any part thereof into or as a shop warehouse
or other place for carrying on any trade or business whatsoever or permit
or suffer the said hereditaments and premises or any part thereof to be used
for any such purpose or otherwise than as a private dwelling-house without
the consent in writing of the said lessor
Offensive trades. The words "and will not carryon offensive trades"
shall imply as follows and also that no noxious noisome or offensive art
trade business occupation or calling shall at any time during the said term
be used exercised carried on permitted or suffered in or upon the said
hereditaments and premises above-mentioned and that no act matter or
thing whatsoever shall at any time during the said term be done in or upon
the said hereditaments and premises or any part thereof which shall or may
be or grow to the annoyance nuisance grievance damage or disturbance of
the occupiers or owners of the adjoining lands and hereditaments
Assign or sub-let. The words "and will not without leave assign or
sublet" shall imply as follows viz. and also that the said lessee shall not
nor will during the term of such lease assign transfer demise sub-let or set
over or otherwise by any act or deed procure the lands or premises therein
mentioned or any of them or any part thereof to be assigned transferred
demised sublet or set over unto any person whomsoever without the consent
in writing of the said lessor first had and obtained
Cut timber. The words "and will not cut timber" shall imply as
follows and also that the said lessee shall not nor will cut down fell injure
or destroy any growing or living timber or timber-like trees standing and
being upon the said hereditaments and premises above mentioned without
the consent in writing of the said lessor
Business of publicau in orderly manner. The words "and will carry
on the business of a publican and conduct the same in an orderly manner"
shall imply as follows viz. and also that the said lessee will at all times
during the currency of such lease use exercise and carryon in and upon
the premises therein mentioned the trade or business of a licensed
victualler or pUblican and retailer of spirits wines ale beer and porter and
keep open and use the messuage tenement or inn and building standing
and being upon the said land as and for an inn or public-house for the
reception accommodation entertainment of travellers guests and other
persons resorting thereto or frequenting the same and manage and conduct
such trade or business in a quiet and orderly manner and will not do
commit or permit or suffer to be done or committed any act matter or
thing whatsoever whereby or by means whereof any license shall or may be
forfeited or become void or liable to be taken away suppressed or
suspended in any manner howsoever.
Apply for renewal of license. The words "and will apply for renewal
of license" shall imply as follows viz. and also shall and will from time to
time during the continuance of the said term at the proper times for that
purpose apply for and endeavour to obtain at his own expense all such
licenses as are or may be necessary for carrying on the said trade or
business of a licensed victualler or publican in and upon the said heredita-
ments and premises and for keeping the said messuage tenement or inn
open as and for an inn or public-house as aforesaid
Facilitate the transfer of license. The words "and will facilitate the
transfer of license" shall imply as follows viz. and also shall and will at
the expiration or other sooner determination of the said lease sign and give
such notice or notices and allow such notice or notices of a renewal or
transfer of any license as may be required by law to be affixed to the said
messuage tenement or inn to be thereto affixed and remain so affixed during
such time or times as shall be necessary or expedient in that behalf and
generally to do and perform all such further acts matters and things as shall
be necessary to enable the said lessor or any other person authorised by
him to obtain the renewal of any license or any new license or the transfer
of any license then existing and in force
The covenant to insure is not limited to buildings erected on the land at the
time of the lease. See Reid v. Smith (1905), 3 C.L.R. 656, at p. 662.
An equitable assignment of a lease does not constitute a breach of a covenant
not to assign, Naumberg v. Albertson's Executors (1888), 3 Q.L.J. 125. The
words "set over" are not equivalent to "part with possession", but are words of
assignment, Lapin v. Cohen (1923), 23 S.R.(N.S.W.) 507.
As to whether a COlenant implied by virtue of this section is an express

covenant for purposes of the rule that recognition by a landlord of an assignee
of the lease as his tenant will discharge the lessee from implied, but not express
covenants. see A hem v. L. A. Wilkinson (Northern) Ltd., [1929] St. R. Qd. 66.
74. Such covenants may be set forth in declaration in actions for breach.
Where any memorandum of transfer or other instrument in accordance
with the provisions of this Act is executed by more parties than one such
implied covenants shall be construed to be several and not to bind the
parties jointly and in any declaration in an action for a supposed breach of
any such covenants the covenant alleged to be broken may be set forth and
it shall be lawful to allege that the party against whom such action is
brought did so covenant precisely in the same manner as if such covenant
had been expressed in words in such memorandum of sale or other
instrument any law or practice to the contrary notwithstanding
75. Covenants declared to be implied to have the same force as if the same
had been expressed. Every covenant which shall be implied by virtue of
this Act shall have the same force and effect and be enforced in the same
manner as if it had been set out at length in the instrument wherein the
same shall be implied
76. Covenants declared to be implied may be negatived or modified. Every

covenant and power to be implied in any instrument by virtue of this Act
may be negatived or modified by express declaration contained in the
instrument or endorsed thereon
On the limited application of this section see Hall v. Hall, [1956] Q.W.N.
28.
77. Lands may be vested in trustees by instrument of nomination.

Schedule I. Whenever any registered proprietor of land under the
provisions of this Act or of any estate or interest in such land is desirous
of vesting the same in trustees it shall be lawful for him by an instrument in
form I of the Schedule hereto to nominate any persons (including himself)
to be trustees of the said land estate or interest and every such instrument
shall be attested by a witness and shall contain an accurate statement of
the estate or interest intended to be vested in such trustees and shall refer to
the description given in the grant or certificate of title of the land in which
such estate or interest is held or shall give such other description as may
be necessary to identify such land
As to attestation, see ss. 115, 116.
An instrument by registered proprietors purporting to nominate themselves
only as trustees is not within the section. Re White and Shaw (1894), 6 Q.L.J.
55. But the Registrar is not entitled to enquire whether the persons are identical,
ibid. As to an instrument in which an additional person also is nominated as trustee,
see s. 82.
An equitable mortgage may be created by deposit of a nomination of trustees,
Burrell v. Hope (1871), 2 S.C.R. 155. And see Real Property Act of 1877, s. 30,
p. 745, post.
See Re Bennett; Union Trustee Co. of Australia Ltd. v. Bennett, [1951] S1. R.
Qd.202.
78. Trusts may be declared either by schedule to Utstrument of nomination

or by separate deed or instrument. The trusts which are intended to be
declared of any land estate or interest vested in trustees as hereinbefore
mentioned may be declared by a separate instrument or deed
Whenever the said trusts are declared by a separate instrument or
deed the same may include as well land under the provisions of this Act
as land which is not under the provisions of this Act
Instrument declaring trusts to be deposited but not registered.
Provided that in every such instrument or deed the description of the
several parcels of land therein contained shall sufficiently distinguish the
land which is under the provisions of this Act from the land which is not
under the provisions of this Act and a duplicate or attested copy of such
instrument shall be deposited with the Registrar-General for the purpose of
safe custody and reference but such duplicate or attested copy shall not be
registered
As to enforcement of trusts and equities in respect of land under this Act,
see Real Property Act of 1877, s. 51, p. 752, post.
Section 3 was held not to be applicable in construction of the trusts declared
in a schedule to an instrument nominating trustees, Walters v. Eldridge (1891), 4
Q.L.I. 118.
79. No entry of trusts to be made in register book. Whenever any land or

any estate or interest in land under the provisions of this Act shall be settled
or shall become vested in trustees upon any trust whether expressed implied
or constructive the Registrar-General shall not make any entry of the said
trusts in the register book
Trustees to receive certificate of title and deal with same as if beneficial
owners. and the trustees after the entry in the register book of the
nomination of trustees in manner hereinbefore provided shall notwith-
standing any trust affecting the said land estate or interest be entitled to sell
transfer mortgage or otherwise deal with the same in the like manner as if
the said trustees had been the beneficial owners thereof and if the fee-simple
of any such land shall be so settled or vested in trustees they shall be
entitled to receive a certificate of title for the same at their desire
Receipt of trustees a discharge to purchasers or mortgagees. and the
receipt of such trustees or (except in the case where "no survivorship" is
stipulated as hereinafter provided) the receipt of the surviving trustees or
trustee or of the legal personal representative of the last surviving trustee
shall be a sufficient discharge to any purchaser or mortgagee of such land
estate or interest whether such purchaser or mortgagee shall or shall not
have had notice of such trusts and such purchaser or mortgagee shall not be
bound to see to the appropriation of any purchase money or mortgage
money by him paid
As to enforcement of trusts and equities in respect of land under this Act.
see also Real Property Act of 1877, s. 51, p. 752, post.
As to the nature of equities which should not be entered on the register bOOK,
see Wolfson v. Registrar-General (1934), 51 C.L.R. 300.
80. The words "no survivorship" in any instrument of appointment sbaU

operate to prevent a less number of trustees than are named in such
instrument dealing with the land. Whenever the registered proprietor of
any land under the provisions of this Act or of any estate or interest in
such land shall insert the words "no survivorship" in any instrument
intended by such registered proprietor to operate as a nomination of
trustees it shall not be lawful for any less number of trustees than the
number named in such instrument to sell transfer mortgage or otherwise
deal with the said land estate or interest without obtaining the sanction
of the Supreme Court or of a Judge thereof by order which may be
granted in a summary way on motion or petition by or on behalf of any
person beneficially interested in such land estate or interest
In such case Supreme Court to give direction for appointment to
any vacancy or for securiug moneys. and it shall be lawful for the said
Court or Judge by any order so obtained to give such direction for the
investment or application of the purchase money or mortgage money as
the said Court or Judge may think fit or by the like order to direct the
appointment of any new trustee or trustees in the place of any former
trustee or trustees and the Registrar-General shall enter a memorial of
every such order in the register book and upon the receipt of any
memorandum of transfer or other instrument executed in accordance with
such order he shall register such instrument in manner hereinbefore
directed
Continuing trustees may nominate co-trustees in case of vacancy.
Schedule I. Appointment of new trustees to be noted in register-book.
Provided that nothing herein contained shall prevent any less number of
trustees than the number which may be named in any instrument operating
as a nomination of trustees from filling up any vacancy which may arise
by nominating any other person to be co-trustee with the acting or
continuing trustees and such new trustee may be nominated by any
instrument in form I of the Schedule hereto and upon the registration of
such instrument or upon entry in the register book of the memorial of
any order appointing new trustees as aforesaid any such new trustee shall
have the like estate interest power and authority as if he had been
originally nominated a trustee by the registered proprietor of such land
estate or interest
As to nomination of new trustees, see also Trustees and Executors Acts. 1897 to
1964, ss. 10, 11, title TRUSTEES AND EXECUTORS.
A transmission of the interest of a deceased joint tenant of land under a title
on which "No survivorship" has been entered may be registered without infringing
the provisions of this section, Re Main, [1931] N.Z.L.R. 670.
81. The words "no survivorship" to be written on certificate of title if on

instrument of nomination. Whenever the words "no survivorship" shall
be written upon any instrument intended to operate as a nomination of
trustees the Registrar-General shall during the existence of such trust
cause the words "no survivorship" to be written on every certificate of
title of land issued to such trustees and also on the duplicate of every
such certificate bound up in the register book
82. Proprietor may vest estate jointly in himself and others without
limiting any use or executing any assignment. It shall be lawful for the
registered proprietor of any land or of any estate or interest in land whether
such land estate or interest shall be of the nature of real or personal
690 .IlliAL PROPERTY Vol. 14
property by any of the forms of instruments of transfer provided by this

Act and containing such alterations (if any) as may be deemed necessary
to transfer such land estate or interest or any part thereof .to his wife or
if such registered proprietor be a married woman it shall be lawful for
her to make such transfer to her husband or it shall be lawful for such
registered proprietor to make such transfer to himself jointly with any
other person or persons and it shall not be necessary for the purpose of
such transfer in any such case to limit any use or execute any re-assignment
but upon the registration of such transfer the said land estate or interest
shall vest in such registered proprietor jointly with any other person or
persons or otherwise according to the intent and meaning appearing in
such instrument and thereby expressed
A registered proprietor cannot lease to himself and another, in Commissioner
of Stamp Duties V. Thomson (1927), 40 C.L.R. 394, at p. 409.
Registered proprietors cannot nominate themselves as trustees under s. 77,
Re White and Shaw (1894), 6 Q.L.l. 55.
This section does not confer on transfers to married women any other legal
effect than that of the appropriate oonveyance of land under common law title,
Burke v. Fox, B.C.R., 19 Sept. 1883.
83. Direction decree or order of Supreme Court to be registered. When-

ever any person interested in land under the provisions of this Act shall
appear to the Supreme Court to be a trustee within the intent and meaning
of the Trustee Acts 1852 and 1853 and any order shall be thereupon
made by the Supreme Court or a Judge thereof and whenever any land
under the provisions of this Act or any estate or interest therein shall be
sold under any direction decree or order of the Supreme Court the
Registrar-General on being served with an office copy of such direction
decree or order shall enter in the register book and also on the instrument
evidencing title to the said land estate or interest in case the same shall
be produced to him the date of such direction decree or order and the
day and hour of the production of the same respectively and unless and
until such entry shall have been made no such order shall have any effect
or operation in transferring or otherwise vesting the said land nor shall
any sale or transfer under any such direction decree or order be valid or
effectual
But after such entry shall have been made the person named in any
order of the Court as the person in whom the land estate or interest
therein referred to is to vest shall be deemed to be the registered proprietor
thereof or as the case may be the person thereto authorised by any such
direction decree or order shall do all such acts and execute all such
instruments as under the provisions of this Act may be necessary to
transfer the said land estate or interest
The relevant provisions of the Trustee Acts 1852 and 1853 have been replaced
by the Trustees and Executors Acts, 1897 to 1964, ss. 26 et seq., title TRUSTEES
AND EXECUTORS.
Vesting orders are required to be registered under the Real Property Act of
1877, s. 46, p. 750, post.
Upon appointment of the Public Curator as trustee, see Public Curator Acts,
1915 to 1957, s. 53 (3), title TRUSTEES AND EXECUTORS.
See Re King, [1949] Q.W.N. 21.
Where the personal estate of a deceased testator was insufficient to pay the
debts of the estate and the whole estate had been devised and bequeathed to
beneficiaries equally, a vesting order was made under this section, vesting the la~d. in
the executors as trustees for an estate in fee simple in possession and authonzmg
them to sell the land at the best price obtainable, Re Kwong, [1954] Q.W.N. 18.
84. Action may be brought by person claiming beneficiary interest in

name of trustee. Whenever any person entitled to or interested in land
as a trustee would be entitled under the last preceding clause to bring or
defend any action of ejectment in his own name for recovering the
possession of land under the provisions of this Act every such person shall
be bound to allow his name to be used as a plaintiff or defendant in such
action of ejectment by any beneficiary or person claiming an estate or
interest in the said land.
Trustee to be indemnified. Provided nevertheless that every such
person shall be entitled to be indemnified in like manner as a trustee
would before the passing of this Act have been entitled to be indemnified
in a similar case of his name being used in any such action or proceeding
by his cestui que trust
For capacity of executors, administrators and trustees to sue and be sued
without joining beneficiaries, see ibid., Order 3, rule 9, title SUPREME COURT.
85. (Repealed.)
Repealed by Act of 1877, 41 Vic. No. 18, s. 4.
86. Transmission by insolvency. Certified copy of appointment of official

assignee and elected assignee to be deposited with Registrar-General.
Whenever such transmission shall take place by virtue of the insolvency
of a registered proprietor an office copy or other duly certified copy of
the appointment of the official assignee of the insolvent estate or of the
appointment of such official assignee and of an elected assignee as the
case may be or such other sufficient evidence of such appointment or
appointments as he may require shall be left with the Registrar-General
and he shall thereupon enter a memorandum of the particulars of such
appointment in the register book
Upon entry of such appointment official assignee and elected assignee
empowered to deal with lands. and upon such entry being made it shall
be lawful for such official assignee or official or elected assignees to
transfer to any purchaser or other person the land estate or interest so
transmitted as aforesaid and every memorandum of transfer or other
instrument for that purpose executed by such official assignee or such
official and elected assignees in accordance with the provisions of this
Act shall have the same validity and effect as a like instrument would
have had if executed by the registered proprietor before his insolvency
Insolvency of trustees not to affect beneficiaries. Provided always
that nothing herein contained shall alter or vary the position of the official
assignee or official and elected assignees of an insolvent trustee of any
land as between such official assignee or official and elected assignees and
any person who may be beneficially interested in any land of which such
insolvent trustee is the registered proprietor but the rights of such persons
(if any) as between them and such official assignee or official and elected
assignees in respect of such land shall remain entirely unaffected
notwithstanding the insolvency of the registered proprietor of the said
land and the said insolvent shall transfer the said land to the persons
beneficially interested therein and shall do and execute all acts
which may be necessary for nominating a new trustee or new trustees of

the said land and carrying into effect any trusts affecting the said land at
the date of his insolvency
The Bankruptcy Act 1924-1965, s. 60 (1) (Commonwealth) vests the real and
personal property of the bankrupt in the official receiver on sequestration. By s. 103
(1) of that Act the property of the bankrupt vests in a trustee in bankruptcy upon
his appointment. Section 103 (4) however provides that where a State Act
requires the transmission of property to be registered, and makes provision for
registration of the official receiver or trustee as the owner of property vested in
him by the Act, the vesting of the property shall be subject to compliance with
the requirements of the State Act. Section 86 of this Act appears to make provision
for registration of the trustee as owner. See Re Williams; Ex parte Perpetu{/l
Trustees, Executors and Agency Co. Ltd. (1931), 26 Tas. L.R. 82. Semble,
it also requires the transmission of the property to be registered, ibid., at p. 83.
The effect of s. 103 (4) of the Bankruptcy Act, 1924-1965, is to prevent the
vesting of the legal estate until transmission under this section, but it does not
prevent the beneficial interest from passing to the trustee under the other
provisions of that Act, ibid.
The entry of the memorandum is necessary before the official assignee can
effectively deal with the land or take proceedmgs in ejectment, Kelly v. Doody
( 1871), 5 S.A.L.R. 132.
Where a sequestration order is subsequently annulled, see Real Property Act
of 1877, s. 34, p. 748, post.
87. Marriage of female proprietor to be certified to Registrar-General by

declaration. Particulars to be entered in registe,r book. Instruments to be
registered giving effect to dealings in land by married women. Upon the
marriage of a female registered proprietor the Registrar-General on
production of the register of such marriage or other sufficient evidence of
the celebration thereof accompanied by a declaration to be made of the
identity of the woman named in the register book with the person named in
such register of marriage shall enter on the register book a memorandum of
the day and hour of the production to him of the register or other evidence
of such marriage and of the particulars certified to him by such declaration
and shall when required by such female proprietor or other person claiming
through her register any instrument purporting to transfer or otherwise
affect her land estate or interest in accordance with the provisions of this
Act
As to property of married women generally, see Married Women's Property
Acts, 1890 to 1952, title MARRIAGE AND DIVORCE, Vol. II, p. 399.
A husband has the same interest in his wife's lands under this Act not being
her separate estate as in lands under common law title, Re McLeod (1867), 1
S.C.R. 173; Grimish v, Scott (1890), 4 Q.L.I. 57.
88. Transmission will and probate or letters of administration to be

produced. Particulars to be registe,red. ( 1) Whenever any mortgage
encumbrance or lease shall be transmitted in consequence of the death of
the registered proprietor thereof probate of the will of the deceased
proprietor or letters of administration in case he shall have died intestate
shall be produced and left with the Registrar-General for the purpose of
being recorded in the register book and the Registrar-General shall enter
in the register book the date of the will and of the probate or as the case
may be the date of the grant of the letters of administration and the day and
hour of the production to him of such probate or letters of administration

and the names of the executors to whom probate has been granted or
administrators and whenever the same can be ascertained the date of the
death of such proprietor together with such other particulars as he shall
deem necessary and upon such entry being made such executors or
administrators shall be deemed to be registered proprietors of such
mortgage encumbrance or lease
(2) (a) In the case of the death, whether before, on, or after the
passing of 'The Real Property Acts Amendment Act of 1952," of a
registered mortgagee registered encumbrancee or registered lessee of any
estate or interest in land under this Act, who has died leaving a will, the
Registrar of Titles may on application made to him in that behalf and, if
satisfied that the value of the personal estate of the deceased mortgagee
encumbrancee or lessee as the case may be does not exceed one thousand
dollars, and on such will being produced and left with him for the purpose
of being recorded in the register book, cause transmission of such interest
in the land concerned to be entered up in the register book in favour of
such one or more as the Master of Titles may determine of the person or
persons who would have been entitled upon the grant of probate or letters
of administration with the will to be entered up as executor or executors or
administrator or administrators with the will, as the case shall require.
Thereupon such person or persons shall have all the rights, powers
and liablities in respect of the said interest as if probate of the will or letters
of administration with the will of the deceased mortgagee encumbrancee or
lessee as the case may be had been granted to him or them.
(b) Notwithstanding that anything contained in this subsection, in
any case where the Court, in the exercise of its powers, authorities and
jurisdiction shall grant probate of, or letters of administration with, the
will of any such deceased mortgagee encumbrancee or lessee as aforesaid
subsequent to the entry up in the register book pursuant to the provisions of
paragraph (a) of this subsection of transmission of his estate or interest
in any registered mortgage, encumbrance or lease as the case may be, all
acts, matters and things done by, and all payments bona fide made by or
to the person or persons in whose favour such transmission has been
entered up, up to the date of such grant, which if made by or to a person
to whom a grant of probate of, or letters of administration with, the will
had been made would have been lawfully done and made, shall be and be
deemed to have been so done and made lawfully:
Provided that, on the granting of such probate or letters of
administration with the will, the person or persons in whose favour such
transmission has been entered up shall take all necessary steps and perform
all necessary acts to hand over to and account to the person so granted
probate or letters of administration for any property in his or their hands
at the date of such grant, and to render an account of all property passing
through his or their hands from the entry up of transmission to the date of
such grant.
As amended by Act of 1952, 1 Eliz. 2 No. 43, s. 20; Act of 1963, No. 25, s. 7.
Decimal currency reference substituted pursuant to section 7 of Decimal
Act referred to:
As to mortgages and encumbranceil to secure money due to mortgagees and

encumbrancees on a joint account, see Real Property Act of 1877, s. 21, p. 742, post.
Where a person entitled to be registered as proprietor has died before
registration, see ibid., s. 49.
With respect to the powers of an executor or administrator when registered,
see the proviso to s. 89 of this Act.
89. Heir-at-Iaw or devisee may apply to Judge of Supreme Court to order

the Registrar-General to issue certificate of title to him. It shall be lawful
for the heir-at-Iaw or devisee or other person interested in the land of a
deceased proprietor or for the Curator of Intestate Estates in any case in
which by virtue of any law in force in the said Colony he may be authorised
to take the charge or management of the real or personal estate of a
deceased person at any time by motion or petition in a summary way to
apply to the Supreme Court or a Judge thereof to make an order for the
Registrar-General to register such heir-at-Iaw curator devisee or other
person as the proprietor of such land or to register the Curator of
Intestate Estates as the proprietor of any mortgage encumbrance or lease
in place of such deceased proprietor
and the Supreme Court or a Judge thereof shall make such order
therein as may seem proper and may thereby direct any caveat to be
entered for the protection of the interests of such other persons if any as
may be interested in such land estate or interest and may direct advertise-
ments to be made and notices served in such manner as to such Court may
seem fit and may also direct the costs of such application to be borne and
paid out of the estate of the said deceased proprietor or by such other
person or in such other manner as the Court may think just and such order
shall be left with the Registrar-General who shall enter the particulars
thereof in the register book and shall forthwith give effect to the said order
by complying with the directions therein contained and upon such entry
being made the person named in the said order shall be deemed to be the
registered proprietor of such land estate or interest
Provided always that the person registered consequent upon such
order or any executor or administrator when registered in respect of any
mortgage encumbrance or lease shall hold such land estate or interest in
trust for the persons and purposes to which it is applicable by law but for
the purposes of any dealings with such land estate or interest under the
provisions of this Act he shall be deemed to be absolute proprietor thereof.
See now Real Property Act of 1877, ss. 32-33, 49, pp. 746, 752. post, under which
transmission may be effected without application to the court. See also Intestacy
Act of 1877, s. 25, title SUCCESSION.
As to "heir-at-law", see now Intestacy Act of 1877, s. 27, title SUCCESSION.
See also cases cited under s. 3, ante.
The office of Curator of Intestate Estates has been replaced by that of the Public
Curator. See Public Curator Acts, 1915 to 1957, s. 7 (I), tide TRUSTEES AND
EXECUTORS. As to transmission to the Public Curator, see also ibid., ss. 27, 113,
and Intestacy Act of 1877, s. 25, title SUCCESSION.
Property of an intestate vests in the Public Curator pending grant of probate or
letters of administration, Public Curator Acts, 1915 to 1957, s. 30, but upon grant of
letters of administration it vests in the administrator as from death of the intestate,
Intestacy Act of 1877, ss. 12, 14.
For the contribution to be made to Consolidated Revenue on transmission, see
s. 41. and note thereto.
The legal estate in land may be conveyed by will without registration, Holt v.
Deputy Federal Commissioner of Land Tax (1914), 17 c.L.R. 720.
As to desirability of the Registrar of Titles being heard on an application under
this section and as to his costs, see III the Will of Birckbeck (1873), 3 S.C.R. 175.
REAL PROPERTY ACTS, 1861 TO 1963 s§.88-91 695
An order for registration of the person entitled on intestacy was made on the
application of a judgment creditor seeking to sell his interest in execution, Baud v.
Cooktown Municipal Corpn. (1885), 2 Q.L.I. 93.
For form of order, see Re Pearce, [1947] Q.W.N. 30 (moiety interest under
partnership agreement; assignment of deceased pal1tner's interest), Re Francis,
[1949] Q.W.N. 45 (order that the land vest in infant devisee; noted also under
s. 27 of the Settled Land Act of 1886, title SETTLED LAND), Re Mitchell, [1951]
Q.W.N. 38 (order that Public Curator register as proprietor the daughter of the
testatrix, Who, although registered proprietor, had died without having distributed
the real estate but left a will-<iuly proved-appointing the daughter her sale
execturix and sole beneficiary, no other person being interested). See also Re Muller,
[1950] Q.W.N. 33, where on the construction of a will whereby the testator gave,
devised and bequeathed the whole of his real and personal estate to a trustee upon
trust for one of his sons (the applicant) "until he shall attain the age of twenty-one
years," and the son in question had since the execution of the will attained that age,
Mack, I., following In the Will of Vickers ([1912] V.L.R. 385) and Re Patterson
([1948] V.L.R. 427), held that he took an absolute interest in the whole estate and
made an order under this section directing the Registrar of Titles to regi~ter him as
proprietor of the land. See also Re Henriksen, [1951] Q.W.N. 40 (joint tenants; order
presuming death of one of the tenants and direoting the Registrar of Titles to register
the petitioner as sole proprietor by survivorship). Compare Re Drane, [1946]
Q.W.N.3.
90. Powers of Supreme Court under statute of the 6th Queeu Aune
applicable to registration under tbis Act. For the purpose of registration
of an estate or interest in land under the provisions of this Act or on any
application for the issuing by the Registrar-General of a certificate of title
under the provisions of this Act it shall be lawful for the Supreme Court
or a Judge thereof in its equitable jurisdiction upon motion or petition to
exercise all such powers as are conferred or as may be applicable for any
of the purposes hereinbefore mentioned under a Statute passed in the sixth
year of the reign of Her Majesty Queen Anne and intituled "An Act for
"the More Effectual Discovery of the Death of Persons Pretended to be
"Alive to the Prejudice of those who Claim Estates after their Deaths"
Act referred to:
Cestui Que Vie Act, 1707, p. 621, ante.
91. No writ of execution binding until a memorial shall have been entered
in the register book and also upon the instrument evidencing title. No
writ of execution issued in pursuance of any judgment notwithstanding
any purchaser mortgagee or creditor may have had actual or constructive
notice thereof shall bind or affect or be effectual against any land under the
provisions of this Act or any estate or interest therein as to purchasers
mortgagees or creditors unless and until a memorial of the said writ shall
have been entered in the register book and also upon the instrument
evidencing title to the estate or interest intended to be charged or taken
in execution in case such instrument shall be produced to the Registrar-
General.
and upon proof to his satisfaction that any such writ of execution has
been discharged or satisfied the Registrar-General may enter in the register
book and on the certificate of title or other instrument evidencing title to
the estate or interest charged or affected a memorandum to that effect and
upon such entry being made the writ of execution to which such entry
relates shall be deemed to be discharged or satisfied
Provided always that no writ of execution although duly entered in

the register book as aforesaid shall affect any land under the provisions
of this Act or any estate or interest therein as to purchasers mortgagees or
creditors unless such writ be executed and put in force within three
calendar months from the date of the entering such writ
From and after the passing of "The Real Property Acts Amendment
Act of 1952"-
(a) No judgment shall be capable of registration; and
(b) The registration of any judgment registered prior thereto shall
be deemed to be cancelled.
As amended by Acts Citation Act of 1903, s. 10; Act of 1952, 1 Eliz. 2 No. 43,
s. 21.
Act referred to:
Real Property Acts Amendment Act of 1952. p. 755, P,)·lt.
Similar provision with respect to warrants of execution on judgments of
Magistrates Courts is made by Magistrates Courts Rules, 1960, r. 240, title
MAGISTRATES COURTS, Vol. 11, p. 140.
As to sales under writ of fi, fa., see the Common Law Process Acts, 1867
to 1960, ss. 57 et seq., title SUPREME COURT.
This section provided no means by which the legal estate could be vested in a
purchaser under a sale made in execution, Bond v. McClay, [1903] St. R. Qd. 1, at
p. 9. The Sheriff or ,the registrar of a Magistrates Court may now execute a transfer
in the proper form. Sec Real Property Act of 1877, s. 35, p. 748, post; Magistrates
Courts Rules of 1960, r. 241, title MAGISTRATES COURTS, Vol. 11, p. 141.
Levy of execution and sale by the Sheriff is not of the less effect as against
the judgment debtor by reason of its having taken place before or without entry
of a memorial, Re Bank of Australasia (1865), 1 S.C.R. 126; United Hand-in-Halld,
etc., Co. v. National Bank of Australasia (1876), 2 V.LR. (Eq.) 201, at p. 219.
Writs of execution bind the land from the time they are lodged, McClone v.
Registrar of Titles (1886), 2 Q.L.J. 182. As to writs lodged with the Central or
Northern Sheriff, see Sheriff's Act of 1875, s. 8 (4), Supreme Court Act of 1895, s.
9, title SUPREME COURT.
A writ of execution on a judgment recovered against an administrator as such
if presented for registration, must be registered against land registered in his name
as administrator, R. v. Bourne; Ex parte Spresser (1897), 8 Q.L.l. 14. The interest
of a person entitled upon intestacy is not affected by a judgment and execution
against him as executor, Re Baxter (1863), 1 S.C.R. 97. A writ issued on a judgment
against a person in his individual capacity cannot be entered against land which he
holds in a representative capacity, Balding Y. Nicholas (1893),19 V.L.R. 110;
MafJey Y. Tadge 1/, [1925] V.L.R. 581.
No estate or interest will be bound which does not actually appear upon the
register book at the time of service of the writ, Watson Y. Royal Permallent
Building Society (1888), 14 V.L.R. 283; Richards Y. Cadman (1891), 17 V.L.R.
203. As to whether the Registrar can enter on the register a writ against land of
which the judgment debtor is not registered proprietor, see Sander Y. Twigg (1887).
13 V.L.R. 765; Watson Y. Royal Permanent Building Society, supra.
The memorial of a judgment was held not to be a caveat and so not removable
by proceedings under s. 99, in Peclley Y. Crawford (1871). 2 S.C.R. 149.
Writs of execution take priority as between execution creditors according to the
order of registration, not that of delivery to the sheriff, Peace Y. SherifJ of Queensland
(1890), 4 Q.L.1. 33. Where therefore the Sheriff sells under two writs, he should
first satisfy the claim of the creditor whose writ was first registered, ibid. But see
contra, Beath Y. Anderson (1883), 9 V.L.R. 41.
'The policy of the legislature in framing this section was obviously to prevent
titles from being affected by the operation beyond a limited time of unexecuted
writs of execution as charges on the land, and to reconcile the rights of a judgmen,t
creditor with those of a purchaser for value, whether with or without notice. Both
REAL PROPERTY ACTS, 1861 TO 1963 55.91-93 697
objects are effected by compelling the creditor to proceed with}? a H!Dited tim~, to
enforce an execution by actual sale of the land affected thereby , RegIstrar of TI.les
v. Paterson (1876), 2 App. Cas. 110.
The execution creditor does not by virtue of registration of the writ obtain any
right of property in, or any proprietary charge on, the land, Bond v. McCla.y,
[1903] St. R. Qd. 1; Corfield v. Groundwater (1868), 1 S.C.R. 1~4, and the Shenff
cannot convey any greater interest ,than the Judgment debtor hImself could. have
conveyed, Bond v. McClay, supra. Accordingly interests in the land created pnor ~o
registration of the writ will prevail over the rights of a purchaser from the Shenff
who has not procured himself to be registered, Corfield v. Groundwater, supra; Re
Retallack (1911), 11 S.R.(N.S.W.) 332; Coleman v. De Lissa (1885), 6
L.R.(N.S.W.) (Eq.) 104; Re Broughton (1916), 17 S.R.(N.S.W.) 29; Re Elliott
(1886),7 L.R.(N.S.W.) (L.) 271; Rowe v. Equity Trustees, etc., Co. Ltd. (1895),21
V.L.R. 762, even though not protected by caveat, Corfield v. Groundwater, supra;
Re Broughton, supra. Where, however, the purchaser from the Sheriff has obtained
registration of his transfer his title will prevail and he is entitled to the benefit of
s. 44, Real Property Act of 1877, s. 35, p. 748, post; Re Bosquet's Caveat (1883),
17 S.A.L.R. 173; Robertson v. Keith (1870), 1 V.R. (Eq.) 11; National Balik of
Australasia v. Morrow (1887), 13 V.L.R. 2.
A judgment creditor who has obtained registration of his writ is entitled to
sell within three months thereafter notwithstanding any dealing by the judgment
debtor in the meantime, Re Anderson, Mitchell & Co. Pty. Ltd. (1928), 23 Tas.
L.R. 35; Colonial Bank at Australasia v. Riddel (1893), 19 V.L.R. 280; Re Shears
(1891), 17 V.L.R. 316, at p. 320. The transfer from the Sheriff may be registered
after the lapse of three months from entry of the writ, but if it is not produced for
registration within three months it will be postponed to a transfer from the registered
proprietor lodged before it, Re Real Property Acts (1891),4 Q.L.J. 70; Re Deane's
Transfer (l8n), 9 Q.L.J. 106; Registrar of Titles v. Paterson (1876), 2 App. Cas.
110. A judgment creditor who has obtained registration of his writ under this section
is a secured creditor within the Bankruptcy Act 1924-1965 (Commonwealth), Re
Price; Ex parte Tinning (1931), 26 Tas. L.R. 158.
92. Partition of coparcenership or joint tenancy or tenancy in common.

Whenever it is intended that partition shall be made by coparceners joint
tenants or tenants in common of any land under the provisions of this Act
or of any estate or interest therein such coparceners joint tenants or tenants
in common may execute a memorandum of transfer lease or other such
instrument of transfer as in accordance with the provisions of this Act the
nature of the estate or interest may require
As to registration as joint tenants or tenants in common, see s. 40.
With r<!spect to partition generally. see the title PARTITION. Vol. 13, p. 399.
93. Agent holding power of attorney to sell or dispose of the fee may
apply to bring land nnder Act and receive certificate of title in the name of
his principal. Where any attorney or agent acting under a power-<lf-
attorney from a person who would himself be entitled to make application
to bring land under the provisions of this Act and to receive a certificate
of title for the same shall by such power be authorised to sell or absolutely
to dispose of such land it shall be lawful for such attorney or agent to make
a declaration that his principal is so entitled as aforesaid and to apply on
behalf of his principal to bring such land under the provisions of this Act
and to receive a certificate of title for the same in the name of his principal
and every instrument dealing with such land in accordance with the
provisions of this Act and signed by such attorney or agent on behalf of his
principal shall be valid and effectual for the purposes intended by such
instrument and such land shall be considered to have been properly brought
under this Act notwithstanding the absence of any express authority from
the principal to sign such instruments or make such declaration or
application
Provided that nothing herein contained shall interfere with any express
direction prohibiting an attorney or agent from bringing any land under the
operation of this Act
A register of powers of attorney is kept under the Real Property Act of 1877,
s. 13, p. 740, post.
Applications to bring land under this Act are dealt with by ss. 17 et seq.
As to construction of powers of attorney, see Re Baxter (1863), 1 S.C.R. 99.
94. Upon surrender of existing grants or certificates of title the proprietor

may obtain a single certificate for all the land included therein. Upon the
application of any registered proprietor of land held under separate grants
or certificates of title or of land held under one grant or certificate and
upon his delivering up such grant or grants certificate or certificates of title
it shall be lawful for the Registrar-General to issue to him a single
certificate of title for the whole of such land or several certificates each
containing portion of such land as the case may require and as far as the
same may be done consistently with any regulations at the time being in
force respecting the parcels of land that may be included in one certificate
of title regard being had to the descriptions of such parcels of land and the
plans thereof by this Act required to be delineated on such certificate of
title and upon issuing any such certificate of title the Registrar-General shall
cancel the grant or previous certificate of title so delivered up and shall
endorse thereupon a memorandum setting forth the occasion of such
cancellation and referring to the certificate of title so issued in which the
land described in such cancelled grant or certificate of title is included
Procuring the issue of a separate certificate of title for part of a parcel con-
stitutes a subdivision for purposes of the Local Government Acts, 1936 to 1967, ibid.,
s.3 (1), and must as such be first approved by the Local Authority, ibid., s. 34 (1).
(12), title LOCAL AUTHORITIES, Vol. 10, pp. 452, 456.
A certificate of title is in the form following form C in the Schedule to this Act.
As to issue of new certificates of title on transfer of land, see 55. 49, 50. and
Real Property Act of 1877. s. 17, p. 741, post.
95. Registrar-General may dispense with production of duplicates of

certificates of title and other instruments in certain cases. It shall be lawful
for the Registrar-General in case he shall see reasonable cause for so doing
to dispense with the production of any grant certificate of title lease or
other instrument for the purpose of making the endorsement thereon which
by this Act is required to be made upon the transfer or other dealing with
land under the provisions of this Act and the Registrar-General may in
such case if he shall think proper require proof to be made by affidavit
or otherwise of the identity of the person transferring or otherwise dealing
with the said land with the person who is registered as proprietor thereof
and that the grant, certificate of title, lease or other instrument is not
deposited with any person as security for any purpose whatsoever or for
safe custody
and upon the registration of such transfer or other dealing the
Registrar-General shall notify in the memorial that no endorsement of such
transfer or other dealing has been made on the grant certificate of title lease
or other instrument and such transfer or other dealing shall thereupon be
as valid and effectual as if the endorsement had been made upon the grant
certificate of title lease or other instrument
Provided always that the Registrar-General before making such

endorsement as aforesaid shall give at least fourteen days' notice of his
intention so to do in the Government Gazette and in at least one newspaper
published in the Colony
As to recording of a memorial on the duplicate instrument, see s. 45.
As to lost grant or certificate of title, see s. 117.
96. Registered proprietor bringing suit for specific performance to be

entitled to decree. In any suit for specific performance brought by the
registered proprietor of any land against a person who may have contracted
to purchase such land the certificate of title of such registered proprietor
shall be held in every court of law or equity to be conclusive evidence that
such registered proprietor has a good and valid title to the land therein
mentioned or described and shall entitle such registered proprietor to a
decree for the specific performance of such contract
See also ss. 33, 44, 109, 123, 126.
An executory agreement for the sale of land under the Act not in any form
provided by the Act, and, therefore, not capable of registration, can, as between
the immediate parties, be enforced by a decree for specific performance, Cuthbert-
son v. Swann (1876), 11 S.A.L.R. 102. Compare Lange v. Ruwoldt (1872), 7
S.A.L.F. 1. See also Real Property Act of 1877, s. 51, p. 752, post. and notes
thereto.
The right of a purchaser to specific performance may be protected by caveat,
Re Scanlan's Application (1887), 3 Q.L.J. 43.
97_ Vendor to have DO equitable lien by reason of balance of purchase

money unpaid. No vendor of any land under the provisions of this Act
shall have any equitable lien thereon by reason of the non-payment of the
purchase-money or any part of the purchase-money for the same
98. Caveat may be lodged. Schedule K. Any person claiming an estate or

interest in any land may by a caveat in the form K of the Schedule hereto
or as near thereto as circumstances will permit forbid the registration of
any instrument affecting such land estate or interest (save and except such
an instrument the registration of which is stated in the caveat to be thereby
not forbidden) either absolutely or until after notice of intention to register
such instrument shall have been served as hereinafter described
The Registrar of Titles has certain power to enter caveats under s. 11 (5).
Caveats against bringing land under this Act may be lodged under s. 23.
The only effect of a caveat is to prevent any dealing with land pending the
discovery of what the claims of the parties are, Oil Tool Sales Pty. Ltd.; Classified
Pre-Mixed Concrete Pty. Ltd., Caveator, [1966] Q.W.N. 11.
See Ex parte Durmill Pty. Ltd.; Re A Caveat by McCosker, [1961] Q.W.N.
19, noted to s. 99.
Where a caveat has lapsed or been removed under order of the court a
second caveat must not be lodged on the same grounds, Real Property Act of
1877, s. 40, p. 749, post.
An equitable mortgagee may lodge a caveat under ,this section, Ex parte Hill
and Dodgson, [1903] St. R. Qd. 101. And see Real Property Act of 1877, s. 30,
p. 745, post.
As to protection by caveat of the right of the Commissioner of Irrigation
and Water Supply to supply water, see Irrigation Acts, 1922 to 1965, Schedule
Part I, r. 22, and Water Acts, 1926 to 1967, Schedule Part I, r. 21, title WATER
SUPPLY AND SEWERAGE.
The following interests in land have been held sufficient to support a caveat:
the exclusive right to mine for minerals, Re Gamboola Cabonne Phosphates Ltd.
(1919), 19 S.R.(N.S.W.) 227; an easement Re Paul (1902), 19 W.N.(N.S.W.) 114;
the right of a lessor under a covenant by the lessee not to assign, Re Martin,
[1900] S.A.L.R. 69; the right to cut standing timber and to enter to remove it,
Connolly v. Noone & Cairns Timber Ltd., [1912] St. R. Qd. 70; a contractual
right to have a mortgage executed, Re Dixon (1922), 39 W.N.(N.S.W.) 89; the
interest of an heir-at-law, Ex parte Cooper (1898), 15 W.N.(N.S.W.) 290. A
caveat may be entered by a person claiming land erroneously included in the
certificate of title where the caveator had no notice of the granting of such
certificate, Ex parte Salling (1893), 14 L.R.(N.S.W.) (L.) 399; ss. 44. 123.
The following have been held not to be sufficient interests to support a
caveat: the right under a personal covenant restricting the user of land but not
running with any other parcel of land, Woodberry v. Gilbert (1907), 3 Tas. L.R.
7; any rights of a mortgagor whose land has been sold under an unregistered
equitable mortgage. Keogh v. Registrar-General (1918), 24 C.L.R. 413; the
interest of a shareholder in the land of a company which is in liquidation and
has paid all its debts, Ex parte Canowie Pastoral Co. Ltd., [1931], S.A.S.R. 502.
As to what is "an interest in any land", see also Re Bielfeld (1894). 12
N.Z.L.R. 596; Staples & Co. Ltd. v. Corby (1900). 19 N.Z.L.R. 517; Ex parte
Graves (1905), 7 N.Z.G.L.R. 318; Wellington City Corporation v. Public Trustee,
[1921] N.Z.L.R. 1086.
A claimant by title antecedent to the issue of the original certificate, who
had notice of the application, cannot caveat, but may move the Registrar to
proceed under s. 130; see s. 21; Ex parte Doust (1881), 14 S.C.R.(N.S.W.)
531; Re Hayton (1884), 1 W.N.(N.S.W.) 17. But if he had no notice. he may
caveat, Ex parte Salling (1893), 14 L.R.(N.S.W.) (L.) 399.
The right of a person to caveat does not exclude his right to proceed for an
injunction to restrain a dealing in land inconsistent with his interest, Walsh v.
Alexander (1913), 16 C.L.R. 293. See also penultimate note to s. 23.
See hereon, Ex parte Little, [1958] S.R.(N.S.W.) 173 and Re Fairlie (1959),76
W.N.(N.S.W.) 475.
99. Notice of caveat to parties. Person lodging caveat may be summoned

to show cause. Upon receipt of any caveat the Registrar-General shall
notify the same to the person against whose right to deal with land under
the provisions of this Act or against whose application to bring land under
the provisions of this Act such caveat may be lodged and such person
may if he think fit summon the person signing such caveat to attend before
the Supreme Court of the Colony or any Judge thereof to show cause why
such caveat should not be removed and it shall be lawful for the said Court
or any such Judge upon proof that such last-mentioned person has been
summoned to make such order in the premises either ex parte or otherwise
as to the said Court or Judge shall seem fit
A caveat should contain the address of the person to whom it is to be notified.
Real Property Act of 1877, s. 36, p. 749, post.
For manner of giving the notification, see ibid., 5. 37.
As to who may procure removal of a caveat, see also ibid., s. 38.
As to caveats against bringing land under this Act, see also ss. 24, 25.
This section extends to caveats entered by the Registrar of Titles under s. 11
(5), Ex parte Davenport (1872),3 S.C.R. 95.
The entry of a memorial of a judgment, s. 91, was held not to be a caveat
and so not removable under this section, Pechey v. Crawford (1871), 2 S.C.R. 149.
Proceedings may be taken under this section both where the caveat was
originally wrongly placed on the register and also where it was originally rightly
placed on the register but its retention thereon has become improper, Re Little
(1929), 29 S.R.(N.S.w.) 401.
As to whether an order can be made for removal of a caveat which has lapsed
under s. 25, or the Real Property Act of 1877, s. 39, p. 749, post, see Re McIntosh
(1890), 11 L.R.(N.S.W.) (L.) 283, reversed on another ground, [1894] A.C. 129.
"Deal with" refers only to land already under the Act, Re Walker (1890), 11
L.R.(N.S.W.) 369.
REAL PROPERTY ACTS, 1861 TO 1963 ss. 9iJ, 99 70]
When a caveat is lodged against dealings with a freehold estate having severa,
registered proprietors, anyone of them may summ_on the caveator to show cause
why it should not be removed, Re Wilks (1933), 33 S.R.(N.S.W.) 276.
The right to object to a defective caveat is not waived by taking no steps to set
it aside, Palmer v. Wi[ey (1906), 23 W.N.(N.S.W.) 90.
It is the duty of the vendor, at the request of the purchaser, to take proceedings
to have a caveat removed, Taylor v. Land Mortgage Bank of Victoria Ltd. (1886),
12 V.L.R. 748.
As to the right of a mortgagee to withdrawal of a caveat lodged by a
subsequent mortgagee in order to have his mortgage registered, see Re Swain's
Caveat, [1902] St. R. Qd. 120; Re Victorian Farmers' Loan and Agency Co. Ltd.
(1897),22 V.L.R. 629.
As to when a caveat against an application to bring land under the Act will
be ordered to be withdrawn prior to the time for lapse under s. 25, see Ex parte
Hodgson (1873), 3 S.C.R. 158.
The consent of the registered proprietor to a caveat does not prevent the court
from making an order for its withdrawal in a proper case, Re Hill and Dodgson,
[1903] St. R. Qd. 101.
The onus of showing a case for removal of the caveat is upon the party taking
out the summons, Ex parte Hodgson (1873), 3 S.C.R. 158. But where he shows
that the caveator has no title which is fairly arguable the caveat will be removed,
ibid. See also Ex parte Muston (1903), 3 S.R.(N.S.W.) 663; Re Talbot (1892),
13 A.L.T. 270. The court will not determine a doubtful question of title on an
application under this section, Ex parte Hodgson (1873), 3 S.C.R. 142; Ex parte
Davenport (1872), 3 S.C.R. 95. In such a case removal of the caveat will be
ordered after a period which will allow of proceeding:; being taken by the caveator
to establish his title, ibid.; Re Hill and Dodgson, [1903] SI. R. Qd. 101; Commercial
Bank of Sydney v. Henry (1871), 2 S.C.R. 160. Where the time allowed is
insufficient, it may be extended by the court, Ex parTe Davenport (1873), 3 S.C.R.
117. Where further caveats were lodged on the same grounds before the time
expired, the court ordered their withdrawal, ibid.; Ex parte Davenport (1873), 3
S.C.R. 121. And see now Real Property Act of 1877, s. 40, p. 749, post.
The court is entitled to make an order putting the applicant or proprietor upon
terms as a condition of removal of the caveat, Ex parte Lyons (1864), 1 W.W. &
a'B. (L.) 119; or putting the caveator upon terms as a oondition of its being
continued, Rismondo v. Rismondo (1886), 12 V.L.R. 1. A caveat was ordered to
be withdrawn on security being given to protect any rights the caveator might have.
such security to become void if the caveator took no proceedings, Ex parte Hodgson
(1873), 3 S.C.R. 142. As to the power of the court to order or permit the amend-
ment of a caveat, see Re Victorian Farmers' Loan and Agency Co. Ltd. (1897), 22
V.L.R. 629.
As to costs, see Ex parte Hodgson (1873). 3 S.C.R. 142, at p. 154: Ex parte
Hodgson (1873),3 S.C.R. 158.
A person failing to withdraw a caveat no longer required may be ordered to
pay costs of an application to remove it, Re Beauchamp (1867), 1 S.C.R. 161.
For an example of an unsuccessful summons for the removal of a caveat, see
Re Gough, [1950] Q.W.N. 9.
It was never intended that a claim should be fully litigated on an application
to remove a caveal. It is not appropriate to consider the evidence, and the matters
of law raised, and make findings similar to those which may have to be made
subsequently in a substantive action. Nor is it appropriate that there should be a
summary determination as to whether there is an actionable right in respect of
specific performance or nol. The matters in issue should be tried otherwise than on
application. See Oil Tool Sales Pry. Ltd.; Classified Pre-Mixed Concrete Pty. Ltd.,
Caveator, [1966] Q.W.N. 11.
A caveat which forbids dealing with the whole of the land when the claim
is to an easement affecting only a small portion of that land is too large and will
be removed, Re Powell's Caveat, [1966] Q.W.N. 9.
A caveat was held to be defective because the quantum of the estate was not
specified nOr were the grounds under which the respondents claimed an estate or
interest set forth. See Re Powell's Caveat, supra. See also Re Fairlie (1959),76 W.N.
(N.S.W.) 474.
There is no power under the Real Property Acts, 1867 to 1963, whereby a caveat
can be amended by leave of the court, Re Powell's Caveat, supra..
A registered proprietor of an area of land who has sold two parcels thereof
and has been paid for one, and executed a transfer in respect thereof, and has not
been paid for the other, but has issued a specially endorsed writ claiming the
purchase price as a liquidated sum, does not have aII¥ estate or interest in the land
(for which he has been paid) which can be made the subject of a caveat, Ex parte
Durmil Pty. Ltd.; Re A Caveat by McCosker, [1961] Q.W.N. 19.
100. Caveats to contain the names and description of parties and a

sufficient description to identify the land. Caveator to leave an address at
which notice may be served. Every caveat left under the provisions of this
Act with the Registrar-General shall state the name and address of the
person by whom or on whose behalf such caveat shall be lodged and shall
contain a sufficient description to identify the land which is intended to be
affected and the estate or interest (if any) claimed therein
and every such caveat shall be signed by the person by whom or on
whose behalf the same is lodged or by his solicitor known agent or attorney
and all notices relating to such caveat or any proceedings in respect thereof
shall be served either at the place of address mentioned in such caveat or
at the office of the solicitor known agent or attorney who shall have signed
such caveat and such service shall be deemed sufficient service of the notice
as against all persons who may claim under the said caveat
A notice under this section may be sent through the post in a pre-paid
registered letter addressed to the person to be served therewith and such
sending shall be sufficient service thereof.
A caveat should state the address of any person to whom it is notifiable, under
s. 99. see Real Property Act of 1877, s. 36, p. 749, post.
"Alexander Raff, Official Assignee" was held to be a sufficient statement of
caveator's address, Re McLeod (1867), 1 S.C.R. 173.
A caveat lodged as to the whole land when the interest claimed extends only
to part will be removed, Re Paul (1902), 19 W.N.(N.S.W.) 114.
A caveat must state the quantum of interest claimed, Palmer v. Wiley (1906),
23 W.N.(N.S.W.) 90. See also Re Jones (1935), 35 S.R.(N.S.W.) 560. See also
Re Powell's Caveat, [1966] Q.W.N. 9; Re Fairlie (1959), 76 W.N.(N.S.W.) 474,
both noted to s. 99.
A claim of an "estate in, at the request and with the consent of, the registered
proprietors" is not a sufficient statement of the estate or interest claimed, Ex pane
Hill, [1903] St. R. Qd. 101.
101. No entry to be made in register book affecting lands in respect to

which caveat continues in force. So long as any caveat shall remain in
force prohibiting the transfer or other dealing with land the Registrar-
General shall not enter in the register book any memorandum of transfer
or other instrument purporting to transfer or otherwise deal with or affect
the land estate or interest in respect to which such caveat may be lodged
save and except such memorandum of transfer or other instrument the
registration of which the caveat expressly states is thereby not forbidden
Provided that, notwithstanding that a caveat expressly states that the
registration of any memorandum of transfer or other instrument is thereby
not forbidden, nevertheless the Registrar of Titles may in his discretion
refuse to register that memorandum of transfer or other instrument so
long as the caveat shall remain in force.
As to lapse of a caveat after three months, see Real Property Act of 1877, 8. 39.
p. 749, post.
A caveat preserves the priority of an interest in respect of which it is lodged

by preventing, during its operation, registration of any dealing with the land
inconsistent with such interest. See Re Wi/dash and Hutchison (1871), 5 S.C.R.
46; 1 Q.L.R. Pt. II, 47; Re Scanlan's Application (1887), 3 Q.L.J. 43. But as soon
as a caveat has lapsed, it becomes the duty of the Registrar to register any dealing
which has been temporarily delayed, Ex parte Clark (1891), 17 V.L.R. 82. A caveat
against dealings is merely a warning or notification of a claim which protects that
claim, but confers no greater rights than already exist, Re Hill, [1903] St. R. Qd. 101,
at p. 106; Lynch v. O'Keefe, [1930] St. R. Qd. 74.
The owner of a prior equity will be postponed to the owner of a later equity
where his failure to lodge a caveat has placed a registered owner in a position to
deal with the legal estate as if it were unaffected by any equity, Abigail v. Lapin,
[1934] A.C. 491; [1934] All E.R. Rep. 720; 51 C.L.R. 58; Butler v. Fairclough
(1917), 23 C.L.R. 78. See also Connolly v. Noone, [1912] St. R. Qd. 70; [1912]
Q.W.N. 19; Lynch v. O'Keefe, supra; notes to s. 43.
As to the effect of registration wrongly made in disregard of a caveat, see
Butler v. Fairclough, supra.
A caveat does not constitute notice to a mortgagee making further advances
under a registered mortgage, Queensland Trustees Ltd. v. Registrar of Titles (1893),
5 Q.L.J. 46. As to how far a caveat operates as notice to persons taking an interest
in the land, see also Butler v. Fairclough (1917), 23 C.L.R. 78, at p. 91; Re Wi/dash
and Hutchison (1871), 5 S.C.R. 46; 1 Q.L.R., Pt. II, 47.
No priority is conferred as between caveators by priority of registration of one
caveat over the other, Lynch v. O'Keefe, [1930] S1. R. Qd. 74.
102. Registrar-General may cancel caveat upon proof that the interests of
parties have been satisfied or tbat the interest of the caveator is inadequate
to warrant the caveat. Any caveat which may be lodged under ·the
provisions hereinbefore contained may be cancelled by the Registrar-
General upon its being proved to his satisfaction and that of the Master of
Titles that the es·tate interest or claim of the person by whom or on whose
behalf the same is lodged has ceased been abandoned or withdrawn or
that the rights of the persons on whose behalf such caveat may have been
lodged are satisfied or arranged or in case the Registrar-General and the
Master of Titles shall be satisfied that the nature of the estate interest or
claim of the person by whom or on whose behalf the caveat is lodged is
not such as to entitle him to prohibit the sale or mortgage or other dealing
with the land estate or interest referred to in such caveat
Provided always that at least seven days before cancelling any caveat
in such last-mentioned case the Registrar-General shall cause notice to be
served in the manner hereinbefore provided upon the person by whom
the caveat is lodged
As to lapse after three months, see Real Property Act of 1877, s. 39, p. 749,
post.
A caveat can only be withdrawn by the person lodging it, Re Beauchamp
(1867), 1 S.C.R. 161.
As between the caveator and the Registrar, and, semble, also as between the
caveator and a person proposing to enter into a transaction respecting the land, the
solicitor by whom a caveat was lodged prima facie has authority to withdraw it, at
all events, until it has been noted on the title, Barry v. Heider (1914), 19 C.L.R. 197.
See also Re Paul (1902), 19 W.N.(N.S.W.) 114, cited under s. 100.
103. Compensation for lodging caveat without reasonable cause. Any
person lodging a caveat with the Registrar-General without reasonable
cause shall be liable to pay such damages as may be recovered in an action
at law by any person aggrieved thereby
As to a further caveat on the same grounds, see Real Property Act of 1877,
s. 40, p. 749, post, and Ex parte Davenport (1873), 3 S.C.R. 121, cited under s. 99.
As to whether an injunction may be obtained to restrain the threatened lodgment
of a caveat, see Stocks and Holdings (Imperial Arcade) Ltd. v. Fink (1965), 82
W.N.(N.S.W.) (Pt. 1) 386.
104. Power-of-attomey. Schedule L. The proprietor of any land under

the provisions of this Act or any person registered as having estate or
interest therein may by a power of attorney in any form heretofore in use
for the like purpose or in form L of the Schedule hereto authorise and
appoint any person to act for him or on his behalf in respect to the leasing
of such land or the transfer or mortgage of his estate or interest therein or
otherwise lawfully to deal with such land estate or interest in accordance
with the provisions of this Act
and upon any such power being brought to the Registrar-General
he shall enter a memorial of the same in the register book and from and
after the date of such entry in the register book all acts lawfully done
or performed by the person so appointed under authority of and within
the limits prescribed in such power shall have the same force and effect
and be equally binding on such proprietor as if the said acts had been
done or performed by him
and every such power bearing endorsement that the memorial of the
same has been so entered signed by the Registrar-General shall be
received in evidence as sufficient proof that the person to whom such
power has been granted is duly authorised to make all contracts to sign
all instruments and to perform all other lawful acts in accordance with
the powers therein limited and appointed
Provided always that an original or an attested copy of every such
power of attorney shall be deposited with the Registrar-General
A register of powers of attorney is kept, an entry in which has taken the place
of the memorial on the register book directed by this section, Real Proper,ty Act of
I K77. s. 13. p. 740, post.
As to revocation of powers of attorney, see ss. 107, 108, and Mercantile Acts.
1867 to 1896. s. 2. title MERCANTILE LAW. VoL 12, p. li9.
A power of attorney to lend "on mortgage charge or lien of real estate" was
held sufficient to authorise a loan on second mortgage, McCutcheon v. Registrar of
Titles. [1927] V.L.R. 93. Where a power of attorney was in the widest possible
general terms, but did not specifically refer to land, it was held ,that the Registrar of
Titles was entitled to refuse to act under it. Clazy v. Registrar of Titles (1902),
4 W.A.L.R. 113. For the rules relating to construction of powers of attorney, see
I Halsbury's Laws of England, 3rd ed., p. 161.
105. Registration abstract for registering dealings withont the limits of

the colony. Schedule M. The Registrar-General upon the application
of any registered proprietor of land under the provisions of this Act shall
grant to such proprietor a registration abstract in the form M of the
Schedule hereto enabling him to transfer mortgage or otherwise deal with
his estate or interest in such land at any place without the limits of the
Colony and shall at the same time enter in the register book a memoran-
dum recording the issue of such registration abstract and shall endorse
on the grant certificate of title or other instrument evidencing or constitut-
ing the title of such proprietor a like memorandum recording the issue of
such registration abstract
and from and after the issuing of any such registration abstract no
transfer mortgage lease or other transaction transferring encumbering or
in any way affecting the estate or interest in respect of which such
registration abstract is issued shall be entered in the register book until
such abstract shall have been surrendered to the Registrar-General to be
cancelled or the loss or destruction of such abstract proven to his
satisfaction
See also the definition of "registration abstract" in s. 3.
REAL PROPERTY ACTS, 1861 TO 1963 SS. 104-107 705
106. Mode of procedure under registration abstract. Whenever any

transfer mortgage lease or other dealing with land is intended to be
effected under any such registration abstract a memorandum of transfer
bill of mortgage lease or other instrument as the case may require shall
be prepared in duplicate in form hereinbefore prescribed and shall be
produced to some one of the persons hereinafter appointed as persons
before whom the execution of instruments without the limits of the Colony
may be proven
and upon memorial of such instrument being entered upon the
registration abstract and authenticated by the signature of such authorised
person in manner hereinbefore directed for the entry of memorials in the
register book such transfer mortgage lease or other dealing shall be as valid
and binding to all intents and purposes as if the same had been made
within the limits of the Colony and recorded in the register book by the
Registrar-General
and subject to the rules hereinafter for each such case prescribed
every person whose name shall have been recorded upon such registration
abstract as transferee mortgagee lessee or encumbrancee shall be held
and taken to be registered as such and shall have the same rights and
powers and be subject to the same liabilities as he would have had and
been subject to if his name had been registered in the register book instead
of on such abstract
For persons before whom execution of instruments may be proved. see s. 115
and Evidence (Attestation of Documents) Acts, 1937 to 1950, title EVIDENCE,
Vol. 5. p. 527.
107. General rules applicable to powers-of-attomey and registration

abstracts. The following rules shall be observed as to powers-of-attorney
and registration abstracts
( i) The power shall be exercised in conformity with the directions
contained therein
(ii) No transfer mortgage lease or encumbrance bona fide made
thereunder shall be impeached by reason of the person by
whom the power was given dying before the making of such
transfer mortgage lease or encumbrance
(iii) No transfer mortgage lease or encumbrance bona fide made
to a purchaser mortgagee lessee or encumbrancee without
notice shall be impeached by reason of the insolvency of the
person by whom the power was given
(iv) If a transfer be effected there shall be delivered up to the
Registrar-General the memorandum of transfer by which the
land or any estate or interest therein is contracted to be
transferred together with the registration abstract and the
grant certificate of title lease or other instrument of title and
he shall thereupon enter in the register book a memorandum
of the particulars of such transfer and of the cancelling of
such abstract and shall endorse on such memorandum of
transfer and also on the grant certificate of title lease or
other instrument of title a memorandum of the day and hour
on which such entry was made and if a full estate in fee
simple in such land or in any part thereof shall have been
transferred he shall cancel the grant or certificate of title so
delivered up and shall issue a certificate of title of such land
23
or of the portion thereof transferred and if part only be

transferred he shall also issue to the proprietor a certificate
of title of the remainder and shall before issuing them
endorse on each of such certificates of title a memorandum of
the particulars of all unsatisfied mortgages or encumbrances
appearing in the register book or on the registration abstract
as affecting the land included in each such certificate of title
(v) Every mortgage or encumbrance which is so endorsed on the
registration abstract shall have priority over all bills of
mortgage of the same estate executed subsequently to the
date of the entry in the register book of the issuing of such
abstract and if there be more mortgages than one so endorsed
the respective mortgagees claiming thereunder shall notwith-
standing any express implied or constructive notice be entitled
one before the other according to the date at which a record
of each instrument is endorsed on such abstract and not
according to the date of the bill of mortgage
(vi) The discharge and also the transfer of any mortgage so
endorsed on such abstract may be endorsed on such abstract
by any person hereinbefore authorised to record a mortgage
thereon upon the production of such evidence and the
execution of such instruments as are hereinbefore required
to be executed and produced to the Registrar-General on the
entry of the discharge or transfer of a mortgage in the
register book and such endorsement so made on such abstract
shall have the same effect and be as valid to all intents and
purposes as if such transfer or discharge had been entered in
the register book by the Registrar-General in manner herein-
before provided
(vii) Upon proof at any time to the satisfaction of the Registrar-
General that any power of attorney or registration abstract is
lost or is so obliterated as to be useless and that the powers
thereby given have never been exercised or if they have
been exercised then upon proof of the several matters and
things that have been done thereunder it shall be lawful
for the Registrar-General as circumstances may require
either to issue a new power-of-attorney or registration
abstract as the case may be or to direct such entries to be
made in the register book or such other matter or thing to
be done as might have been made or done if no such loss or
obliteration had taken place
(viii) Upon the delivery of any abstract to the Registrar-General
he shall cancel the same after recording in the register
book in such manner as to preserve its priority the particulars
of every lease and of every unsatisfied mortgage registered
thereon and shall enter the fact of such cancellation in the
register book and shall also by endorsement on the grant
or certificate of title lease or other instrument evidencing
the title to such land note the particulars of every such
unsatisfied mortgage and of every such lease and the
cancellation of such registration abstract and every registration
abstract so cancelled shall be void to all intents and purposes
and he shall file in his office the duplicates of every

memorandum of transfer bill of mortgage lease or other
instrument executed thereunder which may for that purpose
be delivered to him
As to powers of attorney, see also s. 104, and Real Property Act of 1877, s. 13,
p. 740, post.
With respect to revocation of powers of attorney, see also Mercantile Acts,
1867 to 1896, s. 2, title MERCANTILE LAW, Vol. 12, p. 119.
108. Revocation of power-of-attorney. Schedule N. The registered owner

for the time being of any land in respect of which a power-of-attorney
has been issued may for the purpose of revoking such power execute an
instrument in the form N of the Schedule hereto and the Registrar-
General shall except in any case where a registration abstract is out-
standing enter the particulars thereof in the register book and shall
record thereon the day and hour in which such entry was made and
from and after the date of such entry the Registrar-General shall not
give effect to any memorandum of transfer or other instrument executed
pursuant to such power-of-attorney and if the holder of such power
shall neglect or refuse to surrender the same to such owner or his
agent exhibiting such revocation order he shall be guilty of a misde-
meanor and on conviction thereof shall forfeit and pay a sum not
exceeding two hundred dollars unless it shall be made to appear to the
satisfaction of the Court before whom the case may be tried that the
powers given therein had been exercised prior to the presentation of
such revocation order
See also Mercantile Act of 1867, s. 2, title MERCANTILE LAW, Vol. 12,
p. 119.
109. Transferee not affected by notice. A transferee whether voluntary

or not of land under the provisions of this Act shall not except in case
of fraud be affected by actual or constructive notice of any claims rights
titles or interests other than those which have been notified or protected
by entry in the register book according to the provisions of this Act any
rule of law or equity to the contrary notwithstanding
Provided always that nothing herein contained shall be held to
deprive creditors of any rights or remedies given or provided by a
statute passed in the thirteenth year of Her Majesty Queen Elizabeth
Chapter 5
For other sections establishing indefeasibility of title, see S8. 33, 44, 123, 126.
For what constitutes fraud, see notes to s. 44.
The statute 13 Eliz. c. 5 has been replaced by ss. 46-48 of the Mercantile Act
of 1867, title MERCANTILE LAW, Vol. 12, p. 124.
This section does not apply in favour of mortgagees, Conroy v. Knox (1901),
11 Q.L.J. 112.
Only a transferee who has procured his transfer to be registered can take
advantage of this section, Templeton v. Leviathan Pty. Ltd. (1921), 30 C.L.R. 34.
see also Bakers Creek G.M. Co. v. Hack (1894), 15 L.R.(N.S.W.) (Eq.) 207.
The section does not apply to protect a purchaser from the sheriff of
unregistered interests, Re Elliott (1886), 7 L.R.(N.S.W.) 271. It does not
operatt; to. make a sheriff's sale convey more thaI?- the registered proprietor's
benefiCial mterest at the date of the entry of a wnt of Ii. fa. on the register,
Coleman v. De Lissa (1885), 6 L.R.(N.S.W.) (Eq.) 104; Cor/ield v. Groundwater
(1868), 1 S.C.R. 194.
For a case where a similar provision was held to be sufficient protection to

a purchaser against a restrictive covenant of which he had notice, so as to compel
him to accept the title shown by the vendor, see Toohey v. Gunther (1928), 41
C.L.R. 181.
Knowledge that litigation to assert unregistered rights is pending does not
affect the title of a person who becomes the registered proprietor, Waimiha
Sawmilling Co. v. Waione Timber Co., [1926] A.C. 101.
The Registrar may refuse to register an instrument where he knows facts
which show that it constitutes a breach of trust, Templeton v. Leviathan Pty. Ltd.
(1921),30 C.L.R. 34. See further, notes to s. 32.
As to the effect of ,this section generally, see Templeton v. Leviathan Pty. Ltd.,
supra.
110. Consent may be given by endorsement. If the consent or direction

of any person shall be requisite or necessary upon a sale or other
disposition of land under the provisions of this Act or any estate or
interest therein such consent or direction may be endorsed upon the
memorandum of transfer or other instrument executed for the purpose
of transferring or otherwise dealing with such land or estate or interest
therein in the words following that is to say "I consent hereto" which
consent or direction when signed by such consenting or directing party and
attested in manner hereinafter prescribed shall have full validity and effect
111. Provision for cases of infancy or other incapacity. If any person
interested in any land or in any estate or interest in land under the
provisions of this Act is by reason of infancy mental sickness or other
disability incapable of making any declaration or doing anything required
or permitted by this Act to be made or done by a proprietor then the
guardian or committee or administrator of the estate if any of such
incapable person or if there be none then any person appointed by any
Court or Judge possessing jurisdiction in respect of the property of
incapable persons upon the petition of any person on behalf of such
incapable person or upon the petition of any other person interested in
the making of such declaration or doing such thing may make such
declaration and do such thing in the name and on behalf of such
incapable person and all acts done by such substitute shall be as effectual
as if done by the person for whom he is substituted
See also s. lIlA as to infancy.
Incapacity of a registered proprietor must be noted on the certificate of
title, s. 33.
A mortgage executed by an infant is voidable even though registered, but
the register would be conclusive evidence of the validity of such a mortgage except
in an action for rectification by the expunging of the mortgage. Rectification would
be granted to an ex-infant mortgagor only subject to his doing equity, Coras v. Webb
and Hoare (1941) 35 Q.J.P.R. 137.
As to conveyance on behalf of an infant, see Re McGill (Infallt), [1944]
Q.W.N.31.
U1A. Persons of eighteen years of age may deal with land. Notwith-
standing any Act or rule or practice of law, any person of the age of
eighteen years but under the age of twenty-one years may acquire, transfer,
mortgage, or otherwise deal with any estate or interest in any lands under
the provisions of this Act to the same extent and as fully and effectually
in law as if he were of the age of twenty-one years, and every transfer,
REAL PROPERTY ACTS, 1861 TO 1963 SS. 109-113 709
mortgage or document evidencing any other dealing with an estate or

interest in any land under the provisions of this Act whereto such person
is a party shall be legally binding upon such person and enforceable
by and against him accordingly.
Inserted by Act of 1963, No. 25, s. 8.
112. Requisitions. ( 1) If, in the opinion of the Registrar of Titles any
instrument or document lodged in his office for registration or in
connection with any dealing with land under this Act is erroneous,
incomplete, or defective in any particular, or if the Registrar is not
satisfied that any such instrument or document is correct for registration,
or for the purpose for which it was lodged in his office, the Registrar
may by requisition in writing require the person who lodged the same
in his office or his solicitor, conveyancer, attorney, or other proper agent,
to re-execute, complete or correct the instrument or document or procure
the re-execution, completion or correctness thereof, as the case may be,
in such manner as may be specified in the requisition or, as respects
any instrument or document in respect whereof the Registrar is not
satisfied as aforesaid, to furnish to him the information specified in
the requisition.
(2) Such a requisition shall be served upon the person to whom
it is directed and shall be deemed to be sufficiently so served if it is
delivered to such person or any attorney he may have or if it is forwarded
to him or any attorney he may have by post.
(3) The Registrar may permit to be borrowed out of his office
any instrument or other document:
Provided that he shall not permit to be so borrowed out-
(a) Any instrument or document which has been registered; or
(b) Any instrument or document by any person except the
person by whom that instrument or document was lodged
or his solicitor, conveyancer, attorney, or other proper agent,
and the person so borrowing out an instrument or document shall on
demand made by the Registrar of Titles either orally or in writing, return
the same to the office of the said Registrar within the time specified
by the said Registrar.
Any person who fails, without reasonable excuse, to comply with
such a demand shall be gUilty of an offence and liable to a penalty not
exceeding two hundred dollars.
(4) The Registrar of Titles may refuse to deal with any instrument
or document the subject of such a requisition until the requirements
thereof have been complied with.
Substituted by Act of 1952, 1 Eliz. 2 No. 43, s. 28.
113. Withdrawal of instruments from registration. ( 1) The Registr.r
of Titles may, in his discretion, permit to be withdrawn from registrat' In
any instrument or document lodged in his office for that purpose.
Any instrument or document so withdrawn shall remain in the
office of the Registrar but shall, by virtue of the withdrawal thereof from
registration lose priority of registration unless and until produced again
for registration as hereinafter provided.
(2) The Registrar of Titles, upon application made in writing

in that behalf, may permit any instrument or document so withdrawn
to be again produced for registration on a day and at a time fixed by him.
A memorandum of such permission and of the day and time fixed
as aforesaid by the Registrar of Titles shall be endorsed upon the
instrument or document which shall be deemed to have been first
produced for registration on the day and at the time stated in that
endorsement.
Substituted by Aot of 1952, 1 Eliz. 2 No. 43, s. 29.
114. Seal of Corporation substituted for signature. A Corporation for

the purpose of transferring or otherwise dealing with land under the
provisions of this Act in lieu of signing the proper instrument for such
purpose prescribed may affix thereto the common seal of such Corporation
with a certificate that such seal was affixed by the proper officer verified
by his signature
A corporation must execute a transfer with its common seal, Merry v.
Australian Mutual Provident Society (1872), 3 S.C.R. 40.
115. Attestaticn of instruments. Execution of instruments before whom

to be proved. All instruments executed pursuant to the provisions of this
Act if attested by one witness shall be held to be duly attested and the
execution thereof may be proved if the persons executing the same be
resident-
(a) In this State-before the Registrar of Titles or before a
notary public, justice of the peace, a commissioner for taking
affidavits, barrister at law, solicitor or conveyancer; or
(b) In the United Kingdom of Great Britain and Northern
Ireland-before the mayor or other chief officer of any
Corporation or a notary public; or
(c) In any part of the British Commonwealth of Nations-before
the Governor, Government Resident, or Chief Secretary or
Chief Justice thereof, any Judge of any superior court having
jurisdiction therein, or a notary public or commissioner for
taking affidavits or a justice of the peace therefor; or
(d) In any country in respect whereof "The Evidence (Attestation
of Documents) Acts, 1937 to 1950," apply by virtue of a
Proclamation under those Acts continuing the application in
respect of that country of those Acts-before any person
holding an office under the Government of that country
declared under that Proclamation to be equivalent to the
office of a justice of the peace for this State; or
(e) At any foreign place-before a British Consular Officer or
an Australian Consular Officer within the meaning of "The
Australian Consular Officers' Notarial Powers and Evidence
Acts, 1946 to 1949" or any other person who is a consular
officer within the meaning of section 37A of "The Evidence
and Discovery Acts, 1867 to 1960," exercising his functions
in a foreign place; or
(f) At any place outside this State where it is proved to the

satisfaction of the Registrar of Titles that the execution
thereof cannot be proved before any of the aforesaid persons-
before a person holding under the law in force at that place
an office or qualification specified by the Registrar of Titles.
Substituted by Act of 1952, 1 Eliz. 2 No. 43, s. 30; As amended by Evidence
and Discovery Acts and Other Acts Amendment Act of 1960, s. 9.
Acts referred to:
Evidence (Attestation of Documents) Acts, 1937 to 1950, title EVIDENCE,
Vol. 5, p. 527.
Australian Consular Officers' Notarial Powers and Evidence Acts, 1946 to
1963, title EVIDENCE. Vol. 5, p. 45l.
Evidence and Discovery Acts, 1867 to 1967, title EVIDENCE, Vol. 5,
p.483.
Transfers, leases, mortgages, encumbrances, discharges and transfers of
mortgages and encumbrances, nominations of trustees must be attested by a
witness. See ss. 48, 52, 56, 63, 77, forms in the Schedule to this Act, and Real
Property Act of 1877, s. 24, p. 743, post.
See also Evidence (Attestation of Documents) Acts, 1937 to 1950, title
EVIDENCE, Vol. 5, p. 527.
For "consular officer," see s. 3.
The provision that execution may be proved before certain persons has been
held to be facultative merely, not mandatory, Barry v. Heider (1914), 19 C.L.R.
197.
A party who has admitted the execution of an instrument in his pleadings
and himself put it in evidence, cannot deny its execution, Barry v. Heider, supra.
116. Mode of proving instruments. The execution of any such instrument

or of any release transfer or surrender may be proved before any such
person as aforesaid by the oath or solemn affirmation of the parties
executing the same or of a witness attesting the signing thereof and if
such witness shall answer in the affirmative each of the questions
following that is to say
Are you the witness who attested the signing of this instrument
and is the name purporting to be your name as such attesting
witness your own handwriting
Do you personally know the person signing this
instrument and whose signature you attested
Is the name purporting to be his signature his own handwriting
or mark and did he freely and voluntarily sign or make the
same
Schedule p. then the Registrar-General Justice or other person before
whom the witness shall prove such signature shall endorse upon the
instrument a certificate in form P of the Schedule hereto
Schedule Q. Provided always that if any person signing any such
instrument transfer release or surrender as the maker thereof shall be
personally known to the Registrar-General Justice or other person as
aforesaid it shall be lawful for such person to attend and appear before
such Registrar-General Justice or other person to whom he is personally
known and then and there acknowledge that he did freely and volun-
tarily sign such instrument transfer release or surrender and upon such
acknowledgment the Registrar-General Justice or other person as the
case may be shall endorse on such instrument a certificate in the form
or to the effect of the form marked Q in the Schedule hereto and it shall
not be necessary for such instrument to be proved by the attesting
witness in manner aforesaid
Provided also that such questions as aforesaid may be varied as
circumstances shall or may require in case any person shall sign such
instrument by his mark
117. Provision in case of lost grant. In the event of the grant or

certificate of title of land under the provisions of this Act being lost
mislaid or destroyed the proprietor of such land together with any other
persons having knowledge of the circumstances may make a declaration
before the Registrar-General or before any of the persons hereinbefore
appointed as persons before whom the execution of instruments may be
proved stating the facts of the case the names and description of the
registered owners and the particulars of all mortgages encumbrances
or other matters affecting such land and the title thereto to the best of
the declarant's knowledge and belief
and it shall be lawful for the Registrar-General if satisfied as to the
truth of such declaration and the bona fides of the transaction to issue
to such proprietor a provisional certificate of title which provisional
certificate shaH contain an exact copy of the original grant or certificate
of title bound up in the register book and of every memorandum and
endorsement thereon at the time appearing and shall also contain a
statement of the circumstances under which such provisional certificate
is issued
and the Registrar-General shall at the same time enter in the
register book notice of the issuing of such provisional certificate and the
date thereof and the circumstances under which it was issued and such
provisional certificate shall be available for all purposes and uses for
which the grant or certificate of title so lost or mislaid would have been
available and as valid to all intents and purposes as such lost grant
or certificate
Provided always that the Registrar-General before issuing such
provisional certificate shall by advertisement in the Government Gazette
and in at least one newspaper published in the City of Brisbane give not
less than fourteen days' notice of his inte'ntion so to do.
"Grant" means grant by the Crown, s. 3.
For persons before whom execution of instruments may be proved, see
S5. 115, 116.
The provisions of this section may be applied in certain cases where a person
in possession of a grant, cer,tificate of title or instrument refuses or neglects to
produce it. See ss. 132, 133.
118. (Repealed.)
Repealed by Land Surveyors Act of 1908, s. 2.
119. When new certificates of title to issue in respect of subdivisions of
land. ( 1) Any proprietor subdividing any land under the provisions
of this Act shall lodge for registration with the Registrar of Titles a plan
of such land which shall exhibit distinctly delineated all roads, streets,
passages, thoroughfares, lanes, pathways, parks, squares or reserves
appropriated or set apart for public use and all subdivisions into which
REAL PROPERTY ACTS, 1861 TO 1963 5s.116·119 713
the said land may be divided marked with distinct numbers or symbols
and every such plan shall be certified as accurate by the declaration of a
licensed surveyor before the Registrar of Titles or a Justice of the Peace.
(2) The registered proprietor shall endorse on such plan that he
agrees to the plan of subdivision and dedicates to public use any new
roads, streets, passages, thoroughfares, lanes, pathways, parks, squares
or reserves appropriated or set apart thereon for public use.
Such certificate and endorsement shall, for all purposes of this Act,
sufficiently certify that the plan is correct for registration as an
instrument.
(3) If the Registrar of Titles is satisfied that the plan is correct
and that the requirements of "The Local Government Acts, 1936 to
1951" (or, as the case requires, "The City of Brisbane Acts, 1924 to
1951"), in respect thereof have been complied with, he shall register
the same in the register book by recording a memorial thereof on the
grant or certificate of title therein relating to the land and thereupon
and thereafter the land shall not be dealt with under this Act otherwise
than in accordance with that plan of subdivision.
Such memorial shall include particulars of any such dedication as
aforesaid.
Any such dedication shall be of all the estate or interest of the
proprietor in the land so dedicated unless he specifically reserves therefrom
any part thereof below the surface in which event the land below the
surface so reserved shall remain vested in such proprietor.
Except as aforesaid, and except to the extent it is specifically provided
otherwise by any Act, any land so dedicated shall vest in the Crown.
( 4) Whenever land under the provisions of this Act is subdivided
into ten or more subdivisions, the registered proprietor thereof shall,
after the plan of subdivision has been registered, apply forthwith to take
out and receive in his own name, a certificate of title for each such
subdivision of the land so subdivided as aforesaid as the Registrar, having
regard to the number of subdivisions shall deem necessary or expedient
for the orderly registration of dealings therewith.
(5) This section and section one hundred and twenty of this Act
shall apply with respect to plans lodged with the Registrar of Titles
before and not registered at the date of the passing of "The Real
Property Acts Amendment Act of 1952," as well as plans lodged with
him on or after that date.
Substituted by Act of 1952, 1 Eliz. 2 No. 43, s. 33; as amended by Act of
1963, No. 25, s. 9.
Acts referred to:
Local Government Acts, 1936 to 1967, title LOCAL AUTHORITIES,
Vol. 10, p. 315.
City of Brisbane Acts, 1924 to 1967, title BRISBANE, Vol. 3, p. 30.
Upon subdivision the provisions of s. 34 of the Local Government Acts, 1936 to
1967, title LOCAL AUTHORITIES, Vol. 10, p. 452, must also be observed. See
also ibid., s. 3 ("subdivision"), Vol. 10, p. 326.
Showing a strip of land as a road on a plan deposited under this section is
strong evidence of an intention to dedicate. See Re O'Quinn':; Application, supra;
Ex parte Le Gould (1864), 1 S.C.R. 130. Compare Boulter v. Jochheim, [1921]
SI. R. Qd. 105; [1921] Q.W.N. 18; affirmed, 29 C.L.R. 602; Dabbs v. Seaman
(1925), 36 C.L.R. 538 (creation of right of way by implication).
120. Registrar of Titles may require plan to be deposited. If any

proprietor applying to have any land brought under the provisions of
this Act is required to lodge a plan, such plan shall be certified by a
licensed surveyor in manner aforesaid.
The Registrar of Titles may require the proprietor of any land under
the provisions of this Act desiring to transfer, lease or otherwise to deal
with the same or any portion thereof to lodge for registration at the
office of the Registrar of Titles a plan of such land certified by a licensed
surveyor in manner aforesaid.
Any plan required under this section or under section one hundred
dflO nineteen of this Act shall, if the land dealt with thereby-
(a) Is of less area than one statute acre-be on a scale not less
than one inch to two chains;
(b) Is of greater area than one statute acre but does not exceed
five statute acres-be on a scale of not less than one inch
to five chains;
(c) Is of greater area than five statute acres but does not
exceed eighty statute acres-be upon a scale of not less
than one inch to ten chains;
(d) Is of greater area than eighty statute acres-be upon a scale
of one inch to twenty chains.
Substituted by Act of 1952, 1 Eliz. 2 No. 43, s. 34.
As to licensed surveyors, see Land Surveyors Acts, 1908 to 1916, title
SURVEYORS.
See also, s. 119, and notes thereto.
121. Search allowed. Schedule R. Any person may upon payment

of the fee specified in the list marked R in the Schedule hereto have
access to the register book for the purpose of inspection at any reasonable
time during the hours and upon the days appointed for search
The list marked R in the Schedule has been superseded. See now Order in
Council, Gazette 12 February 1966, p. 1147.
The Public Curator and Local Authorities are entitled to search free of
charge, Public Curator Acts, 1915 to 1957, s. 27 (4), title TRUSTEES AND
EXECUTORS; Local Government Acts, 1936 to 1967, s. 52 (5), title LOCAL
AUTHORITIES, Vol. 10, p. 548.
122. Certified copies signed and sealed to be furnished by the Registrar-

General and to be received in evidence. Schedule R. The Registrar-
General upon payment of the fee specified in the list marked R in the
Schedule hereto shall furnish to any person applying at a reasonable
time for the same a certified copy of any registered instrument affecting
land under the provisions of this Act and every such certified copy
signed by him and sealed with his seal shall be received in evidence in
any court of justice or before any person having by law or by consent
of parties authority to receive evidence as prima facie proof of all the
matters contained or recited in or endorsed on the original instrument
In and for the purposes of this section the term "certified copy"
shall include photostatic copy.
See also as to office copies, Real Property Act of 1877, s. 50, p. 752, post.
As to evidentiary effect of instruments, see also ss. 7, 33, 96, and Evidence
and Discovery Acts, 1867 to 1967, ss. 40-42, title EVIDENCE, Vol. 5, p. 483.
Council, Gazette 12 February 1966, p. 1147.
123. No action of ejectment to lie except in cases mentioned in this Act.

Except in the case hereinbefore provided of a mortgagee or encumbrancee
against a mortgagor or encumbrancer or in the case of a lessor against
a lessee or tenant or in the case of a person deprived of any land by
fraud as against a person registered as proprietor through fraud or
against a person deriving otherwise than as a purchaser or mortgagee
bona fide for value from or through a person registered as proprietor
through fraud or in the case of a person deprived of any land by
reason of a wrong description of any land or of its boundaries and except
in the case of a registered proprietor claiming under a prior certificate
of title or under a prior grant registered under the provisions of this Act
in any case in which two grants or two certificates or a grant and a
certificate may be registered under this Act in respect of the same land
no action of ejectment shall lie or be sustained against a registered
proprietor for the recovery of land under the provisions of this Act and
except in any of the cases aforesaid the grant or certificate of title shall
be held in every Court of Law or equity to be an absolute bar and
estoppel to any such action against the person named in such grant or
certificate of title as seised of or entitled to such land
For provisions establishing indefeasibility of title, see also ss. 33, 44, 109.
Where improvements have been made, see Real Property Act of 1877,
s. 47, p. 750, post.
A person may be barred from bringing an action of ejectment by the fact
that he has been notified of the application to bring land under the Act. See
s. 21; Ex parte Doust (1881), 14 S.C.R.(N.S.W.) 531; Re Hayton (1884),
1 W.N.eN.S.W.) 17. But where a caveator had no notice of the application, a
caveat may be entered under s. 98, as ancillary to ejectment proceedings in
respect of land erroneously included in a certificate, Ex parte Salling (1893),
14 L.R.(N.S.W.) (L.) 399.
This section restricts, in accordance with the scheme of this Act, the common
law right of a person entitled to possession of land to recover possession in all
cases except where he was barred by some statute or his own conduct, Finucane
v. Registrar of Titles, [1902] St. R. Qd. 75, at p. 93. The section does not
affect the right to enforce a trust or contract against the registered proprietor,
See Kissick v. Black (1892), 10 N.Z.L.R. 519; Tataurang; Tairuakena v. Mua
Carr, [1927] N.Z.L.R. 688, at p. 702. See also Loke Yew v. Port Swettenham
Rubber Co., [1913] A.c. 491.
For the right of a mortgagee or encumbrancee to bring ejectment against
the mortgagor or encumbrancer, see s. 60. Notwithstanding ,the words at the
commencement of this section, the right of a mortgagee under s. 60, to sue for
recovery of the land is not limited to actions against the mortgagor, Oelkers v.
Merry (1872), 2 S.C.R. 193.
As to what constitutes fraud, see notes to s. 44. Where land belonging to
plaintiff was brought under this Act by defendant by means of a false declara-
tion, defendant was ordered to give up possession of such land with mesne profits
and to execute a transfer to the plaintiff, Ogle v. Aedy (1887), 13 V.L.R. 461. '
A purchaser in good faith and for value is also protected by the last proviso
to s. 126. A purchaser for value without notice from a proprietor registered
by.virtue of a forged transfer. obtains an indefeasible title on registration, Bailey v.
Crzbb (1884), 2 Q.L.J. 42; Gibbs v. Messer, [1891] A.C. 248. See also note to s. 44.
The legal estate in land included in a certificate of title by misdescription
remains in the true owner, Rourke v. Schweikert (1888), 9 L.R.eN.S.W.) (Eq.)
152. As to wrong description of land, see also Overland v. Lenehan (1901)
11 Q.L.J. 59, cited under s. 44. '
124. Supreme Court may order the cancelling of any entry in the
register book obtained through fraud and the substitution of any other
entry. In the event of the recovery of any land by action of ejectment
from a fraudulent proprietor or from any of the persons against whom
action of ejectment is not by this Act expressly barred it shall be lawful
for the Supreme Court to make an order for cancelling or altering any
certificate of title or other instrument or entry in the register book
relating to the said land and for substituting any fresh certificate of title
or instrument or entry in lieu thereof and directing and ordering such
other acts dnd instruments to be done and executed as such Court
shall under the circumstances deem necessmy and just and the Registrar-
General shall give effect to any such order
As araended by Acts Citation Act of 1903, s. 10.
125. Registration as proprietor to be equivalent to possession. For the

purpose of bringing an action of ejectment against any person against
whom such action is not expressly barred or for the purpose of suing
for damages as hereinafter provided the registration as proprietor of the
person against whom such action or suit is brought shall be equivalent to
possession by him of the land in respect of which such action is brought
As to the effect of possession in an action for recovery of land, see 15
Halsbury's Laws of England, 3rd ed., p. 284; llawdol! v. Khan (1920), 20
S.R.(N.S.W.) 703.
126. Persons defrauded may bring action against fraudulent proprietor

for damages. Any person deprived of any land or of any estate or interest
in land in consequence of fraud or in consequence of the issue of a
certificate of title to any other person or in consequence of any entry
in the register book or of any error or omission in any certificate of title
or in any entry in the register book may bring and prosecute an action at
law in the Supreme Court for the recovery of damages against the person
who derived benefit by such fraud or in consequence of the issue of
such certificate of title or by such entry or in consequence of such error
or omission
Provided always that no such action shall lie or be sustained unless
the same shall be commenced within six years from the date of such
deprivation except nevertheless that any person being under the disability
of infancy or mental sickness may bring such action within six years
from the date on which such disability shall have ceased
Saving the case of a purchaser or mortgagee for valuable considera-
tion. Provided also that nothing in this Act contained shall be interpreted
to subject to any action of ejectment or for recovery of damages any
purchaser or mortgagee bona fide for valuable consideration of any
land under the provisions of this Act although his vendor or mortgagor
may have been registered as proprietor through fraud or error or may have
derived from or through a person registered as proprietor through fraud
or error whether by wrong description of land or of its boundaries or
otherwise
A person may be barred from bringing an action for damages by the fact
that he has been notified of the application to bring the land under the Act.
See s. 21. Where there was no notice, cf. Ex parte Solling (1893),14 L.R.(N.S.W.)
(L.) 399, cited under s. 123.
This section and s. 127, are based on the view that a person will not
in general be deprived of land by the operation of s. 123, and the operations of
this Act without some other person deriving benefit thereby, and that a right of
action for damages under this section and the guarantee under s. 127 should
therefore be substituted for the right ,to recover possession taken away by s. 123.
See Finucane v. Registrar of Titles, [1902] St. R. Qd. 75, at p. 93.
For an example of an action in which the plaintiffs were held to be entitled
to damages, to be recovered from the Assurance Fund, see Finucane v. Registrar
of Titles (No.2), [1947] St. R. Qd, 26; affirmed by High Court sub nomine
Registrar of Titles v. Crowle (1947),75 C.L.R. 191.
Deprivation under this section is deprivation of the right of enjoyment, not
of the right of disposition; there is therefore no deprivation until the right of
present enjoyment arises and a remainderman is not deprived until his estate vests
in possession, Finucane v. Registrar of Titles, [1902] St. R. Qd. 75, 96; Spencer
v. Registrar of Titles, [1906] A.c. 503. A person is deprived of an estate in
possession in land, whether corporeal or incorporeal and whether legal or equit-
able, so soon as his right to recover possession is extinguished by the statu'e,
Finllcane v. Registrar of Titles, [1902] St. R. Qd. 75, at p. 94.
This section includes the case of a partial as well as a total deprivation
of land, Finucane v. Registrar of Titles, [1902] St. R. Qd. 75, at p. 94. A
mortgage constitutes a deprivation of land or an estate or interest therein ibid.;
Queensland Trustees Ltd. v. Regi~trar of Titles (1893), 5 Q.L.J. 46. The section
applies to deprivation of equitable as well as legal interests, Williams v. Papworth,
[1900] A.C. 563, as an equitable mortgage created by deposit of the certificate of
title, Tolley v. Byrne (1902), 28 V.L.R. 95. Deprivation of the expectation of
obtaining an estate or interest in land is not sufficient, Oakden v. Gibbs (1882),
8 V.L.R. (L.) 380. A person contracted to purchase a piece of land identified
by its situation and occupation irrespective of its dimensions, and the certificate
of title showed these dimensions as being greater than in fact they were. It was
held that such person was not deprived of land within this section, Dempster v.
Richardson (1930), 44 C.L.R. 576; 26 Tas. L.R. 18.
As to what consti,tutes fraud, see notes to s. 44. A plaintiff alleging fraud
must plead the specific facts whereon he relies as constituting fraud, Lawrance v.
Norreys (1890), 15 App. Cas. 210; [1886-90] E.R. Rep. Cox v. Bourne (1896), 7
Q.L.J. 53; R.S.C. (1900), Order 22, rules 6, 14, title SUPREME COURT.
The section applies only to a deprivation by erroneous registration, not by a
voidable transfer, Re Pepper (1921), 21 S.R. (N.S.W.) 37. Fraudulent misrepre-
sentation is not necessary; error caused by misdescription is sufficient, Has.'ett v.
Colonial Bank (1881), 7 V.L.R. (L.) 380, at p. 388. As to wrong description,
see also s. 44, and notes thereto.
As to deprivation of land by rectification of the register, cf. A.-G. v. Odell,
[1906] 2 Ch. 47; Re Chowood's Registered Land, [1933] 1 Ch. 574.
"Person who derived benefit by such fraud" includes all persons deriving
benefit from the fraud with knowledge of it, Cox v. Bourne (1897), 8 Q.L.J. 66.
An action may be brought against a person who has purported to acquire title
by forgery, Heron v. Broadbent (1920), 20 S.R.(N.S.W.) 101. See also notes
to s. 44.
The protection under the last proviso is limited to purchasers from a registered
proprietor and does not apply where the purchaser himself has brought the land
under the Act, Oelkers v. Merry (1872), 2 S.C.R. 193. The object of the proviso
is to protect an honest purchaser for value; his certificate of title is good, even
against the rightful owner, whose remedy is against the person committing the
fraud or against the assurance fund, Main v. Robertson (1886), 7 A.L.T. 127.
A purchaser in good faith is protected even though his vendor became registered
through error, Oelkers v. Merry, supra. The purchaser must not only pay his
purchase money, but he must act with honesty, Franklin v. Ind (1883), 17 S.A.L.R.
133, at p. 168. As to the duty of a purchaser or mortgagee from a person
claiming under an unregistered transfer to inquire as to the validity of the
transfer, see Gilbert v. Bourne (1895), 6 Q.L.J. 270.
Beneficiaries are not necessarily barred from bringing an action by a period
of limitation because their trustees are so barred, Williams v. Papworth, [1900]
A.C.563.
The damages must be ascertained as at the date of the act of deprivation,
Finucane v. Registrar of Titles, [1902] St. R. Qd. 75, at p. 95; Spencer v. Registrar
O'f Titles, [1908] A.C. 235. As to measure of damages, see Queensland Trustees Ltd.
v. Registrar of Titles (1893), 5 Q.L.I. 46 (deprival to e~tent of mortgagee's interest).

With respect to the right to interest as from the date at which the right to
damages accrued, see Spencer v. Registrar of Titles (1910). 103 L.T. 647, P.C.
See further. with respect to s. 126, Power on The Real Property Acts of
Queensland, p. 160.
127. H registered proprietor be dead action to be against Registrar-
General as nominal defendant. In case the person against whom such
action for damages is directed to be brought shall be dead or shall have
been adjudged insolvent or shall have absconded out of the jurisdiction
of the Supreme Court then in such case it shall be lawful to bring an
action for damages against the Registrar-General as nominal defendant
for the purposes of recovering the amount of the said damages and costs
against the assurance fund hereinbefore described and in any such case
and also in any case in which damages may be awarded in any action
against the person deriving benefit by any fraud or in consequence of
the issue of any certificate of title or otherwise as aforesaid and the
Sheriff shall make a return of nulla bona or shall certify that the full
amount with costs awarded cannot be recovered from such person the
Treasurer of the Colony upon receipt of a certificate of a Judge of the
Supreme Court and of a warrant under the hand of the Governor as
hereinafter provided shall pay the amount of such damages and costs
or the unrecovered balance thereof as the case may be and shall charge
the same to the account of the assurance fund
Provided always that the assurance fund shall not be liable for
payment of any damages after the expiration of six years from the time
when the cause of action arose
Provided also that any person so absconding beyond the jurisdiction
if subsequently found within the jurisdiction shall be liable to be sued
in the name of the Registrar-General for the amount of the damages
and costs so recovered from the assurance fund
The right of a person to recover compensation from the assurance fund may
be barred by the fact that he has been notified of the application to bring land
under the Act, s. 21. Where he was not cognizant of the application, cf. Ex parte
Salling (1893), 14 L.R.(N.S.W.) (L.) 399, cited under s. 123.
As to payment out of the assurance fund, see ss. 41, 42, 141, and notes to s. 41.
As to the policy of this section and s. 126, see first note under ,that section on
Finucane v. Registrar of Titles, [1902] St. R. Qd. 75.
The cause of action under the first proviso is the deprivation under s. 126,
Finucane v. Registrar of Titles, [1902] S1. R. Qd. 75, at p. 95; Gilbert v. Bourne
(1895), 6 Q.L.I. 270; Cox v. Bourne (1896), 7 Q.L.I. 53. The plaintiff has not
been deprived of land because it is registered in the name of someone else from
whom he can recover it by action, Cox v. Bourne, supra; Gibbs v. Messer, [1891]
A.C. 248; Finucane v. Regi;,'trar of Titles, [1902] St. R. Qd. 75, at p. 94. It is
not sufficient to allege in so many words that the plaintiff has been deprived
of the land; the specific facts must be alleged, including the fact that the person
registered took the land in good faith, Cox v. Bourne, supra. An action against
the Registrar is, in substance, an action against the Crown, and ·the Registrar
stands in the position of ·the Crown with respect to pleadings, Dempster v.
Richardson (1929),24 Tas. L.R. 75.
The right to sue the Registrar is not defeated by the fact that there is.
unbeknown to the plaintiff, a second person Who derived benefit by the fraud
aileged, and who is neither dead nor adjudged bankrupt nor has absconded, Cox v.
Bourne (1897). 8 Q.L.I. 66, nor semble, is the plaintiff's right defeated where he
knows such fact, ibid.
As to an action by a person deprived by rectification of the register, cf.
A.-G. v. Odell, [1906] 2 Ch. 47; Re Chowood's Registered Land, [1933] 1 Ch. 574;
[1933] All E.R. Rep. 946.
A married woman is adjudicated insolvent for purp?ses of this section even

though it is subsequently disc,?vered that she h~d no title. to. separate property
registered in her name and 10 respect of which the adjUdIcatIOn was made,
Queensland Trustees Ltd. v. Registrar of Titles (1893), 5 Q.L.J. 46. And see
Bankruptcy Act 1924-1960, s. 5 (1) (Commonwealth).
Qutere, whether a person who has taken advantage of the second part of the
first paragraph can afterwards proceed under the first part, Queensland Trustees
Ltd. v. Registrar of Titles (1893), 5 Q.LJ. 46.
The measure of damages to which a plaintiff is entitled is full compensation
for his lo,s, that is, he is to be put in the same position as far as money can
do it as if the wrongful act had not been done, but he is not entitled to anything
more, Registrar of Titles v. Spencer (1909), 9 C.L.R. 641; Hayes v. Bourne
(1895), 7 Q.L.J. 146. A deduction must therefore be made in respect to any
improvement to the land due to ,the wrongful act, Hayes v. Bourne, supra. Compare
Real Property Act of 1877, s. 47, p. 750, post. The damages which are recoverable
from the assurance fund are not necessarily co-extensive with those which could
be recovered under s. 126, Cox v. Bourne (1897), 8 Q.L.J. 66.
The costs to which the plaintiff is entitled include all expenses of litigation
necessarily incurred in establishing the plaintiff's claim to damages. See ibid.
128. Actions for recovery of damages may in certain cases be brought

against the Registrar-General as nominal defendant. Every action
which shall be brought by any person to recover damages for or by
reason of any loss or damage occasioned by any omission mistake or
misfeasance of the Registrar-General or any of his officers or clerks in
the execution of their duties under the provisions of this Act shall be
brought against the Registrar-General as nominal defendant and in case
in any such action the plaintiff recover final judgment against such
nominal defendant then upon the application or motion of such plaintiff
any Judge of the Supreme Court shall and he is hereby directed to
certify to the Treasurer the fact of such judgment having been recovered
and the amount of damages and costs recovered
Treasurer on receipt of warrant from Governor to pay amount of
award. and thereupon or before the expiration of two calendar months
after such judgment is so certified the said Treasurer upon the receipt
of a warrant under the hand of the Governor shall pay the amount of
such damages and costs to the person recovering the same his executors
or administrators and shall charge the same to the account of the assurance
fund hereinbefore described
Notice of action to be served on Registrar-General and Attorney-
General. Provided always that notice in writing of every such action
and of the cause thereof shall be served upon the Attorney-General and
also upon the Registrar-General one calendar month at least before the
commencement of such action
Process and notice to be served on Attorney-General. Provided
also that the Registrar-General shall not be personally chargeable upon
any judgment recovered as aforesaid nor shall any process or notice in
or relating to any such action (except as aforesaid) be served upon the
Registrar-General but all such processes and notices shall be served
upon the Attorney-General for the time being
As to payment of the amount due under the judgment, see also ss. 41, 42, 141,
and notes to s. 41.
For further protection of the Registrar of Titles against personal liability,
see s. 137.
This section does not give any right of action in respect of a deprivation of
imd or an estate or interest in land within s. 126; with respect to such right
that section is exclusive, Finucane v. Registrar oj Titles, [1902] St. R. Qd. 75,
at p. 97. As to a right to sue under this section in respect of the loss of the right
of disposition of land as distinct from that of enjoyment, see ibid.
See also Boulter v. Jochheim, [1921] St. R. Qd. 105; [1921] Q.W.N. 18;
affirmed, 29 c.L.R. 602; Dempster v. Richardson (1930), 44 C.L.R. 576; 26 Tas.
L.R. 18.
129. If action discontinued or plaintiff nonsuited the nominal defendant

entitled to costs. If in any such action judgment be given in favour
of the nominal defendant or the plaintiff discontinue or become nonsuit
the plaintiff shall be liable to pay the full costs of defending such action
and the same when taxed shall be levied in the name of the nominal
defendant by the like process of execution as in other actions on the case
130. Registrar-General may summon person by whom a certificate of
title or entry bas been fraudulently or wrongfully obtained. If any
grant certificate of title or other instrument affecting land under the
provisions of this Act or any entry memorandum or endorsement in or
upon any such instrument shall be fraudulently or wrongfully obtained
from or procured to be made or issued by the Registrar-General or if
any such instrument shall be wrongfully retained by any person it shall
be lawful for the Registrar-General to summon before him the person
who shall have so fraudulently or wrongfully obtained or retained the
same or procured the same to be made or issued
If summons disregarded Registrar-General may apply for a warrant
for such person to be apprehended and brought before a Judge of the
Supreme Court. and in case such person shall not attend at the time
so appointed having no lawful impediment to be notified to the Registrar-
General at the time so appointed the Registrar-General may apply to a
Judge of the Supreme Court to issue a warrant authorising and directing
some person to be therein named to apprehend and arrest the person
so summoned and bring him before a Judge of the Supreme Court
for examination and such Judge shall thereupon issue a warrant for that
purpose
For power of the Registrar of Titles to require persons to produce instruments,
see also s. 11 (2).
The powers under this section are intended to be exercised either after the
determination of the rights of the parties by ordinary judicial proceedings or
where an obvious mistake has been made, and not where questions relating to
conflicting rights have to be determined, District Land Registrar v. Thompson,
[1922] N.Z.L.R. 627, at p. 629; Ex parte the Recorder oj Titles, Barham v. Haggins
(1909), 6 Tas. L.R. 6. Such powers should only be exercised where the right
of the applicant is demonstrably plain, Duthie v. District Land Registrar at
Wellington (1911), 31 NZ.L.R. 245. See also Re Mangatainoka (1913), 33
N.Z.L.R. 23; Paraone v. Matthews (1888), 6 N.Z.L.R. 744; District Land Registrar
oj Wellington v. Snow (1909), 29 N.Z.L.R. 865.
As to what constitutes fraud, see Re Leighton's Conveyance, [1936] 1 All E.R.
667, and notes to s. 44, ante.
131. In case person summoned keep out of the way summons may be
served upon any servant or inmate of his last known place of abode.
In case it shall be shown by affidavit to the satisfaction of the Registrar-
General that the person to whom a summons ought to be directed
as hereinbefore mentioned is keeping out of the way and cannot be
personally served therewith and that due pains have been taken to effect
such personal service it shall be lawful for the Registrar-General

to order by endorsement upon the summons that the delivery of a copy
of such summons to the wife or servant or some adult inmate of the house
or family of such person at his usual or last known place of abode or
business after the purport thereof has been explained to such wife servant
or inmate shall be equivalent to personal service and in every such case
the service of such summons in pursuance of such order shall be deemed
and taken to be of the same force and effect to all intents and purposes
as if the party to whom such summons was directed had been personally
served therewith
132. party appearing may be examined on oath. Registrar-General or

Court may order tbe delivery of the instrument. In case of neglect
or refusal fresb certificate or other instrnment may be issued. Upon
the appearance before the Registrar-General or Court or Judge of any
person summoned or brought up by virtue of a warrant as aforesaid
it shall be lawful for the Registrar-General or Court or Judge to
examine such person upon oath and in case the same shall seem proper
to order such person to deliver up such grant certificate of title or other
instrument as aforesaid and upon refusal or neglect by such person to
deliver up the same within a time to be named for that purpose in such
order the Registrar-General shall issue to the proprietor of the said
land such certificate of title or other instrument as is herein provided to
be issued in the case of any grant or certificate of title being lost mislaid
or destroyed and the Registrar-General shall enter in the register book
notice of the issuing of the said certificate of title or other instrument
and the circumstances under which the same was issued and such other
particulars as having regard to the estate or interest of the registered
proprietor of such land he may deem necessary to enter therein
For further application of this section, see the fourth paragraph of s. 47 of
.Real Property Act of 1877, p. 750, post.
For proceedings where a grant or certificate of title is lost or destroyed, see
s. 117.
133. If party abscond proceedings to be conducted as in the case of

party attending upon summons or warrant. If the person who is charged
with having so fraudulently or wrongfully obtained from or procured
to be made or issued by the Registrar-General or with having wrongfully
retained such grant certificate of title or other instrument or such entry
memorandum or endorsement as hereinbefore mentioned shall be proved
to the satisfaction of the Registrar-General or Court or Judge to have
absconded so that the Judge's warrant or summons of the Registrar-
General cannot be served upon him the same proceedings may then be
taken as if such person had been duly summoned or been brought up by
virtue of a warrant as aforesaid and had refused or neglected to deliver
up such grant certificate of title or other instrument
134. Registrar-General or Court to award costs and expenses. In every

proceeding under this Act relating to any summons examination or
warrant it shall be lawful for the Registrar-General Court or Judge to
give to or withhold from any of the persons who may attend any such
proceeding his reasonable costs and expenses and to direct by whom
such costs and expenses are to be borne and paid
135. Costs unpaid may be levied by distress. In case such costs and
expenses shall not be paid pursuant to the direction for payment thereof
the amount of such costs and expenses shall be levied by distress and
the Registrar-General or Judge shall issue his warrant of distress
accordingly and the sum therein directed to be levied shall be levied by
distress and sale of the goods and chattels of the person liable to pay the
same and the overplus arising from the sale of such goods and chattels
after satisfying such sum of money and the expenses of the distress and
sale shall be returned on demand to the person whose goods shall have
been dis trained
136. No distress to be trespass for want of form. No distress levied
by virtue of this Act shall be deemed unlawful nor shall any person
making the same be deemed a trespasser on account of any defect or want
of form in the application warrant of distress or other proceeding
relating thereto nor shall such person be deemed a trespasser ab initio
on account of any irregularity afterwards committed by him but all
persons aggrieved by such defect or irregularity may recover full
satisfaction for the special damage in an action on the case
137. Indemnity of Registrar-General. The Registrar-General shall not
except as hereinbefore is provided be subject to be sued or prosecuted by
any person whomsoever on account of any act done or default made by
him in his character of Registrar-General unless the same has happened
through his wilful act or default and the person goods or lands of the
Registrar-General shall not be liable to execution of any legal process
by reason of any act or default made or done by him in his character
of Registrar-General but he shall be indemnified out of the assurance fund
or out of the general revenues of the Colony in case such assurance
fund shall prove to be insufficient in respect of all losses costs or damages
which may be incurred or recovered by any person under any action or
suit brought or prosecuted under the provisions of this Act touching
or concerning any matter or thing relating to the execution of this Act
and the powers hereby granted
For rights of action against the Registrar of Titles, see 5S. 127, 128.
As to the assurance fund, see ss. 41, 42, and notes thereto.
138. Witnesses to have expenses tendered. Every person summoned
to attend before the Registrar-General as a witness in respect of any
instrument required to be produced or any act matter or thing by this
Act authorised to be done proceeded with or inquired into by or before
the Registrar-General shall have his necessary expenses tendered to him
in like manner as is now by law required upon service of a subpoena to a
witness in an action at law
139. Authority to registet'. The Registrar-General may refuse to receive
and shall not register any application for bringing land under the provisions
of this Act or any instruments purporting to deal with or affecting any
land under the provisions of this Act or any application under Part III of
"The Real Property Acts Amendment Act of 1952", for a title by
possession unless there shall be endorsed thereon a certificate that the same
is correct for the purposes of this Act signed by the applicant, or party
claiming under or in respect of such instrument or by his solicitor or
conveyancer
REAL PROPERTY ACTS, 1861 TO 1963 ss. 135-140 723
Penalty for registering incorrect instruments. and the Registrar-

General shall not be required to compare the said instrument with the
duplicate thereof and shall not incur or become subject to any liability
action or other proceeding in consequence of any error mistake or
discrepancy therein but the person who shall falsely or negligently certify
to the correctness of any such application or other instrument shall incur
therefor a penalty not exceeding one hundred dollars
Provided always that such penalty shall not prevent the person who
may have sustained any damage or loss in consequence of error or mistake
in any such certified instrument or any duplicate thereof from recovering
damages against the person who shall have certified the same
Act referred to:
A certificate as to correctness by the party conveying is gratuitous and
ineffective; this section throws the responsibility for correctness on the party
taking the interest, Merry v. Australian Mutual Provident Society (1872), 3
S.C.R.36.
Where an instrument is obviously incorrect the Registrar is not bound to
register it, notwithstanding the certificate that it ,is correct, McGlone v. Registrar
of Titles (1886),2 Q.L.J. 182.
The proviso preserves remedies which a vendee or mortgagee may have
against an alienor who on the strength of a false certificate has obtained his own
registration, Merry v. Australian Mutual Provident Society, supra.
See also Ex parte Wilson (1901), 21 N.Z.L.R. 53 (dedication of street
registered without certificate); District Land Registrar v. Thompson, [1922]
N.Z.L.R. 627 (forged certificate); De Chateau v. Child, [1928] N.Z.L.R. 63
(alteration of transfer by vendor's consent but without purchaser's consent after
execution of same: certificate of correctness executed prior to alteration).
140. Fees to be charged. For the purposes of "The Real Property Acts,
1861 to 1887," and any Act amending the same, it shall be lawful for the
Registrar of Titles to charge and recover such fees as shall from time to
time be prescribed by the Governor in Council by Order in Council
published in the Gazette in and for such purposes as may be prescribed:
Provided that until otherwise so prescribed, the fees specified in the
list marked R in the Schedule hereto, together with any amendments
thereof or additions thereto which shall have been made up to the passing
of "The Justices Acts and Real Property Fees Act of 1932," being the
scale of fees in force at the passing of such lastmentioned Act (and which
scale is dated the sixth day of May, one thousand nine hundred and twenty-
one, and published in the Gazette of the seventh day of May, one thousand
nine hundred and twenty-one, at page one thousand four hundred and
seventy-six) shall be the fees so chargeable and recoverable:
Provided further that the Governor in Council may by Order in
Council amend such scale of fees, being the scale of fees in force at the
passing of "The Justices Acts and Real Property Fees Act of 1932," by
amending (whether by increase or otherwise) all or any of such fees, and
by the addition of further fees for such other purposes as may be
prescribed, and for fixing any new basis or bases of calculation in respect
of any fee or fees, existing or prospective:
Provided always that the Governor in Council may by any subsequent

Order in Council reduce all or any of the fees prescribed in any Order in
Council made under the provisions of this section.
Substituted by Justices Acts and Real Property Fees Act of 1932, s. 7.
For effect of gazettal of Orders in Council under this section see section 8
of the Justices Acts and Real Property Fees Act of 1932, (not reprinted. See
1936 Reprint, Vol. 4, p. 474). This section provides that these Orders in Council
are to be laid before the Legislative Assembly.
Council published Gazette 12 February 1966, p. 1147.
Sec also Registrar of Titles Act of 1884, s. 2, p. 777, post.
141. Registrar-General to pay moneys into Treasury and to render

accounts. The Registrar-General shall keep a correct account of all such
sums of money as shall be received by him in accordance with the
provisions of this Act and shall pay the same into the public Treasury
of the Colony at such times and shall render accounts of the same to such
persons and in such manner as may be directed in any regulations that may
for that purpose be from time to time issued by the Governor with the
advice of the Executive Council
Parties entitled to be paid by Treasurer upon proper warrant. and
the Registrar-General shall address to the Treasurer requisitions to pay
moneys received by him or by the Treasurer in trust or otherwise on
account of absent mortgagees or other persons entitled in accordance with
the provisions of this Act and the Treasurer shall be bound to obey all such
requisitions when proved and audited in manner directed by any such
regulations as aforesaid and accompanied by warrant for payment of the
same under the hand of the Governor
and all fines and fees received under the provisions of this Act except
fees payable to the Lands Titles Commissioners for the bringing of land
under the operation of this Act shall be carried to account by the
Treasurer as general revenue
A~ to the assurance fund and its present position, see ss. 41, 42, and notes
thereto, and ss. 127, 128.
Moneys received on account of absent mortgagees were dealt with by the
former s. 64 of this Act. See now Public Curator Acts, 1915 to 1957, s. 56, title
142. (Repealed in part by Criminal Statutes Repeal Act 1865; remainder

repealed by Criminal Code Act, 1899, s. 3.)
143. Penalties to be recovered in name of Attorney-General or Registrar-
General. Unless in any case herein otherwise expressly provided all
offences against the provisions of this Act may be prosecuted and all
penalties or sums of money imposed or declared to be due or owing by or
under the provisions of the same may be sued for and recovered in the
name of the Attorney-General or of the Registrar-General before any
Court in the said Colony having jurisdiction for punishment of offences of
the like nature or for the recovery of penalties or sums of money of the
like amount.
See also Acts Interpretation Acts, 1954 ,to 1962, s. 42, title ACTS OF
PARLIAMENT, Vol. 1, p. 101.
144. Commencement of Act. This Act shall commence and take effect
from and after the first day of January 1862.
REAL PROPERTY ACTS, 1861 TO 1963 s. 140-Sch. B 725
SCHEDULES REFERRED TO
As to application of the forms generally, see ss. 9, 35, (IIlt('. For powers of the
Registrar of Titles to alter forms, see ss. 9, 3, ante.
Decimal currency references in the Schedules substituted pursuant to section 7
of Decimal Currency Act of 1965.
[so 16]
A
ApPLICATION TO BRING LAND UNDER THE PROVISIONS OF THE REAL PROPERTY
ACT OF 1861
I, A.B., of , do declare (that I am) or (on behalf of
oj that he is) (here state the description of the estate, whether in fee
simple or a lesser estate, or as trustee or held in trust for uses) in all that piece of
land situated in (here state the situation) containing (here state the area) be the
same a little more or less (exclusive oj roads intersecting the same if any) with
(here state rights of way and other privilege.I' or easements appertaining, and set
forth a sufficient descriptioll to identify the land) which piece of land is of the
value of $ and no more, and is (the town allotment or coulltry section, or
is part of the town allotment, caul/try section, or reserve), originally granted to
, by land grant under the hand and seal of , Governor of
the Colony of Queensland (or formerly Governor of the Colony oj New South Wales,
in which Colony the said land was then situated.) Dated the day of
, numbered in the plan of the (district, township, or
COlillty) of as delineated on the public maps of the Colony, deposited
in the Survey Office, Brisbane. And I do further declare that I am not aware
of any mortgage, encumbrance, or claim affecting the said land, or that any person
hath any claim, estate, or interest in the said land, at law, or in equity, in possession
or in expectancy, other than is set forth and stated as follows, that is to say-
(here state particulars of all unsatisjiC'd mortgages, encumhrances, claims, or interests,
if any). And I further declare that there is no person in possession or occupation
of the said lands adversely to my estate or interest therein, and that the said land
is now (here state name and description of occupier, or that the land is unoccupied),
and I make this solemn declaration conscientiously believing the same to be true.
Dated at , this day of , 19
Made and subscribed by the above-named this day
of in ,the presence of me , Registrar-General, or Justice of
the Peace.
I, A.B., the above declarant, do hereby apply to have the piece of land
described in the above declaration brought under the provisions of the Real Property
Act of 1861.
Dated at , this day of , 19
Witness to signature--C.D.
A.B.
[so 23]
B
CAVEAT FORBIDDING LANDS TO BE BROUGHT UNDER THE REAL PROPERTY ACT OF 1861
Take notice that I , claiming estate or interest (here state the
nature of the estate or interest claimed, and the ground on which ,~uch claim is
founded) in lands described as (here state particulars of description from declaration
of applicant) in notice dated the day of , advertising
the same as land in respect to which claim has been made, to have the same
brought under the provisions of the Real Property Act of 1861, do hereby forbid
the bringing of the said land under the provisions of the said Act.
Dated this day of , 19
Signed in my presence, this day of
To the Registrar-General of the Colony of Queensland.
[ss. 33, 3]
C
[For the purposes of this reprint and for identification the following forms of
Schedule C have been numbered consecutively.]
[No.1]
QUEENSLAND
[Royal Arms]
CERTIFICATE OF TITLE
A.B., of (here insert description, and if certificate be issued pursuant to any
transfer, reference to memorandum of transfer) is now seised of an estate (here
state whether in fee simple), subject nevertheless to such encumbrances, liens, and
interests as are notified by memorandum endorsed hereon, in that piece of land
situated in the (county or township) of (here insert sufficient descrip-
tion to identify the land), which said piece of land is (or is part of) the (country
section, or town allotment) marked delineated in the public map of the
said (country or towl/ship) deposited in the office of the Surveyor-General,
originally granted the day of , under the hand and seal
of Governor of the said Colony (or at formerly Governor
at the Colony ot New South Wales, in which Colony the said land was then situated)
to C.D.
In witness whereof, I have hereunto signed my name and affixed my seal,
this day of
Registrar-General, (L.S. )
Signed, sealed, and delivered, in presence of
the day of
See note to form of Schedule C [No.2].
[No.2]
No.
QUEENSLAND
[Royal Arms]
(C)
Reference to Previous
Vol. Folio
Register Book, Vol. Folio
of pursuant to Memorandum
of Conveyance No. produced the day of 19 ,
registered the day of 19 ,now seized of an
Estate in Fee-simple subject nevertheless to such encumbrances liens and interests
as are by memorandum notified hereon, in All that piece of Land situated in
the County of Parish of
containing
more or less, as shown on the Plan hereon, and therein edged red. Being
which said piece of Land is of the marked
delineated in the Public Map of the said deposited in the Office of the
Surveyor-General, originally granted by Deed of Grant No.
Saving Always to the CROWN all the rights and interests reserved to it by the said
Deed of Grant.
IN WITNESS whereof, I have hereunto signed m~ name and affixed my seal, this
day of One thousand pne hundred and
Signed, Sealed, and Delivered, the }
day of , 19 , in presence of
Registrar of Titles.
Scale. cJwins per inch.
Substituted for form of Schedule C [No.1] under powers in s. 9 of Act,

p. 638, ante.
REAL PROPERTY ACTS, 1861 TO 1963 Sch.C 727
[No.3]
[C]
Dealing No.
Reference to previous
Vol. Folio
QUEENSLAND
[Coat of Arms]
now seised of an Estate in Fee-simple, subject nevertheless to such

encumbrances, liens, and interests as are by memorandum noti~ed hereon, in ALL
that piece of land situated in the County of Pansh of
City of containing more or less, as shown on the Plan
hereon, and therein edged red, being on registered Plan No.
Saving Always to ,the Crown all the rights and interests reserved to it by Deed of
Grant No.
In Witness whereof, I have hereunto signed my name and affixed my seal,
this day of One thousand nine hundred and
Signed, sealed and delivered in presence of
Scale, chains per inch.
Inserted by Order in Council, Gazette 4 July 1964, p. 1097.
[No.4]
CERTIFICATE OF TrTLE
QUEENSLAND
[Coat of Arms]
(C)
Building Units Plan No.
Unit Entitlement
Vol. Folio
is now seised of an Estate in Fee-simple, subject nevertheless to such encumbrances,
liens, and interests as are by memorandum notified hereon, in All that piece of land
situated in the county of parish of city of
being in Building Units Plan registered in the office of the Registrar
of Titles, No. and is also seised of an Estate in Fee-simple in
undivided shares in the common property shown in the said Building Units Plan.
Saving Always to the CROWN all the rights and interests reserved to it by Deed of
Grant No. Subject nevertheless to interests notified in the Building
Units Plan and any amendments to Lots or common property notified thereon by
virtue of the provisions of "The Building Units Titles Act of 1965."
In Witness whereof, I have hereunto signed my name and affixed my seal
this day of , One thousand nine hundred and :
Signed, sealed, and delivered in the presence of
Inserted by Order in Council, Gazette 29 May 1965, p. 698.
728 REAL PROPFRTY Vof. ] 4
[No.5]
QUEENSLAND
[Coal oj Arms]
(C)
Building Units Plan No.
Unit Entitlement
Vol. Folio
is now seised of an Estate in Fee-simple as tenant in common in undivided
part or share, subject nevertheless to such encumbrances, liens, and interests as are
by memorandum notified hereon, in All that piece of land situated in the county
of parish of city of being
in Building Units Plan registered in the Office of the Registrar of Titles.
No. and is also seised of an Estate in Fee-simple in an undivided
share of a undivided in the common property
shown in the said Bui1din~ Units Plan.
Saving Alway, to the CR()WN all the rights and interests reserved to it by Deed of
Grant No. Subject nevertheless to interests notified in the Building
Units Plan and any amendments to Lots or common property notified thereon by
virtue of the provisions of "The Building Units Tilles Act oj 1965."
In Witness whereof, I have hereunto signed my name and affixed my seal
this day of One thousand nine hundred and
Signed, sealed and delivered in presence of

REAL PROPERTY ACTS, 1861 TO 1963 Sch. C 729
[No.6]
C
Conditions and Reservation,: Certificate of Title
DIG. No.:
Portion: Register Book,
Allotment: QUEENSLAND Vol. Folio
Section: [Royal Arms] Issued:
Dealing No.:
Previous Title:
Vol. Folio
I certify that the person or persons described in the First Schedule and
whose name or names has or have not been cancelled is or are the registered
proprietor or proprietors of the undermentioned estate in the land within
described subject nevertheless to conditions and reservations in the Deed of
Grant therefor together with such easements and subject to such encumbrances
liens and interests as are shown in the Second Schedule.
Witness: Registrar of Titles.
Scale: chains per inch.
PLAN OF LAND
t
containing an area of
ESTATE AND LAND REFERRED TO
Estate in Fee Simple in
, Parish
on Registered Plan No.
• County
FIRST SCHEDULE-continued overleaf
SECOND SCHEDULE-continued o~'erleaf
FIRST SCHEDULE-continued
Registered Proprietor ' _____ I_ns_tru_m_e_~~~ ____ 11 Entered ~~~i~~~~~ ~r

Titles
_ _ _ _ _ _ _ _ _ _ _ _ :_N_a_tu_r_e_1 Number I Produced 1 _ _ _ _ _ _ _ __
1
1 '
1 .
'0
>
SECOND SCHEDULE--continued
--'------.--.---- -----
I Cancellation
i i '
Instrument
Particulars
I Signature
I. Entered I of I
I
Instrument I
....o _______ I
i Registrar
of Titles
I Signature
of
I
I
I
Nature No. Pro- I
I I I I Registrar
Nature I No.1 Pro- Entered of Titles
1
---,-' '---I--I---i--I-I---I--
, duced ! , I duced ,
: ' ! :
NOTE.-Entries ruled through and authenticated by the seal of the Registrar of

Titles are cancelled.
* Dealings with this Lease will be registered on the Original Lease only instead
of on this Certificate of Title.

~s.48,3] D
[For the purposes of this reprint and for identification the following forms of
Schedule D have been numbered consecutively.]
[No.1]
QUEENSLAND
MEMORANDUM OF TRANSFER
I, A.B., being registered as the proprietor of an estate (here state 1UJture of the
estate or interest, whether in fee simple or life estate, or of ,a greater or less description
than a life estate) subject, however, to such encumbrances, liens, and interests as
are notified by memorandum endorsed hereon, in all that piece of land situated in
the (county, or township) of , containing (here state area), be the
same a little more or less (exclusively of roads intersecting the same, if any. Here
state rights of way, privileges, or easements, if any, intended to be conveyed; and if
the land to be dealt with contain all that is included in an existing grant or certificate
refer thereto for descripion of parcels and diagrams, otherwise set forth the
houndories in chains, links, or feet, and reter to plan delineated on the margin, or
annexed to the instrument, or deposited in the Registry Office), which said piece of
land is (or is part of) the (country section, or town allotment), marked ,
delineated in the public map of the said (county or township) deposited in the office
of the Surveyor-General, which was originally granted the day of
, under the hand and seal of , Governor of the said
Colony (or formerly Governor of the Colony of New South Wales, in
which Colony the said land was then situated) to C.D., in consideration of the sum
of $ , paid to me by E.F., the receipt of which sum I hereby
acknowledge, do hereby transfer to the said E.F. (all my estate or interest. or a
lesser estate or interest, describing such lesser estate,) in the said piece of land.
In witness whereof I have hereunto subscribed my name, this day
of
Signed on the day above-named, by the J
said A.B., in the presence of G.H.
See note to form of Schedule D [No.2].
[No.2]
MEMORANDUM OF TRANSFER
of being the Registered Proprietor of an Estate
Subject, however, to such encumbrances, liens, and interests as are notified by
Memorandum endorsed hereon, in all th piece of Land described in the following
Schedule, namely:-
ScHEDULE
-------
Deed of Certificate
Grant of Title Vol. Folio CoUNTY PARISH Description of Land AREA
No. No.
A. R. P.
-- ---
I
I
I
I
I I- - - I --
I
In conSideratIon of the sum of
paid to by
the receipt of which sum hereby acknowledge
Do hereby Transfer to the said
all estate and interest in the said piece of land
In witness whereof have hereunto subscribed name this
day of 193
Signed on the day above-named by the )
said , Signature of }
Vendor
In the presence of '
Signature of
Correct for the pur~ of Registration. Purchaser
REAL PROPERTY ACTS, 1861 TO 1963 Schs. D-F 731
Memorandum of Encumbrances, Liens and Interests
Substituted for form of Schedule D [No.1] under powers in s. 9 of the Act,

p. 638, ante.
[So 52]
E
LEASE
I, A.B., being registered as proprietor of an estate (here state nature at ~he
estate or interest, whether in fee simple or life estate, or of a greater or less descTlptlon
than a life estate) subject, however, to such encumbrances, liens, and interests as
are notified by memorandum endorsed hereon, in that piece of land situated in the
(county, or township) of containing (here state area), be the same a
little more or less (exclusive of roads intersecting the same, if any [here state rights
of way, privileges, or easements, if any, intended to be conveyed.] If the land to be
dealt with contains all that is included in an existing grant or certificate of title, refer
thereto for description and diagram; otherwise set forth the boundaries in chains,
links, or feet, and refer to a plan thereof on margin of or annexed to the lease, or
deposited in the Registry Office), which said piece of land is (or is part of) the
(country section, or town allotment), marked , delineated in the public
map of the said (county, or township) deposited in the office of the Surveyor-General,
which was originally granted the day of , under the hand
and seal of , Governor of the said Colony (or , formerly
Governor of the Colony of New South Wales, in which Colony the said land was
then situated), to C.D., do hereby lease to E.F., of (here insert description) all the
said lands, to be held by him, the said E.F., as tenant for the space of
years, at the yearly rental of $ , payable (here insert terms of paYment
of rent) subject to the following covenants, conditions, and restrictions (here set
forth all special covenants, if any, and state what covenants declared by the Real
Property Act of 1861, to be implied against a lessor and lessee respectively are
intended to be barred or modified, and in what manner).
I, E.F., of (here insert description), do hereby accept this lease of ,the above
described lands, to be held by me as tenant, and subject to the conditions, restrictions,
and covenants above set forth.
Dated this day of
Signed by the above-named A.B., as lessor, and by the above-named E.P., as
lessee, this day of , in presence of X.Y.
(Signed) A.B., Lessor.
E.F., Lessee.
[5S. 56, 59, 3]

F
Bu..L OF MORTGAGE
I, A.B., being registered as proprietor of an estate (here state nature of the
estate or interest, whether in fee simple or life estate, or of a greater or less
description than a life estate) subject, however, to such encumbrances, liens, and
interests as are notified by memoranda endorsed hereon, in that piece of land
situated in the (county, or township) of , containing (here state area)
be the same a little more or less (exclusive of roads intersecting the same, if any
[here state rights of way, privileges, or easements, if any appertaining], and if the
land to be dealt with contains all thai is included in an existing grant or certificate
of title, refer thereto for description of parcels and diagram; otherwise set forth
the boundaries in chains, links, or feet, and refer to plan thereof on margin of or
annexl!d to the mortgage, or deposited in the Registry Office), which said piece of
land is (or is part of) the (country section, or town allotment) marked ,
delineated in the public map of the said (county, or township), deposited in the
office of the Surveyor-General, which was originally granted the day of
, under the hand and seal of Governor of the said Colony
(or formerly Governor of the Colony of New South Wales, in which
Colony the said land was then situated) to C.D.
In consideration of the sum of $ , this day lent to me by E.F., of
(here insert description), the receipt of which sum I hereby acknowledge, do hereby
covenant with the said E.F., that I will pay to him, the said E.F., the above sum of
$ on the day of . Secondly, that I will pay
interest on the said sum at the rate of $ by the $100 in the year, by
equal payments on the day of , and on the
day of , in every year. Thirdly (here set forth special covenants, if any
are intended, and state what covenants declared by the Real Property Act of 1861,
to be implied in mortgages are intended to be barred or modified, and if so in what
malIner). And for the better securing to the said E.F. the repayment in manner
aforesaid of the said principal sum and interest, I hereby mortgage to the said E.F.
all my estate and interest in the said land above described.
In witness whereof I have hereto signed my name this day of
A.B., Mortgagor.
Signed by the above-named A.B., as mortgagor, this day of
in presence of G.H.
[ss. 56, 59, 3]

G
BILL OF ENCUMBRANCE FOR SECURING A SUM OF MONEY
I, A.B., being registered as proprietor of an estate (here state nature of the estate
or interest) subject, however, to such encumbrances, liens, and interests as are notified
by memoranda endorsed hereon, in that piece of land situated in (the county,
township) of ,containing (here state area), be the same a little more or
less (exclusive of roads intersecting the same, if any [here also state rights of way,
privileges, or ea:,ements, if any appertaining], and if the land to be dealt with contains
all that is included in an existing grant or certificate of title, refer thereto for
description of parcels and diagram; otherwise set forth the boundaries in chains,
links, or feet, and refer to plan thereof on margin of or annexed to the bill of
encumbrance, or deposited in the Registry Office), which said piece of land is (or is
part of) the (country section, or town allotment) marked delineated
in the public map of the said (county or township) deposited in the office of the
Surveyor-General, which was originally granted the day of ,
under the hand and seal of , Governor of the said Colony, (or
, formerly Governor of the Colony of New South Wales, in which
Colony the said lana was then situated) to C.D. of the said Colony.
And desiring to render the said land available for the purpose of securing to and
for the benefit of C.D., the (sum of money, annuity, or rent charge) hereinafter
mentioned, do hereby encumber the said land for the benefit of the said C.D. with
the (sum, annuity, or rent charge) of $ , to be raised and paid at the
times and in the manner following, that is to say-(here state the times appointed
for the payment of the sum, annuity, or rent charge intended to be secured, the
interest, if any, and the events on which such sum, annuity, or rent charge sJwll
become and cease to be payable, also any special covenants or powers, and any
modification of the powers or remedies given to an encumbrance by the Real
Property Act of 1861). And subject as aforesaid the said C.D. shall be entitled to all
powers and remedies given to an encumbrance by ,the Real Property Act of 1861.
In witness whereof I have hereunto signed my name this day of
in the presence of E.F.
Semble, the word "encumbrance" in the fifth last line and in the third last line
should read "encumbrancee".
REAL PROPERTY ACTS, 1861 TO 1963 Sells. F-K 733
[so 65]
H
TRANSFER OF MORTGAGE, LEASE, OR ENCUMBRANCE, TO BE ENDORSED ON ORIGINAL
MORTGAGE, BILL OF ENCUMBRANCE, OR LEASE
I, the within-mentioned C.D., in consideration of $ , this day paid to
me by X.Y., of , the receipt of which sum I do hereby acknowledge,
hereby transfer to him the estate or interest in respect to which I am registered
proprietor, as set forth and described in the within-written security, together with
all my rights, powers, estate, and interest therein.
In witness whereof I have hereunto subscribed my name this day of
C.D.
Signed by the above-mentioned C.D., in the presence of E.F., the
day of
Accepted as above X.Y., transferee,
In the presence of G.H.
[ss. 77, 80]

I
NOMINATION OF TRUSTEES
I, A.B., being registered as the proprietor of an estate (here state flLlture of
the estate or interest) subject, however, to such encumbrances, liens, and interests
as are notified by memoranda endorsed hereon, in that piece of land situated in the
(county or township) of (here state area) be the same a little more
or less, exclusive of roads intersecting the same, if any (here also state rights of way,
privileges, or easements, if any, intended to be conveyed in trust, and if the land to be
dealt with contains all that is included in an existing grant or certificate; refer thereto
for description of parcels and diagram otherwise set forth, the boundaries in chains,
links, or feet, and refer to plan delineated in margin, or annexed to instrument, or
deposited in Registry Office), which said piece of land is (or is part of the country
section or town allotment) marked deposited in the office of the
Surveyor-General, which was originally granted the day of
under the hand and seal of , Governor of the said Colony (or
formerly Governor of the Colony of New South Wales, in which
Colony the said land was then situated) of the said Colony, to C.D., do hereby
transfer all my estate or interest in the said land above described to C.D., of
, E.F., of , and G.H., of as trustees of the
same, under the provisions of the Real Property Act of 1861.
In witness whereof I have hereunto signed my name, this day of
, in the presence of
A.B.
Accepted-C.D., E.F., G.H., in the presence of
Schedule of Trusts
It is agreed that the above described land shall be held by the above-named
trustees upon the trllsts following that is to say-
Semble, the words "of the said Colony" in the seventh line from the end should
follow "to C.D."
[so 98]
K
CAVEAT FORBIDDING REGISTRATION OF DEALING WITH ESTATE OR INTEREST
To the Registrar-General of Queensland.
Take notice, that I , claiming estate or interest (here state the
nature of the estate or interest claimed, and the grounds on which such claim is
founded) in (here describe land) forbid the registration of any memorandum of
sale, or other instrument affecting the said land, save and except (here describe any
instrument the registration of which is by the caveat not forbidden), until this
caveat be by me withdrawn or by order of the Supreme Court, or some judge thereof,

removed or until days shall have elapsed after notice of such intended
registration shall have been delivered to me, or left at or forwarded through the post to
my address in the Colony as under written. Dated this (here insert tUlte uf caveat)
day of , 18
A.B.
As amended by Act of 1952, 1 Eliz. 2 No. 43, s. 38 (a).
[So 104]
L
POWER-oF-ArrORNEY
I, A.B., being registered as proprietor of an estate (here state nature of
the estate or interest, whether in fee simple or life estate, or of a greater or
less description than a life estate) subject, however, to such encumbrances,
liens, and interests as are notified by memoranda endorsed hereon, in (here
refer to schedule for description and content of the several parcels of /ond
intended to be affected, which schedule must contain reference to the existing
certificate of title or land grant of each parcel) do hereby appoint C.D., to
be my true and lawful attorney and on my behalf, to (here state the nature and
extent of the powers intended to be conferred, as whether to sell, lease, mortgage,
etc.) the lands in the said schedule described, subject nevertheless to the restrictions
and limitations declared and set forth at foot hereof, and to execute all such
instruments, and do all such acts, matters, and things as may be necessary for
carrying out the powers hereby given, and for the recovery of all rents and sums of
money that may become or are now due or owing to me in respect of the said lands,
and for the enforcement of all contracts, covenants, or conditions binding upon any
lessee or occupier of the said lands, or upon any other person in respect of the same,
and for the taking and maintaining possession of the said lands, and for protecting
the same from waste, damage, or trespass.
I declare the said lands (or my estate or interest in the said lands) shall not
be sold for less than $ (here insert conditions, if any to be imposed).
I declare the amount of money to be raised by mortgage on the security of the
said lands under this power shall not exceed $ , or be less than ,
and that the rate of interest at which the same is raised shall not exceed $
for every $100, by the year.
I declare the said land shall not be leased for any term of years exceeding
or at a less rent than $ (here insert conditions, such as
whether right of purchase may be given, and at what price, etc., etc.).
I declare that this power shall not be exercised after the expiration of
from the date hereof.
In witness whereof I have hereunto subscribed my name this
day of
Signed by the abovenamed A.B. this day of in the
presence of X.Y.
Schedule referred to.
[ss. 105, 3]
M
REGISTRATION ABSTRACT
I, A.B., being registered as proprietor of an estate (here state nature of the
estate or interest, whether in fee simple or life estate, or of a greater or less
description than a life estate) subject, however, to such encumbrances. liens. and
interests as are notified by memoranda endorsed hereon, in (here refer to schedule for
REAL PROPERTY ACTS, 1861 TO 1963 Sells. K-O 735
description and content of the several parcels of land intended to be dealt with,
which schedule must contain reference to the existing grants or certificates of title
of the said parcels of land) requ~st that a registration abstract o~ my title. to the
said lands may be granted, enabhng me ,to sell, lease, or otherwise deal WIth the
same, at places without the limits of the Colony.
(Signed) A.B.
To the Registrar-General.
Signed by the above-named A.B., this day of , in the
presence of X.Y.
I, , Registrar-General of the Colony of Queensland, do hereby
certify that the above particulars relating to the above-<lescribed land, and to the
estate and interest therein of E.B., whose signature is above subscribed, are correct
as appears by entries recorded in the register book of the said Colony, Vol.
Fol. Pursuant therefore to the above application, and by virtue of the
powers in me vested by Act of the Legislature of the said Colony, intituled "The
Real Property Act of 1861," this registration abstract is issued for the purpose of
enabling the said A.B. to deal with the said lands at places without the limits of
the said Colony.
This abstract shall continue in force from the date thereof to the
day of , unless sooner delivered up.
In witness whereof I have hereunto signed my name and affixed my seal this
day of
Registrar-General.
Signed, sealed, and delivered the day of in the presence
of X.Y.
Schedule referred to.
Semble, "E.B." should read "A.B.".
[so 108]
N
REvOCATION ORDER
I, A.B., of , being seised of an estate (here state the nature of the
estate, whether in fee simple or ot a less description), all that piece of land (here
describe land, referring to the existing grant, certificate, or other instrument of title),
hereby revoke the power of mortgaging (or selling) the said land, given by me to
by a power-of-attorney, dated the day of
In witness whereof I have hereunto subscribed my name this day of
A.B., of
I, M.~., Registr!lr-General! hereby certify that the above-named proprietor has
executed this revocatlon order In manner above appearing, and that the particulars
thereof are entered in the register book.
(Signed) , Registrar-General.
Semble, the word "in" should precede "all that piece of land".
o
Repealed by Act of 1952, 1 Eliz. 2 No. 43, s. 38 (b).
REAL PROPERTY Vol. 14
[so 116]
P
CERTIFICATE OF REGISTRAR-GENERAL, JUSTICE OF THE PEACE, ETC., TAKING
DECLARATION OF ATTESTING WITNESS
Appeared before me at , the day of ,
C.D., of attesting witness to this instrument, and acknowledged his
signature to the same; and did further declare that A.B., the party executing the
same, was personally known to him, the said C.D., and that the signature of the said
instrument is in the handwriting of the said A.B.
(Signed) Registrar-General or J.P.
[so 116]
Q
CERTIFICATE OF REGISTRAR-GENERAL OR JUSTICE OF THE PEACE BEFORE WHOM
INSTRUMENT MAY HAVE BEEN EXECUTED BY THE PARTIES THERETO
Appeared before me at , the day of , A.B.,
of the party executing the within instrument, and did freely and
voluntarily sign the same.
(Signed) Registrar-General or J.P.
R
[This Schedule which prescribed fees payable for the performance of the several
acts, matters and thing, therein specified has been superseded. See Order in Council
made under present section 140 of the Act, published Gazette 12 February 1966,
p. 1147.]

Real Property - Real Property Acts, 1861 To 1963 PDF

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633

Real Property Act of 1861, 25 Vic. No. 14

An Act to simplify the Laws relating to the Transfer and Encumbrance

3. Interpretation of certain terms. In the construction and for the purposes

"Mortgagor" shall mean the borrower of money on the security of

4. Functions of the Registrar-General and his department. The depart-

5. Appointment of Registrar-General. Upon the death resignation or

6. Oaths of office. The oath following shall be taken before a Judge

7. Certificates and documents purporting to be signed and sealed in a

8. Seal of office. The Registrar-General shall have and use a seal of

9. Registrar-General with sanction of Governor to issue forms of

11. Powers of Registrar. The Registrar-General may exercise the

(2) To summon and examine witnesses. He may summon any

Provided that every such delegation shall be revocable

12. Appointment of Master of Titles. It shall be lawful for the Governor

13. Master of Titles shall be a Barrister-at-Law or an Attorney of the

14. Opinion of Supreme Court may be obtained. It shall be lawful for

15A. Words of limitation. (l) Where, on or after the passing of "The

(c) Any other equitable estate or interest in any land, whether or

By the father if he shall be living or if the father shall be dead

17. Applicant to deposit instruments of title and abstract if required. Every

18. When applicant proprietor is original grantee and no transactions have

19. Application to be advertised when title is complete. If it shall appear

newspapers published in this State, and where, in the opinion of the

20. Applications to be advertised when title not complete. (1) If it shaii

Registrar-General to bring such land under the provIsIOns of this Act

21. Notice of application may be given by personal service or through the

22. Notice of application to be published. Lands brought under the

23. Parties interested may enter caveat. Schedule B. It shall be lawful

24. If caveat be received within time limited proceedings stayed. The

27. Applicant may summon Registrar-General to show cause if dis-

28. Case may be argued by counsel. Expense to be borne by applicant.

30. Instruments of title if they include other property to be returned

be so registered so soon as a memorial thereof shall have been entered in

was held to be obliged to register a mortgage containing a guarantee by a third

36. Remainderman may be registered as such. Name of remainderman to

37. Remainderman registered as such prohibited from dealing with estate

38. Certificate of title to be issued to remainderman as soon as his estate

39. Reversioner or remainderman not to transfer land until brought under

40. Persons registered as joint proprietors to be joint tenants. Tenants in

41. Percentage in the dollar to be levied for assurance of title. Schedule R.

43. Instruments not effectual until entry in registry book. No instrument

knowledge that the mortgagor is contemplating a fraud and no inquiry is made

44. Estate of registered proprietor paramount. Notwithstanding the

By fraud in this section is meant actual fraud, i.e., dishonesty or moral

45. Memorial to be recorded on duplicate grant or other instrument.

46. Surrendered deeds and instruments dated prior to existing certificate

47. Reve,rsioner's right preserved. The bringing of land under the

49. If estate in fee-simple be transferred certificate of title to be delivered

50. Fresh certificate to be issued to purchaser. A certificate for the

5]. Easements and incorporeal rights to be registered. (1) Whenever

An easement should also be entered on the certificate of titles to the servient

For an example of the construction of an express grant of a right of way and

53. Right of purchase may be granted or covenant stipulated. In any

54. Lease may be surrendered by endorsement by lessee with concurrence

55. Proceedings when lessee is insolvent. Whenever any lease shall be

56. Lands under this Act how mortgaged or encumbered. Schedule F.

Priority of mortgages and encumbrances. and every such bill of

A registered proprietor is not prevented from glvmg a second mortgage by

57. Remedy when mortgagor or encumbrancer is in default. Power to sell.

Appropriation of proceeds. and the purchase money to arise from the

58. Registrar-General to give effect to sale by mortgagee or encumbrancee.

59. Payments by instalments. Schedules F and G. The payment of any sum