No. 6399. - Australasian Legal Information Institute · 1958. Transfer Land. No. 6399 439 of (b) in particular and without affecting the generality of the foregoing paragraph, such

1958. Transfer of Land. No. 6399 437

No. 6399.

TRANSFER OF LAND ACT 1958.

An Act to consolidate the Law relating to the

Simplification of the Title to and the Dealing with

Estates and Interests in Land.

[30th September, 1958.]

BE it enacted by the Queen's Most Excellent Majesty by and with the advice and consent of the Legislative Council and

the Legislative Assembly of Victoria in this present Parliament assembled and by the authority of the same as follows (that is to say):—

1. This Act may be cited as the Transfer of Land Act 1958, and shall come into operation on a day to be fixed by proclamation of the Governor in Council published in the Government Gazette, and is divided into Parts and Divisions as follows:—

Part I.—The Office of Titles ss. 5-7.

438 1958. Transfer of Land. No. 6399

Repeal. First Schedule.

Part II.—Bringing Land under the Act ss. 8-26.

Division 1.—On Application ss. 8-16. Division 2.—By Direction ss. 17-26.

Part III.—The Register Book ss. 27-44. Division 1.—Transfers ss. 45-48. Division 2.—Transmissions ss. 49-51. Division 3.—Sales by Sheriff, &c. s. 52 Division 4.—Acquisition by Statute, Order of

Court, &c. ss. 53-59. Division 5.—Acquisition by Possession ss.

60-62. Division 6.—Acquisition of Cul-de-sacs ss.

63-65. Division 7.—Leases ss. 66-71. Division 8.—Easements ss. 72-73. Division 9.—Mortgages and Annuities ss.

74-87. Division 10.—Restrictive Covenants, Charges,

&c. s. 88.

Part IV. — Registration of Dealings with Land ss. 4 5 -88.

Part V. — Incidental Provisions ss. 89-106.

Part VI.— General ss. 107-120.

-Caveats against Dealings ss.

Certificates and Stay

Division 1. 89-91.

Division 2.—Search Orders ss. 92-93.

Division 3.—Powers of Attorney s. 94. Division 4.—Surveys and Subdivisions ss.

95-98. Division 5.—Amendment of the Register

Book, &c. ss. 99-103. Division 6.—General Powers of Registrar ss.

104-106.

Division 1.—Financial ss. 107-111. Division 2.—Miscellaneous ss. 112-120.

2. (1) The Acts mentioned in the First Schedule to the extent thereby expressed to be repealed are hereby repealed accordingly.

(2) Except as in this Act expressly or by necessary implication provided—

(a) all persons things and circumstances appointed or created by or under either of the repealed Acts or existing or continuing under either of such Acts immediately before the commencement of this Act, shall under and subject to this Act continue to have the same status operation and effect as they respectively would have had if such Acts had not been so repealed;


(b) in particular and without affecting the generality of the foregoing paragraph, such repeal shall not disturb the continuity of status operation or effect of any proclamation order regulation fund appointment grant instrument declaration statement application notice certificate memorial memorandum entry caveat document dealing plan seal title estate interest claim right liability power matter or thing made done effected given entered lodged deposited endorsed prepared existing pending accrued incurred or acquired by or under either of such Acts before the commencement of this Act.

3. (1) Except so far as is expressly enacted to the contrary no Act or rule of law, so far as inconsistent with this Act, shall apply or be deemed to apply to land under the operation of this No. 5842 s. 3. Act; but save as aforesaid any Act or rule of law relating to land, unless otherwise expressly or by necessary implication provided by this or any other Act, shall apply to land under the operation of this Act whether expressed so to apply or not.

(2) Save as otherwise expressly provided no instrument Properly

affecting land of which any person is registered as proprietor PanLnotto under this Act or any memorandum or memorial of any such u n

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instrument shall be registered under Part I. of the Property Law A«-Act 1958, and such Part shall not apply to any land which is under the operation of this Act.

Application of other laws &c.

(3) This Act applies to and in relation to the Crown, whether in right of the State or of the Commonwealth.

4. (1) In this Act unless inconsistent with the context or subject-matter—

" Annuity " means a sum of money payable periodically and charged on land under the operation of this Act by an instrument of charge.

" Assurance Fund " means the Assurance Fund under this Act.

" Bankruptcy" includes liquidation by arrangement and any other act or proceeding in law having results similar to those of bankruptcy; and " bankrupt" has a corresponding interpretation; and " trustee" in relation to bankruptcy includes the official receiver or a trustee or assignee in bankruptcy.

" Court" means the Supreme Court of the State of Victoria or a Judge thereof.

" Crown grant" means the grant by Her Majesty of land whether in fee or for years.

" Division " means Division of a Part of this Act.

Application to Crown.

Interpretation. No. 5842 s. 4.

' Annuity."

" Assurance Fund."

" Bankruptcy."

" Bankrupt."

" Trustee " in bankruptcy.

' Court."

" Crown grant."

1 Division."


" Encumbrance."

' Grantor.'

1 Instrument."

" Land."

" Licensed surveyor."

' Part."

' Prescribed."

' Proprietor."

" Registered proprietor."

" Registrar.'

" Regulations."

" Schedule."

" Sheriff."

' Survey.'

" Transmission.'

Administrators, assigns &c.

" Encumbrance " in respect of any land includes any estate interest mortgage charge right claim or demand which is or may be had made or set up in to upon or in respect of the land.

" Grantor " in relation to an annuity means the proprietor of land charged with the payment of an annuity.

" Instrument" includes every document registered or capable of registration under this Aot or in respect of which any memorandum or entry is by this Act directed required or permitted to be made in the Register Book or on any registered instrument.

" Land " includes any estate or interest in land. " Licensed surveyor " has the same meaning as in the Land

Surveyors Act 1958. " Part " means Part of this Act. " Prescribed " means prescribed by or under this Act. " Proprietor" means any person seised or possessed of

or entitled to any estate or interest in land and includes any person who is the donee of a power to appoint or dispose thereof.

" Registered proprietor " means any person appearing by the Register Book or by any registered instrument to be the proprietor of any estate or interest in land.

" Registrar " means the Registrar of Titles under this Act and includes any Assistant Registrar of Titles.

" Regulations " means regulations under this Act. " Schedule " means Schedule to this Act. " Sheriff " includes the sheriff and any deputy sheriff or

person appointed to execute any writ of fieri facias under any Act of the Victorian Parliament or of the Parliament of the Commonwealth of Australia.

" Survey " has the same meaning as in the Land Surveyors Act 1958.

" Transmission" means the acquiring of any estate or interest in land consequent on the death will intestacy or bankruptcy of a registered proprietor.

(2) In and for the purposes of this Act unless inconsistent with the context or subject-matter any description of or reference to any person as proprietor transferor transferee mortgagor mortgagee annuitant grantor caveator lessor or lessee or as seised of or having or taking any estate or interest in land shall extend to his executors administrators successors transferees and assigns to the intent that every right power authority liability or obligation vested in or imposed on any such person by or under this Act shall devolve upon any such executor administrator successor transferee or assign.


PART I .—THE OFFICE OF TITLES.

5. (1) Subject to the Public Service Act 1958 a Registrar of Registrar of Titles may be appointed to have the charge and control of the ™e5842s s Office of Titles and to carry out the duties and functions vested by or under this or any other Act in the Registrar of Titles.

(2) Subject to the Public Service Act 1958 there may be Assistant appointed such Assistant Registrars of Titles and other officers aS anc? officers, are required for the purposes of this Act.

(3) Anything by this Act appointed or authorized or required to be done or signed or initialled by the Registrar may be done or signed or initialled by any such Assistant Registrar and shall be as valid and effectual as if done or signed or initialled by the Registrar himself.

(4) Any reference to the Commissioner of Titles in any Act Order in Council regulation instrument or document shall be deemed and taken to refer to the Registrar of Titles unless the context otherwise requires.

6. (1) All courts judges and persons acting judicially shall certain take judicial notice of the signature of the Registrar and of any bila^Sm Assistant Registrar of Titles. ^ 8 4 2 s.e

(2) The Registrar shall cause to be kept a seal having inscribed seaiof thereon the words " Office of Titles Victoria "; and all certificates °ffice-of title instruments certified copies and other documents purporting to be sealed with such seal and to be signed or initialled by the Registrar or by an Assistant Registrar shall be admissible as evidence without further proof.

(3) Without affecting the generality of the foregoing if the seal of the Office of Titles together with the signature or initials of the officer (whether or not the Registrar or an Assistant Registrar) attaching the seal appear on any entry or memorandum entered in the Register Book or on any registered instrument or duplicate such entry or memorandum shall be received in all courts as concxusive evidence that the relevant instrument has been duly registered or that the entry or memorandum has been duly entered, and all courts judges and persons acting judicially shall take judicial notice of such seal and signature or initials and shall presume that such seal and signature or initials were properly attached.

7. (1) The Governor in Council may appoint persons to be 0\ps '0°{,ment

sworn valuators (who shall not as such be officers of the public valuators, service) and may at pleasure annul the appointment of any such N°-5842S.7. person.


(2) Every such person shall within fourteen days from his appointment and before making any valuation under this Act take the following oath before the Court:—

I A.B. swear by Almighty God that in making any valuation I shall act faithfully and honestly and to the best of my skill and ability.

PART II.—BRINGING LAND UNDER THE ACT.

DIVISION 1. ON APPLICATION.

Land 8 . ( 1 ) All unalienated lands of the Crown shall, when gfantelfby alienated in fee or by way of perpetual lease or (except in the case S$e'cttobc °f" a settlement interim lease under the Soldier Settlement Act this Act. 1958) for years, be under the operation of this Act . No. 5842 s. 8. J r

( 2 ) T h e Crown grants of such land shall be in duplicate and shall be delivered to the Registrar.

Bringing 9 . ( 1 ) Land already alienated in fee by the Crown and not "and" c under the operation of this Act may be brought under the before 2nd operation of this Act on the application of any of the following H o ^ f f " P e r s o n s i n writing in the form or to the effect of the Second Second Schedule.

Schedule :— (a) The person claiming to be the owner of the fee simple

either at law or in equity; (b) Persons who collectively claim to be the owners of

the fee simple either at law or in equity; (c) Persons who have the power of appointing or disposing

of the fee simple;

(d) Trustees for sale of the fee simple, but where any previous consent to their selling is requisite the application shall first be consented to by the persons required to give such consent;

(e) The guardian of any infant, the committee of any lunatic or, on behalf of any patient or infirm person, the Public Trustee if the application contains a direction that the certificate of title is to issue in the name of such infant lunatic patient or infirm person;

(/) A tenant for life within the meaning of the Settled Land Act 1958, if the application contains a direction that the certificate of title is to issue in the names of the trustees of the settlement within the meaning of that Act and the trustees consent to the application:


Provided that a mortgagor shall not be entitled to make any such application unless the mortgagee consents thereto, nor shall a mortgagee be entitled to make any such application except in the exercise of his power of sale and unless the certificate of title is directed to issue in the purchaser's name.

(2) (a) Land leased for a term of years of which at least Registration ten years are unexpired, or leased for years determinable with a of Ieaseholds-life or lives, may be brought under the operation of this Act as nearly as may be in the manner and subject to the provisions of this Act relating to freehold land and the provisions of this Act shall with such adaptations as are necessary extend and apply accordingly.

(b) Every certificate of title to leasehold land shall be subject to the rights and powers of the lessor or other the proprietor of the reversion immediately expectant on the term.

10. (1 ) The Registrar may subject to this Act bring the land HOW under the operation of this Act by registering a certificate of title dealt with,

thereto. NO.5842S.IO.

(2) In respect of any application the Registrar may accept Evidence of inter alia as evidence recitals statements and descriptions of the "tle" facts matters and parties in deeds documents Acts of Parliament or statutory declarations not less than twenty years old, office copies of orders of the Court and memorials or registration under any Act concerning the registration of instruments relating to or affecting land.

(3) Where application is made to bring land under this As to occupied Act by a description different from that in the muniments of title lhanthatr

the Registrar may grant the application as to the land in the [j,tie?ded in

occupation of the applicant if the discrepancy appears to be due to the inaccuracy of any survey or plan or description on the alienation of the land by the Crown or on any subsequent dealing therewith or to any discrepancy between the actual measurements or bearings at any time made or marked on the ground and those represented or mentioned in any plan or description. (o)

(4) Where any land has been brought under this Act subject As to land to any mortgage and the purchaser at a sale by the mortgagee or Ar«2ublie*der

any person claiming under the purchaser applies for a certificate So'Sgags"8* of title to the land after such sale, the mortgage shall be deemed to have conferred upon the purchaser under the power of sale contained in the mortgage the right to be registered as proprietor of the same estate in the land as that for which the mortgagor was registered, and the only inquiry into title shall be as to the

(a) See s. 102.


validity of the sale and of any subsequent dealings, and no caveat which might have been lodged against the original application shall be lodged against the application of the purchaser or any person claiming under him. ( a )

Notices. 1 1 . (1 ) The Registrar shall cause notice of the application No.5842s.il. to be given—

{a) by publication at least once in a newspaper circulating in the city of Melbourne or in the district where the land is situate; and

(b) personally or by post t o— (i) any persons stated in the application to be

occupiers of the land or to be occupiers or owners of land contiguous thereto; and

(ii) such other persons (if any) as the Registrar thinks fit.

(2 ) Where the application is based on a claim by possession the applicant shall also post on the land or at such place as the Registrar directs and keep so posted for not less than twenty-one days prior to the granting of the application a notice in or to the effect of the Third Schedule. Third

Schedule.

(3) Every notice under this section shall specify a time (being not less than fourteen days) after the expiration of which the Registrar may, unless a caveat is lodged forbidding such action, bring the land under the operation of this Act.

Caveats by persons interested. No. 5842 s. 12. Fourth Schedule.

12. (1 ) Any person claiming any estate or interest in the land the subject of any such application may, before the registration of the certificate, lodge a caveat with the Registrar in the form or to the effect of the Fourth Schedule forbidding the bringing of such land under this Act.

(2 ) The Registrar upon lodgment of any such caveat shall notify the applicant thereof and shall not proceed with the application until the caveat has been withdrawn or has lapsed as hereinafter provided or until a judgment or order in the matter has been obtained from the Court.

Application for removal.

(3 ) The applicant may if he thinks fit summon the caveator to attend before the Court to show cause why any such caveat should not be removed; and the Court may make such order in the matter either ex parte or otherwise and as to costs as the Court thinks fit.

(a) See also s. 80.

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(4) After the expiration of thirty days from the lodgment Caveat to

thereof any such caveat shall be deemed to have lapsed unless the proceedings

caveator has within that time commenced proceedings in a court taken' of competent jurisdiction to establish his title to the estate or interest specified in the caveat and has given written notice thereof to the Registrar, or has obtained and served on the Registrar an injunction or order of the Court restraining him from bringing the land under this Act.

(5) A caveat shall not be renewed by or on behalf of the No renewal, same person in respect of the same estate or interest.

13. (1) An applicant may withdraw his application at any withdrawal time prior to the registration of the certificate, whereupon the °o brmg?andn

Registrar shall return to the applicant or to the person appearing to be entitled thereto the muniments of title lodged in support of the application.

under Act. No. 5842 s. 13.

(2) If a caveator has been put to expense without sufficient cause by reason of any application which is so withdrawn he shall be entitled to receive from the applicant such compensation as the Court deems just and orders.

14. The Registrar shall keep a book in which shall be kept Record book a record of all deeds and documents produced and used in support supd

P0ocrtingnts

of each application to bring land under this Act. title. No. 5842 s. 14.

15. (1) If documents lodged in support of the application AS to relate to any property other than the land included in the certificate lodged in

of title, the Registrar shall return them to the applicant or to the IppKon. person appearing to be entitled thereto; otherwise the Registrar No. 5842 s. is. shall stamp each of them as cancelled and retain them in the office, except that where any subsisting lease or mortgage has been lodged the Registrar shall return it to the person who lodged it upon lodgment with the Registrar of a certified copy thereof.

(2) No person shall be entitled to inspect such documents or to have any copy thereof or extract therefrom without the . written order of the applicant or of some person claiming through or under him or upon the order of the Court or of the Registrar.

(3) No action shall be brought upon any covenant or agreement for the production of any documents so retained or upon any agreement to give or enter into a covenant for the production thereof, and if any such action is commenced it shall be a sufficient answer thereto that such documents are retained under this Act; but every person entitled to production under any such covenant or agreement shall be entitled to obtain from the Registrar the order hereinbefore mentioned.


In whose name certificate to issue. No. 5842 s. 16. Fifth Schedule.

16. (1) Certificates of title under this Division shall be ordinary certificates of title in the form or to the effect of Part I. of the Fifth Schedule and shall be in the name of the applicant or of such other person as is directed in that behalf.

(2) If the applicant or such other person dies before the registration of the certificate, the certificate shall be registered in the name of such applicant or person (as the case may be) and the land shall pass in like manner as if the certificate had been registered before the death.

Direction to bring land under Act. No. 5842 s. 17.

Procedure. No. 5842 s. 18.

Notice of issue of certificate of title. No. 5842 s. 19.

DIVISION 2 . BY DIRECTION.

17. The Registrar shall with all convenient speed bring under the operation of this Act all land which has been granted by the Crown for an estate in fee simple and is not under the operation of this Act by registering pursuant to this Division an ordinary certificate of title or a limited certificate of title, but the Registrar may for any cause which he deems sufficient delay the registration of the certificate of title pursuant to this Division.

18. Subject to this Division the Registrar shall as far as possible proceed as if an application to bring the land under this Act had been made by a person competent to make such an application; and the provisions of Division one of this Part shall with such adaptations as are necessary apply to such proceedings.

19. The Registrar shall by post give notice of the registration of a certificate of title under this Division to every person having any estate or interest evidenced by such certificate of title or by any memorandum or entry thereon and shall give such other notices as he thinks fit.

Registration of ordinary certificate of title. No. 5842 s. 20.

Fifth Schedule.

Limited certificate of title. Fifth Schedule.

20. (1) If in respect of any land the Registrar is satisfied that—

(a) a certificate of title would have been registered if application to bring that land under the operation of this Act had been made by a person competent to make the application; and

(b) no person is in possession of such land adversely to the title of the person in whose name it is proposed to register the certificate of title—

the certificate of title to be registered in respect of such land pursuant to this Division shall be an ordinary certificate of title in the form or to the effect of Part I. of the Fifth Schedule.

(2) In any other case the certificate of title to be registered under this Division shall be a limited certificate of title in the form in Part II. of the Fifth Schedule or to the like effect, that is to say a certificate of title limited as to description of land or as to title or as to both description of land and title.


21. (1) Before a limited certificate of title is registered the Registrar shall file a minute signed by him indicating any defect in the title or any estate or interest or probable or possible estate or interest of any person in the land and the acts or matters that ought to be done or proved and the requisitions (including requisitions for the surrender of documents) that ought to be complied with in order to justify the registration of an ordinary certificate of title.

(2) The Registrar shall send a copy of such minute by post to every person who appears to him to be the proprietor of any estate or interest in the land.

(3) The Registrar may from time to time revise and amend the minutes so as to indicate which of the defects estates or interests referred to have been removed or resolved and which of the acts or matters or requisitions referred to have been done or proved or complied with.

(4) The Registrar's minutes shall not form part of the Register Book.

(5) Any person shall be entitled on payment of the prescribed fee to inspect the Registrar's minutes relating to any land.

Registrar's minutes of defects in tides. No. 5842 s. 21.

Revision of minutes.

Not part of Register Book.

Inspection of minutes.

22. (1) The Registrar, when satisfied that the acts matters wheniimitsd and requisitions set out in the Registrar's minutes relating to any oTtuienfade land have been performed proved or complied with, shall call in o'5842 s 22 and cancel the limited certificate of title and in lieu thereof register an ordinary certificate of title.

(2) If at any time it appears to the Registrar that by reason of lapse of time or for any other reason performance or proof of or compliance with the acts matters and requisitions set out in the Registrar's minutes has become unnecessary, he shall call in and cancel the limited certificate of title and register an ordinary certificate of title in lieu thereof.

(3) Where the certificate of title to any land is limited as to title but not as to description of land the Registrar shall upon the expiration of thirty years from the date of the first limited certificate of title for that land call in and cancel the certificate and register an ordinary certificate for the land comprised therein, but shall first inquire whether any person is in possession of the land adversely to the title of the registered proprietor named therein and, if he has reason to believe that any person is so in possession, may refrain from or delay the calling in and cancellation of the certificate.

(4) Except as otherwise provided in this Division, no new certificate of title other than a limited certificate of title shall be registered in substitution for a limited certificate of title to the whole or any part of the land comprised therein, unless in the case of a certificate for a part of the land the matters in respect of which the certificate of title is limited do not affect such part.


Application of provisions of Act to limited certificate of title. No. 5842 s. 23.

Applications by persons claiming title adverse to that of proprietor under a limited certificate.

No. 5842 s. 24.

Dealings with interests mentioned in Registrar's minutes. No. 5842 s. 25.

23. (1) Except as otherwise provided in this Division all the provisions of this Act relating to certificates of title and to land comprised in any certificate of title, so far as the circumstances of the case will admit, shall apply not only with respect to ordinary certificates of title but also with respect to limited certificates of title and to the land comprised therein and to the registration of instruments and other matters affecting limited certificates of title, save that the land comprised in a limited certificate of title shall be subject to such estates interests and defects in title as are indicated in the Registrar's minutes in all respects as if they were encumbrances notified on the certificate of title.(a)

(2) A limited certificate of title shall be evidence^ as to title in all respects as if it were an ordinary certificate of title, subject to—

(a) any defect in title or any estate or interest of any person the existence or probable or possible existence of which is indicated in the Registrar's minutes;

(b) the estate or interest (if any) of any person in actual occupation of and rightfully entitled to the land or any part thereof—

and the provisions of this Act shall with such adaptations as are necessary be read and construed and take effect accordingly.

24. Any person claiming an estate of freehold in the whole or any part of the land comprised in any limited certificate of title—

(a) by virtue of possession adverse to the title of the proprietor in whose name such certificate of title was registered; or

(b) under any estate or interest the existence or probable or possible existence of which is indicated in the Registrar's minutes—

may apply under Division one of this Part to have the land in which he claims the estate of freehold brought under this Act as if the limited certificate of title had not been registered and the Registrar if satisfied as to the grounds of the applicant's claim shall call in and cancel or correct the limited certificate of title and register an ordinary certificate of title in the name of the applicant.

25. Where by the Registrar's minutes the existence or probable or possible existence of any registrable estate or interest in land is indicated, no dealing with that estate or interest shall be capable of being registered until that estate or interest is registered.

(a) See s. 42. (b) See s. 41.


26. Any instrument which affects any land brought under this Registration Act in pursuance of this Division and which might have been affecting land registered under Part I. of the Property Law Act 1958 if this Act ™>*cttothis had not been passed may, in the discretion of the Registrar, if No. 5842 s. 26. such instrument bears date prior to or within six months after the date of the first certificate of title for such land, be registered under this Act notwithstanding that it is not an instrument in or to the effect of any appropriate form prescribed by or under this Act and when registered shall have effect as if it were such an instrument.

PART III.—THE REGISTER BOOK.

27. Subject to this Act the Registrar shall keep a book called The Register the " Register Book " and shall register therein Crown grants and j ^ 0 ^ s 27 certificates of title and register o r notify therein such other instruments as are required o r permit ted by this Ac t to b e registered notified o r entered therein.

Grants and Certificates.

28. (1) Certificates of title (which shall be in or to the Certificates effect of the appropr ia te form in the Fifth Schedule) and Crown pa

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nbe grants shall be in duplicate of which the original shall b e filed " J 1 " ^ ^ 8 : in the Register Book and the duplicate shall b e delivered to the person entitled thereto. schedule,

( 2 ) Whenever any conflict difference o r variat ion occurs between the contents of o r entries o n any original certificate of title o r Crown grant and the contents of o r entries on the duplicate the original certificate of title o r C r o w n grant shall prevail .

29. (1) Each Crown grant and certificate of title shall Registration consti tute a separate folium of the Register B o o k and the Regis t rar certificates, shall enter thereon in such m a n n e r as to preserve their priorities No. 5842 s. 29. a m e m o r a n d u m of all dealings and mat ters affecting the l and by this Ac t required or permit ted to b e registered notified or entered thereon.

(2) Save as otherwise expressly provided the registration of when a Crown grant or certificate of title shall take effect when the e cted"00

Registrar notifies thereon the volume and folium of the Register Book in which it is entered, and in the case of a Crown grant the registration shall be deemed to be an enrolment of record of the grant dating back to the date of the grant.

(3) On the surrender to or acquisition by the Crown of the Cancellation. fee simple or other the whole registered estate in any land the Registrar m a y cancel the registration of the relevant Crown grant or certificate of title in whole or as to pa r t accordingly.

No. 5842 s. 28. Fifth

VOL. VIII.—15


Minors, &c. No. 5842 s. 30.

Joint proprietors.

30. (1) If any certificate of title is issued to a minor or to a person under any other disability the Registrar shall state the age of such minor or the nature of the disability so far as known to him.

(2) Two or more persons who are registered as joint proprietors of land shall be deemed to be entitled thereto 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 may receive one certificate for the entirety or separate certificates for the undivided shares.

Lost grant or certificate &c. No. 5842 s. 31.

31 . (1) The Registrar, on application in that behalf and on proof to his satisfaction of the loss destruction or obliteration of a duplicate Crown grant or duplicate certificate of title, may cancel the original grant or certificate and issue a new certificate of title, but shall first give not less than fourteen days notice of his intention so to do in at least one newspaper published in the city of Melbourne or circulating in the neighbourhood of the land described in the Crown grant or certificate of title.

(2) If any original Crown grant or certificate of title is lost or destroyed or so obliterated as to become illegible the Registrar may cause another certificate of title to be prepared from such evidence as is available as to the contents of the original and to be endorsed with all such entries as were upon the original so far as they can be ascertained from the records of the office and inspection of the duplicate, and the Registrar shall make and sign a memorandum stating that the substituted certificate is to be used in place of the original and what has become of the original so far as known; and from the date of such memorandum the substituted certificate may be filed in the Register Book and used in place of the original.

Issue of new certificate of title. No. 58421. 32.

Power to issue new certificate of title.

Power to Registrar to require new certificate to be taken out.

32. (1) On the application of any registered proprietor or person entitled to be registered as proprietor of land under separate Crown grants or certificates of title, and on surrender of the duplicates thereof, the Registrar may issue a single certificate of title for the whole of such land or several certificates as to portions thereof in accordance with such application and thereupon shall cancel the grants or previous certificates.

(2) The Registrar may upon the production of a duplicate Crown grant or certificate of title issue a new certificate of title in the place of the existing grant or certificate which shall thereupon be cancelled.

(3) Whenever a Crown grant or certificate of title is partially cancelled or the condition of a duplicate certificate of title or Crown grant is such that the Registrar deems it inadvisable to re-issue it he may require a new certificate of title to be taken out.


Instruments.

33. (1) Subject to this section every instrument shall be instruments registered when a memorandum thereof has been entered in the registered.

Register Book upon the relevant Crown grant o r certificate of No. 5842 s. 33. title.

(2) Every transfer of a mortgage or charge and every transfer or mortgage of a lease shall be duly registered when a memorandum thereof has been entered on the mortgage charge or lease so transferred or mortgaged.

(3) A sub-lease shall be registered when a memorandum thereof has been endorsed on the lease.

34. (1) Save as otherwise expressly provided every instrument instruments lodged for registration shall be registered in the order in which p?iorftyto

and as from the time at which it is produced for that purpose, and £dSwof instruments purporting to affect the same estate or interest shall i°^|?J,fn.r

be entitled to priority as between themselves according to order NO. 5842 s. 34. of lodgment for registration and not according to the date of the instrument or any other factor. ( a )

(2) If two or more instruments signed by the same proprietor and purporting to affect the same estate or interest are at or about the same time lodged for registration, the Registrar shall register and endorse that instrument which is lodged by the person producing the duplicate Crown grant certificate of title mortgage charge or lease (as the case may be).

35. (1) Any instrument (other than a transfer) lodged for instruments registration may be in duplicate or, in the case of a lease, in a ffipSSfte. duplicate or triplicate. NO. 5842 s. 35.

(2) Upon registration the Registrar shall file the original in the Register Book and return any duplicate or triplicate to the persons entitled.

(3) Whenever registration of a lease is effected in triplicate the word " triplicate " shall be perforated through each copy and the words " lessor's par t" shall be perforated through one copy and " lessee's part" through the other copy so returned and the provisions of this Act relating to duplicate instruments shall apply to the copy perforated " lessee's part".

(4) The Registrar, on application in that behalf and On Lost duplicate proof to his satisfaction that a duplicate instrument has been instrument3-lost or destroyed, may, subject to such advertisement notice or indemnity as the Registrar requires, issue a certificate in place of the lost duplicate instrument and endorse on the original instrument a memorandum that such certificate has been issued; and thereafter such certificate shall be produced to the Registrar whenever production of the duplicate is required.

(a) See s. 93 (3), Closer Settlement Act 1938 s. 13 (1) (b) and Wire Netting Act 1958 s. 17, &c.


Statements to be contained in memoranda. No. 5842 s. 36.

Memorandum to be entered on duplicate.

36. (1) Every memorandum entered in the Register Book shall state the date of the lodgment of the instrument for registration and such other particulars as the Registrar directs.

(2) Whenever a memorandum of any instrument has been entered in the Register Book, the Registrar shall enter the like memorandum on the duplicate Crown grant certificate of title or instrument (if any) and shall endorse on every instrument registered a certificate that the memorandum was entered in the Register Book.

(3) If on the lodgment for registration of an instrument the Registrar dispenses with the production of any duplicate instrument then upon the registration of the instrument so lodged the Registrar shall notify in the Register Book that no entry of such memorandum has been made on such duplicate and such dealing shall thereupon be as valid and effectual as if such memorandum had been entered thereon, but the Registrar shall give not less than fourteen days notice of his intention to register such instrument in at least one newspaper published in the city of Melbourne or circulating in the neighbourhood of the land concerned.

As to entry of trusts in Register Book. No. 5842 s. 37.

37. The Registrar shall not enter in the Register Book notice of any trust whether express implied or constructive; but trusts may be declared by any document, and a duplicate or an attested copy thereof may be deposited with the Registrar for safe custody and reference; and the Registrar may protect in any way he deems advisable the rights of the persons for the time being beneficially interested thereunder or thereby required to give any consent; but the rights incident to any proprietorship or to any instrument registered under this Act shall not be in any manner affected by the deposit of such duplicate or copy nor shall any such duplicate or copy form part of the Register Book or be deemed to be registered.

Grants and certificates endorsed " no survivorship." No. 5842 s. 38.

38. (1) At the time of the registration of every grant in fee to two or more persons in joint tenancy for any public purpose the Registrar shall endorse thereon and on every subsequent certificate of title the words " no survivorship ".

(2) Upon the transfer of any land to two or more persons as point proprietors with the words " no survivorship " endorsed thereon the Registrar shall enter such words in the memorandum of such transfer and also upon any certificate of title issued to such joint proprietors pursuant to such transfer.

(3) Two or more joint proprietors of any land may by writing under their hands direct the Registrar to enter the words " no survivorship" upon the relevant Crown grant certificate of title or instrument.

1958. Transfer of Land. No. 453

(4) After the words " no survivorship " have been endorsed Deaitap or entered pursuant to this section it shall not be lawful for therew™1-any persons other than the registered proprietors to transfer or otherwise deal with the land without an order of the Court or of the Registrar.

(5) Before making any such order the Court or Registrar may cause notice of the intention so to do to be advertised once at least in one newspaper published in the city of Melbourne or circulating in the neighbourhood of the land, and in such notice shall appoint a time within which it shall be lawful for any person interested to show cause against such order being made.

(6) The Court or Registrar may (but, where any such notice has been given, only after the expiration of the time therein appointed) give the necessary order for the transfer of the land to any new proprietor or proprietors solely or jointly with or in the place of any existing proprietor or proprietors or otherwise give effect to the dealing or make such order in the matter as is just for the protection of any persons beneficially interested in the land or in the proceeds thereof, and on such order being deposited with or made by the Registrar he shall make such entries and perform such acts for giving effect thereto as are necessary.

39. (1) Upon production of a receipt of the Treasurer of Dealings Victoria for the full purchase money of any land sold by Her pe

r?0srtt0

ed

Majesty in fee together with any instrument dealing with such c^ fg r a n t

land signed by the purchaser the Registrar shall enter a N0.5s42s.39. memorandum of such instrument upon such receipt and thereupon every such instrument shall be held to be duly registered.

(2) Upon the registration of the Crown grant of the land the Registrar shall enter thereon a memorandum of every instrument entered on such receipt.

Effect of Registration.

40. (1) Subject to this Act no instrument until registered ^ t^ments. as in this Act provided shall be effectual to create or extinguish until or pass any estate or interest or encumbrance in on or over ^swa's' 40 any land under the operation of this Act, but upon registration the estate or interest or encumbrance shall be created or extinguished or pass in the manner and subject to the covenants and conditions specified in the instrument or by this Act prescribed or declared to be implied in instruments of a like nature.

(2) Every instrument when registered shall be of the same l™™11' efficacy as if under seal and shall be as valid and effectual registered to to all intents and purposes as a deed duly executed and efficacy as acknowledged or other the appropr ia te form of document . decd*

http://N0.5s42s.39


41. No Crown grant or certificate of title under this Act shall be impeached or defeasible by reason or on account of any informality or irregularity in any application or instrument or in any proceedings previous to the registration of the certificate; and every Crown grant or certificate of title registered under this Act shall be received in all courts as evidence of the particulars therein and of the entry thereof in the Register Book, and shall be conclusive evidence that the person named in such grant or certificate as the proprietor of or having any estate or interest in or power to appoint or dispose of the land therein described is seised or possessed of such estate or interest or has such power.

42. (1) Notwithstanding the existence in any other person of any estate or interest (whether derived by grant from Her Majesty or otherwise) which but for this Act might be held to be paramount or to have priority, the registered proprietor of land shall, except in case of fraud, hold such land subject to such encumbrances as are notified on the Crown grant or certificate of title but absolutely free from all other encumbrances whatsoever, except—

(a) the estate or interest of a proprietor claiming the same land under a prior registered Crown grant or certificate of title;

(b) as regards any portion of the land that by wrong description of parcels or boundaries is included in the grant certificate of title or instrument evidencing the title of such proprietor not being a purchaser for valuable consideration or deriving from or through such a purchaser.

(2) Notwithstanding anything in the foregoing the land which is included in any Crown grant certificate of title or registered instrument shall be subject to—

(a) the reservations exceptions conditions and powers (if any) contained in the Crown grant of the land;

(6) any rights subsisting under any adverse possession of the land;

(c) any public rights of way; {d) any easements howsoever acquired subsisting over or

upon or affecting the land; (e) the interest (but excluding any option to purchase)

of a tenant in possession of the land; (/) any unpaid land tax, and also any unpaid rates and

other charges which can be discovered from a certificate issued under section three hundred and eighty-seven of the Local Government Act 1958 section ninety-seven of the Sewerage Districts Act 1958 section three hundred and sixty-one of the

Certificate to be conclusive evidence of title. No. 5842 s. 41.

Estate of registered proprietor paramount except as to registered and certain other interests &c.

No. 5842 s. 42.


No. 5842 s. 43.

void for fraud. No. 5842 s. 44.

Water Act 1958 or any other enactment specified for the purposes of this paragraph by proclamation of the Governor in Council published in the Government Gazette—

notwithstanding the same respectively are not specially notified as encumbrances on such grant certificate or instrument.

43. Except m the case of fraud no person contracting or persons dealing with or taking or proposing to take a transfer from the „|te£redth

registered proprietor of any land shall be required or in any JJJê^tJd manner concerned to inquire or ascertain the circumstances under by notice, or the consideration for which such proprietor or any previous proprietor thereof was registered, or to see to the application of any purchase or consideration money, or shall be affected by notice actual or constructive of any trust or unregistered interest, any rule of law or equity to the contrary notwithstanding; and the knowledge that any such trust or unregistered interest is in existence shall not of itself be imputed as fraud.

44. (1) Any certificate of title or entry alteration removal O r Certificate &c

cancellation in the Register Book procured or made by fraud shall be void as against any person defrauded or sought to be defrauded thereby and no party or privy to the fraud shall take any benefit therefrom.

(2) But nothing in this Act shall be so interpreted as to leave Purchasers

subject to an action of ejectment or for recovery of damages or protected-for deprivation of the estate nr interest in respect of which he is registered as proprietor any bona fide purchaser for valuable consideration of land on the ground that the proprietor through or under whom he claims was registered as proprietor through fraud or error or has derived from or through a person registered as proprietor through fraud or error; and this whether such fraud or error consists in wrong description of the boundaries or of the parcels of any land or otherwise howsoever.

PART IV.—REGISTRATION OF DEALINGS WITH LAND.

DIVISION 1.—TRANSFERS.

45. (1) A registered proprietor may transfer his estate O r Form of

interest in land by an instrument in or to the effect of the I'anôJl „ . . J . _ . , _. , , , No. 5842 s. 45.

appropriate form in the Sixth Schedule. Sixth Schedule.

(2) Upon the registration of the transfer the estate or interest of the proprietor as set out in such instrument or which he is entitled or able to transfer or dispose of under any power, with all rights powers and privileges thereto belonging or appertaining, shall pass to the transferee; and such transferee shall thereupon become the registered proprietor thereof.


46. (1) By virtue of every such transfer the right to sue upon any instrument and to recover any debt sum of money annuity or damages thereunder (notwithstanding that it constitutes a chose in action) and all interest in any such debt sum annuity or damages shall be transferred so as to vest at law as well as in equity in the transferee thereof; but nothing herein shall prevent a court from giving effect to any trusts affecting such debt sum annuity or damages if the transferee as between himself and any other person holds as trustee.

(2) In every such transfer of land which is subject to a mortgage or annuity there shall be implied a covenant with the transferor by the transferee binding the latter to pay the interest secured by the mortgage at the rate and times and in the manner specified in the mortgage, or to pay the annuity at the times and in the manner specified in the instrument of charge, and in the case of land subject to a mortgage to indemnify the transferor against all liability in respect of the principal sum secured by the mortgage and any of the covenants therein contained or by this Act declared to be implied therein on the part of the transferor.

47. If it is proved to the satisfaction of the Registrar that—

(a) land has been sold by the registered proprietor and the whole of the purchase money paid; and

(b) the purchaser or any person claiming under him has entered and taken possession under such purchase and such entry and possession have been acquiesced in by the vendor or his representatives; but

(c) a transfer cannot be obtained as the registered proprietor is dead or out of Victoria or cannot be found or for any reason it is impracticable to obtain his signature within a reasonable time—

the Registrar may in his discretion make a vesting order to give effect to the sale and shall enter a memorandum thereof on the Crown grant or certificate of title or instrument and any duplicate thereof, whereupon the person in whom the order vests the land shall become the transferee and be the registered proprietor thereof.

48. On any sale of land under the operation of this Act by public auction or private contract the conditions set out in the table marked A in the Seventh Schedule may be adopted by inserting the words " The conditions in Table A of the Transfer of Land Act 1958 shall apply to this contract", and when so adopted the conditions in the said Table A shall be construed as part of the contract subject nevertheless to any other condition or provision contained in the contract expressly or by necessary implication modifying or excluding any of them.

Transfer to include right to sue. No. 5842 s. 46.

Saving as to trusts.

Transferee of land subject to encumbrance to indemnify transferor.

Power to Registrar to make a vesting order in cases of completed purchase. No. 5842 s. 47.

Adoption by reference of " Table A " conditions of sale in Seventh Schedule. No. 5842 s. 48.


DIVISION 2.—TRANSMISSIONS.

49. (1) Upon the legal personal representative of any deceased registered proprietor applying in writing to be registered as proprietor in respect of any land and producing his authority in that behalf the Registrar shall enter in the Register Book and on the duplicate Crown grant or certificate of title and on any relevant instrument and duplicate instrument a memorandum of the appointment of such personal representative and the day of the death of the proprietor, when ascertainable; and thereupon such personal representative shall become the transferee and be the proprietor of the estate or interest of the deceased proprietor.

(2) The personal representative shall hold the land subject to all equities upon which the deceased held it, but for the purpose of any dealing with the land under the provisions of this Act shall be the registered proprietor thereof.

(3) The title of every personal representative becoming a transferee under this section shall upon such entry being made in the Register Book relate back to and be deemed to have arisen upon the death of the proprietor of the land as if there had been no interval of time between such death and entry.

50. Subject to this Act upon the death of any person registered Registration

with any other person as joint proprietor of any land the Registrar, $ jofntivor on the application of the survivor and proof to the satisfaction of g^g^f °f

the Registrar of the death, shall register the applicant as the ^ . . , • i r i i P • . . . . . mortgage &c.

proprietor thereof, and thereupon such survivor shall become the NO.5842S.SO. transferee of such land and be the registered proprietor thereof.

5 1 . (1) Upon the bankruptcy of the registered proprietor of Registration

any land, or upon any bankrupt before obtaining his discharge or bankrupt.0' certificate becoming the proprietor of any land, his trustee shall NO. 5842 s. si. be entitled to be registered as proprietor in respect thereof; and the Registrar, upon the receipt of an office copy of the appointment of such trustee accompanied by an application in writing under his hand to be so registered, shall enter in the Register Book and on the duplicate Crown grant or certificate of title and on any other relevant instrument and duplicate instrument a notification (by the appropriate description whether as trustee assignee or official receiver) of the appointment of such trustee.

(2) Thereupon such trustee shall become the transferee and be the proprietor of the estate or interest of the bankrupt and shall hold subject to all equities upon which the bankrupt held; but for the purpose of any dealing with the land under the provisions of this Act such trustee shall be the registered proprietor thereof.

Registration of personal representatives. No. 5842 s. 49.

http://no.5842s.so


When dealings by bankrupt are valid.

(3) Unless prior to a bankrupt registered proprietor dealing with any land under the operation of this Act the trustee in his bankruptcy has either applied to be registered as proprietor thereof or has lodged a caveat against dealings by the bankrupt any dealings by the bankrupt with any person dealing bona fide and for value with him shall not be affected by any order ol sequestration.

(4) This section shall be read and construed as subject to any law of the Commonwealth of Australia relating to bankruptcy.

Sale under writ of fi. fa or decree of Supreme Court &c. No. 5842 s. 52.

Eighth Schedule.

DIVISION 3 . SALES BY SHERIFF, ETC.

52. (1) Save as in this Division provided no execution or lis pendens shall bind or affect any land under the operation of this Act.(a)

(2) The Registrar, on being served with a copy of any writ of fieri facias or judgment decree or order of the Supreme Court or of the county court accompanied by a statement signed by any interested party or his solicitor or agent specifying the land sought to be affected thereby and a statutory declaration identifying to the satisfaction of the Registrar the judgment debtor with the registered proprietor of such land, shall mark upon such copy the date of such service and enter a memorandum thereof in the Register Book.

(3) After any land so specified has been sold under any such writ judgment decree or order the Registrar shall, on lodgment of a transfer thereof in or to the effect of the appropriate form in the Eighth Schedule, register such transfer if lodged within the period of three months from the day on which the copy of such writ judgment decree or order was served on the Registrar, in which case no other instrument dealing with the land lodged with the Registrar after the time of service of the copy and before the lodging of the transfer shall be registered or be deemed to have been lodged for registration/6'

(4) On registration of such transfer the purchaser shall become the transferee and be the proprietor of the land in all respects as if the transfer were a transfer for valuable consideration to the purchaser by the registered proprietor, but until a memorandum of the service of the copy has been entered in the Register Book as aforesaid no sale under the writ judgment decree or order shall be made by the sheriff or other officer.

(5) Unless a transfer on sale under such writ judgment decree or order is lodged with the Registrar within the period of three months from the day on which the copy of such writ judgment decree or order was served on the Registrar such writ judgment decree or order shall cease to bind or affect the land.

(a) See Property Law Act 1958 Part III. (b) See s. 93 (3).


(6) Upon production to the Registrar of sufficient evidence of the satisfaction of any writ judgment decree or order a copy whereof has been served as aforesaid he shall make an entry in the Register Book to that effect, whereupon such writ judgment decree or order shall cease to bind or affect the land.

(7) This section shall with such adaptations as are necessary Application extend and apply to— feT1'0

orders of (a) writs of fieri facias issued out of the High Court of other courts.

Australia and decrees and orders of that Court and officers thereof; and

(b) warrants issued or granted under section one hundred and seventy-four or two hundred and thirty-three of the Mines Act 1958.

DIVISION 4.—ACQUISITION BY STATUTE, ORDER OF COURT, ETC.

53. (1) In this Division " acquiring authority" means any " Acquiring person corporation or body of persons authorized by or under ^5842 8.53. any Victorian or Commonwealth Act or law to acquire land compulsorily.

(2) The provisions of this Division shall be read and construed $$$$£ as in aid of and not in derogation from the provisions of any other Act or enactment or law whereby an acquiring authority may become registered as the proprietor of any land acquired by or vested in that authority.

(3) Apart from the operation of Part III. nothing in this Act shall affect or delay the vesting in any acquiring authority of any land by virtue of any other Act or law.

54. Notwithstanding anything in any Act where any land Provision vests, whether free from encumbrances or subject to any particular certificates encumbrances, in any acquiring authority by the operation of respecVof section forty-nine of the Lands Compensation Act 1958 or of any Inquiring other Victorian or Commonwealth enactment without transfer or authority-conveyance thereto, upon application in writing made by the No-5842s54-acquiring authority in the prescribed manner and form (which application shall be made as soon as practicable after the vesting)—

(a) where the land so vested is under the operation of this Act—the acquiring authority shall, without any further transfer conveyance disposition or assurance or the production of any duplicate Crown grant or certificate of title or any other instrument or document, be registered as the proprietor of the land in fee simple free from all encumbrances or


subject to the encumbrances hereinbefore referred to (as the case requires) by the registration and issue of a new certificate of title in the name of the acquiring authority as registered proprietor;

(b) where the land so vested is not under the operation of this Act—the land shall, without any further or other application or any conveyance or assurance or the publication of any notice or the production or examination of any documents of title whatsoever or the payment of any sum to the Assurance Fund, be brought under the operation of this Act and a certificate of title in fee simple free from all encumbrances or subject to the encumbrances hereinbefore referred to (as the case requires) shall be registered and issued in the name of the acquiring authority as registered proprietor.

55. (1) In respect of any land for which a certificate of title is so issued and which at the time of the vesting was under the operation of this Act the Registrar shall make all such cancellations of or endorsements or entries upon any Crown grant certificate of title or other instrument and any duplicate thereof as are necessary.

saving. (2) No person's right to compensation in respect of or in any manner arising out of the acquisition or vesting of any land shall be prejudiced or affected by any cancellation of or endorsement entry or memorandum on any Crown grant certificate of title or other instrument under authority of this section.

(3 ) Where a certificate of title has been applied for or issued pursuant to the last preceding section the acquiring authority shall before or at the time of making compensation for the acquisition of the land take possession of the duplicates of the Crown grants certificates of title instruments and other documents which are produced to it upon any claim for compensation and shall forthwith lodge them with the Registrar for the making of such of the necessary cancellations endorsements entries and memoranda hereinbefore referred to as have not already been made, and the Registrar shall retain such of the said duplicates instruments and documents as are wholly cancelled and shall return such of the said duplicates instruments and documents as are not wholly cancelled, duly endorsed as hereinbefore provided, to the acquiring authority for return to the persons entitled thereto.

56. Any person who suffers any deprivation loss or damage by reason of the issue of any certificate of title or the cancellation or endorsement of any Crown grant certificate of title or other instrument or document or the making of any entry or memorandum pursuant to this Division shall be indemnified by

Registrar to make necessary cancellations entries &c. No. 5842 s. 55.

Dealing with title deeds &c. to acquired land.

Acquiring authority to be responsible to persons injured by issue of certificate &c. No. 5842 s. 56.


the acquiring authority concerned, but no person shall be entitled to receive or shall receive from the Registrar or out of the Assurance Fund any money or compensation or consideration whatsoever in respect of or in any manner arising out of any such issue cancellation endorsement entry or memorandum.

57. (1) Whenever any acquiring authority proposes to Notice to be acquire compulsorily any land under the operation of this Act, Se|£trarof if the Act under which the acquisition will be made provides that ^""""and any notice (whether individual or general) of intention so to compuisoruy. acquire is to be served then notification in appropriate form of No-5842s-57-such intention shall be lodged with the Registrar forthwith upon service of such notice of intention.

(2) The Registrar shall make an appropriate endorsement on each Crown grant or certificate of title concerned or (where this is not practicable) shall by displaying a map or other appropriate means make such notice of intention to acquire available for inspection and, on notification by the acquiring authority of withdrawal of any such notice in whole or in part, shall cancel or remove such endorsement map or other relevant document in whole or in part accordingly.

(3) Any such notice of intention to acquire whether so endorsed on a Crown grant or certificate of title or so made available for inspection shall for the purposes of section forty-two of this Act be deemed to be an encumbrance notified on any relevant Crown grant or certificate of title.

(4) No person shall be entitled to receive from any acquiring authority any damages or compensation whatsoever resulting from compliance by the authority with the provisions of this section or anything arising therefrom.

58. (1) Whenever any person interested in land under the Registrar to operation of this Act appears to any court of competent jurisdiction order vesting or to the Registrar to be a trustee of such land within the intent ûst=state-and meaning of any Act relating to trustees and any vesting order °'5 42 s'58,

is made in the premises by any such court or by the Registrar (which order he is hereby empowered to make concurrently with the Supreme Court), the Registrar on making or being served with such order or an office copy thereof shall enter a memorandum thereof in the Register Book and on the duplicate grant or certificate of title and duplicate instrument (if any).

(2) Until an entry is made as aforesaid no vesting order referred to in this section shall have any effect or operation in transferring or otherwise vesting the land.


Registration of dispositions effected by operation of statute &c No. 5842 8.59.

59. (1) Where by the operation of any statute or statutory or other power or by virtue of any vesting order of any court or an order appointing a person to convey or a vesting declaration appointment or other assurance an estate or interest in land under this Act being an estate or interest capable of being registered is created disclaimed surrendered released or otherwise disposed of the registered proprietor shall subject to proper provision being made for payment of his costs give effect to the disposition under this Act.

(2) If the registered proprietor is unable or refuses to give effect to the disposition or to execute a registrable instrument or cannot be found or if for any other reason a disposition by him under this Act cannot be obtained within a reasonable time the Registrar may give effect thereto in the Registrar Book by making an entry therein containing such particulars relating to such disposition as he considers necessary.

(3) The disposition shall take effect in like manner as nearly as may be as if it had been made by the registered proprietor by registered disposition.

Application for order by person claiming title by possession. No. 5842 s. 60. Ninth Schedule.

Notice of application.

Caveat. No. 5842 s. 61.

DIVISION 5.—ACQUISITION BY POSSESSION.

60. (1) A person who claims that he has acquired a title by possession to land which is under this Act may apply to the Registrar in writing in the form or to the effect of the Ninth Schedule, accompanied by a plan of survey (with field notes) of the land certified by a licensed surveyor, for an order vesting the land in him for an estate in fee simple or other the estate claimed.

(2) The Registrar shall cause notice of the application to be advertised once at least in a newspaper circulating in the city of Melbourne or in the neighbourhood of the land and to be given to any person he thinks proper including every person appearing by the Register Book to have any estate or interest in the land.

(3) The applicant shall cause a copy of the notice to be posted in a conspicuous place on the land or at such place as the Registrar directs and to be kept so posted for not less than twenty-one days prior to the granting of the application.

(4) The Registrar shall appoint a period of not less than twenty-one days from the publication of the advertisement or service of the notice after the expiration of which he may, unless a caveat is lodged as hereinafter provided, grant the application altogether or in part.

61. (1) A person claiming any estate or interest in the land in respect of which any such application is made may before the granting of the application lodge a caveat with the Registrar forbidding the granting thereof.


(2) The caveat shall in all other respects be in the same form, Form and be subject to the same provisions, and have the same effect with cavea°£

respect to the application against which it is lodged, as a caveat against bringing land under the operation of this Act.

62 . (1 ) Subject to this Act after the expiration of the period Power to appointed the Registrar if satisfied that the applicant has acquired S1

rde?.vestins

a title by possession to the land may make an order vesting the NO. 5842 s. 62. land in the applicant, or in such person as the applicant directs, for an estate in fee simple or other the estate or interest acquired by the applicant free from all encumbrances which have been determined or extinguished by such possession and free from any easement notified as an encumbrance which has been proved to the satisfaction of the Registrar to have been abandoned by reason of non-user for a period of not less than thirty years. ( a )

(2) Where a vesting order is so made the Registrar shall— consequential action.

(a) cancel the existing Crown grant or certificate of title and any instrument or entry or memorandum in the Register Book altogether or to such extent as is necessary to give effect to such vesting order;

(b) issue in the name of the applicant, or of such person as the applicant directs as aforesaid, a new certificate of title, dated as at the date of the making of the vesting order, for an estate in fee simple or other the estate acquired in the land comprised in the vesting order free from all such encumbrances as aforesaid.

(3) If the applicant or such other person dies before the vesting order is made the land shall be registered in his name and shall pass in like manner as if the certificate of title had issued before the death.

DIVISION 6. ACQUISITION OF CUL-DE-SACS.

63. (1) The proprietor or, if more than one, all the proprietors Applications of the fee simple of land abutting upon any private road which is )&£|?£fjD* a cul-de-sac and over which one or more of such proprietors has *™j« ms Act any easement of right of way, whether or not the fee of such road £^} n p

fr i v a t 0

is outstanding in some person other than such proprietors, m a y — roads. (a) where the land constituting such road is not under

the operation of this Act, apply in the appropriate prescribed form as owners in equity to bring the land constituting such road under the operation of this Act and for the issue to them or as they direct of a certificate of title as proprietors of an estate in fee simple either free from or subject to subsisting easements;

(a) See s. 73.


(b) where the land constituting such road is already under the operation of this Act, apply in the appropriate prescribed form for a vesting order vesting the fee in them or as they direct either free from or subject to subsisting easements.

(2) In this section— " Private road " includes any private road street or passage

and any land described or set apart as a road by the owner in fee thereof in any transfer or conveyance in which he granted an easement of right of way over such land notwithstanding that no such road existed or exists on such land.

" cui-de-sac." " Cul-de-sac " includes any terminal portion of a cul-de-sac.

Applications: 64. (1) Every application under this Division shall save as howdeait otherwise expressly provided be dealt with as to notices plans No. 5842 s. 64. caveats fees and all other matters in the manner prescribed by this

Act for applications for bringing land under the operation of this Act.

(2) The Registrar may in his discretion grant any such application in whole or in part and with or without modifications and (where the case so requires) bring the land under the operation of this Act or make an appropriate vesting order.

65. (1) Before granting any such application the Registrar shall determine what amount will in his judgment be an equitable compensation to the persons in whom the fee of the private road is outstanding for the extinguishment of any estate or interest therein, and any person claiming to be entitled to any such compensation may submit to the Registrar at any time before the granting of the application evidence as to the then value of his estate or interest.

(2) The Registrar shall certify to the amount so determined, and the granting of the application in respect of which such compensation has been determined shall be conditional upon the applicant paying the amount thereof to the persons entitled thereto, or if any such person has not been ascertained or cannot be found or refuses to receive or acknowledge such payment, or if the Registrar so directs, then conditional upon the applicant paying such amount into the Assurance Fund; and no certificate of title shall issue or be registered in pursuance of such application until such payment has been made.

(3) When any such compensation moneys have been paid into the Assurance Fund any person claiming to be entitled thereto may, within the period of six years from the date of the order granting the application in respect of which such moneys

" Private toad."

Registrar to determine amount of compensation payable to owner of fee of roadway. No. 5842 s. 65.


were so paid, submit a claim in writing to the Registrar and if the Registrar admits the claim altogether or in part and certifies accordingly to the Attorney-General the amount so certified may be paid out of the Assurance Fund.

DIVISION 7.—LEASES.

66. (1) The registered proprietor of freehold land may lease Leases. it for any term exceeding three years by an instrument in the No. 5842 s. 66. form or to the effect of the Tenth Schedule. schedule.

(2) No registered lease of land subject to a mortgage or charge shall be valid or binding against the mortgagee or annuitant unless he has consented in writing to such lease.

67. (1) In every instrument of lease under this Division Covenants to

there shall be implied the following covenants and powers:— i?ieases?d

(a) That the lessee will pay the rent reserved by the lease No-5842s-67-at the times therein mentioned and all rates and taxes which may be payable in respect of the leased property during the continuance of the lease, except in so far as the same are or shall be payable exclusively by the owner of the property under any Act now or hereafter in force relating to local government;

(b) That the lessee will keep and yield up the leased property in good and tenantable repair, accidents and damage from storm and tempest and reasonable wear and tear excepted;

(c) That the lessor may with or without surveyors workmen or others once in every year during the term at a reasonable time of the day enter upon the leased property and view the state of repair thereof;

(d) That if the rent or any part thereof is in arrear for the space of one month, although no legal or formal demand has been made for payment thereof, or in case of any breach or non-observance of any of the covenants expressed in the lease or by this Act declared to be implied therein on the part of the lessee and such breach or non-observance continuing for the space of one month, it shall be lawful for the lessor to re-enter upon and take possession of the leased property.(o)

(2) In every transfer of a registered lease (including a Crown Covenant to lease) there shall be implied a covenant with the transferor by the SSmSlsler transferee binding him thenceforth to pay the rent by the lease °£lease-reserved, and perform and observe all the covenants contained in

(a) See Property Law Act 1958 ss. 141, 142.


Foreclosure or surrender of mortgaged lease where lessee is bankrupt. No. 5S42 s. 68.

Surrender of lease. No. 5842 s. 69.

Recovery of possession by lessors and determination of leases to be entered in Register Book. No. 5842 s. 70.

the lease or by this Act declared to be implied in the lease and on the part of the lessee to be performed and observed, and to indemnify the transferor against all actions suits claims and expenses in respect of the non-payment of such rent or the breach or non-observance of such covenants or any of them.

68. (1) Subject to the next succeeding sub-section, on the bankruptcy of the registered proprietor of a lease which is subject to one mortgage only, or to two or more mortgages of which the same person is registered proprietor, the Registrar, on lodgment by the mortgagee of an application in writing in that behalf accompanied by a statement in writing signed by the trustee in bankruptcy that such trustee disclaims the lease, shall enter in the Register Book a note of such disclaimer, and such entry shall operate as a foreclosure and transfer to the mortgagee of the interest of the bankrupt in the lease.

(2) The lessor may serve notice in writing on the mortgagee that after the expiration of a period of twenty-one days from the service of such notice he intends to apply for the surrender of the lease; and if within such period the mortgagee makes no application under the last preceding sub-section he shall be deemed to have abandoned his rights thereunder and the Registrar, on lodgment by the lessor of an application in writing in that behalf accompanied by a disclaimer of the trustee in bankruptcy as aforesaid and a copy of the lessor's notice to the mortgagee and a statutory declaration as to service thereof, shall enter in the Register Book a note of such disclaimer and of the mortgagee's failure to apply, and such entry shall operate as a surrender of the lease discharged from the mortgage but without prejudice to any action or cause of action previously commenced or accrued in respect of any breach or non-observance of any covenant expressed or implied in the lease.

69. (1) Without affecting any other method of determining the operation thereof, a registered lease may be surrendered and determined by the word " surrendered" and the date being endorsed on the duplicate and signed by the lessee and lessor, but subject to the last preceding section no lease subject to a mortgage or charge shall be so surrendered without the consent in writing of the proprietor of the mortgage or charge.

(2) The Registrar shall enter in the Register Book and on the duplicate lease (if any) a memorandum of the surrender whereupon the estate and interest of the lessee shall vest in the lessor or other the proprietor of the reversion immediately expectant on the term.

70. The Registrar upon proof to his satisfaction— (a) of recovery of possession of the leased premises by

the lessor by any legal proceeding;


(£) that the lessor has re-entered upon the leased premises in strict conformity with the provisions for re-entry contained or implied in the lease; or

(c) that the lessee has abandoned the leased premises and the lease and that the lessor has thereupon re-entered upon and occupied the premises by himself or tenants undisturbed by the lessee—

shall enter a memorandum thereof in the Register Book, whereupon the lease shall determine without prejudice to any action or cause of action previously commenced or accrued in respect of any breach or non-observance of any covenant expressed or implied in the lease.

71 . (1) The registered proprietor of any lease may subject sub-uases. to any provision in his lease affecting his right so to do sub-let NO.5842S.7I. for any term of not less than three years by an instrument in the form or to the effect of the Eleventh Schedule. Eleventh

Schedule.

(2) Save as otherwise expressly provided the provisions of this Act affecting leases lessors and lessees shall apply to sub-leases sub-lessors and sub-lessees with such adaptations as are necessary.

(3) If a lease is determined by forfeiture or operation of law Determination or by surrender under any Act or law relating to bankrupts such ofsub'leases-determination shall determine the sub-lease.

(4) In addition to the covenants specified by this Act to be Covenants to implied in leases, there shall be implied in every sub-lease under rabTase.din

this Act a covenant that the sub-lessor will during the term thereby granted pay the rent reserved by and perform and observe the covenants and agreements contained in the original lease and on his part to be paid performed and observed.

DIVISION 8.—EASEMENTS.

72. (1) A Crown grant or certificate of title may contain a Notification of notification to the effect that the land therein described is subject R^M'BOOIC. to or has appurtenant thereto an easement.(a) No. 5842 S. 72;

r r No. 5934 s. 5. (2) Upon application in writing in that behalf the Registrar

shall notify in the Register Book any easement over or upon or appurtenant to any land under this Act which the Registrar is satisfied has been created by any instrument deed or other written document or recognized by an order of any court or award of an arbitrator.

(a) See s. 98.

.468 1958. Transfer of Land. No. 6399

Twelfth Schedule.

(3) When in any certificate of title or instrument an easement is referred to or created or reserved by the use of the words " Together with [or Reserving] a right of carriage-way over

" [specifying the roads subject to the easement and referring to a map or plan of subdivision] such words shall have the same effect and shall be construed as if the words contained in the Twelfth Schedule had been inserted in the certificate of title or instrument.

Removal of casement &c. No. 5842 s. 73.

73. (1) A registered proprietor may apply to the Registrar for the removal from the Register Book of any easement in whole or in part where it has been abandoned or extinguished.

(2) The Registrar shall give to every person who appears by the Register Book to have any estate or interest in the land to which the easement is appurtenant notice of the application and if he is of opinion that any such easement has been abandoned or extinguished in whole or in part shall make appropriate entries and amendments in the Register Book.

Non-user for thirty years.

(3) Where it is proved to the satisfaction of the Registrar that any such easement has not been used or enjoyed for a period of not less than thirty years, such proof shall constitute sufficient evidence that such easement has been abandoned.

caveats. (4) Any person claiming an estate or interest in the land to which the easement is appurtenant may before the removal thereof lodge a caveat with the Registrar forbidding the removal, which caveat shall be in the same form and subject to the same provisions and have the same effect with respect to the application for removal as a caveat against bringing land under the operation of this Act.

Creation and nature of mortgages and charges. No. 5842 s. 74. Thirteenth Schedule.

Fourteenth Schedule.

DIVISION 9. MORTGAGES AND ANNUITIES.

74. (1) The registered proprietor of any land—

(a) may mortgage it by instrument of mortgage in the form or to the effect of the Thirteenth Schedule;

(b) may charge it with the payment of an annuity by instrument of charge in the form or to the effect of the Fourteenth Schedule.

(2) Any such mortgage or charge shall when registered have effect as a security and be an interest in land, but shall not operate as a transfer of the land thereby mortgaged or charged.


75. In every such mortgage there shall be implied covenants covenants to and powers— 5fi^fid

mortgage.

(a) that the mortgagor will pay the principal money No. 5842s.75. therein mentioned on the day therein appointed, and will so long as the principal money or any part thereof remains unpaid pay interest thereon or on so much thereof as for the time being remains unpaid at the rate and on the days and in the manner therein specified;

(b) that the mortgagor will repair and keep in repair all buildings or other improvements which have been or are erected or made upon the mortgaged land;

(c) that the mortgagee may at all reasonable times until the mortgage is redeemed enter into and upon the land with or without surveyors or others to view and inspect the state of repair of such buildings or improvements;

(d) that the mortgagor will insure in or to the effect of the terms in the Fifteenth Schedule. Fifteenth

Schedule. 76. (1) If default is made in payment of the principal S u m Procedure in

interest or annuity secured or any part thereof or in the default in performance or observance of any covenant express or implied in j ^ y f o£

any such mortgage or charge and continues for one month or secured^ such other period as is therein expressly fixed, the mortgagee or annuitant may serve on the mortgagor or grantor of the annuity or such other persons as appear by the Register Book to be affected notice in writing to pay the money owing or to perform and observe the covenants (as the case may be).

(2) Where money secured by any such mortgage is made payable on demand a demand in writing pursuant to the mortgage shall for the purposes of this Act be equivalent to serving the notice aforesaid.

No. 5842 s. 76.

77. (1) If within one month after the service of such notice powerotsaio or demand or such other period as is fixed in such mortgage or mnodrtgaageor charge the mortgagor grantor or other persons do not comply charse-with the notice or demand the mortgagee or annuitant may, in No-5842s-77-good faith and having regard to the interests of the mortgagor grantor or other persons, sell or concur with any other person in selling the mortgaged or charged land or any part thereof, together or in lots, by public auction or by private contract, at one or several times, and for a sum payable in one amount or by instalments, subject to such terms and conditions as the mortgagee or annuitant thinks fit, with power to vary any contract for sale and to buy in at any auction or to rescind any contract for sale and to resell without being answerable for any loss occasioned


thereby and with power to make such roads streets and passages and grant and reserve such easements as the circumstances of the case require and the mortgagee or annuitant thinks fit, and may make and sign such transfers and do such acts and things as are necessary for effectuating any such sale.

Sixlh Schedule.

(2) An instrument of transfer by a mortgagee or annuitant expressed to be in exercise of the power of sale and in or to the effect of the form in the Sixth Schedule may be accepted by the Registrar as sufficient evidence that the power has been duly exercised.

Application of purchase money.

(3) The purchase money received arising from the sale shall be applied—

(a) firstly in payment of all costs charges and expenses properly incurred incidental to the sale and consequent on such default;

(b) secondly in payment of the moneys which are due or owing on the mortgage or charge;

(c) thirdly in payment of moneys owing under on in respect of subsequent mortgages and charges in the order of their respective priorities;

(d) fourthly in payment of the residue (if any) to the mortgagor or into the Court under the provisions so far as they are applicable of section sixty-nine of the Trustee Act 1958 and the rules referred to therein, or if the sale is made by a mortgagee and the land is charged with a subsequent annuity or if the sale is made by an annuitant, in payment of the said residue into an account on deposit at interest in a bank in the joint names of the annuitant and the Registrar to satisfy the accruing payments of the charge and subject thereto for the benefit of the parties who are or become entitled to the residue of the deposited money.

Purchaser to be proprietor. (4) Upon the registration of any transfer under this section

all the estate and interest of the mortgagor or grantor of the annuity as registered proprietor of the land mortgaged or charged shall vest in the purchaser as proprietor by transfer, freed and discharged from all liability on account of such mortgage or charge and (except where such a mortgagor or grantor is the purchaser) of any mortgage charge or encumbrance registered subsequent thereto excepting a lease or easement to which the mortgagee or annuitant has consented in writing, and the title of the purchaser shall not be impeachable on the ground that no case had arisen to authorize the sale or that due notice was not given


or that the power was otherwise improperly or irregularly exercised but any person thereby damnified shall have his remedy in damages against the person exercising the power, and for the purposes of Part III. the purchaser shall be deemed to have dealt with the registered proprietor of the land.

78. (1) The mortgagee or annuitant upon default in payment Power to of the principal sum or interest or annuity or any part thereof oTaStam respectively at the due time— SSSStoS10

or bring

(a) may enter into possession of the mortgaged or charged eJectment-land by receiving the rents and profits thereof; or No-5842s-78-

(b) may bring an action of ejectment to recover the land, either before or after entering into the receipt of the rents and profits and either before or after any sale of the land as aforesaid.

(2) A mortgagee of or annuitant upon leasehold land after Mortgagee OT entering into possession of the land or the receipt of the rents and Khoiu ° profits thereof shall, during such possession or receipt and to the polSo^'to extent of any benefit rents and profits which are received, be toSr!iable

subject to and liable for the payment of the rent reserved and the performance and observance of the covenants contained or implied in the lease on the part of the lessee.

79. (1) Whenever default is made in payment of the principal Foreclosure,

sum or interest secured by a mortgage and such default continues N°- {l**s- J9< - . - , ^ , . ° ° ~ . No. 5934 s. 6. for six months after the due time for payment the mortgagee may make application in writing to the Registrar for an order for foreclosure.

(2) Such application shall state— (a) that such default has been made and has continued

for the period aforesaid; (b) that notice to pay has been served as hereinbefore

provided ;(a)

(c) that the land mortgaged has within a period of two years prior to the date of such application been offered for sale at public auction by a licensed auctioneer;

(d) that the amount of the highest bidding at such sale was not sufficient to satisfy the moneys secured by such mortgage together with the expenses occasioned by such sale;

(e) that notice in writing of the intention of the mortgagee to make an application for foreclosure has been served on the mortgagor in manner provided by this Act; and

(a) See s. 76.

472 1958. Transfer of Land. No . 6399

(/) that a like notice of such intention has been so served on every person appearing by the Register Book to have any estate or interest in the mortgaged land subsequent to such mortgage—

and shall be accompanied by a certificate of the auctioneer by whom such land was put up for sale and such other proof of the matters stated by the applicant as the Registrar requires and shall be verified by statutory declaration.

Advertisement ( 3 ) Upon such application the Registrar shall cause notice to be published once in each of three successive weeks in at least one newspaper published in the city of Melbourne offering such land for private sale, and shall appoint a time not less than one month from the date of the first of such advertisements upon or after which he will issue to such applicant an order for foreclosure unless in the interval a sufficient amount has been obtained by the sale of such land to satisfy the principal and interest secured and all expenses occasioned by such sale and proceedings.

( 4 ) Every such order for foreclosure when entered in the Register Book shall have the effect of vesting in the mortgagee as registered proprietor the land mentioned in such order freed and discharged from any estate or interest of the mortgagor therein and from any mortgage charge or encumbrance registered subsequent thereto excepting a lease or easement to which the mortgagee has consented in writing.

80 . ( 1 ) Subject to this section, where any land has been brought under the operation of this Act subject to an outstanding legal mortgage under the general law which is shown as an encumbrance on the certificate of title then registered, the provisions of the last preceding section shall with such adaptations as are necessary apply in respect of such mortgage and foreclosure thereof in all respects as if it were a mortgage under this Act. ( o )

(2) Any person claiming any estate or interest in the land or in or under the mortgage in respect of which any application is made pursuant to the last preceding sub-section may before the granting thereof lodge a caveat with the Registrar forbidding the granting of the application; and every such caveat shall in all other respects be in the same form and subject to the same provisions and have the same effect with respect to the application against which it is lodged as a caveat against bringing land under the operation of this Act.

(3) Nothing in this section shall deprive any such mortgagee of the right to bring an action for foreclosure under the general law, but he shall not be at liberty to pursue his remedy by application pursuant to this section and his remedy by action for foreclosure concurrently.

of sale.

Effect of registration.

Foreclosure in case of mortgage under general law registered as an encumbrance on certificate of title. No. 5842 s. 8a

Caveats by objectors to application.

Right to bring action foi foreclosure under general law.

(a) See s. 10 (4) as to sale by mortgagee.


81. (1) In addition to and concurrently with any rights and powers aforesaid a first mortgagee shall, until a discharge from the whole of the money secured or a transfer upon a sale or an order for foreclosure has been registered, have the same rights and remedies at law and in equity (including proceedings before justices of the peace) as he would have had if the legal estate in the mortgaged land had been vested in him as mortgagee with a right in the mortgagor of quiet enjoyment until default in payment of any principal or interest or a breach in the performance or observance of some covenant.

(2) Nothing in this section shall affect or prejudice the rights or liabilities of any such mortgagee after an order for foreclosure has been entered in the Register Book or shall, until the entry of such an order, render a first mortgagee of land leased under this Act liable for the payment of the rent reserved by or the performance or observance of any covenant under the lease.

(3) A mortgagor shall not, either before or after default or breach as aforesaid, commence in his own name any action for or in respect of any cause of action for which a first mortgagee may sue under the foregoing provisions of this section without obtaining the consent in writing of such mortgagee or his agent to such action, which consent may be obtained whether before or after the commencement of the action; and after the giving of such consent such mortgagee shall not be entitled to bring in his name any action in respect of such cause of action.

82. (1) Any sum of money which becomes payable to the Application mortgagor under any judgment decree or order in any action by obtained from

him tor or on account of any waste or damage of or to the land moi?glag1oyr.the

mortgaged shall be paid to the first mortgagee in reduction or No. 5842 s. 82. satisfaction of the money secured; and if he is not willing to receive it or thereby is fully paid off, such sum or the balance shall be paid to any subsequent mortgagee according to priority in like reduction or satisfaction; and if no mortgagee is willing or entitled to receive it, then to the mortgagor for his own benefit.

(2 ) Any mortgagee may, either before or after judgment or execution obtained in any action brought by the mortgagor, apply to the Court for a summons in such action calling on the plaintiff and defendant or their solicitors or agents to attend before the Court and show cause why any sum beyond Twenty-five pounds which has been or is recovered for damages in such action or which becomes payable on the settlement thereof should not be paid to such persons and for such purposes as are hereinbefore mentioned with respect to money payable under any judgment decree or order in any action by the mortgagor; and the Court shall determine the matter in a summary manner and make such order therein as to costs and all other matters as appears to be just and reasonable.

Other rights &c. of first mortgagee. No. 5842 s. 81.


Application of moneys obtained in proceedings by a mortgagee. No. 5842 s. 83.

83. Any money received by a first mortgagee under any proceedings commenced in his name shall after payment thereout of his costs be applied in reduction or satisfaction of the moneys secured, and subject thereto shall be disposed of according to the equities of the parties interested.

Discharge of mortgages and annuities. No. 5842 s. 84.

Entry of satisfaction of annuity.

84. (1) Upon production of a memorandum signed by the mortgagee or annuitant discharging the land or part thereof from the whole or part of the moneys or annuity secured the Registrar shall make an entry to that effect upon the Crown grant or certificate of title and the duplicate thereof and upon the mortgage or charge and the duplicate thereof (if any), and thereupon the land or the portion of land described in such memorandum shall cease to be subject to or liable for such moneys or annuity or for such part thereof.

(2) Upon production to the Registrar by a mortgagor of the duplicate Crown grant or certificate of title and duplicate mortgage (if any) relating to any land and upon proof to the satisfaction of the Registrar that all principal and interest due in respect of the mortgage have been paid to the person entitled to receive them and that such person is dead or absent from the State or cannot be found the Registrar may notwithstanding that no memorandum of discharge is produced make an entry upon the Crown grant or certificate of title and the duplicate thereof and upon the mortgage and duplicate mortgage (if any) discharging the mortgage, and thereupon the land shall cease to be subject to or liable for such mortgage or any moneys thereunder.

(3) Upon proof to the satisfaction of the Registrar of the death of the annuitant or of the occurrence of the event or circumstance upon which in acordance with the provisions of any charge 'the annuity thereby secured ceases to be payable and that no moneys are owing in respect of the annuity the Registrar shall make an entry in the Register Book that such annuity is satisfied, and thereupon the land shall cease to be subject to or charged with such annuity.

Mortgage money payable to Treasurer if mortgagee absent from Victoria and mortgage discharged.

No. 5842 s. 85.

85. (1) If a mortgagee is absent from Victoria and there is no person authorized to give a receipt for the mortgage money the Treasurer of Victoria may receive such money with all arrears of interest due thereon in trust for the motgagee or other person entitled thereto; and thereupon the interest upon such mortgage shall cease to run or accrue and the Registrar shall, upon production of the receipt of the Treasurer for the amount of the mortgage money and interest, make an entry in the Register Book discharging the land from such mortgage, and such entry shall be a valid discharge from such mortgage.


(2) The Treasurer shall hold such moneys, together with all dividends and interest which accrue thereon, in the Trust Fund until the Registrar addresses to the Treasurer a requisition to pay to any persons concerned the moneys to which they are entitled.(o)

86. When any instrument subsequent to a first mortgage is First made by the registered proprietor of any land and such proprietor "roducfuue or the person entitled to the benefit of the subsequent instrument registration desires the registration of the subsequent instrument the first ^"uSf" ' mortgagee if he holds the duplicate Crown grant or certificate of NO.5842S.86. title concerned shall, upon being requested so to do by the proprietor or person entitled as aforesaid but at the cost of the person making such request, produce such duplicate to the Registrar so that the subsequent instrument may be registered.

87. If the money secured by any mortgage is due and the Puisne mortgagee requires payment thereof any other mortgagee of the may lender same land may tender and pay to the mortgagee requiring such n^was. 87. payment the money due upon his security, and the mortgagee making such payment shall be entitled at his own cost to a transfer of the interest of the mortgagee requiring such payment who shall effect the transfer accordingly.

DIVISION 10.—RESTRICTIVE COVENANTS, CHARGES, ETC.

88. (1) The Registrar may enter on the Crown grant or NfotiriCi;ê

certificate of title of land subject to the burden of a restrictive covenants.

covenant a memorandum of such covenant and of any instrument No-5842 s-HS-purporting to create or affect the operation of such covenant, and when such covenant is released varied or modified by agreement of all interested parties or by order of a competent court may cancel or alter any such memorandum.

(2) Where in pursuance of any Act a charge on land or any other other right in the nature of a charge or easement is acquired interests-(other than a tax or rate or charge which need not be specially notified in the Register Book) upon such charge or right being acquired the authority or person concerned may lodge with the Registrar a notification specifying the volume and folium of any Crown grant or certificate of title and the Crown description of any land affected thereby; and the Registrar may enter on each such grant or certificate of title and on any other grant or certificate concerned an appropriate notice of such charge or right.(6)

(a) See Public Account Act 1958 ss. 8, 9. (b) See s. 42 (2) (/).

http://no.5842s.86


Effect of registration.

(3) Apart from the operation of Part III. a notice in the Register Book of any such restrictive covenant charge or right shall not give it any greater operation than it has under the instrument or Act creating it.(a)

Caveat* temporarily forbidding dealings with land. No. 5842 s. 89. Sixteenth Schedule.

Registration.

Notice.

Address for service &c

PART V.—INCIDENTAL PROVISIONS.

DIVISION 1.—CAVEATS AGAINST DEALINGS.

89. (1) Any person claiming any estate or interest in land under any unregistered instrument or dealing or by devolution in law or otherwise or his agent may lodge with the Registrar a caveat in the form or to the effect of 'the Sixteenth Schedule forbidding the registration of any person as transferee or proprietor of or of any instrument affecting such estate or interest either absolutely or conditionally and may at any time withdraw the caveat.

(2) A memorandum of every caveat lodged under this section shall be entered on the Crown grant or certificate of title for the land or on the instrument to which it relates.

(3) The Registrar shall give to the registered proprietor of the estate or interest concerned notice of the caveat together with a copy of the caveat or of such particulars thereof as the Registrar deems material to such person.

(4) Every notice relating to any such caveat and any proceedings in respect thereof if served at the address in Victoria specified in the caveat shall be deemed to be duly served.

Except in certain cases caveat to lapse after thirty days notice given to caveator. No. 5842 s. 90.

90. (1) Subject to this Act every such caveat except a caveat lodged by the Registrar shall lapse as to any land affected by any transfer or other dealing other than—

(a) a transmission under Division two of Part IV.; or

(b) a transfer or dealing as to which the caveator or his agent has lodged with the Registrar his consent in writing;(6) or

(c) in the case of a caveat lodged by or on behalf of a beneficiary claiming under a will or settlement— a transfer or dealing giving effect to the appointment of a new trustee or to any other transaction which in the opinion of the Registrar is not inimical to the interests of the beneficiaries—

upon the expiration of thirty days after notice given by the Registrar to the caveator that a transfer or dealing has been lodged for registration.

(a) See Local Government Act 1958 s. 236 (2 ) , Land Act 1958 ss. 65-68, &c. (b) See s. 106.


Extension of period DI operation of cuve.it.

(2) If before the expiration of the said period of thirty days or such further period as is specified in any order made under this sub-section the caveator or his agent appears before the Court and gives such undertaking or security or lodges such sum as the Court considers sufficient to indemnify every person against any damage that may be sustained by reason of any disposition of the property being delayed, the Court may direct the Registrar to delay registering any dealing with the land for a further period specified in the order, or may make such other order (and in either case such order as to costs) as is just.

(3) Any person who is adversely affected by any such caveat may bring proceedings in the Court against the caveator for the removal of the caveat and the Court may make such order as the Court thinks fit.

(4) A caveat shall not be renewed by or on behalf of the No renewal. same person in respect of the same interest.

Proceedings, to remove; caveut.

No entry to be made in Register Book affecting land in respect of which caveat in force. No. 5842 s. 91.

Caveat not to affect dealing already lodged.

Search certificate. No. 5842 s. 92.

91. (1) So long as any such caveat remains in force the Registrar shall not except in accordance with some provision of such caveat or with the consent in writing of the caveator or his agent enter in the Register Book any change in the proprietorship of or any dealing purporting to affect the estate or interest in respect of which the caveat is lodged.U)

(2) Notwithstanding anything in the foregoing no instrument lodged for registration shall be in any way affected by any caveat lodged at a time later than the lodgment of such instrument.

DIVISION 2. SEARCH CERTIFICATES AND STAY ORDERS.

92. (1) Any person desiring to learn whether a registered proprietor is able to deal with any land free from obstruction by any caveat or instrument lodged for registration or by any order writ injunction or other cause known to the Registrar but not appearing upon the Crown grant or certificate of title may lodge an application for a search certificate in the form or to the effect of the Seventeenth Schedule.

(2) The Registrar shall cause the necessary searches and ^nedine""' inquiries to be made and the result certified in a search certificate in the form or to the effect of the said Schedule.

(3) Such search certificate shall refer to the dealing or A,"jl1J

,s<prj

encumbrance last noted on the Crown grant or certificate of title certificate for the purpose of showing the state of the Register Book at the time of issuing the search certificate but not of informing the person applying for the search certificate as to what is upon the grant or certificate of title; and such person shall be entitled to inspect the grant or certificate of title and shall be deemed to know all of which an inspection of the grant or certificate of title would have informed him.

(a) See s. 93 (3).

http://cuve.it


Stay of registration. No. 5842 s. 93.

Eighteenth Schedule.

Instrument eflfecting proposed dealing entitled to priority if lodged.

93. (1) Any person proposing to deal for value with a proprietor may, with the consent in writing of such proprietor or his agent authorized in writing in that behalf and on stating the particulars of the proposed dealing lodge with the application for a search certificate an application for stay of registration in the form or to the effect of the •Eighteenth Schedule.

(2) If the result of the search shows that the proprietor is free to deal, the Registrar shall sign an order in the form or to the effect of the Eighteenth Schedule staying registration of any instrument affecting the land to be comprised in the proposed dealing for forty-eight hours from the time mentioned in the search certificate and affix the order to the certificate and give a copy to the applicant.

(3) If within the said period of forty-eight hours an instrument effecting the proposed dealing is duly lodged for registration, such instrument shall have priority over any other instrument which is lodged for registration after the time mentioned in the search certificate and shall be registered notwithstanding any caveat copy of writ judgment decree or order or application by a trustee in bankruptcy which has been served on the Registrar or lodged in the Office of Titles after the time mentioned in such search certificate, but save as aforesaid any such other instrument caveat copy of writ judgment decree or order or application served or lodged during such period shall be dealt with in the same manner shall have the same priority as between themselves and shall be as effectual as if no stay of registration had been obtained.(0)

Powers of attorney and revocation thereof. No. 5842 s. 94.

DIVISION 3. POWERS OF ATTORNEY.

94. (1) A person may by power of attorney in an appropriate form appoint another person to act for him in bringing any land under the operation of this Act or dealing in any way with any land under the operation of this Act or of which he is or thereafter becomes the registered proprietor.

(2) No power of attorney shall be of any force or effect for any such purpose until filed in accordance with ithe provisions of Part XI. of the Instruments Act 1958, but when so filed shall be in force as from the time of the filing thereof unless a revocation thereof has been previously filed under that Act.

(3) Any such power may be revoked in the cases and manner specified in the said Part XI., and the Registrar shall not register any instrument signed pursuant to the power which is lodged after two clear days after the filing of any revocation of the power; but the Registrar may register any such instrument which is lodged not later than the expiration of the said two clear days.

(«) See as. 34, 51, 52, 91.


DIVISION 4.—SURVEYS AND SUBDIVISIONS.

95. (1) In respect of any application under this Act or of Requirements any proposed subdivision of land under this Act the Registrar " ' " ^ T M may require such surveys and plans to be made and lodged and such, particulars of the boundaries and abuttals to be furnished at the cost of the applicant or registered proprietor as the Registrar thinks fit.

(2) All surveys required by the Registrar and all plans of subdivision lodged under this Division shall be made and certified by a licensed surveyor and, subject to the requirements of the Land Surveyors Act 1958, shall comply with any requirements of the Registrar.

(3) The Registrar may dispense with surveys in so far as there is sufficient survey information available to the Office of Titles.

96. (1) In any certificate of title the land may be described Abuttals used

by its abuttals in addition to but not in substitution for dimensions, SfSn" 0" unless the Registrar specially authorizes the land or any boundary «r"ficaê-of the land to be described by abuttals only.

(2) Mention of an abuttal in any certificate of title shall not give title to the abuttal or be evidence of the title of any person who is referred to in the description as owner or occupier of the land upon which any abuttal stands or of any land constituting an abuttal.

97. (1) Where any proprietor subdividing any land (including, without affecting the generality (thereof, any building) into two or more parts is under this Division required by the Registrar to lodge a plan of such land the plan shall show clearly all roads streets passages thoroughfares squares reserves or easements (if any) appropriated or set apart for the use of proprietors and also all allotments into which the land is divided marked with distinctive numbers or symbols and the area of each allotment (where it contains one acre or more).

(2) The Registrar may refuse to accept for lodgment any plan of subdivision unless the council of every municipality concerned certifies in writing that any consent to the subdivision required by section five hundred and sixty-nine of the Local Government Act 1958 or section seventy-two of the Water Act 1958 has been given or that no such consent is necessary.

(3) The Registrar may in respect of any instrument or dealing relating to land, whether such land is the subject of a lodged plan or not, require the consent of the council of the municipality in the municipal district of which the land is situate before registering such instrument or dealing.

Requirements as to plans of subdivision &c. No. 5842 s. 97.


Nuinhcr of allotment to describe land for dealing.

Approval of plans subject to amendment.

Easements &c. included in trnnsrci of nllolmeni in subdivision. No. 5842 s. 98.

(4) After the plan of subdivision has been approved by the Registrar the numbers of the allotments marked upon the plan may be used to describe the land for the purpose of dealings with any allotment acording to the plan of subdivision.

(5) The Registrar, pending survey of or proof to < his satisfaction of title to any land proposed to be subdivided, may approve a plan of subdivision subject to notification on the plan and on the certificates of title of the allotments to the effect that such plan and certificates may be subject to amendment or adjustment, and the Registrar may in due course without any application in that behalf amend or adjust any such plan or certificate of title and may when satisfied as to the plan remove any such notification.

98. (1) A transfer of an allotment of land by reference to an approved plan of subdivision shall include and be deemed at all times to have included a grant therewith of—

(a) all such easements on over or under the land appropriated or set apart for those purposes respectively on the plan of subdivision as may be necessary for the reasonable enjoyment of the allotment transferred; and

(b) in the case of the subdivision of a building, also such easements of way and support and for the supply of water gas electricity sewerage telephone and other services to the allotment transferred as may be necessary for the reasonable enjoyment of the relevant part of the building—

notwithstanding that any of such allotments are transferred to another person without expressly reserving any such easements for the benefit of any other allotment, but this section shall apply only so far as a contrary intention is not expressed in the transfer.

Application by proprietor for amendment of ccrtilicate &c. to make boundaries coincide with land occupied. No. 5842 s. 99. Nineteenth Schedule.

DIVISION 5.—AMENDMENT OF THE REGISTER BOOK, ETC.

99. (1) A proprietor may in writing in or to the effect of the form in the Nineteenth Schedule apply for amendment of the Crown grant or certificate of title—

(a) of his own land, in any case in which the boundaries area or position of the land differ from the boundaries area or position of the land actually and bona fide occupied by him and purporting to be so occupied under the title in respect of which the certificate issued, or in any case in which the description in a certificate or Crown grant is erroneous or imperfect on the face of it;


(b) of the land of any other proprietor, where by reason of any error in survey or other misdescription part of such land is actually and bona fide occupied by the applicant together with the land described in the applicant's certificate or Crown grant.

(2) The Registrar shall send by post, to every person who Notice, appears by the Register Book to be affected by the application, notice that application has been made to amend the grant or certificate in the manner specified together with a plan showing the effect of the application and appointing a time after the expiration of which the application may be granted unless a caveat is lodged forbidding the granting thereof.

(3) The Registrar on the request in the prescribed form of any registered proprietor or his agent and upon payment of the fee (if any) fixed by the Registrar shall inform him as to whether the boundaries area and position of any land the subject-matter of any proposed application under this section are accurately shown on any plan of survey in the Office of Titles.

100. Any person claiming any estate or interest in the land in respect of which any such application is made may before the granting thereof lodge a caveat with the Registrar forbidding the granting of the application, which caveat shall so far as applicable be in the same form and subject to the same provisions and have the same effect with respect to the application as a caveat against bringing land under the operation of this Act.

101. (1) The Registrar may grant any such application or Grant of any application to bring land under this Act although the NPopl5842on' certificate to be issued or the amendment to be made may affect s ' ,01 ' land comprised in any other certificate or Crown grant if it appears that the land so affected has been included in such other certificate or Crown grant by reason of some error in survey or other misdescription unless the title to the land so affected has been theretofore determined against the applicant in a contested proceeding in which the right to such land was in question.

(2) Upon granting any such application the Registrar shall Amendment amend the Register Book by making any requisite alteration in £f

ccertlficaiei

the original and duplicate of any certificate of title or Crown grant.

(3) Any such amendment shall unless the Registrar otherwise directs be deemed to have been made as on the date when the application was lodged with the Registrar and bear date accordingly.

VOL. VIII.—16

Information by Registrar.

Caveats. No. 5842 s. 100.


(4) The Registrar shall give notice in writing of the amendment to the proprietor of the land comprised in any certificate of title or Crown grant so amended, and on the duplicate certificate or Crown grant being brought in to the Office of Titles a new duplicate certificate, with an amended description showing accurately the land then comprised in the certificate or Crown grant, will (free of cost) be issued to him in all cases where the Registrar considers it necessary.

102. (1) If land included in any application to bring land under this Act or in any Crown grant or certificate of title or lodged plan of subdivision is found by reason of erroneous measurements in the original survey to exceed or fall short of the dimensions given the Registrar may issue a certificate of title or amend the certificate of title or grant or plan to accord with the dimensions marked on the ground or otherwise to adjust equitably the discrepancy.

(2) The Registrar may— (a) in appropriate cases, make a distribution among the

allotments concerned of any surplus area; or (b) where the proprietor of an allotment or his predecessor

in title has been for over fifteen years in possession of any of such surplus, include in the Crown grant or certificate of title of such proprietor so much of such surplus so held in possession as does not exceed the area attributable to his allotment; or

(c) in any case, make such adjustments as the Registrar considers equitable and expedient.

103. (1) In any proceeding in the Court relating to any land or any instrument or dealing in respect thereof if the Court directs the Registrar to cancel correct make record substitute or issue any Crown grant certificate of title plan of subdivision or entry in the Register Book or otherwise to do any act or make any entry necessary to give effect to any judgment decree or order of the Court the Registrar shall obey such direction.

(2) (a) The Registrar may upon such evidence as appears to him sufficient correct errors in the Register Book or in any instrument or duplicate or plan of subdivision and supply entries omitted to be made therein under the provisions of this Act, but in any such case he shall not erase or render illegible the original entry and shall affix the date on which such correction or entry was made.

(b) Every correction or entry under this sub-section shall have the like validity and effect as if the error or omission had not occurred, but without prejudicing any rights accrued from any entry made in the Register Book prior to the actual time of correcting the error or supplying the omitted entry.

Notice of amendment to registered proprietors.

Adjustment of discrepancies in boundaries. No. J)842 s. 102.

General provision as to correclinn of errors &c. No. 5842 s. 103.

1958. Transfer of Land. No. 6399 '483

DIVISION 6. GENERAL POWERS OF REGISTRAR.

104. (1) The Registrar may for the purposes of this Act Power of require any person to produce any documents or give any 'production information or comply with any requisition relating to any land, evidence"!™

No. 5842

(2) The provisions of sections fourteen to sixteen of the S,1M-Evidence Act 1958 shall extend and apply for the purposes of this Act as if the Registrar were a Board and the chairman of a Board appointed by the Governor in Council.

(3) In connexion with any dealing with land the Registrar may by writing under his hand require any person who has or may have the custody or control of any duplicate Crown grant certificate of title or instrument concerned to bring such duplicate into the Office of Titles within a period named in the requisition not being less than seven days from the date thereof to be endorsed cancelled amended inspected or otherwise dealt with as the case requires.

(4) If any information or document required or requisition made by the Registrar in relation to any dealing with land or entry in the Register Book or on any instrument or duplicate is withheld or not complied with the Registrar may refuse to proceed with the dealing or to make the entry until it is produced or complied with.

(5) Notwithstanding anything in this Act the Registrar may at his discretion dispense with the production of any duplicate Crown grant or certificate of title or any instrument or document or the duplicate thereof or any signature or the supply of any information or any advertisement or notice.

(6) The Registrar may for the purposes of this Act require any person to verify any matter by statutory declaration.

105. (1) If in respect of any matter under this Act the Power to Registrar is of opinion that the production of any document or the reS™ to

giving of any information evidence or notice or the doing of any egistraiioli'ir act is necessary or desirable, then if such document information êS^^M evidence or notice is not supplied or given or such act is not done supplied". within such time as he allows— £°05?42

(a) he may refuse to complete or proceed with any application registration dealing or matter whatsoever or to do any act or make any entry or memorandum;

(b) he may return all or such of the instruments and documents lodged in connexion with the matter as he thinks fit;

(c) the fees paid in respect of any such matter shall be forfeited.


Half fees only to be charged an subsequent application for the same purpose.

Powers of Registrar. No. 5842 s. 106. To enter caveats.

To remove caveat.

To remove satisfied encumbrance.

To state case.

General.

(2) When the fees paid in respect of any matter are forfeited under this section one-half only of the corresponding fees shall be charged in respect of any subsequent application for the same purpose or in respect of any instrument or document relodged for registration if the requisition previously made has been complied with or compliance therewith is not in the opinion of the Registrar any longer necessary.

106. The Registrar— (a) may lodge a caveat, on behalf of Her Majesty or of

any person under the disability of infancy unsoundness of mind or absence from Victoria, to prohibit any transfer or dealing with any land belonging or supposed to belong to any such person, or to prohibit dealing with any land in any case in which it appears that an error has been made by misdescription of such land or otherwise in any Crown grant certificate of title or instrument or for the prevention of any fraud or improper dealing;

(b) where it appears to him that the estate or interest claimed by any caveator has ceased to exist may, on his own motion or on the application of any interested person, give notice to the caveator requiring him, within thirty days from the date of such notice, to withdraw such caveat or commence proceedings in the Court to substantiate his claim and, if the caveator does not comply with the notice within such time, remove the caveat from the Register Book;

(c) if it is proved to his satisfaction that any encumbrance notified on any Crown grant or certificate of title has been fully satisfied extinguished or otherwise determined and no longer affects the land, may either endorse a memorandum to that effect on the grant or certificate or permit any subsequent certificate of title of the same land to be issued free from such encumbrance;

(d) whenever any question arises with regard to the performance of any duty or the exercise of any of the functions conferred or imposed on him by this Act, may state a case for the opinion of the Court whose judgment shall be binding upon and given effect to by the Registrar;

(e) may make all such entries upon any Crown grant certificate of title instrument duplicate plan of subdivision or other document as are necessary by reason of the operation of this or any other Act.


PART VI.—GENERAL.

DIVISION 1. FINANCIAL.

107. (1) All penalties and fees received under this Act Application (except fees received as contributions to the Assurance Fund) penalties. shall be carried to and form part of the Consolidated Revenue. ^"b?842

(2) All fees and other sums of money which are received by Assurance the Registrar as contributions to the Assurance Fund shall be paid Fund' to the Treasurer of Victoria, who shall place such sums to the credit of an account to be kept in the Treasury called the Assurance Fund.

108. (1) Subject to this Act there shall be paid such fees as Fe?dstoê

are prescribed by the Twentieth Schedule or such other fees as Actdn er

are from time to time prescribed by Order of the Governor in ^0 |8 4 2

Council published in the Government Gazette in lieu thereof or Twentieth in addition thereto. schedule.

(2) In the case of land brought under this Act by alienation from Her Majesty the price paid for such land shall for the purpose of ascertaining the contribution to the Assurance Fund be deemed to be the value thereof and in any other case such value may be ascertained by the declaration of the applicant, but if the Registrar is not satisfied as to the valuation as so declared he may require the applicant to produce a certificate of the value under the hand of a sworn valuator, which certificate shall be received as conclusive evidence thereof.

(3) The Registrar may grant any application or waive any contribution requisition under this Act conditioned upon a contribution to the wayofdby

Assurance Fund of such sum as the Registrar certifies to be in his ,ndemnity-judgment a sufficient indemnity—

(a) by reason of the non-production of any document affecting the title, or the inability to obtain a consent serve a notice or comply with any requisition, or the imperfect nature of the evidence of title; or

(b) as against any uncertain or doubtful claim or demand incident to or which may arise upon the title or any risk to which the Assurance Fund may be exposed.

(4) No fee and no contribution to the Assurance Fund shall Fee on be payable in respect of the bringing of land under this Act by under Act on virtue of Division two of Part II. except the fee payable on the directlon-issue of the certificate of title.


Provision aa to acquiring authorities.

(5) Notwithstanding anything in sub-section (2) of this section, in ithe case of an application by an acquiring authority (within the meaning of Division four of Part IV.) to bring land under this Act the value of such land at the date of acquisition shall be deemed to be the value thereof for the purposes of ascertaining the contribution to the Assurance Fund and other fees payable and, if the Registrar is of opinion that the granting of the application will not expose the Assurance Fund to any risk, the acquiring authority shall not be required to make any contribution thereto.

Application of Assurance Fund. No. 5842 s. 109.

109. (1) Subject to the provisions of any other Act the Assurance Fund shall be applied only as provided by this Act.(°>

(2) The Assurance Fund shall not under any circumstances be liable—

(a) for any loss damage or deprivation occasioned by the breach of any trust, whether express implied or constructive;

(b) in any case in which the same land has been included in two or more Crown grants;

(c) in any case in which any loss damage or deprivation has been occasioned by any land being included in the same certificate of title with other land through misdescription of boundaries or parcels of any land, unless it is proved that the person liable for compensation or damages is dead or has absconded or has been adjudged bankrupt or the sheriff certifies that such person is unable to pay the full amount awarded in any action for recovery of such compensation and damages.

Recovery of moneys paid out of Assurance Fund.

(3 ) ( a ) Whenever amy amount has been paid out of the Assurance Fund such amount may be recovered from the person actually responsible, or from his estate, as a debt by action in the name of the Registrar; and a certificate signed by the Treasurer of Victoria certifying the fact of such payment out of the Assurance Fund shall be sufficient proof of such debt.

(b) If such person has absconded or cannot be found the Court upon the application of the Registrar and upon production of a certificate signed by the Treasurer as aforesaid may order that the Registrar sign judgment against such person forthwith for the amount so paid out of the Assurance Fund together with the costs of the application.

(ff) See Nos. 2297, 2800, 3839, 4164.


(4) If the balance to the credit of the Assurance Fund is Deficiencym inadequate to defray any amount required to be paid therefrom, Fund,

such sum as is necessary shall be paid out of the Consolidated Revenue (which is hereby appropriated accordingly) and be repaid from the Assurance Fund to the Consolidated Revenue when available.

110. (1) Subject to this Act any person sustaining loss or who may damage (whether by deprivation of land or otherwise) by reason JK-ancS"11

0 f Fund. No. 5842

(a) the bringing of any land under this Act; s'110' (b) any amendment of the Register Book; (c) any error omission or misdescription in the Register

Book or the registration of any other person as proprietor;

(d) any payment or consideration given to any other person on the faith of any entry in the Register Book;

(e) the loss or destruction of any document lodged at the Office of Titles for inspection or safe custody or any error in any official search;

(/) any omission mistake or misfeasance of the Registrar or any officer in the execution of his duties;

(g) the exercise by the Registrar of any of the powers conferred on him in any case where the person sustaining loss or damage has not been a party or privy to the application or dealing in connexion with which such power was exercised—

shall be entitled to be indemnified.

(2) Any person claiming to be so entitled may bring an Registrar as action against the Registrar as nominal defendant for recovery of defendant&c-damages or join the Registrar as nominal co-defendant in any action brought by such person in respect of such loss against any other person and the Registrar may join any other person as co-defendant in any such proceedings.

(3) No indemnity shall be payable under this Act— when ' indemnity

(a) where the claimant his solicitor or agent caused or notpayable-substantially contributed to the loss by fraud neglect or wilful default or derives title (otherwise than under a disposition for valuable consideration which is registered in the Register Book) from a person who or whose solicitor or agent has been guilty of such fraud neglect or wilful default (and the onus shall rest upon the applicant of negativing any such fraud, neglect or wilful default);


Limit of indemnity.

(b) on account of costs incurred in taking or defending any legal proceedings without the consent of the Registrar, except any costs which may be awarded against the Registrar in any proceedings in which <the Registrar is a party.

(4) Any indemnity paid in respect of the loss of any estate or interest in land shall not exceed—

(a) where the Register Book is not amended, the value of the estate or interest at the time when the error omission mistake or misfeasance which caused the loss was made;

(b) where the Register Book is amended, the value of the estate or interest immediately before the time of amendment.

costs. (5) If in any action under this section judgment is given in favour of the Registrar or the plaintiff discontinues or is nonsuited the plaintiff shall be liable to pay the full costs of the Registrar in the action, but save as aforesaid the Court may make such order as to costs as it thinks fit.

Payment from Assurance Fund.

(6) Any sum by way of indemnity or costs awarded against the Registrar under this section shall be paid out of the Assurance Fund.

Application to Registrar for indemntiy without bringing action. No. 5842 s. 111.

111. (1) Any person who under the last preceding section is entitled to bring an action for indemnity against the Registrar may before commencing such action apply for compensation by a claim to the Registrar in writing supported by affidavit or statutory declaration.

(2) If the Registrar admits the claim or any part thereof and certifies accordingly and the treasurer of Victoria signifies his approval the amount so certified shall be paid out of the Assurance Fund.

Implied covenants and powers. No. 5842 s. 112.

DIVISION 2 . MISCELLANEOUS.

112. (1) Every covenant and power to be implied in any instrument by virtue of this Act shall have the same force and effect as if set out at length in such instrument but may be negatived or modified by express declaration in the instrument.

(2) Where in any instrument there are more covenantors than one, such covenants as are by this Act declared to be implied in instruments of the like nature shall be construed to bind the parties jointly and severally.


113. (1) Any notice under this Act may be served or given service of by being sent by letter posted to the person concerned at his ° ^ ; 2 address for service or, if he has no address for service within the *• »3. meaning of this section, at his last known place of abode.

(2) Any address of a person as entered in the Register Book may be used as his address for service.

(3) The address appointed in a caveat as the place at which notices relating to the caveat may be served shall be the address for service of the caveator.

(4) The Registrar shall cause a copy of each notice sent by him to be filed with a memorandum that it was so sent and the memorandum shall be sufficient proof that the notice was duly sent.

(5) The Registrar shall on request in writing made by any person whose address is entered in the Register Book and on production of the duplicate certificate of title or Crown grant or instrument amend or alter the address.

(6) The Registrar shall on request in writing by a caveator amend or alter the address apointed in the caveat at which notices may be served.

(7) When a notice is sent by letter posted to any person at his address for service and the letter is returned by the post office the Registrar may if in the circumstances and having regard to the provisions of this Act he thinks fit—

(a) direct any further notice to be given; or

(b) direct substituted service; or

(c) proceed without notice.

114. (1) Any person may inspect the Register Book at any searches and time when the Office of Titles is open to the public. £o£iesed

(2) The Registrar shall furnish to any person who applies s. i'u. therefor a certified copy of any Crown grant certificate of title or registered instrument.

115. (1) Documents lodged with the Registrar shall be returned only to or at the direction of the person who lodged them or some person claiming through or under him.

(2) The Registrar may require a receipt in writing acknowledging the delivery to the proprietor or any other person of any such document or of any duplicate Crown grant or certificate of title.

Receipt for and return of lodged documents. No. 5842 s. 115.


Summoning Registrar to show cause. No. 5842 s. 116.

116. (1) If upon any application to bring land under the operation of this Act or to have any instrument registered or recorded or to have any certificate of title foreclosure order or other document issued the Registrar refuses so to do or if the Registrar refuses the application of any person to have any act or duty done or performed which by this Act is required to be done or performed by the Registrar such person may require the Registrar to state in writing the grounds of his refusal and may summon the Registrar to appear before the Court to substantiate and uphold the ground of his refusal.

(2) Any such summons shall be served upon the Registrar six clear days at least before the day appointed for hearing the matter.

(3) Upon the hearing the Registrar or his counsel shall have the right of reply; and the Court may, if any question of fact is involved, direct an issue to be tried to decide such fact; and thereafter the Court shall make such order in the matter as the circumstances of the case require, and the Registrar shall obey such order.

(4) The Court may make such order as to the costs and expenses of and attendant upon such summons or proceeding as it deems just; and all costs and expenses to be paid by the Registrar under such order shall be paid out of the Assurance Fund.

Officers not to be liable for acts done bona fide. No. 5842 s. 117.

117. Neither the Registrar nor any person acting under his authority shall be liable to any action suit or proceeding for or in respect of any act or matter bona fide done or omitted to be done in the exercise or supposed exercise of powers or duties under this Act.

Compensation for lodging caveat without reasonable cause. No. 5842 s. 118.

Offences and penalties. No. 5842 s. 119.

118. Any person lodging with the Registrar without reasonable cause any caveat under this Act shall be liable to make to any person who sustains damage thereby such compensation as the Court deems just and orders.

119. (1) Every person who—

(a) wilfully makes any false statement or declaration in any application under this Act;

(b) suppresses withholds or conceals or assists or joins in or is privy to suppressing withholding or concealing from the Registrar any material document fact or matter of information;

(c) wilfully makes any false declaration or statement under or for the purposes of or in relation to any dealing with land under this Act;


(d) fraudulently procures assists in fraudulently procuring or is privy to the fraudulent procurement of any certificate of title or instrument or of any entry erasure or alteration in the Register Book; or

(c) knowingly misleads or deceives any person authorized to require explanation or information in respect of any land or the title to any land under the operation of this Act or in respect of which any dealing is proposed to be registered—

shall be guilty of a misdemeanour and liable to a penalty of not more than Five hundred pounds or to imprisonment for a term of not more than three years or to both such penalty and imprisonment.(a)

(2) Any person who contravenes or fails to comply with any provision of this Act or the regulations shall be guilty of an offence and if no penalty is otherwise provided for such offence shall be liable to a penalty of not more than Fifty pounds.

120. (1) The Governor in Council may make regulations for or with respect to—

(a) the registration and issue of Crown grants certificates of title and instruments and duplicates thereof for the purposes of this Act;

(b) the preparation and signing of applications instruments and documents for the purposes of this Act and the size and quality of paper to be used in connexion therewith;

(c) prescribing forms for the purposes of this Act including forms for alternative use or to be used in substitution for any forms in the Schedules to this Aot, and all forms so prescribed or forms to the like effect shall be sufficient in law;

(d) the licensing of persons, including the Registrar, to sell forms for the purposes of this Act whether forms prescribed as aforesaid or not;

(e) all matters and things by this Act authorized to be prescribed or necessary or expedient to be prescribed to give effect to this Act;

(/) penalties not exceeding Fifty pounds for any breach of the regulations.

(a) See Crimes Act 1958 s. 278.


(2) All such regulations shall be published in the Government Gazette and shall be laid before both Houses of Parliament within fourteen days after the making thereof if Parliament is then sitting and if Parliament is not then sitting then within fourteen day after the next meeting of Parliament, and a copy of all such regulations shall be posted to each member of Parliament.

SCHEDULES.

FIRST SCHEDULE.

Number of Act. Title of Act. Extent of Repeal.

5842 . .

5934 . .

Transfer of Land Act 1954

Property Law and Transfer of Land Act 1955

So much as is not otherwise repealed.

Part II.

SECOND SCHEDULE.

Application to bring Land under the Operation of the Transfer of Land Act 1958.

To the Registrar of Titles.

I [name and address and occupation] hereby apply to have the land hereinafter described brought under the operation of the Transfer of Land Act 1958. And I declare—

1. That I am the owner of an estate in fee simple in possession [or of an estate of freehold in possession for my life or otherwise as the case may require] in ALL THAT piece of land being [insert if applicable part of] Crown allotment

section [or otherwise according to the Crown grant] parish county [// the land is part only of that granted add which land contains (insert area) or thereabouts and is described in the document numbered in the Schedule hereto or otherwise after the word thereabouts set forth a sufficient description to identify the land by reference to plan of survey].

2. That such land including all buildings and other improvements thereon is of the value of pounds and no more.

3. That there are no documents or evidences of title affecting such land in my possession or under my control other than those included in the Schedule hereto.

4. That I am not aware of any mortgage or encumbrance affecting the said land or that any other person has any estate or interest therein at law or in equity in possession remainder reversion or expectancy [if there be any add other than as follows and set the same forth].

5. That the said land is occupied [// unoccupied prefix un to occupied, if occupied add by whom and state the name and address of the occupant and the nature of his occupancy.]


SECOND SCHEDULE—continued.

6. That the names and addresses so far as known to me of the occupants of all land contiguous to the said land are as follows:—

7. That the names and addresses so far as known to me of the owners of all lands contiguous to the said land are as follows:—

[// the certificate of title is not to issue to the applicant add] And I direct the certificate of title to be issued in the name of [insert name, address and occupation].

SCHEDULE OF DOCUMENTS REFERRED TO.

day of One thousand nine hundred Dated this and Signed at

in the presence of

1.

THIRD SCHEDULE. NOTICE.

Application has been made to the Registrar of Titles to bring the land hereunder described under the Transfer of Land Act 1958 on a title claimed by possession {insert, if applicable, "as to part") .

The number of the application is Date of lodging in Office of Titles Name address and occupation of applicant

Land applied for {Here insert description, the same as in advertisement.)

Dated this day of 19 {Signature of applicant solicitor or agent.)

Section 11. No. 5842. Third Schedule.

FOURTH SCHEDULE. Section 12. VICTORIA. NO. 5842.

Caveat forbidding Land to be brought under the Transfer of Land Act 1958. ?°,u,1jh.„ To the Registrar of Titles.

TAKE NOTICE that I, A.B. {name address and occupation] claim [particularise the estate or interest claimed] in the land described as [copy description front the advertisement] in the advertisement relating to the application of [state applicant's name, address and occupation] and I forbid the bringing of such land under the operation of the Transfer of Land Act 1958. I appoint [insert address in Victoria] as the place at which notices and proceedings relating hereto may be served.

Dated this day of One thousand nine hundred and

{Signature of caveator solicitor or agent.)

FIFTH SCHEDULE. Part I.

VICTORIA.

Register Book. Vol. Fol.

Sections 16, 20.28. No. 5842. Fifth Schedule.

Certificate of Title under the Transfer of Land Act 1958. A.B. [name address and occupation] is now the proprietor of an estate in

fee simple [or other estate] subject to the encumbrances notified hereunder in ALL THAT piece of land delineated and coloured on the map hereon containing [area] or thereabouts being [// applicable part of] Crown allotment section [or otherwise according to the Crown grant] parish county

Dated this day of One thousand nine hundred and

(Seal of Office.) [Assistant] Registrar of Titles.

ENCUMBRANCES REFERRED TO.


FIFTH SCHEDULE—continued.

Part II. Register Book.

Vol. Fol.

VICTORIA.

Search No. Limited Certificate of Title.

Issued Pursuant to Division 2 of Part II. of the Transfer of Land Act 1958.

A.B. [name address and occupation] is now the proprietor of an estate in fee simple [or other estate] subject to the encumbrances notified hereunder and to the limitations expressed or implied by or under Division 2 of Part II. of the Transfer of Land Act 1958 in ALL THAT piece of land delineated and coloured on the map hereon containing [area] or thereabouts being [// applicable part of] Crown allotment section [or otherwise according to the Crown grant] parish county

This Certificate of Title is LIMITED [AS TO DESCRIPTION OF LAND or AS TO TITLE or AS TO BOTH DESCRIPTION OF LAND AND TITLE as the case may be]. The probable or possible defects in title and outstanding estates and interests and the acts or matters that ought to be done or proved and the requisitions that ought to be complied with in order to justify the Registrar in issuing an ordinary Certificate of Title are set forth in the Registrar's minutes filed in the Search above referred to.

Dated this hundred and

day of One thousand nine

(Seal of Office.) [Assistant] Registrar of Titles.


Sections 45, 77. No. 5842 Sixth Schedule-

SIXTH SCHEDULE.

Transfer of Land.

I, A.B. [name address and occupation] being registered as the proprietor of an estate in fee simple [('/ not in fee simple state the nature of the estate and if the property is leasehold say of a leasehold estate] in the land hereinafter described [or if the transfer is by mortgagee or annuitant under his power of sale being the proprietor of a mortgage {or charge as the case may be) from C D . numbered upon the land hereinafter described] subject to the encumbrances notified hereunder in consideration of HEREBY [in the case of a sale by a mortgagee or annuitant add in exercise of the power of sale conferred by the Transfer of Land Act 1958] TRANSFER to E.F. [name address and occupation] all my estate and interest [/'/ the transfer is by a mortgagee or annuitant under his power of sale add all the estate and interest of the said C D . on the day of One thousand nine hundred and {being the date of the registration of the mortgage or charge)] in ALL THAT piece of land [insert sufficient description of the land].

Dated this day of hundred and Signed at ]

by the said A.B. in the presence ofj Signed at

One thousand nine

by the said E.F. in the presence ofj )



SIXTH SCHEDULE—continued.

Transfer of Lease {or Mortgage or Charge).

I, A.B. [name address and occupation] being registered as the proprietor of a lease [or mortgage or charge or as the case may be] numbered of (or upon) the land hereinafter described subject to the encumbrances notified hereunder in consideration of HEREBY TRANSFER to CD. [name address and occupation] all my estate and interest as such registered proprietor in ALL THAT piece of land described in the said lease [or mortgage or charge].

Dated this hundred and Signed at


by the said A.B. in the presence of Signed at

by the said C D . in the presence of


SEVENTH SCHEDULE. TABLE A.

General Conditions of Sale of Land under the Transfer of Land Act 1958.

1. The purchaser or his solicitor shall within fourteen days from the day of sale deliver to the vendor or his solicitor in writing all requisitions or objections (if any) on or to the title or concerning any matter appearing in the particulars or conditions. All requisitions or objections not included in any such writing so delivered shall be deemed waived by the purchaser and in default of such requisitions (if none) and subject to such (if any) as are so delivered the purchaser shall be deemed to have accepted title.

2. If the purchaser within the said fourteen days makes any such requisition or objection as aforesaid which the vendor is unable or unwilling to remove or comply with the vendor or his solicitor (whether he has attempted to remove or comply with the same and notwithstanding any negotiation or litigation in respect thereof) may give to the purchaser or his solicitor notice in writing of the vendor's intention to rescind the contract at the expiration of seven days unless such requisition or objection is withdrawn and if such notice is so given and the requisition or objection is not withdrawn within such seven days the contract shall thereupon be rescinded and the vendor shall repay to the purchaser all deposit and other moneys received by him or his agent on account of the purchase money but without interest costs or damages and the same shall be accepted by the purchaser in full satisfaction of all claims.

3. No omission from the particulars or mistake in the description measurements or area of the land hereby sold shall invalidate the sale unless the vendor rescinds pursuant to the last preceding Condition but if notified to the other party not less than three days before the day fixed for completion or within two months of the day of the sale (whichever is the earlier) the same shall be the subject of compensation to be paid or received by the vendor as the case may require and to be assessed in case the parties differ by two arbitrators or their umpire in accordance with the provisions of the Arbitration Act 1958 and this condition shall in that event be deemed to be a submission to arbitration within that Act.

4. If the purchaser makes a default in payment of the purchase money or any part thereof—

(a) interest at the rate of eight per centum per annum in lieu of the rate (if any) named in the contract and computed upon such purchase money in arrear during the period of default shall be paid on demand by the purchaser to the vendor without prejudice however to the vendor's rights under paragraph (b) hereof;

Section 48. Nos. 5842. Seventh Schedule, 5934 s. 7.


SEVENTH SCHEDULE—continued.

(b) if the vendor has not accepted or agreed to accept interest pursuant to paragraph (a) hereof or if the purchaser has made default in payment of such interest the vendor fourteen days after notice of his intention so to do may forfeit the deposit money paid by the purchaser and without tendering an instrument of transfer resell the land sold either by public auction or private contract and all expenses thereof and the deficiency (if any) in price occasioned by such re-sale shall forthwith be paid by the purchaser to the vendor as liquidated damages.

5. If the purchaser makes default in payment of any instalment of the purchase money or other sum of money owing hereunder or in the performance or observance of any of these Conditions and if after fourteen days' notice in writing has been given by the vendor to the purchaser to remedy such default such default still continues the whole of the purchase money and other moneys owing or for the time being remaining unpaid hereunder shall notwithstanding anything herein contained and without prejudice to any other rights of the vendor at the option of the vendor become immediately payable and recoverable.

6. (1) Time shall be of the essence of this Contract in all respects provided however that if the purchaser makes default in the observance of any of the terms or conditions hereof the vendor shall not be entitled to exercise any of his rights or remedies arising out of such default (including his common law rights) other than his right to sue for the recovery of any moneys then owing unless and until he serves on the purchaser a notice in writing specifying the default and stating his intention to exercise his rights and remedies unless the default is remedied within a period of not less than fourteen days from the date of the service of such notice and the purchaser fails within such period to remedy the default.

(2) If such notice also states that unless the default is so remedied the contract will be rescinded pursuant to this sub-clause, then if the default is not remedied within such period—

(a) the Contract shall thereupon become rescinded and the deposit shall be forfeited to the vendor;

(6) the vendor may proceed to take or recover possession of the land sold; and

(c) the vendor may at his option either— (i) retain the said land and sue the purchaser for damages for

breach of contract, and pending the determination of such damages the vendor shall be entitled to retain all instalments paid hereunder; or

(ii) resell the said land either by public auction or private contract, and any deficiency in price upon such re-sale and the expenses thereof shall be paid upon demand by the purchaser to the vendor as and by way of liquidated damages.

7. If the vendor exercises the right of re-sale given to him by Condition 4 or Condition 6 (2) hereof he shall be entitled to apply any instalments of purchase money paid to him in satisfaction or partial satisfaction of any deficiency, and in exercising any of the said rights of re-sale it shall not be necessary for the vendor to first tender a transfer to the purchaser.

8. The land sold is purchased subject to the reservations exceptions and conditions (if any) contained in the Crown grant.

9. All rates taxes assessments fire insurance premiums and other outgoings in respect of the said land shall be borne and paid by the purchaser as from the date on which he becomes entitled to possession and the same shall if necessary be apportioned between the vendor and the purchaser and the rent (if any) shall be also apportioned on the same day and the balance paid or received as the case may require. In the case of land tax any such apportionment shall be computed on the basis that the land sold is the only land of which the vendor is the owner within the meaning of the Land Tax Act 1958.



10. Subject to the purchaser obtaining the consent of the fire insurance company, paying such apportioned premium as aforesaid, and accepting title in fact or by implication, the vendor shall hold the existing policy of insurance for himself and in trust for the purchaser and all other persons having an insurable interest and to the extent of such respective interests.

11. So long as any purchase or other moneys remain owing by the purchaser to the vendor—

(a) the purchaser shall at his own cost insure and keep insured in the names of the vendor and the purchaser and every other person having an insurable interest in some insurance office to be approved by the vendor all buildings now erected or hereafter to be erected on the said land and shall deliver the policy and annual premium receipt to the vendor. Such policy shall be for the full insurable value inclusive of the policy in the last preceding Condition mentioned. Upon default herein by the purchaser the vendor may pay any renewal premium or (as the case may be) may effect such insurance and pay any premium and any money so paid by him shall be payable to him by the purchaser on demand;

(Z») the purchaser shall keep all such buildings and all fencing in tenantable repair;

(c) neither the purchaser nor any transferee or sub-purchaser of the said land shall alter the construction of such buildings or in any way pull down or remove the same or any part thereof without the consent in writing of the vendor first obtained;

(d) the purchaser shall comply with and observe all statutory provisions and all regulations and by-laws thereunder from time to time in force which are binding upon owners or occupiers of land and which relate to the prevention or destruction of vermin noxious weeds or diseases of vegetation or vines;

(e) the vendor may enter upon the said land twice in every year at a reasonable time of the day and view the condition thereof and of any buildings thereon.

12. Upon payment of all purchase and other moneys payable by the purchaser under the contract the vendor shall sign a proper instrument of transfer to the purchaser of the land sold and deliver it to the purchaser together with the Crown grant or certificate of title or if other land or interests are then comprised therein or if the land sold is under mortgage shall make such grant or certificate available at the Office of Titles for registration. Such instrument of transfer shall be prepared by or on behalf of the purchaser.

13. Any demand or notice by one party on or to the other to be made or given under these Conditions shall be sufficiently made or given if made or given personally to the other party or his solicitor or if posted by prepaid letter to the address of the other party (if any) contained in the contract or to the solicitor of the other party.

14. (a) Where the consent or licence of any person or body is required to the sale, the vendor shall at his own expense apply for and use his best endeavours to obtain such consent or licence. If such consent or licence is not obtained by the date upon which the purchaser becomes entitled to possession of the land sold or to the receipt of the rents and profits thereof as the case may be (in these Conditions called " the settlement date") the contract shall be null and void and all moneys paid hereunder by the purchaser shall be refunded to him.

(b) If the land sold is leasehold, the rent and other monetary obligations payable by the vendor (except capital payments payable under any Crown lease) shall be adjusted between the parties in the same manner as is provided by these Conditions for the adjustment of rates. The purchaser shall indemnify the vendor against all claims in respect of all the obligations under the said lease which are to be performed after the settlement date.


Section 52. No. 5842. Eighth Schedule.


15. The purchaser shall assume liability for compliance with any notices or orders relating to the property sold (other than those referring to apportionable outgoings) which are made or issued on or after the date hereof but the purchaser shall be entitled to enter on the property sold (without thereby being deemed to have accepted title) at any time prior to the settlement date for the purpose of complying with any such notice or order which requires to be complied with before the settlement date.

16. Any payment due under this Contract may be made or tendered either in cash or by a draft or cheque drawn by a Bank as defined by the Commonwealth Banking Act 1945 or any Act amending or replacing that Act.

EIGHTH SCHEDULE.

Transfer under Writ of Fieri Facias.

I, A.B., as the Sheriff of [or as the person appointed to execute the writ hereinafter mentioned or otherwise as the case may be] in pursuance of a writ of fieri facias tested the day of One thousand nine hundred and and issued out of the Supreme Court in an action wherein is the plaintiff and the defendant which said is registered as the proprietor of an estate in fee simple [or of a lease or mortgage or charge or as the case may be numbered ] in [or of or upon] the land hereinafter described subject to the encumbrances notified hereunder and to effectuate the sale made under such writ HEREBY in consideration of the sum of pounds paid to me by E.F. [insert name address and occupation] TRANSFER to the said E.F. all the estate and interest of the said in All that piece of land being [insert sufficient description of the land].



by the said A.B. in the presence of J Signed at 1

by the said E.F. in the presence of J


Transfer under Decree Judgment or Order of Supreme Court [or of the County Court or as the case may be].

I, A.B. [insert title of Officer of the Court] in pursuance of a decree judgment or order of the Supreme Court [or of the County Court or as the case may be] dated the day of One thousand nine hundred and and entered in the Register Book number [or on instrument of lease or mortgage or charge or as the case may be numbered

in the Register Book] HEREBY in consideration of the sum of pounds paid to me by E.F. [name address and occupation] TRANSFER to the said E.F. subject to the encumbrances notified hereunder all the estate and interest of (who is registered as the proprietor of an estate [here state nature of the estate] in the land hereinafter described) in All that piece of land being [insert sufficient description of the land].

Dated this day of One thousand nine hundred and Signed at


by the said E.F. in the presence of J ENCUMBRANCES REFERRED TO.


NINTH SCHEDULE.

Application for Vesting Order.

To the Registrar of Titles—

I, A.B. [name address and occupation] hereby apply for an order vesting in me all that piece of land being [give sufficient description of the land by reference to volume and folium and where a survey plan has been prepared by reference to such plan] for an estate in fee simple in possession [or as the case may be] free from encumbrances (other than any special reservation exception or condition in the Crown grant) and I declare—

(1) That [set forth short particulars of the possession on which the claim h based\.

(2) That there are no documents or evidences of title affecting such land in my possession or under my control other than those included in the Schedule hereto.

Section 60. No. 5842. Ninth Schedule.

(3) That save as appearing in the Register Book I am not aware of any mortgage or encumbrance affecting the said land or that any person other than myself has any estate or interest therein [if there be any add] save and except [and set out same].

(4) That the names and addresses so far as known to me of the occupants of all lands contiguous to the said land are as follows:—

(5) That the names and addresses so far as known to me of the owners of all lands contiguous to the said land are as follows:—

(6) That the present value of the land including all improvements thereon is pounds and no more.


in the presence of

SCHEDULE.


TENTH SCHEDULE. Lease.

A.B. [name address and occupation] (hereinafter called the lessor) who is registered as the proprietor of an estate [here state nature of the estate] in the land hereinafter described subject to the encumbrances notified hereunder, HEREBY LEASES TO CD. [name address and occupation] (hereinafter called the lessee) ALL THAT piece of land being [insert sufficient description of the land] To BE HELD by the lessee for the term of years [or from year to year or as the case may be] from the day of One thousand nine hundred and at the clear yearly rent of payable [here insert terms of payment] subject to the covenants and powers implied under the Transfer of Land Act 1958 [set out extent {if any) to which any such covenants and powers are to be negatived or modified] and also to the covenants and conditions hereinafter contained [here set forth any covenants or conditions].

Dated this day of hundred and Signed at

by the lessor in the presence of Signed at

by the lessee in the presence of

Section 66. No. 5842. Tenth Schedule.

One thousand nine



Section 71. No. 5842. Eleventh Schedule.

ELEVENTH SCHEDULE.

Sub-lease.

A.B. [name address and occupation] (hereinafter called the sub-lessor) who is registered as the proprietor of a lease numbered of the land hereinafter described, subject to the encumbrances notified hereunder, HEREBY SUB-LEASES to C D . [name address and occupation] (hereinafter called the sub-lessee) ALL THAT piece of land being [give a sufficient description of the land] being [insert, if applicable, part of] the land comprised in the said lease, to be held by the sub-lessee for the term of [insert term of sub-lease], at the clear yearly rent of payable [insert terms of payment], subject to the covenants and powers implied under the Transfer of Land Act 1958 [set out extent (if any) to which any such covenants and powers are to be negatived or modified] and also to the covenants and conditions hereinafter contained [here set forth any special covenants and conditions].



by the sub-lessor in the presence of Signed at

by the sub-lessee in the presence of


Section 72. No. 5842 Twelfth Schedule.

TWELFTH SCHEDULE.

Right of Carriage-way.

Together with full and free right and liberty to and for the registered proprietor for the time being of the land herein described [or hereby transferred or as the case may be] or any part thereof and his tenants servants agents workmen and visitors to go pass and repass at all times hereafter and for all purposes and either with or without horses or other animals carts or other carriages into and out of and from the said land or any part thereof through over and along the road or way or several roads or ways delineated [and coloured brown] on the said map [or plan of subdivision].

Section 74. No. 5842. Thirteenth Schedule.

THIRTEENTH SCHEDULE.

Mortgage.

I [name address and occupation] being registered as the proprietor of an estate [here state nature of the estate] in the land hereinafter described subject to the encumbrances notified hereunder in consideration of the sum of lent to me by C D . [name, address and occupation] (hereinafter called the mortgagee) HEREBY COVENANT with the mortgagee—

FIRSTLY to pay to the mortgagee or his transferee the principal sum of pounds on the day of

SECONDLY to pay to the mortgagee or his transferee so long as the said principal sum or any part thereof shall remain unpaid interest on the said sum or on so much thereof as shall for the time being remain unpaid at the rate of per centum per annum by equal payments on the day of and on the day of in every year.

THIRDLY [here set forth any special covenants].


THIRTEENTH SCHEDULE—continued.

AND for better securing the payment in manner aforesaid of the said principal sum and interest I HEREBY MORTGAGE to the mortgagee all my estate and interest in ALL THAT piece of land being [give a sufficient description of the land].





FOURTEENTH SCHEDULE.

Charge of an Annuity.

I, A.B. [name address and occupation] being registered as the proprietor of an estate [here state nature of the estate] in ALL THAT piece of land being [give sufficient description of the land] subject to the encumbrances notified hereunder and desiring to render the said land available for the purpose of securing to and for the benfit of C D . [name address and occupation] the annuity hereinafter mentioned HEREBY CHARGE the said land for the benefit of the said C D . with an annuity of pounds to be paid at the times and in the manner following that is to say [here state the times appointed for the payment of the annuity and the events on which it shall cease to be payable also any special covenants or powers and any modification of the powers or remedies given to an annuitant by the Act].

And subject as aforesaid the said C D . shall be entitled to all powers and remedies given to an annuitant by the Transfer of Land Act 1958.





FIFTEENTH SCHEDULE.

Covenant in Mortgage to Insure.

That I my executors administrators or transferees will insure and so long as any money shall remain secured by this mortgage keep insured against loss or damage by fire in the name of the mortgagee or his transferees in some public insurance office to be approved of by him or them all buildings fixtures or other improvements which shall for the time being be erected on the said land, and which shall be of a nature or kind capable of being so insured, to the amount either of the principal money hereby secured or of the full value of such buildings and will when required deposit with the mortgagee or his transferees the policy of such insurance and at least seven days before each premium is payable the receipt for such premium. And that the moneys which shall be received on account of such insurance shall at his or their option be applied either in or towards satisfaction of the moneys secured by this mortgage or in rebuilding or reinstating under the superintendence of his or their surveyor the buildings fixtures or other improvements destroyed or damaged. And that on any breach or non-observance of this covenant he or they shall be at liberty to effect such insurance and continue the same for such period as may be deemed fit and the costs and expenses paid on account thereof shall be a charge upon the said land and bear interest at the same rate as if principal money overdue.

Section 74. No. 5842. Fourteenth Schedule.

Section 75. No. 5842. Fifteenth Schedule.


Section 89. No. 5842. Sixteenth Schedule.

SIXTEENTH SCHEDULE.

Caveat forbidding Registration of any Dealing, &c.

To the Registrar of Titles. Take notice that I [name address and occupation] claim [specify the estate or

interest claimed] in [describe land] standing in the Register Book Volume folium in the name of And I forbid the registration of any person as transferee or proprietor of and of any instrument affecting the said estate or interest absolutely [or until after notice of any intended registration or registered dealing is given to me at the address hereinafter mentioned or unless such instrument is expressed to be subject to my claim or unless I consent in writing thereto as the case may require] I appoint [insert address in Victoria] as the place at which notices and proceedings relating to this caveat may be served.

Dated this hundred and

day of One thuusand nine

(Signature of caveator or solicitor or agent.)

Section 92. No. 5842. Seventeenth Schedule.

SEVENTEENTH SCHEDULE.

Application for Search Certificate.

I hereby request to be informed whether there is any and if any what obstacle to a dealing by—[A.B. give name of proprietor]—with the land comprised in certificate Vol. Fol.

Signature of applicant—

Search Certificate No.

The last registered dealing or encumbrance affecting the title of the proprietor to the land comprised in the above certificate of title is noted upon the certificate as follows:—[Refer to the last entry upon the certificate in such a way as distinctly to identify, or if the title is clear state that there is no dealing or encumbrance mentioned upon the certificate].

At the time of issuing this certificate there is nothing to prevent the registration of a dealing by the registered proprietor except—[// the title is clear and there is nothing to prevent dealing, strike out the word " except"].

[// there is any caveat or dealing lodged for registration, application by trustee in bankruptcy, copy writ of fi. fa. or other obstacle to dealing not noted on the certificate of title, refer to such obstacle in such a way as to eive the applicant notice of it and to enable him to ascertain particulars by inspection.]

The information above given refers only to the present state of the Register and the present right to register a dealing with the interest of the proprietor appearing on the Register.

The seal of the Office of Titles was affixed to this search certificate at the hour of o'clock on the day of 19 Initials of certifying officer.

Section 93. No. 5842. Eighteenth Schedule.

EIGHTEENTH SCHEDULE.

Application for Stay of Registration as to Title of A.B. to Land comprised in Certificate Vol. Fol. as to which Search Certificate No. has been applied for.

I, CD., of now dealing bona fide for value with the above-named A.B. as to land comprised in the above certificate, in order to protect such dealing, hereby apply for a stay of registration of any instrument affecting the land proposed to be dealt with for forty-eight hours from the time named in the search certificate. The particulars of the proposed dealing are as follows:—

The transaction is—[State whether sale mortgage exchange lease or other dealing for value].


EIGHTEENTH SCHEDULE—continued.

The land to be comprised in the dealing is all the land comprised in the above certificate—[// not all, strike out the words following " is " and describe the land in such a manner as distinctly to identify it].

Signature of the applicant or his solicitor or agent. I consent to the above application for stay of registration, and certify that

the proposed dealing is as above stated. Signature of proprietor or of his solicitor or agent.

Order for Stay of Registration.

I hereby direct that for forty-eight hours from o'clock on the day of 19 nothing is to be entered in the Register Book as to the land above described except an instrument giving effect to the above dealing, which if lodged for registration within that time is to have priority over all other instruments which may be lodged for registration during such forty-eight hours.

[Assistant] Registrar of Titles.

NINETEENTH SCHEDULE.

Application to amend Certificate of Title.

To the Registrar of Titles.

I, , hereby apply to have the certificate of title Vol. Fol. amended in the following particulars:—[State the nature of proposed amendment, e.g. to accord with the land colored red on plan of survey by X.Y., Licensed Surveyor, dated and lodged herewith]. And I declare—

1. That the land which would be described by such certificate when amended in accordance with this application is now in my occupation, and has been actually and bona fide occupied by me or persons holding under me since and purported to be so occupied under the title in respect of which the certificate issued [or as the case may be].

1. That the nature of such occupation was as follows:—[State generally how and by whom the land has been occupied, as, for instance, by myself as a farm and dwelling; by my tenants, A.B. and C.D., as shops; or partly by me as a dwelling, and partly by my tenant, A.B., as a shop].

3. That the names and addresses so far as known to me of the occupants of all lands contiguous to the land so occupied by me are as follows:—

4. That the names and addresses so far as known to me of the owners of all lands contiguous to the land so occupied by me are as follows:—

5. That no part of the said land has been the subject of any proceedings in any court.—[// there have been any such proceedings add " except that" and give particulars of such proceedings and their result.]

6. That to the best of my knowledge and belief the reasons why the description of the land in the said certificate does not accord with the description of the land so occupied by me are the following:—[Set out reasons].

Section 99. No. 5842. Nineteenth Schedule.

Dated this

Signed at

in the presence of

day of 19


Section 108. No. 5842. Twentieth Schedule; Gov. Gaz. No. 593, 20th June. 1956.

TWENTIETH SCHEDULE.

FEES PAYABLE UNDER THIS ACT.

[Note: These fees may be altered by Order in Council published in the

£ s. d. Government Gazette.]

8

1. On making application to bring land under the operation of this Act—

When the value does not exceed £400 . . . . . . 5 0 0 When the value does not exceed £600 . . . . . . 6 0 0 When the value does not exceed £750 . . . . . . 7 0 0 When the value does not exceed £1,000 . . . . 8 0 0 and for every additional £1,000 or fractional part of £1,000 2 0 0

2. On every application to bring land under this Act for every title of an adjoining owner produced for amendment . . . . 1 0 0

3. On every application under section 9. section 60. section 63, section 73 or section 99 where a plan of subdivision requires amending, for every plan of subdivision so amended . . 1 10 0

4. For each certificate of title or Crown grant amended under section 101 . . . . . . . . . . . . 2 0 0

5. On every application under section 10 (4) . . . . . . 4 0 0 6. For order for an inspection of any documents permanently

retained . . . . . . . . . . 0 10 0 7. For copy of or extract from any document deposited in support

of an application to bring land under the Act and retained or any caveat, for every folio of seventy-two words or part of a folio . . . . . . . . . . . . 0 5 0

By an acquiring authority under Division 4 of Part IV.—

(a) On lodgment of application . . . . . . 3 0 0 (b) For each grant or certificate wholly affected . . 0 10 0 (c) For each grant or certificate partially affected . . 0 10 0 (d) For cancellation of or endorsement or entry upon each

mortgage or other material instrument or document or plan of subdivision . . . . . . 1 0 0

On every application under section 63 . . . . . . 5 0 0 For Registrar's certificate under section 65. for each certificate . . 2 0 0 For each plan in connexion with any notice served by the

Registrar . . . . . . . . 0 10 0 12. On every application by a registered proprietor under section 99

or section 103, where a plan of survey is required . . . . 5 0 0 On every application under section 99, whereby other certificates

are amended, for each certificate so amended . . . . 2 0 0 On every application by a registered proprietor under section 103

for amendment of a title as to the description of land where no plan of survey is required . . . . . . . . 3 0 0

On every such application for amendment for every title after the first . . . . . . . . . . 1 10 0

On every application for amendment for every title of an adjoining owner produced for amendment . . . . . . 1 10 0

On every other application to have a certificate of title amended, and on every application to have an endorsement on a registered instrument amended . . . . . . . . 1 0 0

On every application under section 60, or section 73 . . . . 5 0 0 For each cancellation of a Crown grant or certificate of title,

wholly or in part, or of an instrument entry or endorsement under section 62. or of an easement under section 73 . . 1 0 0

9. 10 11

13

14.

15.

16.

17.

18. 19.


TWENTIETH SCHEDULE—continued.

20. On lodgment for registration of any lease, mortgage, or charge, or discharge of a mortgage or charge wholly or partially, or satisfaction of an annuity or surrender of a lease or of any other instrument not otherwise specified herein

21. On lodgment for registration of—

£ s. a.

2 0 0

(a) any transfer on sale for a consideration-of not more than £1,000 of not more than £5,000 of not more than £10,000 of not more than £20,000 of over £20,000

(b) any transfer other than a transfer on sale

22. On lodgment for registration of a transfer by direction-direction

-for each

23. For every new certificate of title 24. On every application for the consolidation in one certificate of

lands included in more than one grant or certificate—for each grant or certificate to be consolidated

25. For registering a triplicate instrument of lease

26. On every application for entry of a legal personal representative or trustee of a bankrupt as a proprietor, or for entry of survivors or other persons as proprietors in cases of joint proprietorship

27. On lodgment of a caveat 28. On lodgment of a withdrawal of caveat 29. On lodgment for entry of a copy of writ of fi. fa. or warrant

under the Mines Act 1958 or of a decree or order of the High Court of Australia or of the Supreme Court of Victoria, or of the County Court

30. On every satisfaction of any such writ lodged for each entry . . 31. On any instrument lodged which purports to deal with or affect

more than one Crown grant, certificate of title, mortgage, lease or charge, for each memorandum of entry after the first

32. On lodgment of an application for entry of foreclosure of a mortgage

33. On lodgment of an application for registering recovery of possession by legal proceedings or for registering the lessor as surrenderee or for the removal of a lease or sub-lease upon determination otherwise than by effluxion of time

34. On lodgment of an application for the vesting of a lease in mortgagees on refusal of assignees to accept the same

35. On lodgment of an application for removal of any encumbrance subsisting at time of bringing land under the Act

36. On lodgment of an application for removal of any encumbrance not otherwise specified in this Schedule . .

2 0 0 3 0 0 4 0 0 6 0 0 8 0 0 2 0 0

2 0 0

2 0 0

0 10 0

0 10 0

2 0 0

1 0 0 0 10 0

2 0 0

1 0 0

0 10 0

5 0 0

2 0 0

2 0 0

2 0 0

2 0 0



37. On lodgment of an application for the issue of a new certificate of title under section 31, for each title affected

£ s. d.

3 0 0

3 0 0 1 10 0 2 0 0

0 5 0

2 0 0

38. On lodgment of an application for order dispensing with production of any duplicate instrument—for each instrument affected . . . . . . . . . . . . 3 0 0

39. On every application for statement of grounds under section 116 40. On depositing document declaratory of trusts 41. (a) On lodgment of a plan of subdivision . .

(b) In addition, for each lot in excess of four lots (maximum fee for one plan, £20)

(c) On approval of a plan of subdivision

42. On every duplicate plan of subdivision lodged for examination— such fee as may be fixed by the Registrar.

43. On lodgment of an application to cancel or amend a plan of subdivision lodged under section 97

44. For furnishing diagrams—fee to be fixed by Registrar.

45. For every search for first title where volume and folium are supplied

46. For every search for ten or fraction or ten titles after the first in one name or one set of names where volumes and foliums are supplied

47. For every search for first title where volume and folium are not supplied

48. For every search for ten or fraction of ten titles after the first in one name or one set of names where volumes and foliums are not supplied

49. For searching and issuing search certificate 50. For every order staying registration 51. For every certified copy, first folio of seventy-two words 52. For every folio or part of a folio after the first 53. For every map thereon 54. For every summons 55. For examination thereunder 56. For every appointment as sworn valuator 57. For cancellation of any mortgage or charge under section 376 (c)

of the Local Government Act 1958

58. (a) On lodgment of an application for the issue of a certificate of lease, mortgage, or charge under section 35 . .

(6) For every certificate of lease, mortgage, or charge issuing upon such application

59. On lodgment of an application to the Registrar for entry of a disposition under section 59

60. On amendment or alteration of an address pursuant to section 113 61. On every dealing sent by post to or left for lodgment at the Office

of Titles under cover and accepted by the Registrar for lodgment—an additional fee of

62. On every application made to the Registrar for a vesting order under section 47

5 0 0

0 5 0

0 3 0

0 6 0

0 4 0

1 0 0 1 0 0 1 0 0 0 3 0 0 10 0 0 5 0 1 0 0

10 0 0

1 0 0

2 0 0

2 0 0

3 0 0

1 0 0

0 10 0

5 0 0



63. On every subpoena to produce documents 64. On every application for amendment under section 527 of the

Local Government Act 1958 65. For every control order, issuing order or order making title,

instrument, or other document available for the purpose of registering any instrument, application, or other dealing

66. For every order under section 38 . . 67. On every application for a vesting order under section 58 68. On every application under section 72 (2) 69. On every application under section 84 (2) . . 70. On every application under section 88 (1) to enter restrictive

covenant, for each Crown grant or certificate of title affected 71. On every application under section 88 (1) to release, vary, or

modify a restrictive covenant 72. On every application under section 106 (b) 73. On every application under section 106 (c) . .

£ 2

d. 0

5 0 0

. 0 5 0

. 2 0 0

. 3 0 0

. 3 0 0 3 0 0

1 0 0

0 0 0