Part 6 The Register and registration
(1) The Registrar-General shall cause a Register to be maintained for the purposes of this Act.(2) The Register shall be comprised of:(a) folios,(b) dealings registered therein under this or any other Act,(c) the record required to be kept pursuant to section 32 (7),(d) instruments of a prescribed class, and(e) records required by the regulations to be kept as part of the Register.(3) The Register may be maintained in or upon any medium or combination of mediums capable of having information recorded in or upon it or them.(4) The Registrar-General may, from time to time, vary the manner or form in which the whole or any part of the Register is maintained.
(1) The Registrar-General creates a folio of the Register for land by making a record of:(a) a description of the land and of the estate or interest therein for which it is created,(b) a description of the proprietor for the time being of the estate or interest and the fact that any such proprietor is a minor if the Registrar-General knows that to be the case, and(c) such particulars, as the Registrar-General thinks fit, of:and by allocating a distinctive reference to the record so made.(i) other estates or interests, if any, affecting the land, and(ii) other information, if any, that relates to the land or any estate or interest therein and is included in that record pursuant to this or any other Act (including an Act of the Parliament of the Commonwealth) or an instrument made under any such Act,(2) Subsection (1) does not apply in respect of a folio of the Register constituted under section 22 or 23 of the Strata Schemes (Freehold Development) Act 1973 or section 25 or 27 of the Strata Schemes (Leasehold Development) Act 1986.(2A) Subsection (1) (c) applies, in the case of a qualified folio of the Register, subject to the provisions of section 28I.(3) Where a person is registered as proprietor of a lease registered under this Act, the Registrar-General may:(a) if the Registrar-General thinks fit so to do, create a folio or folios of the Register for the estate or interest of that person in some or all of the land leased, and(b) for that purpose, require the deposit in the office of the Registrar-General of a plan of the land (together with copies) which shall, if the Registrar-General so requires, be a plan of survey.(4) The Registrar-General may, if the Registrar-General thinks fit so to do, create a new folio or new folios of the Register for the whole or any part of the land comprised in one or more of the folios of the Register.(5) Where, under this Act, the Registrar-General creates a new folio of the Register for land contained in a previously created folio of the Register, the Registrar-General shall appropriately cancel the previously created folio and may, for the purposes of this subsection, require the production to the Registrar-General of any certificate of title.(6) The Registrar-General shall have, and shall be deemed always to have had, power to cancel in such manner as the Registrar-General considers proper any recording in the Register that the Registrar-General is satisfied does not affect the land to which the recording purports to relate.(7) The Registrar-General shall maintain a record of all dealings recorded in, or action taken in respect of, a computer folio and such other information, if any, relating to the folio as the Registrar-General thinks fit.
33 Issue of certificates of title
(1) The Registrar-General may, if the Registrar-General thinks fit so to do, from time to time issue a certificate of title for the land comprised in any folio of the Register and may, for the purposes of subsection (4), require the production to the Registrar-General of any certificate of title.(2) A certificate of title shall be in an approved form.(3) The Registrar-General shall not issue a certificate of title unless there is endorsed on the certificate of title the distinctive reference allocated to the folio of the Register to which it relates.(4) When the Registrar-General issues a certificate of title, the Registrar-General shall cancel, wholly or partially as the case may require, any certificate of title thereby superseded and that has been produced, or is otherwise available, to the Registrar-General.(5) Notwithstanding subsection (1) but subject to subsection (6), the Registrar-General shall issue a certificate of title for the land comprised in a folio of the Register upon the written request of:(a) the registered proprietor of that land, or(b) any registered mortgagee, registered chargee or covenant chargee of that land.(6) A request made under subsection (5) does not require the Registrar-General to issue a certificate of title for the land comprised in a folio of the Register if a certificate of title for that land has been issued but has not been lodged with the Registrar-General.
33A Delivery etc of instruments in the custody of the Registrar-General
(1) The Registrar-General:(a) where the Registrar-General considers it proper so to do, may deliver an instrument (being a grant, certificate of title or duplicate registered dealing) in the Registrar-General’s custody to the person by whom it was lodged, or to the person’s solicitor, known agent or attorney, unless the person by whom it was lodged has given written instructions to the Registrar-General for the delivery of the instrument to some other person,(b) where written instructions have been given as referred to in paragraph (a), shall not deliver such an instrument otherwise than in accordance with those instructions,(c) where the Registrar-General would, but for this paragraph, be unable to determine to whom such an instrument should be delivered, may deliver it to the person the Registrar-General considers best entitled thereto.(2) An instrument in the custody of the Registrar-General, being a grant, certificate of title or duplicate registered dealing, may be used by the Registrar-General in the course of registering a dealing affecting the land, estate or interest to which the instrument relates:(a) if the instrument was lodged by or on behalf of the person who lodged that dealing or was lodged for the purpose of enabling that dealing to be registered, or(b) if the Registrar-General gives to the person entitled to the instrument written notice of the Registrar-General’s intention so to use the instrument and that person does not within a time specified in the notice for the purpose, notify the Registrar-General in writing of the person’s refusal to permit the instrument so to be used.(3) Where the Registrar-General, in a notice given pursuant to subsection (2), indicates that the Registrar-General proposes to deliver an instrument specified in the notice to a person nominated in the notice the Registrar-General may, unless the person to whom the notice is given notifies the Registrar-General before the expiration of a period specified in the notice for the purposes of this subsection that the person objects to that proposal, deliver the instrument in accordance with the proposal.(4) Subject to subsections (4A) and (4B), for the purposes of subsections (1) (a) and (2) (a):(a) a grant or the first certificate of title issued for land brought under the provisions of this Act pursuant to Part 3 shall be deemed to have been lodged by the grantee or the registered proprietor named therein, as the case may be, and(b) a certificate of title shall:(i) where it is the first certificate of title issued in respect of land for which a folio of the Register has been created under section 17 (2)—be deemed to have been lodged by the person who lodged the primary application pursuant to which the folio was created or, where the folio was created in accordance with a direction or conveyance by the primary applicant, by the person who lodged the direction or conveyance,(ii) where it is the first certificate of title issued in respect of land for which a folio of the Register has been created under section 28B, 28C (2), 28D, 28E (2), 28EA (1) or 28T (1), (2) or (3)—be deemed to have been lodged by the person nominated by the registered proprietor named therein as entitled to take delivery thereof,(iii) where it is the first certificate of title issued after the total or partial cancellation of a superseded certificate of title under section 33 (4)—be deemed to have been lodged by the person who, in the opinion of the Registrar-General, would have been entitled to take delivery of the superseded certificate of title had it not been cancelled wholly or partially, as the case may be,(iv) where it is the first certificate of title issued pursuant to the grant of a possessory application—be deemed to have been lodged by the person who lodged the possessory application, and(v) where it is issued pursuant to section 111—be deemed to have been lodged by the person who lodged the application for issue of the certificate of title.(4A) Subject to subsection (4B), for the purposes of subsections (1) (a) and (2) (a), a grant or certificate of title referred to in subsection (4) issued in respect of land that is subject to a mortgage, charge or covenant charge shall be deemed to have been lodged by the registered proprietor of the mortgage, charge or covenant charge affecting the land over which no other mortgage, charge or covenant charge has priority.(4B) Subsections (4) and (4A) do not apply in respect of a grant or certificate of title that has in fact been lodged with the Registrar-General.(4C) No person shall be entitled to require delivery to himself or herself of any certificate of title that has been partially cancelled but the Registrar-General may, if the Registrar-General thinks fit so to do, deliver a partially cancelled certificate of title under subsection (1).(5) The Registrar-General may assume, and shall be deemed always to have been entitled to assume, that a person who lodges with the Registrar-General any dealing or other document has authority from all persons claiming under, or having an interest in, the dealing or other document:(a) to lodge it with the Registrar-General,(b) to uplift it for amendment or to withdraw it from registration and, in either case, to give a receipt therefor,(c) to receive requisitions, communications and notices in respect thereof, and(d) to attend to all other matters which may arise in the course of registration thereof or in the course of any other action within the office of the Registrar-General with respect thereto.
36 Lodgment and registration of documents
(1) In this section:caveat means a caveat referred to in section 74F.
memorandum has the same meaning as it has in section 80A (1).
(1A) When the Registrar-General accepts a dealing, memorandum or caveat presented for lodgment, the Registrar-General shall allot thereto a distinctive reference.(1B) A dealing, memorandum or caveat is lodged, within the meaning of this Act, only when the Registrar-General has, under subsection (1A), allotted thereto a distinctive reference.(1C) The Registrar-General may refuse to accept a dealing, memorandum or caveat presented for lodgment if it does not comply with any requirement made, with respect to the dealing, memorandum or caveat, by or under this or any other Act.(1D) Without affecting the generality of subsection (1C), the Registrar-General may refuse to accept a dealing or caveat presented for lodgment:(a) that does not recite the distinctive reference allotted under this Act to the folio of the Register or to the registered dealing intended to be affected by the dealing or caveat,(b) unless the regulations otherwise provide, that is not attested by a witness who is not a party to the dealing or caveat, or(c) that is not lodged in a manner approved for the time being by the Registrar-General.(1E) If the Registrar-General has grounds for believing that a dealing or caveat has not been duly executed or attested, the Registrar-General may require the execution or attestation to be proved in such manner as the Registrar-General thinks fit.(2) Where a plan referred to in subsection (3), or a dealing or caveat, presented for lodgment purports to have been executed under a power of attorney, the Registrar-General may refuse:(a) to accept it for lodgment, or(b) to make any recording or entry in the Register or take any other action in respect of it,unless the power of attorney has been registered as provided for by the Powers of Attorney Act 2003.(3) Where a plan intended to be registered pursuant to the provisions of the Strata Schemes (Freehold Development) Act 1973 or the Strata Schemes (Leasehold Development) Act 1986 or a dealing, caveat or other document purports to have been signed or otherwise executed under a power of attorney or under any other power or authority, whether statutory or not, the Registrar-General may assume that the plan, dealing, caveat or other document was so signed or otherwise executed and that there was sufficient power or authority for its being signed or otherwise executed.(4) Where two or more dealings which affect the same land have been lodged and are awaiting registration, the Registrar-General may register those dealings in the order which will give effect to the intentions of the parties as expressed in, or apparent to the Registrar-General from, the dealings.(5) Subject to section 12A, where the intentions of the parties to dealings referred to in subsection (4) appear to the Registrar-General to conflict, the order of registration shall be the order in which the dealings were lodged in registrable form.(6) For the purposes of this section:(a) a dealing that is lodged in registrable form and is subsequently uplifted shall be deemed not to be in registrable form until relodged in a manner approved for the time being by the Registrar-General and in registrable form,(b) a dealing shall be deemed not to be in registrable form:(i) if, notwithstanding anything done under section 39 (3), the dealing requires a material correction, alteration or addition,(ii) unless the Registrar-General has authority to use, for the purpose of registering the dealing, the relevant certificate of title, or(iii) unless the dealing is in the approved form, and(c) notwithstanding that it may have been accepted for lodgment by the Registrar-General, a dealing that is not in registrable form shall, where it is not uplifted, be deemed not to have been lodged with the Registrar-General until it is in registrable form.(6AA) A caveat that is lodged with the Registrar-General and is subsequently uplifted is ineffective to prohibit the recording or registration of any dealing or delimitation plan, or the granting of any application, the recording, registration or granting of which is prohibited by the caveat, until the caveat is relodged with the Registrar-General.(6A) A dealing is registered when the Registrar-General has made such recording in the Register with respect to the dealing as the Registrar-General thinks fit.(7) Where two or more dealings that affect the same land have been lodged and are awaiting registration the Registrar-General may, if the Registrar-General thinks fit, register those dealings by making one or more recordings in such part or parts of the Register as the Registrar-General considers appropriate.(8) Dealings registered under subsection (7) shall be deemed to have been duly registered notwithstanding any requirement in this Act that dealings be executed by a registered proprietor and, for the purposes of Part 4A or 14, upon registration of such a dealing a person expressed therein to take an estate or interest in land under the provisions of this Act shall be deemed to have become registered as proprietor of that estate or interest according to the tenor of the dealing.(9) Dealings registered with respect to, or affecting the same estate or interest shall, notwithstanding any notice (whether express, implied or constructive), be entitled in priority the one over the other according to the order of registration thereof and not according to the dates of the dealings.(10) Upon registration of a dealing the Registrar-General shall deliver any duplicate thereof to the person who, pursuant to section 33A, appears to the Registrar-General to be entitled thereto.(11) Upon registration, a dealing shall have the effect of a deed duly executed by the parties who signed it.
36A Notification of permits, licences and permissive occupancies affecting Crown land
(1) In this section:enclosure permit means a permit granted under the Crown Lands Act 1989 to enclose a road or watercourse or part of a road or watercourse.
licence means a licence granted under the Crown Lands Act 1989 authorising the use or occupation of Crown land.
permissive occupancy has the same meaning as in the Crown Lands (Continued Tenures) Act 1989.
(2) The Registrar-General may record a note in a folio of the Register to indicate that land has the benefit of an enclosure permit, licence or permissive occupancy and may alter or remove any such note.(3) The Registrar-General is not liable if such a recording:(a) could be made, but is not made, or(b) is made or retained, but should not have been made or retained, or is incomplete or inaccurate.
37 Transactions effecting the subdivision of land
(1) The Registrar-General:(a) may refuse to accept a dealing or instrument for registration in the Register, or(b) may refuse to register a dealing or instrument in the Register, or(c) may reject a dealing or instrument lodged for registration in the Register,if the dealing or instrument purports to give effect to a transaction that contravenes section 23F of the Conveyancing Act 1919.(2) The Registrar-General may refuse to create a folio of the Register for any land, and may refuse to issue a certificate of title for any land, if the land does not comprise one or more existing lots in a current plan within the meaning of the Conveyancing Act 1919.
38 Recording dealings on certificate of title etc
(1) If the Registrar-General, having delivered a certificate of title for land:(a) requests its production for the purpose of registration of a dealing that relates to the land, and(b) the request or a requirement under subsection (2) is not complied with,the Registrar-General may refuse to register the dealing or to accept it for registration.(2) Where a certificate of title is not produced in response to a request made by the Registrar-General under subsection (1), the Registrar-General may require that the dealing in respect of which the request was made be accompanied by an application in the approved form to dispense with the production of the certificate of title together with such evidence as the Registrar-General requires.(3) Where the Registrar-General makes a recording in the Register in respect of a dealing, the Registrar-General may also make a like recording upon any certificate of title produced to the Registrar-General for the purpose of registration of the dealing or that otherwise becomes available to the Registrar-General.(4) (Repealed)(5) Where an instrument that is a certificate of title or duplicate registered dealing is in the custody of the Registrar-General and no person is entitled to require the delivery to himself or herself of the instrument the Registrar-General may:(a) dispense with the recording of the effect of any dealing upon that instrument, and(b) subject to the State Records Act 1998, destroy that instrument without retaining a copy or record thereof.(6) Subject to the State Records Act 1998, the Registrar-General may:(a) destroy any document that the Registrar-General is not under a duty to deliver or issue to any person, whether or not it is part of the Register, or(b) deliver to a person who, in the Registrar-General’s opinion, intends to preserve it for historical purposes any document that, by paragraph (a), the Registrar-General is empowered to destroy.(7) The Registrar-General shall, before destroying a document under subsection (6) (a), make a reproducible copy of that document if:(a) where the document is part of the Register, it evidences a subsisting interest, or(b) where the document is not part of the Register, the Registrar-General would, but for subsection (6) (a), have a duty to preserve it.(8) The Registrar-General shall preserve a reproducible copy of any document referred to in subsection (7) (a) or (b) for as long as the interest evidenced by the document subsists or for as long as the Registrar-General would, but for subsection (6) (a), have had a duty to preserve the document, as the case may be.(9) Where a reproducible copy of a document is preserved under subsection (8) and that document would, if it had not been destroyed under subsection (6) (a), be part of the Register, whether for all purposes or for the purpose only of section 96B, the reproducible copy shall be part of the Register for all purposes or for that purpose, as the case may be.(10) In this section:reproducible copy means a copy of a document that is captured and retained in a manner that enables the document to be reproduced.
39 Treatment of dealings that do not comply with requirements
(1) The Registrar-General shall not register any dealing purporting to transfer or otherwise to deal with or affect any estate or interest in land under the provisions of this Act, except in the manner herein provided, and the Registrar-General may reject any dealing which the Registrar-General is satisfied should not be registered.(1A) The Registrar-General:(a) may refuse to register, or may reject, any dealing lodged for registration, and(b) may reject any memorandum or caveat lodged with the Registrar-General,that does not comply with any requirement made, with respect to the dealing, memorandum or caveat, as the case may be, by or under this or any other Act.(1B) The Registrar-General may:(a) refuse to accept for registration:(i) a dealing purporting to transfer or otherwise to deal with or affect any estate or interest in land under the provisions of this Act, or(ii) an application to effect a change in the name of a registered proprietor, or(b) refuse to register such a dealing or application, or(c) reject such a dealing or application,if it is not accompanied by a fully completed notice in the approved form.(1C) For the purposes of subsection (1B), a dealing or application is taken to be accompanied by a notice in the approved form if, before the presentation of the dealing or application, a notice relating to the dealing or application is lodged electronically in a form and in the manner approved by the Registrar-General.(2) The Registrar-General may, at the Registrar-General’s discretion, register a dealing notwithstanding any error therein or omission therefrom and, in such case, the error or omission shall not invalidate the registration of the dealing.(3) Instead of rejecting any dealing containing a patent error, the Registrar-General may of the Registrar-General’s own motion correct the error by marginal notation on the dealing, and the dealing so corrected shall have the like validity and effect as if the error had not been made.
39A Treatment of certain instruments when land brought under Act
(1) In this section, prescribed instrument means an instrument:(a) that affects land not subject to the provisions of this Act,(b) that has been registered in the General Register of Deeds kept pursuant to Division 1 of Part 23 of the Conveyancing Act 1919 or, in the case of a covenant charge, in the Register of Causes, Writs and Orders kept pursuant to that Act, and(c) that, in the opinion of the Registrar-General, could have been registered under the provisions of this Act as a mortgage, charge or covenant charge if, at the time of its execution, the land it affects had been subject to the provisions of this Act and the instrument had been drawn in a form approved by the Registrar-General.(2) When land that is affected by a prescribed instrument is brought under the provisions of this Act by the creation of a folio of the Register for the estate or interest of a person other than the mortgagee, chargee or covenant chargee entitled under the instrument:(a) unless the mortgagee, chargee or covenant chargee otherwise directs, the Registrar-General shall record the instrument in the Register in such manner as the Registrar-General considers appropriate,(b) the mortgagee, chargee or covenant chargee, as the case may be, named in a recording made under paragraph (a) shall be deemed to be registered under the provisions of this Act as proprietor of a mortgage, charge or covenant charge registered under this Act in respect of the land, and(c) a person deemed by paragraph (b) to be a registered proprietor of a mortgage, charge or covenant charge shall be entitled to exercise the same rights, powers and remedies as if the mortgage, charge or covenant charge had been drawn in the approved form and registered in the manner provided by this Act in respect of mortgages, charges or covenant charges, as the case may be.(3) This section does not apply to an instrument to which section 13F, 13KA or 13M applies.(4) Nothing in this section requires the Registrar-General, when bringing land under the provisions of this Act, to create a folio of the Register for the estate or interest of a mortgagor, charger or covenant charger.(5)–(8) (Repealed)
39B Registration of mortgagor or charger as proprietor
(1) Where land affected by a prescribed instrument (within the meaning of section 13F, 13KA or 39A), or by an instrument to which section 13M applies has been brought under the provisions of this Act by the creation of a folio of the Register for the estate or interest of the mortgagee or chargee entitled under the instrument, the Registrar-General may, on application, amend the Register by registering the applicant as the proprietor of that estate or interest, if:(a) the applicant is the mortgagor or charger under the instrument or another person claiming title under the mortgagor or charger, and(b) the mortgagee or chargee consents to the amendment.(2) An application under this section must be made in the approved form.
39C Dealings etc to be in approved form
(1) This section applies to an instrument:(a) which has been registered:(i) before the commencement of this section, pursuant to section 39A (2) (or section 13F, 13K or 13M), or(ii) after the commencement of this section, pursuant to section 13F, 13KA, 13M or 39A, or(b) where a person other than the mortgagee or chargee under the instrument becomes registered as the proprietor of an estate or interest in land affected by the instrument by virtue of an amendment of the Register:(i) before the commencement of this section, pursuant to section 39A (6A) (or section 13F, 13K or 13M), or(ii) after the commencement of this section, pursuant to section 39B.(2) All dealings, whether by way of transfer, discharge or otherwise, with the mortgage, charge or covenant charge created by an instrument to which this section applies must be in accordance with the forms approved for corresponding dealings with land under the provisions of this Act and must be recorded in accordance with this Act. The Registrar-General may dispense with the requirements of this subsection in a particular case or class of cases.(3) When a power of sale becomes exercisable in respect of the instrument, the power may be exercised, and the estate or interest sold may be transferred, only in accordance with this Act.(4) If the instrument is one that creates a mortgage or covenant charge, anything done with respect to foreclosure because of a default in payment of an amount secured by the mortgage or charge, in so far as the thing done relates to land under the provisions of this Act, must be done in accordance with those provisions and not otherwise. This subsection has effect subject to section 101 of the Conveyancing Act 1919.
39D Register of Deeds to be noted
(1) When the Registrar-General makes a recording under section 13F, 13KA, 13M or 39A in respect of an instrument, the Registrar-General must cause a notation to be entered in the index to the General Register of Deeds kept pursuant to Division 1 of Part 23 of the Conveyancing Act 1919 or, where the interest concerned is a covenant charge, in the Register of Causes, Writs and Orders kept pursuant to that Act.(2) The appropriate form of notation, and the manner of making it, are to be determined by the Registrar-General.
40 Manual folio to be considered evidence of title, and that the land has been duly brought under the Act
(1) A manual folio shall be received by all Courts or persons having by law or consent of parties authority to hear, receive and examine evidence as evidence of the particulars therein recorded and shall be conclusive evidence that any person recorded in the folio as the registered proprietor of an estate or interest in the land comprised in the folio is the registered proprietor of that estate or interest and that the land comprised in that folio has been duly brought under the provisions of this Act.(1A) Where a computer folio certificate is issued in respect of a folio of the Register:(a) the certificate is evidence of the particulars recorded in that folio, and(b) it shall be conclusively presumed that:(i) the certificate contains all the information that was recorded in that folio at the time specified in the certificate,(ii) the land to which the certificate relates was, at that time, under the provisions of this Act, and(iii) a person recorded in the certificate as the registered proprietor of an estate or interest in the land to which the certificate relates was, at that time, the registered proprietor of that estate or interest.(1B) Where, in a manual folio or computer folio certificate, the estate or interest of a registered proprietor is expressed to be subject to:(a) an estate or interest evidenced by an instrument,(b) a provision of an instrument, or(c) an enumerated provision of an Act or of an Act of the Parliament of the Commonwealth,the whole of the contents of the instrument, provision or enumerated provision, as the case may be, shall be deemed to be set forth at length in the folio or certificate.(2) No folio of the Register shall be impeached or defeasible on the ground of want of notice or of insufficient notice of the application to bring the land therein described under the provisions of this Act, or on account of any error, omission, or informality in such application, or in the proceedings pursuant thereto, by the Registrar-General.(2A) No folio of the Register shall be impeached or defeasible on the ground of want of notice or of insufficient notice of a possessory application relating to the land therein described, or on account of any error, omission or informality in the application, or in the proceedings pursuant thereto, by the Registrar-General.(3) The person recorded in any folio of the Register as entitled to the land therein described shall be held in every Court to be seised of the reversion expectant upon any lease that may be recorded thereon, and to have all powers, rights, and remedies to which a reversioner is by law entitled, and shall be subject to all covenants and conditions therein expressed to be performed on the part of the lessor.
40A Production of computer folio to courts etc
Where the Registrar-General is required by law to produce at any place or to any person a computer folio, the Registrar-General shall comply with that requirement by issuing a computer folio certificate in respect of the folio and by causing the certificate to be produced at that place or to that person.
41 Dealings not effectual until recorded in Register
(1) No dealing, until registered in the manner provided by this Act, shall be effectual to pass any estate or interest in any land under the provisions of this Act, or to render such land liable as security for the payment of money, but upon the registration of any dealing in the manner provided by this Act, the estate or interest specified in such dealing shall pass, or as the case may be the land shall become liable as security in manner and subject to the covenants, conditions, and contingencies set forth and specified in such dealing, or by this Act declared to be implied in instruments of a like nature.(2) (Repealed)
42 Estate of registered proprietor paramount
(1) Notwithstanding the existence in any other person of any estate or interest which but for this Act might be held to be paramount or to have priority, the registered proprietor for the time being of any estate or interest in land recorded in a folio of the Register shall, except in case of fraud, hold the same, subject to such other estates and interests and such entries, if any, as are recorded in that folio, but absolutely free from all other estates and interests that are not so recorded except:(a) the estate or interest recorded in a prior folio of the Register by reason of which another proprietor claims the same land,(a1) in the case of the omission or misdescription of an easement subsisting immediately before the land was brought under the provisions of this Act or validly created at or after that time under this or any other Act or a Commonwealth Act,(b) in the case of the omission or misdescription of any profit à prendre created in or existing upon any land,(c) as to any portion of land that may by wrong description of parcels or of boundaries be included in the folio of the Register or registered dealing evidencing the title of such registered proprietor, not being a purchaser or mortgagee thereof for value, or deriving from or through a purchaser or mortgagee thereof for value, and(d) a tenancy whereunder the tenant is in possession or entitled to immediate possession, and an agreement or option for the acquisition by such a tenant of a further term to commence at the expiration of such a tenancy, of which in either case the registered proprietor before he or she became registered as proprietor had notice against which he or she was not protected:Provided that:
(i) The term for which the tenancy was created does not exceed three years, and(ii) in the case of such an agreement or option, the additional term for which it provides would not, when added to the original term, exceed three years.(iii) (Repealed)(2) In subsection (1), a reference to an estate or interest in land recorded in a folio of the Register includes a reference to an estate or interest recorded in a registered mortgage, charge or lease that may be directly or indirectly identified from a distinctive reference in that folio.(3) This section prevails over any inconsistent provision of any other Act or law unless the inconsistent provision expressly provides that it is to have effect despite anything contained in this section.
43 Purchaser from registered proprietor not to be affected by notice
(1) Except in the case of fraud no person contracting or dealing with or taking or proposing to take a transfer from the registered proprietor of any registered estate or interest shall be required or in any manner concerned to inquire or ascertain the circumstances in or the consideration for which such registered owner or any previous registered owner of the estate or interest in question is or was registered, or to see to the application of the purchase money or any part thereof, or shall be affected by notice direct 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.(2) Subsection (1) does not operate to defeat any claim based on a subsisting interest, within the meaning of Part 4A, affecting land comprised in a qualified folio of the Register.
43A Protection as to notice of person contracting or dealing in respect of land under this Act before registration
(1) For the purpose only of protection against notice, the estate or interest in land under the provisions of this Act, taken by a person under a dealing registrable, or which when appropriately signed by or on behalf of that person would be registrable under this Act shall, before registration of that dealing, be deemed to be a legal estate.(2) No person contracting or dealing in respect of an estate or interest in land under the provisions of this Act shall be affected by notice of any instrument, fact, or thing merely by omission to search in a register not kept under this Act.(3) Registration under Division 1 of Part 23 of the Conveyancing Act 1919 shall not of itself affect the rights of any person contracting or dealing in respect of estates or interests in land under the provisions of this Act.(4) Nothing in subsection (2) or (3) operates to defeat any claim based on a subsisting interest, within the meaning of Part 4A, affecting land comprised in a qualified folio of the Register.
43B Statutory restrictions on alienation etc
(1) In this section:land does not include land in a reserve as defined in Part 5 of the Crown Lands Act 1989.
prescribed consent means the consent or approval of:
(a) the Crown,(b) a Minister of the Crown, or(c) a public authority constituted by an Act where at least one of the members of the authority is appointed by the Governor or by a Minister of the Crown.statutory restriction means a limitation or restriction upon the disposition or devolution of land imposed by or under the Crown Lands Acts (as defined in the Crown Lands Act 1989), the Western Lands Act 1901 or any other Act relating to the alienation of land of the Crown.
(2) Notwithstanding anything in this or any other Act, a registered proprietor of an estate or interest in land that, but for this subsection, would be subject to a statutory restriction holds that estate or interest free from the statutory restriction if:(a) the registered proprietor became so registered in good faith and for valuable consideration, and(b) at the time when the registered proprietor became so registered, the statutory restriction was not recorded in the folio of the Register for the land in which the registered proprietor has the estate or interest,and upon the registered proprietor so holding that estate or interest the statutory restriction ceases to have any further force or effect in relation to that estate or interest.(3) For the purposes of subsection (2), a statutory restriction may be recorded:(a) by a recording which refers to the provision that imposes the statutory restriction,(b) by a recording, pursuant to section 12 (1) (e), of a caveat that refers to the provision that imposes the restriction, or(c) by a recording of the restriction in such other manner as the Registrar-General considers appropriate.(4) Notwithstanding anything in any Act, where by the operation of subsection (2) a statutory restriction ceases to have any force or effect in relation to an estate or interest in land, a disposition or devolution of that estate or interest that, but for this subsection, would be invalidated as being in breach of that statutory restriction is not so invalidated.(5) Where a folio of the Register is created for a lot in a deposited plan registered under Division 3 of Part 23 of the Conveyancing Act 1919 and a prescribed consent required for the subdivision illustrated by that deposited plan has not been given:(a) that consent to the subdivision shall be deemed not to have been required, and(b) (Repealed)
44 Registered proprietor suing for specific performance
(1) In any proceedings for specific performance brought by a registered proprietor of any land under the provisions of this Act, against a person who may have contracted to purchase such land not having notice of any fraud or other circumstances which according to the provisions of this Act would affect the right of the vendor, the folio of the Register or a computer folio certificate evidencing the title of such registered proprietor shall be held in every Court to be conclusive evidence that such registered proprietor has a good and valid title to the land and for the estate or interest therein mentioned or described, and production to the Court of any such folio or certificate, as the case may be, shall entitle such registered proprietor to judgment for the specific performance of such contract.(2) Subsection (1) does not operate to defeat any claim based on a subsisting interest, within the meaning of Part 4A, affecting land comprised in a qualified folio of the Register.
45 Bona fide purchasers and mortgagees protected in relation to fraudulent and other transactions
(1) Except to the extent to which this Act otherwise expressly provides, nothing in this Act is to be construed so as to deprive any purchaser or mortgagee bona fide for valuable consideration of any estate or interest in land under the provisions of this Act in respect of which the person is the registered proprietor.(2) Despite any other provision of this Act, proceedings for the recovery of damages, or for the possession or recovery of land, do not lie against a purchaser or mortgagee bona fide for valuable consideration of land under the provisions of this Act merely because the vendor or mortgagor of the land:(a) may have been registered as proprietor through fraud or error, or by means of a void or voidable instrument, or(b) may have procured the registration of the relevant transfer or mortgage to the purchaser or mortgagee through fraud or error, or by means of a void or voidable instrument, or(c) may have derived his or her right to registration as proprietor from or through a person who has been registered as proprietor through fraud or error, or by means of a void or voidable instrument.(3) Subsection (2) applies whether the fraud or error consists of a misdescription of the land or its boundaries or otherwise.
45A Construction of dealings relating to land abutting on streams or roads
(1) Except as in this section mentioned, the rebuttable rule of construction applicable to a conveyance of land therein indicated as abutting on a non-tidal stream or a road, that the land extends to the middle line of the stream or road, shall apply, and be deemed always to have applied to dealings registered under the provisions of this Act relating to land indicated in the dealings as so abutting.(2) The fact that an applicant to bring land abutting on a non-tidal stream or a road under the provisions of this Act has not expressly declared that the applicant was entitled to the bed or part of the bed of the stream or to the road or part thereof shall not, but the fact that the applicant had not a title to any part of the bed of the stream or to any part of the road shall prevent the application of the rule mentioned in subsection (1) to a folio of the Register evidencing title to the land or part of the land which was the subject of the application.(3) (Repealed)