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Part A

 

Robert is the registered proprietor of a commercial unit (valued at $800,000) in Adelaide. The property was debt free as Robert was lucky enough to have won a large prize in Saturday lotto. The property is the leased to Poppy’s Landscaping Services for 3 years pursuant to an unregistered lease. All was well until Catherine (Robert’s former partner) forged Robert’s signature on a mortgage over the land in the amount of $700,000. The mortgage to Swift and Sharp Loans Ltd (S&S) was registered in January 2022. Robert knows nothing about the registration of the mortgage and S&S simply dealt with Catherine (regarding her as Robert’s agent) and did not make any independent inquiries. Catherine has left Adelaide with the $700,000 and was least heard of somewhere in South America.

 

Robert has discovered the existence of the mortgage on the title and seeks your advice:

 

• Can Robert get the mortgage removed from the title? If so, ensure that you illustrate your answer with relevant statutory provisions and decided cases.
• What would you advise Robert to do to prevent any further interests being created? Explain why you would offer this advice.

 

Part B

 

Change the facts a little. Before Robert discovered the existence of the forged mortgage, repayments were not made, and S&S took steps to exercise its power of sale under the mortgage. Realising that the land had increased considerably in value, S&S, through its management, conspired with the management of a subsidiary corporation, Dodgy Loans Pty Ltd (Dodgy) to purchase the commercial unit for $700,000. An independent valuation assesses the value of the property to be at least $1.5 million. The transfer has now registered and Dodgy is the registered proprietor of the land.

 

• Can Robert seek to have the sale to Dodgy set aside? In your answer, consider any relevant exceptions to indefeasibility.

 

Part C

 

Again, change the facts a little. Before Robert discovered the existence of the forged mortgage and the sale from S&S to Dodgy, Dodgy entered into a contract of sale with Priceless Property Developments Pty Ltd (PPD), a local development firm that knew nothing of the relationship between S&S and Dodgy. Robert has now discovered what has occurred. PPD wants the sale to proceed. Robert wants his land back.

 

• Advise Robert what he should do to prevent registration of the transfer to PPD.
• Explain to Robert the process by which a court would assess the merits of his (Robert’s) and PPD’s respective interests. Who would have priority?
• How would your answer differ (if at all) if the transfer to PPD had been registered?

 

Part D

 

While all these adventures have been going on, another issue have arisen. Poppy’s Landscaping Service, Robert’s tenant in the commercial unit, has become concerned about the security of her tenancy. A friend has told her that unregistered leases are protected so her tenancy is safe. Poppy is uncertain and seeks your legal advice. Advise Poppy:

 

• Whether her unregistered lease comes within an exception to indefeasibility? (Please note, you need only deal with the issue of indefeasibility here, you do not need to delve into the law in relation to leases);
• What should you advise her to do in relation to her lease?

 

Part E

 

What is the status of a volunteer in the Torrens System? How does the law in relation to volunteers differ between Victoria and South Australia in comparison to other Australian jurisdictions? Provide an example of circumstances where a different result may be reached in South Australia in comparison to, for example, NSW or Western Australia. What is the practical outcome of this discrepancy? Is there any guidance from the High Court in this respect?

 

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