The decision in Barlin Investments Pty Ltd v Westpac Banking Corporation (2012) 16 BPR 30,671;  NSWSC 699 (Ball J) highlights the fact that s43A can override long established priority principles and the fact that the provision’s purpose is to protect purchasers and mortgagees in the interval between completion and eventual registration of their dealings. It also highlights the wisdom of lodging and maintaining a caveat to protect an unregistered interest.
B lent money to A by way of unregistered mortgage (‘Mortgage”) and lodged a caveat on the title to the land to protect his interest in the Mortgage. B later withdrew the caveat prior to the loan being repaid.
A sold the land to Purchaser 1 (“P1”) who entered into a mortgage with St George Bank (“St George”) to finance the purchase. The transfer and mortgage were lodged for registration on 9 December. On 10 December B discovered A had sold the property and re-lodged a caveat on the title.
On 11 December the transfer to P1 and mortgage to St George were given distinctive reference numbers by the Registrar-General (“Registrar”). The Registrar- took the view that their registration was prevented by the caveat lodged on 10 December.
Despite the transfer and mortgage remaining unregistered P1 sold the property to Purchaser 2 (“P2”) who financed the transaction by way of mortgage to Westpac Banking Corporation (“Westpac”). This transfer and mortgage remained unregistered.
Ball J held, on the facts above, that under general torrens title priority principles B postponed his interest to both P1 and St George by withdrawing the caveat because they did not have notice of his interest. However B prevailed over P2 and Westpac who had notice of his interest via lodgement of a caveat on 10 December.
The High Court in Meriton Apartments Pty Ltd v McLaurin & Tait (Developments) Pty Ltd (1976) 133 CLR 671 clarified the provision of s43A(1) of the Real Property Act 1900 (NSW) stating that “effectively , a person taking an interest under a torrens title dealing that is in registrable form, obtains at the time of taking the dealing (and before registration) the same protection against notice as a person would obtain when taking an equivalent old system legal interest.”
Ball J held that because P1 had no notice of B’s unregistered mortgage, P1 had the benefit of s43A and as P2 and Westpac took through P1, they could claim the ’successive effect’ of s43A despite their own notice of B’s interest.
For more information on stautory provisions and priorities or to discuss issues relating to property law, contact Matthews Folbigg property team, the leading property law team in Western Sydney on 9635 7966.