OF AUSTRALIA. Torrens System-Priorities-Conflicting equitable titles-Transfer absolute in form- COUNCIL.*
Intended as security only-Registration-No caveat lodged by transferor-Subse- quent unregistered mortgage from registered proprietor of land to third party- Estoppel--Agency-Real Property Act 1900 (N.S.W.) (No. 25 of 1900). Money-lender-Solicitor-Loan transactions-Money-lenders and Infants Loans Act
1905 (N.S.W.) (No. 24 of 1905), sec. 8.
The registered proprietors of land under the Real Property Act 1900 (N.S.W.), by transfers absolute in form and expressed to be made in consideration of a money payment, transferred the land to the nominee of a creditor as security for the debt. The transferee was registered as proprietor in pursuance of the transfer. The creditor without the knowledge or consent of the transferors, who had not lodged a caveat, raised a loan for himself upon the security of the * Present-Lord Blanesburgh, Lord Tomlin, Lord Wright, Lord Alness and Sir Lancelot Sanderson.
land and caused his nominee, as the registered proprietor, to execute a regis- trable mortgage over the land in favour of the lender. The lender had no notice that the transferors had any interest in the land. He did not search the register, and did not register his mortgage.
Held that the lender had a better equity than that of the transferors, because the transferors were bound by the consequences of their acts in arming their transferee with the power to deal with the land as owner, and, as the title on the register was clear, the lender's failure to make a search was immaterial Also, the case was one of an agent exceeding the limits of his authority but acting within its apparent indicia.
A solicitor repeatedly lent large sums of money at interest in the course of his business. The trial Judge held that in all the circumstances the evidence did not establish that he carried on the business of a money-lender within the meaning of the Money-lenders and Infants Loans Act 1905 (N.S.W.).
Held that the finding should not be disturbed. Decision of the High Court: Lapin v. Abigail, (1930) 44 C.L.R. 166, reversed, and the order of Long Innes J., as varied by the Supreme Court of New South Wales (Full Court): Lapin v. Heavener, (1929) 29 S.R. (N.S.W.) 514, restored.
APPEAL from the High Court to the Privy Council.
This was an appeal by Ernest Robert Abigail from the decision of the High Court: Lapin v. Abigail 1, reversing the decision of the Full Court of the Supreme Court of New South Wales that Abigail had a better equitable title to certain lands under the Real Property Act 1900 (N.S.W.) than Mark Lapin and Pearl Lapin, the other parties to the appeal, and a cross-appeal by the Lapins from the decision of the High Court affirming a decision of the Full Court that the evidence did not sufficiently…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Abigail v Lapin [1934] UKPCHCA 1
Case
[1934] UKPCHCA 1
Decision Date
CaseChat Overview and Summary
The appeal in the case of Abigail v Lapin was heard by the Privy Council, the highest court in Australia at the time. The case involved conflicting claims to land under the Torrens system, where the registered proprietors transferred their land to a creditor's nominee as security for a debt. The creditor subsequently loaned money to a third party, who took a registrable mortgage over the land without registering it. The primary issue was whether the lender's equitable interest was superior to that of the transferors, who had not lodged a caveat. The Privy Council held that the transferors were bound by the consequences of their acts in arming their transferee with the power to deal with the land as owner. As the title on the register was clear, the lender's failure to make a search was immaterial. The case was also one of an agent exceeding the limits of his authority but acting within its apparent indicia. The Privy Council reversed the decision of the High Court and restored the order of the trial Judge, as varied by the Supreme Court of New South Wales. The lender was granted a better equity than that of the transferors. In relation to the Money-lenders and Infants Loans Act 1905, the Privy Council held that the trial Judge properly applied the provisions of the Act to the facts as he found them. The appeal was allowed, the order of the High Court was set aside, and the order of the trial Judge, as varied by the Full Court, was restored. The respondents were ordered to pay the costs of the appeal to the High Court and of these appeals.