Re Day

The applicant, Re Day, sought to have a caveat lodged by the respondent, Mr. Day, removed from title to land. The dispute concerned the validity of a mortgage granted by the applicant to Mr. Day, which the applicant alleged was procured by fraud. The matter came before Gordon J of the Supreme Court of New South Wales.

The primary legal issue before the Court was whether the caveat lodged by Mr. Day was valid and ought to be maintained, or whether it should be removed on the grounds that the underlying mortgage was voidable due to fraud. This required the Court to consider the principles of indefeasibility of title under the *Real Property Act 1900* (NSW) and the exceptions to that principle, particularly fraud.

Gordon J found that the evidence established that the mortgage was indeed procured by fraud. Her Honour applied the principle that a registered proprietor’s title is generally indefeasible, but this protection does not extend to fraud in which the registered proprietor has participated or of which they had notice. In this instance, the fraud related to the misrepresentation made to the applicant regarding the nature of the transaction and the identity of the lender. Consequently, the mortgage was voidable at the applicant's election.

Her Honour ordered that the caveat lodged by Mr. Day be removed from the title to the land.