Real Property Act 1970 (ACT)

REAL PROPERTY

No. 6 of 1970

An Ordinance to amend the Real Property Ordinance

1925-1969.

1.—(1.) This Ordinance may be cited as the Real Property

Ordinance 1970.*

(2.) The Real Property Ordinance 1925-1969 is in this Ordinance

referred to as the Principal Ordinance.

(3.) The Principal Ordinance, as amended by this Ordinance, may

be cited as the Real Property Ordinance 1925-1970.

2. Section 4 of the Principal Ordinance is amended by inserting

after the words and figures—

"Division 4.—Caveats Against Dealings (Sections 104-108)."

the words and figures—

" Division 5.—Determinations under the Land Rent and Rates (Deferment) Ordinance 1970 (Sections 108A- 108D)."

3.  Section 14 of the Principal Ordinance is amended—

(a) by omitting from paragraph (a) of sub-section (1.) the words " is about to be transacted," and inserting in their stead the words " has been presented to the Registrar for registration under this Ordinance,"; and

(b) by adding at the end thereof the following sub-section:—
" (3.) The Registrar has, and may exercise, if a notice
of a determination made under section three, or a memoran­
dum of discharge under section eighteen, of the Land Rent
and Rates (Deferment) Ordinance 1970, is presented to
him for registration, all or any of the powers conferred by
sub-section (1.) of this section as if the notice were a
mortgage, or the memorandum of discharge were a dis­
charge of a mortgage, presented to him for registration

N o . 15, 1942; N o . 9, 1951; N o . 16, 1956; N o . 12, 1957; N o . 7. 1961; N o . 6, 1963; N o . 46, 1967; and N o . 9, 1969

under this Ordinance.".

4. Section 48 of the Principal Ordinance is amended by omitting

sub-section (1.) and inserting in its stead the following sub-sections:—

" (1.) All grants shall be presented for registration in duplicate.

* Made on 16 February 1970; notified in the Commonwealth	Gazette and commenced on 26 February 1970.
t

Ordinance N o . 1, 1925, as amended by Ordinance N o . 12, 1925; N o . 8, 1926; Nos . 15 and 21, 1927; N o . 19, 1930; Nos . 26 and 34. 1933; N o . 14, 1934; N o . 15, 1936; N o . 27, 1937; Nos . 15, 25 and 35, 1938; N o . 16, 1940;

"(1A . ) All instruments (other than grants) presented for regis­

tration—

(a)	shall, except as otherwise provided by this Ordinance, be in duplicate; and
(b)	shall be registered in the order of time in which they are presented for registration.

" (1B.) Each instrument (other than a grant, a notice of deter­ mination made under section three of the Land Rent and Rates (Defer­ ment) Ordinance 1970 or a memorandum of discharge under section eighteen of that Ordinance) presented for registration shall be attested by a witness.".

5.  Section 50A of the Principal Ordinance is amended—

(a)	by inserting in sub-section (1.) after the word ", encum­ brance " (first occurring), the words " or a duplicate notice of determination made under section three of the Land Rent and Rates (Deferment) Ordinance 1970";
(b)	by omitting from sub-section (1.) the words "or encum­ brance " (second occurring) and inserting in their stead the words " , encumbrance or notice of determination ";
(c)	by omitting from sub-section (2.) the words "or encum­ brance " (wherever occurring) and inserting in their stead the words " , encumbrance or notice of determination ";
(d)	by inserting in sub-section (4.), after the word "encum­ brance" (first occurring), the words "or on the original notice of determination"; and
(e)	by omitting from sub-section (4.) the words "or encum­ brance " (second and third occurring) and inserting in their stead the words, " encumbrance or notice of deter­ mination ";

6. Section 73 of the Principal Ordinance is amended by adding at

the end thereof the following sub-section:—

" (2.) A reference in the last preceding sub-section to a mortgage

shall be read as including a reference to a charge referred to in section

one hundred and eight B of this Ordinance.".

7. Section 94 of the Principal Ordinance is amended by adding

at the end thereof the following sub-section:—

" (7.) Where—

(a) after the registration under this Ordinance of a mortgage or encumbrance on a parcel of land, there is registered under this Ordinance a notice of a determination made under section three of the Land Rent and Rates (Defer­ ment) Ordinance 1970 in which the parcel of land referred to is the parcel of land subject to the mortgage or encum­ brance; and

(b) the mortgagee under the mortgage or the encumbrancee under the encumbrance exercises the rights conferred by this section in relation to the land,

the notice of the determination shall, for the purposes of this section, be deemed to be a mortgage of the land referred to in the notice to the Com­ monwealth having priority according to the date of its registration under this Ordinance and securing the payment to the Commonwealth of an amount equal to the amount for the time being secured by section one hundred and eight B of this Ordinance.".

8. After section 100 of the Principal Ordinance the following sec­ tion is inserted:—

"100A.—(1.) Where—

(a)	a determination under section three of the Land Rent and Rates (Deferment) Ordinance 1970 has been revoked under section nine, twelve or thirteen of that Ordinance;
(b)	the amount the payment of which is secured by section one hundred and eight B of this Ordinance has not been paid in full to the Commonwealth; and
(c)	a memorandum in accordance with Form 2 in the Schedule to the Land Rent and Rates (Deferment) Ordinance 1970 has not been presented to the Registrar for registration under this Ordinance,

the Commonwealth shall be deemed to have, on and after the date on which default has been made in the payment of the whole or part of the amount referred to in paragraph (b) of this sub-section, the rights that it would have had under sub-section (2.) of section ninety- three, and under sections ninety-four, ninety-six, ninety-seven, ninety- nine and one hundred, of this Ordinance if—

(d)	the notice of the determination had been a mortgage by the registered proprietor of the land referred to in the notice securing the payment to the Commonwealth of the amount
referred to in paragraph (b) of this sub-section and regis­ tered on the date of registration of the notice;
(e)	the amount were the principal sum secured by the mortgage; and
(f)	the default in the payment of the whole or part of the amount referred to in paragraph (b) of this sub-section were default in the payment of the principal sum or part of the principal sum secured by the mortgage.

" (2.) Sub-section (2.) of section ninety-three and sections ninety- four to one hundred (inclusive) of this Ordinance apply to and in relation to the exercise by the Commonwealth of the rights that it is to be deemed to have under the last preceding sub-section to the same extent and in the same manner as if the Commonwealth were the mortgagee under a mortgage referred to in paragraph (d) of the last preceding sub-section.

" (3.) For the purposes of sub-section (1.) of this section, default shall be deemed to have been made in the payment of—

(a)	the whole of the amount referred to in paragraph (b) of sub-section (1.) of this section if an amount equal to that amount has not been paid to the Commonwealth within one month after the date on which such an amount has become payable under sub-section (1.) of section 15 of the Land Rent and Rates (Deferment) Ordinance 1970; and
(b)	part of the amount referred to in paragraph (b) of sub­ section (1.) of this section if an amount equal to that part has not been paid to the Commonwealth within one month after the date on which such an amount has become pay­ able to the Commonwealth under sub-section (2.) or (3.) of section 15 of that Ordinance.".

9. The Principal Ordinance is amended by inserting after Division 4 of Part X. the following Division:—

" Division 5.—Determinations under the Land Rent and Rates

(Deferment) Ordinance 1970.

" 108A.—(1.) Subject to the next succeeding sub-section, a notice of a determination made under section three, and a memorandum of discharge under section eighteen, of the Land Rent and Rates (Defer­ ment) Ordinance 1970 shall, on being presented to the Registrar for registration under this Ordinance, each be deemed to be, for the pur­ poses of this Ordinance, an instrument affecting the land referred to in the notice.
" (2.) Section sixty-seven of this Ordinance does not apply to or in relation to a notice or memorandum referred to in the last preceding sub-section.
" 108B. A notice of a determination made under section three of the Land Rent and Rates (Deferment) Ordinance 1970 shall, when registered under this Ordinance, have effect as a charge securing the payment to the Commonwealth of an amount equal to the amount for

which the person to whom the determination relates becomes, whilst	the determination remains in force, indebted to the Commonwealth
under that Ordinance and the payment to the Commonwealth of interest payable under sub-section (3.) of section four, or under section sixteen, or both, of that Ordinance.
" 108c. Upon the production to him of a memorandum in accord­ ance with Form 2 in the Schedule to the Land Rent and Rates (Defer­ ment) Ordinance 1970, the Registrar shall—

(a) register the memorandum; and

(b) make an entry in the Register Book noting that the charge created by the registration of the notice of the deter­ mination referred to in the memorandum is discharged.

" 108D. A fee is not payable on the lodging for registration or for the registration of a notice of a determination or memorandum of dis­ charge under the Land Rent and Rates (Deferment) Ordinance 1970.".

10. Section 117 of the Principal Ordinance is amended by adding at the end thereof the following sub-section:—

" (2.) In every instrument transferring an estate or interest in land under the provisions of this Ordinance subject to a charge securing the payment of an amount to the Commonwealth under section one hundred and eight B of this Ordinance, there shall be implied the following covenant by the transferee, that is to say:—

That the transferee will pay to the Commonwealth of Aus­ tralia the amount secured by the charge on the land and will indemnify and keep harmless the transferor against the amount secured by the charge, and from and against all liability in respect of the failure by the transferor to pay the amount secured by the charge within the period of one month after the transfer.".

11. Section 152 of the Principal Ordinance is amended by inserting after paragraph (b) of sub-section (1.) the following paragraph:—

" (ba) The case of the Commonwealth as against the person registered as proprietor of the land if the land is subject to a charge by reason of section one hundred and eight B of this Ordinance and the person is in default in payment of the whole or any part of the amount secured by the charge;".

12. Section 170 of the Principal Ordinance is amended by insert­ ing after sub-section (3.) the following sub-section:—
" (3A.) The last preceding sub-section applies to and in relation to land subject to a charge securing the payment of an amount to the Commonwealth under section one hundred and eight B of this Ordinance in the same manner and to the same extent as if the notice of the deter­ mination made under section three of the Land Rent and Rates (Defer­ ment) Ordinance 1970 in respect of the land were a mortgage securing the payment to the Commonwealth of an amount equal to the amount for the time being secured by the charge.".