University of Technology Sydney · FACULTY OF LAW

70317 Chap.4 Fraud, Statutory and In Personam Exceptions

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Chapter 4 of 13 · 70317

Fraud, Statutory and In Personam Exceptions

Three routes around indefeasibility

A registered title can be defeated only by fraud brought home to the registered proprietor, by one of the statutory exceptions listed in s 42(1) of the Real Property Act, or by a personal claim arising from the proprietor's own conduct.

Each is tested against the current registered proprietor.

Fraud

Fraud means actual dishonesty, not constructive or equitable fraud, and notice of an unregistered interest is not enough.

The marking feedback stresses defining fraud before applying it, and choosing cases whose facts resemble yours, such as Loke Yew for registration used dishonestly to destroy a known interest.

The in personam exception

Bahr v Nicolay (No 2) shows a registered proprietor can be held to an undertaking it gave to honour an earlier interest.

The claim must rest on a recognised cause of action against the proprietor personally, not against the vendor.

In this chapter

What this chapter covers

  • 01

    Fraud in the opening words of s 42(1)

  • 02

    Actual fraud and bringing it home to the proprietor

  • 03

    Dishonest use of the register: Loke Yew

  • 04

    Statutory exceptions in s 42(1)(a) to (d)

  • 05

    Recovery under s 118(1)(d)(i)

  • 06

    The in personam exception after Bahr v Nicolay

  • 07

    Marker-flagged mistakes in problem answers

Worked example · free

Bringing fraud home to a registered proprietor who raced a buyer

Q [4 marks]. AskSia-authored practice. Wren contracts to buy a Tamworth house but does not caveat. The seller's friend Ash learns of the contract, offers more, says he will register first so Wren gets nothing, and does so. Advise Wren. The marks shown are an AskSia study allocation, not an official University marking scheme.
One root, three branches.One root, three branches. The registered proprietor at the top holds an indefeasible title under s 42(1); the three boxes below are the only routes around it, fraud brought home to that proprietor, the statutory exceptions, and a personal claim arising from the proprietor’s own conduct.Registered proprietorindefeasible under s 42(1)Fraudbrought home to RPStatutorys 42(1)(a) to (d)In personamRP’s own conduct
One root, three branches. The registered proprietor at the top holds an indefeasible title under s 42(1); the three boxes below are the only routes around it, fraud brought home to that proprietor, the statutory exceptions, and a personal claim arising from the proprietor’s own conduct.
  • 1Ash is the registered proprietor with an indefeasible legal interest (ss 41, 42(1)); Wren holds an unregistered interest.
  • 1Fraud means actual dishonesty brought home to the registered proprietor; notice alone is not enough (s 43).
  • 1Ash knew of Wren's contract and registered in order to defeat it, a dishonest use of the register like Loke Yew.
  • 1Fraud defeats Ash's indefeasibility and s 118(1)(d)(i) allows recovery; Wren's priority claim then proceeds.
Wren can set aside Ash's title for fraud, because Ash used registration deliberately to destroy her known interest. Her failure to caveat bears on priority, not on fraud.
Sia tip — Quote the fact that shows purpose; knowledge alone is protected by s 43, but registering in order to defeat a known interest is fraud.
Glossary

Key terms

Actual Fraud
Dishonesty of some sort by the registered proprietor or its agent, as distinct from constructive or equitable fraud.
Wilful Blindness
Deliberately not inquiring because the answer would be unwelcome, which can supply the knowledge element of fraud.
FAQ

Fraud, Statutory and In Personam Exceptions FAQ

Is knowing about an unregistered interest enough to prove fraud?

No. Section 43 of the Real Property Act says knowledge of an unregistered interest is not of itself fraud. What is needed is actual dishonesty brought home to the registered proprietor, for example registering in order to defeat an interest the proprietor knows about, the pattern in Loke Yew and Waimiha Sawmilling.

What is the in personam exception?

It allows a claim against a registered proprietor based on the proprietor's own conduct, such as an undertaking to honour an earlier interest, as in Bahr v Nicolay (No 2). It does not attack the title itself. It must rest on a recognised legal or equitable cause of action against the current proprietor.

Which section allows recovery of land from a fraudulent proprietor?

The feedback on the first exercise points to s 118(1)(d)(i) of the Real Property Act, which permits an action for recovery against a person registered as proprietor through fraud. It warns that s 118(1)(d)(ii), which concerns volunteers and people claiming through a fraudulent proprietor, was cited wrongly in many answers.

Which statutory exceptions matter most in practice?

Tutorial question 7 asks exactly this. The lettered paragraphs of s 42(1) protect certain interests the register does not show, and the two you will meet most in problems are the tenant in possession, read with the lease topic, and the easement omitted from or misdescribed on the folio, read with the easements topic.

Study strategy

Exam move

Write out a definition of fraud with two supporting cases and memorise where each exception sits: the opening words of s 42(1), its lettered paragraphs, and the general law. Practise one problem for each exception and, after each, check your answer against the marker-flagged mistakes in the first exercise feedback. Keep answers within 600 words by dealing briefly with exceptions that plainly do not apply.

Reread the Exercise 1 feedback in full; it lists more than a dozen specific mistakes, and turning each into a one-line rule is the quickest way to stop repeating them.

Working through Fraud, Statutory and In Personam Exceptions in 70317? Sia is AskSia’s AI Law tutor — ask any 70317 Fraud, Statutory and In Personam Exceptions question and get a clear, step-by-step explanation grounded in how 70317 is taught and assessed. Read this chapter free, then take your hardest questions to Sia.

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