Paradise Constructors & Co Pty Ltd v Poyser

[2007] VSCA 316

Victorian Court of Appeal

Built by Barristers,
For Australian Law.

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Interrogate

Catchwords

1. Property
2. › Torrens system
3. › Indefeasibility of title
4. › Registered mortgage
5. › Whether registration cures invalidity arising from material alteration of mortgage document
6. › Whether rule in Pigot's case applies to registered documents
7. › Transfer of Land Act 1958 (Vic), s 42
1. Property
2. › Mortgages
3. › Alteration of mortgage document
4. › Rule in Pigot's case
5. › Whether alterations to mortgage were material
6. › Whether rule should be interpreted liberally
7. › Whether alteration that did not prejudice mortgagor was material
1. Property
2. › Torrens system
3. › Exceptions to indefeasibility
4. › In personam exception
5. › Whether unregistered mortgagee had in personam claim against registered mortgagee
6. › Whether fraud established
7. › Transfer of Land Act 1958 (Vic), ss 42, 43
1. Appeal
2. › New arguments on appeal
3. › Whether respondent precluded from raising indefeasibility argument not raised below
4. › Whether new point purely legal
5. › Whether further evidence could have been adduced

Quick Take

Registration of a mortgage under the Torrens system confers indefeasible title on the registered mortgagee notwithstanding any material alteration to the mortgage document at common law under the rule in Pigot's case, absent fraud. An unregistered mortgagee who is a third party to the registered mortgage has no in personam claim against the registered mortgagee based on alterations to the mortgage document. The rule in Pigot's case should be interpreted liberally, and an alteration that does not prejudice the other party and does not reflect the parties' actual dealings may not be material.