Mere knowledge of a prior unregistered interest, without more, does not constitute fraud for the purposes of s 42 of the Real Property Act 1900 (NSW). Where a primary judge dismisses proceedings summarily on an erroneous basis (here, abuse of process) and a correct but potentially curable basis (inadequate pleading of fraud), the appropriate course may be to remit the matter to allow the plaintiff to apply for leave to amend, rather than to dismiss outright. Res judicata and issue estoppel cannot be raised by persons who were not parties to the earlier proceeding.
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