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Question: australian equity law question 6 jeff is a wealthy property...

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Australian Equity Law


Question 6


Jeff is a wealthy property owner. He is a widower, whose wife, Maude, died recently. They had two children, Angelo and Evel. All four of them lived in the family home in Perth – call this ‘the Family Home’ – till 10 years ago, when Evel decided to leave Perth to work overseas. The Family Home is spacious and luxuriously fitted. The land on which the Family Home is situated is unencumbered – call it ‘the Land’. ‘The Land’ is to be understood throughout this question as incorporating the Family Home – in case there is any doubt.


Angelo stayed behind and helped with the family’s business and continued to live in the Family Home with Jeff and Maude. Jeff and Maude then decided 8 years ago to move out of the Family Home into one of Jeff’s other properties. Upon Jeff and Maude vacating the Family Home, Angelo continued to live in it with his wife and two children.


Evel has done well financially and returns to Perth intermittently. When he does so, at family gatherings Jeff and Maude would frequently say: ‘we must make arrangements to make sure Angelo gets this house (meaning the Family Home) before we pass away’.


Maude is more business minded than Jeff. A few months ago, Maude sombrely prognosticated her impending decease and told Angelo, in Jeff’s presence, that she wanted to make sure ‘you get the family home before I go, as we always promised’. A solicitor prepares the relevant documentation, including a formal contract for the sale of land, which showed the consideration as a realistic sum, although on the low side, which Angelo paid. Payment of stamp duty is also attended to. A duly executed transfer of land document, with all details filled in, and in registrable form, is prepared, and all is in place for Angelo to be registered as the proprietor of the Land with the only significant step remaining being the actual lodgement of the transfer of land document and some ancillary documents. Jeff as registered proprietor holds the duplicate certificate of title to the Land.


Alas, Maude passes away just before the transfer of land document can be lodged. The solicitor, a family friend, is too grief stricken and distracted to lodge the transfer of land document.


Evel returns for his mother’s funeral. Angelo makes no mention of his purchase of the Land. He however says things like the kids love this place, I can't see myself moving out in a hurry.. I can see myself living out my days here….


Evel has no knowledge of any arrangements between their parents and Angelo and does not actually know that Jeff has already sold the Land to Angelo. But the very thought of Angelo’s living the rest of his days in the beloved, luxuriously fitted, family home, is enough to drive him to a jealous rage. Evel begins plotting a way to ‘get my hands on the family home’.


Evel visits Jeff and tells Jeff he has done a valuation of the Land and is prepared to pay Jeff more than the valuation if Jeff agreed to sell the Land to him. Evel was telling the truth; Evel was prepared to pay Jeff significantly more than the value of the Land out of pique, just to deprive Angelo of it.


Having left the business side of things to Maude all his life, Jeff does not recall that he already sold the Land to Angelo. The distraction of Maude’s funeral also makes him more forgetful than usual. He does recount that Angelo is living in the Family Home and enquires what about your brother? He is living there now. I just can't turf Angelo out..you know we were always going to leave the family home to Angelo.


Evel says: I am giving you a really good deal dad.. mum always said you were a hopeless businessman.. if mum was watching you from up there, she would be irritated that you don’t recognise a good deal. I'm sure you will find a way to take care of Angelo somehow….


Jeff reluctantly, and sadly forgetful of having already sold the Land to Angelo, executes an offer and acceptance document to reflect the sale of the Land to Evel. Jeff also executes a transfer of land document in registrable form showing Evel as transferee, and hands over the duplicate certificate of title of the Land to Evel. Evel duly pays the purchase price. The enforceability of the contract for the sale of the Land between Evel and Jeff is not in dispute.


Evel hurriedly attends to the formalities of lodgement and upon lodgement of the transfer of land document becomes registered proprietor of the Land.


Now answer the following question, and discuss the legal reasoning and authorities to support your answer:


Does Evel obtain indefeasible title to the Land?  Focus on the effect of registration of Torrens Title Land, and any relevant exceptions to indefeasibility.


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