In this case Skype has not been able to register the land she purchased along with clove in her name. She was promised by clove in writing that tat land would be registered in both their names. However before the promise could be executed clove had passed away. According to the principles of Torrens land system title is only created upon registration. Thus Skype has no claim over the land.
However according to the principles of equitable interest as provided by the case of Lysaght v Edwards (1876) the interest of purchase comes into existence as soon as the contract is enforced. In case there is a valid contract than beneficial ownership passes to the purchaser in case the vendor dies before the execution of the promise. It was further provided in the case of Chang v Registrar of Titles that specifically enforceable agreements cab be depended upon in relation to the doctrine of conversion.
Thus in this case Skype can use the doctrine of conversion and principles of equitable interest and claim her property.
In the present scenario it has been provided that Elton was the owner of the properties which have been transferred to different people according to his wishes. The will made by Elton initially provided that all his property would be given to Davith who his younger partner. However as he suspected his partner to be unfaithful he transferred the property to different people according to his wishes. According to common law a will does not take effect until the person dies thus Elton in this case has the right to transfer his property to any one he wishes.
It has already been discussed that once the registration of the title is completed the title of the person becomes indefeasible. Thus the title of the mansion provided by Elton to Simone has become indefeasible as soon as the transfer was duly attested and signed and the certificate of title was handed to Simone.
However there are certain circumstances where the title of a person which has been registered can be defeated. These circumstances include prior certificate, wrong description, omitted easement, profits-a-prendre, short term lease, overriding statues and adverse possessions. In the given circumstances it can been easily be analyzed that there has been no fraud involved on the part of Simone with respect to the transfer of the mansion in context. In case the transfer is done voluntarily without any consideration than the title is indefeasible upon a claim made by the transferor. However this provision is only valid in the state of Victoria and not New South Wales which adopts a narrow approach towards the Torrens system.
In this case there is further no dispute about the original title, the description is also not in dispute, and there is no prior certificate for the mansion thus it is deemed that the transfer of the mansion has been lawful and the title does not fall within the scope of section 42 of the RPA. Further as voluntary transfer is not regarded as a exception in NSW Elton has no right to claim the mansion which he has already transferred to Simone without any fraud being involved in the dealing. Thus according to the above discussion it can be concluded that Elton has no legal right on the property which he has already transferred to Simone in NSW even if the transfer has been done voluntarily without any consideration and further he cannot give the property back to his partner.
A contract for sale of land is comprised of two terms one is known as the warranty and the other as the condition. A warranty is the term which is not as important as the condition. An example of a warranty is when a vendor agrees to sell the property as it. In case there are some alterations in the property in relation to the accessories than the buyer is not entitled to rescind the contract. The only claim which can be made by the buyer in such circumstances is that he can claim compensation if it is not provided otherwise in the contract.
Whereas a condition is the term on which a contract is actually based. It is regarded as a term of primary importance and in case the condition is breach the innocent party has the right to abolish the contract on its discretion and claim any loss or harmed caused. In case of a contract of sale the primary condition is the sale of the property and if it is specifically mentioned in the contract than the sale of the other accessories also become a condition. Thus the essence in determining the remedy of a party is finding out whether the breached term is a warranty or a condition.
In the provided circumstances there is a contract between Arthur and Christina for the purchase of a business. It was specifically provided in the contract a list of equipments which were to be included in the sale. Desk was one of the equipment to be included in the sale. It was found by Arthur that a carriage-desk was missing along with air conditioner and there was damage on the wall. Arthur thus have the right to rescind the contract based on condition breach for the desk. And claim compensation from the damaged wall and missing air conditioner.
References
Blumm, Michael, and Kara Tebeau. “Antimonopoly in Public Land Law.” (2015).
CONVEYANCING (SALE OF LAND) REGULATION 2010
Gardner, Simon, and Emily MacKenzie. An introduction to land law. Bloomsbury Publishing, 2015.
Knapp, Charles L., Nathan M. Crystal, and Harry G. Prince. Problems in Contract Law: cases and materials. Wolters Kluwer Law & Business, 2016.
Lysaght v Edwards (1876)
MacKenzie, Judith-Anne, and Mary Phillips. Textbook on land law. Oxford University Press, USA, 2014.
McFarlane, Ben, Nicholas Hopkins, and Sarah Nield. Land law: text, cases, and materials. Text, Cases and Materials, 2015.
McKendrick, Ewan. Contract law: text, cases, and materials. Oxford University Press (UK), 2014.
Real Property Act 1900
Webb, Eileen, and M. Stephenson. “Focus: Land Law.” (2015).
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