Legal Principles of Torrens Title and Lease System

This assignment discusses the legal principles governing Torrens title and lease system in Australia. It explores the concepts of license of premises and lease of premises, along with the statutory requirements for entering a retail lease. The assignment also examines the remedies available under Australian Consumer law for unconscionable conduct. Additionally, it provides insights on how lawyers can stay updated on consumer law, contract law, property law, and trust law.

Assessment 5
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Table of Contents
Part A Written Report..................................................................................................................................3
Introduction.................................................................................................................................................3
Scenario 1....................................................................................................................................................3
Scenario 2....................................................................................................................................................5
Scenario 3....................................................................................................................................................6
Conclusion...................................................................................................................................................6
Part B-.........................................................................................................................................................7
References...................................................................................................................................................8
Appendix A: Briefing Questions.................................................................................................................9
Appendix B: Form to gather feedback.......................................................................................................10
Appendix C: Audio/Video recording consent form...................................................................................10
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Part A Written Report
Introduction
In any legal system, contract and consumer law are the two elements which are considered to be
integral in the arena of civil. It is also the case of Australian legal system. Apart from that,
property law is another element, which is also emphasized to a great extent under every legal
system.
Considering this fact, focus of the present assignment would be on discussing provided cases on
torrents system of land title, Australian consumer law and Trust law.
Scenario 1
i] Analysis of the legal principles that governs Torrens title and lease system, it is noticeable that
there are primarily four principles that are associated with it. These 4 principles form the basis of
Torrents system of land title and associated features, which are as follows:
 Conclusive evidence of ownership- This is the main principle of indefeasibility. It is due
to the fact that, government has required data and information of land titles and owes the
responsibility protecting it. It contributes in ascertaining that when buyers make a
purchase, the description of the title is aligned to the actual land 1.
 Transfer facility- With the help of this feature the owner can have the transfer authority
of the ownership to another individual. This makes the process simple in nature in spite
of different categories of ownership.
 Assurance fund-Incidents of owner suffering from financial crisis due to system error, is
rare. In spite of rarity of such occurrences, when such incidents occur, under this feature
the owner is provided with assurance fund for compensating their loss.
 Compulsory registration of title- This feature makes registration of every title under land
registry system that is governed by the government, to be obligatory 2.
1Joe Cursley, Mark Davys and Kate Green, Land Law (Palgrave Macmillan, 2011).
2 Ed Wensing and Jonathan Taylor, Secure Tenure For Home Ownership And Economic Development On Land
Subject To Native Title (Native Title Research Unit, AIATSIS, 2012)..
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ii] Analysis of the two concepts i.e. , certain differences between both the concepts can be
noticed. Considering licence of premises, it can be observed that the licensor has the ownership
and possession of the property. On the contrary in lease of premises the tenant possesses
exclusive possession of the property 3.
Licensee does not possess the authority of giving the property to third party in case of licence of
premises. On the other hand, while conducting leasing of premises, the tenant is entitled to the
authority of sub-letting the land or the property.
Another mentionable difference is lease agreements cannot be usually terminated, while
agreements of licensing lands or property are terminable4.
iii] While entering a retail lease, there are some statutory requirements which are required to be
followed. Five of these requirements are as follows:
 Under Retail Lease Regulations 2013 it is specified that amount of occupancy cost is
needed to be specified for excluding some retail premises5.
 Information associated with outgoings payable by tenant are also needed to be
specified.
 Outlining the form of Disclosure Statement opted by the landlord is also required.
 Under Retail lease Act 1994 it has been specified that agents or landlords are needed
to have retail lease’s copy that has been proposed to the other party.
 When specifications of the acts are not followed, such actions would be considered to
be offence under the act and lease would be considered to be void6.
3 Jenny Buchan and Bill Butcher, Premises occupancy models for franchised retail businesses in Australia: Factors
for consideration (Australian Property Law Journal, 2009) 143-178 < https://papers.ssrn.com/sol3/papers.cfm?
abstract_id=1476117.
4Kelvin F. K. Low, "Certainty Of Terms And Leases: Curiouser And Curiouser" (2012) 75(3) The Modern Law Review..
5 Margaret Stephenson, "To Lease Or Not To Lease? The Leasing Of Indigenous Statutory Lands In Australia:
Lessons From Canada" (2009) 35(3) Commonwealth Law Bulletin.
6Anthony Herro, LSJ: Law Society Of NSW Journal - Property: Changes To Retail Leasing Legislation - What You Need
To Know (APAFT) - Informit (2019) Search.informit.com.au
<https://search.informit.com.au/documentSummary;dn=746640235047268;res=IELAPA>.
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Scenario 2
i] In the provided scenario, Sheldon and Penny may avail remedy under Right to equality of
redemption. Power of sale entitles the lender with the authority of gaining possession order and
allowing the lender to take possession of the property. The court usually determines the time of
enforcement of the order.Borrower usually vacant the property, prior the possession date.
However, in case of Sheldon and Penny, who were the borrower, followed by the possession, has
certain rights under equity of redemption. Equity of redemption provides them with the right of
transferring their mortgage at any time till point to sale i.e. exchange of contracts. Under this
remedy they would be able to prevent sale of the property.
ii] Certain remedies can be availed for incidents associated with unconscionable conduct in an
agreement or contract, under Australian Consumer law. One of the remedy in such cases, under
the law is declaring part or the contract in totality to be void. Thus, loan contract and mortgage
are voidable under common law wherein unconscionable conduct can be considered as a ground
for it 7.
iii] In regards to the case of Sheldon and Penny, Australian Consumer law may provide with
required relief in the case. Statics and figure provided by lending officer were unrealistic and
inaccurate. Due to relying on these figures, Sheldon and Penny signed the loan contract that
caused them financial loss. Such behavior can be termed as unconscionable because the stronger
party in this case was the lending officer who was having more information and knowledge. He
had misused his information and used unfair tactics. Thus, with the help of Australian Consumer
law, Sheldon and Penny can seek relief8. It is by establishing the occurrence of unconscionable
conduct, remedies like financial penalty imposed on lending officer, compensation of the loss,
varying the contract or agreement, declaring the contract void in whole or part, refunding or
performing certain services may be claimed by Sheldon and Penny under Australian Consumer
law in this case.
7 Clive Turner, Australian Commercial Law (Lawbook Co., 2011).
8 Justin Malbon, "Taking Fake Online Consumer Reviews Seriously" (2013) 36(2) Journal of Consumer Policy.
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Scenario 3
Lawyers are required to remain up-to-dated on any kind of amendments on the present set of
laws for performing their duties in an effective manner. Such mentionable four ways with the
help of which lawyers can remain updated on consumer law, contract law, property law and trust
law are as follows:
Government websites- This is a personal preference. It is with the help of this source, lawyers
can gather updates and latest information regarding amendments on the existing laws in a precise
and prompt manner. It also provides them with the scope of knowing developments associated
with it9.
Events on industry networking- It is beneficial on gathering information and updates on
industry information and enhancing professional profile, share experiences with clients and
colleagues and be informed about competitors10.
Online technology- This is one of the most effective sources for legal updates on different areas
of law which can be customized in accordance to the needs of an individual. This provides with
the scope of accessing information from podcast and practice notes of experts.
Industry newsletters- Subscribing to industry newsletter is beneficial in gaining in-depth
information and knowledge about policy developments, legal development which may have
significant impact on a client.
Conclusion
On the basis of the above made discussion it may be noticed that Torrens leases and title plays a
significant role in the legal system of Australia. Addressing the needs of the consumers in
9 Stacey Leeke, Why You Need Sharp Legal Knowledge (And How To Maintain It) (2015) Legal Insight
<http://insight.thomsonreuters.com.au/posts/sharp-legal-knowledge>.
10 Alexander Boer and Tom van Engers, ‘Knowledge acquisition from sources of law in public administration’
in International Conference on Knowledge Engineering and Knowledge Management (Springer, Berlin, Heidelberg,
2010) pp. 44-58.
.
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Australia are dealt under Australian Consumer law. In addition to the report also reflected the
importance for lawyers to be updated about changes in the legal system.
Part B- presentation
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References
Boer, Alexander and Tom van Engers, ‘Knowledge acquisition from sources of law in public
administration’ in International Conference on Knowledge Engineering and Knowledge
Management (Springer, Berlin, Heidelberg, 2010) pp. 44-58.
Buchan, Jenny and Bill Butcher, Premises occupancy models for franchised retail businesses in
Australia: Factors for consideration (Australian Property Law Journal, 2009) 143-178 <
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1476117.
Cursley, Joe, Mark Davys and Kate Green, Land Law (Palgrave Macmillan, 2011)
Turner, Clive, Australian Commercial Law (Lawbook Co., 2011)
Herro, Anthony, LSJ: Law Society Of NSW Journal - Property: Changes To Retail Leasing
Legislation - What You Need To Know (APAFT) - Informit (2019) Search.informit.com.au
<https://search.informit.com.au/documentSummary;dn=746640235047268;res=IELAPA>.
Leeke, Stacey, Why You Need Sharp Legal Knowledge (And How To Maintain It)(2015) Legal
Insight http://insight.thomsonreuters.com.au/posts/sharp-legal-knowledge.
Malbon, Justin, "Taking Fake Online Consumer Reviews Seriously" (2013) 36(2) Journal of
Consumer Policy.
Stephenson, Margaret, "To Lease Or Not To Lease? The Leasing Of Indigenous Statutory Lands
In Australia: Lessons From Canada" (2009) 35(3) Commonwealth Law Bulletin
Wensing, Ed and Jonathan Taylor, Secure Tenure For Home Ownership And Economic
Development On Land Subject To Native Title (Native Title Research Unit, AIATSIS, 2012).
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Appendix A: Briefing Questions
Participant 1: Junior Legal Assistant (playing role of Penny or Sheldon)
Question Answer
How can we avoid a mortgagee sale? It is avoidable by arranging
mortgage holiday, postponing
next payments.
Should we consider use of another structure? At the time of structuring
mortgage right of survivorship can
be considered wherein ownership
would be transferred to the
surviving partner.
Participant 2: Legal Manager
Question Answer
What are the relevant legal principles which
apply to Penny and Sheldon’s situation?
Right of equity of redemption
What advice would you ask a legal specialist like
myself to assist you in this matter?
Avail remedies for such conducts
of lending officer and the ways of
retaining the property.
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Appendix B: Form to gather feedback
Name:
Date of
session:
Please provide your responses to the following statements in relation to the presentation given.
1. Clearly communicated the information – using suitable structure and language
which incorporates appropriate technical vocabulary to suit the audience.
Strongly agree Agree Neither Disagree Strongly disagree

2. Used questioning and listening techniques to obtain feedback and confirm
understanding of what has been presented.
Strongly agree Agree Neither Disagree Strongly disagree

3. The presentation was well-researched.
Strongly agree Agree Neither Disagree Strongly disagree

4. The information provided was well researched.
Strongly agree Agree Neither Disagree Strongly disagree

5. Please provide suggestions and comments for improvement.
Questioning and listening technique would have enhanced the presentation. 11
Appendix C: Audio/Video recording consent form
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Learner’s name: __________________ Date: ________________
Participant’s name Signature
By signing this form, you have consented to participate in a recording.
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