Property Law: Repurchase of Property in Australia

Running head: PROPERTY LAW
Property Law
Name of the Student
Name of the University
Author Note

1PROPERTY LAW
Issue:
The issue that has been observed in this case is that will Stan be able to repurchase the
property from Ron.
Rule:
It is evident that privately owned land is regulated under the Torrens system in Australia.
In Australia, conveyance is defined as the transfer of legal title which involves either land or real
estate from one individual to another. In this regard, it is noteworthy to mention here that a
conveyance transaction takes place when both the parties to sale enter into contract of sale1.
However, it is important on the part of the buyer to ensure that the title obtained by him in
relation to the property is good and marketable. Therefore, the right to sell the property is
entrusted to the owner and there should be no hidden condition as to re-sale or mortgage of the
said property. In this regard, the provisions of Section 42 and Section 43 of the Transfer of Land
Act 1958 are applicable. Section 42 deals with estate of registered proprietor paramount while
Section 43 deals with individuals falling under registered proprietor who are not affected by
notice. In Rasmussen v Rasmussen (1995 - 1 VR 613)2 it was observed that the property passed
to one of the grandsons of the owner even the son of the owner was the registered proprietor of
the concerned property. Therefore, Sections 42 and 43 has been applied by the Court and held
that the father was not bona fide purchaser of the property and therefore the ownership of the
property shall be granted to the grandsons.
1 Ní Fhloinn, Deirdre. "Liability in negligence for building defects in Ireland, England and Australia: Where statute
speaks, must common law be silent?." International Journal of Law in the Built Environment 9.3 (2017): 178-192.
2 (1995 - 1 VR 613).

2PROPERTY LAW
Similarly, in King v Smail 1958 VR 2733 it was observed that both the husband and the
wife were registered proprietors of the land and enjoyed joint ownership. However, the husband
transferred his part of the interest as a gift without prior concern of his wife. After transfer of
interest, the wife has a query regarding the fact that the ownership to the land was jointly held
and therefore she had same interest to the ownership as her husband. In Vercorp Pty Ltd & Anor
v ACN 096 278 483 Pty Ltd4 it was seen that the plaintiffs agreed the sell the four existing vacant
lands to Barrier Developments however; it was observed that the plaintiffs did not held actual
title to the property and therefore the respondent were bound to follow the principles of the
nominated owner.
It can be mentioned that in order to buy a real estate property in Australia, it is important
that the contract of sale bust be duly signed by both the parties5. However, it is important that
such contract of sale must be in writing because verbal contracts for real estate properties are
unenforceable which was held in a recent case of Stellard Pty Ltd & Anor v North Queensland
Fuel Pty Ltd [2015] QSC 1196 where it was observed that the parties to the sale contract
exchanged e-mails and communicated with each other verbally. The negotiations of pre-
contractual contract were agreed by them without even signing the contract. Therefore, it was
held by the Court that if the contract is not written and the parties to it has not given their consent
by signing it then the contract is unenforceable and cannot be used for re-purchase in the future.
In Yulema Pty Ltd & Anor v Simmons & Anor [2015] NSWSC 6407 it was held by the NSW
3 (1958 VR 273).
4 096 278 483.
5 Walrut, Bernie. "Tax files: Stamp duties in South Australia: A slow and withering passing." Bulletin (Law Society
of South Australia) 39.1 (2017): 36.
6 [2015] QSC 119.
7 [2015] NSWSC 640.