PROPERTY LAW ACT, 1969

PROPERTY LAW ACT, 1969

ANALYSIS.

PART I.-PRELIMINARY.

Sec.1. Short title.2. Commencement.3. Arrangement.4. Repeals.5. Savings.6. Application of this Act to certain Acts.7. Definitions.

PART IL-DEEDS AND OTHER INSTRITMENTS.8. Construction of expressions used in deeds and other instruments.9. Formalities of deed.

10. Execution of instruments by or on behalf of corporations.11. Persons taking who are not parties.12. Description of deed.13. Conditions and certain covenants not implied.14. Receipt in deed sufficient.15. Receipt in deed or indorsed evidence.16. Construction of supplemental or annexed instrument.

PART IIL-GENERAL RULES An.e,CTING PROPERTY.

17. Tenant for life without impeachment of waste not to commit equitablewaste.

18. No merger at law where none in equity.19. Suits for possession of land by mortgagors.20. Assignment of debts and chores in action.21. Stipulations not of the essence of a contract.22. Satisfied terms, whether created out of freehold or leasehold land, to

cease.23. Estates tan abolished.24. Creation by deed of freehold in futuro.25. Creation by deed of estate in chattel real.26. Contingent remainders to take effect notwithstanding premature failure

of preceding estate.27. Rule in Shelley's Case abolished.28. Restriction on executory limitations.29. Corporations may hold as joint tenants.30. Receipts for income by married minors.31. Abolition of restraint on anticipation-power of Court.

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PART IV.-CONVEYANCES AND OTHER INSTRUMENTS.Sec.32. Lands lie in grant only.33. Conveyances to be by deed.34. Instruments required to be in writing.35. Creation of interests in land by parol.36. Savings in regard to sections 34 and 35.37. Power to dispose of fee-simple by deed without words of inheritance.38. No use to result from absence of consideration.39. Limitations may be by direct conveyance without uses.40. No conveyance to have tortious operation.41. General words implied in conveyances.42. All estate clause implied.43. Partial release of land from rent.44. Power to person to convey property to himself, etc.

PART V.-COVENANTS.

45. Covenants for title implied.46. Construction of implied covenants.47. Benefits of covenants relating to land.48. Burden of covenants relating to land.49. Construction of covenants affecting land.50. Covenants to be joint and several.51. Effect of covenant with two or more jointly.52. Covenants and agreements entered into by a person with himself and

another or others.

PART VI.-MORTGAGES.

53. Foreclosure extinguishes right of action for mortgage debt and equityof redemption.

54. Realization of equitable charges by the Court.55. Sale of mortgaged property in action for redemption or foreclosure.56. Restriction on consolidation of mortgages.57. Implied powers of mortgagees.58. Power to appoint receiver in the case of mortgage under the Transfer

of Land Act, 1893.59. Regulation of exercise of power of sale.60. Conveyance in exercise of power of sale.61. Application of proceeds of sale.62. Provisions as to exercise of power of sale.63. Mortgagee's receipts and discharges, etc.64. Amount and application of insurance money.65. Appointment, powers, remuneration and duties of receiver.66. Application of money received by receiver.67. Effect of advance on joint account.68. Notice of trusts affecting mortgage money.

PART VII.-LEASES AND TENANCIES.

69. This Part to apply to leases under the Transfer of Land Act, 1893.70. Tenant not prejudiced by assignment before notice.71. Tenancy from year to year not implied.72. Termination of tenancies.73. Waiver of a covenant in a lease, not to operate as general waiver.

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Sec.74. Abolition of interesse termini and as to reversionary leases and leases

for lives.75. Effect of extinguishment of reversion.76. Apportionment of conditions on severance.77. Rent and benefit of lessee's covenants to run with reversion.78. Obligation of lessor's covenants to run with reversion.79. Effect of licences granted to lessees.80. Consent to assign or sublet not to be unreasonably withheld.81. Restrictions and relief against forfeiture of leases and under-leases.

Costs in connection with forfeiture and waiver.82. Certain assignments not to be deemed a breach.83. Surrender of head lease to grant new lease not to prejudice under-lease.

PART VD:I.-POWERS OF ATTORNEY.

84. Execution by attorney in his own name.85. Continuance until notice of death or revocation received.86. Irrevocable power of attorney for value.87. Power of attorney made irrevocable for fixed time.88. Application to corporations.

PART IX.-VOIDABLE DISPOSITIONS.

89. Voluntary conveyances to defraud creditors voidable.90. Voluntary disposition to defraud purchasers voidable.91. Subsequent conveyance not to be evidence of intent to defraud.92. Acquisitions of reversions at an under value.

PART X.-POWERS OF APPOINTMENT.

93. Disclaimer, etc., of powers.94. Effect of disclaimer, etc.95. Protection of purchasers claiming under certain void appointments.96. Validation of appointments where objects are excluded or take illusory

shares.97. Execution of powers not testamentary.98. Application of this Part to existing powers.

PART XI.-PERPETUITIES AND ACCUMULATIONS.

99. Application.100. Interpretation.101. The perpetuity period.102. Capacity to procreate or bear a child.103. Wait and see rule.104. Power of Court to make declaration as to validity of limitations.105. Invalid age contingencies.106. Class gifts.107. Order of applying rules.108. Unborn spouses.109. Dependent limitations.110. Options.

IV

Sec.111. Application of the rule to possibilities of reverter, rights of entry and

resulting trusts.112. Powers of appointment.113. Accumulations of income.114. Rule in Whitby v. Mitchell abolished.115. Superannuation funds, etc.

PART XII—SUCCESSION.

116. Wills in contemplation of marriage.117. Statutory substitutional gift.118. Intermediate income of executory or contingent gifts.119. Application of S. 120.120. Devolution of property in cases of simultaneous deaths.

PART XIEL—EASEMENT, ENCROACHMENT AND MISTAKE.

121. Easement of light and air only by registered grant or instrument.122. Power of Court to grant special relief in cases of encroachment.123. Relief in cases of mistake as to boundaries or identity of land.124. Recovery of payments made under mistake of law.125. Payments made under mistake of law or fact not always recoverable.

PART XIV.—PAR ION OF LAND AND DIVISION OF CHATTELS.

126. In action for partition Court may direct land to be sold.127. Proceeds of sale, how applied.128. Costs in partition suits.129. Division of chattels.

PART XV.—APPORTIONMENT.130. Interpretation.131. Income apportionable in respect of time.132. Time when apportioned part payable.133. Recovery of apportioned parts.134. Exceptions and application.

PART XVI.—SERVICE OF NOTICES.

135. Mode of service.

FIRST SCHEDULE.Adopted Acts Ceasing to have Effect.

SECOND SCHEDULE.Repeals.

THIRD SCHEDULE.Implied Covenants.

FOURTH SCHEDULE.Conveyance.

1969.] Property Law. [No. 32.

PROPERTY LAW.

No. 32 of 1969.

AN ACT to amend and Consolidate the Law relatingto Property and for incidental purposes.

[Assented to 19th May, 1969.]

RE it enacted by the Queen's Most Excellent Majesty, by and with the advice and consent

of the Legislative Council and the LegislativeAssembly of Western Australia, in this presentParliament assembled, and by the authority of thesame, as follows:—

PART I.-PRELIMINARY.

1. This Act may be cited as the Property Law Act, Short title.1969.

2. This Act shall come into operation on a date tobe fixed by proclamation.

Commence-ment.

No. 32.] Property Law. [1969.

Arrange-ment. 3. This Act is divided into Parts as follows:—

PART I.—PRELIMINARY (ss. 1-7).PART II.—DEEDS AND OTHER INSTRUMENTS (ss.

8-16).PART III.—GENERAL RULES AFFECTING PROPERTY

(ss. 17-31).PART IV.—CONVEYANCES AND OTHER INSTRU-

MENTS (ss. 32-44).PART V.—COVENANTS (ss. 45-52).PART VI.—MORTGAGES (ss. 53-68).PART VII.—LEASES AND TENANCIES (ss. 69-83).PART VIII.—POWERS OF ATTORNEY (ss. 84-88).PART IX.—VOIDABLE DISPOSITIONS (ss. 89-92).PART X.—POWERS OF APPOINTMENT (ss. 93-98).PART XI.—PERPETUITIES AND ACCUMULATIONS

(ss. 99-115).PART XIL—SUCCESSION (ss. 116-120).PART XIII.—EASEMENTS, ENCROACHMENTS AND

MISTAKE (ss. 121-125).PART XIV.—PARTITION OF LAND AND DIVISION OF

CHATTELS (ss. 126-129).PART XV.—APPORTIONMENT (ss. 130-134).PART XVI.—SERVICE OF NOTICES (s. 135).FIRST SCHEDULE:SECOND SCHEDULE:THIRD SCHEDULE:FOURTH SCHEDULE.

Repeals. 4. On the coming into operation of this Act

(a) the Acts of England and the United King-dom specified in the First Schedule to thisAct cease to have effect in the State and theprovisions of the Acts by which the firstmentioned Acts were adopted in the Stateare repealed; and

(b) the Acts specified in the Second Scheduleto this Act are repealed to the extentmentioned in that Schedule.

5. Without prejudice to the operation of theInterpretation Act, 1918, any alteration, by this Act,of the law whether by the repeal of an enactment,or otherwise, does not, unless otherwise expressly

Savings.


provided by this Act affect(a) any right accrued, or obligation incurred,

before the date of the coming into operationof this Act under the law so altered; or

(b) the validity or invalidity, or any operation,effect or consequence, of any instrumentexecuted or made, or of anything done orsuffered before that date; or

(c) any action, proceeding or thing pending onthat date or uncompleted on that date andthat action, proceeding and thing may becarried on and completed as if the enact-ment had not been repealed, or the lawotherwise altered.

6. Except as in this Act expressly provided, thisAct

(a) so far as inconsistent with the Transfer ofLand Act, 1893 or the Strata Titles Act,1966, does not apply to land that is underthe provisions of either of those Acts, and

(b) so far as inconsistent with the Bills of SaleAct 1899, does not apply to bills of sale thatare registered under the provisions of thatAct.

7. In this Act unless the contrary intention Definitioug.

appears"bankruptcy" includes insolvency and liquida-

tion by arrangement, and also any other actor proceeding in law having under any lawfor the time being in force, effects or resultssimilar to those of bankruptcy;

"conveyance" includes a mortgage, charge, lease,assignment, appointment, transfer, assent,vesting declaration, disclaimer, release, sur-render, extinguishment and every otherassurance of property or of an interesttherein by any instrument, except a will;and "convey" has a correspondingmeaning;

"Court" means the Supreme Court or a Judge;"deed" in relation to land under the Transfer of

Land Act, 1893, includes an instrumenthaving the effect of a deed under that Act;

Applicationof this Actto certainActs.


"disposition" includes a conveyance and also adevise, bequest or an appointment of pro-perty contained in a will; and "dispose of"has a corresponding meaning;

"encumbrance" includes a legal or equitablemortgage, a trust for securing money, alien and a charge of a portion, annuity,or other capital or annual sum; and"encumbrancee" has a correspondingmeaning, and includes every personentitled to the benefit of an encumbranceor entitled to require payment or dischargeof the encumbrance;

"fine" includes a premium or foregift and anypayment, consideration or benefit in thenature of a fine, premium or foregift;

"incapable person" has the same meaning as inthe Mental Health Act, 1962;

"income" in relation to land includes rents andprofits;

"instrument" includes deed and will but doesnot include a statute, unless the statutecreates a settlement;

"land" includes land of any tenure and minesand minerals whether or not they are heldapart from the surface of the land, a build-ing or part of a building, whether the divi-sion of the building is horizontal, verticalor made in any other way, and other cor-poreal hereditaments, and also includes arent and other incorporeal hereditamentsand an easement, right, privilege or benefitin, over or derived from the land and anundivided share in land;

"land under the Transfer of Land Act, 1893"means any estate or interest registeredunder that Act;

"lease" includes an under-lease or othertenancy;

"lessee" includes an underlessee and a personderiving title under a lessee or underlessee;


"lessor" includes an underlessor and a personderiving title under a lessor or underlessor;

"mines and minerals" include any strata orseam of minerals or substances in or underany land and the right to work and get theminerals and substances;

"mortgage" includes a charge or lien on anyproperty for securing money or money'sworth;

"mortgage", "mortgagee" and "mortgagor" inrelation to land under the Transfer of LandAct, 1893, have the same respective mean-ings as they have in that Act;

"mortgage money" means the principal interestor other money or money's worth securedby a mortgage;

"mortgagee" includes any person from time totime deriving title under the original mort-gagee and "mortgagee in possession" meansa mortgagee who in right of the mortgagehas entered into and is in possession of themortgaged property;

"mortgagor" includes any person from time totime deriving title under the original mort-gagor or entitled to redeem a mortgage,according to his estate, interest, or rightin the mortgaged property;

"notice" includes constructive notice;

"periodic tenancy" means a tenancy of no fixedduration and in respect of which the rentis payable weekly, monthly, yearly or forany other recurring period;

"personal representative" means the executor,original or by representation or the admini-strator for the time being of a deceasedperson;

"possession" in relation to land includes thereceipt of income therefrom or the right toreceive the income;


"property" includes real and personal propertyand any estate or interest therein and anything or chose in action;

"purchaser" means a purchaser in good faithfor valuable consideration and includes alessee, mortgagee or other person who forvaluable consideration acquires an interestin property; and where the context sorequires "purchaser" includes an intendingpurchaser and "purchase" has a corres-ponding meaning;

"registered or duly registered" means registeredin the manner provided by the Transfer ofLand Act, 1893 where the land affected isunder that Act, and otherwise meansregistered in the manner provided by theRegistration of Deeds Ordinance 1856 (19Vic. No. 14);

"rent" includes a rent service or a rent charge,or other rent, toll, duty, royalty or annualor periodical payment or money or money'sworth reserved or issuing out of or chargedupon land but does not include fee-farmrent;

"right of redemption" in relation to a mortgageincludes an option to repurchase only if theoption in effect creates a right of redemp-tion;

"sale" means a sale properly so called;"securities" include stocks, funds and shares;"valuable consideration" includes marriage but

does not include a nominal consideration inmoney;

"will" includes codicil and every other testamen-tary disposition.

Construc-tion Ofexpressionsused indeeds andotherInstruments.Cf.Victoria ActNo 6344,s. 61.

PART II.-DEEDS AND OTHER INSTRUMENTS.

8. In every deed, contract, will, order and otherinstrument that is executed, made or comes intooperation after the coming into operation of thisAct, unless the context otherwise requires

(a) "month" means a calendar month.


(b) "person" includes a body corporate;(c) every word in the singular number shall be

construed as including the plural number;(d) every word in the plural number shall be

construed as including the singularnumber;

(e) every word of the masculine gender shallbe construed as including the femininegender;

every word of the feminine gender shall beconstrued as including the masculinegender;

(g) every word in either of the said genders ornumbers shall be construed as including abody corporate as well as an individual.

9. (1) Every deed, whether or not affecting pro- pyres

perty— Of.N.Z. Act

(a) shall be signed by the party to be bound 1:112.thereby; and 6. 4.

(b) shall be attested by at least one witness notbeing a party to the deed but no particularform of words is required for the attesta-tion.

(2) It is not necessary to seal any deed except inthe case of a deed executed by a corporation underits, common or official seal.

(3) Formal delivery and indenting are not neces-sary in any case.

(4) Every instrument expressed or purporting tobe an indenture or a deed or an agreement underseal or otherwise purporting to be a documentexecuted under seal and which is executed asrequired by this section has the same effect as adeed duly executed in accordance with the law inforce immediately prior to the coming into operationof this Act.

Execution ofInstrumentsby or onbehalf ofcorpora-tions.Cf..Victoria ActNo. 6344,el.


10. (1) A deed shall be deemed to have been dulyexecuted by a corporation aggregate in favour of apurchaser, if the seal of that corporation is affixedto the deed in the presence of and attested by aperson who is its clerk, secretary or other permanentofficer or his deputy, and a member of its board ofdirectors, council or other governing body.

(2) Where a seal purporting to be the seal of acorporation aggregate has been affixed to a deed,attested by a person and a member purporting to besuch a person and such a member as is referred to insubsection (1) of this section, the deed shall bedeemed to have been duly executed and to havetaken effect accordingly.

(3) The board of directors, council or other gov-erning body of a corporation aggregate may, byresolution or otherwise, appoint an agent eithergenerally or in any particular case, to execute onbehalf of the corporation any agreement or otherinstrument not under seal in relation to any matterwithin the powers of the corporation.

(4) When a person is authorised under a powerof attorney or under any statutory or other powerto execute any instrument in the name of, or onbehalf of a corporation, sole or aggregate, he mayas attorney for the corporation execute theinstrument by signing the name of the corporationand adding the words "by its attorney" and hisown signature in the presence of at least onewitness and subject to the compliance by suchperson with the provisions of subsection (3) ofsection 85 of this Act, an instrument so executedtakes effect as if duly executed by the corporation.

(5) Where a corporation aggregate is authorisedunder a power of attorney or under any statutory orother power to execute any instrument in thename or on behalf of any other person (includinganother corporation), an officer of the corporationaggregate appointed for that purpose by the boardof directors, council or other governing body of thatcorporation by resolution or otherwise, may execute


the instrument in the name of that other person;and if the instrument appears to be executed by anofficer so appointed, then in favour of a purchaserthe instrument shall be deemed to have been exe-cuted by an officer duly authorised.

(6) The foregoing provisions of this section applyto transactions wherever effected, but only toinstruments executed after the date of the cominginto operation of this Act, except that, in the case ofpowers or appointments of an agent or officer, thoseprovisions apply whether the power was conferredor the appointment was made before or after thatdate.

(7) Notwithstanding anything contained in thissection, any mode of execution or attestationauthorised by law or by practice or by the statute,charter, memorandum or articles, deed or settle-ment or other instrument constituting the corpora-tion or regulating the affairs thereof, are (inaddition to the modes authorised by this section) aseffectual as if this section had not come intooperation.

11. (1) A person may take an immediate or other Pertasonsking who

interest in land or other property, or the benefit of are notarties.

any condition, right of entry, covenant or agreement Cf.V ictoriaover or respecting land or other property, although No. 6344,Acts. 56he is not named as a party to the conveyance or N.Z.

;Act

o. 51other instrument that relates to the land or of 1952,

property. 2.7.

(2) Except in the case of a conveyance or otherinstrument to which subsection (1) of this sectionapplies, where a contract expressly in its termspurports to confer a benefit directly on a person whois not named as a party to the contract, the contractis, subject to subsection (3) of this section, enforce-able by that person in his own name but

(a) all defences that would have been avail-able to the defendant in an action or pro-ceeding in a court of competent jurisdictionto enforce the contract had the plaintiffin the action or proceeding been named asa party to the contract. shall be so avail-able;

Descriptionof deeds.Cf.Victoria ActNo. 6344,8. 57.

Conditionsand certaincovenantsnot implied.Cf.Victoria ActNo. 6344,8. 59.

Receipt indeedsufficient.Cf.Victoria ActNo. 6344,s. 67.

Receipt indeed orindorsedevidence.Cf.Victoria ActNo. 6344,

68


(b) each person named as a party to the con-tract shall be joined as a party to the actionor proceeding; and

(c) such defendant in the action or proceedingshall be entitled to enforce as against suchplaintiff, all the obligations that in theterms of the contract are imposed on theplaintiff for the benefit of the defendant.

(3) Unless the contract referred to in subsection(2) of this section otherwise provides, the contractmay be cancelled or modified by the mutual consentof the persons named as parties thereto at any timebefore the person referred to in that subsection hasadopted it either expressly or by conduct.

12. Any deed, whether or not it is an indenture,may be described (at the commencement thereof orotherwise) as a deed simply or as an agreementunder seal, or as a conveyance, deed of exchange,settlement, mortgage, charge, transfer of mortgage,appointment, lease or otherwise according to thenature of the transaction intended to be effected.

13. (1) An exchange, a partition or other con-veyance of land made by deed does not imply anycondition in law.

(2) The word "give" or "grant" does not implyany covenant in law, save where otherwise providedby an Act.

14. A receipt for any consideration, money orsecurities in the body of a deed is a sufficient dis-charge therefor to the person giving, paying ordelivering the consideration, money or securities,without any further receipt therefor being indorsedon that deed.

15. A receipt for consideration money or otherconsideration in the body of a deed or indorsed there-on is, in favour of a subsequent purchaser, nothaving notice that the money or other considerationthereby acknowledged to be received was not in factpaid or given, wholly or in part, sufficient evidenceof the payment or giving of the whole amountthereof.


16. Any instrument expressed to be supple- g=rptionmental to a previous instrument, or directed to be ifneg;Exedpi.read as an annexure thereto, shall, as far as may Instrument.c

N.Z.Actbe, be read and have effect, as if the instrument so 95251.1expressed or directed were made by way of endorse-ment on the previous instrument, or contained afull recital thereof.PART III.-GENERAL RULES AFFECTING PROPERTY.

17. An estate for life, without impeachment of irgiv.`viggurtwaste, does not confer upon the tenant for life any lut-legal right to commit waste of the description known roaostoegfitr

as equitable waste, unless an intention to confer =telethat right expressly appears by the instrument Cf.

and15U.K.creating that estate. 16 Geo. 5,

c. 20, s. 135.

18. There shall not be any merger by operation aNWorretof law only of any estate, the beneficial interest in Ilrohmnne

which would not be deemed to be merged or extin- U.K. /5 ndquished in equity. 16 Geo. 5a.

0. 20, s. 185.

19. (1) Subject to subsection (2) of this section possession ofa mortgagor entitled for the time being to the pos- landtb ry: or

session or receipt of the rents and profits of any land, cmiffr. g gas to which no notice of his intention to take pos- YAM'. dsession or to enter upon the receipt of the rents c. 20, s, 93.

and profits thereof has been given by the mortgagee,may sue for that possession, or for the recovery ofthose rents or profits, or to prevent or to recoverdamages in respect of any trespass or other wrongrelative thereto, in his own name only, unless thecause of action arises upon a lease or other contractmade by him jointly with any other person.

(2) This section aoes not apply to a mortgagor ora mortgage to which section 117 of the Transfer ofLand Act, 1893 applies.

20. (1) Any absolute assignment by writing r=entunder the hand of the assignor (not purporting to 1‘g.ctcTsbe by way of charge only) of any debt or other legal Cf.

chose in action, of which express notice in writing idLts.rdhas been given to the debtor, trustee, or other person c. 2". 136.

from whom the assignor would have been entitledto receive or claim that debt or chose in action, iseffectual in law (subject to equities having priorityover the right of the assignee), to pass and transfer


from the date of the notice(a) the legal right to that debt or chose in

action;(b) all legal and other remedies for the debt

or chose in action; and

(c) the power to give a good discharge for thedebt or chose in action, without theconcurrence of the assignor.

(2) Where the debtor, trustee, or other personliable in respect of the debt or chose in actionreferred to in subsection (1) has notice

(a) that the assignment so referred to isdisputed by the assignor, or any personclaiming under him; or

(b) of any other opposing or conflicting claims,to the debt or chose in action,

he may, if he thinks fit, either call upon the personsmaking claim thereto to interplead concerning thedebt or chose in action, or pay the debt or otherchose in action into court, under the provisions ofthe Trustees Act, 1962.

(3) For the purposes of this section "any debt orother legal chose in action" includes a part of anydebt or other legal chose in action.

21. Stipulations in a contract, as to time orotherwise, that according to rules of equity are notdeemed to be or to have become of the essence ofthe contract, shall be construed and have effect atlaw in accordance with the rules of equity.

22. (1) Where the purposes of a term of years,created or limited at any time out of freehold land,become satisfied (whether or not that term eitherby express declaration or by construction of lawbecomes attendant upon the freehold reversion),that term of years merges in the reversion expectantthereon and ceases accordingly.

(2) Where the purposes of a term of years, createdor limited at any time out of leasehold land, becomesatisfied, that term merges in' the reversionexpectant thereon and ceases accordingly.

Stipulationsnot of theessence ofa contract.Cr.U.K. 15 and16 Geo. 5,c. 20, s. 41.

Satisfiedterms,whethercreated outof freeholdor leaseholdland, tocease.Cf.U.K. 15 and16 Geo. 5,c. 20, s. 5.


(3) Where the purposes are satisfied as respectspart only of the land comprised in a term, thissection has effect as if a separate term had beencreated in regard to that part of the land.

23. (1) In any instrument coming into operationafter the coming into operation of this Act, a limita-tion which, if this section had not operated, wouldhave created an estate tail (legal or equitable) inany land in favour of any person shall be deemedto create an estate in fee simple (legal or equitable,as the case may be) in that land in favour of thatperson to the exclusion of all estates or interestslimited to take effect after the determination or indefeasance of any such estate tail.

(2) Where at the coming into operation of thisAct any person is entitled to an estate tail (legalor equitable), whether in possession, reversion, orremainder, in any land, that person, except as here-inafter mentioned in this section, shall be deemedto be entitled to an estate in fee simple (legal orequitable, as the case may be) in that land, to theexclusion of all estates or interests limited to takeeffect after the determination or in defeasance ofany such estate tail.

(3) In subsection (2) of this section theexpression "estate tail" includes that estate in feeinto which an estate tail is converted where theissue in tail is barred, but the persons claimingestates by way of remainder are not barred; alsoan estate in fee voidable or determinable by the entryof the issue in tail; but does not include the estate ofa tenant in tail after possibility of issue extinct.

24. An estate of freehold to take effect at afuture time may be created by any deed by whicha present estate of freehold may be created.

25. Any estate or interest that is capable of beingcreated by will in any chattel real may also becreated by deed.

Estates tailabolished.Cf. N.Z. ActNo. 51of 1952,s. 16.

Creation bydeed offreeholdirz futuro.Cf.N.Z. ActNo. 51of 1952,s. 18.

Creation bydeed ofestate inchattel realCf.N.Z. ActNo. 51of 1952,s. 19.

Contingentremaindersto takeeffectnotwith-standingprematurefailure ofprecedingestate.Cf.N.Z. ActNo. 51of 1952,s. 20.

Rule inShelley'sCaseabolished.Cf.N.Z. ActNo. 51of 1952,s. 22.


26. (1) A contingent remainder is and shall bedeemed to have been capable of taking effectnotwithstanding the destruction or determinationby forfeiture, surrender or merger of any precedingestate of freehold in the same manner and in allrespects as if the destruction or determination hadnot happened.

(2) Every contingent remainder in tenements orhereditaments of any tenure that would have beenvalid as a springing or shifting use or executorydevise or other limitation had it not had a sufficientestate to support it as a contingent remainder, iscapable, in the event of the particular estate deter-mining before the contingent remainder vests, oftaking effect in all respects as if the contingentremainder had originally been created as a spring-ing or shifting use or executory devise or otherlimitation.

27. Where in an instrument that comes intooperation after the coming into operation of thisAct a remainder is limited mediately or immediatelyto the heir or heirs of the body of a person to whoman estate for any life in the same property isexpressly given, the estate of that person shall bean estate for that life with remainder to thepersons who on the death of that person intestatewould be beneficially entitled to his property andin the same shares.

Restrictionon executorylimitations.Cf.N.Z. ActNo. 51of 1952,s. 23.

28. (1) Where there is a person entitled to landfor an estate in fee, or for a term of years absolute,or determinable on life, or for term of life, withan executory limitation over on default or failureof all or any of his issue, whether within or at anyspecified period or time or not, that executorylimitation is or shall become void and incapable oftaking effect if and as soon as there is living anyissue that has attained the age of twenty-one years,of the class on default or failure whereof the limita-tion over was to take effect.


(2) This section applies only where the executorylimitation is contained in an instrument cominginto operation on or after the date of the cominginto operation of this Act.

29. (1) Subject to subsection (2) of this section Corporationsmay hold

a body corporate is capable of acquiring and holding as nMattenats.any property in joint tenancy in the same manner as Cf.

No .ctif it were an individual, and where a body corporate No. 51of 1and an individual or two or more bodies corporate s. 3952,2.

become entitled to any property under circum-stances or by virtue of any instrument that would,if the body corporate had been an individual, havecreated a joint tenancy they are entitled to theproperty as joint tenants.

(2) The acquisition and holding of property bya body corporate in joint tenancy is subject to thelike conditions and restrictions as attach to theacquisition and holding of property by a body cor-porate in severalty.

(3) Where a body corporate is a joint tenant ofany property, then on its dissolution the propertydevolves on the other joint tenant.

(4) For the purposes of this section and section227 of the Transfer of Land Act, 1893, the dissolutionof a corporation has the same effect as the deathof a joint proprietor.

30. A married minor has power to give validreceipts for all income (including accumulations ofincome made during the minority) to which theminor may be entitled in like manner as if the minorwere of full age.

31. (1) In any instrument executed on or afterthe 6th day of December, 1962, a restriction uponanticipation or alienation attached to the enjoymentof any property by a woman that could not havebeen attached to the enjoyment of that property bya man is of no effect.

(2) Whether before or after the coming into ope-ration of this Act, where, a married woman isrestrained from anticipation or alienation of, or is

Receipts forincome bymarriedminors.Cf.N.Z. ActNo. 51of 1952,s. 36.

Abolition ofrestraint onanticipation-power ofCourt.Cf.W.A. ActNo. 83of 1962.s,


unable to dispose of or bind any property belongingto her or her interest therein, the Court may withher consent by order, remove the restraint from andbind her interest in such property in any case wherethe Court considers it in the interest of the marriedwoman so to do.

Lands lieIn grantonly.Cf.Victoria ActNo. 6344,s. 5/.

Conveyancesto be bydeed.Cf.Victoria ActNo. 6344,8. 52.

PART IV.-CONVEYANCES AND OTHER INSTRUMENTS.

32. (1) All lands and all interests therein lie ingrant and are incapable of being conveyed by liveryor livery and seisin, or by feoffment, or by bargainand sale.

(2) A conveyance of an interest in land mayoperate to pass the possession or right to possessionthereof, without actual entry, but subject to allprior rights thereto.

(3) The use of the word "grant" is not necessaryto convey land or to create any interest therein andany word or words that was or were prior to thecommencement of this subsection, sufficient in lawto convey land or to create any interest therein orany other word or words evidencing an intention toconvey land or create any interest therein is or aresufficient for the purpose.

33. (1) All conveyances of land or of any interesttherein are void for the purpose of conveying orcreating a legal estate unless made by deed.

(2) This section does not apply to

(a) assents by a personal representative;

(b) disclaimers made in accordance with theprovisions of any law relating to bank-ruptcy or not required to be evidenced inwriting;

(c) surrenders by operation of law, includingsurrenders that may, by law, be effectedwithout writing:


(d) leases or tenancies or other assurances notrequired by law to be made in writing;

(e) receipts not required by law to be underseal;

(f) vesting orders of the Court or other com-petent authority;

(g) conveyances taking effect by operation oflaw.

34. (1) Subject to the provisions hereinafter Instrumentsrequired to

contained in this Act with respect to the creation of be inwriting.interests in land by parol— Cf.

Victoria Act(a) no interest in land is capable of being No. 6344,

s. 53.created or disposed of except by writingsigned by the person creating or conveyingthe interest, or by his agent thereunto law-fully authorised in writing, or by will, or byoperation of law;

(b) a declaration of trust respecting any landor any interest therein shall be manifestedand proved by writing signed by a personwho is able to declare the trust or by hiswill;

(c) a disposition of an equitable interest ortrust subsisting at the time of the disposi-tion shall be in writing signed by the persondisposing of the interest, or by his agentthereunto lawfully authorised in writingor by will.

(2) This section does not affect the creation oroperation of resulting, implied or constructivetrusts.

35. (1) Any interest in land created by parol andnot put in writing and signed by the person socreating it, or by his agent thereunto lawfullyauthorised in writing, has notwithstanding anyconsideration having been given for the interest, theforce and effect of an interest at will only.

(2) Nothing in the foregoing provisions of thisPart affects the creation by parol of leases takingeffect in possession for a term not exceeding threeyears, whether or not the lessee is given power toextend the term.

Creation ofinterests inland Inpawl.Cf.Victoria ActNo. 6344,5. 53.

Savings inregard toSs. 34 and 35.Cf.Victoria ActNo. 6344,s. 55.

Power todispose offee-simpleby deedwithoutwords ofinheritance.Cf.Victoria ActNo. 6344,s. 60.

No use toresult fromabsence ofconsidera-tion.

Limitationsmay be bydirectconveyancewithoutuses.

No. 321 Property Law. [1969.-

36. Nothing in sections thirty-four and thirty-five of this Act

(a) invalidates dispositions by will;(b) affects any interest validly created before

the coming into operation of this Act;(c) affects the right to acquire an interest in

land by virtue of taking possession; or(d) affects the operation of the law relating to'

part performance.

37. (1) A disposition of freehold land by deedto a person without words of limitation or anyequivalent expression passes to the grantee the fee-simple or other the whole interest that the disposerhad power to dispose of by deed in that land, unlessa contrary intention appears in the disposition.

(2) In the limitation of an estate in fee simpleit is sufficient to use the words "in fee" or "in feesimple" without the use of the word "heirs" or in thecase of a corporation without the word "successors".

(3) A deed in or to the effect of a duly com-pleted form in the Fourth Schedule to this Act iseffectual to convey the land or the estate or interestin the land that is expressed to be conveyed by such.deed.

(4) This section applies only to deeds executedafter the coming into operation of this Act.

38. No use shall be held to result merely from the'absence of consideration in a conveyance of land asto which no uses or trusts are therein declared.

39. Every limitation that may be made by way ofuse operating under the Statute of Uses or this Actmay be made by direct conveyance without theintervention of uses.

No con-veyance tohavetortiousoperation.

40. No conveyance of any land shall have atortious operation.


41. (1) A conveyance of land shall be deemed to Generalwords

include and shall by virtue of this Act operate to implied inconveyances

convey, with the land, all buildings, erections, fix- Cf.Victoria Acttures, commons, hedges, ditches, fences, ways, No. 6349,

waters, watercourses, liberties, privileges, easements, s. 62.

rights and all advantages of whatsoever kind,appertaining or reputed to appertain to the land, orany part thereof, at the time of conveyance.

(2) A conveyance of land, having houses or otherbuildings thereon, shall be deemed to include andshall by virtue of this Act operate to convey, withthe land, houses or other buildings, all outhouses,erections, fixtures, cellars, areas, courts, courtyards,cisterns, sewers, gutters, drains, ways, passages,lights, watercourses, liberties, privileges, easements,rights and all advantages of whatsoever kind,appertaining or reputed to appertain to the land,houses or other buildings conveyed, or any of them,or any part thereof at the time of conveyance.

(3) This section applies only if and as far as acontrary intention is not expressed in theconveyance, and has effect subject to the terms ofthe conveyance and to the provisions thereof.

(4) This section shall not be construed as givingto a person a better title to any property, right orthing in this section mentioned, than the title whichthe conveyance gives to him to the land expressedto be conveyed, or as conveying to him any property,right or thing in this section mentioned, further orotherwise than the property, right or thing couldhave been conveyed to him by the conveying parties.

(5) This section applies to conveyances madeafter the coming into operation of this Act.

42. (1) Every conveyance is effectual to pass allthe estate, right, title, interest, claim and demandthat the conveying parties respectively have, in, toor on the property conveyed, or expressed orintended so to be, or which they respectively havepower to convey in, to, or on the property.

All estateclauseCI.Victoria ActNo. 6344,s. 63


(2) This section applies only if and as far as acontrary intention is not expressed in theconveyance, and has effect subject to the terms ofthe conveyance and to the provisions thereof.

(3) This section shall apply to conveyances madeafter the coming into operation of this Act.

Partialreleaseof landfrom rent.Cf.Victoria ActNo. 6344,s. 70.

ThirdSchedulePart I.

43. (1) A release from a rent of part of theland out of which it is payable does not extinguishthe whole rent, but operates only to bar the right torecover any part of the rent out of the land released,without prejudice to the rights of any personsinterested in the land remaining unreleased, andnot concurring in or confirming the release.

(2) This section applies to releases made afterthe coming into operation of this Act.

44. A person may convey property to himself orto himself and another person or persons.

PART V.-COVENANTS.

45. (1) In a conveyance there shall, in theseveral cases mentioned in this section, by virtueof this Act, be implied, a covenant to the effectstated in this section by the person or by eachperson who conveys, as far as regards the subjectmatter or share of subject matter expressed to beconveyed by him, with the person, if one, to whomthe conveyance is made or with the persons jointly,if more than one, to whom the conveyance is madeas joint tenants or with each of the persons, if morethan one, to whom the conveyance is made, astenants in common namely

(a) in a conveyance for valuable consideration,other than a mortgage, a covenant by aperson who conveys and is expressed toconvey as beneficial owner in the terms setout in Part I of the Third Schedule to thisAct;

Power toperson toconveyProperty tohimself, etc.Cf.N.Z. ActNo. 51of 1952,s. 49.

Covenantsfor titleimplied.Cf.Victoria ActNo. 6344,s. 76.


(b) in a conveyance of leasehold property forvaluable consideration, other than amortgage, a further covenant by a personwho conveys and is expressed to convey asbeneficial owner in the terms set out inPart II of the Third Schedule to this Act; Third

Schedule(c) in a conveyance by way of mortgage a Part II.

covenant by a person who conveys and isexpressed to convey as beneficial owner inthe terms set out in Part III of the Third ThirdSchedule to this Act; Schedule

Part III.

(d) in a conveyance by way of mortgage ofleasehold property, a further covenant bya person who conveys and is expressed toconvey as beneficial owner in the terms setout in Part IV of the Third Schedule to Third

Schedulethis Act; Part IV.

(e) in a conveyance by way of settlement, acovenant by a person who conveys and isexpressed to convey as settlor in the termsset out in Part V of the Third Schedule to Thirdthis Act; Schedule

Part V.

(f) in any conveyance, a covenant by everyperson who conveys and is expressed toconvey as trustee or mortgagee, or aspersonal representative of a deceasedperson, or as manager of the estate of anincapable person or under an order of theCourt, in the terms set out in Part VI of Third

Schedulethe Third Schedule to this Act, which Part VI.covenant shall be deemed to extend to everysuch person's own acts only, and may beimplied in an assent by a personalrepresentative in like manner as in aconveyance by deed.

(2) Where in a conveyance it is expressed thatby direction of a person expressed to direct asbeneficial owner another person conveys, then, forthe purposes of this section, the person giving thedirection, whether he conveys and is expressed toconvey as beneficial owner or not, shall be deemedto convey and to be expressed to convey as beneficial


owner the subject-matter so conveyed by his direc-tion; and a covenant on his part shall be impliedaccordingly.

(3) In every conveyance subject to an encum-brance, there shall be implied a covenant by theperson to whom the property is conveyed with theperson making the conveyance, to pay the moneys orperform the obligations secured by the encum-brance, and to perform and observe the covenantsand provisions of the encumbrance and to indemnifyand keep indemnified the person making the con-veyance in respect of all such moneys, obligations,covenants and provisions.

(4) Where in a conveyance a person conveying isnot expressed to convey as beneficial owner, or assettlor, or as trustee, or as mortgagee, or as personalrepresentative of a deceased person or as managerof the estate of an incapable person or under anorder of the Court, or by direction of a person asbeneficial owner, no covenant on the part of theperson conveying is, by virtue of this section, impliedin the conveyance.

(5) In this section a conveyance does not includea demise by way of lease at a rent.

(6) The benefit of a covenant implied by virtueof this section is annexed and incident to, and goeswith, the estate or interest of the implied cove-nantee, and is capable of being enforced by everyperson in whom that estate or interest is, for thewhole or any part thereof, from time to time vested.

(7) A covenant implied by virtue of this sectionmay be varied or extended by a deed or an assent,and, as so varied or extended, operates, as far asmay be, in the like manner, and with all the likeincidents, effects and consequences, as if suchvariations or extensions were directed in this sectionto be implied.

(8) This section applies to conveyances madeafter the coming into operation of this Act.


46. In the construction of a covenant, or otherprovision, implied in a deed by virtue of this Part,words importing the singular or plural number, orthe masculine gender, shall be read as also importingthe plural or singular number, or as extending tofemales, as the case may require.

47. (1) A covenant relating to any land of thecovenantee shall be deemed to be made with thecovenantee and his successors in title and thepersons deriving title under him or them, and haseffect as if those successors and other persons wereexpressed.

(2) For the purposes of subsection (1) of this sec-tion in connection with covenants restrictive of theuser of land, "successors in title" shall be deemed toinclude the owners and occupiers for the time beingof the land of the covenantee intended to bebenefited.

ConStruc-non ofimpliedcovenants.Cf.Victoria ActNo. 6344,s. 83.

Benefits ofcovenantsrelating toland.Cf.Victoria ActNo. 6344,s. 78.

(3) This section applies only to covenants madeafter the coming into operation of this Act.

48. (1) Unless a contrary intention is expressed, Bec1;,=a covenant relating to any land of a covenantor or relating to

capable of being bound by him, shall be deemed to cf.victoria Act

be made by the covenantor on behalf of himself, No.96341,

his successors in title and the persons deriving title 8.

7

under him or them, and, has effect as if thosesuccessors and other persons were expressed.

(2) Subsection (1) of this section extends to acovenant to do some act relating to the land, not-withstanding that the subject-matter may not be inexistence when the covenant is made.

(3) For the purposes of this section in connectionwith covenants restrictive of the user of land "suc-cessors in title" shall be deemed to include theowners and occupiers for the time being of the land.

(4) This section applies only to covenants madeafter the coming into operation of this Act.

Construc-tion ofcovenantsaffectingland.Cf.Victoria ActNo. 6344,S. 79A.

Covenantsto be jointand several.Cf.N.Z. ActNo. 51of 1952,s. 67.

Effect ofcovenantwith twoor morejointly.Of.Victoria ActNo. 6344,s.


49. (1) It is hereby declared that when thebenefit of a restriction as to the user of or thebuilding on any land is or has been annexed orpurports to be annexed by any instrument to otherland the benefit shall, unless it is expressly providedto the contrary, be deemed to be and always to havebeen annexed to the whole and to each part of thatother land capable of benefiting from the restriction.

(2) In this section "land" includes land that isunder the provisions of the Transfer of Land Act,1893.

50. Where under a covenant whether express orimplied under this or any other Act more personsthan one are covenantors, the covenant shall unlessa contrary intention is expressed be deemed to bindall the covenantors jointly and each of themseverally.

51. (1) A covenant, and a contract under seal, anda bond or obligation under seal, made with two ormore jointly, to pay money or to make a conveyance,or to do any other act, to them or for their benefit,shall be deemed to include, and shall, by virtue ofthis Part, imply, an obligation to do the act to, or forthe benefit of, the survivor or survivors of them, andto, or for the benefit of, any other person to whomthe right to sue on the covenant, contract, bond orobligation devolves, and if the covenant, contract,bond or obligation is made after the coming intooperation of this Act it shall be construed as beingmade with each of them.

(2) This section extends to a covenant implied byvirtue of this Part.

(3) This section applies only if and as far as acontrary intention is not expressed in the covenant,contract, bond or obligation, and has effect subjectto the covenant, contract, bond or obligation, andto the provisions thereof.

(4) Except as otherwise expressly provided, thissection applies to a covenant, contract, bond orobligation made or implied after the coming intooperation of this Act.


52. (1) Any covenant, whether express or im- canornants

plied, or agreement entered into by a person with aegreer: inn%

himself and one or more other persons shall be con- wbItTipznsosnelf

strued and be capable of being enforced in like ando another

manner as if the covenant or agreement had been cr. .entered into with the other person or persons alone. Nioc.tat,

Act

s. 82.

(2) This section applies to covenants or agree-ments entered into before or after the coming intooperation of this Act.

PART VI.-MORTGAGES.

53. (1) On a decree, judgment or order absolute eFxotrienegsires

for foreclosure, the mortgagee shall be deemed to rolgtotnorf or

have taken the property mentioned in the decree, Telprttragdejudgment or order in full satisfaction of the more- redemption.gage debt and his right or equity to bring any CI.

gaActaction or to take other proceedings for the recovery 1 06t

of the mortgage money from the debtor, surety or saother person is extinguished and the right or equityof the mortgagor to redeem the property is alsoextinguished.

(2) In the case of mortgages of land under theTransfer of Land Act, 1393 "order absolute" includesan order for foreclosure under the hand of theregistrar when entered in the register book.

(3) Nothing in this section shall be deemed todisentitle the mortgagee (on such terms and con-ditions as to the Court seems just) from obtainingforeclosure of any other property over which heholds security by way of mortgage for the mortgagemoney or part thereof or from enforcing all or anyrights, powers and remedies expressed or impliedin that mortgage except the right to sue the mort-gagor or any surety for the mortgagor either forthe mortgage money or on any bill or note given assecurity for the mortgage money as if this sectionhad not commenced.

(4) This section has effect notwithstanding anystipulation to the contrary.61982—(9)

Realisationof equitablecharges bythe Court.Cf.Victoria ActNo. 6344,s. 90.

Sale ofmortgagedproperty inaction forredemptionor fore-closure.Cf.Victoria ActNo. 6344,s. 91.


54. (1) Where an order for sale is made by theCourt in reference to an equitable mortgage on landthe Court may, in favour of a purchaser, make avesting order conveying the land or may appoint aperson to convey the land, or may create and vest inthe mortgagee a legal estate in the land to enablehim to carry out the sale as the case requires, in likemanner as if the mortgage had been made by deedby way of legal mortgage, but without prejudice toany encumbrance having priority to the equitablemortgage unless the encumbrancee consents to thesale.

(2) This section applies to equitable mortgagesmade or arising before or after the coming intooperation of this Act.

55. (1) A person entitled to redeem mortgagedproperty may have a judgment or order for saleinstead of for redemption in an action brought byhim either for redemption alone, or for sale alone,or for sale or redemption in the alternative.

(2) In an action, whether for foreclosure, or forredemption, or for sale, or for the raising and pay-ment in any manner of mortgage money, the Court,on the request of the mortgagee, or of any personinterested either in the mortgage money or in theright of redemption, and, notwithstanding that

(a) any other person dissents; or

(b) the mortgagee or any person so interesteddoes not appear in the action,

and without allowing any time for redemption orfor payment of any mortgage money, may, if itthinks fit, direct a sale of the mortgaged property,on such terms, subject to subsection (3) of this sec-tion, as it thinks fit, including the deposit in Court ofa reasonable sum fixed by the Court to meet theexpenses of sale and to secure performance of theterms.


(3) In an action brought by a person interestedin the right of redemption and seeking a sale, theCourt may, on the application of any defendant,direct the plaintiff to give such security for costs asthe Court thinks fit, and may give the conduct ofthe sale to any defendant, and may give suchdirections as it thinks fit respecting the costs of thedefendants or any of them.

(4) In any case within this section the Courtmay, if it thinks fit, direct a sale without previouslydetermining the priorities of encumbrancees.

(5) This section applies to actions brought eitherbefore or after the coming into operation of this Act.

(6) In this section "mortgaged property" includesthe estate or interest that a mortgagee would havehad power to convey if the statutory power of salewere applicable.

(7) For the purpose of this section the Court may,in favour of a purchaser, make a vesting order con-veying the mortgaged property, or appoint a personto do so, subject or not to any encumbrance, as theCourt thinks fit; or, in the case of an equitablemortgage, may create and vest in the mortgagee alegal estate to enable him to carry out the sale inlike manner as if the mortgage had been made bydeed by way of legal mortgage.

56. (1) A mortgagor seeking to redeem any onemortgage is entitled to do so without paying anymoney due under any separate mortgage made byhim, or by any person through whom he claims, onproperty other than that comprised in the mortgagethat he seeks to redeem.

(2) This section has effect notwithstanding anystipulation to the contrary.

(3) This section applies only where the mort-gages or one of them are or is made after the cominginto operation of this Act.

Restrictionon consoli-dation ofmortgages.Cf.Victoria ActNo. 6344,s. 93.

Impliedpowers ofmortgagees.CI.Victoria ActNo. 6344,s. 101.


57. (1) A mortgagee, where the mortgage is madeby deed, has, by virtue of this Part, the followingpowers, to the like extent as if they had been interms conferred by the mortgage deed, but notfurther, namely

(a) a power, when the mortgage money hasbecome due, to sell, or to concur with anyother person in selling, the mortgaged pro-perty, or any part thereof, either subject toprior charges or not, and either together orin lots, by public auction or by private con-tract, and for a sum payable either in oneamount or by instalments, subject to suchconditions respecting title, or evidence oftitle, or other matter, as he, the mortgagee,thinks fit, with power to vary any contractfor sale, and to buy in at an auction, or torescind any contract for sale, and to re-sell,without being answerable for any lossoccasioned thereby, with power to makesuch roads, streets and passages and grantsuch easements of right of way or drainageover the mortgaged property as the circum-stances may require and he thinks fit; and

(b) a power, at any time after the date of themortgage deed, to insure and keep insuredagainst loss or damage by fire, storm,tempest and earthquake any building,or any effects or property of an insurablenature, whether affixed to the freehold ornot, being or forming part of the propertywhich or an estate or interest wherein ismortgaged, and the premiums paid for anysuch insurance is a charge on themortgaged property or estate or interest, inaddition to the mortgage money, and withthe same priority, and with interest at thesame rate, as the mortgage money; and

(c) where the mortgage is executed after thecoming into operation of this Act a power,when the mortgage money has become due,to appoint a receiver of the income of themortgaged property, or any part thereof;or, if the mortgaged property consists of aninterest in income, or of a rentcharge oran annual or other periodical sum, a


receiver of that property or any partthereof.

(2) Where the mortgage is executed after thecoming into operation of this Act, the power of salereferred to in subsection (1) of this section, includesthe following powers as incident thereto, namely

(a) a power to impose or reserve or makebinding, as far as the law permits, bycovenant, condition or otherwise, on theunsold part of the mortgaged property orany part thereof, or on the purchaser andany property sold, any restriction orreservation with respect to building on orother user of land, or with respect to minesand minerals, or for the purpose of the morebeneficial working thereof, or with respectto any other thing;

(b) a power to sell the mortgaged property, orany part thereof, or all or any mines andminerals apart from the surface-

(i) with or without a grant or reservationof rights of way, rights of water,easements, rights and privileges foror connected with building or otherpurposes in relation to the propertyremaining in mortgage or any partthereof or to any property sold; and

(ii) with or without an exception orreservation of all or any of the minesand minerals in or under themortgaged property, and with orwithout a grant or reservation ofpowers of working, wayleaves, orrights of way, rights of water anddrainage and other powers, ease-ments, rights and privileges for orconnected with mining purposes inrelation to the property remainingunsold or any part thereof, or to anyproperty sold; and

(iii) with or without covenants by thepurchaser to expend money on theland sold.


(3) The provisions of this Part relating to theforegoing powers, comprised either in this section,or in any other section regulating the exercise ofthose powers, may be varied or extended by themortgage deed, and, as so varied or extended, shall,as far as may be, operate in the like manner andwith all the like incidents, effects and consequencesas if such variations or extensions were contained inthis Part.

(4) This section applies only if and as far as acontrary intention is not expressed in the mortgagedeed, and has effect subject to the terms of themortgage deed and to the provisions thereof.

power to 58. The provisions of subsection (1) of sectionappointreceiver in 57 of this Act so far as they relate to the power tohe case ofmortgage appoint a receiver apply to a mortgage registeredunder theTransfer of under the Transfer of Land Act, 1893 and inLand Act,1893. applying those provisions the expression "mortgageVictoria Act deed" shall be construed as including an instru-No. 6344,s. 102. ment of mortgage under that Act.

Regulationof exerciseof powerof sale.Cf.Victoria ActNo. 6344,s. 103.

Conveyancein exerciseof powerof sale.Cf.Victoria ActNo. 6344,e. 104.

59. (1) A mortgagee shall not exercise the powerof sale conferred by this Part unless and until

(a) where the mortgage money is not payableon demand, default has been made in pay-ment of the mortgage money or part there-of or in the performance or observance of acovenant or condition in the mortgage; and

(b) in any case, notice requiring payment ofthe mortgage money has been served on themortgagor and default has been made inpayment thereof for one month after serviceof the notice or for such other period asmay be stipulated in the mortgage.

(2) This section does not apply to a mortgagethat is registered under the provisions of theTransfer of Land Act, 1893.

60. (1) A mortgagee exercising the power of saleconferred by this Part has power, by deed, to conveyto and vest in the purchaser the property sold for all


the estate (including the legal estate) and interesttherein that the original mortgagor had power todispose of, freed from all estates, interests and rightsto which the mortgage has priority, but subject toall estates, interests and rights that have priority tothe mortgage.

(2) Where a conveyance is made in exercise of thepower of sale conferred by this Part, or any corre-sponding previous enactment, the title of thepurchaser is not impeachable on the ground

(a) that no case had arisen to authorise thesale; or

(b) that due notice was not given to the mort-gagor; or

(c) that the power was otherwise improperlyor irregularly exercised,

and a purchaser shall not, either before or on con-veyance, be concerned to see or inquire whether acase has arisen to authorise the sale, or due noticehas been given, or the power is otherwise properlyand regularly exercised; but any person damnifiedby an unauthorised, or improper, or irregularexercise of the power has his remedy in damagesagainst the person exercising the power.

(3) A conveyance on sale by a mortgagee, madeafter the coming into operation of this Act, shallbe deemed to have been made in exercise of thepower of sale conferred by this Part unless acontrary intention appears.

61. The money that is in fact received by the niocaettimortgagee, arising from the sale, after discharge of of isjalee.

prior encumbrances to which the sale is not made;Vf-toria Act

subject (if any) shall be held by him in trust to be is1.1.0653.

applied by him

(a) firstly, in payment of all costs, charges andexpenses properly incurred by him asincident to the sale or any attempted sale,or otherwise; and


(b) secondly, in discharge of the mortgagemoney, interest and costs, and other money(if any) due under the mortgage,

and the residue of the money so received shall bepaid to the person entitled to the mortgagedproperty, or authorised to give receipts for theproceeds of the sale thereof.

Provisionsas toexercise ofpower ofsale.Cf.Victoria ActNo. 6344,s. 106.

62. (1) The power of sale conferred by this Partmay be exercised by any person for the time beingentitled to receive and give a discharge for the mort-gage money.

(2) The power of sale conferred by this Partdoes not affect the right of foreclosure.

(3) The mortgagee is not answerable for anyinvoluntary loss happening in or about theexercise or execution of the power of sale conferredby this Part, or of any trust connected therewith, orof any power or provision contained in the mortgagedeed.

(4) At any time after the power of sale conferredby this Part has become exercisable, the personentitled to exercise the power may demand andrecover from any person, other than a person havingin the mortgaged property an estate, interest orright in priority to the mortgage, all the deeds anddocuments relating to the property, or to the titlethereto, that a purchaser under the power of salewould be entitled to demand and recover from him.

mortgagee's 63. (1) The receipt in writing of a mortgagee isreceipts,discharges, a sufficient discharge for any money arising underetc.of. the power of sale conferred by this Part, or for anyVictoria ActNo. 6344, money or securities comprised in his mortgage, ors. 107. arising thereunder; and a person paying or trans-

ferring the money or securities to the mortgageeshall not be concerned to inquire whether any moneyremains due under the mortgage or as to theapplication of the money or securities so paid ortransferred.

1969.] Property Law. [No. 32. 261

(2) Money received by a mortgagee under hismortgage or from the proceeds of securitiescomprised in his mortgage shall be applied in likemanner as in this Part directed respecting moneyreceived by him arising from a sale under the powerof sale conferred by this Part, except that the costs,charges and expenses payable shall include thecosts, charges and expenses properly incurred ofrecovering and receiving the money or securities,and of conversion of securities into money, insteadof those incident to sale.

64. (1) The amount of an insurance effected bya mortgageee against loss or damage by fire underthe power in that behalf conferred by this Part shallnot exceed the amount specified in the mortgagedeed, or, if no amount is therein specified, the fullinsurable value of the buildings upon the mortgagedland or the amount owing to the mortgagee inrespect of the mortgage.

(2) An insurance shall not, under the powerconferred by this Part, be effected by a mortgageein any of the following cases, namely

(a) where there is a declaration in themortgage deed that no insurance isrequired;

(b) where an insurance is kept up by or onbehalf of the mortgagor in accordance withthe mortgage deed;

(c) where the mortgage deed contains nostipulation respecting insurance, and aninsurance is kept up by or on behalf of themortgagor with the consent of themortgagee to the amount to which themortgagee is by this Part authorised toinsure.

(3) All money received on an insurance ofmortgaged property against loss or damage by fireor otherwise effected under this Part or on aninsurance for the maintenance of which themortgagor is liable under the mortgage deed, shall,

Amount andapplicationof insurancemoney.Of.Victoria ActNo. 6344,s. 108.


unless the mortgage deed otherwise provides, beapplied by the mortgagor in making good the lossor damage in respect of which the money is received.

Appoint-ment,Powers,remunera-tion andduties ofreceiver.Cf.Victoria ActNo. 6344,S. 109.

65. (1) A mortgagee entitled to appoint areceiver under the power in that behalf conferred bythis Part shall not appoint a receiver until he hasbecome entitled to exercise the power of saleconferred by this Part, or by the Transfer of LandAct, 1893, but may then, by writing under his hand,appoint such person as he thinks fit to be receiver.

(2) A receiver appointed under the powers con-ferred by this Part, shall be deemed to be the agentof the mortgagor; and the mortgagor is solelyresponsible for the receiver's acts or defaults unlessthe mortgage deed otherwise provides.

(3) The receiver has power to demand and recoverall the income of which he is appointed receiver, byaction or otherwise, in the name either of themortgagor or of the mortgagee, to the full extentof the estate or interest that the mortgagor coulddispose of, and to give effectual receipts accordinglyfor the income, and to exercise any powers that mayhave been delegated to him by the mortgagee pur-suant to this Part.

(4) A person paying money to the receiver shallnot be concerned to inquire whether any case hashappened to authorise the receiver to act.

(5) The receiver may be removed, and a newreceiver may be appointed, from time to time by themortgagee by writing under his hand.

(6) The receiver is for his remuneration, and insatisfaction of all costs, charges and expensesincurred by him as receiver, entitled to retain outof any money received by him, a commission atsuch rate, not exceeding five per centum on thegross amount of all money received, as is specifiedin his appointment, and if no rate is so specified,then at the rate of five per centum on that grossamount, or at such higher rate as the Court thinksfit to allow, on application made by him for thatpurpose.


(7) The receiver shall, if so directed in writing bythe mortgagee, insure to the extent (if any) to whichthe mortgagee might have insured and keep insuredagainst loss or damage by fire, storm, tempest andearthquake, out of the money received by him, anybuilding, effects or property comprised in themortgage, whether affixed to the freehold or not,being of an insurable nature.

66. Subject to the provisions of this Part as to the Aitrivon

application of insurance money, the receiver shall .eceivelbyapply all money received by him as follows, roerceiver.

Victoria Actnamely— No. 6344,

(a) in discharge of all rents, taxes, rates and 8.110.outgoings whatever affecting the mort-gaged property;

(b) in keeping down all annual sums or otherpayments, and the interest on all principalsums, having priority to the mortgage inright whereof he is receiver;

(c) in payment of his commission, and of thepremiums on fire, life or other insurances(if any) properly payable under the mort-gage deed or under this Part, and the costof executing necessary or proper repairsdirected in writing by the mortgagee;

(d) in payment of the interest accruing due inrespect of any principal sum due under themortgage; and

(e) in or towards discharge of the principalmoney if so directed in writing by themortgagee,

and shall pay the residue (if any) of the moneyreceived by him to the person who, but for thepossession of the receiver, would have beenentitled to receive the income of which he isappointed receiver, or who is otherwise entitled tothe mortgaged property.

67. (1) Where— Effect ofadvance on

(a) in a mortgage, or an obligation for payment ¢C'cicnotunt.

of money, or a transfer of a mortgage or of FEin,torfa Actsuch an obligation, the sum, or any part of rg44.the sum, advanced or owing is expressed to


be advanced by or owing to more personsthan one out of money, or as money, belong-to them on a joint account; or

(b) a mortgage, or such an obligation, or sucha transfer is made to more persons than one,jointly and not in shares,

the mortgage money, or other money or money'sworth, for the time being due to those persons on themortgage or obligation, shall, as between them andthe mortgagor or obligor, be deemed to be andremain money or money's worth belonging to thosepersons on a joint account; and the receipt inwriting of the survivors or last survivor of them, orof the personal representative of the last survivoris a complete discharge for all money or money'sworth for the time being due, notwithstanding anynotice to the payer of a severance of the jointaccount.

(2) This section applies if and so far as a contraryintention is not expressed in the mortgage, obliga-tion or transfer, and has effect subject to the termsof the mortgage, obligation, or transfer, and to theprovisions thereof.

(3) This section applies to any mortgage, obliga-tion or transfer made after the coming into opera-tion of this Act.

(4) In the case of mortgages under the Transferof Land Act, 1893 this section applies subject to theprovisions of that Act relating to the entry ofsurvivorship and the registration of a discharge.

Notice of 68. (1) Where a mortgage has been discharged,trustsaffecting released or postponed as to the whole or any part ofmortgagemoney. the mortgaged property a person dealing in goodVictoria Act faith with the mortgagee or with the mortgaged

o. 6344,s. 113. property, shall not be concerned with any trust at

any time affecting the mortgage money or the in-come thereof, whether or not he has notice of thetrust, and may assume unless the contrary isexpressly stated in the instruments relating to themortgage,

(a) that the mortgagees (if more than one) areor were entitled to the mortgage money ona joint account; and


(b) that the mortgagee has or had power togive valid receipts for the purchase moneyor mortgage money and the income thereof(including any arrears of interest) and torelease or postpone the priority of the mort-gage debt or any part thereof or to dealwith the same or the mortgaged propertyor any part thereof,

without investigating the equitable title to the mort-gage debt or the appointment or discharge oftrustees in reference thereto.

(2) This section applies to mortgages madebefore or after the date of the coming into operationof this Act, but only with respect to dealings effectedafter that date.

(3) This section does not affect the liability ofany person in whom the mortgage debt is vested forthe purposes of any trust to give effect to that trust.

PART VII.-LEASES AND TENANCIES.

69. The provisions of this Part apply to leases andsub-leases of land under the Transfer of Land Act,1893, notwithstanding anything contained in thatAct, and for the purposes of this Part "lease" in-cludes so far as circumstances will admit any instru-ment of letting whether under seal or not.

70. A lessee shall not be prejudiced or damagedby payment of any rent to any grantor, transferoror assignor of any reversion or by breach of any con-dition for non payment of rent before notice is givento him by the grantee, transferee or assignee towhom the grant, transfer or assignment is made bythe grantor, transferor or assignor.

This Partto applyto leasesunder theTransferof LandAct, 1893.Cf.Victoria ActNo. 6344,s. 136.

Tenant notPrejudicedby assign-ment beforenotice.Cf.Victoria ActNo. 6344,s. 138.

71. No tenancy from year to year is implied bypayment of rent.

Tenancyfrom yearto year notimplied.Cf.N.Z. ActNo. 51of 1952,s. 105.

Terminationof tenancies.

Waiver ofa covenantin a lease,not tooperate asgeneralwaiver.Cf.Victoria ActNo. 6344,s. /48.

Abolition ofirzteressetermini,and as toreversionarylenses andleases forlives.Cf.Victoria ActNo. 6344,s. 149.


72. (1) Without prejudice to any other lawfulmode of termination available or to any expressagreement by the parties to a periodic tenancy ortenancy of uncertain duration as to its termination,a periodic tenancy or a tenancy of uncertainduration may be terminated by one month's writtennotice by either party thereto to the other expiringat any time whether at the end of a rent period ornot.

(2) Notwithstanding anything in this section anymode of termination of a periodic tenancy or atenancy of uncertain duration that was lawful beforethe date of the coming into operation of this Actwhether by shorter notice than that provided forby subsection (1) of this section or otherwise is aseffectual as if this Act had not come into operation.

73. (1) Where any actual waiver by a lessor orthe persons deriving title under him, of the benefitof any covenant or condition in any lease, is provedto have taken place in any particular instance, thewaiver shall not be deemed to extend to any instance,or to any breach of covenant or condition except thatto which the waiver specially relates, nor operate asa general waiver of the benefit of the covenant orcondition.

(2) Subsection (1) of this section applies unlessa contrary intention appears and shall extend towaivers effected after the coming into operation ofthis Act.

(3) After the giving of a notice to quit acceptanceof rent expressed to be without prejudice to thenotice does not operate as a waiver of the notice orrevive or create a tenancy.

74. (1) The doctrine of interesse termini isabolished.

(2) As from the date of the coming into operationof this Act all terms of years absolute are, whetherthe interest is created before or after that date,capable of taking effect at law or in equity, accord-ing to the estate, interest or powers of the grantor,from the date fixed for commencement of the term,without actual entry.


(3) A term, at a rent or granted in considerationof a fine, limited after the date of the coming intooperation of this Act to take effect more thantwenty-one years from the date of the instrumentpurporting to create it, is void, and any contractmade after that date to create such a term is like-wise void; but this subsection does not apply to anyterm taking effect under a settlement, or createdout of an interest under a settlement, or under apower for mortgage, indemnity or other likepurposes.

(4) Nothing in subsections (1) and (2) of thissection prejudicially affects the right of any personto recover any rent or to enforce or take advantageof any covenants or conditions, or, as respects termsor interests created before the coming into operationof this Act, operates to vary any statutory or otherobligations imposed in respect of those terms orinterests.

(5) Nothing in this Part affects the rule of lawthat a legal term, whether or not being a mortgageterm, may be created to take effect in reversionexpectant on a longer term and that rule is herebyconfirmed.

75. (1) Where a reversion expectant on a lease Mr," or

of land is surrendered or merged, the estate or in- ;1?1,7eenPagn.terest which as against the lessee for the time being or.confers the next vested right to the land, shall be Poet:3r aAct

deemed the reversion for the purpose of preserving 8.139.

the same incidents and obligations as would haveaffected the original reversion had there been nosurrender or merger thereof.

(2) This section shall apply to surrenders or mer-gers effected after the coming into operation of thisAct.

76. (1) Notwithstanding

(a) the severance by conveyance, surrender orotherwise of the reversionary estate in anyland comprised in a lease; and

(b) the avoidance or cesser in any other man-ner of the term granted by a lease a; topart only of the land comprised therein,

Apportion-ment ofconditionson sever-ance.Cf.Victoria ActNo. 6344,e. 140.


every condition or right of re-entry, and every othercondition contained in the lease, shall be appor-tioned, and shall remain annexed to the severedparts of the reversionary estate as severed, and shallbe in force with respect to the term whereon eachseveral part is reversionary, or the term in the partof the land as to which the term has not been sur-rendered, or has not been avoided or has not other-wise ceased, in like manner as if the land comprisedin each severed part, or the land as to which theterm remains subsisting, as the case may be, hadalone originally been comprised in the lease.

(2) In this section "right of re-entry" includes aright to determine the lease by notice to quit orotherwise; but where the notice is served by a personentitled to a severed part of the reversion so that itextends to part only of the land demised, the lesseemay within one month determine the lease in regardto the rest of the land by giving to the owner of thereversionary estate therein a counter notice expiringat the same time as the original notice.

Rent andbenefit oflessee'scovenantsto runwith thereversion.Cf. .Victoria ActNo. 6344,6. 141.

77. (1) Rent reserved by a lease, and the benefitof every covenant or provision contained in the lease,having reference to the subject-matter thereof, andon the lessee's part to be observed or performed, andevery condition of re-entry and other condition con-tained, shall be annexed and incident to and shall gowith the reversionary estate in the land, or in anypart thereof, immediately expectant on the termgranted by the lease, notwithstanding severanceof that reversionary estate, and without prejudiceto any liability affecting a covenantor or his estate.

(2) Any rent, covenant or provision referred to insubsection (1) of this section is capable of beingrecovered, received, enforced and taken advantageof, by the person from time to time entitled, subjectto the term, to the income of the whole or of anypart as the case may require, of the land leased.

(3) Where that person becomes entitled byconveyance or otherwise, the rent, covenant orprovision referred to in subsection (1) of this sectionmay be recovered, received, enforced or taken


advantage of by him notwithstanding that hebecomes so entitled after the condition of re-entryor forfeiture has become enforceable, but this sub-section does not render enforceable any conditionof re-entry or other condition waived or releasedbefore that person becomes so entitled.

(4) This section applies to leases made before orafter the date of the coming into operation of thisAct, but does not affect the operation of

(a) any severance of the reversionary estate;

or(b) any acquisition by conveyance or otherwise

of the right to receive or enforce any rent,covenant or provision, effected before thatdate.

Obligationof lessor'scovenantsto run withreversion.Cf.Victoria ActNo. 6344,s. 142.

78. (1) The obligation under a condition or of acovenant entered into by a lessor with reference tothe subject-matter of the lease shall, if and as far asthe lessor has power to bind the reversionary estateimmediately expectant on the term granted by thelease, be annexed and incident to and shall go withthat reversionary estate, or the several parts thereof,notwithstanding severance of that reversionaryestate, and may be taken advantage of and enforcedby the person in whom the term is from to timevested by conveyance, devolution in law, or other-wise; and if and as far as the lessor has power to bindthe person from time to time entitled to thatreversionary estate, that obligation may be takenadvantage of and enforced against any person soentitled.

(2) This section applies to leases made before orafter the date of the coming into operation of thisAct but not to any severance of the reversionaryestate which was effected before that date.

(3) This section takes effect without prejudice toany liability affecting a covenantor or his estate.


Effect of 79. (1) Where a licence is granted to a lessee tolicencesgranted to do any act, the licence, unless otherwise expressed,lessees.cf. extends onlyVictoria ActN o. 6344,s. 143. (a) to the permission actually given thereby;

(b) to the specific breach of any provision orcovenant specified in the licence; or

(c) to any other matter so specified andauthorised thereby,

and the licence does not prevent any proceeding forany subsequent breach unless otherwise so specified.

(2) Notwithstanding any such licence

(a) all rights under covenants and powers ofre-entry contained in the lease remain infull force and are available as against anysubsequent breach of covenant, conditionor other matter not specifically authorisedor waived, in the same manner as if nolicence had been granted; and

(b) the condition or right of entry remains inforce in all respects as if the licence had notbeen granted, except in respect of theparticular matter authorised to be done.

(3) Where in any lease there is a power orcondition of re-entry on the lessee assigning, sub-letting or doing any other specified act without alicence, and a licence is granted

(a) to any one of two or more lessees to do anyact, or to deal with his share or interest; or

(b) to any lessee, or to any one of two or morelessees, to assign or underlet part only ofthe property, or to do any act in respect ofpart only of the property,

the licence does not operate to extinguish the rightof entry in case of any breach of covenant orcondition by the co-lessees of the other shares orinterests in the property, or by the lessee or lesseesof the rest of the property, as the case may be, inrespect of those shares or interests or remaining


property, but the right of entry remains in force inrespect of the shares, interests or property not thesubject of the licence.

(4) This section applies to licences granted afterthe coming into operation of this Act.

80. (1) In every lease containing a covenant, fisiitgvrt°condition or agreement against assigning, under- sublet truletting or parting with the possession, or disposing zattonlYof the land or property leased without licence or cf.1consent, that covenant, condition or agreement $4' ioc.tArre tshall, unless the lease contains an express provision S."'to the contrary, be deemed to be subject to acondition to the effect that the consent shall not beunreasonably withheld and that no fine or sum ofmoney in the nature of a fine shall be payable for orin respect of the licence or consent, but the lastmentioned condition does not preclude the right torequire the payment of a reasonable sum in respectof any legal or other expense incurred in relation tothe licence or consent.

(2) In any instrument executed before or afterthe coming into operation of this Act a referenceto section 4 of the Landlord and Tenant Act, 1912shall be read and construed as a reference to thissection.

81. (1) A right of re-entry or forfeiture under aerieany provision or stipulation in a lease for a breach of 1=treany covenant or condition in the lease is not and under-enforceable, by action or otherwise, unless and until toefa.SeS*

Actthe lessor serves on the lessee a notice— VictoriaNo. 6344,

(a) specifying the particular breach s. 146.

complained of;(b) where the breach is capable of remedy,

requiring the lessee to remedy the breach;and

(c) in any case, requiring the lessee to makecompensation in money for the breach,

and the lessee fails, within a reasonable time afterthe service of the notice on him, to remedy thebreach, if it is capable of remedy, and to makereasonable compensation in money, to thesatisfaction of the lessor, for the breach.


(2) Where a lessor is proceeding, by action orotherwise, to enforce or has enforced without theaid of the Court such a right of re-entry or for-feiture, the lessee may, in the lessor's action (ifany) or in any action brought by himself apply tothe Court for relief, and the Court

(a) may grant or refuse relief, as the Courthaving regard to the proceedings and con-duct of the parties under the foregoingprovisions of this section, and to all theother circumstances thinks fit; and

(b) in case of relief may grant it on such terms(if any) as to costs, expenses, damages,compensation, penalty or otherwise, includ-ing the granting of an injunction to restrainany like breach in the future, as the Courtin the circumstances of each case, thinksfit.

Costs inconnectionwithforfeitureand waiver.

(3) (a) A lessor is entitled to recover as a debtdue to him from a lessee and in addition to damages(if any), all reasonable costs and expenses properlyincurred by the lessor in the employment of asolicitor and surveyor or valuer, or otherwise, inreference to any breach giving rise to a right ofre-entry or forfeiture that, at the request of thelessee, is waived by the lessor, or from which thelessee is relieved, under the provisions of this Parteither by the Court or by the operation of subsection(1) of this section.

(b) The lessor is so entitled to recover whetherthe lessee has or has not rendered forfeiture unen-forceable against him under that subsection.

(4) Where a lessor is proceeding by action orotherwise to enforce or has enforced a right ofre-entry or forfeiture

(a) under any convenant, provision or stipula-tion in a lease; or

(b) for non payment of rent,the Court may, on application by any person claim-ing as under-lessee any estate or interest in the


property comprised in the lease or any part thereof,either in the lessor's action, if any, or in any actionbrought by that person for that purpose, make anorder vesting for the whole term of the lease or anyless term, the property comprised in the lease or anypart thereof in any person entitled as under-lesseeto any estate or interest in the property, upon suchconditions,

(c) as to execution of any deed or other docu-ment;

(d) payment of rent, costs, expenses, damages,compensation or giving security' or other-wise,

as the Court in the circumstances of each casethinks fit, but in no case is the under-lessee entitledto require a lease to be granted to him for any longerterm than he had under his original sub-lease.

(5) For the purposes of this section except so faras is otherwise provided,

"lease" includes an original or derivativeunder-lease; an agreement for a lease wherethe lessee has become entitled to have hislease granted, and a grant securing a rentby condition;

(b) "lessee" includes an original or derivativeunder-lessee, and the persons deriving titleunder a lessee, and a grantee under anygrant securing a rent by condition and thepersons deriving title under him;

(c) "lessor" includes an original or derivativeunder-lessor, and the persons deriving titleunder a lessor, a person making a grantsecuring a rent by condition and the per-sons deriving title under him;

(d) "under-lease" includes an agreement foran under-lease where the under-lessee hasbecome entitled to have his under-leasegranted;

(e) "under-lessee" includes any person deriv-ing title under an under-lessee.

(a)


(6) This section applies although the conditionor stipulation under which the right of re-entry orforfeiture accrues is inserted in the lease in pur-suance of the directions of any Act.

(7) For the purposes of this section a leaselimited to continue as long only as the lesseeabstains from committing a breach of covenant isand takes effect as a lease to continue for any longerterm for which it could subsist, but determinableby a condition for re-entry on the breach.

(8) This section does not extend

(a) to a covenant or condition againstassigning, underletting, parting with thepossession or disposing of the land leased;

(b) to a condition for forfeiture on the bank-ruptcy of the lessee or on taking in execu-tion of the lessee's interest; or

(c) in the case of a lease of any licensedpremises as defined in the Licensing Act,1911, to a covenant not to do or omit anyact or thing by which the licence granted inrespect thereof, may be forfeited.

(9) This section does not except as otherwisementioned, affect the law relating to re-entry orforfeiture or relief in case of non payment of rent.

(10) This section has effect notwithstanding anystipulation to the contrary.

Certainassignmentsnot to bedeemed abreach.

82. No assignment or underletting-

(a) by the official assignee of a bankrupt,

(b) by the liquidator of a company (except inthe case of a member's voluntary windingup) ;

(c) by the sheriff or bailiff under an execution;Or

1969.]

Property Law. [No. 32.

(d) by a personal representative pursuant to abequest in a will,

shall be deemed a breach of a covenant, conditionor agreement against assigning, underletting, part-ing with possession or disposing of the land leasedunless the contrary is expressly declared in the lease.

83. (1) A lease not being a lease registered under s urrender

'join:tat Lwthe Transfer of Land Act, 1893, may be surrenderedwith a view to the acceptance of a new lease in place lease not to

Prejudicethereof, without a surrender of any under-lease =-derived out of the lease so surrendered. Cf.

Victoria ActNo. 6344,

(2) A new lease may be granted and accepted, in s. 150.

place of a lease so surrendered, without a surrenderof an under-lease as provided in subsection (1) ofthis section, and the new lease operates as if allunder-leases derived out of the surrendered leasehad been surrendered before the surrender of thatlease was effected.

(3) The lessee under the new lease and any personderiving title under him is entitled to the samerights and remedies in respect of the rent reservedby and the covenants, agreements and conditionscontained in any under-lease as if the original leasehad not been surrendered but was or remainedvested in him.

(4) Each under-lessee and any person derivingtitle under him is entitled to hold and enjoy theland comprised in his under-lease (subject to thepayment of any rent reserved by and to the obser-vance of the covenants, agreements and conditionscontained in the under-lease) as if the lease out ofwhich the under-lease was derived had not beensurrendered.

(5) The lessor granting the new lease and anyperson deriving title under him is entitled to thesame remedies by entry in and upon the land com-prised in any such under-lease for rent reserved byor for breach of any covenant, agreement or condi-

Executionby attorneyin hisown name.Cf.N.Z. ActNo. 51of 1952,tr. 134.


tion contained in the new lease (so far only as therents reserved by or the covenants, agreements orconditions contained in the new lease do not exceedor impose greater burdens than those reserved byor contained in the original lease out of which theunder-lease is derived) as he would have had

(a) if the original lease had remained on foot;Or

(b) if a new under-lease derived out of the newlease had been granted to the under-lesseeor a person deriving title under him,

as the case may require.

(6) This section does not affect the powers of theCourt to give relief against forfeiture.

PART VIII.-POWERS OF ATTORNEY.

84. (1) The donee of a power of attorney mayexecute or do any assurance, instrument, or thingin and with his own name and signature and hisown seal (where sealing is required) by theauthority of the donor of the power.

(2) Every assurance, instrument and thing soexecuted and done shall be as effectual in law toall intents as if it had been executed or done by thedonee of the power in the name and with thesignature and seal of the donor thereof.

(3) This section applies to powers of attorneycreated by instruments executed either before orafter the coming into operation of this Act.

Continuanceuntilnotice ofdeath orrevocationreceived.Cf.N.Z. ActNo. 51of 1952,s. 135.

85. (1) Subject to any stipulation to thecontrary contained in the instrument creating apower of attorney, the power, so far as concerns anyact or thing done or suffered thereunder in goodfaith, operates and continues in force until noticeof the death of the donor of the power or until noticeof other revocation thereof has been received by thedonee of the power.


(2) Every act or thing within the scope of thepower done or suffered in good faith by the doneeof the power after the death of the donor of thepower or other revocation referred to in subsection(1) of this section, and before notice thereof hasbeen received by him, is effectual in all respects as ifthat death or other revocation had not happenedor been made.

(3) A statutory declaration by the donee of apower under the power of attorney to the effect thathe has not received any notice or information of therevocation of the power of attorney by death orotherwise is, if made immediately before or if madeafter any such act as is mentioned in subsection (2)of this section, conclusive proof of the non-revocation at the time when the act was done orsuffered in favour of all persons dealing with thedonee of the power in good faith and for valuableconsideration without notice of the death of thedonor of the power or other revocation of the powerof attorney.

(4) Where the donee of the power is a corporationaggregate the statutory declaration is sufficient if

(a) it is made by any director, manager, orsecretary of the corporation or by any officerthereof discharging the functions usuallyappertaining to any of those offices or byany officer of the corporation appointedfor that purpose either generally or in theparticular instance by the board ofdirectors, council or other governing bodyby resolution or otherwise; and

(b) it is to the effect that to the best of thedeclarant's knowledge and belief neitherthe donee of the power nor any servant oragent of the donee of the power has receivedany such notice or information as is men-tioned in subsection (3) of this section.

(5) Where the statutory declaration referred toin subsection (4) of this section contains a state-ment that the declarant is a director, manager, orsecretary of the corporation or is an officer of thecorporation discharging the functions usuallyappertaining to any of those offices or is an officer


of the corporation appointed for the purpose ofmaking the declaration, that statement is conclusiveevidence in favour of the persons mentioned insubsection (3) of this section.

(6) This section applies to powers of attorneycreated by instruments executed in or out of theState and whether executed before or after thecoming into operation of this Act.

(7) Nothing in this section prejudices or affectsthe operation of section 143 of the Transfer of LandAct, 1893.

IrrevocablePower of 86. (1) Where a power of attorney given forattorney forvalue. valuable consideration (whether executed in or outCf• of the State) is in the instrument creating theN.Z. Act

o. 51 power expressed to be irrevocable, then, in favour ofof 1952,s. 136. a purchaser

(a) the power shall not be revoked at any time,either by anything done by the donor ofthe power without the concurrence of thedonee, or by the death, mental incapacityor bankruptcy of the donor; and

(b) any act done at any time by the donee ofthe power in pursuance of the power is asvalid as if anything done by the donorwithout the concurrence of the donee, or thedeath, mental incapacity or bankruptcy ofthe donor, had not been done or had nothappened; and

(c) neither the donee of the power nor thepurchaser shall at any time be prejudiciallyaffected by notice of anything done by thedonor without the concurrence of thedonee, or of the death, mental incapacity, orbankruptcy of the donor.


Power ofattorneymadeirrevocablefor fixedtime.Cf.N.Z. ActNo. 51of 1952,s. 137.

87. (1) Where a power of attorney (whetherexecuted in or out of the State, and whether givenfor valuable consideration or not) is in theinstrument creating the power expressed to beirrevocable for a fixed time therein specified, notexceeding two years from the date of the instrument,then, in favour of a purchaser-


(a) the power shall not be revoked for andduring that fixed time, either by anythingdone by the donor of the power without theconcurrence of the donee of the power, orby the death, mental incapacity or bank-ruptcy of the donor; and

(b) any act done within that fixed time by thedonee of the power in pursuance of thepower shall be as valid as if anything doneby the donor of the power without theconcurrence of the donee, or the death,mental incapacity or bankruptcy of thedonor had not been done or had nothappened; and

(c) neither the donee of the power nor thepurchaser shall at any time be prejudiciallyaffected by notice, either during or afterthat fixed time, of anything done by thedonor of the power during that fixed timewithout the concurrence of the donee, or ofthe death, mental incapacity or bank-ruptcy of the donor within that fixed time.


88. (1) The provisions of this Part of this Act filgircparapply with the necessary modifications with respect grs.to any power of attorney executed by any corpora- g..tottion to the same extent as if the corporation were 0112,an individual and the dissolution of the corporation S.

(however occurring) were the death of that indivi-dual within the meaning of this Part of this Act.

(2) The provisions of subsection (1) of this sec-tion are in addition to and not in derogation of theprovisions of section 35 of the Companies Act, 1961.

(3) The provisions of subsection (1) of this sec-tion do not apply to a corporation that is dissolvedbefore the date of the coming into operation of thisAct, but do apply to powers of attorney created byinstruments executed either before or after that date.


PART IX.-VOIDABLE DISPOSITIONS.Voluntaryconveyancesto defraudcreditorsvoidable.Cf. .Victoria ActNo. 6344,s. 172.

Voluntarydispositionto defraudpurchasersvoidable.Cf.Victoria ActNo. 6344,s. 178.Subsequentconveyancenot to beevidenceof intentto defraud.Cf. .Victoria ActNo. 6344,5. 174.

Acquisitionsof reversionsat an undervalue.Cf.Victoria ActNo. 6344,s. 175.

Disclaimer,etc., ofPowers.Cf.Victoria ActNo. 6344,s. 155.

89. (1) Except as provided in this section, everyalienation of property made, whether before or afterthe coming into operation of this Act, with intentto defraud creditors is voidable, at the instance ofany person thereby prejudiced.

(2) This section does not affect the law of bank-ruptcy for the time being in force.

(3) This section does not extend to any estate orinterest in property alienated for valuable considera-tion and in good faith or upon good considerationand in good faith to any person not having, at thetime of the alienation, notice of the intent to defraudcreditors.

90. Every voluntary disposition of land made withintent to defraud a subsequent purchaser is voidableat the instance of that purchaser.

91. For the purposes of section 90 of this Act, novoluntary disposition, whenever made, shall bedeemed to have been made with intent to defraudby reason only that a subsequent disposition forvaluable consideration was made.

92. (1) No acquisition made in good faith, with-out fraud or unfair dealing, of any reversionaryinterest in real or personal property, for money ormoney's worth, is liable to be opened or set asidemerely on the ground of under value.

(2) In this section "reversionary interest" in-cludes an expectancy or possibility.

(3) This section does not affect the jurisdictionof the court to set aside or modify unconscionablebargains.

PART X.-POWERS OF APPOINTMENT.

93. A person to whom any power, whether coupledwith an interest or not, is given may by deed dis-claim, release or contract not to exercise the power,


and after the disclaimer, release or contract is notcapable of exercising or joining in the exercise of thepower.

94. On such disclaimer, release or contract as is gisffeltialreferred to in section 93 of this Act being effected, etc. r,the power may be exercised by the other person or Victoria Actpersons or the survivor or survivors of the other per- sN.1.5663.14,

sons to whom the power is given unless the contraryis expressed in the instrument creating the power.

95. (1) An instrument purporting to exercise a Protectionpu r aepurchasers of

power of appointment over property, that, in default claiming

of and subject to any appointment, is held in trust ucenrtaern void

for a class or number of persons of whom the er.ii.g.Ln.t-

appointee is one, is not, except as provided in sub- Victoria wtoria Actsection (2) of this section, void on the ground of n.5244,

fraud on the power as against a purchaser in goodfaith.

(2) If the interest appointed exceeds, in amountor value, the interest in that property to which im-mediately before the execution of the instrumentthe appointee was presumptively entitled under thetrust in default of appointment, having regard toany advances made in his favour and to any hotch-pot provision, the protection afforded by this sectionto a purchaser does not extend to such excess.

(3) In this section "a purchaser in good faith"means a person dealing with an appointee of the ageof not less than twenty-five years for valuable con-sideration in money or money's worth, and withoutnotice of the fraud, or of any circumstances fromwhich, if reasonable inquiries had been made, thefraud might have been discovered.

(4) Persons deriving title under any purchaserentitled to the benefit of this section is entitled tothe like benefit.

(5) This section applies only to dealings effectedafter the coming into operation of this Act.

Validationof appoint-mentswhereobjects areexcludedor takeillusoryshares.Cf.Victoria ActNo. 6344,s. 158.


96. (1) An appointment made in exercise of apower to appoint any property among two or moreobjects is not invalid on the ground that

(a) an unsubstantial, illusory or nominal shareonly is appointed to or left unappointed todevolve upon any one or more of theobjects of the power; or

(b) any object of the power is thereby alto-gether excluded

but the appointment is valid notwithstanding thatany one or more of the objects is not thereby, or indefault of appointment, to take any share in theproperty.

(2) This section does not affect any provision inthe instrument creating the power that declares theamount of any share from which any object of thepower is not to be excluded.

(3) This section applies to any appointment madebefore or after the coming into operation of thisAct.

Execution ofpowers nottestamen-tary.Cf.Victoria ActNo. 6344,s. 159.

97. (1) A deed executed in the manner in whicha deed is required to be executed by this Act, so faras respects the execution and attestation thereof, isa valid execution of a power of appointment by deedor by any instrument in writing, not testamentary,notwithstanding that it is expressly required that adeed or instrument in writing, made in exercise ofthe power, is to be executed or attested with someadditional or other form of execution or attestationor solemnity.

(2) This section does not operate to defeat anydirection in the instrument creating the powerthat

(a) the consent of any particular person is tobe necessary to a valid execution;

(b) in order to give validity to any appoint-ment, any act is to be performed having norelation to the mode of executing andattesting the instrument.


(3) This section does not prevent the donee of apower from executing it in accordance with thepower by writing, or otherwise than by an instru-ment executed and attested as a deed, and if a poweris so executed this section does not apply.

(4) This section shall apply to appointments bydeed made after the coming into operation of thisAct.

98. This Part applies to powers created or arisingeither before or after the coming into operation ofthis Act.

PART XL-PERPETUITIES AND ACCUMULATIONS.

Applicationof thisPart toexistingpowers.Cf.Victoria ActNo. 6344,s.160.

99. (1) Except where otherwise expressly pro- ApplicationCf.

vided in this Part, this Part— WA. ActNo. 83

(a) insofar as it applies to wills, applies only to :.f3762,the wills of testators dying after the sixthday of December, nineteen hundred andsixty-two; and

(b) insofar as it applies to instruments otherthan wills, applies only to instrumentsexecuted after that date.

(2) This Part binds the Crown.

100. In this Part, unless the context otherwise taotretr preta-

requires— Cf.W.A. Act

"Court" means the Supreme Court or a judge; 12412,s. 4.

"decision of the Court" includes the decision ofa court hearing an appeal from the Court;

"instrument" includes a will and also includesan instrument, testamentary or otherwise,exercising a power of appointment, whethergeneral or special, even if the power werecreated before this Part comes into opera-tion; but does not include an Act ofParliament;


"limitation" includes any provision in an instru-ment by which any property, or any interestin any property, or any right, power,authority or discretion in or over or inconnection with any property, is or purportsto be devised or bequeathed to, or createdfor, or given or granted or appointed to orconferred upon, or otherwise limited to,any person or purpose, and whether sub-ject to a condition, precedent or subsequent,or not;

"property" includes any thing in action, andany interest in real or personal property;

"trust" and "trustee" have the same meaningas in the Trustees Act, 1962;

"will" includes a codicil.

TheperpetuityPeriod.Cf.W.A. ActNo. 83of 1962,s. 5.

Capacity toprocreateor bear achild.Cf.W.A. ActNo. 83of 1982,s. 8.

101. In determining whether any limitation isinvalid as infringing the rule against perpetuities,the perpetuity period is, for the purposes of thatrule, such period of years not exceeding eightyas may be specified in the instrumentcreating that limitation or, if no such periodof years is specified, the period that is applicableunder the rule at law.

102. (1) This section applies whenever, indetermining whether any limitation is invalid asinfringing the rule against perpetuities, or in deter-mining the right of any persons to put an end toa trust or accumulation, or generally in the manage-ment or administration of any trust, estate or fund,or for any purposes relating to the disposition,transmission or devolution of property, it becomesrelevant to enquire whether any person is or ata relevant date was or will be capable of procreatingor bearing a child.

(2) Where this section applies, there is a pre-sumption, rebuttable by sufficient evidence to thecontrary tendered at the time at which the matterfalls for decision (but not subsequently), that

(a) a woman who has attained the age of fifty-five years is incapable of bearing a child;and


(b) a male or female who has not attained theage of twelve years is incapable ofprocreating or bearing a child.

(3) Where this section applies, medical evidencethat a male or female of any age is or at a relevantdate was or will be incapable of procreating orbearing a child is admissible in proceedings in orderto establish that incapacity, and the Court mayaccept any such evidence of a high degree ofimprobability of procreating or child-bearing as itthinks proper as establishing the incapacity.

(4) Any decision of the Court, in which any suchpresumption as is mentioned in subsection (2) ofthis section is applied or in which any such evidenceas is mentioned in subsection (3) of this section isaccepted remains effective notwithstanding thesubsequent birth of a child; but if a limitation,that is not itself invalid as infringing the ruleagainst perpetuities, confers upon that child or hisspouse, or upon his issue or the spouse of any ofhis issue, a right to any property, that right(including any right to follow or trace the property)is not affected by the decision of the Court.

103. (1) A limitation shall not be declared or zf.

werAndCtreated as invalid, as infringing the rule against *

perpetuities, unless and until it is certain that the ;:ytistet

interest that it creates cannot vest within the Er.perpetuity period or, if the limitation creates orconfers a general power of appointment over or inconnection with property, that the power cannotbecome exercisable within the perpetuity period,but if the power becomes exercisable, within thatperiod, it is valid.

(2) Where a limitation creates a power exercis-able over or in connection with any property,whether that power be a special power of appoint-ment, or a power of advancement or of distributionunder a discretionary trust, or any other power (notbeing a general power of appointment or a powerthat is exempted from the application of the rule


against perpetuities by section 29 of the TrusteesAct, 1962), that limitation is valid, so far as the ruleagainst perpetuities is concerned

(a) if the power is exercisable only during theperpetuity period; or

(b) if and to the extent that the power isexercised during the perpetuity period.

(3) Nothing in this section makes any persona life in being for the purpose of ascertaining theperpetuity period unless that person would havebeen reckoned a life in being for that purpose ifthis section had not been enacted.

Power ofCourtto makedeclarationas tovalidity oflimitations.Cf.W.A. ActNo. 83of 1962,s. 8.

104. (1) A trustee of any property, or any personinterested under, or on the invalidity of, a limitationof property, may at any time apply to the Court fora declaration as to the validity, in respect of therule against perpetuities, of a limitation of thatproperty.

(2) The Court may, on an application under sub-section (1) of this section, make a declaration, onthe basis of facts existing and events that haveoccurred at the time the declaration is made, as tothe validity or otherwise of the limitation in respectof which the application is made; but the Court shallnot make a declaration in respect of any limitationthe validity of which cannot be determined at thetime at which the Court is asked to make the decla-ration.

Invalidage con-tingencies.Cf.W.A. ActNo. 83of 1982,s. 9;Law Reform(Miscel-laneousProvisions)Act, 1941.s. 5.

105. (1) Where in an instrument the absolutevesting either of capital or income of property, orthe ascertainment of a beneficiary or class of bene-ficiaries, is made to depend on the attainment byany person of an age exceeding twenty-one years,and the gift to that beneficiary or class or anymember thereof, or any gift over, remainder,executory limitation or trust arising on the totalor partial failure of the original gift, would, but forthis section, be rendered invalid as infringing the


rule against perpetuities, the instrument takes effectfor the purposes of that gift, gift over, remainder,executory limitation or trust as if the absolutevesting or ascertainment had been made to dependon the person attaining the age of twenty-one years,and that age shall be substituted for the age statedin the instrument.

(2) This section applies to any instrument otherthan a will executed after the twenty-fourth day ofOctober, nineteen hundred and forty-two and toany testamentary appointment (whether made inexercise of a general or special power), devise orbequest contained in the will of a person dying afterthat date, whether the will was made before or afterthat date; but, in the case of an instrument executed,and the will of a person dying, after the sixth dayof December, nineteen hundred and sixty-two, thissection applies only to the extent provided in section107 of this Act.

(3) This section applies without prejudice to anyprovision whereby the absolute vesting either ofcapital or income of property, or the ascertainmentof a beneficiary or class of beneficiaries, is also madeto depend on the marriage of any person, or anyother event which may occur before the age statedin the instrument is attained.

Class gifts.Cf.W.A. ActNo. 83of 1962,5. 10.

Order ofapplyingrules.Cf.W.A. ActNo. 83of 1962,5. 11.

106. (1) A limitation to a class of persons is notinvalid as infringing the rule against perpetuitiesby reason of the failure of the limitation as to someonly of the members of the class, but the limitationshall, in that case, be construed and take effect asa limitation only to those members of the class whoattain a vested interest within the perpetuity period.

(2) This section applies only to the extentprovided in section 107 of this Act.

107. (1) The provisions of section 105 of thisAct shall not be applied

(a) unless and until it is certain that a limita-tion as worded is invalid as infringing therule against perpetuities; and


(b) unless either-

(i) the application of the provisions ofthat section would render the limita-tion valid; or

(ii) the application of the provisions ofthat section, in conjunction with theprovisions of section 106 of this Act,would render the limitation valid.

(2) The provisions of section 106 of this Act shallnot be applied unless and until

(a) it is certain that a limitation as worded isinvalid as infringing the rule againstperpetuities; and

(b) any invalid age contingency in that limita-tion has been reduced in accordance withthe provisions of section 105 of this Act asapplied by subsection (1) of this section.

Unbornspouses.of.W.A. ActNo. 83of 1982,s. 12.

108. The widow or widower of a person who isa life in being for the purpose of the rule againstperpetuities shall be deemed a life in being for thepurpose of

(a) a limitation in favour of that widow orwidower; and

(b) a limitation in favour of a person whoattains, or of a class the members of whichattain, according to the limitation, a vestedinterest on or after the death of the survivorof that person and his spouse.

Dependentlimitations.Of.W.A. ActNo. 83of 1962,s. 13.

109. (1) A limitation, that itself complies withthe rule against perpetuities, is not invalidatedsolely by reason of its being preceded by one or moreinvalid limitations, whether or not it expressly, orby implication, takes effect after, or subject to, or isdependent upon, those invalid limitations or any ofthem.


(2) Where a limitation is invalid as infringing therule against perpetuities, any subsequent validlimitation is thereby accelerated.

Options.W.A.apply to— W. ActNo. 83

(a) an option granted to a lessee in respect of a. 14.of 1962,

the property demised, being an optionexercisable only during the currency of thelease or within one year after the expira-tion thereof and enabling the lessee or thelessee for the time being to purchase thefreehold or other superior interest in thedemised property; or

(b) an option to acquire an interest in land,not being an option to which paragraph (a)of this subsection refers.

(2) An option to which paragraph (b) of subsec-tion (1) of this section refers, and which accordingto its terms is, or may be, exercisable at a date morethan twenty-one years from the date of its grant,becomes void, on the expiry of twenty-one years fromthe date of its grant, as between the original partiesto that grant and all persons claiming throughthem.

(3) Nothing in this section affects an option forrenewal contained in a lease or a pre-emptive rightto acquire an individual unit or individual units ofaccommodation in a building containing severalunits.

111. (1) The rule against perpetuities as Applicationof theamended by this Part applies— rule to

possibilitiesof reverter,

(a) to a possibility of reverter in land rights ofentry and

consequent upon a fee simple determinable; resultingtrysts.

and so that, if the fee simple does not Cf.W.A. Adetermine within the perpetuity period, it No. 83 ctof /9thereafter continues as a fee simple 9.15.

62,

absolute;

110. (1) The rule against perpetuities does not

No. 32.1 Property Law. [1969.

(b) to a right of entry for condition brokenthe exercise of which may determine a feesimple subject to a condition subsequent;and so that, if the right of entry is notexercised within the perpetuity period, thefee simple thereafter continues as a feesimple absolute; and

(c) to an interest in property by way ofresulting trust analogous to a possibility toa reverter in land; and so that, if the initialtrust does not determine within theperpetuity period, the interest it createsthereafter continues as an absoluteinterest.

(2) The provisions of subsection (1) of thissection apply as therein provided, whether thedeterminable or conditional estate or interest ischaritable or not, except that the rule againstperpetuities does not apply to a gift over from onecharity to another.

Powers ofappoint-ment.of.W.A. ActNo. 83of 1962,a. 16.

112. For all purposes connected with the ruleagainst perpetuities, a power of appointment underwhich there is a sole donee who is at all times free,without the concurrence of any other person, toappoint the whole of the property to himself is ageneral power, and every other power of appoint-ment is a special power; but, notwithstanding theforegoing provisions of this section, an appointmentmade by will under a power that would, but for thefact that it was made exercisable only by will, havebeen a general power is to be treated as having beenmade under a general power for all purposesconnected with the rule against perpetuities.

Accumula-tions ofincome.Cf.WA. ActNo. 83of 1962,a. 17.

113. (1) Where property is settled or disposedof in such manner that the income thereof may orshall be accumulated wholly or in part, the poweror direction to accumulate that income is valid ifthe disposition of the accumulated income is, or maybe, valid and not otherwise.


(2) Nothing in this section affects the right ofany person or persons to terminate an accumulationthat is for his or their benefit or any jurisdiction orpower of the Court to maintain or advance out ofaccumulations or any powers of a trustee under PartV of the Trustees Act, 1962.

(3) For the avoidance of doubt, it is herebydeclared that this section has effect only as providedby section 99 of this Act.

114. The rule of law prohibiting the limitationafter a life interest to an unborn person, of aninterest in land to the unborn child or other issueof an unborn person is hereby abolished, but withoutprejudice to any other rule relating to perpetuities.

Rule InWhitby v.Mitchellabolished.Cf.WA. ActNo. 83of 1962,s. 18.

115. (1) The rule against perpetuities does not nixg-apply and shall be deemed never to have applied to— ignde,, etc.

(a) a trust or fund established for the purpose lirof making provision by way of assistance, in: 'benefits, superannuation, allowances, P at=gratuities or pensions for the employees of alh:any employer or the widows, widowers, =Actchildren, grandchildren, parents or n'a).dependants of any of those employees orfor any persons duly selected or nominatedfor that purpose pursuant to the provisionsof the trust or fund; and

,b) a trust or fund established for the purposeof making provision by way of super-annuation for persons (not beingemployees) engaged in any lawfulprofession, trade, occupation or calling orthe widows, widowers, children, grand-children, parents or dependants of any ofthose persons or for any persons dulyselected or nominated for that purposepursuant to the provisions of the trust orfund.


(2) In paragraph (a) of subsection (1) of thissection, "employee" includes any director, officer,servant or person at any time in the employment

(a) of an employer;(b) of an employer that is a subsidiary of an

employer; or(c) of an employer that is allied to, or associated

with, an employer; or(d) of an employer that is allied to, or associated

with, a subsidiary of an employer; or(e) of an employer having a subsidiary; or(f) of an employer whose business is acquired

by an employer,that establishes or contributes to a trust or fundsuch as is mentioned in that paragraph; and in thissubsection "employer" includes a company.

Wills incontempla-tion ofmarriage.Of.WA. ActNo. 83of 1962,s. 20;U.K. 15 and16 Geo. 5,c. 20, s. 177.

PART XL1.-SUCCESSION.

116. (1) Notwithstanding anything in section 18of the Wills Act, 1837 (adopted in the State by 2Vict., No. 1) or any other statutory provision or ruleof law to the contrary, a will expressed to be madein contemplation of a marriage is not revoked by thesolemnisation of the marriage contemplated.

(2) Without limiting the provisions of subsection(1) of this section, a will expressed to be made incontemplation of marriage is, unless the testatorexpressly provide to the contrary, not valid in theevent of the contemplated marriage not beingsolemnised.

(3) This section applies only to wills made afterthe sixth day of December, nineteen hundred andsixty-two.

statutory 117. (1) Unless a contrary intention appears bysubstitu-tional gift. the will, where any person is a child or otherOf. issue of the testator to whom (whether as a namedW.A. ActNo. 83 or designated person or as a member of a class) anyof 1962,s. 21; property is devised or bequeathed or appointed inN.Z. WillsAmendment terms that would enable that person to take theAct, 1958,s. 3.


property for any estate or interest not determinableat or before the death of that person if that personsurvived the testator, and that person dies in thelifetime of the testator (whether before or after thetestator makes the will) leaving any child orchildren living at the time of the death of thetestator, the devise or bequest or appointment takeseffect as if the will had contained a substitutionalgift devising or bequeathing or appointing the pro-perty to such of the children of that person as areliving at the time of the testator's death and if morethan one in equal shares.

(2) Without limiting the manner in which atestator may show an intention to negative theoperation of subsection (1) of this section, it ishereby declared that that subsection does notapply

(a) to a devise or bequest or appointment toany person that is in any way expressed tobe conditional on the person being alive ator after the time of the death of the testatoror any time or event which in the eventsthat happen is subsequent to the time ofthe death of the testator; or

(b) to a devise or bequest or appointment to aperson that is in any way expressed to beconditional on the fulfilment by that personof any other contingency and that con-tingency has not been fulfilled before thetime of the testator's death.

(3) This section does not apply to(a) any specific legacy or specific appointment

of any chattels; or(b) any devise or bequest or appointment to

any person as one of two or more jointtenants.

(4) In this section"appointment" means an appointment made by

will in exercise of a general power ofappointment; and also means an appoint-ment made by will in exercise of a special


power of appointment if every child inwhose favour this section would operate isan object of the power; and the terms"appointed" and "appointing" have corre-sponding meanings;

"chattels" does not include money or securitiesfor money;

"child"

(a) in relation to a testator, means anychild (whether legitimate or illegiti-mate) of the testator;

(b) in relation to any person to whomany property is devised orbequeathed or appointed asmentioned in this section, means alegitimate child of that person; andalso, in relation to any woman,includes any illegitimate child ofthat woman;

"issue" in relation to a testator, means anyissue (whether legitimate or illegitimate inany generation) of the testator.

(5) For the purposes of this section, an illegiti-mate relationship between a father and his childshall not be recognised unless there is proof thatthe paternity of the father has been admitted by orestablished against the father while both the fatherand child were living.

(6) This section applies only to wills made afterthe sixth day of December, nineteen hundred andsixty-two.

(7) For the purposes of the law of WesternAustralia, section 33 of the Wills Act, 1837 (adoptedin the State by 2 Vict., No. 1) does not apply to anywill made after the sixth day of December, nineteenhundred and sixty-two, except in relation to aspecific legacy or a specific appointment of anychattels.


(8) For the purposes of this section, every willthat is re-executed or confirmed or revived by anycodicil shall be deemed to have been made at thetime when it was first made, and not at the timewhen it was re-executed or confirmed or revived.

118. (1) A contingent or future specific or resi- mediateduary devise or bequest of property, and a specific or exec utoryresiduary devise or bequest of property upon trust ?icgoenn-tfor a person whose interest is contingent or exe- gifts.cutory, carries, the intermediate income of that W.A. Actproperty from the death of the testator, except so 1:1i22,far as the income or any part thereof may be other- ki2;Actwise expressly disposed of. No. 51

of 1952,s. 35;N.S.W. Con-

(2) Where, under an instrument other than a zw68gwill, property stands limited to a person for a con- IE. 15 rid

tingent or future interest, or stands limited to c.20, s. 175.

trustees upon trust for a person whose interest iscontingent or executory, that interest carries theintermediate income of that property from the timewhen the instrument comes into operation, exceptso far as the income or any part thereof may beotherwise expressly disposed of.

(3) In determining whether any devise or bequestor other limitation of property carries the inter-mediate income of that property any uncertaintywhether the devise or bequest or limitation willultimately prove void for perpetuity shall be disre-garded.

(4) Subsection (1) of this section applies only inrelation to wills made after the sixth day ofDecember, nineteen hundred and sixty-two.

119. (1) Section 120 of this Act applies in respectof

(a) all property of any person that devolvesaccording to the law of this State;

(b) all appointments of trustees where theappointments have to be made according tothe law of this State.

Applicationof s. 120.Cf.WA. ActNo. 60of 1960,s. 3.


(2) Section 120 of this Act so applies whether thedeaths occurred in this State or elsewhere.

Devolutionof propertyin cases ofsimul-taneousdeaths.Of.W.A. ActNo. 60of 1960,8. 4.

120. Where, after the sixth day of December,nineteen hundred and sixty-two, two or morepersons have died at the same time or in circum-stances that give rise to reasonable doubt as towhich of them survived the other or others

(a) the property of each person so dying shalldevolve and if he left a will it shall takeeffect, unless a contrary intention is shownby the will, as if he had survived the otherperson or persons so dying and had diedimmediately afterwards;

(b) every donatio mortis causa made by aperson so dying to another person so dyingis void and of no effect;

(c) if the life of a person so dying is insuredunder any policy of life or accidentinsurance, and any other person or personsso dying would be entitled (otherwise thanunder a will or on the intestacy of anyperson) to the proceeds payable under thepolicy or any part of the proceeds ifhe or they survived the person so insured,the proceeds shall, unless a contrary inten-tion is shown by the instrument governingthe distribution of the proceeds, be dis-tributed as if the person so insured hadsurvived every other person so dying andhad died immediately afterwards;

(d) any property owned jointly and exclusivelyby two or more of the persons so dying,other than property so owned by them astrustees, shall devolve as if it were owned bythem when they died as tenants in commonin equal shares;

(e) where, under any will or trust or other dis-position, any property would have passed,whether in consequence of section 33 of theWills Act 1837 of the United KingdomParliament or otherwise to any of two ormore possible beneficiaries (being personswho have so died) if any of them could beshown to have survived the other or others


of them, then, unless a contrary intentionis shown by the will, trust or disposition, ittakes effect as if the property were given tothose possible beneficiaries as tenants incommon in equal shares, and the propertydevolves accordingly, but this paragraphdoes not apply in any case to which para-graph (c) or paragraph (f) of this sectionapplies;

(f) where a power of appointment could havebeen exercised in respect of any property byany of two or more persons so dying if anyof them could be shown to have survivedthe other or others of them, unless a con-trary intention is shown by the instrumentcreating the power, the power may beexercised as if an equal share of that pro-perty had been set apart for appointmentby each of those persons, and as if each ofthose persons had the power of appoint-ment in respect of the share of the propertyso set apart for appointment by him, andthat share shall devolve in default ofappointment by him in the manner inwhich the property would have devolved indefault of appointment by him if he hadbeen the survivor of those persons, but thisparagraph does not apply in any case towhich paragraph (c) of this section applies;

(g) where, by any will or other testamentaryinstrument, any property is devised or be-queathed or appointed to the survivor oftwo or more of the testator's children orother issue within the meaning of section117 of this Act and all or the last survivorsof those children or issue are persons sodying that section (where it applies) takeseffect as if the devise or bequest or appoint-ment were in equal shares to those of themwho so die and leave a child or childrenliving at the death of the testator;

(h) where the persons so dying include a testa-tor and one or more of his issue, howeverremote, then, for the purposes of section 33of the Wills Act 1837 of the United Kingdom


Parliament where that section applies, thetestator shall be deemed to have survivedall his issue so dying and to have died im-mediately afterwards, and accordingly,unless a contrary intention is shown by thewill, a devise or bequest by the testator toany of his issue who so dies or has alreadydied in the testator's lifetime-

(i) lapses unless any of the donee's issue,other than the persons so dying, isliving at the time of the death of thetestator;

(ii) takes effect in accordance with theprovisions of section 33 of the WillsAct 1837 of the United KingdomParliament if any such other issue ofthe donee is living at that time;

(i) for all other purposes affecting the title toproperty or the appointment of trustees, thedeaths of the persons so dying shall bepresumed to have occurred in order ofseniority, and accordingly the younger shallbe deemed to have survived the elder.

PART XIII.-EASEMENTS, ENCROACHMENTS ANDMISTAKE.

of lEasement 121. After the coming into operation of this Actlightand air no right to the access or use of light or air to or foronly byregistered any land shall be granted or be capable of cominggrant orinstrument. into existenceCf.

N.Z.NAct (a) for a term exceeding twenty-one years,o. 51

of 1952, without the written consent of thes. 124.Governor, and

(b) in any case, unless the grant or otherinstrument creating the right, is registeredagainst the title to the servient tenement.

Power ofCourt tograntspecialrelief incases ofencroach-ment.Cf.N.Z. ActNo. 51of 1952,s. 129.

122. (1) Where any building on land encroacheson a part of adjoining land, whether the buildingwas erected by the owner of the first mentionedland (in this section referred to as the encroachingowner) or by any of his predecessors in title, eitherthe encroaching owner or the owner of the adjoiningland may apply to the Court, whether in an action


or proceeding then pending or in progress and re-lating to the land encroached upon or by anoriginating summons, to make an order in accord-ance with this section.

(2) If it is proved to the satisfaction of the Courtthat the encroachment was not intentional and didnot arise from gross negligence, or, where the build-ing was not erected by the encroaching owner, if inthe opinion of the Court it is just and equitablein the circumstances that relief should be grantedto the encroaching owner or any other person, theCourt, without ordering the encroaching owner orany other person to give up possession of the pieceof land encroached upon or to pay damages, andwithout granting an injunction, may if it thinksfit make an order

(a) vesting in the encroaching owner or anyother person any estate or interest in anypart of the adjoining land; or

(b) creating in favour of the encroaching owneror any other person any easement over anypart of the adjoining land; or

(c) giving the encroaching owner or any otherperson the right to retain possession of anypart of the adjoining land.

(3) Where the Court makes an order under thissection the Court may, in the order, declare anyestate or interest so vested to be free from any mort-gage or other encumbrance affecting the adjoiningland, or vary, to such extent as it considers neces-sary in the circumstances, any mortgage, lease, orcontract affecting or relating to that piece of land.

(4) An order under this section, or any provisionof the order, may be made upon, and subject to suchterms and conditions, as the Court thinks fit,whether as to the payment by the encroachingowner or any other person of any sum or sums ofmoney, or the execution by the encroaching owneror any other person of any mortgage, lease, ease-ment, contract or other instrument, or otherwise.

(5) (a) Every person having any estate or inter-est in the adjoining land or in the adjoining landof the encroaching owner, or claiming to be a party


to or to be entitled to any benefit under any mort-gage, lease, contract, or easement affecting orrelating to any such land, is entitled to apply foran order in accordance with this section or to beheard in relation to any application for or proposalto make any order under this section.

(b) For the purposes of this subsection, the Courtmay, if in its opinion notice of the application orproposal should be given to any person referred toin this subsection, direct that such notice, as itthinks fit, shall be so given by such person as theCourt directs.

(6) The Court shall not make an order under thissection without the prior consent of the Town Plan-ning Board established under the Town Planningand Development Act, 1928 and the council of theMunicipality in whose municipal district the landto which the order will relate, lies.

(7) For the purposes of this section "building"includes any structure and "land" includes thesurface and the subsurface of and the airspaceabove the land.

Relief incases ofmistakeas toboundariesor identityof /and.Cf.N.Z. ActNo. 51of 1952,e. 129A.

123. (1) Where (whether before or after the com-ing into operation of this Act) a person who has orhad an estate or interest in any piece of land (in thissection referred to as the original piece of land) has,while he had that estate or interest, erected a build-ing on any other piece of land (that other piecetogether with any land reasonably required as cur-.tilage and for access to the building being in thissection referred to as the piece of land wronglybuilt upon), if the building has been so erectedbecause of a mistake as to any boundary or as to theidentity of the original piece of land, that person, orany other person for the time being in possession ofthe building or having an estate or interest in eitherthe original piece of land or the piece of land wronglybuilt upon, or any other person mentioned in sub-section (6) of this section, may apply to the Court,whether in any action or proceeding then pendingor in progress and relating to the piece of landwrongly built upon or by an originating summons,to make an order in accordance with this section.


(2) If in the opinion of the Court it is just andequitable in the circumstances that relief should begranted to the applicant or any other person, theCourt may if it thinks fit make an order

(a) vesting the piece of land wrongly built uponin the person or persons specified in theorder;

(b) allowing any person or persons specified inthe order to remove the building and anychattels and fixtures or any of them fromthe piece of land wrongly built upon;

(c) where it allows possession of the buildingto any person or persons having an estate orinterest in the piece of land wrongly builtupon, requiring all or any of the personshaving an estate or interest in that pieceof land to pay compensation in respect ofthe building and other improvements tothe piece of land wrongly built upon tosuch person or persons as the Court mayspecify in the order;

(d) giving the person who erected the buildingor any person or persons claiming throughhim the right to possession of the piece ofland wrongly built upon for such periodand on such terms and conditions as theCourt may specify in the order.

(3) Where appropriate, the Court may make anysuch order without ordering the applicant or anyother person to give up possession of the piece ofland wrongly built upon, or to pay damages, andwithout granting an injunction.

(4) Where the Court makes any order under thissection, the Court may, in the order, declare anyestate or interest in the piece of land wrongly builtupon to be free from any mortgage, lease, easement,or other encumbrance affecting that piece of land,or vary, to such extent as it considers necessary inthe circumstances, any mortgage, lease, easement,contract, or other instrument affecting or relatingto that piece of land.


(5) Any order under this section, or any provisionof the order, may be made upon and subject to suchterms and conditions as the Court thinks fit,whether as to the payment by any person of anysum or sums of money, or the execution by anyperson of any mortgage, lease, easement, contract,or other instrument, or otherwise.

(6) Every person for the time being in possessionof the building or having any estate or interest inthe piece of land wrongly built upon or in theoriginal piece of land, or claiming to be a party toor to be entitled to any benefit under any mortgage,lease, easement, contract, or other instrumentaffecting or relating to any such land, and the localauthority concerned, is entitled to apply for an orderin accordance with this section, or to be heard inrelation to any application for or proposal to makeany order under this section.

(7) For the purposes of subsection (6) of thissection the Court may, if in its opinion notice of theapplication or proposal should be given to anyperson, whether referred to in that subsection ornot, direct that such notice as it thinks fit be sogiven by such person as the Court directs.

(8) The Court shall not make an order under thissection, other than an order under paragraph (b)of subsection (2) of this section, without the priorconsent of the Town Planning Board establishedunder the Town Planning and Development Act,1928, and the council of the Municipality in whosemunicipal district the land to which the order willrelate, lies.

Recovery ofpaymentsmade undermistake of

Cf.W.A. ActNo. 83of 1962,s. 23;N .Z.JudicatureAct, 1908l as amended1958),

94A.

124. (1) Subject to the provisions of thissection, where relief in respect of any payment thathas been made under mistake is sought in any court,whether in an action or other proceeding or by wayof defence, set off, counterclaim or otherwise, andthat relief could be granted if the mistake werewholly one of fact, that relief shall not be deniedby reason only that the mistake is one of lawwhether or not it is in any degree also one of fact.


(2) Nothing in this section enables relief to begiven in respect of any payment made at a timewhen the law requires or allows, or is commonlyunderstood to require or allow, the payment to bemade or enforced, by reason only that the law issubsequently changed or shown not to have beenas it was commonly understood to be at the time ofpayment.

125. (1) Relief, whether under section 124 of L'airatuliA„this Act or in equity or otherwise, in respect of any faitl t:rk a o

payment made under mistake, whether of law or 2;txtfact, shall be denied wholly or in part if the person recoverablefrom whom relief is sought received the payment in J.A.i Actgood faith and has so altered his position in reliance lo.if431Zon the validity of the payment that in the opinion Ibri:943of the Court, having regard to all possibleimplications in respect of the parties (other thanthe plaintiff or claimant) to the payment and ofother persons acquiring rights or interests throughthem, it is inequitable to grant relief, or to grantrelief in full.

(2) Where the Court makes an order for therepayment of any money paid under a mistake, theCourt may in that order direct that the repaymentshall be by periodic payments or by instalments, andmay fix the amount or rate thereof, and may fromtime to time vary, suspend or discharge the orderfor cause shown, as the Court thinks fit.

PART XIV.-PARTITION OF LANDAND DIVISION OF CHATTELS.

126. (1) Where in an action for partition theparty or parties interested, individually or collec-tively, to the extent of a half share or upwards in theland to which the action relates request the Courtto direct a sale of the land and a distribution of theproceeds, instead of a division of the land betweenor among the parties interested, the Court shall,unless it sees good reason to the contrary, direct asale accordingly.

In actionfor partitionCourt maydirect landto be sold.Cf.N.Z. ActNo. 51of 1952,s. 140.


(2) The Court may, if it thinks fit, on the requestof any party interested, and notwithstanding thedissent or disability of any other party, direct a salein any case where it appears to the Court that, byreason of the nature of the land, or of the numberof the parties interested or presumptivelyinterested therein, or of the absence or disability ofany of those parties, or of any other circumstance,a sale of the land would be for the benefit of theparties interested.

(3) The Court may also, if it thinks fit, on therequest of any party interested, direct that the landbe sold, unless the other parties interested, or someof them, undertake to purchase the share of theparty requesting a sale; and, on such an undertakingbeing given, may direct a valuation of the share ofthe party requesting a sale.

(4) On directing a sale or valuation to be madeunder subsection (3) of this section the Court maygive also all necessary or proper consequentialdirections.

(5) Any person may maintain such an action asis referred to in subsection (1) of this section againstany one or more of the parties interested withoutserving the other or others, and

(a) it is not competent to any defendant inthe action to object for want of parties;and

(b) at the hearing of the cause the Court maydirect such inquiries as to the nature of theland and the persons interested therein,and other matters, as it thinks necessaryor proper, with a view to an order forpartition or sale being made on furtherconsideration,

but all persons who, if this Act had not come intooperation would have been necessary parties to theaction

(c) shall be served with notice of the decree ororder on the hearing;

(d) are bound, after the notice is so served, bythe proceedings, as if they had originally


been parties to the action and shall bedeemed parties to the action; and

(e) have liberty to attend the proceedings andany of those persons may within a timelimited by rules of Court apply to the Courtto add to the decree or order.

(6) On any sale under this section the Court mayallow any of the parties interested in the land tobid at the sale, on such terms as the Court deemsreasonable as to non-payment of deposit, or as tosetting off or accounting for the purchase moneyor any part thereof instead of paying the same, oras to any other matters.

127. (1) All money received under any saleunder section 126 of this Act may, if the Court thinksfit, be paid to trustees appointed by the Court, andapplied, as the Court from time to time directs

(a) in the discharge of any encumbranceaffecting the land directed to be sold; and

(b) subject to that encumbrance, in the pay-ment of the residue to the partiesinterested.

(2) Where the Court so directs, the trustees (ifany) may apply the money in manner referred to insubsection (1) of this section, but if the Court doesnot so direct any party interested may apply to theCourt for an order that the money be so applied.

(3) Until the money can be applied as referredto in subsection (1) of this section it shall be fromtime to time invested in such securities as the Courtmay approve and the income thereof shall be paid tothe parties interested.

128. In an action for partition the Court maymake such order as it thinks just respecting costsup to the time of the hearing.

129. Where any chattels belong to persons jointlyor in undivided shares, the persons interested to theextent of a half share or upwards may apply to theCourt for an order for division of the chattels or of

Proceedsof sale,how applied.Cf.N.Z. ActNo. 51of 1952,s. 141.

Costs inPartitionsuits.Cf.N.Z. ActNo. 51of 1952,s. 142.

Divisionof chattels.Cf.N.Z. ActNo. 51of 1952,s. 142.

No. 32.] Property Law. [1969..

any of them, according to a valuation or otherwiseor for sale and division of the proceeds and theCourt may make such order and give such.consequential directions as the Court thinks fit.

Interpreta-tion.Cf.N.Z. ActNo. 51of 1952,s. 144.

Incomeapportion-able inrespect oftime.Cf.N.Z. ActNo. 51of 1952,s. 145.

Time whenapportionedpart pay

-able.Cf.N.Z. ActNo. 51of 1952,s. 146.

PART XV.-APPORTIONMENT.

130. (1) In this Part of this Act, unless thecontrary intention appears

"annuities" includes salaries and pensions;"dividends" includes (besides dividends strictly

so called) all payments made by the nameof dividend, bonus, or otherwise out of therevenue of trading or other companies orcorporations, divisible between all or anyof the members thereof, whether those pay-ments are usually made or declared at anyfixed times or otherwise; but "dividends"'does not include payments in the nature,of a return or reimbursement of capital;

"rent" includes rents and all periodical pay-ments or renderings in lieu of or in thenature of rent.

(2) All such divisible revenue as is referred to in_the interpretation "dividends" shall for the purposes,of this section be deemed to have accrued by equaldaily increments during and within the period for•or in respect of which the payment of the same'revenue is declared or expressed to be made.

131. All rents, annuities, dividends, and otherperiodical payments in the nature of income(whether reserved or made payable under aninstrument in writing or otherwise) shall, likeinterest on money lent, be considered as accruingfrom day to day, and shall be apportionable inrespect of time accordingly.

132. The apportioned part of any such rent,annuity, dividend, or other payment as is referred'to in section 131 of this Act is payable or recoverablein the case of a continuing rent, annuity, or otherpayment as soon as the entire portion of which the


apportioned part forms part becomes due and pay-able, and not before; and where the payment isdetermined by re-entry, death, or otherwise, as soonas the next entire portion of the rent, annuity,dividend or other payment would have become pay-able if it had not so determined, and not before.

133. (1) Subject to subsection (2) of this section, ]],gg:Argrdall persons and their respective personal representa- parts.

tives and assigns, and also the personal representa- /91 42. Act

tives and assigns respectively of persons whose of 1952,

interests determined with their own death, have "47.

such or the same remedies, legal and equitable, forrecovering such apportioned parts as are referredto in section 132 of this Act when payable (allowingfor a proportionate part of all just allowance) asthey respectively would have had for recoveringsuch entire portions as are so referred to if entitledthereto respectively.

(2) Where a person is liable to pay rent reservedout of or charged on lands or other hereditamentsof any tenure, that person and the lands or otherhereditaments shall not be resorted to for anyapportioned part forming part of an entire or con-tinuing rent as provided in section 132 of this Act;but the entire or continuing rent, including theapportioned part, shall be recovered and received bythe person who, if the rent had not been apportion-able under this Part of this Act or otherwise, wouldhave been entitled to the entire or continuing rent;and the apportioned part is recoverable from thelast mentioned person by the personal representa-tives, or other parties entitled thereto under thisPart of this Act.

134. (1) Nothing in this Part of this Act rendersapportionable any annual sums payable underpolicies of assurance of any description.

(2) This Part of this Act does not extend to anycase in which it is expressly stipulated that appor-tionment shall not take place.

Exceptionsandapplication.Cf.N.Z. ActNo. 51of 1952,s. 148.

No. 32.] Property taw. [1969.

PART XVI.-SERVICE OF NOTICES.

Mode ofservice.Cf.N.Z. ActNo. 51of 1952,s. 152.

135. (1) (a) A notice required or authorised bythis Act to be served on any person or any noticeserved on any person under any instrument or agree-ment that relates to property may be served on thatperson-

(i) by delivering the notice to him personally;

(ii) by leaving it for him at his usual or lastknown place of abode, or if he is in busi-ness as a principal, at his usual or lastknown place of business;

(iii) by posting it to him as a letter addressedto him at his usual or last known place ofabode, or if he is in business as a principal,at his usual or last known place of business;or

(iv) in the case of a corporation by leaving itor by posting it as a letter addressed ineither case to the corporation at itsregistered office or principal place of busi-ness in the State.

(b) A notice so posted shall be deemed to havebeen served, unless the contrary is shown, at thetime when by the ordinary course of post the noticewould be delivered.

(2) (a) If the person is absent from the State,the notice may be delivered as provided in subsec-tion (1) of this section to his agent in the State.

(b) If he is deceased, the notice may be sodelivered to his personal representative.

(3) If the person is not known, or is absent fromthe State and has no known agent in the State or isdeceased and has no personal representative, thenotice shall be delivered in such manner as may bedirected by an order of the Court.

Reference to Acts. Subject or Title.

8 and 9 Vic. Cap. 106Adopted by 12 Vic. No. 21.

8 and 9 Vic. Cap. 119Adopted by 12 Vie. No. 21.


22 and 23 Vic. Cap. 35Adopted by 31 Vie. No. 8.



An Act to amend the Law ofReal Property.

An Act to facilitate theConveyance of RealProperty.

An Act to facilitate the grant-ing of certain Leases.

An Act to further amend theLaw of Property and torelieve Trustees.

An Act to further amend theLaw of Property.

An Act to give to Trustees,Mortgages and other certainPowers now commonly in-serted in Settlements, Mort-gages and Wills.


(4) Notwithstanding anything in the foregoingprovisions of this section, the Court may in anycase make an order directing the manner in whichany notice is to be delivered, or dispensing with thedelivery thereof.

(5) This section does not apply to notices servedin proceedings in the Court, or to notices servedpursuant to the provisions of the Transfer of LandAct, 1893.

(6) This section applies unless a contrary methodof service of a notice is provided in the instrumentor agreement.

FIRST SCHEDULE. 5. 4.

ADOPTED ACTS CEASING TO HAVE EFFECT.

No. 32.] Property Law. [1969..

SECOND SCHEDULE.

Extent ofRepealSubject or TitleReference to

Act.

2 Gul. IV No. 7.

7 Vict. No. 4.

42 Vict. No. 1.42 Vict. No. 2.

54 Vict. No. 8.

60 Vict. No. 3.

1 & 2 Edw. VIINo. 29 asamended byAct No. 26 of1922.

No. 63 of 1912.

No. 36 of 1935 asamended up toand includingAct No. 39 of1964.

No. 60 of 1960as amended byAct No. 85 of1962.

No. 83 of 1962

Real Property TransferAct, 1832

Freehold Estates Convey-ancing Act, 1843

The Partition Act, 1878Contingent Remainders

Act, 1878The Apportionment Act,

1891

Powers of Attorney Act,1896.

Light and Air Act, 1902-1922.

Landlord and Tenant Act,1912

Supreme Court Act, 1935-1964

Simultaneous Deaths Act,1960-1962

Law Reform (Property,Perpetuities and Suc-cession) Act, 1962

The Whole.

The Whole.

The Whole.The Whole.

The Whole.

The Whole_

The Whole.

The Whole.

Subsections (3)„(4), (5), (7)& (8) ofsection 25.

The Whole.

The Whole.

THIRD SCHEDULE.IMPLIED COVENANTS.

PART I.

Covenant implied in a Conveyance Tor Valuable Considera-tion other than a Mortgage, by a Person who conveysand is expressed to Convey as Beneficial Owner.

That, notwithstanding anything by the person who soconveys or any one through whom he derives title other-wise than by purchase for value, made, done, executed oromitted, or knowingly suffered, the person who so conveys,has, with the concurrence of every other person (if any)conveying by his direction, full power to convey thesubject-matter expressed to be conveyed, subject as, if soexpressed, and in the manner in which, it is expressed tobe conveyed, and that, notwithstanding anything as

S. 95.Cf.Victoria ActNo. 6344,Schedules.

S.45 hi./•

1.969.] Property Law. [No. 32.

aforesaid, that subject-matter shall remain to and bequietly entered upon, received, and held, occupied, enjoyed,and taken, by the person to whom the conveyance is ex-pressed to be made, and any person deriving title underhim, and the benefit thereof shall be received and takenaccordingly, without any lawful interruption or disturbanceby the person who so conveys or any person conveyingby his direction, or rightfully claiming or to claim by,through, under, or in trust for the person who so conveys,or any person conveying by his direction, or by, through,or under any one (not being a person claiming in respectof an estate or interest subject whereto the conveyanceis expressly made), through whom the person who so con-veys derives title, otherwise than by purchase for value:

And that, freed and discharged from, or otherwise by theperson who so conveys sufficiently indemnified against, allsuch estates, incumbrances, claims and demands, otherthan those subject to which the conveyance is expresslymade, as, either before or after the date of the conveyance,have been or shall be made, occasioned or suffered by thatperson or by any person conveying by his direction, or byany person rightfully claiming by, through, under or intrust for the person who so conveys, or by, through orunder any person conveying by his direction, or by, through,or under any one through whom the person who so conveysderives title, otherwise than by purchase for value:

And further, that the person who so conveys, and anyperson conveying by his direction, and every other personhaving or rightfully claiming any estate or interest in thesubject-matter of conveyance, other than an estate orinterest subject whereto the conveyance is expressly made,by, through, under or in trust for the person who soconveys, or by, through, or under any person conveyingby his direction, or by, through or under any one throughwhom the person who so conveys derives title, other-wise than by purchase for value, will, from time to timeand at all times after the date of the conveyance, on therequest and at the cost of any person to whom the con-veyance is expressed to be made, or of any person derivingtitle under him, execute and do all such lawful assurancesand things for further or more perfectly assuring thesubject-matter of the conveyance to the person to whomthe conveyance is made, and to those deriving title underhim, subject as, if so expressed, and in the manner inwhich the conveyance is expressed to be made, as by him orthem or any of them shall be reasonably required.

In the above covenant a purchase for value shall notbe deemed to include a conveyance in consideration ofmarriage.


S. 45 (b). PART IL

Further Covenant implied in a Conveyance of LeaseholdProperty for Valuable Consideration, other than a Mort-gage, by a Person who Conveys and is expressed to Convey

as Beneficial Owner.

That, notwithstanding anything by the person who soconveys, or any one through whom he derives title, other-wise than by purchase for value, made, done, executed oromitted, or knowingly suffered, the lease or grant creatingthe term or estate for which the land is conveyed is, at thetime of conveyance, a good, valid, and effectual lease orgrant of the property conveyed, and is in full force,unforfeited, unsurrendered, and has in nowise become voidor voidable, and that, notwithstanding anything as afore-said, all the rents reserved by, and all the covenants,conditions and agreements contained in, the lease or grant,and on the part of the lessee or grantee and the personsderiving title under him to be paid, observed and per-formed, have been paid, observed and performed up to thetime of conveyance.

In the above covenant a purchase for value shall not bedeemed to include a conveyance in consideration ofmarriage.

8.45 (c). PART III.

Covenant implied in a Conveyance by way of Mortgage by aperson who Conveys and is expressed to Convey as Bene-ficial Owner.

That the person who so conveys, has, with the concurrenceof every other person, if any, conveying by his direction,full power to convey the subject-matter expressed to beconveyed by him, subject as, if so expressed, and in themanner in which it is expressed to be conveyed:

And also that, if default, is made in payment of the moneyintended to be secured by the conveyance, or any interestthereon, or any part of that money or interest, contrary toany provision in the conveyance, it shall be lawful for theperson to whom the conveyance is expressed to be made,and the persons deriving title under him, to enter into andupon, or receive, and thenceforth quietly hold, occupy andenjoy or take and have, the subject-matter expressed to beconveyed, or any part thereof, without any lawful interrup-tion or disturbance by the person who so conveys, or anyperson conveying by his direction, or any other person (notbeing a person claiming in respect of an estate or interestsubject whereto the conveyance is expressly made);


And that, freed and discharged from, or otherwise by theperson who so conveys sufficiently indemnified against, allestates, incumbrances, claims and demands whatever otherthan those subject whereto the conveyance is expresslymade:

And further, that the person who so conveys and everyperson conveying by his direction, and every person derivingtitle under any of them, and every other person having orrightfully claiming any estate or interest hi the subject-matter of conveyance, or any part thereof, other than anestate or interest subject whereto the conveyance is expresslymade, will from time to time and at all times, on the requestof any person to whom the conveyance is expressed to bemade, or of any person deriving title under him, but, aslong as any right of redemption exists under the conveyance,at the cost of the person so conveying, or of those derivingtitle under him, and afterwards at the cost of the personmaking the request, execute and do all such lawful assur-ances and things for further or more perfectly assuring thesubject-matter of conveyance and every part thereof to theperson to whom the conveyance is made, and to those deriv-ing title under him, subject as, if so expressed, and in themanner in which the conveyance is expressed to be made,as by him or them or any of them shall be reasonablyrequired.

PART IV.

Covenant implied in a Conveyance by way of Mortgage ofLeasehold Property by a Person who Conveys and isexpressed to Convey as Beneficial Owner.

That the lease or grant creating the term or estate forwhich the land is held is, at the time of conveyance, a good,valid and effectual lease or grant of the land conveyed andis in full force, unforfeited and unsurrendered and has innowise become void or voidable, and that all the rentsreserved by, and all the covenants, conditions and agree-ments contained in, the lease or grant, and on the part ofthe lessee or grantee and the persons deriving title underhim to be paid, observed and performed, have been paid,observed and performed up to the time of conveyance:

And also that the person so conveying, or the personsderiving title under him, will at all times, as long as anymoney remains owing on the security of the conveyance,pay observe and perform, or cause to be paid, observed andperformed all the rents reserved by, and all the covenants,conditions and agreements contained in, the lease or grant,and on the part of the lessee or grantee and the personsderiving title under him to be paid, observed and performed.

8.45 (di.


and will keep the person to whom the conveyance is made,and those deriving title under him, indemnified against allactions, proceedings, costs, charges, damages, claims anddemands (if any) to be incurred or sustained by him orthem by reason of the non-payment of such rent or thenon-observance or non-performance of such covenants,conditions and agreements, or any of them.

S. 45 (e). PART V.

Covenant implied in a Conveyance by way of Settlement,by a Person who Conveys and is expressed to Conveyas Settlor.

That the person so conveying, and every person deriv-ing title under him by deed or act or operation of law inhis lifetime subsequent to that conveyance, or by testamen-tary disposition or devolution in law, on his death, will, fromtime to time, and at all times, after the date of that con-veyance, at the request and cost of any person deriving titlethereunder, execute and do all such lawful assurances andthings for further or more perfectly assuring the subject-matter of the conveyance to the persons to whom the con-veyance is made and those deriving title under them, as bythem or any of them shall be reasonably required, subjectas if so expressed, and in the manner in which the convey-ance is expressed to be made.

S. 45 (f). PART VI.

Covenant implied in any Conveyance, by every Person whoConveys and is expressed to Convey as Trustee orMortgagee, or as Personal Representative of a DeceasedPerson, or as Manager of the Estate of an incapableperson or under an Order of the Court.

That the person so conveying has not executed or done,or knowingly suffered, or been party or privy to any deedor thing, whereby or by means whereof the subject-matterof the conveyance or any part thereof, is or may beimpeached, charged, affected or encumbered in title, estate,or otherwise, or whereby or by means whereof the personwho so conveys is in anywise hindered from conveying thesubject-matter of the conveyance, or any part thereof, inthe manner in which it is expressed to be conveyed.

The foregoing covenant may be implied in an assent inlike manner as in a conveyance by deed.

1969.]

Property Law. [No. 32.

FOURTH SCHEDULE. 5.3t

CONVEYANCE.

This Deed made this day of 19Between A.B. of (address and occupation) of the one partand C.D. of (address and occupation) of the other partWitnesseth that in consideration of the sum ofdollars paid by the said C.D. to the said A.B. (the receiptwhereof is hereby acknowledged) the said KB. as beneficialowner (if it is not intended to include the usual covenantsfor title, omit the words "beneficial owner") hereby conveysto the said C. D. in fee simple (or as the case may be) allthat piece of land being

(description of land)

SIGNED by the said A.B.in the presence of:

PROPERTY LAW ACT, 1969

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Transcript of PROPERTY LAW ACT, 1969