Reference no: EM133608113

Problem

Bill is the registered proprietor of the freehold estate in fee simple of Bag End, a parcel of land governed by the Real Property Act 1900 (NSW).

In January 2023 Bill - weary of living at home and planning to travel around the world on an extended holiday later that year - executes a written and signed agreement to lease Bag End for a fixed term of 2 years to his cousin Lowbelia with the lease to only commence later that year in July 2023. The lease also includes a clause conferring upon the lessee an option to renew the lease for an additional 1 year upon the completion of the original 2 year term. Lowbelia does not lodge a caveat in relation to her unregistered agreement to lease the property.

In February 2023 Bill, yearning for companionship and assistance at home in his old age, says to his nephew Fred

If you come and live with me here at Bag End and look after me until July this year then Bag End belongs to you.

Fred, eager to help his Uncle Bill and also interested in the prospect of owning a home, then moves into Bag End to live with his Uncle Bill and care for him.

In March 2023, Bill decides to raise some money to start a business as a travel influencer on InstaTok (a social media platform). He obtains a loan from Lonely Mountain Bank of $300,000 (secured by a written mortgage granted by Bill in favour of Lonely Mountain Bank over Bag End). As Bill has been an esteemed client of unimpeachable reputation - Lonely Mountain Bank neither registers the mortgage nor lodges a caveat in relation to their unregistered interest as a mortgagee.

In April 2023, in response to the rising cost of travel due to a war overseas, Bill, desperate to raise additional finances for his planned extended holiday then enters into a written and signed contract to sell Bag End to his friend Alf for $1,000,000 (in relation to which Alf pays Bill a $100,000 deposit). Alf is entirely unaware of the existence of any other interests in the property other than Bill's own interest as the Registered Proprietor.

However, prior to the scheduled settlement date with Alf, Bill receives a better offer from Gladys to purchase Bag End for $2,000,000. Gladys is unaware of either the prior exchange of contracts with Alf or of any other transactions relating to the property. She has searched the Register and confirmed that only Bill holds a recorded interest in the property of any kind. Bill then proceeds to enter into a written and signed contract of sale for Bag End to Gladys.

However, before Bill can execute the transfer of his interest in favour of Gladys and complete the contract of sale to Gladys, Fred becomes aware of these dealings and in May 2023 lodges a caveat on Bag End, claiming that he has an unregistered interest in Bag End.

All students must answer Question 1, providing reasons for their answer:

I. Identify the nature of each party's proprietary interest (if any) in BagEnd, and also provide advice regarding the priority that would be accorded to the enforcement of each of those proprietary interests.

Students in LAWS7067 must answer the following additional question (Question 2), providing reasons for their answer:

II. Assume that the facts in the scenario above are now amended as follows:

After entering into the contract of sale for Bag End, Gladys becomes aware of the existence of all the other parties' interests but nevertheless proceeds to complete the contract of sale by paying the balance of the purchase price to Bill. Bill then executes a transfer of his interest in Bag End (properly stamped) in favour of Gladys and Gladys' solicitor lodges Gladys' dealing for registration. After Gladys' dealing has been lodged for registration, Fred then becomes aware of these dealings and then lodges his caveat in relation to the interest that he claims he has in Bag End. At the time that Fred lodges his caveat, Gladys' interest in Bag End has not yet actually been registered by the Registrar General.

How does your answer in 1 change, if at all?