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REAL PROPERTY AND CONVEYANCING (AMENDMENT)
BILL 1991
NEW SOUTH WALES
EXPLANATORY NOTE
(This Explanatory Note relates to this Bill as introduced into Parliament)
The objects of this Bill are:
(a) to amend the Real Property Act 1900 with respect to proof of execution and
attestation of documents and variations of registered leases; and
(b) to amend the Conveyancing Act 1919 with respect to variations of mortgages
and service of notices.
Clause 1 specifies the short title of the proposed Act.
Clause 2 provides for the proposed Act to commence on a day or days to be
appointed by proclamation.
Clauses 3 and 4 are formal provisions which give effect to the Schedules of
amendments.
SCHEDULE 1--AMENDMENT OF REAL PROPERTY ACT 1900
Execution and attestation of dealings
Schedule 1 (1) (a) inserts proposed section 36 (1E). The proposed section provides
that, if the Registrar-General has grounds for believing that a dealing or caveat has not
been duly executed or attested, the Registrar-General may require the execution or
attestation to be proved in such manner as the Regisfrar-General thinks fit.
Schedule 1 (4) repeals sections 107 and 108. Sections 107 and 108 deal with
attestation and proof of execution of dealings under the Act. The issue of attestation is
already dealt with by section 36 (1D) (b) which provides that the Registrar-General may
refuse to accept a dealing or caveat presented for lodgment that is not attested by a
witness who is not a party to the dealing or caveat. The issue of proof of execution and
attestation is to be dealt with by the amendment to be effected by Schedule 1 (1) (a).
Schedule 1 (2) omits section 38 (4) which provides that the Registrar-General must
certify on a dealing the fact and date of its registration and that the certificate is to be
received in court or other proceedings as conclusive evidence that the dealing was
registered on that date. The requirements of this provision have become redundant as the
conclusive nature of evidence concerning the registration of a dealing is now dealt with
by section 40 (1) and (1A) of the Real Property Act 1900.
Schedule 1 (1) (b) makes a consequential amendment.
Variation of registered leases
Schedule 1 (3) inserts proposed section 55A. The proposed section provides that a
registered lease may be varied so as:
(a) to increase or reduce the rent payable under the lease; or
(b) to increase or reduce the period for which the lease is to have effect; or
(c) to otherwise vary, omit or add to the provisions of the lease,
and that such a variation may be registered.
Such variations are not to be valid or binding against the registered proprietor of any
prior registered interest in respect of the land to which the- lease relates unless the
proprietor has consented to the variation before it is registered.
The proposed section also provides that a variation of lease may not operate to vary
the land to which the lease relates.
Service of notices
Schedule 1 (5) amends section 135Q to provide (in line with proposed amendments
to section 170 of the Conveyancing Act 1919 to be effected by Schedule 2 (2) (b)) that
in the case of service of a notice to the facilities of a document exchange under Part 14A
the notice is, unless the contrary is proved, to be taken to have been given on the second
business day following the day of delivery of the notice to those facilities.
SCHEDULE 2--AMENDMENT OF CONVEYANCING ACT 1919
Variation of mortgages
Schedule 2 (1) (a) amends section 91 (1) to provide that the provisions of a mortgage
may be varied, omitted or added to by an indorsement on the memorandum of
mortgage.
Schedule 2 (1) (b) amends section 91 (2) to provide that the form of a variation of
mortgage is to be as set out in Form 4A, as proposed to be inserted in Schedule 5.
Schedule 2 (1) (c) inserts proposed section 91 (SA) to provide that a memorandum of
variation of mortgage may not operate to vary the land to which the mortgage relates.
Schedule 2 (1) (d) amends section 91 (6) so that the variation of mortgage referred to
in proposed section 91 (1) (d1) applies to a registered mortgage under the Real Property
Act 1900.
Real Property and Conveyancing (Amendment) 1991
Service of notices
Schedule 2 (2) (a) repeals section 170 (1) (b) and (c) and replaces those paragraphs
with proposed section 170 (1) (b), (b1) and (b2), by way of statute law revision, and
with proposed section 170 (1) (c) to provide for the service of notices at a document
exchange.
Schedule 2 (2) (b) inserts proposed section 170 (1A) which provides that, in the case
of service of a notice to the facilities of a document exchange, the notice is, unless the
contrary is proved, to be taken to have been served on the second business day
following the day of delivery of the notice to those facilities.
Schedule 2 (2) (c) amends section 170 (2) by way of statute law revision.
Schedule 2 (2) (d) inserts a definition of "business day" for the purpose of
calculating the time at which notice is to be regarded as having been given when
document exchange facilities are used for service of notices.