The Mysterious S 74(5)

(2020) 28 Australian Property Law Journal 75

20 Pages Posted: 10 Jul 2020

See all articles by Lisa Spagnolo

Lisa Spagnolo

Monash University - Faculty of Law

Ann Monotti

Monash University - Faculty of Law

Sharon Rodrick

Monash University - Faculty of Law

Date Written: June 16, 2020

Abstract

Section 74(5) of the Transfer of Land Act 1958 (Vic) was inserted into the Act in 2014. It provides that ‘[a] registered mortgage does not operate as a mortgage or charge on the land if for any reason the mortgage is, or is found to be, void or not enforceable at law or in equity and the mortgagee must discharge the mortgage as soon as practicable.’ This article identifies three possible purposes and effects of this enigmatic provision and critically discusses the implications of each one. It ultimately concludes that legislative reform is necessary to avoid the dangerous level of ambiguity inherent in the provision, but offers a view as to which interpretation should be preferred in the event that the courts are called upon to interpret the provision in the meantime.

Keywords: Torrens Land System, Mortgages, Transfer of Land Act (Vic), Section 74

Suggested Citation

Spagnolo, Lisa and Monotti, Ann L. and Rodrick, Sharon, The Mysterious S 74(5) (June 16, 2020). (2020) 28 Australian Property Law Journal 75, Available at SSRN: https://ssrn.com/abstract=3628133 or http://dx.doi.org/10.2139/ssrn.3628133

Lisa Spagnolo (Contact Author)

Monash University - Faculty of Law ( email )

Wellington Road
Clayton, Victoria 3800
Australia

Ann L. Monotti

Monash University - Faculty of Law ( email )

Wellington Road
Clayton, Victoria 3800
Australia
+61 3 9905 3377 (Phone)

HOME PAGE: http://www.law.monash.edu.au/staff/amonotti.html

Sharon Rodrick

Monash University - Faculty of Law ( email )

Wellington Road
Clayton, Victoria 3800
Australia

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
34
Abstract Views
183
PlumX Metrics