South-Eastern Drainage Board (SA) v Savings Bank of South Australia [1939] HCA 40

Dised

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= dv ih it me aise Need" Roa Yard tVh ee 62 C.L.R.] OF AUSTRALIA.

THE SOUTH-EASTERN DRAINAGE BOARD

(HIGH COURT OF AUSTRALIA.]

(SOUTH AUSTRALIA) a NETUGESEG

DrvenDanrt, AND

THE SAVINGS BANK OF SOUTH AUSTRALIA Responpenr.

PLAINTIFF,

ON APPEAL FROM THE SUPREME COURT OF SOUTH AUSTRALIA.

Torrens System—Priority—Registered mortgage—Statutory first charge—Colonial H.C, or A.

Laws Validity Act 1865 (28 & 29 Vict. c, 63), sec. 5—Real Properly Act 1886 (S.A.) (No. 380), secs..6, 69, 70—South-Eastern Drainage Amendment Act 1900 (S.4.) (No. 737), sec. 14—South-Bastern Drainage Act 1931 (S.A.) (No. 2062), sec, 66.

Althongh not notified on the certificate of title, the first charges on Torrens- system land created by the South-Hastern Drainage Acts (S.A.) in respect of construction costs and maintenance rates take priority over a mortgage granted by the registered proprietor and registered on the certificate of title, whether the mortgage was granted and registered before or after the charges came into existence, and notwithstanding that the mortgagee took the mortgage bona fide on the faith of the register.

Hence, where a holder of land under the Torrens system which was benefited by a drainage scheme duly undertaken by the South-Eastern Drainage Board, and its predecessor, owed money to the board for construction costs and annual rates which by the South-Eastern Drainage Acts are made first charges on the land and, after the creation of the charge in respect of construction costs but prior to that in respect of annual rates, granted a mortgage which was duly registered upon the certificate of title: Held that the statutory charges were on the totality of interests in the land and took priority over the registered mortgage.