Perpetual Executors and Trustees Association of Australia Limited v Hosken [1912] HCA 31

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(HIGH COURT OF AUSTRALIA.)

THE PERPETUAL EXECUTORS AND TRUS- TEES ASSOCIATION OF AUSTRALIA | Appetiants; — LIMITED . : 3 z s ¢

AND HOSKEN (REGISTRAR OF TITLES) . . RESPONDENT.

ON APPEAL FROM THE SUPREME COURT OF VICTORIA.

H.C. or A, Mortgage—Kegistration—Instrument containing guarantee by third parties—Refusal

1912. of Registrar to register— Remedy of Mortgage —Mandamus—Transfer of Land ~~ Act 1890 (Vict.) (No. 1149), sees. 113, 209, 240, 12th Schedule. Mrtpourne, aha ba 'The Registrar of Titles is not justified in refusing to register a mortgage, sda otherwise in the ordinary statutory form, of land under the /'ransfer of Land Act 1890, on the ground that there is added to it a covenant by persons not Griffith C.J., = . Baton ced parties to the mortgage guaranteeing repayment of the mortgage money. Isaacs JJ.

Where the Registrar improperly refuses to register a mortgage the mort- gagee has a remedy by mandamus to compel registration, notwithstanding that right is specifically given by the Transfer of Land Act 1890 by sec. 209 to the owner or the proprietor of the land to summon the Registrar to sub- stantiate the grounds of his refusal before the Supreme Court.

Decision of the Supreme Court of Victoria: R. v. Hosken; Hx parte Per- petnal Bxecntora and Trustees Association of Australia Ltd. (1912) V.L.R., 45 33 A.L.T., 76, reversed.

Apprat from the Supreme Court of Victoria.

By instrument of mortgage dated 8th May 1911, John Dickson Love and Elizabeth Wilson, executor and executrix of the will of Charles William Wilson, deceased, mortgaged to the Perpetual Executors and Trustees Association of Australia Ltd. certain land under the Trunsfer of Land Act 1890, The instrument con- tained the ordinary covenants and also the following clause :—