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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales Real Property Amendment (Electronic Conveyancing) Bill 2015 Explanatory note This explanatory note relates to this Bill as introduced into Parliament. Overview of Bill The objects of this Bill are: (a) to amend the Real Property Act 1900: (i) to enable the Registrar-General to make rules (called the conveyancing rules) for or with respect to the preparation and lodgment of paper documents to give effect to conveyancing transactions under the Act, and (ii) to enable a person who is involved in a conveyancing transaction under the Act to give a client authorisation to a representative to enable the representative to do things on the person's behalf in connection with the transaction, and (iii) to consolidate and standardise the provisions of the Act concerning the certification of the correctness of certain conveyancing transactions (whether conducted in paper or electronic form), and (iv) to provide that certain paper conveyancing documents that are required under the Act to be executed or witnessed can be certified or authenticated by such other means as may be provided by the conveyancing rules, and (v) to enable a person who intends to lodge a dealing to give effect to a legal or equitable interest in land claimed by the person to lodge a priority notice to prevent the Registrar-General from recording certain other dealings concerning the land for a limited period pending the lodgment of the proposed dealing for registration, and (vi) to enable the Registrar-General to cease to issue certificates of title on and from a day to be declared by the Registrar-General by order published in the Gazette and to b2014-109-94.d14 Real Property Amendment (Electronic Conveyancing) Bill 2015 [NSW] Explanatory note confirm that, before that day, the Registrar-General may cease to issue certificates of title on a staged basis, and (vii) to provide that, after certificates of title are no longer issued, the Registrar-General may rely on either paper or electronic consents for certain conveyancing transactions given by the person who is recorded in the Register as having control of the right to deal in the land concerned, and (viii) to enable the Registrar-General to designate certain persons employed in the Public Service to be Deputy Registrars-General and to provide for their functions, and (ix) to enable an Australian address to be specified as an address for service in a caveat lodged under the Act, and (b) to make consequential amendments to the Interpretation Act 1987 and Real Property Regulation 2014. Outline of provisions Clause 1 sets out the name (also called the short title) of the proposed Act. Clause 2 provides for the commencement of the proposed Act. Schedule 1 Amendment of Real Property Act 1900 No 25 1.1 Amendments concerning conveyancing rules Schedule 1.1 amends the Real Property Act 1900 (the principal Act): (a) to enable the Registrar-General to make rules (called the conveyancing rules) for or with respect to the preparation and lodgment of paper documents to give effect to conveyancing transactions under the Act, and (b) to define the term conveyancing transaction for this purpose in a manner consistent with the Electronic Conveyancing National Law (NSW). 1.2 Amendments concerning client authorisations Schedule 1.2 amends the principal Act: (a) to enable a law practice or licensed conveyancer to be authorised by a person under a client authorisation to carry out certain transactions on the person's behalf for the purposes of the principal Act, and (b) to define the term authorised representative for this purpose, and (c) to provide for the effect of signatures under a client authorisation (and the repudiation of such signatures). The provisions to be inserted are modelled on those in the Electronic Conveyancing National Law (NSW) and they also provide that a client authorisation under that Law can also have effect as a client authorisation under the principal Act. 1.3 Amendment concerning certifications of correctness Schedule 1.3 amends the principal Act to consolidate the provisions of sections 117 and 117A into one section concerning the certification of the correctness of certain conveyancing transactions (whether conducted in paper or electronic form). 1.4 Amendment concerning execution and attestation Schedule 1.4 amends the principal Act to provide that certain paper conveyancing documents that are required to be executed or witnessed under the principal Act can be certified or authenticated by such other means as may be provided by the conveyancing rules. Page 2 Real Property Amendment (Electronic Conveyancing) Bill 2015 [NSW] Explanatory note 1.5 Amendments concerning priority notices Schedule 1.5 amends the principal Act to insert a new Part 7B that deals with priority notices. The new Part will enable a person who intends to lodge a dealing to give effect to a legal or equitable interest in land claimed by the person to lodge a priority notice. The lodgment of a priority notice will reserve the priority of the dealings specified in the notice by preventing the Registrar-General from registering certain other dealings and plans concerning the land for a limited period (initially 60 days, with the possibility of an extension to 90 days) pending the lodgment of the proposed dealings for registration. The new Part also provides for the following: (a) interpretative provisions (see proposed section 74S), (b) requirements with respect to the lodgment of priority notices (see proposed section 74T), (c) the recording, and removal of such recordings, in the Register under the Act by the Registrar-General (see proposed sections 74U and 74X (2)), (d) the circumstances when priority notices cease to have effect (see proposed section 74V), (e) the effect of priority notices (see proposed section 74W), (f) the withdrawal of priority notices by persons lodging such notices, whether voluntarily or by order of the Supreme Court (see proposed sections 74X (1) and 74Y), (g) the liability to pay compensation for pecuniary loss in connection with the lodgment of, or the refusal or failure to withdraw, priority notices where there has been no reasonable cause for the lodgment or the refusal or failure to withdraw (see proposed section 74Z). Schedule 1.5 also makes a number of amendments to the principal Act that are consequential on the creation of priority notices. 1.6 Amendments concerning certificates of title and consents Schedule 1.6 amends the principal Act: (a) to enable the Registrar-General to cease to issue certificates of title on and from a day to be declared by the Registrar-General by order published in the Gazette, and (b) to enable consents to certain conveyancing transactions involving land for which there is no certificate of title to be given in either paper or electronic form once certificates of title can no longer be issued, and (c) to confirm that, before that day, the Registrar-General may cease to issue certificates of titles to particular classes of persons on a staged basis under section 33AA of the principal Act. 1.7 Amendments concerning Registrar-General and Deputy Registrars-General Schedule 1.7 amends the principal Act: (a) to insert a definition of Registrar-General in the Act, and (b) to enable the Registrar-General to designate certain persons employed in the Public Service to be Deputy Registrars-General or the Senior Deputy Registrar-General, and (c) to provide for the circumstances in which a Deputy Registrar-General may act as the Registrar-General when there is no Registrar-General or the Registrar-General is absent from duty, and (d) to provide for the functions of Deputy Registrars-General (including the delegation to them of functions of the Registrar-General by the Registrar-General). 1.8 Amendments concerning service of notices on caveators Schedule 1.8 amends the principal Act to enable an Australian address to be specified as an address for service in a caveat lodged under the principal Act. Page 3 Real Property Amendment (Electronic Conveyancing) Bill 2015 [NSW] Explanatory note Schedule 2 Consequential amendment of other legislation Schedule 2.1 substitutes the definition of Registrar-General in the Interpretation Act 1987 with a definition that is consistent with the definition to be inserted by Schedule 1.7. Schedule 2.2 makes an amendment to the Real Property Regulation 2014 that is consequential on the amendment made by Schedule 1.3. Page 4 First print New South Wales Real Property Amendment (Electronic Conveyancing) Bill 2015 Contents Page 1 Name of Act 2 2 Commencement 2 Schedule 1 Amendment of Real Property Act 1900 No 25 3 Schedule 2 Consequential amendment of other legislation 16 b2014-109-94.d14 New South Wales Real Property Amendment (Electronic Conveyancing) Bill 2015 No , 2015 A Bill for An Act to amend the Real Property Act 1900 to make provision for the alignment of paper and electronic conveyancing practices and to facilitate the adoption of electronic conveyancing practices; and to make consequential amendments to certain other legislation. Real Property Amendment (Electronic Conveyancing) Bill 2015 [NSW] The Legislature of New South Wales enacts: 1 1 Name of Act 2 This Act is the Real Property Amendment (Electronic Conveyancing) Act 2015. 3 2 Commencement 4 (1) This Act commences on a day or days to be appointed by proclamation, except as 5 otherwise provided by this section. 6 (2) Schedules 1.6 [3] and [4], 1.7 and 2.1 commence on the date of assent to this Act. 7 (3) Schedule 2.2 commences on the day on which Schedule 1.3 commences. 8 Page 2 Real Property Amendment (Electronic Conveyancing) Bill 2015 [NSW] Schedule 1 Amendment of Real Property Act 1900 No 25 Schedule 1 Amendment of Real Property Act 1900 No 25 1 1.1 Amendments concerning conveyancing rules 2 [1] Section 3 Definitions 3 Insert in alphabetical order in section 3 (1) (a): 4 Conveyancing rules--The rules determined by the Registrar-General under 5 section 12E. 6 Conveyancing transaction--A conveyancing transaction within the meaning 7 of the Electronic Conveyancing National Law (NSW) to which this Act 8 applies. 9 [2] Section 12E 10 Insert after section 12D: 11 12E Conveyancing rules 12 (1) Making of conveyancing rules 13 The Registrar-General may from time to time determine, in writing, rules for 14 or with respect to the preparation and lodgment otherwise than electronically 15 of paper documents to give effect to conveyancing transactions (the 16 conveyancing rules), including rules for or with respect to the following: 17 (a) the verification of identity and authority, including: 18 (i) the standards to which identity and authority are to be verified, 19 and 20 (ii) the classes of persons in respect of whom identity and authority 21 are to be verified, and 22 (iii) the classes of paper documents in relation to which verification 23 of identity and authority requirements apply, and 24 (iv) the classes of persons who can undertake verification of identity 25 and authority, and 26 (v) any supporting evidence and retention requirements, 27 (b) client authorisations, including: 28 (i) the form of a client authorisation, and 29 (ii) the classes of paper documents to which a client authorisation 30 applies, and 31 (iii) any supporting evidence and retention requirements, 32 (c) matters to be certified, or relating to the certification of matters, for the 33 purposes of paper documents, including: 34 (i) the form of certifications, and 35 (ii) the classes of persons who may certify those matters, and 36 (iii) any supporting evidence and retention requirements, 37 (d) the retention of documents supporting or authenticating paper 38 documents generally, including periods of retention, 39 (e) the classes of conveyancing transactions that must be lodged using an 40 Electronic Lodgment Network instead of by means of paper documents, 41 (f) the obligations of persons lodging paper documents (including 42 warranties and representations), 43 Page 3 Real Property Amendment (Electronic Conveyancing) Bill 2015 [NSW] Schedule 1 Amendment of Real Property Act 1900 No 25 (g) the execution and attestation of paper documents that give effect to 1 conveyancing transactions (including providing for certification, 2 authentication or other alternatives to execution or attestation to prove 3 or establish such transactions), 4 (h) any other matter that by this Act or the regulations is required or 5 permitted to be dealt with by the conveyancing rules. 6 (2) Publication of conveyancing rules 7 The Registrar-General must ensure that the following are publicly available: 8 (a) the current conveyancing rules, 9 (b) all superseded versions of the conveyancing rules. 10 (3) The conveyancing rules, and any changes to them, must be made publicly 11 available at least 20 business days before the conveyancing rules or, as the case 12 requires, the changes take effect. 13 (4) However, changes to the conveyancing rules may take effect within a shorter 14 period (including immediately on being made publicly available), if the 15 Registrar-General is satisfied that the changes need to take effect urgently 16 because an emergency situation exists. 17 (5) For the purposes of subsection (4), an emergency situation exists if the 18 Registrar-General considers that, because of the occurrence of an event or the 19 existence of particular circumstances, the operation, security, integrity or 20 stability of an Electronic Lodgment Network or the Register or the land titles 21 system is being, or is likely to be, jeopardised. 22 (6) Documents may be made publicly available in accordance with this section in 23 any manner the Registrar-General considers appropriate, including (without 24 limitation) by means of a website. 25 (7) It is sufficient compliance with subsection (2) (b) if a superseded version of 26 the conveyancing rules (other than the most recently superseded version) is 27 publicly available only on request made to the Registrar-General. 28 (8) Compliance with conveyancing rules 29 A person lodging a paper document giving effect to a conveyancing 30 transaction must comply with the conveyancing rules. 31 (9) The Registrar-General: 32 (a) may refuse to accept or register, or may reject, a conveyancing 33 transaction that does not comply with the requirements of the 34 conveyancing rules relating to the transaction, and 35 (b) if the Registrar-General is satisfied that a person has contravened the 36 conveyancing rules--may do either or both of the following: 37 (i) suspend any right or other entitlement of the person to lodge 38 documents giving effect to conveyancing transactions, for a 39 period not exceeding 21 days, for a particular contravention, 40 (ii) impose such conditions on any right or other entitlement of the 41 person to lodge documents giving effect to conveyancing 42 transactions as the Registrar-General considers appropriate so as 43 to prevent further contraventions. 44 (10) The Registrar-General may waive compliance with all or any provisions of the 45 conveyancing rules if the Registrar-General is satisfied that granting the 46 waiver is reasonable in all the circumstances. 47 Page 4 Real Property Amendment (Electronic Conveyancing) Bill 2015 [NSW] Schedule 1 Amendment of Real Property Act 1900 No 25 (11) A waiver under subsection (10) may: 1 (a) be total or partial, and 2 (b) apply generally to all persons or conveyancing transactions, or be 3 limited in its application to particular persons or conveyancing 4 transactions or particular classes of persons or conveyancing 5 transactions, and 6 (c) apply generally or be limited in its application by reference to specified 7 exceptions or factors, and 8 (d) apply indefinitely or for a specified period, and 9 (e) be unconditional or subject to conditions or restrictions. 10 (12) Effect on other legislative provisions 11 Nothing in this section limits any other power conferred on the 12 Registrar-General by another provision of this Part or any other Act. 13 1.2 Amendments concerning client authorisations 14 [1] Section 3 Definitions 15 Insert in alphabetical order in section 3 (1) (a): 16 Authorised representative--A law practice or licensed conveyancer (or firm 17 of licensed conveyancers) authorised under a client authorisation to represent 18 a party to a conveyancing transaction in connection with the execution or 19 lodgment of documents that give effect to that transaction. 20 Client authorisation--A client authorisation as defined by section 107. 21 Firm of licensed conveyancers--A firm of licensees within the meaning of the 22 Conveyancers Licensing Act 2003. 23 Law practice--A law practice within the meaning of the Legal Profession 24 Act 2004. 25 [2] Sections 107 and 108 26 Insert after section 106: 27 107 Client authorisations 28 (1) For the purposes of this Act, a client authorisation is a document: 29 (a) that is in the form required by the conveyancing rules, and 30 (b) by which a party to a conveyancing transaction authorises a law practice 31 or licensed conveyancer (or firm of licensed conveyancers) to do one or 32 more things on the party's behalf in connection with the transaction. 33 (2) Without limiting subsection (1) (b), a client authorisation may authorise the 34 authorised representative to do any of the following: 35 (a) sign documents giving effect to conveyancing transactions on behalf of 36 a person being represented, 37 (b) present documents giving effect to conveyancing transactions for 38 lodgment, 39 (c) authorise or complete any associated financial transaction. 40 Page 5 Real Property Amendment (Electronic Conveyancing) Bill 2015 [NSW] Schedule 1 Amendment of Real Property Act 1900 No 25 (3) A properly completed client authorisation: 1 (a) has effect according to its terms, and 2 (b) is not a power of attorney for the purposes of any other law relating to 3 powers of attorney. 4 (4) If a document is signed on a person's behalf by an authorised associate of the 5 authorised representative under a properly completed client authorisation, the 6 requirements of this Act, the regulations or any other law relating to the 7 execution, signing, witnessing, attestation or sealing of documents of that kind 8 are taken to have been fully satisfied. 9 Note. See also section 108 (Reliance on, and repudiation of, signatures). 10 (5) A client authorisation in force for the purposes of the Electronic Conveyancing 11 National Law (NSW) is taken to be a client authorisation for the purposes of 12 this section, unless it expressly provides otherwise. 13 (6) This section does not limit or affect the application of any law relating to 14 powers of attorney in relation to: 15 (a) the execution of client authorisations under a power of attorney, or 16 (b) a client authorisation executed under a power of attorney. 17 (7) This section has effect subject to any limitations or other restrictions specified 18 by the conveyancing rules with respect to client authorisations. 19 (8) In this section: 20 authorised associate of an authorised representative, in relation to the signing 21 of a document, means: 22 (a) if the authorised representative is a law practice--a legal practitioner 23 associate (within the meaning of the Legal Profession Act 2004) of the 24 practice authorised to sign the document for the practice, and 25 (b) if the authorised representative is a licensed conveyancer who is a sole 26 conveyancer--the licensed conveyancer or another licensed 27 conveyancer who is an employee of, or consultant to, the licensed 28 conveyancer authorised to sign the document for the licensed 29 conveyancer, and 30 (c) if the authorised representative is a firm of licensed conveyancers--a 31 member or employee of, or a consultant to, the firm who is a licensed 32 conveyancer authorised to sign the document for the firm, and 33 (d) if the authorised representative is a licensed conveyancer that is a 34 corporation--a director or employee of, or consultant to, the 35 corporation who is a licensed conveyancer authorised to sign the 36 document for the corporation. 37 108 Reliance on, and repudiation of, signatures 38 (1) This section has effect subject to such modifications (if any) as may be 39 prescribed by the regulations. 40 (2) Subject to subsection (3), if a relevant person signs a paper document giving 41 effect to a conveyancing transaction: 42 (a) the signature is binding, in relation to that document, on: 43 (i) the relevant person, and 44 (ii) any person for whom the relevant person acts under a client 45 authorisation with respect to that document, and 46 Page 6 Real Property Amendment (Electronic Conveyancing) Bill 2015 [NSW] Schedule 1 Amendment of Real Property Act 1900 No 25 (b) the signature is binding, in relation to that document, for the benefit of: 1 (i) each of the parties to that document, and 2 (ii) each authorised representative who acts under a client 3 authorisation with respect to that document, and 4 (iii) any person claiming through or under any person to whom 5 subparagraph (i) applies, and 6 (iv) the Registrar-General, once the document is lodged. 7 (3) A relevant person may repudiate the signature with respect to a paper 8 document giving effect to a conveyancing transaction if the relevant person 9 establishes: 10 (a) that the signature was not the relevant person's signature, and 11 (b) that the signature was not the signature of a person who, at the time of 12 signing the paper document: 13 (i) was an employee, agent, contractor or officer of the relevant 14 person, and 15 (ii) had the relevant person's express or implied authority to sign any 16 document, and 17 (c) that neither of the following enabled the signing of the paper document: 18 (i) a failure of the relevant person, or any of the relevant person's 19 employees, agents, contractors or officers, to fully comply with 20 the requirements of the conveyancing rules, 21 (ii) a failure by the relevant person, or any of the relevant person's 22 employees, agents, contractors or officers, to take reasonable 23 care. 24 (4) For the purposes of subsection (3) (b) (ii), it does not matter whether the 25 authority was: 26 (a) general, or 27 (b) limited or restricted to documents of a particular class or to a particular 28 document or in any other way. 29 (5) In this section: 30 modification includes addition, exception, omission or substitution. 31 relevant person means an Australian legal practitioner or licensed 32 conveyancer who signs a paper document giving effect to a conveyancing 33 transaction under the authority (or purportedly under the authority) of a client 34 authorisation. 35 1.3 Amendment concerning certifications of correctness 36 Section 117 37 Omit sections 117 and 117A. Insert instead: 38 117 Certificate of correctness 39 (1) The Registrar-General may reject, or may refuse to accept or to take any action 40 in relation to, any primary application, dealing, caveat or priority notice unless 41 it is certified: 42 (a) if it is lodged in electronic form by means of an Electronic Lodgment 43 Network--in accordance with the participation rules made under the 44 Electronic Conveyancing National Law (NSW), or 45 Page 7 Real Property Amendment (Electronic Conveyancing) Bill 2015 [NSW] Schedule 1 Amendment of Real Property Act 1900 No 25 (b) if it is lodged in paper form--in accordance with the conveyancing 1 rules. 2 (2) The Registrar-General may reject, or may refuse to accept or to take any action 3 in relation to, any dealing accompanied by a notice (in accordance with 4 section 39 (1B)) unless: 5 (a) in the case of any dealing accompanied by a notice that is lodged by 6 means of an Electronic Lodgment Network--the dealing is 7 accompanied by a certificate in electronic form to the effect that the 8 notice has been lodged electronically in a form and in the manner 9 approved by the Registrar-General and the notice is correct for the 10 purposes of this Act, and 11 (b) in the case of a notice lodged electronically (other than through an 12 Electronic Lodgment Network)--the dealing is accompanied by a 13 certification to the effect that the notice has been lodged electronically 14 in a form and in the manner approved by the Registrar-General and that 15 the notice is correct for the purposes of this Act, and 16 (c) in any other case--the notice bears a certificate in the form required by 17 the conveyancing rules to the effect that the notice is correct for the 18 purposes of this Act. 19 Note. The notice referred to in section 39 (1B) is a notice of the sale or transfer of land. 20 (3) A certificate referred to in subsection (2) must be signed (or, in the case of an 21 electronic certificate, digitally signed) by: 22 (a) the person lodging the dealing, or 23 (b) a party to the dealing, or 24 (c) a solicitor or agent acting for the person lodging, or a party to, the 25 dealing. 26 (4) A person must not falsely or negligently certify to the correctness of any 27 application, dealing, caveat or notice referred to in this section. 28 Maximum penalty: 10 penalty units. 29 (5) The conviction of a person under subsection (4) does not prevent a person who 30 may have sustained any damage or loss in consequence of an error or mistake 31 in any such certified application, dealing or caveat from recovering damages 32 against the person certifying. 33 1.4 Amendment concerning execution and attestation 34 Section 3 Definitions 35 Insert after section 3 (1) (f): 36 (g) A reference to a dealing, caveat, priority notice, instrument or other 37 document that is in paper form being duly executed or witnessed 38 includes a reference to it being certified or otherwise authenticated in 39 accordance with the conveyancing rules. 40 Note. See also sections 107 (4) and 108 with respect to the effect of the signing 41 of documents under the authority or purported authority of client authorisations. 42 Page 8 Real Property Amendment (Electronic Conveyancing) Bill 2015 [NSW] Schedule 1 Amendment of Real Property Act 1900 No 25 1.5 Amendments concerning priority notices 1 [1] Section 3 Definitions 2 Omit "or caveat" from the definition of Dealing in section 3 (1) (a). 3 Insert instead ", caveat or priority notice". 4 [2] Section 3 (1) (a) 5 Insert in alphabetical order: 6 Priority notice--A priority notice under Part 7B. 7 [3] Section 36 Lodgment and registration of documents 8 Omit "or caveat" wherever occurring in section 36 (1A)-(2). 9 Insert instead ", caveat or priority notice". 10 [4] Section 36 (3) 11 Insert ", priority notice" after "caveat" wherever occurring. 12 [5] Section 39 Treatment of dealings that do not comply with requirements 13 Omit "or caveat" wherever occurring in section 39 (1A). 14 Insert instead ", caveat or priority notice". 15 [6] Section 57 Procedure on default 16 Insert after section 57 (2) (b1) (ii): 17 (iii) each person (if any) who has lodged a priority notice and claims 18 as an unregistered mortgagee or chargee to be entitled to an estate 19 or interest in the land mortgaged or charged, and 20 [7] Section 61 Application for foreclosure order 21 Insert at the end of section 61 (1A) (c): 22 , and 23 (d) each person (if any) who has lodged a priority notice and claims as an 24 unregistered mortgagee or chargee to be entitled to an estate or interest 25 in the land mortgaged or charged. 26 [8] Part 7B 27 Insert after Part 7A: 28 Part 7B Priority notices 29 74S Interpretation 30 (1) In this Part: 31 registrable form, in relation to a dealing, means that the dealing is in 32 registrable form for the purposes of section 36. 33 (2) In this Part, a reference to a legal or equitable estate in land includes a 34 reference to a subsisting interest in land within the meaning of section 28A. 35 Page 9 Real Property Amendment (Electronic Conveyancing) Bill 2015 [NSW] Schedule 1 Amendment of Real Property Act 1900 No 25 74T Lodgment of priority notices 1 (1) A person who intends to lodge a dealing to give effect to an entitlement to a 2 legal or equitable estate or interest in land claimed by the person may lodge a 3 priority notice with the Registrar-General with respect to the proposed dealing 4 and any associated dealings (for example, a mortgage created over land that 5 has been sold). 6 (2) A priority notice must be in the approved form and lodged in the manner 7 approved by the Registrar-General. 8 (3) A person who has lodged a priority notice with respect to a proposed dealing 9 cannot lodge another priority notice with respect to the same dealing unless all 10 previous notices with respect to that dealing are withdrawn or have otherwise 11 ceased to have effect. 12 Note. Previous priority notices may be withdrawn for the purposes of this subsection at 13 the same time that the new priority notice is lodged. 14 (4) If a priority notice is in the approved form, the Registrar-General may accept 15 lodgment of the priority notice as sufficient evidence that the person who 16 lodged the priority notice, or who had the priority notice lodged on the 17 person's behalf, is entitled to lodge the priority notice. 18 (5) Without limiting subsection (4), the Registrar-General may require a person 19 who lodges a priority notice to provide, within a reasonable period specified 20 by the Registrar-General, such evidence as the Registrar-General may require 21 relating to the person's entitlement to lodge the notice or the intended timing 22 for the lodgment of a dealing to which the notice relates. 23 Note. The Registrar-General may remove a recording of a priority notice under 24 section 74X (2) if evidence that is required under this subsection is not provided. 25 (6) The Registrar-General is not required to give any person notice of the 26 lodgment or recording in the Register of a priority notice. 27 74U Registrar-General to enter particulars of priority notice lodged under this Part 28 For the purpose only of acknowledging the receipt of a priority notice lodged 29 under this Part, the Registrar-General must, if satisfied that the notice complies 30 with the requirements made in respect of it by and under this Act, record in the 31 Register such particulars of the notice as the Registrar-General considers 32 appropriate (including its current expiry date). 33 74V Period during which priority notice has effect 34 (1) The period during which a priority notice has effect is: 35 (a) 60 days from the date of its lodgment, or 36 (b) if that period is extended under this section--90 days from the date of 37 its lodgment. 38 (2) However, a priority notice ceases to have effect before the expiry of its period 39 of duration if: 40 (a) the notice is withdrawn before that expiry, or 41 (b) the dealing or dealings to which the notice relates are lodged before that 42 expiry and the dealing or dealings are registered, withdrawn or rejected 43 by the Registrar-General, or 44 (c) the notice lapses because of the operation of section 74Y (3) before that 45 expiry, or 46 (d) the Registrar-General has removed the recording of the priority notice 47 under section 74X (2) (b), (c) or (d) before that expiry. 48 Page 10 Real Property Amendment (Electronic Conveyancing) Bill 2015 [NSW] Schedule 1 Amendment of Real Property Act 1900 No 25 (3) A person who has lodged a priority notice may apply to the Registrar-General, 1 in the approved form and manner, for an extension of the period of a priority 2 notice by a single additional period of 30 days. 3 (4) The Registrar-General is to grant an extension if the application is duly made 4 before the expiry of the initial 60-day period. 5 (5) If more than one priority notice is lodged with respect to the same land, the 6 period during which each notice has effect is to be determined by reference to 7 the lodgment date for the notice concerned. 8 74W Effect of priority notice 9 (1) While a priority notice has effect with respect to a proposed dealing to give 10 effect to an entitlement to an estate or interest in land, the Registrar-General 11 must not, without the consent of the person who lodged the notice, register: 12 (a) any dealing on the folio of the Register for the land, or 13 (b) any plan (including a plan to which section 88B of the Conveyancing 14 Act 1919 applies) relating to the land. 15 (2) Despite subsection (1), the lodgment of a priority notice does not prevent the 16 Registrar-General from registering any of the following in the Register: 17 (a) a dealing in registrable form that was lodged before the notice, 18 (b) the dealing or dealings to which the notice relates, 19 (c) a caveat or the withdrawal or lapsing of a caveat, 20 (d) a vesting or dealing effected in accordance with an order of a court or a 21 provision of a law of this State or the Commonwealth, 22 (e) an application made under section 93 by an executor, administrator or 23 trustee in respect of the estate or interest of a deceased registered 24 proprietor, 25 (f) an application under section 12 of the Trustee Act 1925 or an order of a 26 court or dealing which, in the opinion of the Registrar-General, effects 27 or evidences a replacement of existing trustees or the appointment of 28 new or additional trustees, 29 (g) an application under section 101, 30 (h) in relation to a mortgage, charge or covenant charge recorded or lodged 31 in registrable form before the lodgment of the notice--a dealing 32 effected by the mortgagee, chargee or covenant chargee in the exercise 33 of a power of sale or other power or a right conferred by the mortgage, 34 charge or covenant charge or by or under law, 35 (i) in relation to a lease recorded or lodged in registrable form before the 36 lodgment of the notice--a dealing effected by the lessee pursuant to a 37 right conferred by the lease or by or under law. 38 Note. In addition to the matters referred to in this subsection, the Registrar-General is 39 not prevented from taking action with respect to any other matters that are not dealings 40 or plans referred to in subsection (1). 41 (3) If it appears to the Registrar-General that a dealing lodged during the period in 42 which a priority notice has effect is a dealing to which the notice relates, the 43 Registrar-General may: 44 (a) record the dealing in the Register if satisfied that the dealing is a dealing 45 to which the notice relates, or 46 Page 11 Real Property Amendment (Electronic Conveyancing) Bill 2015 [NSW] Schedule 1 Amendment of Real Property Act 1900 No 25 (b) request the parties to the dealing to provide such further information as 1 the Registrar-General may require to assist in determining whether the 2 dealing is a dealing to which the notice relates. 3 74X Withdrawal and removal of priority notice 4 (1) Each of the following persons may withdraw a priority notice, in the approved 5 form and in the manner approved by the Registrar-General, at any time before 6 a priority notice ceases to have effect: 7 (a) the person who has lodged a priority notice or whose proposed dealing 8 is protected by the notice, 9 (b) an Australian legal practitioner or licensed conveyancer who is 10 representing that person. 11 (2) The Registrar-General may remove a recording in the Register of a priority 12 notice if the Registrar-General is satisfied that: 13 (a) the notice has ceased to have effect, or 14 (b) the notice does not relate to the land to which the notice purports to 15 relate, or 16 (c) the dealing or dealings to which the notice relates are unlikely to be 17 lodged or recorded in the Register before the notice ceases to have 18 effect, or 19 (d) the person who lodged the notice has not provided evidence required by 20 the Registrar-General under section 74T (5) within the period specified 21 by the Registrar-General. 22 74Y Application to Supreme Court for withdrawal of priority notice 23 (1) Any person who is or claims to be entitled to an estate or interest in the land 24 described in a priority notice may apply to the Supreme Court for an order that 25 the notice be withdrawn by the person who lodged it. 26 (2) If satisfied that it is appropriate to do so in the circumstances, the Supreme 27 Court may: 28 (a) order the person who lodged the priority notice to withdraw it, and 29 (b) make such other or further orders as it thinks fit. 30 (3) If the Supreme Court makes an order for the withdrawal of a priority notice 31 and the notice is not withdrawn within the period specified by the order, the 32 notice lapses when a copy of the order is lodged with the Registrar-General 33 after that time expires. 34 74Z Compensation payable in certain cases 35 (1) Any person who, without reasonable cause: 36 (a) lodges a priority notice, or 37 (b) refuses or fails to withdraw a priority notice after being requested to do 38 so, 39 is liable to pay compensation to any person who sustains pecuniary loss that is 40 attributable to the lodgment, refusal or failure. 41 (2) Such compensation is recoverable in proceedings taken in a court of 42 competent jurisdiction by the person who claims to have sustained the 43 pecuniary loss. 44 Page 12 Real Property Amendment (Electronic Conveyancing) Bill 2015 [NSW] Schedule 1 Amendment of Real Property Act 1900 No 25 [9] Section 96D Official search of computer folio 1 Insert "or priority notice" after "caveat" wherever occurring in section 96D (2) (b). 2 [10] Section 96E Searches to disclose recordings on mortgages etc 3 Insert "or priority notice" after "caveat" wherever occurring. 4 [11] Section 105A Effect of recording writ 5 Insert at the end of section 105A (1) (r): 6 , or 7 (s) a dealing to which a priority notice that has effect relates. 8 [12] Section 114 Registrar-General may require plan to be lodged 9 Omit "a caveat", "the caveat" and "or caveat" from section 114 (b). 10 Insert instead "a caveat or priority notice", "the caveat or priority notice" and ", caveat or 11 priority notice", respectively. 12 [13] Section 134 Torrens Assurance Fund 13 Omit "dealing, caveat or withdrawal of caveat" wherever occurring in section 134 (2) 14 and (4). 15 Insert instead "dealing, caveat or priority notice (or withdrawal of a caveat or priority 16 notice)". 17 1.6 Amendments concerning certificates of title and consents 18 [1] Section 33 Issue of certificates of title 19 Omit "Notwithstanding subsection (1) but subject to subsection (6), the Registrar-General 20 shall" from section 33 (5). 21 Insert instead "Without limiting subsection (1), the Registrar-General may". 22 [2] Section 33 (6) 23 Omit the subsection. 24 [3] Section 33AAA 25 Insert after section 33: 26 33AAA Cessation of issue of certificates of title 27 (1) The Registrar-General may, by order published in the Gazette, declare that the 28 Registrar-General will cease to issue certificates of title under this Act on a 29 specified day (the cessation day). 30 (2) The day specified as the cessation day under subsection (1) must be no earlier 31 than the first day after the end of the period of 3 months beginning with the 32 day on which the notice is published in the Gazette under that subsection. 33 (3) On and from the cessation day: 34 (a) the Registrar-General is no longer required to issue certificates of title 35 under this Act, and 36 (b) in relation to any land where a person (other than the registered 37 proprietor) has control of the right to deal in the land--the 38 Registrar-General may, if the Registrar-General considers it appropriate 39 Page 13 Real Property Amendment (Electronic Conveyancing) Bill 2015 [NSW] Schedule 1 Amendment of Real Property Act 1900 No 25 to do so, make an entry in the folio of the Register for the land, in such 1 form and manner as the Registrar-General considers appropriate, 2 indicating the name of the person who the Registrar-General considers 3 has control of the right to deal in the land, and 4 (c) a certificate of title previously issued has no force or effect for the 5 purposes of a statutory requirement for the lodgment or production of a 6 certificate of title that is imposed in connection with the registration of 7 a matter, and 8 (d) a statutory requirement for the lodgment or production of a certificate 9 of title that is imposed in connection with the registration of a matter is 10 taken to be satisfied by the person recorded in the Register as the person 11 having control of the right to deal in the land providing consent to the 12 registration of the matter. 13 (4) The consent referred to in subsection (3) (d) must: 14 (a) be provided in the approved form and in the manner approved by the 15 Registrar-General, and 16 (b) be signed (or, in the case of an electronic consent, digitally signed) by 17 or on behalf of the person who has control of the right to deal in the land. 18 (5) The Registrar-General may assume that a person having control of the right to 19 deal in the land who provides such consent to the registration of a matter has 20 all necessary authority to provide it or to withdraw it. 21 (6) This section applies despite any other provisions of this Act (including 22 sections 33-33AB) or any other law. 23 (7) In this section: 24 electronic consent means a consent contained in an electronic 25 communication. 26 statutory requirement means a requirement made by or under this or any other 27 Act. 28 [4] Section 33AA Non-issue of certificate of title 29 Insert after section 33AA (4): 30 (5) For the avoidance of doubt, the Registrar-General may make determinations 31 under this section with respect to the issue of certificates of title in connection 32 with both paper and electronic conveyancing transactions. 33 1.7 Amendments concerning Registrar-General and Deputy 34 Registrars-General 35 [1] Section 3 Definitions 36 Insert in alphabetical order in section 3 (1) (a): 37 Deputy Registrar-General--A member of staff of the Department who has 38 been designated under section 4B to be a Deputy Registrar-General. 39 Registrar-General--The person employed in the Public Service as the 40 Registrar-General. 41 [2] Section 4A Registrar-General--delegation and seal of office 42 Insert "Deputy Registrar-General or" after "to a" in section 4A (1). 43 Page 14 Real Property Amendment (Electronic Conveyancing) Bill 2015 [NSW] Schedule 1 Amendment of Real Property Act 1900 No 25 [3] Section 4B 1 Insert after section 4A: 2 4B Deputy Registrars-General 3 (1) The Registrar-General may, by instrument in writing, designate one or more 4 members of staff of the Department to be Deputy Registrars-General. 5 (2) If more than one Deputy Registrar-General is designated, the 6 Registrar-General may, in the instrument designating a person to be a Deputy 7 Registrar-General or by a subsequent instrument in writing, designate one of 8 the Deputy Registrars-General to be the Senior Deputy Registrar-General. 9 (3) A Deputy Registrar-General has such powers and functions as may be: 10 (a) assigned to the Deputy Registrar-General by the Registrar-General, and 11 (b) conferred or imposed on the Deputy Registrar-General by or under this 12 or any other Act. 13 (4) A Deputy Registrar-General is to exercise his or her powers and functions 14 (including delegated powers and functions of the Registrar-General) in 15 accordance with any directions given by the Registrar-General. 16 (5) If there is no Registrar-General or the Registrar-General is absent from his or 17 her duties: 18 (a) in the case where there is only one Deputy Registrar-General--the 19 Deputy Registrar-General may act as the Registrar-General, or 20 (b) in the case where there is more than one Deputy Registrar-General--the 21 Senior Deputy Registrar-General may act as the Registrar-General. 22 (6) A Deputy Registrar-General acting as the Registrar-General under 23 subsection (5) has the same powers and functions as the Registrar-General and 24 anything done by the Deputy Registrar-General in the exercise of those powers 25 and functions has same effect as if it had been done by the Registrar-General. 26 1.8 Amendments concerning service of notices on caveators 27 [1] Section 74B Lodgment of caveats against primary applications 28 Omit section 74B (2) (b) (vi). Insert instead: 29 (vi) an address in Australia at which notices may be served on the 30 caveator, 31 [2] Section 74F Lodgment of caveats against dealings, possessory applications, plans 32 and applications for cancellation of easements or extinguishment of restrictive 33 covenants 34 Omit section 74F (5) (b) (viii). Insert instead: 35 (viii) an address in Australia at which notices may be served on the 36 caveator, 37 Page 15 Real Property Amendment (Electronic Conveyancing) Bill 2015 [NSW] Schedule 2 Consequential amendment of other legislation Schedule 2 Consequential amendment of other legislation 1 2.1 Interpretation Act 1987 No 15 2 Section 21 Meanings of commonly used words and expressions 3 Omit the definition of Registrar-General from section 21 (1). Insert instead: 4 Registrar-General means the person employed in the Public Service as the 5 Registrar-General. 6 2.2 Real Property Regulation 2014 7 Clause 22 Ensuring identification by eligible witnesses 8 Omit the clause. 9 Page 16
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