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This is a Bill, not an Act. For current law, see the Acts databases.


REAL PROPERTY AMENDMENT (ELECTRONIC CONVEYANCING) BILL 2015





                                     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



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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.




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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.



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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.




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                                                                  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




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                                 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




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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




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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




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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




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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




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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




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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




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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




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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



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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




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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




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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




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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




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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




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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




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