Lapin v Abigail [1930] HCA 6

Lapin v Abigail [1930] HCA 6

An unregistered equitable mortgagee does not gain priority over a prior equitable right merely by dealing with the registered proprietor; only act or omission by holder of prior equity that induced or misled subsequent party warrants postponement. Failure to caveat does not cause loss of priority absent evidence respondent searched or relied on register. Sec. 43 of Real Property Act applies only to registered dealings. Respondent not proved to be a money-lender within statutory meaning. Respondent entitled to inquiry to determine whether sums advanced discharged prior bank mortgage and thus, pro tanto, entitled to equitable charge.

Parties
Appellant: Mark Lapin; Appellant: Pearl Lapin; Respondent: Olivia Sophia Heavener; Respondent: Bertram Theodore Heavener; Respondent: Ernest Robert Abigail; Respondent: Alexander McKeachie; Respondent: Lazarus Harris; Respondent: Registrar-General
Jurisdiction
Australia
Procedural Posture
Equity Suit / Appeal From Decree of Full Court, Supreme Court of New South Wales; High Court Judgment
Legal Topics
Priority of Equitable Interests, Land Title Registration, Estoppel, Negligence, Money Lending Regulation
Property Law Equity Priority of Equitable Interests Land Title Registration Estoppel Negligence Money Lending Regulation

Case Brief

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Parties

Mark Lapin

Appellant

Pearl Lapin

Appellant

Olivia Sophia Heavener

Respondent

Bertram Theodore Heavener

Respondent

Ernest Robert Abigail

Respondent

Alexander McKeachie

Respondent

Lazarus Harris

Respondent

Registrar-General

Respondent

Procedural Posture

Equity Suit / Appeal From Decree of Full Court, Supreme Court of New South Wales; High Court Judgment

Legal Issues

  1. 1 Whether priority of equitable interests is lost by failure to caveat or other conduct
  2. 2 Applicability of Real Property Act s.43 to unregistered mortgage
  3. 3 Whether respondent was a money-lender under Money-lenders and Infants Loans Act 1905

Ratio Decidendi

An unregistered equitable mortgagee does not gain priority over a prior equitable right merely by dealing with the registered proprietor; only act or omission by holder of prior equity that induced or misled subsequent party warrants postponement. Failure to caveat does not cause loss of priority absent evidence respondent searched or relied on register. Sec. 43 of Real Property Act applies only to registered dealings. Respondent not proved to be a money-lender within statutory meaning. Respondent entitled to inquiry to determine whether sums advanced discharged prior bank mortgage and thus, pro tanto, entitled to equitable charge.