Part 18The Assurance Fund

Part 18—The Assurance Fund 201—The Assurance Fund (1) There shall be a fund kept at the Treasury entitled Real Property Act Assurance Fund. (2) The Assurance Fund shall have credited to it— (a) any moneys advanced by the Treasurer under subsection (3) (not being moneys that have been repaid to the Treasurer in accordance with the terms of the advance); and (b) the moneys paid by way of assurance levy by virtue of the regulations; and (c) any interest that may from time to time accrue to the Fund. (3) The Treasurer may advance moneys to the Assurance Fund by way of grant, or on a temporary basis. (4) Moneys standing to the credit of the Assurance Fund shall be applied for the purposes of this Part, but if those moneys are not immediately required for the purposes of this Part, the Treasurer may advance the whole or part of those moneys to the Consolidated Account and, in that event— (a) if any payment is to be made from the Fund and the Balance of the Fund is insufficient to meet that payment, the advance shall be repaid to such extent as is necessary to supply the deficiency; and (b) any amount advanced to the Consolidated Account shall bear interest at the rate of 10 per centum per annum, or such other rate as may be prescribed. (5) The regulations may— (a) prescribe an assurance levy not exceeding the amount of Two dollars per instrument to be paid in addition to the fees, or particular classes of fees, payable in relation to the registration of any, or all, of the following instruments: (i) transfers on the sale of land under Part 10; (ii) leases and surrenders of leases under Part 11; (iii) mortgages and discharges of mortgage under Part 12; and (b) exempt prescribed persons, or persons of a prescribed class, from payment of the assurance levy. (6) The Registrar-General shall keep a separate account of all moneys received by him by way of assurance levy. (7) The regulations prescribing an assurance levy under this section shall expire on the thirty-first day of December, 1988, and thereafter an assurance levy shall not be payable by virtue of this Part. 203—Party deprived of land may sue for compensation Any person deprived of land in consequence of fraud, or through the bringing of such land under the provisions of this Act, or of any Act hereby repealed, or by the registration of any other person as proprietor of such land, or in consequence of any error, omission, or misdescription in any certificate, or in any entry or memorial in the Register Book, may bring and prosecute an action at law for the recovery of compensation against the person upon whose application such land was brought under the provisions of this Act, or of any Act hereby repealed, or such erroneous registration was made, or who acquired title to the land through such fraud, error, omission, or misdescription. 204—Exoneration of proprietor after transfer for value, except in certain cases Except in the case of fraud, or of error occasioned by any omission, misrepresentation, or misdescription in the application of such person to bring the land under the provisions of this Act, or of any of the Acts hereby repealed, or to be registered as proprietor of such land, or in any instrument executed by him, such person shall, upon a transfer of such land, bona fide for value, cease to be liable for the payment of any compensation which but for such transfer might have been recovered from him under the provisions herein contained. 205—Proceedings against the Registrar-General, as nominal defendant In any such case of cesser of liability, and also in any case where the person against whom such action for compensation is permitted to be brought as aforesaid shall be dead, or shall have become bankrupt or made a statutory assignment, or cannot be found within the jurisdiction of the Court or there is any other reason why compensation cannot be fully recovered from that person, it shall be lawful to take proceedings against the Registrar-General, as nominal defendant, as hereinafter provided, for the purpose of recovering the amount of the compensation or costs, or so much of that amount as cannot be recovered from the person referred to above, from the Assurance Fund. 207—Purchasers etc protected Nothing in this Act contained shall leave subject to action for recovery of compensation as aforesaid, or to action for recovery of possession of land, or to deprivation of the estate or interest in respect of which he is registered as proprietor, any transferee, mortgagee, encumbrancee, or lessee, bona fide for valuable consideration of land on the ground that the proprietor, through or under whom he claims, or any previous proprietor has been registered as proprietor through fraud or error, whether such fraud or error shall consist in wrong description of boundaries, or parcels, or otherwise howsoever. 208—Proceedings against the Registrar-General as nominal defendant Any person sustaining loss or damage through any omission, mistake, or misfeasance of the Registrar-General, or a person engaged in the administration of this Act, or of any Act hereby repealed, and any person deprived of any land through the bringing of the same under the provisions of this Act, or of any Act hereby repealed, or by the registration of any other person as proprietor of such land, or by any error, omission, or misdescription in any certificate, or in any entry or memorial in the Register Book, and who by the provisions of this Act is barred from bringing an action for the recovery of such land, may, in any case in which the remedy by action for recovery of compensation as hereinbefore provided is barred, or inapplicable, institute proceedings against the Registrar-General, as nominal defendant, for recovery of compensation as hereinafter provided. 209—Value of buildings to be excluded In estimating the compensation for any deprivation or loss under this Part of this Act, the value of all buildings and other improvements erected or made subsequently to such deprivation or loss, and with notice thereof, shall be excluded. 210—Persons claiming may, before taking proceedings, apply to the Registrar‑General for compensation Any person sustaining loss or damage in any case in which he shall be entitled to institute proceedings to recover compensation against the Registrar-General as nominal defendant, may, before commencing such proceedings, make application in writing to the Registrar-General, for compensation, and such application shall be supported by affidavit or declaration. If the Registrar-General admits the claim, or any part thereof, and certifies accordingly, the Treasurer may— (a) where the amount that the Registrar-General admits does not exceed $20 000—on receipt of written authority under the hand of the Crown Solicitor; or (b) where the amount that the Registrar-General admits exceeds $20 000—on receipt of a warrant under the hand of the Governor and countersigned by the Attorney-General, pay the amount out of the Assurance Fund. 210A—Value of land determined by market value In determining the compensation payable from the Assurance Fund for any deprivation or loss under this Part, the value of the land must be determined according to the market value of the land on the day on which the claimant institutes proceedings against a person or the Registrar‑General for compensation. 210B—Registrar‑General may use Fund money Money in the Assurance Fund may be applied for the purpose of meeting any expenses incurred by the Registrar‑General in connection with any claim for compensation from the Assurance Fund. 211—Assurance Fund not liable for breach of trust or improper exercise of power of sale The Assurance Fund shall not under any circumstances be liable for compensation for loss, damage, or deprivation occasioned by any breach by a registered proprietor of any trust, whether express, implied, or constructive, or by the improper exercise of any power of sale expressed or implied in any mortgage or encumbrance. 212—Nor for misdescription of boundaries or parcels except in certain cases The Assurance Fund shall not be liable for compensation for loss, damage, or deprivation occasioned by any land being included in the same certificate with other land, through misdescription of boundaries or parcels, unless it shall appear that no person is liable or that the person liable for compensation is dead, or cannot be found within the jurisdiction of the Court or has become bankrupt, or has made a statutory assignment, or the Sheriff or bailiff shall certify that such person is unable to pay the full amount and costs awarded in any action for recovery of such compensation; and in the last-mentioned case the said fund shall be liable for such amount only as the Sheriff or bailiff shall fail to recover from such person. 213—Procedure upon, and enforcement of claims against the Assurance Fund All proceedings against the Registrar-General as nominal defendant, for the purpose of obtaining compensation from the Assurance Fund, shall be instituted and carried on in the following manner: (a) Mode of application by claimant the claimant shall apply to the Court upon affidavit for a rule or summons calling upon the Registrar-General, as nominal defendant, to show cause why compensation should not be paid out of the Assurance Fund to the claimant; and the Court may grant a rule or summons accordingly and such rule or summons shall be returnable not less than seven days after service thereof on the Registrar-General; (b) Registrar-General may show cause the Registrar-General may show cause against such rule or summons, and the Court may thereupon, or if no cause be shown, upon proof of service of the rule or summons, make absolute or discharge the same, or make such order as the circumstances shall require, with or without costs; or may, if satisfied that other persons should be represented on the rule or summons, require such persons to be served with notice thereof, and for that purpose adjourn the consideration of the rule or summons; (c) Court may direct question of fact to be tried the Court may direct any question of fact to be decided before the said Court, and for that purpose may direct an issue to be tried wherein the claimant shall be plaintiff, and the Registrar-General and such person or persons (if any) as the Court shall direct, shall be defendant or defendants, and the Court shall direct when and where the trial of such issue shall take place; and may adjourn the further consideration of the rule or summons until after the trial of the issue; (d) Court may order production of papers the Court may also direct the parties to the proceedings or issue to produce on oath all deeds, books, papers, and writings in their custody or power, before the Court or the Master, on a day to be named by the Court, and each party shall have liberty to inspect the same, and take copies thereof, at his own expense; and such of them as either party shall give notice to have produced at the trial shall be produced accordingly; (e) Form of issue the issue (if any) may be in the following form, or in such other form as the Court shall approve: In the Supreme Court The                    day of                    in the year of Our Lord, 20     . to wit Whereas A.B. affirms, and C.D. denies [here state the questions of fact to be tried] and it has been ordered by His Honour Mr. Justice                    according to the Real Property Act 1886 that the said questions shall be tried; Therefore let the same be tried accordingly. And in the case the parties differ upon the questions of fact to be tried, the Court may either settle the same or refer them to the Master; (f) Court may make order after trial of issue after the trial of the issue the Court may, upon further consideration of the rule or summons, make such order either with or without costs, as the circumstances shall require; (g) Effect of order every order of the Court on such rule or summons shall have the effect of a judgment of the Court in an action; (h) Treasurer to pay compensation the Treasurer shall, on the production of any such order directing payment of compensation with or without costs out of the Assurance Fund, pay the same accordingly. 214—Proceedings where same land is included in two or more grants from the Crown. Assurance Fund not liable in such case Any person deprived of any land in consequence of any such land having been included in two or more grants from the Crown, may commence and prosecute proceedings for the recovery of damages against such person as the Governor may appoint as nominal defendant, in manner provided for by the Supreme Court Act 1935, or by any other Act for enforcing pecuniary claims against Her Majesty, Her heirs and successors, and in every such case the Assurance Fund shall not be liable for compensation. 215—Limitation of actions No application to the Registrar-General nor action or proceeding for compensation for or by reason of any deprivation, loss, or damage occasioned or sustained as aforesaid, shall be made, brought, or taken, except within the period of twenty years from the time when the right to make such application or bring or take such action or proceedings first accrued. 216—Court to have regard to contributory negligence Where, in an action for compensation under this Part, it appears that the plaintiff's deprivation, loss, or damage is attributable in whole or in part to his own negligence or the negligence of a person through or under whom he claims, the Court shall give judgment against the plaintiff or reduce the amount of the compensation that would, in the absence of negligence, have been awarded, by such amount as is just in view of that negligence. 217—Payments out of Assurance Fund to be deemed made on account of certain persons Any amount paid out of the Assurance Fund in consequence of any person being dead, or having become bankrupt, or having made a statutory assignment, or in consequence of its not being possible to find any person within the jurisdiction of the Court, shall be deemed to have been paid on account of such person. 218—Moneys paid out of the Assurance Fund may be recovered Whenever any amount has been paid out of the Assurance Fund on account of any person who shall be dead, such amount may be recovered from the estate of such person by action against his personal representatives, in the name of the Registrar‑General. Whenever any such amount has been so paid on account of a person who shall have become bankrupt, or made a statutory assignment, such amount shall be considered to be a debt provable upon the estate of such bankrupt or assignor; and a certificate, signed by the Treasurer, certifying the fact of such payment out of the Assurance Fund, and delivered to the Official Receiver or trustee, shall be sufficient proof of such debt. 219—Judgment may be entered by Registrar-General for amount paid on account of absent persons Whenever any amount has been paid out of the Assurance Fund on account of any person who cannot be found within the jurisdiction of the Court, the Court may, upon the application of the Registrar-General, and upon production of a certificate signed by the Treasurer certifying that the amount has been paid in satisfaction of an order on proceedings taken against the Registrar-General as nominal defendant, allow the Registrar-General to sign judgment against such person forthwith for the amount so paid out of the Assurance Fund, together with the costs of the application; and such judgment shall be final, and shall have the effect of a final judgment in an ordinary action, and execution thereon may issue immediately.