110Entitlement to indemnity

110 Entitlement to indemnity (1) Subject to this Act any person sustaining loss or damage (whether by deprivation of land or otherwise) by reason of— S. 110(1)(a) amended by No. 85/1998 s. 16. (a) the bringing of any land under this Act under Division 2 of Part II or by the creation of a provisional folio under Division 3 of Part II; S. 110(1)(aa) inserted by No. 128/1986 s. 9(1), amended by No. 35/1996 s. 453(Sch. 1 item 83.12(a)). (aa) a legal practitioner's failure to disclose in a legal practitioner's certificate a defect in title or the existence of an estate or interest in land; S. 110(1)(b) amended by No. 18/1989 s. 12(Sch. 1 item 168(a)). (b) any amendment of the Register; S. 110(1)(c) amended by No. 18/1989 s. 12(Sch. 1 item 168(a)). (c) any error omission or misdescription in the Register or the registration of any other person as proprietor; S. 110(1)(d) amended by No. 18/1989 s. 12(Sch. 1 item 168(b)). (d) any payment or consideration given to any other person on the faith of any recording in the Register; (e) the loss or destruction of any document lodged at the Office of Titles for inspection or safe custody or any error in any official search; (f) any omission mistake or misfeasance of the Registrar or any officer in the execution of his duties; (g) the exercise by the Registrar of any of the powers conferred on him in any case where the person sustaining loss or damage has not been a party or privy to the application or dealing in connexion with which such power was exercised— shall be entitled to be indemnified. S. 110(1A) inserted by No. 128/1986 s. 9(2). (1A) Section 109(2)(c) does not apply to a person entitled to be indemnified under subsection (1)(aa) of this section. (2) Any person claiming to be so entitled may bring an action against the Registrar as nominal defendant for recovery of damages or join the Registrar as nominal co-defendant in any action brought by such person in respect of such loss against any other person and the Registrar may join any other person as co-defendant in any such proceedings. (3) No indemnity shall be payable under this Act— S. 110(3)(a) amended by Nos 18/1989 s. 12(Sch. 1 item 169), 35/1996 s. 453(Sch. 1 item 83.12(b)), 75/2006 s. 192(Sch. 2 item 6.5) (as amended by No. 17/2007 s. 33). (a) where the claimant his legal practitioner, conveyancer or agent caused or substantially contributed to the loss by fraud neglect or wilful default or derives title (otherwise than under a disposition for valuable consideration which is registered in the Register) from a person who or whose legal practitioner, conveyancer or agent has been guilty of such fraud neglect or wilful default (and the onus shall rest upon the applicant of negativing any such fraud, neglect or wilful default); (b) on account of costs incurred in taking or defending any legal proceedings without the consent of the Registrar, except any costs which may be awarded against the Registrar in any proceedings in which the Registrar is a party; S. 110(3)(c) inserted by No. 9421 s. 5(2)(b). (c) in consequence of the Registrar's not inquiring as to whether a power of attorney was in force when anything purporting to have been done under the power and falling within its scope was done; S. 110(3)(d) inserted by No. 57/1993 s. 20(3). (d) where the Registrar, under section 22(1AC) of the **Subdivision Act 1988**, has treated a consent or request made on behalf of the person whose consent to the registration of the plan is required as being the consent of that person, in consequence of that consent being given or that request being made without lawful authority. (4) Any indemnity paid in respect of the loss of any estate or interest in land shall not exceed— S. 110(4)(a) amended by No. 18/1989 s. 12(Sch. 1 item 169). (a) where the Register is not amended, the value of the estate or interest at the time when the error omission mistake or misfeasance which caused the loss was made; S. 110(4)(b) amended by Nos 18/1989 s. 12(Sch. 1 item 169), 70/2014 s. 25(a). (b) where the Register is amended, the value of the estate or interest immediately before the time of amendment; S. 110(4)(c) inserted by No. 70/2014 s. 25(b). (c) subject to paragraphs (a) and (b), in the case of a fraudulent mortgage where the mortgagee has complied with section 87A or 87B, the principal amount together with any interest, the rate of which must not exceed the Bank Accepted Bills rate (within the meaning of the **Taxation (Interest on Overpayments) Act 1986**). S. 110(5) amended by No. 80/2009 s. 61. (5) If in any action under this section judgment is given in favour of the Registrar or the plaintiff discontinues or is nonsuited the plaintiff shall be liable to pay the full costs of the Registrar in the action, but save as aforesaid a court may make such order as to costs as it thinks fit. S. 110(6) substituted by No. 9861 s. 3(1), amended by No. 31/1994 s. 3(Sch. 1 item 59.1). (6) Any sum by way of indemnity or costs awarded against the Registrar under this section shall be paid from moneys available for the purpose. No. 5842 s. 111.