South Australian Consolidated Acts

REAL PROPERTY ACT 1886 - SECT 56

56—Priority of instruments

        (1)         Every instrument presented for registration shall be attested by a witness, and, subject to subsection (1a), shall be registered in the order of time in which the same is produced for that purpose; and instruments registered in respect of or affecting the same estate or interest shall, notwithstanding any express, implied, or constructive notice, be entitled to priority, the one over the other, according to the date of registration, and not according to the date of the instrument itself; and the Registrar-General, upon registration thereof, shall file such instrument (if single) in his office, and if in duplicate or triplicate, shall file one original in his office, and shall deliver the other or others to the person or persons entitled thereto.

        (1a)         Where 2 or more instruments dealing with or affecting the same estate or interest in land have been produced for registration at the same time, the Registrar-General may register those instruments in the order that will give effect to the intentions of the parties as expressed in, or apparent to the Registrar-General from, the instruments.

        (2)         The Registrar-General may, on application in the appropriate form, vary the order of priority between two or more registered mortgages or encumbrances.

        (3)         An application for the variation of an order of priority in accordance with subsection (2)—

            (a)         must be made by every holder of a mortgage or encumbrance that is to have its order of priority varied; and

            (b)         where a registered mortgage or encumbrance is, by virtue of the proposed variation of order of priority, to be postponed to a mortgage or encumbrance over which it has had priority—must be made with the consent of the holder of the mortgage or encumbrance that is to be so postponed; and

            (c)         must be made with the consent of the mortgagor.

        (4)         A memorandum of the variation of an order of priority under subsection (2)—

            (b)         shall be endorsed on the certificate of title affected by those mortgages or encumbrances.