LAWS 216: EXAM Hypo's Mortgages: Per Stanley v Wilde [1899] a mortgage is defined as a conveyance of land ... as security for the payment of a debt or the discharge of some other obligation. Under Torrens Title the property remains with the mortgagor, and the mortgagor is registered as a statutory charge, a security arrangement. Per s 57(1) of the RPA 'a mortgage, charge ... has effect as a security but does not operate as a transfer of the land mortgaged or charged. Section 56(1) of the RPA requires that: 'whenever any land, estate or interest is intended to be made security, the proprietor shall execute a mortgage in the approved form'. Per s 42(1) of the RPA, registering a mortgage on both the folios of the mortgagor and mortgagee creates a legal interest in the land. The court of equity gives substance to transactions by way of security only; allowing mortgagor to redeem property even after the contractual date for redemption has passed. Both a charge over "security" in the form of property, and a person covenant or promise to pay (usually loan agreement) is required to satisfy the equity of redemption. = Registered mortgagee entitled to indefeasibility (Perpetual v English) Whenever equity determined the true nature of the transaction is a loan on security, the substance of the transaction (parties intentions) over the form is analysed. In Breskvar v Wall (1971) the court held that a blank transfer and certificate of Title, as well, other evidence suggests a transfer was meant to be way of security only. Per Ciaglia v Ciaglia [2010], if it can be proven an unwritten (oral) agreement was made and the property was transferred, not out rightly but to give effect to a mortgage, parol evidence can be brought to prove this argument. In Ciaglia v Ciaglia: Robert successfully argued this transaction was a way of mortgage only with outcome that Mrs Pascal held half the property on constructive trust for him (she was owner by law), in equity she held 50% on trust as tenants in common. On appeal in Hudson v Arap 1 [2015] the court raised whether agreement to occupy residency is substance part of a mortgage agreement. NSWCA held: it was. A mortgage will also be created where a transfer is registered at same time as an agreement is made that the transfer be way of security only. Thus, Hudson could redeem even after time to exercise call op. (Substance not form) Gurfinkle and Bentley: The mere fact a conveyance was coupled with option to repurchase does not in itself lead to conclusion that transaction constituted a mortgage. Need indication that transfers by way of security only ... Equitable mortgage Mortgage of an equitable interest in the land: An informal written, but unregistered mortgage of Torrens Title land (don't have registration but writing (approved form not yet registered), loan agreement (security), transfer appears outright but coupled with oral (security only). Mortgage by way of deposit of title deeds and