The principle of indefeasibility of title

‘[T]he principle of indefeasibility of title’, it has been said, ‘is the foundation
of the Torrens system of title.’
1 The defining feature of the Torrens system of
registration, as compared to previous models of land registration practised by
common law systems, is that it ‘is not a system of registration of title but a
system of title by registration.’
2 The objective of this system, pioneered in South
* LLB (NUS), BCL (Oxon); Associate Professor, Faculty of Law, The University of Hong Kong.
1 Bahr v Nicolay [No 2] (1988) 164 CLR 604, 613 (Mason CJ and Dawson J).
2 Breskvar v Wall (1971) 126 CLR 376, 385 (Barwick CJ).
206 Melbourne University Law Review [Vol 33
Australia in 1858 by Sir Robert Torrens,
3 ‘is to save persons dealing with
registered proprietors from the trouble and expense of going behind the register,
in order to investigate the history of their author’s title, and to satisfy themselves
of its validity.’
Prior to the implementation of the Torrens system of registration, conveyancing in South Australia, as in other colonies, was mired in the complexities
inherent in the English system of conveyancing. This was most obvious in
relation to proof of title to land, which ‘necessitated tracing title back through an
unbroken chain of events and documents, perhaps as far as the Crown grant.’
The previous land registration system, based on the registration of deeds, did
little to overcome the difficulties and uncertainties in proof of title because it was
the deed, rather than the title, that was registered. Registration therefore provided
no assurance of validity, merely providing priority
if valid. The need to investigate title every time land was conveyed or otherwise dealt with meant that
parties had to incur expense in both time and money every time a transaction was
entered into. Due to the complexities of such investigation, purchasers also had
to abide a certain degree of risk that defects in the vendor’s title would not be
fully discovered in the investigation. The system of independent titles proposed
by Torrens obviated the costs involved in the investigation of title. By overturning the common law rule of
nemo dat quod non habet,6 it also significantly
reduced the risk to a purchaser of any conveyance which was duly registered
under such a system, since the purchaser’s title upon registration would be
‘indefeasible’ and free from defects affecting the vendor’s title.
It has been suggested that Torrens’ objectives were achieved by ‘the elevation
of the Register above all else.’
7 However, it is notable that ‘indefeasibility’ is not
an absolute concept, with a list of exceptions to indefeasibility invariably found
in all Torrens statutes.
8 One exception, however, stands out amongst all others, as
it is not expressly listed as an exception in any of the Torrens statutes. Yet, as
pronounced by the Privy Council in the leading case of
Frazer v Walker,9 it is
generally accepted that the principle of indefeasibility ‘in no way denies the right
of a plaintiff to bring against a registered proprietor a claim in personam,
founded in law or in equity, for such relief as a court acting in personam may
3 For background as to how the Torrens system was conceived, developed and eventually born, see
P Moerlin Fox, ‘The Story behind the Torrens System’ (1950) 23
Australian Law Journal 489.
Cf S Robinson,
Transfer of Land in Victoria (1979) ch 1.
4 Gibbs v Messer [1891] AC 248, 254 (Lord Watson for the Lord Chancellor, Lords Watson,
Hobhouse, Herschell, Macnaghten, Morris and Shand). See also
Black v Garnock (2007) 230
CLR 438, 461, where Callinan J observed that:
The purposes and objects of the Torrens system of title were to simplify conveyancing, to introduce a greater assurance, indeed certainty, of title and in consequence to reduce the expense
of establishing and protecting title under the old land titles system.
5 Peter Butt, Land Law (5th ed, 2006) 717. A


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