Exposing the failings of our betters: bad laws don't improve with age

Abstract

There exists a divergence in the Australian States registered land title("Torrens") systems and their approach to the indefeasibility of the titleof the registered proprietor who has gained registration other than as abona fide purchaser for value. The Victorian approach following a 1958Supreme Court (King v Smail) decision is that such a registered proprietoronly acquires "deferred" indefeasibility. This article seeks to explainthe error associated with this decision and argues that a registered titlesystem requires that upon registration the registered proprietor acquiresan absolute title whether or not the registered proprietor was a bona fidepurchaser for value without notice. Except in cases involving fraud, thereis no scope for degrees of title in a registered land title system.Consequently the Victorian system should be brought into line with themodern approach as exemplified by statute in Queensland and the NorthernTerritory and caselaw in New South Wales and Western Australia.