Defects before registration o immediate

defects before registration
o Immediate indefeasibility means that a purchaser of TT property is not required to ‘look
behind the register’ to find out about the state of the Registered Proprietor’s interest (and
whether they have valid legal title) – they can rely on the information on the register (unlike
in Old System)
 Confirmed that TT System = Title by Registration + Indefeasibilty:
o Upholds the sanctity of the TT system as title by registration (registration is what provides
legal title in TT land) – where an interest or encumbrance in TT land is registered it will
acquire full statutory protection
o This case highlights a fundamental distinction that underlies the TT system – it is not
registration of title, but title BY registration (Barwick CJ)
o All the judges were united in upholding the sanctity of the TT system in this case – the case
was a correct application of the RPA as it was intended to confer title by registration
o Unregistered interests are vulnerable to registered interests – the registered interest is
‘paramount’ in TT system – they have legal title in the absence of exceptions
o Indefeasibility protects the RP’s interest from attack
o Indefeasibility is the very essence of the TT system (Windeyer J)
o The decision aligns with s42 RPA – referred to as ‘paramouncy provisions’
 Registration cures a void instrument
o Registration which results from a void instrument is effective according to the terms of
registration
 Harsh Operation of TT Law
o Could be argued that this case is a harsh operation of the TT System – the Breskvar’s were
an innocent party who consequently lost their house as a result of the operation of the law
o The application of immediate indefeasibility bears harsh results – this may be why deferred
indefeasibility was previously preferred in some instances
o Regardless of the harshness – the decision is a necessity – it confirmed immediate
indefeasibility – ensured that the TT system was consistent and provides protection to RP’s
o Emphasis’ the need to register – the key concept of the TT system
o Deferred indefeasibility was rationalized on the basis that courts should not be prepared to
allow a RP to obtain a benefit from a fraudulent transaction – in some respects this is a valid
argument – it seems unfair that someone can benefit from a fraudulent transaction they were
aware of at the expense of an entirely innocent party who (arguably) didn’t understand the
operation of the RPA
Judicial References
o This was a highly influential case – has been cited in a number of subsequent cases;
o Black v Garnock (2007) – refers to the principle in this case of ‘TT a system of title by
registration’ + a resolution of the long-running controversy about indefeasibility (deferred v
immediate)
o This case overruled the theory of deferred indefeasibility in the Privy Council case of Gibbs v
Messer [1891] (found that a person who registers a void instrument cannot resist a challenge