defects before registration o Immediate indefeasibility means that a purchaser

Defects before registration o immediate

This preview shows page 99 - 100 out of 114 pages.

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
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