Facts brief decide which are relevant decision

: what are you discussing, issues in paper. Facts : brief, decide which are
relevant. Decision + Rationale : was the decision warranted, was reasoning fair, did the court use authority,
was the decision unanimous, what was the reasoning, did it change/introduce law? Analysis : do you
agree, did it achieve what the court intended, has it injured previous authority, will it be followed, what
should the result have been? Conclude : final thoughts.
Breskvar v Wall (1971) 126 CLR 376
General
 Court – High Court of Australia (HCA)
 Judges – Barwick CJ, McTiernan, Menzies, Windeyer, Owen, Walsh & Gibbs JJ (Unanimously
dismissed the appeal)
 Parties :
o Emilie and Franc Breskvar (appellants)
o George Walter Wall (1st respondent)
o George Petrie (2nd respondent)
o Alban Pty Ltd (3rd respondent)
 Area of Law – Torrens Title – Immediate Indefeasibility – Fraudulent registration/instrument
Facts
 Judicial History – Appeal from Supreme Court of QLD
 Breskvars were Registered Proprietors (RP) of Torrens Title land – handed over the CT +
signed/executed a blank memorandum of transfer to Petrie as mortgagee of the property
 Petrie inserted his grandson (Wall’s) name onto the transfer and lodged for registration
 Wall become RP + was aware of Petrie’s fraudulent conduct (ie, the agreement between B and P)
 Wall entered into contract of sale with Alban Pty Ltd (who checked the register and saw Wall was
the RP)
 BUT before registration of Alban’s purchase was complete – Breskvar’s lodged a caveat
Issues
 Whether registration confers immediate indefeasibility upon a void instrument
Held
 Found in favour of Wall – employing the immediate indefeasibility doctrine – “a registration which
results from a void instrument is effective according to the terms of the registration”
 Applied Frazer v Walker [1967] – void instrument was effective as a result of registration under TT –
Wall’s registration of the transfer was validated through registration despite his knowledge of the
fraud – s 43 of RPA protects ‘mere notice’ (he was not involved in the fraud)
 Court used the principles in Abigail v Lapin [1934] to determine the priority of the competing
equitable interests
o Competing equitable interests – between Alban Pty + Breskvar’s
o Breskvar’s conduct in handing over the memorandum of transfer + CT constituted
postponing conduct – because it ‘armed [Petrie] with the means of placing himself or his
nominee on the register’
Breskvar’s had first in time – but they lose this priority (based on postponing conduct above)
o Albans Pty Ltd was a ‘bona fide purchaser for value without notice’ that bought the land in
reliance upon the register and therefore retained priority o Albans Pty Ltd win priority dispute
 Breskvar’s appeal dismissed
Analysis
 Confirmed Immediate Indefeasibility:
o Confirmed the Australian position of immediate indefeasibility of title upon registration –
rather than the notion of deferred indefeasibility which had previously been a contentious
issue – paved the way for the current position

o Indefeasibility has the effect of creating the title ‘anew’ – it cures the title of any inherent