I. THE ASSURANCE FUND

3.1 The Assurance Fund was a vital part of the Real Property Act as orginally enacted in New South Wales in 1862. As provided in ss28 and 29 of the Act, the Fund was to be the source of payment for successful compensation claims. It was financed by levies on two types of dealings, namely applications to convert Old System land to the Torrens system, and transfers of land following the death of a registered proprietor.

3.2 Since the consolidation of the Real Property Acts in 1900 the Fund and its administration have undergone considerable change.¹ In 1906 it was combined with the Closer Settlement Fund and in 1970 that Fund was transferred into the Closer Settlement and Public Reserves Fund. Payments from this Fund were continued until it closed in 1988. All payments are now made directly from Consolidated Revenue, and no specific amount is set aside for claims. Compulsory contributions from users ceased in 1940.²

II. COMPENSATION PROVISIONS

3.3 The legislative provisions which regulate the Fund in New South Wales³ are typical of the compensation provisions in most jurisdictions, although, as noted, the Victorian provisions differ in important respects. The language used in the key sections (ss126 and 127) is complex and difficult to interpret, yet has undergone relatively little change since the early days of the Torrens System.⁴

A. Bases of claim

3.4 Section 126(l) of the New South Wales Act allows a person who has been deprived of land or of an interest in land to bring an action for monetary compensation if the deprivation was:

(a) in consequence of fraud; or

(b) through the bringing of such land under the provisions of this Act; or

(c) by the registration of any other person as proprietor of such land, estate or interest; or

(d) in consequence of any error, omission, or misdescription in the Register.

3.5 Section 127 provides an independent cause of action against the Fund for persons sustaining loss through departmental error or when no remedy is available under s126. To recover compensation under s127, a claimant must:

• have sustained loss or damage;
• as the result of

  - departmental error (omission, mistake or misfeasance);

  - the registration of any other person as proprietor (other than the registration of a possessory title based on adverse possession under s45E); or

  - an error, omission or misdescription in the Register; and

  be unable to pursue other remedies as a result of the provisions of the Act, specifically

  - be barred from an action for possession or other form of recovery of land or an interest in land; or

  - be unable to obtain such recovery because the action or proceeding would be inapplicable; and

  - be unable to obtain damages under the Act (ie s126) because such remedy is inapplicable.

Section 127 duplicates some of the bases of claim in s126, but in other respects is quite different. Unlike s126, which requires plaintiffs to prove that they have been deprived of an estate or interest in land, s127 requires only that plaintiffs have suffered loss or damage. In practice, however, the differences between ss126 and 127 are not regarded as critical, and plaintiffs normally bring proceedings under both sections.

3.6 Claimants must establish not only that they come within the terms of ss126 and 127, but that they are not excluded by s133 of the Act. That section specifies three circumstances in which compensation is not payable. The Fund is not liable if the loss, damage or deprivation is the result of a breach of trust by a registered proprietor. Similarly, if the loss is caused by the same land being included in two or more Crown grants, or by misdescription of title which results in two parcels of land being included in the same certificate of title, the Fund is exempt from liability.

B. Defendant

3.7 The combined effect of ss126 and 127 is that a claimant against the Fund must first pursue available actions against any individual wrongdoer before bringing an action against the Registrar General. The action under s126 is first brought against the person who applied for the erroneous registration, or who acquired the interest or received money through the fraud or error. While the form of the legislation suggests that a proprietor who innocently registers an improper document, say a forged transfer, may be liable to the previous registered proprietor deprived of his or her interest by the registration, in fact the title of the new registered proprietor is immune from attack. Thus, in practice, a person deprived of title by the registration of such a document cannot (and need not) bring proceedings against the person innocently obtaining registration before claiming compensation.

3.8 A claimant may recover from the Fund if the person liable to pay compensation is dead, bankrupt, insolvent, or unable to be found within the State. An action against the Fund may also be brought under s127 if a person has sustained any loss by the registration of another interest and can neither bring proceedings under s126 against the person responsible nor regain legal possession of the land or interest. In addition, s127 allows a claimant to recover compensation for errors made by the Land Titles Office, specifically:

(a) any omission, mistake or misfeasance of the Office staff; and

(b) any error, omission, or misdescription in the Register.

The practical effect is that the Real Property Act 1900 (NSW) allows a claimant to recover from the Fund in cases of fraud (including forgery) and departmental error. In the case of fraud, the claimant must first exhaust the remedies against the wrongdoer (but not the innocent registered proprietor) before bringing an action against the Fund.

C. Complexity of legislation

3.9 Due to ungainly drafting it is sometimes difficult to discern the separate functions of ss126 and 127. In his first edition in 1902, Canaway described s126 as “perhaps the most confused in the Act, the ill-draughting [sic] of which has been frequently commented on”.⁵ Baalman concurs in this view and says that:

the general impression created by the language of Part XIV is that the draftsman had reached a stage at which he was anxious to see the end of a difficuIt task.⁶

3.10 In addition to the complexity of the sections, these provisions have not been revised to take account of the judicial acceptance by the Privy Council in Frazer v Walker and Radomski⁷ of the theory of “immediate indefeasibility” as opposed to the earlier theory of “deferred indefeasibility”. While it was formerly held that a title obtained fraudulently was defeasible until perfected by a subsequent bona fide transfer for value, it is now accepted that registration is effective in itself to validate immediately a transfer that was forged or is otherwise void or voidable. The only legislative recognition of the new theory, which was stated by the Privy Council in 1967, has been an amendment to s135 of the Act by the Real Property (Amendment) Act 1970 s17(f).⁸ Section 135 now reads (the underlined words were added by the amendment):

Nothing in this Act contained shall be so interpreted as to leave subject to action for recovery of damages [under s126], or to ... proceedings or action for the recovery of land, or to deprivation of the estate or interest in respect to which he is registered as proprietor, any purchaser or mortgagee bona fide for valuable consideration of land ... on the plea that his vendor or mortgagor may have been registered as proprietor, or procured the registration of the transfer to such purchaser or mortgagee through fraud or error, or under any void or voidable instrument, or may have derived from or through a person registered as proprietor through fraud or error, or under any void or voidable instrument....

The purpose of the amendment was to endorse the policy approved by the Privy Council “by completely removing any ambiguity [then] latent in the section”.⁹

3.11 The avenues for claims against the Assurance Fund have been widened since the acceptance of the principle of immediate indefeasibility. Under the previously accepted doctrine of “deferred undefeasibility”, an immediate but innocent party to a void transaction (including cases of forgery) could find courts willing to set the transaction aside, leaving that party without a right to compensation. Since Frazer v Walker, the innocent parties to a transaction involving registration of a forged dealing should generally speaking not be exposed to a loss. However, in certain circumstances the effect of immediate indefeasibility may be that a person who has lost an interest in land as the result of registration of a void instrument:

can be left in the unenviable position of both losing title to, or an interest in, land and being precluded from the assurance fund.¹⁰

D. Fraud

3.12 In New South Wales, a claimant may obtain compensation for deprivation resulting from fraud, including the fraud of a solicitor or agent. In recent years this provision has been expanded considerably by judicial interpretation. Parker v Registrar General¹¹ established that “fraud” in this context is not limited to cases involving forged documents: compensation is also payable where the claimant is tricked into signing a document by a wilfully false representation.¹² Compensation is not, however, necessarily payable for all losses caused by fraud.

3.13 A registered proprietor whose title is lost when a rogue registers it in his own name prior to making a fraudulent transfer to a bona fide purchaser for value must first seek compensation from the rogue under s126 before claiming from the Fund. It is only if the rogue cannot be sued (because of death, bankruptcy, insolvency, or absence from the jurisdiction) that an action lies against the Fund.

3.14 If the registered proprietor has been fraudulently deprived of land or an interest in land by a rogue who does not obtain registration in his own name as proprietor, no action is available under s126. However a claim may lie against the Fund under s127.¹³

3.15 Following Parker, compensation will be payable (assuming other statutory conditions are satisfied) for deprivation of an estate or interest in land resulting from fraud in the wider sense of the term. If a registered proprietor is fraudulently induced to sign a transfer in favour of an innocent third party, a claim for compensation from the Fund would lie under s127.

E. Claims procedures

3.16 The scheme of the New South Wales Real Property Act is that claimants may obtain compensation from the Assurance Fund only after they have pursued the person primadly responsible for the loss, or are unable to fully recover the amount of the loss from the person at fault. In the case of loss attributable to Land Titles Off ice errors, a court order against the Registrar General is required to enable payment of compensation from the Assurance Fund. However an ex gratia payment by the Registrar General may be made for errors in certain circumstances.

3.17 Both s126 and s127 require legal proceedings to be instituted in order to establish a claim for compensation from the Assurance Fund.¹⁴ However, it is not essential for the matter to have been tried and final judgment given. A claim may be settled without trial and paid from the Assurance Fund provided a consent order is obtained.¹⁵

F. Time limit for making claims

3.18 Section 130(1) of the Real Property Act 1900 (NSW) formerly provided that an action for damages must be brought within six years from the date of deprivation. This section was repealed by the Notice of Action and Other Privileges Abolition Act 1977 (NSW). Thus if a limitation on time now operates it must do so under the Limitation Act 1969. There are two grounds under this Act that may apply to a cause of action against the Assurance Fund, namely:

• a cause of action founded on tort, including a cause of action for breach of statutory duty (s14(1)(b)); and
• a cause of action to recover money recoverable by virtue of an enactment, other than a penalty or forfeiture or sum by way of penalty or forfeiture (s14(1)(d)).

3.19 An action arising from s127 may be subject to s14(1)(b) of the Limitation Act if an omission, mistake or misfeasance of the Registrar General, or any of his officers or clerks in the execution of their respective duties under the provisions of the Real Property Act, is held to be a breach of statutory duty. However, the same could not be argued for a cause of action arising under s126. This would appear to create an inconsistency in limitation periods applying to s127 and s126.

3.20 It may be argued that a cause of action under s126 may come within the ambit of s14(1)(d) of the Limitation Act. This, however, depends on the statutory definition of “money”. The Limitation Act itself provides no definition nor does the Real Property Act. So if “money” is interpreted to include damages due to deprivation of land then a limitation period may apply to a cause of action arising under s126.

3.21 If the Limitation Act does apply then the limitation period is six years running from the date on which the cause of action first accrues to the plaintiff or to a person through whom he claims. Further, under s51, there is an ultimate bar of 30 years.

G. Measure of damages

3.22 The New South Wales legislation does not deal expressly with either the measure of damages or the closely related question of the date at which damages should be assessed. It is, however, accepted judicially that the amount of damages recoverable must be full compensation for the loss actually sustained. The general principle was laid down in Spencer v Registrar of Titles (WA)¹⁶ which recognised that a claimant should be put in the same (but not a better) position, so far as money will provide, as if the wrongful act had not occurred. This view was adopted by Mahoney JA in Registrar General v Behn.¹⁷ In Behn, Mahoney JA also commented that in determining the date for assessing damages, each case must be considered on its own facts. In Behn, the appropriate date was the hearing, rather than the date on which the plaintiff had been deprived of the land (as was held by the High Court in Spencers Case¹⁸).

Ill. JUDICIAL INTERPRETATION OF THE COMPENSATION PROVISIONS

A. “in consequence of fraud” In section 126(1)(a)

3.23 Until recently, the judicial interpretation of the compensation provisions in New South Wales tended to be restrictive. This approach was reflected in the decision in Armour v Penrith Projects Pty Ltd¹⁹ in which the plaintiff’s claim was made under s126 of the Real Property Act. The case concerned a person by the name of Long, who improperly obtained possession of amemorandum of transferto the plaintiff (Armour) who was purchasing from the registered proprietor. Long lodged the transfer at the Land Titles Office and obtained possession of the certificate of title. He then sold the land and forged a memorandum of transfer to the purchaser. The transfer was registered and the certificate of title recorded in the purchaser’s name. Needham J indicated that he was bound by the decision in Registrar of Title (WA) v Franzon ²⁰ and held that there was no “erroneous registration” within the meaning of s126(2)(b).

3.24 In Franzon’s case it was held that the claim under a section equivalent to s126 of the Real Property Act, whether framed in terms of a deprivation of an interest in land due to “fraud” or in terms of a deprivation due to an alleged “erroneous registration”, failed because:

• the “fraud” referred to in the section must be read as a fraud for which the person becoming registered is responsible and under the circumstances, the registered mortgagee had been innocent of fraud; and
• the registration of the mortgage, lodged for registration by the second mortgagee, could not be described as an “erroneous registration” within the meaning of the section, particularly as there was no inconsistency between the registration and the instrument on which it was based.

3.25 Needham J observed that the effect of Franzon as applied in Armour v Penrith Projects Pty Ltd is that:

[I]n no case under s126, so far as I can see, could a forger who did not himself take title to the land ever be subject to proceedings under the section. If that is the true purport of the section then it seems to me that it lacks an essential protection to persons who are defrauded in their interests in registered land being taken from them by forgery.²¹

Armour failed because he had elected to claim under s126. His claim would undoubtedly have succeeded under s127.

3.26 This case applies a narrow meaning to the phrase “in consequence of fraud” in s126. If the perpetrator of the fraud does not become registered, there is no claim against the innocent person who becomes registered.²² Also, if a claim is based on an inappropriate section of the Act, the innocent registered proprietor who was the victim of fraud of the type that occurred in Armour and Franzon will not only have lost the title to or interest in land, but may also be unable to obtain compensation from the Assurance Fund. In each case the plaintiff would have had a cause of action if an alternative basis for claim had been pursued. The Victorian legislation avoids this problem by allowing the primary action to be brought against the Registrar. That legislation is therefore not only more appropriate to the principle of insurance but also avoids the need to exercise such great care in ensuring that the correct basis of claim is chosen.

3.27 The meaning of the phrase “in consequence of fraud” in s126 has been examined more recently in Parker v Registrar General²³ which concerned a registered transfer of property from the Parkers to an investment company. It was alleged that the transfer was induced by fraud and that the Parkers (plaintiffs) had not received consideration for the transfer. The company mortgaged the property to an innocent mortgagee. The property remained subject to the mortgage even though the Parkers subsequently obtained an order for a re-transfer. The NSW Court of Appeal held that the “fraud” covered by s126 was not limited (as the Registrar General had argued) to fraud practised on the registration system, such as the forgery of a registrable transfer. According to Mahoney JA:

The categories of fraud are not closed; frauds may take on many different forms. There is no reason why a right of recovery should be limited as against the person responsible for the fraudulent deprivation of land according to whether, eg the fraud involves the voluntary signing of a transfer induced by fraud, the signing of it by mistake, or the forgery of a document ... ²⁴

A person could be deprived of an estate in land “in consequence of fraud” where he or she was induced by fraud to execute a valid, albeit voidable, transfer in favour of the fraudulent party. Despite his view that s126 embraces all types of fraud “directed to achieving the deprivation of land which occurred”, Mahoney JA concluded that in view of the reasoning in Franzon’s case, “the fraud relied on must be fraud for which the person becoming registered was responsible”.²⁵

3.28 Parker’s case was followed in Behn v Registrar General²⁶ which arose from similar facts. In Behn’s case Holland J at first instance rejected an argument that contributory negligence is a defence to proceedings against the Registrar General under s126(5) to recover losses sustained by the fraud of another party. He reasoned that since the fraudulent party could not have relied on the defence of contributory negligence, the Registrar General could be in no better position. The judgment of Holland J was, in substance, affirmed on appeal.

3.29 The view that “fraud” embraces all frauds within the ordinary legal meaning of that term, including the situation where a registered proprietor voluntarily parts with land under the influence of fraud, is liable to questioning on policy grounds. Do the aims of the Torrens system, specifically the goal of promoting the security of registered title, require that a registered proprietor be compensated if induced to execute a transfer of land by a plausible rogue?²⁷ Why should such a person receive compensation, when the owner of Old System land (or the proprietor of shares or other personal property) who is tricked into executing a conveyance (or transfer) in similar circumstances receives no compensation?

3.30 One view is that in order to promote security of title and to give effect to the principle of immediate indefeasibility, no purchaser of Torrens system land should be required to investigate the history of a vendor’s title or to make burdensome or difficult enquiries as to the bona fides of the vendor. Therefore, irrespective of the circumstances surrounding the execution of a transfer by a registered proprietor, the title of a bona fide purchaser for value should prevail. Any other view increases the cost and complexity of all conveyancing transactions, as well as detracting from the goal of security of title.²⁸ This issue is examined in Chapter 6 of this Paper, “Options for Reform”.

B. Section 127

3.31 There have been very few cases involving judicial interpretation of s127. The most recent reported case is the decision of Young J in Northside Development Pty Ltd v Registrar General.²⁹ The facts of the case (somewhat simplified) are that Robert Sturgess, a director of the company Northside Development Pty Ltd, executed a mortgage to Barclays Credit Corporation over land owned by Northside. The mortgage funds were used for the benefit of companies controlled by Robert Sturgess. The mortgage document was co-executed by Gerard Sturgess, the son of Robert Sturgess, who purported to sign as Secretary of Northside. The son had filed a consent to act as Secretary with the Corporate Affairs Commission but had not been effectively appointed in accordance with Northside’s Articles of Association. Barclays, the mortgagee, was not aware of the irregularity surrounding the execution of the mortgage. The mortgage was registered, there was default under it, and Barclays sold the land to a purchaser who became the registered proprietor of the land. Northside then brought an action against the Registrar General under s127 of the Real Property ADA l900 claiming an indemnity from the Assurance Fund. That section, inter alia, gives a cause of action to a plaintiff who has been deprived of land by registration of another person as proprietor, where the remedies under s126 are inapplicable.

3.32 Young J held that the company was entitled to be compensated under s127 and held further that where damages are payable out of the Assurance Fund, the Registrar General has no right of subrogation against the wrong doer to enable recovery of the amounts paid out. Young J found that the mortgage was executed without authorisation and that the indoor management rule (that outsiders have a right to assume that all matters of internal management have been duly complied with) was inapplicable to the facts of the case. The Court awarded damages of $348,865.31 plus costs.

3.33 The decision in Northside raises three important issues: the availability of the defence of contributory negligence to the Registrar General; the applicability of the doctrine of subrogation; and the definition of “fraud”. Young J followed the decision in Behn’s case and confirmed that contributory negligence is no defence to an action under either s126 or s127. The gullibility or carelessness of the plaintiff does not preclude recovery. Damages given must be full compensation for the loss sustained.³⁰ Young J also confirmed that by virtue of s131 of the Act, the Registrar General only has rights of subrogation in respect of moneys recovered under s126, ie where in the first instance the person liable cannot be found or is insolvent or bankrupt. He was of the view that there would have been no need for a section like s131 if there were a general equitable right of contribution or subrogation.

3.34 Although His Honour did not find that the mortgage was fraudulently entered into, the decision followed the Parker and Behn cases³¹ which established that damages can be awarded in circumstances where registered proprietors have voluntarily set in motion the process enabling the fraudulent misrepresentation that results in the loss of title to their land: the fraud need not relate to the mechanism of registration.

IV. ADMINISTRATION OF THE REAL PROPERTY ACT I 900

A. Administrative perfection or risk management?

3.35 Robert Torrens claimed that one consequence of his proposed system of title by registration would be its low cost of administration. It would appear, however, that in a number of jurisdictions the costs of administering the system are exceptionally high. In many respects, the administration of the system ignores the existence of the State guarantee of title or insurance scheme. The work performed in a number of Land Titles Offices is directed towards maintaining the integrity of the Register and at the same time reducing, if not eliminating, claims against the Assurance Fund. This is a more arduous and time consuming process than was ever envisaged.

3.36 It is difficult to see the purpose of a State guarantee of title if the State’s resources are to be so heavily directed towards avoiding the necessity for it. According to Theo Ruoff , the basis of the State guarantee of title is the insurance principle, which:

properly understood and fully carried out, involves far more than that an owner’s title, that is known to be reasonably sound, is guaranteed by the State. In the widest sense it means not only that registration will be carried on literally as an insurance undertaking but also that it is the privilege of the Registrar ... to cure the title of known defects so far as he possibly can. It implies that the whole business of registration ought to be conducted with such an economy of public manpower, public time and public money that the saving which is achieved far outweighs any payments of compensation for errors or omissions which may become necessary from time to time.³²

B. The risk management policy In operation

3.37 The New South Wales Land Titles Office to some extent already pursues a policy of risk management. It may be that, by adopting a more liberal policy, the Land Titles Office could balance the risk of possible claims with resources required to prevent them and save expense for itself and the community.

3.38 In the context of the principle of risk management, the issue of over-insurance is very real. Over-insurance occurs where the amount of the cover exceeds the value of the interest of the insured. It may be deliberate or accidental. It may adse either by the arrangement of excessive cover through a single insurer or by double insurance, where cover is arranged with more than one insurer and the aggregate of the cover exceeds the value of the insured interest. In both cases the principle of indemnity operates to restrict the insured to recovery of the amount of the loss, irrespective of the amount of the cover, whether single or aggregates.³³

3.39 A claim of excessive cover could be levelled at the State guarantee of Torrens titles. A separate insurance premium is not collected upon the lodgment of a dealing. However, the operating surpluses are usually significant: for example, in 1987-88 there was a surplus of approximately $10 million (although this sum is presumably regarded as a contribution to general State revenues). The surplus is particularly large when compared with the payments of compensation, which amounted to approximately $25,000 during the same period. These figures, when viewed together with the possibility of excessive examination by the Land Titles Office in some areas, may lead to a conclusion of excessive insurance. According to Stewart-Wallace, a former English Registrar, the great benefit of the insurance principle is that it enables justifiable risks - not just in one case outspread over the whole field - to betaken in the examination of title by the Land Registry.³⁴ This reduces the cost of investigating titles. The savings thus made from the fee income can go towards an insurance fund sufficient to pay indemnity:

in the rare case where the holding is disturbed, and where an impracticably costly and stringent investigation of title might have revealed the flaw.³⁵

3.40 A good example of the adoption of the risk management approach in the New South Wales Land Titles Off ice is the relaxation of the checking procedures in relation to dealings executed under a power of attorney. Until 1979 the Registrar General examined all documents executed under a power of attorney to ensure that the relevant power of attorney in fact authorised the execution. In 1979, s36(3) of the Real Property Act was amended to provide that the Registrar General is entitled to presume regularity in the execution of dealings, caveats or other documents executed by persons purporting to act under an authority. This amendment has significantly reduced the examination time for many dealings.

C. Future areas for application of risk management policy

1. Primary applications (applications to bring land under the Real Property Act)

3.41 Primary applications (voluntary applications to bring land under the Act) are the subject of meticulous examination. The relaxation of some aspects of this process might be considered in view of the small number of claims in the area and satisfactory alternative practices in both England and Tasmania. In these jurisdictions, the value of the land determines the degree of examination carried out.

3.42 In England, if the subject land is of low value the Chief Land Registrar is authorised to accept it for registration without any kind of examination whatsoever and without searches being made. The Registrar simply relies on a certificate from the applicant’s solicitor that the normal process of investigation has been carried out. Even at high values, the Chief Land Registrar has a discretion (which he is not slow to exercise) to dispense with advertisements and to relax his examination if he is of the opinion that a title is open to objection but that the holding under it will not be disturbed.³⁶

2. Investigation of possessory titles

3.43 Many of the procedures and policies associated with the examination of possessory title applications place a considerable burden of work and correspondence on both the applicant’s solicitors and the Land Titles office.³⁷

3.44 The limitation period of twenty years where the possession commenced prior to 1st January 1971 (otherwise 12 years) may itself be unduly onerous. in view of the absence of claims against the Fund in this area, consideration may be given to reducing the limitation period in all cases to 12 years and to reducing the number of stringent evidentiary requirements which must be satisfied before an application for title based on adverse possession is granted.

3. Survey investigation

3.45 Considering the limited recognition given to claims to title by adverse possession, a great deal of attention is paid to the accuracy of surveys of registered land. As possessory title applications may only be made in regard to a “whole parcel of land”³⁸ their incidence is quite small.

3.46 It is because of the so-called guaranteed boundary that meticulous checking procedures are undertaken by the Land Titles Office in respect of survey plans. The checking is designed to ensure that the survey information in any one plan is compatible with survey information in related plans and titles and that titles do not overlap. In addition to the investigations by the Land Titles Office, a purchaser will usually obtain a check survey to verify that the boundaries on the ground reflect those on the title.

3.47 The cost to the community of both the checking procedures in the Land Titles Off ice and the practice of obtaining check surveys cannot readily be quantified, but is substantial. Consideration might therefore be given to greater acceptance of the notion of possessory titles. This would not only result in less stringent checking of survey plans by the Land Titles Office, but would also relieve the purchaser of the need to ensure that occupation and title boundaries coincide whenever there is a sale. To permit all adverse possessory interests (both of whole and part parcels) to override the title would require intending purchasers to identify the land physically but would relieve them of the need to obtain a survey of land, except where the inspection reveals difficulties or where connecting points of boundaries are not identifiable from the title documents. This process would minimise the cost of conveyancing and enable title descriptions to be adjusted to conform with established boundaries. It would also require an intending purchaser to ensure that the vendor is, in fact, in possession of the property or, if not, that the period of limitation has not run.³⁹

3.48 Private surveyors could also bear full legal responsibility for the accuracy of plans of survey lodged in the Land Titles Office. Surveyors are a highly trained group of professionals. The philosophy that a Government agency should either do or check the work of private professionals is no longer appropriate. A claimant seeking compensation for a defective survey plan could bring an action against the Registrar General, who could in turn seek contribution from the negligent surveyor.

3.49 Professional surveyors are aware of their liability for professional negligence and carry professional indemnity insurance. Their concern to reduce their risks would suggest that the examination processes in use in Lands Titles Offices could be reversed and that more responsibility for certification of quality could be transferred to the private sector.

1. Sections 28 and 29 became s119.

2. J Baalman, Baalman & Wells’ Land Titles Office Practice (4th ed, Law Book Co, Sydney, 1980) 23.

3. Sections 124-135.

4. R Stein “The Torrens System In New South Wales” (1981) 51 Australian Law Journal 150.

5. A P Canaway The Real Propedy Act 1900 (NSW) (Law Book Co, Sydney, 1902) 85.

6. J Baalman The Torrens System In New South Wales (Law Book Co, Sydney, 1951) 383; see also R A Woodman & K Nettle The Torrens System In New South Wales (Law Book Co, Sydney, 1985) 623.

7. [1967] 1 AC 569; [1967] 1 All ER 649.

8. M A Neave, C J Rossiter and M A Stone Sackville & Neave Property Law Cases and Materials (4th ed, Butterworths, Sydney, 1988) at 400, 436.

9. New South Wales Parliamentary Debates 26 February 1970, Legislative Assembly, Minister of Justice, the Hon J C Maddlson, 366-3.

10. Ian McCall “Indefeasibility Re-examined: Frazer v Walker and Some of Its Consequences” (1969-1970) 9 Universily of Western Australia Law Review 324 at 345.

11. [1977] 1 NSWLR 22.

12. See also Behn v Registrar General [1979] 2 NSWLR 46; [1980] 1 NSWLR 589; (1981) 35 ALR 633.

13. Registrar of Titles (WA) v Franzon (1975) 132 CLR 611; Armour v Penrith Projects Pty Ltd [1979] 1 NSWLR 98.

14. Sections 126(5),127,129.

15. Land Titles Office The Assurance Fund of New South Wales (Unpublished document September 1987) 22.

16. [1908] AC 235.

17. [1980] 1 NSWLR 589.

18. Spencer v Registrar of Titles (1909) 9 CLR 641.

19. [1979] 1 NSWLR 98.

20. (1975) 132 CLR 611.

21. [1979] 1 NSWLR 98 at 102.

22. D J Whalan The Torrens System in Australia (Law Book Co, Sydney, 1982) 349.

23. [1976] 1 NSWLR 342; [1977] 1 NSWLR 22.

24. [1977] 1 NSWLR 22 at 30.

25. Id at 29.

26. (1981) 148 CLR 562; (1981) 55 ALJR 541; (1981) 35 ALR 633, affirming [1979] 2 NSWLR 496; [1980] 1 NSWLR 589.

27. Neave, Rossiter and Stone, note 8, 462.

28. Ibid.

29. (1987) 11 ACLR 513; (1987) 5 ACLC 642; see also Chapter 1 of this Paper.

30. Registrar of Titles v Spencer (1909) 9 CLR 641 at 645.

31. Parker v Registrar General [1976] 1 NSWLR 342; Registrar General v Behn [1980] 1 NSWLR 589.

32. T B F Ruoff An Englishman Looks at the Torrens System (Law Book Co, Sydney, 1957) 33-34.

33. North British and Mercantile Insurance Co v London, Liverpool and Globe Insurance Co (1877) 5 Ch D 569.

34. See Law Commission (England) Property Law: Third Report on Land Registration (Law Corn No 158,1987) 47.

35. Law Commlssion, note 34, quoting J S Stewart-Wallace Introduction to the Principles of Land Registration (Stevens, London, 1937) 50.

36. Ruoff, note 32, 35.

37. Circular Issued by the Registrar General reprinted In J Baalman, note 1, 371-374.

38. Real Property Act 1900 (NSW) s45D.

39. Law Reform Commission of Victoria The Torrens Register Book (Report No 12,1987)