INTRODUCTION

2.1 This chapter discusses the compensation and insurance principles underlying the State guarantee of Torrens title. It also focuses on the range of judicial interpretations of the more significant provisions which were in force in New South Wales at the time of the publication of the Issues Paper. To this extent it lays the groundwork for Chapter 3 which, by contrast, will examine changes in the law as a result of recent High Court and lower court decisions in addition to recent statutory reforms. At the conclusion of that discussion there will be an assessment of whether the general structure of the law has been sufficiently modified by these changes to make the need for further reform less pressing. The Commission’s conclusion is that there is still a need for an overhaul of the compensation and insurance provisions.

Title by registration

2.2 As noted above, a fundamental principle of the Torrens system is that title to land is dependent on registration and not on the execution of documents. Once registered under the Real Property Act 1900 (“RPA”), the proprietor has an “indefeasible title.”¹ This means that the title cannot be set aside because of a defect which existed before the proprietor was registered. The other side to indefeasibility is that people can lose their interest in land in circumstances where they would have been protected under Old System title.² Under the deeds registration provisions of Old System title, which continue to apply to a limited, if diminishing, extent, the fact of registration is not relevant to the issue of conferring title. Rather, registration is a mechanism for retaining priority as against competing interests over the same land.³ So, for example, if A’s solicitor forged A’s name to a conveyance of A’s land to B, no interest passed to B even if B registered the deed because the deed was void as a result of the forgery.⁴ The registration of such a deed would not validate it in any way. By contrast, in the same circumstances under the Torrens system, B would get an indefeasible title on registration so long as he or she was not tainted by the fraud.⁵ It follows that the Torrens system, by virtue of its indefeasibility principle, renders registered proprietors peculiarly vulnerable to forms of fraudulent behaviour not possible under Old System title.

Compensation principle

2.3 The compensation objective of the provisions has been stated in these terms:

The scheme of the Act is to provide a fund for compensating all persons who are deprived of their land by the operation of the Act, and reason and justice require that no qualification should be put upon the rights so given which is not in express terms imposed by the statute. ... The fund is therefore in the position of a quasi-surety, guaranteeing against losses which but for the Act could not occur. ... In short, the provisions aim to form the second part of the complement that, under the Torrens system, a man is to have either his interest in the land or adequate monetary compensation therefor. ⁶

Accordingly, s 126 and 127 of the RPA adopt the principle that the state should compensate two types of losses:⁷

• losses flowing from mistakes within the Land Titles Office; and
• losses caused by the registration of another person’s interest.

Moreover, s 126 and 127 identify two classes of potential defendants: the person or persons responsible for the loss; and the Registrar-General. As will be seen later, this bifurcation of liability seriously undermines a genuine insurance principle.

Insurance principle

2.4 The essence of an insurance principle is the contribution, by persons in a class, of small amounts of money into a central fund subject to certain risks. The fund can be called upon to make good the losses suffered by particular individuals. Accordingly, an insurance scheme is a mechanism for spreading the loss equally among all contributors to the fund. Without insurance, losses lie where they fall. In the context of title to land the priority rules form the legal mechanism designed to determine the party on whom the loss falls. In the above example, under Old System title, B would bear the loss insofar as he is the party on whom the loss ultimately falls. This is because, irrespective of registration, B fails to get a good title despite paying valuable consideration. Under the Torrens system it is A who bears the loss on B’s registration. The Torrens system can be seen, therefore, to introduce a new set of priority, and therefore loss-shifting, rules. To this extent there is nothing special about the Torrens system: priority rules generally exist to determine who loses out in a competition in respect of all types of property. The uniqueness of the Torrens system, however, lies in the fact that it supplements its loss-shifting rules with loss-spreading rules. These rules are embodied in the insurance and compensation provisions.

2.5 The insurance principle underlying these provisions is contained chiefly in s 133A of the RPA. Subsection (1) states that “There shall be established in the Special Deposits Account an account called the Torrens Assurance Fund”. By subsection (4) :

There is to be paid into the Fund such amount as the Minister may direct from each fee paid to the Registrar-General in respect of the lodgment of any dealing, caveat or withdrawal of a caveat. Such fee may be prescribed so as to include the amount required to be paid into the Fund.

Notwithstanding these provisions, the insurance principle operates in a somewhat limited fashion. As will be seen below, the many criticisms levelled at this aspect of the legislation, now well over a century old, have gone largely unheeded.

THE LIMITED SCOPE OF THE COMPENSATION AND INSURANCE PRINCIPLES

2.6 With one exception, all submissions to the Commission agreed that the compensation provisions of the RPA need amendment to fulfil the principles discussed above.⁸ The precise contours of these criticisms will be examined later. In the meantime, the specific structure of the provisions will be examined.

Compensation scheme: a fund of last resort

2.7 As stated by Woodman and Nettle, under RPA s 126, “[t]he person deprived of land must have pursued his remedies fruitlessly against the wrongdoer or his voluntary assigns if they are accessible”⁹ before claiming compensation from the Registrar-General. Section 126 is mainly concerned with identification of the person who is to be the defendant in the first action. There is no intention to relieve accessible wrongdoers from liability. Further, no recovery lies against the Registrar-General where land can be recovered,¹⁰ as RPA s 124 provides for the possibility of an action for the recovery of land by possession or otherwise, and s 126 only applies where a deprivation of land has occurred. Furthermore, while under s 127 it is possible to proceed against the Registrar-General directly for errors perpetrated by the Land Titles Office, that section also seems to envisage a residual right against the Registrar-General where a remedy is “inapplicable” against the defendant responsible for the loss. Therefore, to the extent that this section is also based on the principle of the fund as a fund of last resort, it is equally at odds with a comprehensive insurance principle. Due to their individual complexities it will be necessary to examine these two key provisions separately.

Primary right to compensation: section 126

2.8 Section 126(1) of the RPA provides as follows:

(1) Any person deprived of land or of any estate, or interest in land:

(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, may bring and prosecute in any Court of competent jurisdiction an action for the recovery of damages.

These provisions appear broad in scope, but in practice they have given rise to difficulties of interpretation and have offered limited redress to persons who have lost interests in land.

Fraud

2.9 The scope of fraud as a head of recovery independent of s 127 was reduced significantly by the High Court in Registrar of Titles (WA) v Franzon.¹¹ The Court held that plaintiffs cannot rely on the fraud basis of recovery in s 126 to succeed in an action against the Registrar-General (where the fraudster is inaccessible) if the fraudulent party has not been registered as a proprietor. In practice, plaintiffs whose loss has resulted from the fraud of persons other than those becoming registered proprietors have brought claims under s 127.¹² This is consistent with the overall policy noted above: persons who have suffered should be in a position to get compensation whenever they suffer loss, either from the person who causes the loss or from the Registrar-General as nominal defendant. However, it is clearly undesirable for victims to fail to get compensation to which they are entitled because they have brought an action under the wrong section of an exceedingly complex provision.

2.10 The key facts in Registrar of Titles (WA) v Franzon were that a mortgage was forged by the registered proprietors’ solicitor. The mortgagee was innocent of the fraud. The Court held that the “fraud” referred to in the section must be read as a reference to fraud for which the person becoming registered was responsible. As a result of this case, it can be concluded that the “fraud” basis for recovery in s 126(1)(a) is ineffective in every situation in which the person responsible for the fraud does not obtain registration. The Court also held that an “erroneous registration”, provided for in New South Wales by s 126(1)(c) requires disconformity between the instrument lodged for registration and the registration on which it is based. In other words, an “erroneous registration” would only be satisfied if either the Registrar-General or the person seeking registration and those acting for them were at fault by not recording the instrument faithfully in the Register. In most cases, plaintiffs who fail on this basis then rely on s 127, normally with success. Thus, the effectiveness of the fraud basis for recovery in s 126, independent of s 127, is doubtful.

2.11 So, for example, the plaintiff in the case of Armour v Penrith Projects Pty Ltd¹³ could not recover damages on the basis of fraud in s 126(1)(a) against the Registrar-General because the fraudster who sold the plaintiff’s land simply forged a signature to the transfer document (without the true owner’s knowledge) before absconding from bail. As such, the fraudster never actually obtained registration. The transferee of the land from the fraudster who obtained registration was innocent of the fraudster’s wrongdoing, and thus the fraud basis of recovery was not applicable. If fraud could be sheeted home to the proprietor who becomes registered and if he or she then transfers the land to an innocent third party, provided the other conditions for recovery on the basis of fraud are satisfied, a remedy would lie against the Fund. The general rule is that, where an agent is acting within either the actual or apparent scope of his or her authority, those actions will bind the principal.¹⁴ However, it seems unlikely, in cases in which bona fide proprietors instruct agents such as solicitors or others to act on their behalf and in relation to principal and agent relationships generally, that those agents would be authorised to commit fraudulent acts.

2.12 In Armour’s case, the plaintiff also claimed recovery from the Registrar-General on the basis that he was deprived of land by the registration of another person as proprietor of the land which is the basis for recovery set out in s 126(1)(c). However, in order to succeed on this basis, the plaintiff had to show that an erroneous registration was made by the person applying for registration. This was because of the effect of s 126(2) (discussed in detail below). This section was seen in Armour’s case to limit recovery against the Registrar-General under s 126(1)(c) to the situation where the person primarily responsible for the deprivation was the one on whose application the erroneous registration was made.¹⁵ While it was clear that the fraudster was not the one who made the application for registration, the effect of s 126(3), which was relied on by the plaintiff, was to make the person receiving the value (the fraudster in this case) the person on whose application the transferee was registered. So the plaintiff was able properly to assert that the fraudster was the person on whose application the erroneous registration was made. However, the plaintiff failed to show there was an erroneous registration within s 126(2)(b) because of the interpretation given to the phrase in Franzon’s case which required disconformity between the registration and the instrument on which it was based. It should be noted that Armour would have succeeded against the Registrar-General under s 127. This was the law at the time the Issues Paper was written. As will be seen in Chapter 3, it has been radically changed in New South Wales by the recent decision of the High Court in Saade v Registrar-General.¹⁶

2.13 The difficulties which have arisen with establishing the fraud basis for claiming compensation can be contrasted with the generosity given to its meaning by the New South Wales Court of Appeal in Parker v Registrar-General.¹⁷ In Parker’s case, an undischarged bankrupt named Gray befriended the Parkers and tricked them into signing a transfer of their land to a company. The company subsequently mortgaged the land. The Parkers were not paid and brought proceedings against Gray and the company. Title to the land was registered in the Parkers’ name but subject to the mortgage. The Parkers discharged the mortgage using borrowed money, and brought proceedings against the Registrar-General under RPA s 126. The Registrar-General sought to make a distinction between cases of forgery and those in which the owners are induced by fraudulent misrepresentation to sign transfers. He argued that compensation should be available in the first case, but not in the second. The Parkers succeeded in their claim for compensation. Justice Mahoney in the Court of Appeal stated that:

The categories of fraud are not closed; frauds may take on 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. Where as I have said, the particular fraud was directed to achieving the deprivation of land which occurred, I see no reason why the remedy against the person responsible for that fraud should be limited by reference to the means chosen to give effect to the fraud.¹⁸

2.14 In summary, under s 126(1)(a), a fraudster who never obtained registration to the property cannot be the subject of proceedings under the section and neither can an innocent proprietor who becomes registered as a consequence of fraud by a person who does not obtain registration. Also, a plaintiff who deals with a forger who purports to act on behalf of a (fictitious) registered proprietor cannot recover his or her losses against the Registrar-General.¹⁹ In addition, an action against the Registrar-General for the recovery of damages, where a person is deprived of his or her land by the registration of another person as proprietor of the land, will only succeed where the Registrar-General, the person obtaining registration or those acting for them failed to record the instrument accurately in the Register.

Loss through registration of any other person as proprietor

2.15 It has been said that this basis for recovery, contained in s 126(1)(c), overlaps with the others in s 126:

To the extent to which “any other person” is registered in consequence of fraud or of error, or through the bringing of land under the Act, subs (1)(c) overlaps the other contingencies provided in the subsection. It is probably intended to cover circumstances such as those in Boyd v Mayor of Wellington [1924] NZLR 1174; [1974] Gaz LR 489 where, without any fraud or error, except perhaps a mistaken view of the law, an existing proprietor was deprived by registration of an instrument alleged to be invalid.²⁰

2.17 Some authors have said that the section is only related to land which has already been brought under the Act, and thus does not overlap with s 126(1)(b) which enables recovery for losses resulting from bringing the land under the provisions of the RPA.²³ These authors are also in agreement with others who view recovery on this basis to be the same as that on the basis of error, omission or misdescription in the Register,²⁴ except that s 126(1)(c) does not require mistakes within the Land Titles Office:

Any person deprived through the error, omission or misdescription on the Register.

Professor Hogg contended for the view that this ground is really indistinguishable from (3) above [ie, s 126(1)(c)] and he suggested that it refers to mistakes in the Land Titles Office. However, though we agree with the first observation, the latter would render s 127 surplusage which should not be thought to have been the aim of the draftsman. Nevertheless, the words in both provisions seem identical except that s 127 is more fully expressed. The subsection covers a wrong name being entered on the Register where this cannot be cured but it seems to be within the express words of s 126(1)(c) as well.²⁵

2.18 The intention of the legislature regarding this basis for claiming is thus not clear. The authors of the leading real property texts are not in agreement as to whether the section requires an error to be made within the Land Titles Office or whether it contains the same requirements as s 127. Some authors are of the view that the provision is identical to s 126(1)(d) while others are of the view that it covers an additional category of mistakes of law and other losses not covered by the other bases for claiming in s 126.

In consequence of any error, omission or misdescription in the Register

2.19 It has been said that this provision is no different to a similar provision in s 127, and there is difficulty in seeing the purpose of this apparent overlapping. However, this provision is limited to errors in the Register, which is defined in s 31B(2) to be comprised of:

• folios;
• dealings registered therein under the RPA or any other Act;
• the record of all dealings relating to the computer folio;
• instruments of a prescribed class; and
• records which the regulations require the Registrar-General to keep as part of the Register.

2.20 Pre-registration dealings are not covered by the section.²⁶ Some authors, as noted above, are of the view that mistakes in the Land Titles Office are required by the section,²⁷ whilst others have said that they are not (otherwise, s 127 would be no different). Some authors, as stated above, have suggested that there should be no difference between s 127 and this basis for recovery, as cases which have interpreted s 127, such as Dempster v Richardson,²⁸ require misfeasance on the part of the Registrar-General²⁹ as an element which must be proved.

Person against whom damages are recovered

2.21 Under s 126(2) of the Act, the action available under s 126(1), can only be brought against the person:

• upon whose application the land was brought under the provisions of this Act;³⁰
• upon whose application the erroneous registration was made;³¹ or
• who acquired title to the land, or the estate or interest therein, through the fraud, error, omission or misdescription.³²

Section 126(2) provides an exception to this principle when actions are commenced against the Registrar-General as nominal defendant, namely, where the land is included in two or more folios, or an incorrect folio has been created.

2.22 Otherwise, generally, damages may be claimed from the Assurance Fund by action against the Registrar-General as nominal defendant only when a person who is liable for damages under s 126 is dead, bankrupt, insolvent or cannot be found within the jurisdiction.³³ The Registrar-General can also act as nominal defendant in another case under s 126, but it is necessary to look further at the provisions which limit recovery to certain persons before this other situation can be explained.

2.23 Section 126(3) further qualifies the categories of persons against whom an action can be brought. However, there has been much uncertainty whether this subsection applied to all three situations detailed above, or only to the last of fraud, error, omission or misdescription, or indeed to the last two. The subsection states :

In every case in which the fraud, error, omission, or misdescription occurs upon a transfer for value, the transferor receiving the value shall be regarded as the person on whose application the transferee was recorded as registered proprietor in the folio of the Register.

The words “fraud, error, omission, or misdescription” would seem to tie the subsection to s 126(2)(c) only. One author reaches this conclusion but is nevertheless forced to admit that “the section, all through, presents grave difficulties of construction”.³⁴ Another commentator goes further, describing the section as a whole as “complex and turgid Victorianese”.³⁵ Section 126(3) may also qualify s 126(2)(b) if, as some authors have suggested, the grounds in paragraph (b) are indistinguishable from paragraph (c).³⁶ The subsection makes the transferor receiving the value, rather than the transferee, liable for damages where it is necessary to determine who the person is on whose application the transferee was recorded as registered proprietor.

2.24 Therefore, if s 126(3) functions to qualify one or more paragraphs of s 126(2), it reverses their apparent effect as the person liable is not the transferee, that is, the person who makes the application or who acquires title through the fraud, error, omission or misdescription, but rather the transferor receiving the value. Liability will not, contrary to what paragraph (b) says, attach to the person seeking registration who is a transferee for value, who is normally the person who tenders the instrument for registration. This was a key issue in Franzon. As we have seen, under the equivalent provision in the Western Australian statute the person responsible for the fraud was the appropriate defendant. However, because there was no erroneous registration effected, and also because there was no acquisition of title, there could be no s 126-type access to the Assurance Fund.

Termination of liability for some defendants

2.25 Section 126(4) adds further complexity to the provisions which determine the identity of the defendant by terminating the “defendant’s” liability after a transfer by that person to a bona fide purchaser. This section states:

Except in the case of fraud or of error occasioned by any omission, misrepresentation, or misdescription in his application, or in any instrument executed by him, the person upon whose application such land was brought under the provisions of this Act, or such erroneous registration was made, shall, upon a transfer of such land bona fide for value cease to be liable for the payment of any damages which might have been recovered from him under this section.

2.26 Some authors have suggested that as no mention is made in s 126(4) of an end to liability under s 126(2)(c), liability remains in the situation outlined in the latter.³⁷ Section 126(4) is somewhat curiously expressed in this regard if it is linked to s 126(2)(c) as the former provision has an additional category of “misrepresentation,” and the “error” in the former has to be occasioned by “omission, misrepresentation, or misdescription” which injects a causal element not present in subsection (c). Neither the reasons, nor the consequences of the differences are apparent. Moreover, the ruling in Saade and the resultant expanded meaning of “erroneous registration” in New South Wales indicates how subsection (4) has no bearing on the liability of defendants such as Mr Saade, because liability continues after a transfer for value in cases of “fraud or of error occasioned by any omission, misrepresentation, or misdescription”. As we have seen, subsection (3) made the transferor receiving the value the person upon whose application the registration was made. Subsection (4) purports to relieve “the person upon whose application ... such erroneous application was made”, but only if there was no fraud present. Moreover, subsection (4) would not appear to absolve anyone who falls within the ambit of paragraph (c) as “[n]o mention is made in section 126(4) of an end to liability under s 126(2)(c)”.³⁸

2.27 Where defendants cease to be liable for damages, damages and costs of the action can be recovered out of the Assurance Fund by action against the Registrar-General as nominal defendant.³⁹ This is the other category for recovering against the Registrar-General.

Conclusions on defendant to be sued under section 126

2.28 It can be seen from the above discussion that the provisions determining which claims can be brought, and against whom, under s 126 appear somewhat complex. In most cases, where recovery by proceedings against the wrongdoer is available, this must first occur before action can be brought against the Registrar-General as nominal defendant. The provisions for recovery appear to create a multiplicity of proceedings, although this is overcome to a certain extent by the Registrar-General’s practice of making compensation payments in undisputed cases. It is clear however that s 126 operates to make the Fund the last resort for persons suffering loss under the RPA.

Actions against the Registrar-General as nominal defendant: section 127

2.29 Section 127 permits an action for the recovery of damages to be brought directly against the Registrar-General as nominal defendant. The section states:

When actions may lie against the Registrar-General as nominal defendant

127(1) Any person sustaining loss or damages through any 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 this Act, or by the registration otherwise than under section 45E of any other person as proprietor of land, or by any error, omission, or misdescription in the Register, and who by the provisions of this Act is barred from bringing proceedings in the Supreme Court or the District Court for possession of that land, or other proceedings or action for the recovery of such land, estate, or interest or to whose claim every such proceedings or action would be inapplicable may, in any case in which the remedy by action for recovery of damages as hereinbefore provided is inapplicable, [emphasis added] bring an action against the Registrar-General as nominal defendant for the recovery of damages.

• departmental error;
• the registration of any other person as proprietor of land (except for that under s 45E which relates to possessory applications); or
• errors, omissions or misdescriptions in the Register;

2.31 The section has been criticised with some force for being unduly narrow in its inapplicability to possessory applications.⁴⁰ Why there should be an exception to even the restricted terms of the section with respect to s 45E is incomprehensible: in this respect, apparently, the Registrar-General, and his or her officers may be as incompetent as they like without resort to the Fund.

Claims against the Assurance Fund

2.32 Under RPA s 133(c) a person suffering loss can look to the Assurance Fund if any loss or deprivation of land is caused by the inclusion of land in the same folio of the Register or certificate of title with other land through misdescription of boundaries or parcels of any land where the person liable for compensation is dead, or has absconded, or is insolvent or bankrupt, or is unable to pay the full amount awarded by the court by way of compensation or damages as certified by a sheriff. In the case where the same land is included in the same folio or certificate of title, it is unclear from the terms of the section whether it is necessary to bring an action against the Registrar-General as nominal defendant, as the only qualification in the section is proof of the circumstances described. The section states:

Assurance Fund only liable in certain cases

133 The Assurance Fund shall not, under any circumstances, be liable for compensation for any loss, damage, or deprivation occasioned -

...


(c) by any land being included in the same folio of the Register or certificate of title with other land through misdescription of land boundaries or parcels of any land, unless it is proved that the person liable for compensation and damages is dead or has absconded or is insolvent or bankrupt, or the sheriff shall certify that such person is unable to pay the full amount awarded in any action for recovery of such compensation and damages.

2.33 While the section does not refer to the need to commence an action for the recovery of damages against the Registrar-General as nominal defendant, proof of the circumstances appears to contemplate a determination of liability, the fact of insolvency or bankruptcy and an inability to pay, all of which, on the face of the provision, would arguably involve commencing proceedings against the “primary” defendant. In Behn v Registrar-General, the Registrar-General argued that judgment would actually have to be obtained against the fraudulent party before an action could be brought directly against the Registrar-General. However, Justice Holland held that it is only necessary to establish that one of the conditions of s 126(5) has been met for an action to be commenced directly against the Registrar-General.⁴¹

Barring of actions against the Registrar-General: section 130

2.34 Under s 130(3) a person who is deprived of an interest in land as a consequence of land being brought under the Act cannot bring an action for the recovery of damages against the Registrar-General where the person or person through whom he or she claims was aware that the land was being converted and had “wilfully or collusively omitted to lodge a caveat forbidding the bringing of the land under the provisions of the Act or had allowed such a caveat to lapse.” A similar provision applies to a claim of deprivation of land through the grant of a possessory application, except that there is no reference to the omission being wilful or collusive. The section states:

...where the person alleging the deprivation, or the person through or under whom he claims title, had notice by personal service or otherwise or was aware that the application had been made, and had omitted to lodge a caveat forbidding the grant of the application or had allowed such a caveat to lapse.

Bona fide purchasers and mortgagees protected: section 135

2.35 The final section amongst the compensation provisions which affects the identity of the defendant is s 135. This section states:

Purchasers and mortgagees protected

135. Nothing in this Act contained shall be so interpreted as to leave subject to an action for recovery of damages as aforesaid, or to proceedings in the Supreme Court or the District Court for possession of land or other 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 under the provisions of this Act 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, and this whether such fraud or error shall consist in wrong description of the boundaries or of the parcels of any land or otherwise howsoever.

2.36 This section does not mirror previous sections such as s 126(1), (2), (3) and (4). It uses the words “wrong description” rather than “misdescription” and does not refer to “misrepresentation” or “omission” The section intermeshes with RPA s 41, 42, 126 and 127⁴² ; for example, there is mention of the “wrong description of parcels or of boundaries” in s 42(1)(c). Section 135 also uses the terms “void or voidable instrument” which is not used in the complementary sections affecting compensation. The original section did not refer to the terms, and the later addition of the words, as explained in paragraph 3.10 of the Issues Paper, resulted from the acceptance of the new theory of immediate indefeasibility which is discussed in paragraph 2.39 below.

2.37 Section 135 forms in the Torrens system the category of “protection of purchasers” provisions in the mosaic of the other categories of “paramountcy”, “ejectment”, and “notice” provisions.⁴³ The paramountcy provision, contained in s 42, provides that, notwithstanding the existence in any other person of any estate or interest in land which but for the RPA might be held to be paramount or have priority, the registered proprietor of land or any estate or interest in land, except in the case of fraud, holds that land, estate or interest subject to such encumbrances, liens, estates or interests as are notified or recorded in the Register, but absolutely free from all others.⁴⁴ However, there are specific exceptions to the paramountcy of indefeasibility contained in the same section and s 42(1)(c) contains one of them.

2.38 Section 42(1) refers to a registered proprietor being

absolutely free from all other estates and interests that are not so recorded except:

...

(c) as to any portion of land that may by wrong description of parcels or of boundaries be included in the folio of the Register or registered dealing evidencing the title of such registered proprietor, not being a purchaser or mortgagee thereof for value, or deriving from or through a purchaser or mortgagee thereof for value; and...

2.39 In other words, a registered proprietor who is registered in respect of land included in the grant, certificate or folio by a wrong description of parcels or boundaries will not have a State guaranteed title⁴⁵ if he or she is the purchaser without value or has not taken from a purchaser for value. To put it another way, the exception to indefeasibility is inapplicable where the registered proprietor is a bona fide purchaser for value or someone deriving from or through such a purchaser.⁴⁶ Seen in this light, the relationship to s 135 is clear. Section 135 mirrors the effect of s 42(1)(c) in the sense that the latter exception is subject to the overriding rights of a bona fide transferee for value or anyone claiming through him or her. Section 135 while doing this, also protects a registered proprietor who is a bona fide transferee not only from proceedings resulting from a wrong description of parcels or boundaries, but also from proceedings involving fraud or error even if not involving a wrong description of the boundaries or parcels of land.

APPROACH OF THE LAND TITLES OFFICE

Compensation denied for a valid claim

2.40 In the Issues Paper, the Commission stated:

The principle of compensation has also been eroded by what one commentator has described as “the quite repulsive tenacity with which some jurisdictions are prepared to resist even valid claims upon the fund”. Some claimants become so frustrated with litigation that they decide to bear the loss themselves.⁴⁷

There is no direct evidence in New South Wales that claimants have become so frustrated with litigation that they decide to bear the loss themselves.⁴⁸ However, the general previous⁴⁹ approach of the Land Titles Office is perhaps illustrated in the case of Mayer v Coe⁵⁰ where the plaintiff, Mrs Mayer, failed in an action against Mr Coe under RPA s 126. In this case, Mrs Mayer’s solicitor without her authority granted a mortgage over her land to Mr Coe by forging Mrs Mayer’s signature on the mortgage documents. The solicitor absconded with the mortgage monies advanced by Mr Coe who believed that the solicitor was properly collecting the monies on Mrs Mayer’s behalf. The Court held that because the mortgagee who became registered was not a party to the fraud, Mrs Mayer’s claim under that head of s 126(1) could not succeed. The Registrar-General has subsequently suggested that the plaintiff may have succeeded against him in an action under RPA s 127.⁵¹ This is undoubtedly an accurate statement of the law. However, it was not suggested by him that Mrs Mayer’s valid claim was compensated ex gratia. Instead, Mrs Mayer appears to have borne her loss. It should be noted that the case would be decided in her favour today as a result of the decision in Saade.

Delay in paying compensation claims

2.41 It is clear that litigation is frustrating in terms not only of outcome, but of cost to the parties and the general community. A further example is the case of Northside Development Pty Ltd v Registrar-General⁵² which involved a compensation claim commenced in 1981 in the Supreme Court. This court’s decision was reversed in the Court of Appeal, which was followed by a further reversal in the High Court. Judgment of the High Court was handed down on 28 June 1990, in favour of the plaintiff almost nine years after proceedings commenced. The lengthy course of these proceedings must have been frustrating for both the Registrar-General and the plaintiff. The Northside case is discussed in paragraph 4.43 and is an illustration of an unfortunate waste of resources for all litigants involved. Appendix B to this Report contains details of claims lodged since 1975 including the dates when matters were commenced and the dates on which they were finally concluded.

Ex gratia compensation

2.42 While it is true that the Registrar-General has granted ex gratia compensation for departmental error, it is more appropriate that persons suffering loss have the certainty of recourse to the provisions of the RPA, rather than having to rely on the inclinations and broad discretion of the Registrar-General to pay appropriate compensation.

NARROW BASES FOR CLAIMING UNDER SECTIONS 126 AND 127

Limitations of recovery in section 127

2.43 There is some disagreement among authors on whether s 127 is broader in scope than s 126 because it covers purely financial losses and not merely losses which relate to deprivation of land. The favoured view of some authors⁵³ is that s 127 relates to the deprivation of land because, to rely on the section, the plaintiff must be:

• a person who is barred by the RPA from bringing proceedings for possession of that land; or
• a person who is barred by the RPA from bringing other proceedings or action for the recovery of such land; or
• a person to whose claim every such proceedings or action would be inapplicable; or
• a person to whom s 126 proceedings are inapplicable.

2.44 The last proviso has been interpreted to tie s 126 to s 127. Section 126 provides an action for the recovery of damages to plaintiffs who are deprived of land or of any estate or interest in land. If this interpretation is accepted, this limitation makes the compensation provisions narrow in scope. Paragraph 5.9 of the Issues Paper suggested that the bases for claiming compensation are narrow, that is, a claimant must establish deprivation of land or an interest in land and not simply that loss or damage has been sustained, as is the case in Victoria. However, paragraph 3.5 of the Issues Paper suggested that, unlike s 126 which requires proof of deprivation of land, s 127 only requires proof of loss or damage. The two statements are clearly inconsistent⁵⁴ and it is suggested that the second proposition is accurate for the reasons appearing below, while the other view is at best arguable, even though it appears to be the favoured one among some authors.

Compensation said to be available only if deprivation of land occurs

2.45 Section 126 provides an action for the recovery of damages to plaintiffs who are deprived of land or of any estate or interest in land. Purely financial loss cannot be recovered. This limitation makes the compensation provisions narrower in scope than, for example, the Victorian legislation which allows persons sustaining loss or damage whether by deprivation of land or otherwise to claim an indemnity from the Registrar of Titles if any of the grounds listed in s 110 of the Transfer of Land Act 1958 (Vic) apply. Section 127, by contrast, which is mainly concerned “to provide a remedy for persons sustaining loss through Departmental errors and where no other remedy is available,”⁵⁵ is expressed to cover “loss or damages”. However, even if s 127 is available for purely financial loss, its scope has been substantially restricted by the court’s reluctance to attribute liability to the Registrar-General for errors.

2.46 The Tasmanian case of Dempster v Richardson is a good illustration of the narrow construction of the bases for claiming losses resulting from “departmental error” and “errors in the Register” contained in s 127. The application of this decision in New South Wales would result in parties being deprived of compensation who would otherwise be reasonably entitled to it.⁵⁶

2.47 In the Dempster case, the plaintiff, Mrs Dempster commenced building on a road frontage of 74 ft 9 in which was indicated on her certificate of title. It was discovered that there was only 74 ft legally available to be built on. Her neighbour demolished one of the walls which encroached on the adjoining land. Mrs Dempster claimed compensation from the Fund on the basis that the Recorder of Titles made an error by misstating the dimensions in the certificate of title. The High Court rejected this argument holding that the error was made by the previous registered proprietor who intended to transfer title to frontage he did not have.⁵⁷ The High Court also stated that the right of action given by the Tasmanian equivalent of RPA s 127 is clearly and definitely governed by the limitation expressed in the words “in any case in which the remedy by action for recovery of damages as hereinbefore provided is barred”.⁵⁸

The distinction between “barred” and “inapplicable” in section 127

2.48 An important issue of interpretation arises by the use of the word “inapplicable” in addition to “barred” in s 127. Woodman and Nettle have suggested the following consequences result from the court’s interpretation of this limitation:

The effect of those words is to tie the Tasmanian equivalent of s 127 to the equivalent of s 126.⁵⁹

But this statement by itself, if baldly applied to New South Wales as being the effect of the decision, ignores the distinction between “barred” and “inapplicable” in the New South Wales statute. Woodman and Nettle do, however, point to the significance of the distinction by observing that the right of action may be inapplicable without being barred. According to the authors writing on the High Court’s construction of the Tasmanian section, the right of action appears to be restricted to cases of loss which would found an action inter partes. It would not be available in the case of an error made by the Recorder for which he or she only could be blamed. For example, if in issuing a new certificate of title for a servient tenement he or she omitted to carry forward the memorial of a covenant, and the dominant owner thereby suffered loss, there is no right of action given by the preceding section which could be barred; but that would be a case to which the right of action given by the section is inapplicable. The difference in wording suggests that, in the situation set out, s 127 of the New South Wales Act would apply.

Section 127 reduced in scope by court’s interpretation of error

2.49 Even though recourse may be had to the Registrar-General under RPA s 127 in the specific example given by Woodman and Nettle, if the facts in Dempster’s case recurred here, the result could be the same. So a plaintiff in the same situation as Mrs Dempster could be denied compensation. Justice Starke in Dempster’s case found that the error in the certificate of title was not due to an omission, mistake or misfeasance of the Recorder but was the fault of the predecessor in title of Mrs Dempster or the predecessor’s surveyor.⁶⁰ Justices Rich and Dixon implied that the adoption by the Recorder of the erroneous measurement was not within the then Tasmanian equivalent of s 127.

Even if it could be said that the adoption of the measurement by the Recorder was an omission, mistake, or misfeasance within the general meaning of these words, a thing which we do not say [emphasis added], yet it is clear that it is not such a case that sec 128 contemplates.⁶¹

Also relevant in this context is the question whether the losses recoverable under s 127 must relate to the deprivation of land. There is some uncertainty as to whether s 127 applies to purely financial losses. Woodman and Nettle are of the view that the “section is ... related to the recovery of land, and has no application to losses sustained otherwise than by the deprivation of land”.⁶² Other writers are of the view that “a right of action exists although the loss does not consist of the deprivation of any estate or interest in land”.⁶³ However, this is by no means clear in the provision, and the position should be clarified.

2.50 In Oakden v Gibbs,⁶⁴ land was brought under the Transfer of Land Act 1958 (Vic) but the Registrar did not endorse that fact on the last material registered documents which were lodged by Thomson, the owner. He was issued with the certificate of title. Thomson produced the Old System deeds for the land and, fraudulently withholding the fact that the land had been brought under the Transfer of Land Act, borrowed money on the security of the general law title deeds, by mortgaging the land described in the Old Title deeds to the borrowers, the plaintiffs. The plaintiffs searched the register under the old law which showed Thomson to be the owner. The plaintiffs did not search the Torrens register. Thomson subsequently sold the land. It was held that the lenders on the security had never obtained an interest in land as, at the time, the land was registered and the deeds were valueless. The plaintiffs could not maintain an action against the Registrar-General for compensation for deprivation.⁶⁵ The wording of the equivalent of s 127 in the Victorian case of Oakden was similar to that in Dempster’s case in its reference to the use of the word “barred” rather than “barred or inapplicable”. This would mean that if the facts of Oakden’s case were repeated in New South Wales, even if a purely financial loss occurred, it may be that a plaintiff could rely on s 127 to recover compensation. However, the majority in Oakden’s case stated that the Registrar-General’s neglect must have been the sole cause of the plaintiff’s loss. In this case, Thomson’s fraud was the immediate cause of the loss, and at most, the Registrar-General’s neglect enabled Thomson to commit the fraud and was only indirectly the cause of the loss.⁶⁶ The effect of Oakden’s case in New South Wales would be that s 127 cannot assist a plaintiff to recover any loss whenever that loss has resulted from an error of an official as well as from the fraud of a third person. The Court said:

If it be said that the word “through,” in s 146, [the equivalent of s 127 in New South Wales] points more strictly to an indirect, as the word “by” to a direct, cause of loss; still we think there are no grounds to justify the extension of the loss not merely to an injury resulting from the act of omission or commission of an official, but to an injury resulting from such an act combined with the fraud of a third person.⁶⁷

Thus the scope of s 127 is narrow, even though it may be broad enough to apply to purely financial losses.

Narrowness of “error” and the problem of overriding statutes

2.51 Another limitation on the right to compensation is that it may only be available for registrable interests which are registered, although this is not clear.⁶⁸ So for example, in the case of Trieste Investments Pty Ltd v Watson⁶⁹ where there was a resumption under the Public Roads Act 1902 (NSW) which was not registered, the Court held that s 127 was not available to the plaintiff. The plaintiff’s title was not indefeasible on the ground that the Public Roads Act was an overriding statute. Consequently, title over the land resumed arose by virtue of the formalities required by that Act rather than by virtue of the registration provisions of the RPA. The court held that no compensation was payable in this case, because the RPA at the time empowered the Registrar-General only to record particulars of instruments, dealings and matters required or authorised by the Act to be entered: resumptions prior to 1930 could not be registered because the Registrar-General had no power to register them. The Court failed to refer to the power conferred by s 14 of the Real Property (Amendment) Act 1921 whereby the Registrar-General could record a statutory vesting on receipt of a formal application to do so.⁷⁰

2.52 In Trieste’s case, Chief Justice Herron said:

In my opinion, the words error or omission are subjective in application and connote something more than simply not there or absent from. Whilst misdescription is a word of greater objectivity, none the less it conveys the same notion of a mistake in a description authorized to be made under the Act. Considered in light of the rest of the Act and of the Torrens system generally, I think the first two words relate to errors or omissions in details where such by the Act are authorized to have been made and are not made. I do not base my opinion on any want of duty by the Registrar-General but upon the scope of his authority conferred by the Act to note or register this resumption.⁷¹

This interpretation was endorsed in the judgment of Justice Nagle:

Each of these words appears to me to convey the concept of something lacking from the register book which would be expected to be in it, and I do not think that it can be said that there is “an error omission or misdescription”, if, consonant with the provisions of the Act, the particular entry might or might not be found on the register. Unless one closes one’s eyes completely to the remainder of the Act it seems to be difficult to say anything can be in error or omitted or misdescribed unless it is error, omission or misdescription contemplated by the Act itself.⁷²

2.53 Section 31A(3)(a) of the RPA now gives the Registrar-General power to record a resumption in the Register where he or she has notice of a resumption, and some authors are of the view that this power cures the problem inherent in Trieste’s case.⁷³ However, under s 31A(4)(b) of the RPA, actions against the Registrar-General for the recovery of damages for deprivation of land are barred where the Registrar-General does not choose to record a resumption, so that even if the problem inherent in Trieste’s case is covered by the section, the damages action may only be available if the Registrar-General exercises the power and makes an entry incorrectly. It is instructive to compare the approach of the majority to that of Justice Ferguson who dissented, concluding that the obligation to pay compensation had nothing to do with the question of the Registrar-General’s duty. The mere fact that the register misdescribed the true situation was enough to sustain the plaintiff’s claim: after all, the loss was due to the plaintiff’s reliance on the register.

2.54 This decision has been criticised as paying

insufficient attention to the necessity for maintaining the integrity of the register and misconceives the basis for awarding compensation to a registered proprietor. An order for compensation does not imply neglect on the part of the Registrar-General, but merely that a purchaser has sustained loss by relying on the register and, therefore, in accordance with the goals of the system, should be compensated for the loss.⁷⁴

As will be seen later, this decision may be limited by a recent decision of the Supreme Court.⁷⁵

Summary

2.55 Even if the obscurity of the compensation provisions is not, of itself, sufficient justification for their revision, the Commission is of the view that the insurance principle is not being effectively fulfilled, and that statutory reform is necessary for this reason alone. As has been seen above, the complexity of the provisions has been at least partly due to the narrow interpretation given to the reach of the sections. In particular, the High Court’s restrictive interpretation of the words “omission, mistake or misfeasance of the Registrar-General” in Dempster’s case would narrow the section’s effect and deprive of compensation parties in New South Wales in Mrs Dempster’s situation. Likewise, Trieste indicates the limited nature of the protection in respect of unregistered resumptions by statutory authorities. Similarly, the requirement in Oakden’s case that the Registrar-General’s neglect must be the direct cause and not merely a contributing factor which leads to the plaintiff’s loss for s 127 to apply narrows the scope of that section for assisting plaintiffs where purely financial loss has been occasioned. On the question of compensation of economic loss the New South Wales legislation seems to permit greater access to the Fund under s 127 than the equivalent Tasmanian section (as it then was) because of the use of “inapplicable” rather than “barred”. The difference in wording suggests that financial losses are compensable under the provision but, in view of the divergence of opinions of experts in the area, the lack of clarity in the section and the resources spent in interpretation of the section, the grounds for amendment are compelling.

CONCLUSION

2.56 The compensation provisions of the RPA operate as an insurance scheme only to a limited extent because of the primary responsibility on victims to commence action initially against the person responsible for the loss. In conjunction with the demonstrable complexities of the language of s 126 and 127 claimants face considerable hurdles in ultimately getting compensation. The High Court decision in Franzon, for instance, shows the problems faced by persons who are victims of certain types of fraud. There is also evidence of delay in the payment of compensation in New South Wales. The poor drafting of the compensation provisions might also explain the cautious approach of the Land Titles Office in awarding compensation in the past, and its determination to resist claims in the courts. Finally, while it seems that s 127 allows recovery of compensation for losses not involving deprivation of land, the scope of the section has been restricted by the court’s reluctance to attribute liability for certain errors to the Registrar-General and to award compensation in certain situations only if the Registrar-General’s error was the sole cause of the loss.

FOOTNOTES

1. It is now settled in New South Wales that volunteers receive the benefits of indefeasibility in the same way as other registered proprietors: Bogdanovic v Koteff (1988) 12 NSWLR 472. This will be discussed in detail in the next chapter: paras 3.27-3.29.

2. New South Wales Law Reform Commission, Torrens Title: Compensation for Loss (Issues Paper 6, December 1989) at paras 1.4-1.5.

3. Conveyancing Act 1919 (NSW) Part 23.

4. A J Bradbrook, S V MacCallum and A P Moore, Australian Real Property Law (Law Book Company, Sydney, 1991) at [4.03]; R T J Stein and M A Stone, Torrens Title (Butterworths, 1991, Sydney) at 4-6.

5. Frazer v Walker [1967] 1 AC 569.

6. D J Whalan, The Torrens System in Australia (Law Book Company, Sydney, 1982) at 345-346.

7. IP 6 at para 1.6.

8. See also: IP 6 at para 3.9; generally, differences in judicial interpretation of RPA s 127 are in Trieste Investments Pty Ltd v Watson (1963) 64 SR (NSW) 98; Armour v Penrith Projects Pty Ltd [1979] 1 NSWLR 98 at 101 per Needham J; M A Neave, C J Rossiter and M A Stone, Sackville and Neave Property Law: Cases and Materials (5th ed, Butterworths, Sydney, 1994) at 528; R A Woodman and K Nettle, The Torrens System in New South Wales (Law Book Co) at [121.3] and [126.2]; P J Butt, Land Law (2nd ed, Law Book Company, 1988) at 534; Whalan at 346, 351.6, 352.6, 354.9, 357.5, 359.5, 308.5; Sir Laurence Street, Submission (29 January 1988) at para 3; Stein and Stone at 350 (although note that the authors suggest that the original purpose of the Assurance Fund was either to allay fears of hostile lawyers and others, perhaps; or to afford administrative latitude (the former being more plausible), rather than have any insurance or assurance purpose: see 349-350).

9. R A Woodman and K Nettle, The Torrens System in New South Wales (Law Book Co, Sydney) at [126.3].

10. Stein and Stone at 357.

11. (1975) 132 CLR 611.

12. Registrar-General, Submission (29 October 1990) at 9. Section 127 is discussed at paras 2.29-2.31.

13. [1979] 1 NSWLR 98.

14. Stein and Stone at 100.

15. Armour v Penrith Projects Pty Ltd [1979] 1 NSWLR at 101.

16. (1993) 179 CLR 58.

17. [1977] 1 NSWLR 22.

18. Parker v Registrar-General [1977] 1 NSWLR 22 at 30.

19. Gibbs v Messer [1891] AC 248. The Privy Council’s judgment was delivered by Lord Watson who said at 258:

“In the opinion of their Lordships, the duty of ascertaining the identity of the principal for whom an agent professes to act with the person who stands on the register as proprietor, and of seeing that they get a genuine deed executed by that principal, rests with the mortgagees themselves; and if they accept a forgery they must bear the consequences.”

20. Woodman and Nettle at [126.7]. In Boyd v Mayor of Wellington, the plaintiff was the registered proprietor of lands which were resumed by the defendants for the purposes of a tramway. The proclamation which effected the resumption was defective in form and invalid for this reason. The question was whether the title of the defendants could be upset because of the defects in the proclamation. The New Zealand Court of Appeal by majority held that even assuming that a proclamation taking land under the Public Works Act was void, its registration conferred an indefeasible title in the absence of fraud, of which there was no evidence.

21. (1893) 5 QLJ 46.

22. Whalan at 349-350.

23. Stein and Stone at 352.

24. RPA s 126(1)(d).

25. Stein and Stone at 352.

26. Woodman and Nettle at [126.8]; Whalan at 350.

27. Woodman and Nettle at [126.8]. It has been held that, in an action under s 126, it is not necessary to prove misfeasance on the part of the Registrar-General.

28. (1930) 44 CLR 576: discussed below at paras 2.46-2.47.

29. Whalan at 350.

30. RPA s 126(2)(a).

31. RPA s 126(2)(b).

32. RPA s 126(2)(c).

33. RPA s 126(5)(b). See Price v Registrar-General (NSW Supreme Court, Windeyer J, 14 March 1996, ED 2985/95, unreported) at 13.

34. A P Canaway, The Real Property Act, 1900 (New South Wales): With Notes and Index (Law Book Company, Sydney, 1902) at 185-6, cited in Saade v Registrar-General (1993) 179 CLR 58 at 66.

35. W D Duncan, “State Indemnified Title in Queensland - Success or Failure” (1977) 10 University of Queensland Law Journal 15 at 28.

36. Stein and Stone at 354; J E Hogg, The Australian Torrens System (William Clowes, London, 1905) at 853.

37. Stein and Stone at 354.

38. Stein and Stone at 354.

39. RPA s 126(5)(a).

40. Stein and Stone at 356.

41. Behn v Registrar-General [1979] 2 NSWLR 496, affirmed on appeal on similar grounds: [1980] 1 NSWLR 589 (CA); (1981) 35 ALR 633 (HC).

42. Stein and Stone at 358.

43. Whalan at 293; Woodman and Nettle at [42.2] state that s 40, 43, 44, 124 and 135 must be read with s 42 in order to obtain a complete picture of indefeasibility of title.

44. Whalan at 293.

45. See Whalan at 297, who together with some other authors, views the phrase “indefeasibility” of title as being somewhat of a misnomer, in view of the attacks which can be made on title; see also Bradbrook, MacCallum and Moore at [5.23].

46. Bradbrook, MacCallum and Moore at [5.52].

47. NSWLRC IP 6 at para 2.11.

48. As observed in Registrar-General, Submission (6 April 1990) at paras 4-5.

49. We say “previous”, because it has become obvious to us, from our consultations with representatives from the Land Titles Office, that the Office wants to encourage claimants to settle valid claims administratively with the Registrar-General rather than commence proceedings in Court.

50. (1968) 88 WN (Pt 1) (NSW) 549.

51. Registrar-General, Submission (6 April 1990) at para 11.

52. (1990) 170 CLR 146.

53. Woodman and Nettle at [127.3]; Whalan at 347; Butt at 353; Stein and Stone at 353.

54. Registrar-General, Submission (6 April 1990) at para 18.

55. R A Woodman and P J Grimes, Baalman on The Torrens System in New South Wales (2nd edition, Law Book Company, Sydney, 1974) at 411.

56. The Registrar-General, Submission (6 April 1990) at para 18 has questioned the application of the case of Dempster v Richardson to show that the bases of claim are too narrow and to support the claim in IP 6 para 5.9 that parties reasonably entitled have been deprived of compensation. These arguments were raised to show that the relevant provisions of the RPA require revision.

57. Dempster v Richardson (1930) 44 CLR 576 per Starke J at 590-591.

58. Dempster v Richardson per Rich and Dixon JJ at 591.

59. Woodman and Nettle at [127.2].

60. Dempster v Richardson (1930) 44 CLR 576 per Starke J at 590.

61. Dempster v Richardson at 588.

62. Woodman and Nettle at [127.3].

63. Whalan at 355.

64. (1882) 8 VLR (L) 380.

65. Oakden v Gibbs (1882) 8 VLR (L) 380 at 394-395, 400; see also Stein and Stone at 353.

66. Oakden v Gibbs at 399.

67. Oakden v Gibbs at 399.

68. Stein and Stone at 355.

69. Trieste Investments v Watson (1963) 64 SR (NSW) 98.

70. Woodman and Nettle at [127.2].

71. Trieste at 104.

72. Trieste at 109.

73. Woodman and Nettle at [127.2].

74. Neave, Rossiter and Stone at 531.

75. See paras 3.9-3.14.