Statutory interpretation

As early as 1825, there was already a statutory system of registration created in New South Wales known as the Registration of Deeds Act 1825 (NSW). It was a response to the uncertainty of the private conveyancing process which necessitated historical searches and a serious peek behind the register. At this point, the register was simply a deed registration system that only provided for registration of title deeds and other documents relating the transfer of land. The Torrens system of registration offered was thus introduced gradually in Australia to provide a positive land registration system. Notably, the Torrens system gave simplicity and security to land transactions. If you are seeking law dissertation help, understanding the historical development of land registration systems like the Torrens system can provide the most valuable insights.

Accordingly, Real Property Act of 1861 was enacted and recently, the Land Titles Act which provides for indefeasibility of title and its exceptions. Sections 27 and 38 were thus meant to cure what the deed registration system had failed to do, which is to guarantee validity and effectiveness of rights and interests in the register subject to exceptions. Previously, the exceptions to an indefeasible title were governed by common law principles. Currently, these qualifications are the subject of sections 184 and 185 of the Land Titles Act.

In curing the uncertainty in the old land regime, the Land Title Act intended to provide a register of conclusions. It follows that purchasers of land can freely transact in land confident that the information contained in the register is a guarantee regardless of the process in which it was acquired. Hence, a person who holds a registered title has immunity from adverse attacks on his good title. However, the legislators also intended that the holder of an indefeasible title owns the said land in line with the terms prescribed as well as subject to registered interests prescribed by statute. Essentially, the relevant sections conveyed the legislative intent of the drafters have registered land owners to be only subject to registered interests in that land. Any unregistered interests in such land will not defeat the good title held by the registered land owner.

A contextual analysis of the statutory provisions regarding a conclusive title indicates that registration is paramount. The Act makes it mandatory for interests to be

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1. Esmaeili Hossein and Brendan Grigg. The boundaries of Australian property law. (Cambridge University Press, 2016)66
2. Land Title Act 1994
3. Kirby, Michael. ‘Statutory interpretation: the meaning of meaning.’ Melbourne University Law Review 35 (2011): 113.

registered in land in order for them to bind the registered land holder. In fact, the mere fact that a registered landholder had constructive notice of unregistered interest, it does not affect his title whatsoever. Therefore, it does not matter the manner in which a given parcel of land was acquired by the proprietor, the effects or registration applies even if such acquisition was irregular.

Section 38 of the Land Titles Act implies that one does not need to go behind the register to determine whether the land they seller has a good title because particulars in the register are conclusive. The provisions of this statute are best explained in Fraser v Walker which has over the years been applied in cases like Elroa Nominees Pty Ltd v Register of Titles. In the latter, a mortgage was acquired by one of the proprietors by forging of the signature of her partner unbeknown to the mortgagee. In exercising their power of sale, the proprietors argued that the mortgage was void since it had been obtained by fraud. The court found for the mortgagors holding that the principles of immediate indefeasibility applied. It can thus be deduced from the above that even registration of a void instrument will still be valid and confer property rights to the person named. However, it is to be noted that indefeasibility does not mean absolute indefeasibility, and for that reason there are qualifications in the same statute.

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Bibliography

Article

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4. [1967] AC 569
5. [2003] QCA 165

Kirby, Michael. ‘Statutory interpretation: the meaning of meaning.’ (2011) 113 Melbourne University Law Review 35

Books

Esmaeili, Hossein, and Brendan Grigg. The boundaries of Australian property law. (Cambridge University Press, 2016)

Cases

Elroa Nominees Pty Ltd v Register of Titles [2003] QCA 165

Fraser v Walker [1967] AC 569

Legislation

Land Titles Act 1994

Registration of Deeds Act 1825

Real Property Act 1861