Mark Anthony Conlan (As Liquidator of Oakleigh Acquisitions Pty Ltd) & Ors v Registrar of Titles & Ors [2001] WASC 201

Mark Anthony Conlan (As Liquidator of Oakleigh Acquisitions Pty Ltd) & Ors v Registrar of Titles & Ors [2001] WASC 201 - WASC 2001 case summary — Zoe

[227]

"... the effect of the registration of a subsequent dealing bringing about the registration of proprietorship of an estate or interest in land is to extinguish all prior unregistered estates or interests which, but for that registration, would have conflicted with the proprietor's estate or interest or encumbered that estate or interest, unless the prior unregistered estate or interest falls within the exceptions to indefeasibility of title mentioned in s.68. In other words, a person seeking to preserve an unregistered interest not falling within those exceptions must register that interest in advance of the registration of a subsequent inconsistent dealing or prevent such registration by caveat or otherwise, and thereby enable registration of the unregistered interest. Once that interest is defeated by registration of a subsequent inconsistent dealing bringing about the registration of a new proprietor, the first interest is extinguished for all purposes and cannot be asserted against any later proprietor. The first interest does not become an inchoate interest capable of being asserted against a later proprietor or an interest which remains in suspension so that it is capable of subsequent revival against such a proprietor. ... .

It is an incident of the indefeasibility of the title of the registered proprietor not only that he or she holds free from prior unregistered interests, except those specified in s.68, but also that he or she has the capacity to transfer a title to the interest of which he or she is proprietor to a successor, free from such unregistered interests. In this respect, the operation of the Act is similar to the operation under the general law of the doctrine of the bona fide purchaser for value who acquires the legal estate without notice of a prior equitable interest. The acquisition of the legal title by such a purchaser in those circumstances defeats the prior equitable interest in the sense that the interest is destroyed. Thus a subsequent purchaser with notice of the equitable interest, who purchases from the first purchaser, is not bound by the interest. If it were otherwise, a bona fide purchaser might be unable to deal with his or her property. The sale of the property would be clogged."

[248]

Section 19 is a repealed provision which, while it was in force, provided that an endorsement of notice of survivorship on a registration of a grant of fee in joint tenancy for any public purpose would be made by the Registrar. I do not think it assists the applicant.
Section 42 is another transitional provision concerned with the bringing of land into the Torrens system. It authorises the Commissioner to accept a memorial of the registration of a lease as proof of its contents without the need to call for the lease document. The section provides that unless the memorial discloses "a right of renewal or purchase" no such right shall be assumed to have existed. The import of this section is to permit reliance on the memorial rather than on the underlying contractual document. It has nothing to say about the difference between volunteers and those who have given consideration. It simply deals with a particular form of contract, namely, a lease, which contains a particular contractual provision, namely an option to renew or to purchase.
Sections 46 and 47 refer to sales by a court or pursuant to an order of the court. It is highly unlikely that a court would order that land be gifted. I think the section assumes a sale.
Section 52(4) provides that the person named in a certificate of title or in an instrument purporting to affect land as a proprietor or having estate or interest or power in relation to the land that is the subject of a certificate or instrument shall be deemed to be the registered proprietor of the land or to have the estate or interest or power in relation to the land. In my view this is simply one of the indefeasibility provisions of the TLA. It does not contain, either expressly or by implication, a qualification limiting its application to a situation where value has been given.
Section 67 deals with a situation where a proprietor of land brings an action for specific performance of damages against a person "who may have contracted to purchase such land". Again, that is a particular situation in which there is a contract to purchase. It does not mean (or imply) that a registered proprietor cannot take advantage of the doctrine of indefeasibility unless that proprietor has given value. It focuses on the conclusive nature of the certificate of title, in so far as the proprietor is concerned, in the nominated situation, namely where there has been a contract to purchase land.
Section 78 is concerned again with a transfer by a sheriff or the Magistrate of a Local Court or mortgagee to a purchaser of any land or for the purpose of rectifying or cancelling a certificate. All that it does is to place on a judgment debtor, mortgagor, mortgagee or proprietor having custody of a certificate or instrument an obligation to deliver it up to the Registrar on demand. Once again, I do not find any support in this provision for the proposition that indefeasibility does not apply to volunteers.
Section 83T(3)(f) relates to action under a crown lease under s 261 of the Land Administration Act 1997. That provision provides that where the holder of the crown lease is insolvent the person who is administering the estate of the insolvent may sell the lease to a purchaser who would be qualified to hold it under the terms of the legislation. This has nothing to say about the issue here under discussion.
Sections 108, 110 and 128 are all concerned with sales by mortgagees and have nothing to say about volunteers.
Section 133, which deals with sales a writ of fi fa or decree or order of the Supreme Court, contains a specific limited volunteer's exception. An express exception of this nature would be unnecessary if there were a general exception.
Section 183 is, in essence, an administrative means giving effect to a vesting order made by the Commissioner. It refers only to the a "sale" where the purchase price has been paid in full but the conveyance has not been completed because the vendor is dead or resides out of the jurisdiction. In that context it is not surprising that the section refers to (and is limited to) a purchase where the consideration has been paid. After all, it has some of the hallmarks of the administrative mechanisms necessary to give effect to a decree of specific performance.
Section 201 relates to the right of a person deprived of title to land by fraud or similar misfeasance to obtain compensation. Relevantly, the right is limited to the value of consideration actually received once the land has been transferred bona fide and for value. That is logical when the particular situation to which the section refers is considered. But again, it does not require the TLA to be interpreted in such a way that the doctrine of indefeasibility is of more limited application than the express provisions of the legislation seem to suggest.

[263]

"It is to be noted however that Breskvar and Frazer were each concerned not with the situation of a mere volunteer but with that of a purchaser for value. In neither case was the judgment of Adam J considered by the court. Moreover, in the High Court decision of Bahr v Nicolay, which is not cited in Bogdanovic, there are passages in various of the judgments that appear to confine the protective operations of the relevant Transfer of Land Act sections to purchasers for value. (Again there is no reference to King v Smail).

............

In my view the reasoning in the High Court decisions does not destroy the principles enunciated in King's case. That case is a careful reasoned judgment and, with respect, I prefer it to that of the New South Wales Full Court in Bogdanovic. It is to be noted that Bogdanovic contains no discussion of the rationale for distinguishing between the indefeasibility of title of a purchaser for value as distinct from a mere volunteer.

.............

Whilst granting the importance of what has become known as the 'paramountcy provisions' of the Torrens statutes (for example s 42), there is an overriding principle of fairness which ought to permit a person whose equity in land will be defeated by the actions of the penultimate registered proprietor in donating such land to a volunteer to enforce that equity in the land against such volunteer albeit that the volunteer has become the registered proprietor of it. A distinction in the application of the indefeasibility provisions to a bona fide purchaser for value and a mere volunteer is, in my view, both rational and principled. On the one hand it recognises the desirability of commercial certainty in property transactions and on the other allows full play to equitable precepts.

Consequently I regard the decision of Adam J in King v Smail as correctly stating the law in Victoria and accordingly I do not regard the plaintiff's claim as defeated by the circumstance that the defendant is now the registered proprietor of the disputed property."

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Mark Anthony Conlan (As Liquidator of Oakleigh Acquisitions Pty Ltd) & Ors v Registrar of Titles & Ors [2001] WASC 201 (3 August 2001)

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