[1] Department of Information Technology and Management (NSW), Annual Report 1998-1999, at 28.
[2] Department of Information Technology and Management (NSW), Land and Property Information, Bulletin No. 29, August 2001 at 3.
[3] See generally, Department of Natural Resources (Qld), Land Titles Customer Services Bulletin, December 2000.
[4] R. Cocks and J. Barry, "Electronic Conveyancing: Challenges for the Torrens System", (2001) 8 APLJ 270.
[5] See for example, D. Whalan, "Electronic Computer Technology and the Torrens System", (1967) 40 ALJ 413.
[6] For a discussion of the problems and possibilities in the United Kingdom Land Registration for the Twenty-First Century- A Consultative Document, Law Com No. 254, Cm 4027, September 1998: for developments in the United States see DA Whitman, "Digital Recording of Real Estate Conveyances", (1999) 32 J. Marshall L. Rev. 227.
[7] See generally, M. J. Trebilcock, "An Introduction to Law and Economics", (1997) 23 Monash University Law Review 123.
[8] The relevant Torrens legislation in each jurisdiction is as follows: Land Titles Act 1925 (ACT); Real Property Act (NT); Land Title Act 1994 (Qld); Real Property Act 1886 (SA); Land Titles Act 1980 (Tas); Transfer of Land Act 195
[8] (Vic); Transfer of Land Act 1893 (WA); Real Property Act 1900 (NSW).
[9] On the assurance fund, see the following sections: Land Titles Act 1925 (ACT) ss154/155; Land Title Act 1994 (Qld) ss188-190; Real Property Act 1886 (SA) ss203-04; Land Titles Act 1980 (Tas) ss152/153; Transfer of Land Act 1958 (Vic) 109; Transfer of Land Act 1893 (WA) ss 201,205; Real Property Act 1900 (NSW) s126. Interestingly the Northern Territory legislation makes no provision for compensation.
[10] As commented in the American context by C Dent Bostick, "Land Title Registration: An English Solution to an American Problem", (1987) 63 Ind L. J. 55 at 55-56: "Some fifty years ago, respected American legal scholars engaged in an extended debate on the virtues and the feasibility of land title registration. That subject was not one that might be expected to rivet the attention of the academic legal community, let alone that of the profession at large. Beyond the legal profession, there was probably no awareness of this scholarly debate among the American public. Yet this professorial exchange centered on a subject of substantial national importance. It is not an overstatement to suggest that problems relating to matters of title assurance have affected directly the pocketbook of every American who has brought or sold land in this century. Any practitioner who has had to explain to a client the astonishingly high 'closing costs' related to title search and title insurance, and any client who has had to pay these costs, is painfully aware of the shortcomings of title assurance under the existing American practice." (citations omitted).
[11] Land Titles Act 1925 (ACT) s52; Real Property Act (NT) s80; Land Title Act 1994 (Qld) s46; Real Property Act 1886 (SA) s80; Land Titles Act 1980 (Tas) s40; Transfer of Land Act 1958 (Vic) s41; Transfer of Land Act 1893 (WA) s63; Real Property Act 1900 (NSW) s40.
[12] For a discussion concerning the retention or abolition of the assurance fund, see the joint paper issued by the Law Reform Commissions of Victoria and New South Wales, Torrens Title: Compensation of Loss, June 1989.
[13] On this last aspect, it can be noted that an American scholar has considered the economic benefits of Torrens title against title assurance systems that primarily operate in the United States. See J. T. Janczyk, "An Economic Analysis of the Land Title Systems for Transferring Real Property", (1977) Journal of Legal Studies 2
[13] and by the same author: "Land Title Systems, Scale of Operations, and Operating and Conversion Costs", (1979) Journal of Legal Studies 569. See also Ontario Law Reform Commission, Report on Land Registration, Department of Justice, 1971.
[14] As noted in Breskvar v. Wall (1971) 126 CLR 376; (1972) ALR 205.
[15] Bostick, above n 10 at 60.
[16] As noted by Bostick above n 10 at 61.
[17] As noted by S. Birrell, J. Barry, D. Hall and J. Parker, "Is the Torrens System Suitable for the 21st Century", published in Proceedings of 1995 New Zealand - Australia Cadastral Conference, Wellington, New Zealand, 14-16 June (copy held with author). These five criteria first identified by C. Brickdale, Methods of Land Transfer (1914) 1-11.
[18] Breskvar v Wall (1971) 126 CLR 376; (1972) ALR 205.
[19] Conveyancing Act 19
[19] (NSW) s53; Property Law Act 1974 (Qld) s237; Conveyancing and Law of Property Act 1884 (Tas) s35; Property Law Act 1958 (Vic) s44; Property Law Act (WA) s22. In most States, the period is 30 years; Tasmania, 20 years whereas in South Australia the period appears to be still the common law period of 60 years. In South Australia and Queensland the process of converting all alienated land to Torrens has been completed.
[20] See cases such as Breskvar v Wall (1971) 126 CLR 376; [1972] ALR 205; Frazer v Walker [1967] 1 AC 569; 1 All ER 649.
[21] By way of example, the scale fee in Tasmania for a conveyance under Torrens of a $200,000 residential property was quoted to the author as $1800.00. By contrast, the quote that I was given for an 'old system' or 'general law' title was $2000.00.
[22] See generally The Honourable Mr Justice Young, "Why did the Torrens System Succeed in Australia yet Fail in North America", (1994) APLJ Lexis 24.
[23] As noted by Young, above n 22 at 6 title insurance companies have a loss ratio of 1.69%. This obviously gives those companies a stake in ensuring that the status quo is retained.
[24] For a recent decision that supports the importance of immediate indefeasibility in the Torrens System, see Conlan (as Liquidator of Oakleigh Acquisitions Pty Ltd) v Registrar of Titles, [2001] WASC 201, 3 August 2001, Owen J.
[25] Trebilcock, above n 7 at 125.
[26] In terms of an economic comparison of 'old system title' with Torrens title see JT Janczyk, "Land Title Systems, Scale of Operations, and Operating and Conversion Costs", (1979) Journal of Legal Studies 569. In particular see the summary at 582. See also Ontario Law Reform Commission, Report on Land Registration, Department of Justice, 1971 at 135-151.
[27] Pilcher v. Rawlins (1872) 7 Ch App 259. It is an application of nemo dat quod non habet (no-one gives who does not possess).
[28] As noted by Carol M Rose, "Property and Expropriation: Themes and Variations in American Law", (2000) Utah L. Rev 1 at 7-8.
[29] The terms emanating from the work of G. Calabresi and A. Douglas Melamed, "Property Rules, Liability Rules and Inalienability: One View of the Cathedral" 85 Harv L. Rev. 1089 (1972).
[30] Carol M Rose, "Property and Expropriation: Themes and Variations in American Law", (2000) Utah L. Rev 1 at 7-8.
[31] Land Titles Act 1925 (ACT) s69 (no title to land may be acquired by adverse possession); Real Property Act (NT) s251; Land Title Act 1994 (Qld) s185; Real Property Act 1886 (SA) s251; Land Titles Act 1980 (Tas) ss138T-138Y; Transfer of Land Act 1958 (Vic) s42; Transfer of Land Act 1893 (WA) s68; Real Property Act 1900 (NSW) Part VIA.
[32] For examples, see Pratten v. Warringah Shire Council (1969) WN Pt 1 (NSW) 134; Clement v Jones (1909) 8 CLR 133; 15 ALR 158; Hyde v Pearce [1982] 1 All ER 1029.
[33] See Rose, above n 28 at 7-8.
[34] See above n 19.
[35] See generally, Breskvar v Wall (1971) 126 CLR 376.
[36] Trebilcock, above n 7 at 135-6.
[37] G Hardin, "The Tragedy of the Commons", (1968) Science 1243. Another well-known starting point is the Prisoners Dilemma, see J. Hirshleifer, "Evolutionary Models in Economics and Law: Cooperation Versus Conflict Strategies, 4 Res. in Law & Econ 1 (1982)
[38] See Trebilcock, above n 7 at 138-39 for a discussion of this example - this is where the diagram is taken from.
[39] As noted by Carol M Rose, (1998) "Canons of Property Talk, or, Blackstone's Anxiety" 108 Yale LJ 601.
[40] See Trebilcock, above n 7 at 139.
[41] Example taken from Trebilcock, above n 7 at 136.
[42] See Breskvar v Wall (1971) 126 CLR 376; [1972] ALR 205; Frazer v Walker [1967] 1 AC 569; 1 ALL ER 649.
[43] See G. Calabresi & A Douglas Melamed, "Property Rules, Liability Rules, and Inalienability: One View of the Cathedral", 85 Harv L. Rev 1089 (1972); L. Kaplow & S. Shavell, "Property Rules versus Liability Rules: An Economic Analysis" 109 Harv L. Rev. 713 (1996).
[44] See Whitman, above n 6 at 234.
[45] As indicated by Whitman, above n 6 at 234, digital signatures, if properly administered, should be much harder to forge than paper based signatures.
[46] See the comments by the English Law Commission, above n 6 at 256.
[47] [1999] 2 Qd R 172.
[48] Following the introduction of the Land Title Act 1994 (Qld), s42.
[49] [1999] 2 Qd R 172 at para 10.
[50] [1999] 2 Qd R 172 at para 18.
[51] [1999] 2 Qd R 172 at para 20.
[52] WD Duncan and SA Christensen, "Overcoming the Problems of Showing and Making Cyber Title", [1999] APLJ Lexis 20.
[53] Duncan and Christensen, above n 52 at 19-21.
[54] Duncan and Christensen, above n 52 at 29-30.
[55] The Honourable Mr Justice Young, "Why did the Torrens System Succeed in Australia yet Fail in North America", [1994] APLJ Lexis 24 at 3-4 (quoting from Scick and Plotkin Torrens in the United States, (Lexington Books, 1978)).
[56] C. Hammond, "The Abolition of the Duplicate Certificate of Title and its Potential Effect on Fraudulent Claims over Torrens Land", [1999] APLJ Lexis 23.
[57] As noted by Hammond, above n 56 at 31: "In essence, the statistics show that production of a duplicate certificate of title operates as an effective safeguard against third party fraud. The extremely rare cases of fraud by third parties across all three jurisdictions bears this out. However, the existence of a duplicate certificate of title is less effective as a safeguard where 'trusted agents', friends or family are involved in the fraud. In these cases, access to the duplicate certificate of title by the fraudulent party makes it easier for them to perpetrate fraud and to obtain registration of the fraudulent dealing."
[58] See R. v. Recorder of Titles: Ex parte Horlock Unreported 25/1991 (Tas)
[59] No contingent figure for Tasmania was available.
[60] See Hammond, above n 56 at 25.
[61] See Hammond, above n 56 at 33-42.
[62] Whitman, above n 6 at 247-254.
[63] See Whitman, above n 6 at 248.
[64] Whitman, above n 6 at 249.
[65] See the comments by Whitman, above n 6 at 249-250.
[66] Birrell, above n 17 at 3.
[67] Cocks and Barry, above n 4 at 274.
[68] Cocks and Barry, above n 4 at 274.
[69] Cocks and Barry, above n 4 at 276.
[70] See Carol M Rose, (1997) "The Shadow of the Cathedral", 106 Yale LJ 2175.
[71]
Above n 17 at 5.
[72]
Hammond, above n 56.