Points of Tension: Fraud and Challenges under Guarantee of Titles Regimes

Abstract

The blunt nature of statutory based indefeasibility regimes are not by nature, sensitive the vulnerabilities of the particular parties before the court. Given this, courts sometimes stretch the various exceptions stated in the statute to accommodate difficult cases. Where this occurs, uncertainty arises as to both the nature and the breadth of the indefeasibility protection offered by the statute. In this regard, the Land Registration Act 2002 and the various Australasian Torrens regimes include “fraud” as a stated exception to the indefeasibility protection given by the relevant legislation. The paper questions what the nature of this fraud exception is, and asks how it should operate in conjunction with “in personam” exceptions to the indefeasibility. If some form of judicial discretion is necessary to soften the blunt nature of indefeasibility protection, it is argued this should instead come about through legislative change. In this regard, the New Zealand Law Commission has recently recommended the enactment of a concept of “manifest injustice” as an exception to indefeasibility.