Pandora's box? An exploration of s 81 of the Land Transfer Act 1952 and its effect on the indefeasibility of title

Abstract

Section 81 of the Land Transfer Act 1952 has a tumultuous past. It has faced various criticisms surrounding its potential for undermining indefeasibility of title, a key concept under our Torrens system of transfer. This paper addresses some of these criticisms, positing first that s 81 does in fact grant the District Land Registrar a wide discretion to correct or cancel titles which have been gained fraudulently or wrongfully, and secondly that this discretion should be exercised if an appropriate case surfaces. Such an exercise is supported by the approach taken in other Torrens jurisdictions and can be regulated through the adoption of a number of simple guidelines, to be considered during any exercise of discretion under s 81. This will reduce the risk of any uncertainty arising from a wide interpretation of s 81 and ensure that the overall justice of the case is the central consideration of any exercise of discretion.