Griggs, Lynden --- "Torrens Title in a Digital World" [2001] MurdochUeJlLaw 20; (2001) 8(3) Murdoch University Electronic Journal of Law

"Given scarcity, economics assumes that individuals and communities will (or should) attempt to maximise their desired ends (which may be of infinite variety) by doing the best they can with the limited resources (means) at their disposal. To the extent that means (or resources) can be made relatively less scarce, or stretched further, more ends or goals of individuals or communities can be realised."[25]

In the context of this article, the question is the extent to which the Torrens system (relying as it does on public funds) utilises those resources to their highest value use (particularly in the narrow aspect of competing forms of land registration - in the context here, a paper based as against an electronic method of transference of title).[26] Will electronic data lodgement lead to lower conveyancing costs and an optimum distribution of the public funds that are allocated to fund the land title office and assurance fund? By moving from a system of individual liability and responsibility under 'old system' title, to what is in principle a compulsory allocation of loss across all members of society, have we adopted a method that can be supported by the law/economics movement? Consider the following simple scenario under both general law and Torrens title.

A has a fee simple estate in Landacre. Under general law, she leaves the chain of title and title deeds with her husband B
when travelling interstate. B forges a conveyance to C who pays B $150,000.
B absconds and A returns from holiday - what interest does C have?

Ignoring any complicating factors, C would have no interest. The conveyance was void as a forgery and at common law, a void interest was ineffective to pass good title.[27] A would retain the fee simple. C's remedy would lie against B - given that he has absconded, C would invariably be out of pocket.

Under the Torrens system A leaves the certificate of title with her husband B. B forges A's signature to the memorandum of transfer and C is registered on title. B absconds. In this scenario, C would have an indefeasible title, A's remedy would lie against the assurance fund.

By this comparison, the difference in policy of Torrens as against general law is starkly demonstrated. The critical issue, the recovery of the loss and the identity of the titleholder are very different. In one, the loss is spread amongst all members of the community, in the other, recovery of loss is predicated on the ability to identify and successfully recover from the wrongdoer. Fundamentally, the fee simple estate in the Torrens transaction is statutorily transferred from the true owner to the innocent recipient. The property interest held by the registered proprietor in Torrens representing something less than the property interest held under general law. The Torrens title owner being unable to defeat the claims of a person subsequently registered against title. It is a title subject to an option. The registration process simplifies transactions but at the cost of destroying 'formal legal rights.'[28]

In economic terms what has been done is to suggest that the transaction costs associated with establishing good title under general law are so high, that the alternative system engendered by Torrens (whilst destructive of formal legal property rights) supports the allocation of a liability based solution to ensure a more effective distribution of resources.[29] In essence, rather than effect being given to property based rules, a liability solution is adopted because of the obstacles to establishing title under general law - the focus being on where best to allocate the loss.

Rose[30] notes that given that land is essentially durable and that it may have a succession of owners with a vast range of interests, it is critical that the "legal status of... property be kept relatively simple and transparent in order in order to avoid confusion to... multiple or successive interest holders." This analysis also explains various exceptions to indefeasibility, such as adverse possession.[31] The transparency of the adverse possessor, by their factual possession,[32] overriding the interest of the person with formal title.[33]

By contrast, under old system title, the interest of the true owner was never transparent. Any prospective purchaser required to undertake a set-period search (20-60 years) of past transactions to establish a good root of title.[34] Comparing this with Torrens system, where a purchaser is merely required to undertake a search of one record - the title neither being historical nor derivative.[35] In the context of property rights per se, Trebilcock[36] comments:

"Assuming that property rights have been defined and specified in ways that internalise costs and benefits from utilisation of a resource as fully as possible, the economic perspective on property rights would then focus on the importance of facilitating the transferability of these property rights so as to ensure that they end up in their highest valued social uses."

In the issue under discussion, the question is simply the converse - does the Torrens process of conveyancing facilitate the transfer of the property rights at the lowest possible cost - thus ensuring the maximisation of individual and community welfare. The economic perspective on this issue begins with the so-called Tragedy of the Commons.[37] In this example from medieval England, many families had access to common land to graze their livestock.[38] For the purposes of illustration, assume that 9 families were able to access the common land to graze their livestock.

1

2

3

4

5

6

7

8

9

It can be assumed that each of the families have two cattle to graze (i.e. for the 9 families there is a total of 18 cattle to graze); however, the land can only sustainably have 9 cattle grazing on it. The joint welfare maximising solution is for each family to only graze one unit of livestock on the common land - thus leading to its sustainable usage. By contrast, the individual maximising welfare is for each family to graze both units of livestock, because each only bears a small cost of the overgrazing that will ultimately occur. The end result of this problem is that the resource is likely to be used to exhaustion.[39] The joint welfare minimising solution will be the end result.[40] By contrast has the Torrens system (by its adoption of a liability based solution) adopted the joint welfare maximising solution. Consider another classic economic analysis: the Prisoners' Dilemma.[41]

In this example, 2 persons are taken into custody, arrested near the scene of a burglary. At the police station, they are separated. If neither confesses to the burglary, they each will be charged with the lesser offence of carrying a concealed weapon and face 1 year in gaol. If both confess to the burglary, they will receive 3 years in gaol. If one suspect implicates the other to the burglary, that person will receive treatment that is more lenient and a 3-month gaol sentence is likely. The person implicated is likely to receive 4 years gaol. The options can be represented diagrammatically.

	Suspect A: Not Confess	Suspect A: Confess
Suspect B: Not Confess	1 year each	3 months for A/4 years for B
Suspect B: Confess	3 months for B/4 years for A	3 years each

The joint welfare maximising solution is for neither to confess and both then receive a 1-year gaol term. However, there is considerable incentive for each suspect to implicate the other on the possibility that the second person will not be doing likewise. If this successfully occurs, then their individual welfare will be maximised to the detriment of their accomplice.

This same analysis can be transposed to an evaluation of 'old system' title. In that system of conveyancing, a defect in the chain of title (e.g., transfer by reason of a void instrument) will lead to potential loss of title and a remedy against the wrongdoer - a remedy that as illustrated may prove fruitless if the person has insufficient assets to satisfy any judgment or is beyond the reach of the jurisdiction.

By contrast, assuming none of the exceptions to indefeasibility is present, transfer by way of a void instrument is effective to pass title upon registration.[42] The loss occasioned in this transaction not being borne by one individual, but spread across society as a whole. Accordingly, taking a macro view, the Torrens system maximises the welfare of society as a whole, but in individual cases, effects a grievous injustice upon the formal legal owner - that being the loss of the property.

Summarising this analysis, the transaction or bargaining costs with general law are so high, (because of the need to undertake a set-period search to establish a good root of title) that the solution in Torrens to protect the registered owner and to compensate the innocent party who has lost their formal legal interest in the land, sees us adopting a liability based solution to this conundrum, rather than a property based model.[43] That is to say, we accept that the property interest is not paramount, that the right of the formal legal owner can be infringed, but that it is ultimately cheaper to allow that infringement and pay compensation (i.e. accept the liability), rather than enforce the proprietary rights of the formal legal owner. Across society, it is cheaper to allocate the loss by depriving the formal legal owner of their interest in land, even though the registered owner has obtained title pursuant to a void instrument. The property interest which the formal legal owner has, being extinguished because the welfare maximising solution is to deny this person their previous formal legal title, establish title in the registered proprietor and to compensate the first individual - with this liability being paid out of the assurance fund. Thus society, through its elected representatives, has valued certainty of title and indefeasibility more highly than ensuring that the property interest held is paramount. The Torrens system permits the infringement to occur, the property to be registered under the title of another and compensation to be paid by the State.

The next aspect to be addressed is the extent to which this submission is supported by a move to electronic data lodgement. In undertaking this analysis, a consideration of the claims made against the assurance fund in a number of different jurisdictions will be provided. If the critique would have us suggest that electronic data lodgement leads to significantly more claims on the assurance fund, then the support for the Torrens system is weakened and a re-evaluation with 'old system' title required.

Claims under the assurance fund

An analysis of claims under the assurance funds of Australian jurisdictions demonstrates how electronic conveyancing will not only improve the conveyancing process by reducing the cost, making it more accurate and allowing it to be simpler, but that the underlying philosophy of a State guaranteed title and indefeasibility will be supported by this inexorable move towards electronic data lodgement. The advantages of electronic transfers in fulfilling the aims of Torrens, can be detailed as follows:

• Reduction in the cost of maintaining land title offices;
• Greater accuracy of the register;
• Increased access through technology gateways to the information;
• Cheaper conveyancers;
• The priority of interests should be more readily apparent;
• Quicker settlements;
• Institutional (such as mortgagee) costs should be lower; and, (hopefully)
• Reduced risk of fraud.[44]

Despite these many perceived advantages, the disadvantages cannot be understated. As indicated, the key features of Torrens title is the indefeasibility of that title and the State guarantee of it - with compensation payable if that guarantee is not met. Whilst technology should allow the possibility of fraud to be minimized,[45] does it conversely allow those committing the fraud to offend on a wider scale - thus bringing into question the security and stability of the register? It is obviously critical that this accuracy be ensured and provision made for the failings of technology.[46] The key will be in the capacity of those with computer expertise to deliver an infallible system.

To this end, the legal problems associated with electronic conveyancing were foreshadowed by the decision of the Queensland Court of Appeal in Imperial Bros Pty Ltd v. Ronim Pty Ltd,[47] a decision from a jurisdiction where the issuing of a certificate of title is now optional.[48]

Imperial Bros had agreed to sell to Ronim a building for the sum of $3.625ml. Clause 25.1 provided that "Completion shall be effected at such time and place as may be agreed upon by the parties. The time for completion shall be between the hours of 9am and 5pm on the Date for Completion." Clause 26 provided that time was of the essence. The agreed date for completion was 13 October 1998. Settlement was to be at 3.30pm. At about 12.30pm that day, the solicitors for the purchaser advised that they were not able to undertake a check of the title as the computer for the Land Titles Office was inoperative. A request was made for an extension to the next day. This was denied by the vendor. However, it was agreed that settlement would be deferred until 5pm. Whilst travelling to the settlement, severe thunderstorms and traffic disruptions caused the solicitor for the purchaser to be delayed by some minutes - arriving at the vendor's offices a short time after 5pm. The vendor refused to settle and the next day rescinded the contract.

The issue that was relevant for the present discussion was stated as follows: "[D]id the absence of any ability to establish title - because of the absence of a certificate of title and the circumstance that the computer was down, exclude any consequent right in the appellant to rescind?"[49] The court ultimately held that the obligation to complete the contract was suspended when through no fault of the parties, the departmental computer was inoperative.[50] An implied term was to be inserted into the contract to give effect to this principle. The basis of the reasoning of the court was that the vendor was required to show and make good title at the time of settlement. As the computer in the land title office was malfunctioning, the requirement could not be satisfied. By contrast, the appellant argued that as a settlement notice had been lodged, the purchaser had already obtained significant protection. Accordingly (as Imperial Bros submitted), there was, in the circumstances of this case no necessity to imply the term - to this the court responded: "we prefer the simpler view that, if the computer is down on the date fixed for completion, the purchaser being unable to search on that day, then the purchaser need not settle, and time ceases to be of the essence."[51]

The difficulties inherent in this decision are noted by Duncan and Christensen.[52] First, evidence will be needed of the attempts by the purchaser to access the electronic title, and second, if time being of the essence has been destroyed, a notice to complete must now be issued by one party before time would again become of the essence.[53] To resolve these difficulties, the following solution was proposed by the authors. That instead of a common law implied term, the legislature should statutorily introduce a term to the effect that if the computers are inoperative that:

"1) The vendor shall be deemed not to have proved title to the land being sold.

2) Completion of the transaction shall be deferred (where time is of the essence for the contract) to a specified period of days beginning from the date of a notice delivered after the first continuous day of operation after computer access is fully restored.

3) This specified period should be no longer than seven 'business' days.

4) The specified period does not commence until either party gives notice to the other in writing that the Land Titles Office computers are again fully operational.

5) From the date of the receipt of the notice by the party to whom it is given, time shall be deemed again to be of the essence of the contract."[54]

What this decision indicates is that electronic conveyancing will open new challenges for the law, and that the law can respond. Moreover, whilst that response may be common law or legislative, the opportunities and threats of technology cannot simply be ignored. But perhaps what is more critical than the response of the law is the question of whether the tenets of technology as demonstrated by allowing electronic transmission can fit within the contemporary ideals of a Torrens based system - particularly as this system of land registration was introduced long before information technology became a catchphrase.

Indefeasibility and a State Guarantee of Title are the twin pillars that support the foundations of the house of Torrens. Indeed, it could be suggested that the crumbling of these foundations in the United States of America led to its failure in that jurisdiction. As noted by Young,[55] the inadequate administration by the regulators and the bankrupting of two funds by claims were two of the reasons for its lack of reception in North America, and in particular, the United States of America. Hammond made an extensive examination of claims made on the assurance funds of Western Australia, Queensland and New South Wales.[56] This examination being made in the context of whether the abolition of the paper based certificate of title would lead to increases or decreases in the number of claims made on the fund. The conclusion of Hammond was that the existence of the paper certificate of title operated as an effective safeguard against fraud, particularly where the fraud was to be committed by a third party. The conclusion was to the contrary where the fraud was to be carried out by a 'trusted agent', such as a member of the same family as the registered proprietor or a friend.[57] To this information can be added the following data from Tasmania. In a survey of 22 successful claims made on the assurance fund from 1993 to 2000, the causes of loss were identified as follows:

Claim No.	Problem	Amount of Loss ($)	Reason for Loss
1	Easement Omitted	1295.12	Error in Land Titles Office led to failure to carry forward the easement onto the title of the burdened land
2	Mortgage lost	205.00	Mortgage documents lost within Office - new mortgage required to be registered
3	Survey Error	6162.42	Error in the survey of land when converted from general law
4	Wrongful Lapsing of Caveat	2410.00	Caveat lapsed within Office of Recorder in circumstances when this should not have occurred.
5	Easement Omitted	5350.00	Easement omitted on transfer of land.
6	Forgery by ex-husband	12000.00	Possession of certificate of title and fraud by ex-husband.
7	Mortgage lost	160	Mortgage documents lost within Office - new mortgage required to be registered
8	Mortgage lost	180	Mortgage documents lost within Office - new mortgage required to be registered
9	Mortgage lost	284	Mortgage documents lost within Office - new mortgage required to be registered
10	Easement not omitted when it should have been	32909.00	Error within office.
11	Mortgage lost	190.00	Mortgage documents lost within Office - new mortgage required to be registered
12	Title incorrect	32600.00	Error in land size as shown on title.
13	Mortgage lost	190.00	Mortgage documents lost within Office - new mortgage required to be registered
14	Easement Omitted	3191.30	Easement omitted by office in circumstances when it should not have been.
15	Mortgage lost	180.00	Mortgage documents lost within Office - new mortgage required to be registered
16	Part of land vested in Crown - not shown on title	7849.22	Error in office, document-indicating part of land vested in Crown not attached to title when search was undertaken.
17	Mortgage lost	515.00	Mortgage documents lost within Office - new mortgage required to be registered
18	Issue relating to issue of 4 separate titles	1285.00	Office indicated that four separate titles could be obtained when this, ultimately, was not to be the case.
19	Mortgage incorrectly noted	133.00	Wrong financial institution noted on title.
20	Caveats omitted from title upon search	3978.00	Caveats on microfilm records but not on title, error within office - failure to check microfilm records. These records 14 months in arrears of being recorded on title.
21	Mortgage lost	180.00	Mortgage documents lost within Office - new mortgage required to be registered
22	Removal of caveat by Office	2616.37	Removal of caveat by Office incorrect - this following Supreme Court decision [58] on the matter.

The statistics demonstrate a number of things. First, the level of claims paid out under the assurance fund in Tasmania is very low (total amount paid $113,683.43). This figure can be compared to New South Wales where for the period of 1994-1998, the amount paid out was $3,096,000, with contingent liability being $10,483,500.[59] Furthermore, in Tasmania there was only one claim for fraud, whereas of the 81 claims in New South Wales, 38 resulted from fraud.[60]

Of the cases in Tasmania, 10 can be placed into the category where the mortgage dealing was either lost (9) or in one case, the wrong financial institution was inserted onto the title. One could surmise that lodgement of the data in electronic form would have removed these claims. As the financial institution would file the information directly onto title, there would be no opportunity for either, the wrong name to be transposed, or for the dealing to be lost. The one case of fraud in Tasmania resulted from the misuse of the certificate of title, again, the abolition of the certificate may have reduced the opportunity for this to occur - though of course it is recognised that whatever security system is put in place with computer technology, the potential for fraud will never be completely eliminated. The other 11 cases that occurred in Tasmania resulted from easements not being carried forward, or caveats being wrongfully removed or incorrect advice being given. Again, the potential for this to occur will be reduced significantly as the errors that emanate from transposing of information will be eliminated by lodgement of information in the form of electronic data.

In summary, the evidence that Hammond obtained, together with the analysis of the Tasmanian claims indicates that the move towards electronic conveyancing should reduce the number of claims under the assurance fund. However, this conclusion is conditional, (as Hammond suggests),[61] on the introduction of a number of safeguards into the electronic process. These safeguards include additional attestation requirements for the witnessing of documents, the onus being placed on the conveyancer to establish that the person with whom they are dealing has the requisite authority, and the issue of a folio identification number (similar to a PIN) which would be required to be produced when the title to the land is being altered.

A further alternative indicated by Whitman[62] is for digital signatures to be recognised in substitution for the conventional pen and ink signature. The digital signature would be recognised by way of public key infrastructure, which would provide for a certification authority to issue a digital identification that would consist of two strings of characters. One string would be public, the second private. The public string of characters (or keys) would be available to everyone; the private keys would obviously be unique and kept confidential by the individual. The two keys would be mathematically related, but it would be 'computationally infeasible'[63] for anyone to derive the private key from the public. Whitman explains[64] that to use the private key to sign a document would work as follows. A computer 'hashing' algorithm would be used to generate a random code that would represent the contents of the data. The private key and the hash code would then be encrypted to produce the signature. This information is then transmitted to the land title office, which would then obtain the public key (from the Certification Agency, which will also provide the name of the individual to which it was provided), which is then used to decrypt the digital signature. The Office will obtain the public key and apply it to the digital signature received. From this the Office will be able to verify the identity of the person and the contents of the data. Whilst complex to relate, Whitman suggests that the process would largely be carried out without human intervention and would normally take only minutes at most.[65] This issue is also recognised by Birrell who states:[66]

"The recent legislative reform in Queensland is at best a partial answer. While it has removed the mandatory issuing of Certificates of Title, it has not addressed the underlying incongruity of paper within an electronic system. The ghosts of the last century remain in its continuing requirement of signed and witnessed paper instruments. The electronic conveyancing of [this century] must address this issue. The answer may be found in an expanded concept of agency in which agents are authorised to complete the transaction on behalf of the parties. Perhaps authorised classes of customers should be responsible for updating the Register. This solution would require a combining of the present separate roles of settlement and registration. The paperless transaction system of the Australian Stock Exchange may point the way."

Cocks and Barry also suggest another alternative[67] - this being the issue of a 'Landcard' that would operate like a credit card and be verified by password. Solicitors regularly involved in the conveyancing process would obtain a merchant's card allowing them to operate for a given period. Private individuals would be able to obtain a Landcard for an individual transaction. "Obtaining a Landcard will be like opening a bank account and will depend upon the applicant establishing identity to the satisfaction of an authorised Identification Service Provider."[68] This Landcard will allow the electronic execution of documents - from which a database will be created and the information supplied and extracted. As noted by Cocks and Barry:[69]

"Impersonation however will be reduced by the electronic system. At the moment a person who can secure the paper title (the right to deal) has a reasonably good chance of impersonating the registered proprietor provided that they are of the right sex and can keep a straight face. Even if the first condition is a problem, they can simply recruit an accomplice. Obtaining a Landcard (the right to deal) will only be possible if the applicant can establish identity to an ISP [Identification Service Provider] and that will require more than a pretty face and plausible patter."

The preceding analysis of the options available for electronic data lodgement sees the following advantages, whatever system is adopted. Greater certainty of title achieved by immediate registration, the elimination of the gap between settlement and registration, increased accuracy of the register and (hopefully) a reduction in costs. This reduction in costs benefiting the users, (no doubt, these people also being taxpayers), who currently contribute to consolidated revenue by reason of the fees/charges currently imposed on the lodgement of dealings. As previously noted, the title given by Torrens is in essence a property interest, subject to the option of another,[70] that option being the right of another to extinguish or modify your interest if they are able to have their interest registered.

Does technology hinder or assist in the satisfaction of these criteria? Was the Torrens system more suitable in an environment where large-scale fraud was not possible due to the existence of only one genuine paper copy of the certificate of title? Will the abolition of the certificate of title allow those with the capacity to obtain unauthorised access the ability to perpetrate large-scale fraud? It is submitted that not only does technology not hinder in the meeting of these criteria, but that indeed it can greatly assist in ensuring that the aims of Sir Robert Torrens are finally met. As noted by Birrell in terms of the overall goal - a goal that can only be reached by the introduction of computer enhanced conveyancing:[71]

"The future vision: a national datum, a national surveying code, a national Land Register, and national land registration legislation. The results: a seamless surveying system, a common Torrens system, and possible cost savings. The current reality: state datums, state surveying codes, state land Registers, and state land registration legislation. The results: conflicts between surveying systems, competition between the states to be the best, fragmented land Registers and high running costs to operate. We are living in an environment of national markets and mutual recognition, yet we still operate eight varieties of the Torrens system. Australia is one country, we need one datum, one survey code and one Land Register."

Much of what has been said depends on the ability of information technology specialists to deliver a system that is largely infallible. The suggestions that have been made have been premised on this. The ability of the information relevant to the conveyancing process to be lodged electronically will surely lead to a reduction in the number of claims made against the assurance fund. Office errors that result from the transposing of information will largely be eliminated (such as omitted easements, removed caveats etc), the misplacing of dealings such as mortgages should not occur and the ability of 'trusted agents' to commit fraud by obtaining the certificate of title will be minimised. The danger that may result is that the ability of third parties to commit fraud on a large scale through infiltration of the computer's security system is the obvious concern, but this is something that should be overcome, or lessened, by appropriate security measures. Certainly from a Tasmanian perspective, the lodgement of conveyancing information in purely electronic form (a necessary corollary being the abolition of paper based certificates of title) would lead to less claims being made against the assurance fund (provided the technological safeguards are put in place). This evidence alone suggests that the move to electronic data lodgement must be unimpeded.

Conclusion

There is no doubt that the move towards electronic conveyancing will continue unabated. The information technology experts have an unshakeable grip on the psyche of society and the need to reduce the human element in transactions. In conveyancing terms, this offers a promise of greater accuracy, more certainty of title, and provided the security concerns of access to central databases can be overcome, the opportunity for reduced claims on the assurance fund. Whilst, as Hammond[72] indicated, the paper based certificate of title may have acted as a barrier to third party fraud, its abolition should, it is submitted, not increase the level of risk, but in fact reduce it provided the security concerns can be overcome. To this end, the options such as Landcard, Folio Identification Numbers and Public Key Infrastructure all offer the promise of meeting these concerns.

A law/economics analysis also supports this inexorable move: the State sanctioned system of guarantee of title and compensation for those deprived providing a lower cost alternative across society, than depriving a person of an interest they thought they have legitimately purchased and to require them to seek compensation from a wrongdoer. The Torrens system thus invokes a joint welfare maximising solution. The move towards electronic data lodgement only supports this. By ensuring greater accuracy in the register and thus decreasing the level of claims made on the assurance fund, there is a reallocation of resources from the public purse. In summary, the goals of Sir Robert Torrens may ultimately be realised by means, of which, the man himself was blissfully ignorant.

---

Notes

[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] MonashULawRw 8; (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] HCA 11; (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] [1998] QCA 444; [1999] 2 Qd R 172.

[48] Following the introduction of the Land Title Act 1994 (Qld), s42.

[49] [1998] QCA 444; [1999] 2 Qd R 172 at para 10.

[50] [1998] QCA 444; [1999] 2 Qd R 172 at para 18.

[51] [1998] QCA 444; [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.