70317 Chap.3 Torrens Title and Indefeasibility
Torrens Title and Indefeasibility
Title by registration
Torrens title, begun in South Australia and adopted across Australia, gives title through registration rather than through a chain of deeds.
Under s 41 of the Real Property Act a dealing passes a legal interest only when registered, and under s 42(1) the registered interest is indefeasible, subject to exceptions.
Immediate indefeasibility
A purchaser who registers a forged transfer without fraud gets good title at once, as Frazer v Walker and Breskvar v Wall show. The person who lost the land turns to the wrongdoer and the Torrens Assurance Fund.
In New South Wales a registered volunteer is also protected, following Bogdanovic v Koteff.
Relying on the register
Section 43 means a purchaser need not look behind the register, and knowledge of an unregistered interest is not of itself fraud. Practice still involves careful searching before settlement, since certificates of title were abolished in 2021 and dealings are now lodged electronically.
What this chapter covers
- 01
Title by registration under the Real Property Act
- 02
Sections 41, 42(1) and 43
- 03
Immediate indefeasibility after Frazer and Breskvar
- 04
Volunteers and Bogdanovic v Koteff
- 05
Formal and substantive defects
- 06
E-conveyancing and the end of certificates of title
Worked example · free
Applying indefeasibility to a void transfer that was registered
- 1Theo is the registered proprietor and holds a legal interest under s 41.
- 1Under s 42(1) his title is indefeasible on registration, even though the forged transfer was void.
- 1No exception applies: Theo was not party to or aware of the fraud, and nothing suggests a personal undertaking.
- 1Nell cannot recover the flat; she may sue the forger and claim compensation from the Torrens Assurance Fund.
Key terms
- Registered Proprietor
- The person recorded on the register as holding an estate or interest in Torrens land.
- Immediate Indefeasibility
- The rule that a person who registers a void instrument without fraud obtains good title at once.
- Volunteer
- A person who receives an interest in land without giving value, such as by gift.
- Valuable Consideration
- Money or other value given in exchange for an interest, which separates a purchaser from a volunteer.
Torrens Title and Indefeasibility FAQ
What does title by registration mean?
It means the register, not the history of earlier deeds, decides who holds an interest in Torrens land. A dealing passes a legal interest only when it is registered under s 41 of the Real Property Act, and from that moment the registered interest is protected by s 42(1), subject to the recognised exceptions.
Does a person who receives land as a gift get an indefeasible title?
In New South Wales, yes. Bogdanovic v Koteff, an asterisked case, accepted that a registered volunteer obtains indefeasible title. Other jurisdictions such as Victoria have taken a different view, which tutorial question 4 asks you to explain, but in an answer on NSW land state the NSW rule first.
Does a buyer need to search behind the register?
Not as a matter of law. Section 43 protects a person dealing with the registered proprietor from having to inquire into the title's history and says that knowledge of an unregistered interest is not of itself fraud. In practice purchasers still search the register and check it again on the day of settlement.
What happened to certificates of title in New South Wales?
They were abolished in October 2021 as the state moved to full electronic conveyancing. The Part A quiz videos, including one by a lawyer from the Office of the Registrar General, explain the change and its effect on fraud. The course stresses that you need a working idea of e-conveyancing, not expertise.
Exam move
Learn ss 41, 42(1) and 43 well enough to quote their effect in one line each, then practise starting every Torrens answer with the registered proprietor's interest. Work one forgery problem from each side: the honest purchaser and the dispossessed owner, including the Assurance Fund. Read Frazer v Walker, Breskvar v Wall and Bogdanovic v Koteff yourself, because the subject says summaries are not enough for asterisked cases.
Watch the four short Part A quiz videos on titling, the Registrar General and e-conveyancing, since the quiz can test them, and note one practical point from each.
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