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Bond University DOCTORAL THESIS Bond University DOCTORAL THESIS The Doctrinal Coherence of the Torrens System of Land Registration in Australia: Evolution or Revolution? Griggs, Lynden Award date: 2017 Link to publication General rights Copyright and moral rights for the publications made accessible in the public portal are retained by the authors and/or other copyright owners and it is a condition of accessing publications that users recognise and abide by the legal requirements associated with these rights. • Users may download and print one copy of any publication from the public portal for the purpose of private study or research. • You may not further distribute the material or use it for any profit-making activity or commercial gain • You may freely distribute the URL identifying the publication in the public portal. The Doctrinal Coherence of the Torrens System of Land Registration in Australia: Evolution or Revolution? Lynden Griggs PhD by Published Work Bond University, October 2016 Faculty of Law, Bond University Abstract This submission demonstrates the original contribution made by my published work in advancing knowledge and understanding in the field of land law and specifically the Torrens system of land registration (or more generally title by registration). My body of work references a series of integrated and interrelated research questions all of which go towards answering the following: To what extent have the judicial and legislative developments concerning title by registration achieved doctrinal coherence with the ideas that underlie a title by registration (or Torrens) system of land registration? Within this overarching question, the taxonomy of my work is structured as follows: doctrinal research into indefeasibility and the recognition of unregistered interests in the Torrens system, the relationship between possession and title by registration, and discourse on the application of economic theory and consumer law to title by registration. The overarching view I reach is that the Torrens system of land registration and the institutions that guard its principles (be it the Parliament, judiciary, academe, conveyancing agents, financial institutions, and electronic conveyancing regulators (Australian Registrars National Electronic Conveyancing Council and Property Exchange Australia)) must remain vigilant in ensuring that the Torrens system of land registration is not modified in such a way that its doctrinal coherence is undermined. i This thesis is submitted to Bond University in fulfilment of the requirements for the degree of Doctor of Philosophy by Published Work. This thesis represents my own original work towards this research degree and contains no material that has previously been submitted for a degree or diploma at this University or any other institution, except where due acknowledgement is made. Signature of Lynden Griggs (October, 2016) ii Acknowledgments First, acknowledgement must be given to Bond University for providing the opportunity to undertake a PhD by Published Work. While many universities offer this option to staff of their own institution, and some provide the opportunity on a fee paying basis to people outside the institution, Bond University displayed the foresight and innovation to introduce this as an option for late career academics who need an AQF Level 10 qualification — while understanding that the instrument to do this had to be different in shape and form to the traditional PhD. Second, I have a deep appreciation to my supervisors, Professor Michael Weir, and Assistant Professor Francina Cantatore. Their guidance, insight, and encouragement were invaluable. Third, thanks must also be expressed to the Confirmation Committee whose feedback and advice immeasurably improved the final product. Finally, this research was supported by an Australian Government Research Training Program Scholarship. iii Copyright Permissions The extracted material in this PhD by Published Work has been reprinted with the kind permission of: Bond University • Lynden Griggs, ‘Curial Discretion in the Drafting of Caveats – is it Preserving the Integrity of the Register’ (2009) 21(2) Bond Law Review 68. Reproduced with Permission of LexisNexis Australia • Lynden Griggs, ‘Case Note: The Tectonic Plate of Equity: Establishing a Fault Line in our Torrens Landscape’ (2003) 10 Australian Property Law Journal 78. • Lynden Griggs, ‘Indefeasibility and Mistake – the Utilitarianism of Torrens’ (2003) 10 Australian Property Law Journal 108. • Lynden Griggs, ‘Case Note: Hillpalm Pty Ltd v Heavens Door Pty Ltd’ (2005) 11 Australian Property Law Journal 244. • Lynden Griggs, ‘The common law abandonment of easements on Torrens Land – can it be done, and, if so, should the intent of predecessors in title be taken into account’ (2007) 14 Australian Property Law Journal 162. • Lynden Griggs, ‘Case Note: In Personam: Barnes v Addy and the High Court’s Deliberations in Farah Constructions Pty Ltd v Say-Dee Pty Ltd’ (2008) 15 Australian Property Law Journal 268. • Lynden Griggs, ‘Case Note: To and From, but Not Across – the High Court on Easements, Torrens, and Doctrinal Purity’ (2008) 15 Australian Property Law Journal 260. • Lynden Griggs, ‘Resolving the Debate Surrounding Indefeasibility through the Eyes of a Consumer’ (2009) 17 Australian Property Law Journal 260. iv • Rouhshi Low and Lynden Griggs, ‘Immediate Indefeasibility – is it Under Threat’ (2011) 19 Australian Property Law Journal 222. • Rouhshi Low and Lynden Griggs, ‘Going through the obstruction, the Torrens System Assurance Fund and contemporary solutions – a tale weaved from a story of a nun, a romantic triangle and sibling corruption’ (2014) 23 Australian Property Law Journal 17. • Lynden Griggs, ‘Debunking negligence’s role in imposing a duty on the servient owner of an easement towards the dominant owner’ (2015) 23 Australian Property Law Journal 183. Reproduced with Permission of Thomson Reuters (Professional) Australia Limited, www.thomsonreuters.com.au • Lynden Griggs, ‘The Assurance Fund: Government Funded or Private?’ (2002) 76 Australian Law Journal 250. Reproduced with Permission of Thomson Reuters (Professional) UK Limited via PLSclear • Rouhshi Low and Lynden Griggs, ‘Identity Fraud and Land Registration Systems: An Australian Perspective’ (2011) 75 The Conveyancer and Property Lawyer 285. • Lynden Griggs and Rouhshi Low, ‘Identity Verification in Conveyancing: The Failure of Current Legislation and Regulatory Measures, and Recommendations for Change’ (2012) 76 The Conveyancer and Property Lawyer 363. v Statement of Co-Authorship The following articles were co-written with Dr Rouhshi Low of the Queensland University of Technology. In these articles, my contribution was greater than 50% in that I was responsible for the initiation, key planning, execution, preparation, and responding to referee queries. It would be remiss not to acknowledge the exceptional work of Dr Low. A signed acknowledgement by Dr Low of my primary author status is noted below. 1. L Griggs and R Low, ‘Identity Fraud and Land Registration Systems: An Australian Perspective’ (2011) 75 The Conveyancer and Property Lawyer 285. 2. R Low and L Griggs, ‘Immediate Indefeasibility – is it Under Threat’ (2011) 19 Australian Property Law Journal 222. 3. R Low and L Griggs, ‘Identity Verification in Conveyancing: The Failure of Current Legislation and Regulatory Measures, and Recommendations for Change’ (2012) 76 The Conveyancer and Property Lawyer 363. 4. L Griggs and R Low, ‘Going through the obstruction, the Torrens System Assurance Fund and contemporary solutions – a tale weaved from a story of a nun, a romantic triangle and sibling corruption’ (2014) 23 Australian Property Law Journal 17. Signature of Dr Rouhshi Low Date: vi The author is grateful to the copyright holders who have allowed reproduction of their work in this PhD by Published Work. Every effort has been made to contact copyright holders. While every care has been taken to establish and acknowledge copyright, the author tenders his apology for any accidental infringement. vii viii Table of Contents Chronological List of Publications – for PhD by Published Work – Bond University ....................................................................................................... xi Chapter 1: The Interrelated Research Questions and Research Methodology ........ 1 1.1 Introduction ................................................................................................. 1 1.2 The Goals of a Land Administration System ............................................... 6 1.3 Recording and Registration based Land Systems ...................................... 8 1.4 The Common Origins of the Torrens System .............................................. 9 1.5 The Critical Dispute ................................................................................... 10 1.6 Indefeasibility – the Key to Torrens ........................................................... 14 1.7 The Move from Paper Based Conveyancing to Electronic Conveyancing 16 1.8 Research Questions and Aim of the Research ......................................... 17 1.9 Research Methodologies .......................................................................... 18 1.10 Limitations of the Research ....................................................................... 22 Chapter 2: Linking the Publications to the Research Questions and the Methodologies Adopted ......................................................................................... 27 2.1 The Underlying
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