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University of New South Wales Faculty of Law Research Series |
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Last Updated: 27 October 2012
Taking it Personally: Ebb and Flow in the Torrens System’s In Personam Exception to Indefeasibility
Lyria Bennett Moses, University of New South Wales
Brendan Edgeworth,
University of New South Wales
This
paper is available for download at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2167539
Citation
This article is to be published in the Sydney Law
Review, Vol.35, no.1, March 2013. This paper may also be referenced as [2012]
UNSWLRS 50.
Abstract
The so-called ‘in personam exception to
indefeasibility’ continues to defy neat definition or conceptual
precision, as
evidenced by a wide range of judicial and academic formulations
currently in play. This article seeks to retrace the debates with
three
principles in mind. First, a close understanding of the origins of the
legislation indicates an inescapable ‘traditionality’:
the
legislation was always assumed to operate alongside traditional common law and
equitable doctrines, wherever they were not explicitly
proscribed. Second, focus
on the ‘exceptional’ nature of in personam rights has the
unfortunate tendency to circumscribe
unnecessarily the operation of these
doctrines. Third, a more defensible approach is to examine the measure of
protection the Torrens
statutes expressly and impliedly provide, and then to
allow other legal and equitable principles to operate as normal. Finally, the
article will briefly examine the emergence in the case law since the High
Court’s decision in Hillpalm v Heaven’s Door of the category
of in personam rights to address the issue of overriding
statutes.
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