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Abstract

The role of unregistered interests in the Torrens system has always attracted controversy. On the one hand, the inclusion of provisions such as s 41 of the Victorian Transfer of Land Act 1958, (and its equivalent in other jurisdictions) may have led to no recognition of any estate or interest outside of the register. However early in the history of Torrens jurisprudence, the existence and enforceability of interests outside of the register was accepted, despite their non-appearance on the official government record, (though one may speculate whether this recognition in 1914 would have occurred if immediate indefeasibility had been foreshadowed or adopted prior to the decision of Barry v Heider). Even more explicit than this early common-law recognition were provisions within the legislation allowing for the protection of unregistered interests, the primary illustration being the caveat. Notwithstanding this legislative and curial espousal of the proprietary interest outside of the official record, the exact role for the caveat has long been a matter of debate. However, the recent High Court decision of Black v Garnock has graphically highlighted the importance and contemporary role of the caveat. Accordingly, the purpose of Part 1 of this paper is, first, to consider the decision in Black v Garnock and highlight its ramifications for conveyancing practice. In Part II there will be consideration of the jurisprudence surrounding the judicial discretion to remove, amend, or allow a defective caveat to stand. Given the uncertainty surrounding the capacity to amend a defective caveat, (and the High Court in Black emphasising the importance of the caveat) this analysis is critical. After this examination, the question is whether the substantive and procedural law on caveats serves to enhance the integrity of the Torrens register. If not, and accepting for the moment that there needs to be some mechanism for the pre-emptive protection of unregistered interests, what changes can easily be made (and which don’t involve a fundamental re-evaluation of the underlying precepts) to enhance the Torrens system

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