150 Years On: The Torrens Compensation Provisions in the ‘Last Resort’ Jurisdictions

Abstract

One hundred and fifty years ago, with the introduction of the Torrens system into Australia, it was considered vital to incorporate compensation provisions into the Torrens legislation to enable a person sustaining loss through the operation of the system to obtain compensation from an assurance fund. Currently there are two broad compensation models operating in Australia. The ‘last resort’ model, adopted in the Australian Capital Territory; Western Australia; South Australia; and Tasmania, reflects the scheme of the compensation provisions as they were enacted 150 years ago. Under the last resort model, actions for compensation are, in most cases, to be brought initially against the ‘person liable’ for the deprivation. It is only in limited circumstances that access to the assurance fund may be available. The remaining jurisdictions have, in recent years, rejected the last resort model. In these ‘first resort’ jurisdictions a person deprived of an interest in land is entitled to bring an action, in the first instance, directly against the Registrar. The compensation provisions of the last resort jurisdictions are not uniform. The provisions are archaic, contradictory, confusing and have been described as a ‘tangled skein.’ The purpose of this article is to explore and clarify the operation of the compensation provisions of the last resort jurisdictions.

Keywords: Real estate law, Torrens system, Compensation provisions