The King v Smail Golden Jubilee: The failure of the High Court 'to Develop and Clarify the Law' of the Torrens Volunteer Is No Cause for Jubilation

Australian Law Journal on 26 March, 2020

21 Pages Posted: 7 May 2021

See all articles by Malcolm McKenzie Park

Malcolm McKenzie Park

University of Melbourne - Department of Geomatics; RandA Research Laboratory

Serene Ho

Independent

Date Written: March 26, 2020

Abstract

The year 2008 marked the 150th and 50th anniversaries respectively of the original South Australian Torrens registered land title statute and the Victorian Supreme Court decision in King v Smail. The year before the High Court of Australia had rendered its unanimous decision in Farah Constructions. The King decision was bad law even though it was decided a decade before the Privy Council and the High Court pronounced upon the issue of immediate indefeasibility of registered title. It is now thirteen years since the High Court, in Farah, articulated upon the immediate indefeasibility of title of the registered volunteer. It is a cause for regret that the High Court in Farah and the later case of Cassegrain has not availed itself of the limited opportunity to expressly decide upon the indefeasibility (or otherwise) of the title of the registered volunteer throughout the Australian Torrens jurisdictions.

Keywords: Torrens – registered land title – registered volunteer’s title – fundamental principle – registration conferring title – title by registration – indefeasible title – immediate indefeasibility – deferred indefeasibility – High Court of Australia dictum

Suggested Citation

Park, Malcolm McKenzie and Ho, Serene, The King v Smail Golden Jubilee: The failure of the High Court 'to Develop and Clarify the Law' of the Torrens Volunteer Is No Cause for Jubilation (March 26, 2020). Australian Law Journal on 26 March, 2020, Available at SSRN: https://ssrn.com/abstract=3838552 or http://dx.doi.org/10.2139/ssrn.3838552

Malcolm McKenzie Park (Contact Author)

University of Melbourne - Department of Geomatics ( email )

Victoria, Victoria 3010
Australia

RandA Research Laboratory ( email )

Melbourne, Victoria 3010
Australia

HOME PAGE: http://mmpRandALab@gmail.com

Serene Ho

Independent ( email )

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