The Mirror of Title Crack'd from Side to Side? The Amazing Half-Life of the Equitable Mortgage

Abstract

The author considers the aims of the Torrens system of property law and the friction between the aims of equity and Torrens. The focus of the article is equitable mortgages in particular. The recent Australian High Court cases of Pico and Theodore vs. Mistford dealt with equitable mortgages, but failed to consider the policy of the Torrens system, and thus impaired the effectiveness of the Torrens Register as a "mirror" of title. There is a tendency for courts when making decisions about property law issues to either consider Torrens policy or equitable reasoning exclusively. It is suggested that it is important to consider both equitable and Torrens system goals when making decisions about property law, and it is high time there was a rapprochement between the two.

Keywords: Torrens, property law, equity, mortgage, Australia, Pico, Theodore, Mistford,

JEL Classification: K11, K23