Taking it Personally: Ebb and Flow in the Torrens System's in Personam Exception to Indefeasibility

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.