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

Australian Property Law Journal, Vol. 19, 2011

UWA Faculty of Law Research Paper No. 2012-16

26 Pages Posted: 19 Nov 2012 Last revised: 22 Nov 2012

Penny Carruthers

University of Western Australia - Faculty of Law

Natalie Kym Skead

University of Western Australia - Faculty of Law

Date Written: November 18, 2012

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

Suggested Citation

Carruthers, Penny and Skead, Natalie Kym, 150 Years On: The Torrens Compensation Provisions in the ‘Last Resort’ Jurisdictions (November 18, 2012). Australian Property Law Journal, Vol. 19, 2011; UWA Faculty of Law Research Paper No. 2012-16. Available at SSRN: https://ssrn.com/abstract=2177459 or http://dx.doi.org/10.2139/ssrn.2177459

Penny Carruthers (Contact Author)

University of Western Australia - Faculty of Law ( email )

M253
35 Stirling Highway
Crawley, Western Australia 6009
Australia

Natalie Kym Skead

University of Western Australia - Faculty of Law ( email )

M253
35 Stirling Highway
Crawley, Western Australia 6009
Australia

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