ABSTRACT
In 1967, the Privy Council in Frazer v Walker held that the principle of indefeasibility of title in the Torrens system was subject to pre-existing in personam claims. Although this view may appear to be defensible and logical, a major difficulty has been how and to what extent in personam claims ought to be accommodated into the system. First, Robert Torrens provided little or no guidance on this issue. Secondly, some causes of action were established under the old property law and are based on principles and criteria at odds with the system. Thirdly, an overemphasis on indefeasibility of title could exclude some ethically based legal doctrines and protections, creating a bifurcated property law system. Accordingly, there have been several contrasting and arguably flawed approaches delineating how in personam claims ought to be integrated into the Torrens system. In both jurisdictions, the law is at a crossroads.
