Can I Claim Damages If I Lose Land Through the Register?

Division 3 of Part XV of the Land Registration Act is the compensating half of the Torrens bargain. Where indefeasibility has cost someone their land, this is how they are paid.

Section 150(1) — the four grounds

Note who the primary defendant is: the person who derived benefit. Not the Registrar, and not the State, in the first instance.

Section 150(2) — suing the Registrar instead

This is the practical route in most fraud cases, because the person who benefited has usually disappeared, is bankrupt, or has died. The Registrar is sued not as a wrongdoer but as the nominal defendant, and any award is met from the Assurance Fund under Part XIV.

Section 150(3) — the six-year limit

Six years, running from the date of the deprivation — not from when you discovered it. In a fraud case the two can be far apart, and a person who learns of the loss late may find the claim against the Registrar already barred.

The lesson is the same as everywhere in this Act: search your titles periodically, and act at once on anything unexpected.

Sections 150(4) and (5) — the good faith purchaser again

Subsection (1) does not subject to an action for damages a purchaser or a mortgagee acting in good faith and for valuable consideration — and that protection is not affected by the fact that the vendor or mortgagor was registered through fraud or error, or derives from or through a person so registered, whether by wrong description of land or boundaries or otherwise.

The wording mirrors section 146(3) and (4) on ejectment. The innocent purchaser for value is protected against both remedies: you cannot eject them, and you cannot recover damages from them. That is precisely why the Assurance Fund exists.

Payment out of the Assurance Fund

Where an award is made and a direction given, payment comes from the Assurance Fund. Two features matter:

• You are not limited by the Fund’s balance. Under section 141(2), where the Fund is insufficient the full amount is paid out of the Consolidated Revenue Fund, which is appropriated accordingly — and the Fund reimburses it as it accrues.
• Breach of trust is excluded. Under section 142, no indemnity is available out of the Assurance Fund or the Consolidated Revenue Fund for loss occasioned by breach of trust or default. See trusts and the Register.

Recovery first, damages second

1. Act immediately. Lodge a caveat to stop further dealings — and note the three-month lapse, which requires proceedings and written notice to the Registrar.
2. Try to recover the land while it is still held by the person who took it. Under section 33(1)(a) the registration can be attacked for fraud, and under section 146(2)(d) ejectment lies against a person registered through fraud.
3. Ask the Registrar to correct where the problem is an error or omission — section 161, and Part XVI for a description or boundary problem.
4. If an innocent purchaser for value has become registered, the land is gone. Turn to damages under section 150.
5. Identify the defendant — the person who derived benefit, or the Registrar as nominal defendant where that person is dead, insolvent or has absconded.
6. Diarise six years from the deprivation.
7. Where the State is a defendant, comply with the Claims By and Against the State Act 1996, which has its own notice requirements.

A related recovery: costs against the Registrar

Separately from section 150, section 145 allows a proprietor to summon the Registrar to court to substantiate a refusal or direction. Costs are borne by the person bringing the proceedings unless the Court certifies that there were no reasonable grounds for the refusal — in which case the certificate states the amount and that it is payable out of the Assurance Fund.