It happens more often than the theory of the Torrens system would suggest: two certificates of title, two registered proprietors, one piece of ground. The Land Registration Act resolves it in a single paragraph.
Section 33(1)(c) — the prior instrument prevails
The registered proprietor holds absolutely free from all encumbrances except … (c) the estate or interest of a proprietor claiming the same land under a prior instrument of title.
So where two titles cover the same land, indefeasibility does not resolve the contest in favour of whoever registered a dealing most recently. The earlier instrument of title wins.
Section 24 governs competing dealings with the same title — priority by order of production. Section 33(1)(c) governs competing titles over the same land — and there the test is which instrument of title came first. Two different problems, two different rules.
How duplicate titles arise
- Survey error. Two parcels described so that they overlap in whole or in part. This links to section 33(1)(e), under which a wrong description of the land or its boundaries is itself an exception.
- A second grant of the same land. A State lease granted over land already under lease, usually because the earlier grant was not picked up.
- Administrative error in the Register — a folio created twice, or a cancelled title not properly cancelled.
- Fraud — a title procured over land already titled. That engages section 33(1)(a) as well.
- Historic and restoration titles. Titles issued under earlier regimes, including restoration processes, sitting alongside modern ones.
Working out which instrument is prior
The question is which instrument of title is earlier — not which proprietor bought most recently, and not which dealing was registered last.
- For a certificate of title, section 10 tells you when it was registered: when marked with the volume and folio and signed, sealed and dated by the Registrar.
- For a State lease, the lease is itself the folio, and section 81 of the Land Act 1996 calculates the term from the date of gazettal of the successful applicant under section 74.
So the investigation is documentary: obtain the full history of both titles from the Registrar, and establish the sequence of the instruments themselves.
What each party can do
| Party | Position | Steps |
|---|---|---|
| Holder of the prior title | Protected by s 33(1)(c) | Lodge a caveat; seek correction of the Register; sue for a declaration and possession |
| Holder of the later title | Loses the land | Investigate fraud; claim damages under Part XV Division 3, payable out of the Assurance Fund |
| A mortgagee of the later title | Security may be worthless | Same routes; check whether the loss falls within the Fund or is excluded by s 142 |
Correcting the Register
The Registrar’s powers are the administrative route:
- Section 160 — requiring an instrument wrongly issued or held to be delivered up, with the Court’s summons, warrant and committal powers behind it.
- Section 161 — cancelling or correcting an instrument delivered up, and correcting errors or omissions in the Register on sufficient evidence. Corrections must not erase words, must be dated and initialled, and take effect except as regards an entry made before the correction.
- Part XVI — amendment of the description of land, which is the proper vehicle where the overlap is a survey or description problem.
Section 161 corrects errors and omissions. It is not a power to divest a registered proprietor of a title validly obtained. Where the competing claims are genuinely arguable, the matter belongs in the National Court, and the Registrar’s role is to hold the ring — which is why section 163 allows the Registrar himself to lodge a caveat.
If you discover a competing title
- Lodge a caveat immediately to freeze dealings — and diarise the three-month lapse, which requires proceedings and written notice to the Registrar.
- Obtain the full history of both titles from the Registrar, including the instruments and their dates.
- Get a survey to establish whether the overlap is total or partial, and whether it is really a boundary problem.
- Notify every affected party — mortgagees, lessees, occupiers.
- Consider fraud if the later title was procured knowing of the earlier one.
- If you hold the later title, start assembling the damages claim early: what you paid, what you spent, and what you lost.
- Take advice quickly — the Public Solicitor, or a firm from the law firms directory.
Sources
- Land Registration Act (Chapter 191) — ss 10, 11, 24, 33, 142, 160–163; Parts XIV, XV and XVI
- Land Act 1996 — ss 74, 81
- Mudge v Secretary for Lands [1985] PGSC 13; [1985] PNGLR 387
- Timothy v Timothy [2022] PGSC 82; SC2282
- Keindip v The State [1992] PGNC 125; [1993] PNGLR 28; N1170
Before relying on anything here, read the current text of the Land Act 1996 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.