[Part 1 of a 2-part series on land scams].

A forged signature, a lost farm, and a century of Torrens law: why Australia and New Zealand let the innocent buyer keep stolen land, and why Malaysia chose the opposite rule.

A Forged Signature in New Zealand

Mr Frazer farmed in New Zealand. He and his wife were the registered joint owners of the land. Without his knowledge, his wife borrowed money from a couple named Radomski and gave them a mortgage over the farm. Two signatures were needed. Hers was real. His was forged.

The loan was not repaid. The Radomskis, entirely unaware of the forgery, exercised their power of sale and sold the farm to a Mr Walker, who was duly registered as proprietor. Mr Frazer, who had signed nothing, borrowed nothing, and knew nothing, sued to get his farm back.

He lost. In Frazer v Walker, the Privy Council held that registration under New Zealand’s Torrens statute conferred title upon the registered holder even where the instrument beneath the registration was a forgery — provided the holder was not personally party to the fraud.¹Frazer v Walker [1967] 1 AC 569 (PC). The Radomskis’ mortgage was good the moment it was registered. Walker’s title was better still. Lawyers call this immediate indefeasibility: the register does not merely record ownership; it creates it, instantly, forgery notwithstanding.

Four years later the High Court of Australia embraced the same rule in Breskvar v Wall. The Breskvars had signed a transfer in blank as security for a loan, trusting their lender to hold it honestly. He instead inserted his grandson’s name, had the grandson registered, and the land was on-sold to an innocent company before the Breskvars discovered anything. The High Court ruled that the innocent buyer’s interest prevailed — the Breskvars lost their land, permanently, to a purchaser who had done nothing wrong at all. Barwick CJ compressed the whole philosophy into one sentence that every Australasian law student now learns by heart: the Torrens system “is not a system of registration of title but a system of title by registration.”²Breskvar v Wall (1971) 126 CLR 376, 385 (Barwick CJ).

Why the Law Chose the Buyer

It is worth pausing on how strange this result first appears. The common law’s oldest instinct is nemo dat quod non habet — no one gives what he does not have. A forger has nothing; how can anything pass through him?

The Torrens answer is that the question is wrongly framed. The system, born in South Australia in 1858 and adopted across Australasia within a generation, was designed so that a buyer need never investigate the history behind the register. The register is the mirror of title and the curtain over everything before it. If every purchaser had to fear that some ancient forgery might unravel the chain, the curtain would be worthless and every conveyance an archaeology project.

But a rule that strong needs two safety valves, and the cases have guarded both jealously.

The first is fraud — and it means actual fraud. In Assets Co Ltd v Mere Roihi, the Privy Council held that the fraud which defeats a registered title must be actual dishonesty, brought home to the registered person or their agent.³Assets Co Ltd v Mere Roihi [1905] AC 176 (PC). Carelessness is not enough. In Grgic v ANZ Banking Group Ltd, a bank accepted an imposter’s word — and an imposter’s signature — with verification that can charitably be described as light. The mortgage survived. Negligence, however regrettable, is not dishonesty.⁴Grgic v ANZ Banking Group Ltd (1994) 33 NSWLR 202 (NSWCA). Wilful blindness — suspecting the truth and declining to look — is; but the line sits there, and no lower.

The second is the personal claim. Indefeasibility protects the register; it does not license the registered owner to break his own promises. In Bahr v Nicolay (No 2), buyers who had expressly acknowledged an earlier repurchase right, then tried to hide behind their registered title to escape it, were held to their word.⁵Bahr v Nicolay (No 2) (1988) 164 CLR 604 (HCA). But the High Court has since warned against letting this exception grow until it swallows the rule.⁶Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 (HCA).

And beneath both valves sits the quiet moral engine of the whole design: the assurance fund. Every Australian State pairs immediate indefeasibility with a State-backed fund that compensates the owner who loses land through fraud on the register. The bargain is candid. The buyer keeps the land; the owner gets money; the system absorbs the fraud as an insurable cost of a register everyone can trust. Whether money is truly a substitute for a farm, a family home, or land held for three generations is a question the system answers by not asking it.

The Road Not Taken

The bargain is a choice, not a law of nature — and one member of the Torrens family chose differently. Malaysia inherited the same system through its National Land Code 1965. For a decade its apex court read the statute the Australasian way. Then, in Tan Ying Hong v Tan Sian San, a five-judge Federal Court reversed course: under section 340 of the Malaysian code, the first person registered under a forged instrument takes nothing that cannot be undone, however innocent he is. Only a subsequent purchaser — someone who buys from a person already on the register — is protected.⁷Tan Ying Hong v Tan Sian San & Ors [2010] 2 MLJ 1; [2010] 2 CLJ 269 (FC), overruling Adorna Properties Sdn Bhd v Boonsom Boonyanit [2001] 1 MLJ 241 (FC). The owner keeps the land; the duped buyer is left to pursue the fraudster. And Malaysian practice guards the one remaining flank: where a fraud is reported and under investigation, the Registrar may enter a caveat on the title that freezes all further dealings — so that no “subsequent purchaser” can come into existence while the dispute is decided. The owner must still prove the forgery, on the balance of probabilities, and the burden is his. But the caveat preserves the land itself — held on the register, incapable of passing to anyone — until the court rules one way or the other.

Why the divergence? Partly the statutory text. But partly something more instructive: Malaysia has no assurance fund. Where the State does not compensate the defrauded owner, handing his land to the fraudster’s customer is a hard result to defend — and Malaysia’s Federal Court has itself called publicly for an assurance fund to be established.⁸See Leong Chye & Anor v United Overseas Bank (Malaysia) Bhd & Another Appeal [2021] 6 CLJ 650 (FC), at [76]. Immediate indefeasibility and State compensation are not two policies; they are two halves of one policy. Australasia keeps both halves. That is what makes its rule defensible.

New Zealand, the very birthplace of Frazer v Walker, has itself softened. The Land Transfer Act 2017 retains immediate indefeasibility, but its sections 54 to 57 now permit a court to cancel a registered owner’s title and restore the former owner where registration was obtained through fraud and leaving the register intact would work a manifest injustice. The threshold is deliberately high: forgery alone does not suffice, the court steps in only where compensation cannot mend the wrong, and no order may unwind a title that has since passed to a good-faith third party.⁹Land Transfer Act 2017 (NZ), ss 54–57; see s 55 (“Court may make order only in cases of manifest injustice”): https://www.legislation.govt.nz/act/public/2017/0030/latest/DLM6907200.html A century after exporting the strict rule to the Commonwealth, New Zealand quietly acknowledged that it can bite too hard.

What This Asks of You

Here is the practical meaning of all this doctrine, and it deserves to be said without decoration. In Australia and New Zealand, once a fraud reaches registration in favour of an innocent party, the land itself is gone. Your fight is then about money, delay, and proof. The only stage at which an owner reliably keeps the land is the stage before registration — which makes vigilance not a virtue but the entire game.

The frauds follow a pattern, and the pattern is visible early. In 2010 a Perth investor working in South Africa learned from a neighbour that his Karrinyup property had been sold from under him by imposters.¹⁰“Fraudsters selling homes under owners’ names: Property industry urged to remain ‘vigilant'”, Australian Broker News (28 August 2013). In May 2026, ten Western Australian settlement agents each received an identical email from an “owner” of a $900,000 block in Yanchep — overseas, in a hurry, and curiously eager to know exactly how his identity would be verified. That last question saved the day. A genuine owner never needs to ask how you intend to check who he is. The agents compared notes and the scam died on the desk.¹¹Government of Western Australia, “Scammer poses as property owner in attempt to sell WA land” (31 May 2026): https://www.wa.gov.au/government/media-statements/Cook%20Labor%20Government/Scammer-poses-as-property-owner-in-attempt-to-sell-WA-land-20260531

So: if you own land in Australasia — particularly land that is vacant, tenanted, mortgage-free, or watched over from abroad — register for your land registry’s title-monitoring or notification service, so that any dealing lodged against your title reaches you the day it happens. Treat every change of contact details as false until verified through the old channel. Insist on face-to-face or embassy-grade identity verification for any overseas transaction. And if anything feels wrong, lodge a caveat first and ask questions afterwards — a caveat costs little, and it is the one instrument that stops the register before the register stops you.

The Torrens system keeps its promise: whoever the register names, owns. It has kept that promise to forgers’ customers for a century, and it will keep it to you. The whole art lies in making sure the name on the register stays yours.

Part 2 of this series turns from doctrine to detection: the six tells that betray a land scam in progress — and the one question no true owner ever asks.

 

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This article is written for a general readership and does not constitute technical or legal advice. Readers with legal questions are encouraged to seek independent legal advice.

The author thanks KN Geetha, TP Vaani, JN Lheela, and Lydia Jaynthi at GK Legal. Our gratitude to Andrew Gaz of Unsplash for the image.

Claude, Anthropic’s AI, smoothed the drafting and checked the facts. The argument, the views, and the errors remain the author’s.

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