The indefeasibility of title is a key aspect of the Torrens Title System, ensuring a clear hierarchy of property ownership. It grants the registered owner priority over all other claims to the property, securing their legal ownership.

In the Torrens Title System, transferring real property requires more than just signing a contract of sale—registration of the transaction with the land title office following completion in the relevant state or territory. Only upon registration is ownership officially transferred and the buyer’s interest in the property recognised.

This system simplifies land transactions by relying on the indefeasibility of the title principle, meaning a registered interest takes precedence over all others. As a result, property buyers can depend on title registration to confirm ownership without investigating the validity of prior transfers, enhancing security in real estate dealings.

Indefeasibility of Title

Indefeasibility of title means that once the property owner is registered on title, their ownership is secure and generally cannot be challenged by third parties.

However, particular interests can still be registered over the property, affecting what the owner can do with it. These include:

  • Mortgages
  • Leases
  • Easements
  • Caveats

These interests are prioritised based on their order of registration. For example, if a property is mortgaged, the mortgagee’s rights take precedence over most other claims. If the owner defaults on the mortgage, the lender can exercise its power of sale. Additionally, if the owner wants to lease the property, they may need the mortgagee’s consent.

Exceptions to Indefeasibility

While the indefeasibility of title generally protects a registered owner’s claim, there are certain exceptions where a court may override it. These exceptions include:

Fraud – if a person obtains ownership dishonestly.

Forgery – If a person falsifies title documents.

Prior Registered Interests – an earlier registered interest takes precedence.

Prior Certificates of Title – When an earlier valid title exists.

Misdescriptions – If the property description on the title is incorrect.

However, a bona fide purchaser who buys the property in good faith, pays a fair price and is unaware of competing claims will still acquire indefeasible title.

Background

Frank Cassar (the deceased) died on 14 October 2011, aged 60. His last will named his son Michael (the executor) executor and sole beneficiary. The Court granted Probate to the executor on 3 February 2012. The executor submitted that he had administered the deceased’s estate.

Sandra Cassar (the plaintiff) the deceased’s domestic partner of 30 years and mother of Michael and his three siblings, Paul, Francis and Teresa survived the deceased. The Inventory of Assets and Liabilities disclosed real estate in Victoria valued at $9,750,000, personal estate valued at $4,815,040 and total liabilities of $7,594,451.99

Fraudulent Will

In Re Cassar [2022] VSC 126, the plaintiff submitted that she and the defendant assisted in facilitating the creation of a fraudulent Will following the defendant’s claim that the family would otherwise lose everything. The plaintiff obtained the will kit from a convenience store. The plaintiff and Teresa (the plaintiff’s daughter and the defendant’s sister) forged the deceased’s signature, backdated the Will, and secured attestations from false witnesses. The defendant promised to manage and distribute the assets fairly among the family. There is no evidence that the other two siblings, Paul and Francis Jr., were involved. 

Both the plaintiff and her daughter Teresa submitted that they signed the deceased’s name on the fraudulent Will “a few weeks” after his death. Teresa’s timeline for signing the document was inconsistent with the details provided by the plaintiff. One of the witnesses, Michael (the deceased’s brother), also submitted that he signed the Will as a witness roughly a month after the deceased’s death and only in the plaintiff’s presence.

Michael, the executor and sole beneficiary of the fraudulent Will, submitted that the other witness, Raymond (the deceased’s brother), had observed the deceased signing the Will. Michael relied on expert handwriting analysis affirming that the signature was the deceased’s. 

Conversely, the plaintiff cited expert handwriting analysis indicating there was substantial evidence that the signature on the Will was not authentic and resulted from a “simulation/forgery.” Re Cassar [2022] VSC 126 and Re Cassar(No 2) [2022] VSC 398. revoked the grant of probate, and the plaintiff was appointed administrator to manage the estate under intestacy, allowing her and the deceased’s four children to inherit.

Transfer of Estate Assets

Cassar v Cassar (Preliminary questions) [2024] VSC 502 determines whether the Court should order the assets of the deceased estate transferred to the plaintiff under the forged Will to the administrator of the estate.

The key issue is whether the Court should order the return of assets to the deceased estate, given that the plaintiff and at least one of the defendant’s siblings participated in the fraud. Generally, those seeking equity must come with clean hands. However, Gorton J granted the defendant relief for four reasons:

1. The plaintiff’s Role as Administrator: Sandra acts as administrator of the deceased estate, not for personal benefit. The estate itself was the victim of the fraud, and the rightful heirs under intestacy should not be penalised.

2. Public Interest Considerations: Equity can intervene even when a party has engaged in wrongdoing if public policy demands it. Here, it is in the public interest that the estate is administered according to intestacy laws rather than a forged will.

3. The defendant’s Primary Responsibility: Michael orchestrated the fraud, misleading the plaintiff and others. The plaintiff is not trying to benefit from her wrongdoing but to rectify its consequences.

4. The defendants’ Unjust Enrichment: Michael took control of all assets, broke his promise to distribute them fairly, and attempted to cover up the fraud. Allowing him to keep everything would be unconscionable.

The defendant submitted that he could keep the properties because he did not commit fraud against the plaintiff or his siblings, and they were aware of the dishonesty. Gorton J held that a resolution requires examining the powers of equity and whether the Court should exercise them in this case.

Courts of equity have the power to undo fraudulent transactions if required by good conscience. They can order the cancellation of forged documents to prevent misuse and mandate the return of property where damages are inadequate. The fraudulent transfers could have been prevented if the estate had acted earlier. Since concerns about indefeasibility have been addressed, the Court can now order Michael to transfer the properties and shares back to the estate or direct the relevant registers to be amended accordingly.

Given these factors, Michael remains bound by his wrongdoing, and the Court should order the return of the properties and shares to the estate for proper administration.

Timeline

Gorton J summarised the timeline and addressed key arguments concerning delays and the issue of indefeasibility:

The deceased died in October 2011. The parties created the fraudulent Will in November 2011, and the Court granted probate in February 2012. The fraudulent Will transferred the estate properties and shares to the executor between 2012 and 2019. The application to revoke probate began in 2019, and Cassar v Cassar (Preliminary questions) [2024] VSC 502 commenced in November 2022, following the Court’s declaration that the Will was a forgery.

Delay & Equity 

While parties should promptly bring claims in equity if a delay gives rise to prejudice such that it would be unjust to provide the remedy, the claim should not be allowed to proceed. The court found no unfairness in granting relief despite delays, as no evidence was lost, and the legal issues remain clear. The estate acted promptly after the Court made findings of fraud.

Indefeasibility & Volunteers 

The executor took the properties as a volunteer (without consideration), but Gorton J found this argument secondary. The fraud exception to indefeasibility applies, and the defendant’s involvement in the fraud does not shield him from liability or defeat the estate’s claim.

Cassar v Cassar (Preliminary questions) [2024] VSC 502,

Gorton J ruled that assets obtained by the defendant through fraud should be returned to the plaintiff as administrator of the deceased estate of her late husband. The parties agreed on the form of orders to give effect to this ruling and on the defendant being responsible for the plaintiff’s legal costs. However, the plaintiff sought indemnity costs and certification for retaining two counsel, while the defendant argued for standard costs and no certification.

Costs

Gorton J held that the defendant’s fraud made litigation unavoidable, with his resistance to returning the assets unreasonable. While he conducted the case responsibly, his actions necessitated the proceedings. Therefore, indemnity costs were justified, even though the plaintiff and her daughter had participated in the fraud. Additionally, the defendant would pay the plaintiff’s costs from the defendant’s share of the estate.

The defendant had also rejected a Calderbank settlement offer from Sandra, which would have spared him additional costs. His refusal was deemed unreasonable, further supporting the indemnity costs order. The Court approved retaining two counsels, except for the final judgment hearing, where junior counsel alone was considered sufficient.

Ultimately, Gorton J granted relief as agreed by the parties and ordered that:

1. The plaintiff’s costs be paid from the defendant’s share of the estate on an indemnity basis, with certification for two counsel (except for the judgment hearing).

2. The plaintiff’s remaining costs will be indemnified from the estate, along with certification for two counsel (except for the judgment hearing).

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