Anderson v Anderson

The appeal in *Anderson v Anderson* concerned a dispute over the registration of an instrument of severance of a joint tenancy over Torrens title land. The primary judge had found that the circumstances did not amount to actual fraud or moral turpitude, and the appellant sought to overturn this finding on appeal.

The central legal issues before the Court of Appeal were whether the primary judge erred in failing to find fraud within the meaning of section 42 of the *Real Property Act 1900* (NSW), and whether an exception to the principle of indefeasibility of title, specifically the in personam exception, had been established. These issues arose from the execution of the severance instrument pursuant to a power of attorney, where errors were made in the statutory declaration provided by the attorney, and it was contended that the attorney lacked the requisite authority to execute the instrument.

The Court of Appeal affirmed the primary judge's findings, holding that the errors in the statutory declaration, while significant, did not meet the high threshold for fraud required to defeat indefeasibility of title under the *Real Property Act 1900* (NSW). The judges applied established principles regarding the nature of appellate review and the specific requirements for proving fraud in the context of Torrens title. They concluded that the evidence did not demonstrate the necessary dishonesty or fraudulent intent on the part of the registered proprietor or their agent to vitiate the registration. Furthermore, the Court found that the circumstances did not give rise to an in personam claim that would override the registered proprietor's indefeasible title.

Consequently, the appeal was dismissed, and the appellant was ordered to pay the respondents' costs of the appeal, with a direction for a single set of costs to be allowed for the respondents.