Poynder v Kent & Ors; Sodomaco v O'Bryan & Anor

The Supreme Court of Victoria heard appeals in *Poynder v Kent & Ors* and *Sodomaco v O'Bryan & Anor*. Both cases concerned the interpretation of section 109 of the *Transfer of Land Act 1958* (Vic) (the Act), which deals with the effect of registration of a void instrument. In *Poynder*, the appellant sought to recover possession of land, while in *Sodomaco*, the respondents sought to have a mortgage removed from the title. The central dispute in both matters revolved around whether the registration of a void instrument under the Act could nonetheless confer an indefeasible title upon the registered proprietor.

The primary legal issue before the Full Court was whether section 109 of the Act operated to cure the defect of a void instrument upon its registration, thereby conferring indefeasibility of title on the registered proprietor, or whether registration of a void instrument remained a nullity. This question required the court to consider the interplay between the Torrens system of land registration, the concept of indefeasibility of title, and the specific wording and effect of section 109 of the Act.

The Court held that section 109 of the Act does not operate to cure the defect of a void instrument upon its registration. Rather, registration of a void instrument is a nullity and does not confer any title, indefeasible or otherwise, upon the registered proprietor. The Court reasoned that the indefeasibility provisions of the *Transfer of Land Act* are intended to protect registered proprietors against unregistered interests and defects in title, but they do not extend to validating instruments that are void ab initio. Therefore, a registered proprietor claiming under a void instrument cannot rely on the indefeasibility provisions to defeat the claims of the true owner.

In *Poynder v Kent & Ors*, the appeal was dismissed, and the orders of the trial judge were affirmed. In *Sodomaco v O'Bryan & Anor*, the appeal was allowed, and the mortgage was declared void and ordered to be removed from the register.