Whittem v Arcadi; Nield v Whittem

The proceedings before the High Court of Australia concerned applications for special leave to appeal in two matters: *Whittem v Arcadi* and *Nield v Whittem*. The applicant in the first matter was Bruce Corbett Whittem, and the applicant in the second matter was represented by Mr D.M.J. Bennett, QC. The dispute centred on the interpretation of provisions relating to indefeasibility of title under the Real Property Act, specifically in the context of forged or void instruments.

The central legal issue before the Court was whether the Real Property Act in South Australia, and by extension the Northern Territory, provided for deferred indefeasibility or absolute indefeasibility in circumstances where a certificate of title or instrument of title was obtained by forgery or was otherwise void. This question arose due to a perceived ambiguity in the relevant statutory provisions, which differed from those considered in the High Court's earlier decision in *Breskvar v Wall*.

Mr Bennett, appearing for the applicant in the second matter, argued that the South Australian and Northern Territory provisions, unlike those in most other Australian jurisdictions, created a "classic patent ambiguity" regarding the nature of indefeasibility. He referred to section 69 of the Real Property Act, highlighting subsections (I) and (II). Subsection (I) addresses fraud and provides an exception for bona fide purchasers, while subsection (II) states that a certificate or instrument of title obtained by forgery or through an insufficient power of attorney, or from a person under a legal disability, shall be void. The Court was to determine how this voidness interacted with the principle of indefeasibility.