New Horizons For Torrens. Current reforms, emerging issues

Transcription

1 New Horizons For Torrens Current reforms, emerging issues Auckland, New Zealand August 2018

2 Contents Welcome... 3 About... 4 Programme... 5 Keynote Speakers... 8 Dinner Speaker Section Speakers General Information Social Programme Auckland Information Abstracts New Horizons for Torrens Conference, August 2018

3 Welcome Welcome to the Conference New Horizons for Torrens Current Reforms, Emerging Issues. It is timely for such a conference as the new Land Transfer Act 2017 comes into force later in 2018 and introduces wide-ranging reforms that will have a significant impact on land law in New Zealand. Its enactment may well also influence ongoing land law reform in other jurisdictions including Australia and the United Kingdom. A significant part of the new legislation concerns the further advancement of automation of land transactions, and a departure from the traditional understanding of the immediate indefeasibility principle that underpins the Torrens system. In addition the Conference also covers a broad range of current legal issues and developments affecting land that are common to other comparable jurisdictions. The Conference will include presentations by leading New Zealand and international experts on land law, land registration systems and automation. Confirmed speakers include Judges, academics, law reform commissioners, and practitioners from New Zealand, Australia, Canada, England, Scotland, Ireland and the Netherlands. The New Zealand Registrar-General of Land will give an update on automation under Landonline. The Conference will include a panel discussion on automation and new opportunities offered by advances in information technology. I am confident that the papers to be presented, and the issues that will be discussed, will not only provide greater understanding of the law as it is, but also will inform its future application and development. Professor David Grinlinton (Conference Chair) Faculty of Law, University of Auckland New Horizons for Torrens Conference-Organising Committee Professor David Grinlinton, Faculty of Law, University of Auckland (Chair) Professor Andrew Stockley, Dean of Law, University of Auckland Professor Liz Toomey, Faculty of Law, University of Canterbury Associate Professor Rod Thomas, Law School, AUT University Brent Hemi, Event Services, University of Auckland New Horizons for Torrens Conference, August

4 About Aim of the Conference The new Land Transfer Act 2017 (LTA 2017) comes into force later in It replaces the Land Transfer Act 1952, which has governed land ownership and transactions in New Zealand for over 65 years. The Torrens system is also used in Australia, some Canadian provinces, some states in the US, the UK (in a modified form), and in a number of other jurisdictions. The 2017 Act introduces significant reforms that will have a significant impact on land law in New Zealand. The Conference is intended to provide a high-level authoritative forum for analysis of the content and effect of the LTA 2017, and its specific impacts in the practice of property law, and judicial decisions-making in New Zealand. It will also include international speaker who will provide commentary on registration systems in other jurisdictions that share similarities with New Zealand. Experience of recent reforms in those jurisdictions will provide useful perspective as the new legislation beds in, and in contemplating future law reform possibilities. The Conference has the support of the New Zealand Law Foundation, and is being managed by the University of Auckland Events Services. Topics to be covered The conference will run over two days covering these main themes: A review of recent developments in the Torrens system including developments in the title registration systems in New Zealand, and other jurisdictions including Australia, Canada, Ireland, Scotland and England. The structure, content and effect of the LTA 2017, including its effect on the creation, security and transferability of real property rights and interests. Future developments and reforms, including the possible impact of the LTA 2017 reforms in New Zealand, and in other Torrens and common law jurisdictions. 4 New Horizons for Torrens Conference, August 2018

5 Programme Pre-Conference Welcome Programme Wednesday 29 August 5:30pm 5:30pm 7:00pm 7:30pm Registration Desk open for pre-registration-owen G Glenn Building, Level 1 Foyer WELCOME RECEPTION OPEN TO ALL REGISTERED DELEGATES LIGHT REFRESHMENTS AVAILABLE Informal welcome from the conference committee Welcome Reception open to all registered delegates REGISTRATION DESK CLOSES Conference Day 1 Thursday 30 August 8:00am 8:30am 8:45am 9:00am 9:30am 10:00am 10:30am 11:00am 11:30am 12:00pm 12.30pm 1:30pm 2:00pm 2:45pm Registration Desk open- Owen G Glenn Building- Level 1 Foyer Mihi Whakatau (Maori Welcome) Welcome and opening comments: Prof. David Grinlinton, University of Auckland Theme 1: Torrens Recent developments and current issues Fisher & Paykel Auditorium Session 1 Chair: Assoc. Prof. Rod Thomas Keynote 1: Prof. Martin Dixon, University of Cambridge "Title guarantee vs title indefeasibility-that is the question" Keynote 2: The Hon William Gummow AC "Fraud" Assoc. Prof. Fiona Burns, University of Sydney "In personam claims-developments and thoughts" MORNING TEA: LEVEL 1 OWEN G GLENN BUILDING Fisher & Paykel Auditorium Session 2 Chair: Dr Kenneth Palmer Keynote 3: Prof. Brendan Edgeworth, University of New South Wales "Australian Torrens developments and themes" Keynote 4: Prof. Kenneth Reid, University of Edinburgh "Deferred indefeasibility: the Scottish experience" Robbie Muir, Registrar-General of Lands, New Zealand "Report card on automation and Land online 15 years down the track" LUNCH: LEVEL 1 OWEN G GLENN BUILDING Theme 2: The new Land Transfer Act 2017 Fisher & Paykel Auditorium Session 3 Chair: Hon Sir Ian Barker QC Keynote 5: Rt Hon Sir Peter Blanchard "Reform of the Land Transfer Act" Neil Campbell QC, Shortland Chambers, Auckland and Assoc. Prof. Rod Thomas, AUT University "The fraud test and 'manifest injustice' under the new Act" Opportunity for questions New Horizons for Torrens Conference, August

6 3pm AFTERNOON TEA: LEVEL 1 OWEN G GLENN BUILDING Fisher & Paykel Auditorium Session 4 Chair: Prof. Brendan Edgeworth 3:30pm Prof. David Grinlinton, University of Auckland "Registrar's powers under the new Act" 4:00pm Prof. Elizabeth Toomey, University of Canterbury "State guarantee and the expanded compensation regime" 4:30pm Thomas Gibbons Solicitor "Covenants and encumbrances under the new Land Transfer Act" 5:00pm Opportunity for questions and finish of Day pm CONFERENCE DINNER, FALE PASIFIKA, WYNYARD STREET, UNIVERSITY OF AUCKLAND 7pm Guests seated for dinner Dinner Speaker: Hon Sir Ian Barker "Recollections of the old Land Registry" 9pm Dinner Ends Conference Day 2 Friday 31 August 8:00am 8:30am 9:00am 9:30am 10am 10.30am 11:00am 11:30am 12:00pm Registration Desk open-owen G Glenn Building, Level 1 Foyer Theme 3: Cross-cutting issues Fisher & Paykel Auditorium Session 1 Chair: Hon Tony Randerson QC Keynote 6: Prof Sjef van Earp, Maastricht University "Issues arising from privatising the operation of a public register" Judge Layne Harvey, Maori Land Court "Maori Land and the new Land Transfer Act-observations and comments" Jody Foster, Barrister, Auckland "The interrelationship of the Property Law Act and the Land Transfer Act" MORNING TEA: LEVEL 1 OWEN G GLENN BUILDING Theme 4: Automation-Current developments and emerging issues Fisher & Paykel Auditorium Session 2 Chair: Katherine Sanders Keynote 7: Prof. Nick Hopkins, England and Wales Law Commission "Automation, the Land Registration Act and the future" Keynote 8: Prof. Sharon Christensen, Queensland University of Technology Law School "Deferred indefeasibility: the Scottish experience" Keynote 9: Jeffrey Lem, Director of Titles for the Province of Ontario, Canada "Automation of the Register in Ontario-Current Developments, Future Possibilities" Assoc. Prof. Rod Thomas, AUT University "The New Zealand experience: Risks and implications of automation" 6 New Horizons for Torrens Conference, August 2018

7 12.30pm 1:30pm 2.30pm 3:00pm 3:20pm 3:40pm 4:00pm 4:20pm 4:40pm 5:00pm LUNCH: LEVEL 1 OWEN G GLENN BUILDING Panel discussion and Forum Fisher & Paykel Auditorium Session 3 Chair: Dr Don McMorland Topic: "Automation: strengths, weaknesses, opportunities" Speakers: Prof. Kenneth Reid, Prof. Nick Hopkins, Prof. Sharon Christensen, Prof. Struan Scott, Assoc. Prof. Rod Thomas, Jeffrey Lem, John Greenwood and Sandra Murphy AFTERNOON TEA: LEVEL 1 OWEN G GLENN BUILDING Theme 5: Current and emerging issues in practice Fisher & Paykel Auditorium Session 4 Chair: Prof. Struan Scott Thomas Gibbons, Solicitor "Delayed indefeasibility-implications for conveyancers" Tim Jones and John Greenwood, Solicitors "The conveyancing myth-long live automation-what of the future" Ben France-Hudson, University of Otago "Judicial interpretation of Torrens registered documents" Jonathan Flaws, Solicitor, Auckland "Mortgagee risk and title insurance" Opportunity for Questions Prof. David Grinlinton "Comments and conference closure" Conference finishes New Horizons for Torrens Conference, August

8 Keynote Speakers Rt Hon Justice Sir Peter Blanchard Sir Peter Blanchard is a former Judge of the Supreme Court of New Zealand. After graduating with a Master of Laws degree from the University of Auckland Law School in 1968, Sir Peter was awarded a Fulbright Scholarship and a Frank Knox Memorial Fellowship from Harvard Law School where he received a further master's degree in Law. He specialized in commercial, insolvency and property law as a partner at the Auckland law firms of Grierson Jackson & Partners, and the amalgamated firm of Simpson Grierson, from 1968 to In 1992 Sir Peter was appointed as a judge of the High Court of New Zealand, and in 1996 to the Court of Appeal of New Zealand. In 1998 he was appointed as a New Zealand member of the Privy Council, and in 2004 as a Judge of the Supreme Court of New Zealand. Sir Peter has also served as an expatriate justice of the Supreme Court of Fiji. Sir Peter is widely regarded as an expert on New Zealand land law, being the original author of Blanchard, Handbook on Agreements for Sale and Purchase of Land (1984), and a leading practitioner and Judge in this field. Sir Peter gave a keynote address entitled Indefeasibility under the Torrens System in New Zealand to the Torrens in the 21st Century conference at the University of Auckland in He was later a consultant to the New Zealand Law Commission in its deliberations on reforming the Land Transfer Act 1952, and the development of draft legislation which became the Land Transfer Act Professor Sharon Christensen Sharon Christensen is the Gadens Professor in Property Law and Co- Director of the Commercial and Property Law Research Centre in the Law Faculty at Queensland University of Technology. Professor Christensen is a leader in the field of electronic land systems and property transactions in Australia. Her research has been influential in driving government policy, law reform and industry change at the intersection of property laws, consumer protection and emerging technologies. During the last 20 years Professor Christensen s research has been instrumental in guiding government policy for effective seller disclosure in land transactions and the introduction of electronic settlement and lodgement of land transfers in the Land Registry. This has led directly to legislative reforms, enhanced consumer protection in land transactions, created efficiencies in the conveyancing process and lowered compliance costs of property sellers and buyers in Queensland, as well as informing law reform both nationally and internationally for information disclosure and electronic land transactions. Professor Christensen was appointed in 2013, with Professor Duncan 8 New Horizons for Torrens Conference, August 2018

9 and Associate Professor Dixon, by the Queensland Attorney General to lead a broad ranging review of property laws in Queensland. The final report recommends significant legislative reform especially in relation to regulation of electronic contracts, deeds and land transactions and is due for release in early Professor Christensen s research is informed by her professional practice in property and commercial transactions as a consultant with Gadens Lawyers and her position on the board of Property Exchange Australia. Professor Martin Dixon Martin Dixon is the Professor of the Law of Real Property and Head of the Department of Land Economy at the University of Cambridge, the Director of the Cambridge Centre for Property Law, and a Fellow of Queens College. His research interests include land law and land registration (both international and comparative), landlord and tenant law, the law of mortgages, co-ownership, proprietary estoppel, and the United Nations and international law. He is currently supervising a range of Ph.D candidates in aspects of property law as part of the Cambridge Centre for Property Law s research programme. Professor Dixon s recent publications and contributions include: Megarry & Wade: The Law of Real Property (Sweet & Maxwell, 2012) 8th Edition, Ruoff & Roper: The Law of Registered Conveyancing (Sweet & Maxwell, 2014), Modern Land Law 9th Edition (Routledge, 2014), Modern Studies in Property Law (Ed) (Hart Publishing, 2018), Title by registration or conquest: interpreting the Land Registration Act 2002 in England and Wales (2013)5(3) I.J.L.B.E , Land Registration and Time Travel: reforming the land registry [2014] 78 Conv. 189, and A Not So Conclusive Title Register? [2013] 129 LQR 320. New Horizons for Torrens Conference, August

10 Professor William Gummow Professor William Gummow AC is a former Justice of the High Court of Australia. Professor Gummow completed his secondary education at Sydney Grammar School. He went on to study at the University of Sydney, where he graduated as Bachelor of Arts, and later Master of Laws, both with firstclass honours. After 10 years in practice as a solicitor, Professor Gummow was called to the New South Wales Bar in At the bar, his practice included equity, commercial, tax and intellectual property matters. It also included large constitutional issues and in many cases he appeared as a junior to then Commonwealth Solicitor-General, Maurice Byers. Professor Gummow was appointed a Queen's Counsel in In 1986, Professor Gummow was appointed to the Federal Court of Australia. He was appointed to the High Court of Australia in April Professor Gummow was appointed a Companion of the Order of Australia (AC), Australia's highest civil honour, in 1997, and awarded the Centenary Medal in In 1992, The University of Sydney honoured Professor Gummow's scholarly contributions to the law by conferring him with an honorary doctorate in law (LLD). Professor Gummow gave a keynote address entitled Equity and thetorrens System to the Torrens in the 21st Century conference at the University of Auckland in Following his retirement from the High Court of Australia in 2012, he was then appointed Professor of Law at the Australian National University, and also Professor of Law at the University of Sydney in Since 2013 he has been a non-permanent Judge of the Hong Kong Court of Final Appeal. Professor Kenneth Reid Chair of Property Law, University of Edinburgh Kenneth Reid has taught at the University of Edinburgh since 1980 and has held successively the Chair of Property Law ( ) and the Chair of Scots Law (2008- ). From Professor Reid served as a Scottish Law Commissioner directing a major programme of reform in the field of land law. Reforms have included the Abolition of Feudal Tenure etc (Scotland) Act 2000, the Title Conditions (Scotland) Act 2003, the Tenements (Scotland) Act 2004, the Long Leases (Scotland) Act 2012, and the Land Registration etc (Scotland) Act Professor Reid is a Fellow of the Royal Society of Edinburgh (2000), a Fellow of the British Academy (2008), and a Commander of the Order of the British 10 New Horizons for Torrens Conference, August 2018

11 Empire (2005). In 2015 he was awarded the honorary degree of LLD by the University of Cape Town. He has been a Visiting Professor at a number of Universities, and since 2015 has been a Fellow of the Stellenbosch Institute for Advanced Study. He has given lectures and papers at universities in many countries in Europe, South Africa, Hong Kong, and the USA. Professor Reid's main research interests lie in the area of property law, both movable and immovable, including: the classification of proprietorial rights; the transfer of property; land registration; trusts; succession; and comparative property law. He has published widely in these fields. Professor Nick Hopkins Law Commissioner for England and Wales Nick Hopkins was appointed Law Commissioner for Property, Family and Trust Law in October 2015 and is leading the Commission s current review of the Land Registration Act Prior to appointment as Commissioner, Professor Hopkins spent over 20 years as an academic, and he currently holds a Chair in Law at Reading University. Professor Hopkins has published extensively on land law in legal journals, is the author of a monograph, The Informal Acquisition of Rights in Land, co-author of Land Law: Text, Cases and Materials and Land Law: Core Text (both published by Oxford University Press) and editor of the 7th volume of Modern Studies in Property Law. He is a member and current chair of the Board of Modern Studies in Property Law, an academic member of the Property Bar Association and an honorary Bencher of Middle Temple. New Horizons for Torrens Conference, August

12 Professor Brendan Edgeworth University of New South Wales Brendan Edgeworth teaches land law, principles of private law, legal theory and advanced issues in property law at the University of New South Wales Law School. He is the author of Butt's Land Law, 7th ed, Thomson Reuters, (2017), the leading land law text in Australia. He has also recently published Sackville and Neave: Australian Property Law, 10th ed, LexisNexis, Sydney (2016) (with Chris Rossiter, Pam O'Connor and Andrew Godwin); and Native Title from Mabo to Akiba: A Vehicle for Change and Empowerment?, Federation Press, Leichhardt, NSW (2015) (with Sean Brennan, Megan Davis and Leon Terrill). Professor Edgeworth s research is also directed to the reform of housing law and property law. He makes frequent submissions to government and law reform bodies, has been engaged as a consultant to the New South Wales Law Reform Commission, and was a member of the Board of the Tenants' Union of New South Wales from Professor Edgeworth has held positions as Visitor at Stellenbosch University (2013), Warwick University (2006), National University of Ireland, Galway (1999), the International Institute for the Sociology of Law, Onati, Spain (1995) and Trinity College Dublin (1988). He was appointed Visiting Fellow at the European University Institute in Florence in Jeffrey W. Lem 12 New Horizons for Torrens Conference, August 2018 Jeffrey W. Lem, B.Comm (Toronto), J.D. (Osgoode) and LL.M (Osgoode) was called to the bar in Ontario in 1989 and has been a solicitor-on-the-rolls in England & Wales since He is certified as a specialist in real estate law by the Law Society of Ontario and is the Director of Titles for the Province of Ontario at the Ministry of Government and Consumer Services. As the Director of Titles, Jeffrey has responsibility for and oversight of the Land Titles Act, the Registry Act, the Land Registration Reform Act, the Boundaries Act, and a number of ancillary pieces of legislation governing real estate in the province. Prior to joining the Ontario Public Service, Jeffrey practiced in Toronto in all aspects of real estate-based lending, development, leasing, restructuring and remedies. Jeffrey is an editor-in-chief of the Real Property Reports, the legal editor for Building Magazine, a real estate law columnist for Law Times, and the author of the real estate and expropriation volumes of Halsbury s Laws of Canada. Jeffrey has lectured frequently throughout Canada and the United States on real estate law, and has been an instructor in real estate law for the Ontario Bar Admission Course and the director of the LL.M. Program for Real Estate Law at Osgoode Hall Law School. Jeffrey is also a past president of the Association of Chinese Canadian Lawyers of Ontario and currently serves the broader legal community as an elected bencher of the Law Society of Ontario.

13 Professor Sjef van Erp, Maastricht University, The Netherlands Sjef van Erp holds a law degree (1977) and a PhD (1990) from Tilburg University, the Netherlands. After working as a research assistant and adviser at the Netherlands Royal Society of Notaries, he started working as an assistant professor at Tilburg University. On completion of his doctoral thesis he continued his work at Tilburg University as an associate professor. He also continued his research abroad and was visiting professor at Université Laval (Québec, Canada), Cornell University (US), and Trento University (Italy). In 1997, Sjef van Erp was appointed full Professor of Civil Law and European Private Law at Maastricht University. From October 2004 until October 2006 he was Marie Curie Fellow and visiting professor at the Institute for Law and Politics at Bremen University (Germany). In 2009 he was elected fellow at the South African Research Chair in Property law at the University of Stellenbosch and in 2011 he was elected titular member of the International Academy of Comparative Law and Member of the American Law Institute. Professor van Erp is also Deputy Justice at the Court of Appeals of s-hertogenbosch, past President and Honorary Member of the Netherlands Comparative Law Association, Member of the Executive Committee and Secretary-General of the International Association of Legal Science, co-founder and Editor-in-Chief of the European Property Law Journal. He chairs the Board of Directors of the American Association for Law, Property and Society. Currently, he also lectures comparative property law in the Hanse Law School Programme (Oldenburg and Bremen) and he is visiting professor at Trento University, teaching comparative and European private law (with a focus on property law) in the Comparative, European and International Legal Studies Programme. New Horizons for Torrens Conference, August

14 Dinner Speaker Hon Sir Ian Barker, QC Sir Ian was admitted to the New Zealand Bar in 1958, made silk in 1973 and was a Judge of the High Court of New Zealand from 1976 to On the bench he presided over much major commercial litigation and has made numerous distinguished contributions to the evolution of the New Zealand court system. He was knighted in 1994 for services to the law. He was the Judge in charge of the Commercial List from 1987 to Of interest to property lawyers, Sir Ian was also one of the counsel to Mr Alan Frederick Frazer in the landmark Privy Council case of Frazer v Walker (1967) 1 AC 569. Since his retirement, Sir Ian has conducted many commercial arbitrations and mediations. He has taken on major appointments both here and abroad, including being chair of several arbitral tribunals for the ICC Paris and the PCA at The Hague. He was the first World Intellectual Property Organisation domain dispute panelist appointed in New Zealand in 2000 and resolves domain disputes for the WIPO, National Arbitration Forum (USA) and Internet New Zealand. 14 New Horizons for Torrens Conference, August 2018

15 Section Speakers Associate Professor Fiona Burns Fiona Burns is an Associate Professor at the University of Sydney Law School. She has qualifications from the University of Sydney, the Australian National University and Cambridge University. Associate Professor Burns has held a variety of administrative roles at the University of Sydney Law School and presently teaches property law and succession law. Her research interests include real property, equity, succession law and legal history. She has also undertaken research into the student experience, with particular emphasis on law student mental health. Neil Campbell QC Shortland Chambers, Auckland Neil has a general civil litigation practice, a significant part of which consists of advising and acting on disputes relating to the sale of land, leases, easements, covenants, and unit titles. He appears regularly in the High Court and appellate courts on these and other matters. Neil is a co-author of Hinde, McMorland, and Sim, and of Company Law in New Zealand. His work has been published in the Cambridge Law Journal, Lloyd s Maritime and Commercial Law Quarterly, the Insurance Law Journal, and the New Zealand Law Review. He has presented numerous conference and seminar papers on land law, insurance law, and company law. Until 2008 Neil was also an academic, being an Associate Professor at the Faculty of Law in the University of Auckland. He took silk in Jonathan Flaws Director Sanderson Weir Limited (M.Jur, LLB. Hons) University of Auckland Jonathan Flaws is an Auckland lawyer with over 40 years of practice in property law and banking in a large national practice and his own niche law firm, Sanderson Weir where he is the Director. The firm specialises in banking and finance law and providing legal advice to American title insurers and more recently an English legal indemnity insurance underwriter. Jonathan was a director of the Australian subsidiary of an American title insurance company for ten years and more recently, established a business providing outsourced services to assist the underwriter in London to respond quickly and efficiently to an increasing volume of requests and enquiries for legal indemnity insurance for special risks identified on due New Horizons for Torrens Conference, August

16 diligence of real estate in the United Kingdom. Jonathan s thesis for his Master s degree in law at Auckland University reviewed the rights of mortgagees following default and he delivered seminars on these rights in New Zealand. In 2003 he delivered a paper at the Auckland University Torrens conference on extending State compensation for loss under the Torrens system with private insurance. Jody Foster Jody Foster graduated from Auckland University in 1986 (LLB) and was admitted to the Bar in that year. She was with Buddle Findlay from December 1985 to 1992 and spent a year in London with Speechly Bircham. On returning to New Zealand she spent two years with Russell McVeagh before joining the independent bar in 1996 where she remains. Jody Foster s practice is primarily in contract and property disputes including Land Transfer Act, Property Law Act and Unit Titles Act issues. She is the author of A Practitioner s Guide to the Property Law Act In 2013 she updated chapter 9 of Hinde, McMorland et al, Principles of Real Property Law, and in 2014 became responsible for updating chapter 9 of Hinde McMorland & Sim Land Law in New Zealand. Since 2000 Jody has been a member of the NZLS Litigation Skills Faculty that delivers the advocacy course at Lincoln University. She has been on the Auckland District Law Society s Civil Litigation Committee since 2003, and Convenor since Ben France-Hudson Ben France-Hudson specialises in the law and theory of private property, with a particular focus on natural resources and land law. His current teaching at the University of Otago includes property law and the law of vendor and purchaser. He has previously taught the law of equity and trusts and resource management law. He is a contributor to Brookers Land Law and a member of the editorial board for the journal Resource Management Theory and Practice. In 2017 Ben was awarded the Richard Macrory Prize for the best article in the Journal of Environmental Law for his article Surprisingly Social: Private Property and Environmental Management. Recently, Ben s research has focused on doctrinal aspects of land law, including the implications that may follow from the recognition of freehold covenants in gross in New Zealand and the interpretation of Torrens registered documents. He has also been engaged in considering the intersection between property law and the anticipated effects of climate change. In 2017 Ben (along with co-researchers from GNS Science) was awarded funding from the Resilience to Natures Challenges National Science Challenge for the two year project Retreating from Impending 16 New Horizons for Torrens Conference, August 2018

17 Disaster: Addressing existing land uses in hazard areas for managed retreat. Prior to becoming an academic Ben worked as a Judges Clerk at the Christchurch High Court, as a solicitor in the Treasury Solicitor s Office (London) and as an Assistant Crown Counsel in the Crown Law Office (Wellington). Thomas Gibbons Thomas Gibbons is a director of McCaw Lewis in Hamilton. He is the author of Unit Titles Law and Practice (2nd edition, 2015) and A Practical Guide to the Land Transfer Act (2017), as well as articles for the Australian Property Law Journal and the International Journal of Law in the Built Environment. His practice focuses on technical land and development issues. He has appeared as an expert witness in the High Court, and his academic work has been cited in a range of court decisions. John Greenwood John Greenwood has been in practice for 41 years. Formally a partner for 25 years at Chapman Tripp, solicitors in Wellington and for the last 13 years a partner at Greenwood Roche, Project Lawyers in Wellington. John is now a Consultant with his firm. John has had various roles and involvement in property law and as a leader in various law society roles. These have included as Former Chair of the New Zealand Law Society General Practice and Property Law Committee, and inaugural Deputy Chair of the Property Law Section of the New Zealand Law Society; For eight years John was also the Co-Convenor of the New Zealand Law Society Working Party on Automation and long time Editor of the New Zealand Property Lawyer Bulletin, published by the Property Law Section of the New Zealand Law Society; John is an honorary member of the New Zealand Property Institute and Moderator for the New Zealand Council of Legal Education on property law, equity and succession law papers at all New Zealand universities. He has presented papers and chaired seminars and conferences for both the New Zealand Law Society and the Wellington District Law Society branch and co-authored (with Tim Jones) Automation of the Register - Issues impacting on the integrity of Title which was presented to the Torrens in the Twenty-First Century international law conference in Auckland in John has taken a lead role in reform of property law in New Zealand, having been involved in submissions on the Law Commission s papers on Property Law and Land Transfer reform; submissions to the Select Committee on New Horizons for Torrens Conference, August

18 the 1991 and 2004 Building Acts; a primary role in Unit Titles Act reform; and has also assisted the Government on policy papers involved with the Retirement Villages legislation. He has also assisted with the drafting of guidelines for practitioners in conveyancing practice and producing the original draft of the Property Law Section Transactions Practice Guidelines. He has also had a very active career in legal practices, including numerous opinions and advice to practitioners throughout New Zealand on conveyancing practice involving the sale and purchase of commercial, rural and residential property and on specific property rights issues. He has acted as an expert witness in a number of civil proceedings claims over lawyer behaviour, and has acted as mediator and arbitrator in a number of property related cases involving rent reviews, unit title disputes, impact of easements and encumbrances, among other topics, as well as being appointed an amicus curiae to the High Court. 18 New Horizons for Torrens Conference, August 2018 Professor David Grinlinton David Grinlinton is a Professor of Law at the University of Auckland School of Law. His teaching and research interests include real property law, resource management law and natural resources law. Areas of particular research focus include commercial leases and residential tenancies, the Torrens system and indefeasibility, and addressing the tensions between private property rights and the public interest in natural resource development. David was the organizer of the Torrens in the Twenty-first Century Conference in 2003, and editor of the book of the same name that included a number of edited papers from that event. Those papers contributed significantly to the Law Reform Commission s deliberations that led to the new Land Transfer Act David is also a regular contributor to New Zealand Law Society seminars on commercial leases and property law, and is the author of Residential Tenancies: The Law and Practice (4th ed, LexisNexis, Wellington, 2012), and co-editor (with Hon. Peter Salmon) of Environmental Law in New Zealand (Thomson Reuters, Wellington, 2015). Judge Layne Harvey Judge Layne Harvey was appointed to the Māori Land Court on 1 September Based in Rotorua, he is the resident Judge for both the Aotea and Tākitimu Districts of the Māori Land Court, hearing cases in New Plymouth, Hāwera, Whanganui, Levin, Palmerston North, Wellington and Hastings. Before he was appointed to the Court, Judge Harvey practised for 11 years as a lawyer in Auckland with Simpson Grierson and with Walters Williams and Company, where he became a partner. His work included acting for iwi and hapū in Waitangi Tribunal claims and settlement negotiations, providing general advice to Māori organisations, and working in trust law

19 and iwi legal and post-settlement governance structures. Judge Harvey has also been a trustee of Māori land trusts, iwi authorities and Māori reservations and has been a member of the Council for Te Whare Wānanga o Awanuiārangi since Tim Jones, Barrister, Auckland Tim Jones was admitted as a barrister and solicitor in He commenced employment with Glaister Ennor in 1980 and subsequently joined the partnership in His practice primarily consists of residential, commercial property and land development work. He retired from Glaister Ennor in April 2018 to practice as a Barrister Sole in the area of property, land law and unit title advisory work. Tim was a member of the Auckland District Law Society Property & Business Law Committee for approximately 14 years. He was also a member of the ADLS Documents and Precedents Committee for many years until the end of He was Co-convenor of the New Zealand Law Society Land Titles Committee on the LandOnline LINZ project, and was a member of the NZLS Continuing Legal Education Board until He was a Council member of the ADLS for four years, and a member of the NZLS Auckland branch Council and President up to Since 2016 Tim has been New Zealand Vice-President Auckland, serving on the Board of the NZLS. Tim has presented numerous seminars on conveyancing and land law topics for both the NZLS and ADLS Continuing Legal Education programmes. In November 2006, he co-presented a seminar on subdivision and land development for the NZLS, and in 2009, presented a seminar for the NZLS on the new form of agreement for sale and purchase, drafted by the Real Estate Institute of New Zealand. Since then Tim has presented seminars for both ADLS and NZLS on such topics as Aspects of Unit Titles Act 2010, Complex Developments and Subdivisions, Conflicts of Interest and Aspects of the Agreement for sale and purchase of real estate. Robert Muir LLB (Otago) Registrar-General of Land Robbie has worked in land title registration for many years. He has held the position of Registrar-General of Land since 2000, heading one of the regulatory units within Land Information New Zealand. Robbie was centrally involved in the development of Landonline and the Land Transfer Act reforms to enable computerised registration. His office has since worked with the Law Commission on the legislative review which led to the enactment of the Land Transfer Act He has presented at numerous seminars and conferences on conveyancing and land registration matters over the years. New Horizons for Torrens Conference, August

20 Dr Don McMorland Don McMorland began his working life at the University of Auckland Law School teaching primarily, Equity, Land Law and Vendor and Purchaser from 1968 to 1998 as a permanent member of staff and then carrying on with Vendor and Purchaser until 2005 as a part time teacher. During that time he also built up an opinion practice as a barrister, enabling him to take early retirement from teaching at the end of During his period of teaching he also became a co-author for Hinde McMorland and Sim on Land Law in New Zealand, and in the early 1990s wrote and self-published Sale of Land, a text on vendor and purchaser. Since leaving the Law School staff, Don carried on with opinion writing and also continued his writing and publishing commitments. He remains a coauthor of Hinde McMorland and Sim with editorial responsibility for eleven chapters, and is currently preparing the fourth edition of Sale of Land for publication. He has also been the editor of Butterworths Conveyancing Bulletin since 1982 and of the New Zealand Conveyancing and Property Reports since Sandra Murphy Sandra Murphy graduated from the National University of Ireland, Galway, with an LL.M in Public Law in 2013 with first class honours. She received a B.A. in Legal Science and Sociology and Politics in 1988 and an LL.B in 1990, both from NUI Galway. She qualified as a solicitor in 1992 and has been in private legal practice since that time. She practised in one of the West of Ireland s leading law firms and is now a consultant solicitor in private practice in her own firm in County Mayo, Ireland. She is admitted to the Roll of Solicitors in England and Wales. Sandra is also a member of the Law Society of Ireland Conveyancing Committee, the body responsible for monitoring and advising Irish solicitors in best practice in conveyancing law and the Land Registry and Pre-Contract Task Forces of the Law Society of Ireland. Sandra Murphy is currently a Hardiman Research Fellow and final year Irish Research Council PhD Scholar in the School of Law at NUI Galway, Ireland. Sandra s research is entitled A Comparative Analysis of the Reform and Modernisation of Land and Property Conveyancing Law. The research aims to conduct a comparative analysis of the reform and modernisation that has taken place in Irish land and conveyancing law and the Irish Land Registry system with the reform and modernisation that have taken place in other comparable common law jurisdictions with similar land registration systems. She is currently editing a book on econveyancing and Title Registration in Ireland due to be published by Clarus Press in New Horizons for Torrens Conference, August 2018

21 Professor Struan Scott Struan Scott is a Professor of Law at the Faculty of Law, University of Otago. He teaches, researches and publishes in the areas of Property Law, Banking Law, Company Law and the Law of Restitution. With regard to Land Law he is a contributing author to both Hinde, McMorland and Sim Land Law in New Zealand (with responsibility for the chapters on the Land Transfer System and Capacity to Own and to Deal with Land) and Adams Land Transfer (with responsibility for its sections providing an Overview of the Land Transfer System, Registration, Certificate of title, Mortgages and Leases). Associate Professor Rod Thomas Rod Thomas is an Associate Professor at Auckland University of Technology, and a graduate of Auckland and Melbourne Universities. Some 35 years ago he was a Legal Officer and Assistant Land Registrar at the Auckland Torrens Land Registry before going on to practice first as a solicitor at Simpson Grierson, Auckland, and then as a barrister sole at the Auckland Bar. Rod has been at the Law School at Auckland University of Technology for the last eight years. Associate Professor Thomas is a member of the Cambridge Centre for Property Law at the University of Cambridge, where for the last four years he has been a Senior Visiting Research Fellow, working primarily on land registry automation and blockchain land registry issues. Rod publishes extensively on State guarantee and title related issues in both Europe and Australasia. He has been an adviser to both the New Zealand and the England and Wales Law Commissions on land related issues. He has also presented at World Bank Conferences on issues of land automation and public/private land registry ownership. Rod continues to practice as a barrister, mainly in terms of giving advice and undertaking some appellate appearances. Professor Elizabeth Toomey Elizabeth Toomey is a Professor of Law at the University of Canterbury specialising in the areas of real property law, resource management law, public works and sports law. She publishes widely in her areas of expertise both in New Zealand and internationally. She is the General Editor and a coauthor of New Zealand Land Law(3 ed, Thomson Reuters, 2017). Professor Toomey has presented papers at numerous conferences, and is a regular contributor to Butterworths Conveyancing Bulletin. She has advised the New Zealand Law Commission on real property issues and undertakes consultancy work for the legal profession. She plays an active role in the wider University of Canterbury environment. New Horizons for Torrens Conference, August

22 General Information The following information is provided as a guide to the conference and to Auckland. If you have any queries, please visit the registration desk. Registration Desk Hours For any questions, please visit the registration desk during the following hours: Wednesday 29 August 5.30pm 7.30pm Thursday 30 August 8.00am 4.30pm Friday 31 August 8.00am 5.00pm Conference Venue The conference will be held in the Owen G Glenn Building, New Zealand s largest teaching space and home to staff and students of the University of Auckland Business School. Physical address: 12 Grafton Road, Auckland. The venue houses fully-equipped lecture theatres, computer labs, work rooms and social spaces, along with cafés and an on-site bank, clustered around a spectacular 26m-high atrium. Disabled access and facilities are available throughout the building. Catering Lunches, morning and afternoon teas will be served in the Owen G Glenn Building, Level 1 Foyer. Care is taken to ensure all dietary requirements are catered to. Vegetarian and halal options are provided with each meal break. If you have made a special request please talk to the catering staff. Car Parking Parking is available below the Owen G Glenn Building, 12 Grafton Road, Auckland. You can purchase $12 parking exit tickets from the conference reception desk during the conference - 22 New Horizons for Torrens Conference, August 2018

23 payment by cash or credit card. This is the same price as early-bird parking but has no restrictions on entry or exit time. Enter the car park as normal then come to the reception desk to purchase the replacement exit ticket. Internet Access Wireless internet access is available for delegate use. Visit the registration desk for details. Name Tags Please wear your name tag at all times during the workshop and social events. You will be asked to present your name tag to enter the workshop dinner. No Smoking Policy Delegates should be aware that smoking is banned from all public buildings in New Zealand and is also banned from all University of Auckland property. This policy is strictly enforced. Smokers are able to smoke on public land/footpaths only. Banks and ATM Machines The nearest banks can be found on level 1 of the Owen G Glenn Building (ASB) and level 1 of the Kate Edgar Information Commons (ANZ) directly across Symonds St. Presentations As a courtesy to our presenters, please ensure you arrive at each session venue prior to the start of presentations. Presenting Authors Presentation slots are 30 minutes long, however presenters are asked to keep presentations to 25 minutes to allow time for questions and discussion at the end of each session. If you are scheduled to give a presentation, please ensure your PowerPoint is uploaded well in advance of your presentation time, preferably during the catering breaks or prior to the start of each day. To upload your presentation, please take it to the presentation room on a USB memory stick. A member of the organising team will be available to assist you. Mobile Phones During all presentations please switch off or turn your mobile phones to silent. Cameras and electronic recording No electronic recording of presentations is permitted in any form without the express permission of workshop organisers and speakers. Urgent messages and lost property Urgent messages for delegates and lost property can be directed to the registration desk. Messages and lost property will be held there for collection until the conclusion of the workshop. Emergencies, medial needs and illnesses If you have an emergency you can contact the police, paramedics and fire department by calling 111 from any landline or mobile phone. If you require non-emergency medical attention during the workshop, please inform the registration desk. New Horizons for Torrens Conference, August

24 Social Programme Welcome Reception Wednesday 29 August, 5.30pm The Owen G Glenn Building, Level 1 Foyer 12 Grafton Rd, University of Auckland The Welcome reception is available to all registered delegates. The Registration Desk will be open from 5.30pm. Conference Dinner Thursday 30 August, 6.30pm The Fale Pasifika Wynyard Street, University of Auckland Our Fale Pasifika is one of the more iconic buildings on campus. We are part of the University's Pacific community and the Fale is our spiritual home. The Conference dinner is available to those who have purchased a ticket to attend. Please make sure you present your name tag on arrival, as it includes your dinner ticket(s). 24 New Horizons for Torrens Conference, August 2018

25 Auckland Information The following information is provided as a guide to Auckland. If you have any queries, please visit the registration desk. Getting around Buses The Link bus connects Auckland city fringe suburbs with the central business district. There are also free environmentally-friendly, hybrid City Circuit buses that follow a route around the inner city. Buses run to all parts of the Auckland region from the Britomart transport centre, downtown. Trains run regularly to central, south and west Auckland suburbs from the Britomart rail station. Taxis and shuttles If you require a taxi there are a host of companies to choose from. Some recommended companies are: Auckland Co-op Taxi: Discount Taxi: Green Cabs: Airbus Shuttle: Night on the town Britomart Britomart is a vibrant shopping, entertainment and business precinct in the heart of downtown Auckland. Surrounded by beautiful heritage buildings, it s a neighbourhood of buzzing restaurants, cool bars, designer boutiques and quirky art spaces. Viaduct Harbour Hobson Wharf, Corner of Quay and Hobson Street With over 20 bars and restaurants to choose from in one waterfront destination, Viaduct Harbour is a superb place to dine or relax and watch the world go by. On Friday and Saturday nights the bars and restaurants are filled with people looking for fun and excitement. SkyCity Corner of Victoria and Federal Streets 5-star restaurants, bars, clubs, casinos and the Sky Tower! Ponsonby Road Ponsonby road, Auckland s hippest strip, is easily accessible by the Inner Link bus and home to over 100 of Auckland s top cafes, bars and restaurants. Take a stroll down the strip to check out the Want to go out for a night on the town but unsure where to start? Here are a few options: New NewHorizons Horizonsfor fortorrens TorrensConference, Conference,August August

26 Abstracts Title guarantee vs title indefeasibility That is the question Martin Dixon, Professor of the Law of Real Property, University of Cambridge The Law Commission of England & Wales have just produced a set of recommendations for the reform of that jurisdiction s primary registration statute the Land Registration Act That legislation itself represented a significant reform of the founding statute, the Land Registration Act The 2002 Act had many objectives, but two leading and interlinked ones were to introduce e-conveyancing and to change the system from registration of title, to title by registration. The first of these objectives e-conveyancing - remains elusive (at least in the sense that it was originally proposed) and while it is now clear that there is title by registration in England and Wales, this has attracted both judicial and academic criticism. On the one hand, it is suggested by some that it places too high regard on conveyancing machinery and fails to reflect where the true ownership of land lies. On the other hand, some criticise the Act because its version of title by registration does not provide an unchallengeable title even when there is no fraud. The acceptance by the courts that the 2002 Act did indeed establish title by registration came an unexpectedly long time after the 2002 Act came into force (despite the clear words of the statute). It was confirmed in a case where, bizarrely, the Land Registry were arguing against it. This highlights another feature of the system that has given rise to controversy: the fact that the Land Registry indemnifies effectively insures persons prejudiced by the operation of the system even if the Registry is not at fault. This costs money, running into millions of sterling and results in higher Registry fees. So, by arguing against title by registration, the Registry were seeking to reduce the amount they paid out in indemnity. A cynic might think this was to make the Registry more profitable in a time of financial austerity. It is, perhaps, a classic example of attempted short-term gain for definite long term pain, and rightly was rejected. However, the uncertain ambit of title by registration also led to much debate about other aspects of the system, particularly around the meaning of mistake (in respect of which the register could be changed) and the reach of overriding interests (proprietary rights which have priority without registration and whose existence does not justify indemnity and which challenge the priority of a registered title). This paper seeks to show that the system established by the Land Registration Act 2002 is, in fact, a coherent, workable and integrated system that has established title by registration in the sense of title guarantee. It was the product of a well thought out and well executed policy. It will examine what title guarantee means. In particular, it will seek to distinguish title guarantee from title indefeasibility. The former is the subject of the Land Registration Act 2002; the latter is a Torrens concept. Neither is, in my view, better than the other; but they are different and they reflect the jurisdiction they operate in. Further, the paper argues that many of the uncertainties in the present case law are caused by a failure to understand what title guarantee means and the integrated way it operates: both those cases that seek to detract from it and those where there is hesitancy in giving it its full meaning. With a clear understanding of title guarantee as executed by the 2002 Act, it will be argued that many of the apparent difficulties melt away. There might still be policy objections to the system as established, but not uncertainties about its operation. Finally, the paper will consider the Law Commission s July 2018 proposals. A tentative conclusion might be that the Commission have, unfortunately, produced a set of reforms that in part, veer towards title indefeasibility and, in part, enhance title guarantee. If this is accurate, there must be concerns that, being neither fish nor fowl, the proposed reforms will not achieve their objectives and could actually produce negative results. 26 New Horizons for Torrens Conference, August 2018