Abstract:
This article makes two contributions to scholarship on New Zealand’s new Land Transfer Act 2017. First, this article challenges the notion that the Act reaffirms the principle of immediate indefeasibility in New Zealand. It argues that, while the Act purports to reaffirm the principle of immediate indefeasibility, the new judicial discretion to alter the register in cases of manifest injustice in fact subverts the prevailing normative justification for interpreting indefeasibility as immediate – to give new and prospective bona fide registered owners transactional certainty. In doing so, the Act creates a degree of transactional uncertainty that belies the essence of what the principle of immediate indefeasibility stands for in New Zealand. Secondly, this article argues that the new judicial discretion creates three uniquely problematic uncertainties for new and prospective bona fide registered owners. The three uncertainties are: uncertainty about whether a person is eligible to apply to the court for an order cancelling the bona fide registered owner’s registration; uncertainty about the strength of that person’s application; and uncertainty about how a court is likely to interpret its new power to make an order. The article concludes that the new uncertainties are significant enough to have commercial implications for New Zealand’s land transfer system.