(180) Accordingly, Peter Butt has commented that 'the place of prescriptive easements and profits in the Torrens system is conjectural.' (181)
A feature of the Torrens system as implemented in Australia is that the register does not necessarily disclose all interests which affect land.
In Victoria and WA, the legislation is widely framed to allow prescriptive easements to constitute exceptions to indefeasibility, not only in respect to old system title land which is brought into the Torrens system, (185) but also in respect to land which is already subject to the Torrens legislation.
The legislation in WA is equally wide, stating that land is subject to 'any easements acquired by enjoyment or user or subsisting over or upon or affecting such land.' (188) The legislation applies to prescriptive easements which existed before the land was brought into the Torrens system. (189) In Di Masi v Piromalli, (190) Jones J held that the legislation was inconclusive as to whether prescriptive easements could be acquired in respect to land which was already governed by the Torrens system.
Assume for example that after a person became the registered proprietor of land under the Torrens system, that person acquiesced in the user of a right of way for 20 or more years.
3 Transitional Provisions and Effective Abolition of Prescriptive Easements under the Torrens System
Such claims are prohibited by the Torrens system, as the act of registration would validate the forged transfer.
There is no reason why a common law or equitable cause of action built upon notice of something other than prior title should be prohibited under the Torrens system.
Once it is accepted that de novo constructive trusts are permissible under the Torrens system, the solution to the difficult case of Bahr v Nicolay [No 2] ('Bahr v Nicholay') (86) becomes obvious.
(101) Whether the relevant Torrens jurisdiction employs the system of constructive notice pioneered in Barclays Bank plc v O'Brien (102) and recently refined by the House of Lords in Royal Bank of Scotland plc v Etridge [No 2], (103) or Australian principles of unconscionability and the so-called 'special equity' for wives, (104) how such claims of third-party unconscionability ought to be treated under the Torrens system are questions of critical importance.
In the context of the Torrens system, it has been said:
The protection from the effect of notice provided by a Torrens system applies to notice of pre-existing unregistered interests and cannot be used to prevent the creation of new equitable interests.