By Sir Ian Barker QC
One huge change in the practice of law has been the digitalisation of land titles. The shift to online conveyancing meant the old paper-based system was totally swept away. With it went a significant part of the work many new lawyers carried out as they served their apprenticeship. Sir Ian delivered a very popular after-dinner address on those days gone by at the Torrens Conference at the University of Auckland on 30 August 2018. He has made some modifications and we’re very pleased to be able to record this piece of New Zealand legal history in LawTalk.
It is an obvious truism that legal Auckland of the mid-to-late 1950s and early 1960s is very different to what it is today. There was no computerised practice, no trendily-named or incorporated firms of solicitors (now called “lawyers”), no techno-literate, brilliant law graduates, no wigs, etc. The list is endless.
One would find a legal landscape peopled by ageing sole practitioners eking out a living in rent-controlled offices, pass-mark law students working for small–to-medium sized firms (there weren’t any really big ones) on a pittance, whilst attending Law School lectures at 8am and 5pm, returned servicemen coming back to legal practice after life-changing experiences in the war, civil servants entrenched in jobs for 40 years – all in a highly-controlled economy replete with massive government over-regulation but nevertheless quite prosperous in the aftermath of the Korean War. Moreover, “Where Britain stands, we stand” was still a mantra of politicians.
Up Courthouse Lane – not quite to the top where the Magistrates’ Court stood, ageing and unfit for purpose – one encountered an older building. It was of unusual design for a government office since it had been one of Auckland’s early churches. Like His Majesty’s Theatre, it later fell victim to the then Auckland City Council’s iconoclastic aberration which saw heritage buildings sacrificed in favour of hazy notions of progress and inner city development.
This unpretentious building housed the land registration records for the entire Auckland province (except Gisborne) until the South Auckland half of the records (Mercer to Taupō) were hived off to a brave new LTO in Hamilton sometime in the late 1950s. But the building was more than a repository of records. Not only was it the workplace of its employees (employed from 8am to 4:35pm daily by that bureaucratic behemoth of the times, the Justice Department), but it was also a gathering-place for the conveyancing arm of the legal profession. They braved the gentle slope of Courthouse Lane to search titles, register documents, to seek guidance from the registry staff and at times to effect LTO settlements resulting in the immediate registration of difficult or multi-party transactions. They came too for the interaction with their fellow practitioners or students. Upstairs was the registry for companies – but that was less of a gathering-space and deserves its own story.
Torrens be my guide
They all were guided by the Torrens ideal that the register was everything and should be readily available for all (not just those specially licensed) to search. An ideal which, sadly, seems to have lost its way today. Neither New Zealand’s largest city nor the country’s capital today has a LTO. I am told (I don’t know how accurately) that Joe/Jill Public has to make an appointment to travel to Hamilton or Christchurch if a search is asked for or an LTO settlement is required. I am concerned that so much trust is reposed in licensed operators to effect transactions without any intervention or supervision from a government agency. The sanction of auditors’ visits is not great. An experienced solicitor with a large conveyancing practice in an Auckland suburb told me that he had had only one visit from an auditor over many years. The vast majority will carry out their land transfer obligations flawlessly; but as history shows, there is the odd bad apple.
The present office of the current land registration system in Hamilton is sole survivor (sort of) of the old LTOs in the North Island. The last shall be first! Because a generation of lawyers has grown up without any knowledge of the way the Torrens system operated in the past, as a legal dinosaur who was around at the time, I offer a tiki-tour of the old Auckland LTO.
The two-shilling multiple search
The patrons of the LTO would normally be there either to search and/or to register – gossiping optional. Some law clerks were known to supplement their very modest salary by paying two shillings for one search but in fact undertaking multiple searches and charging as a disbursement all the clients for whom searches were done that day two shillings each. When searching, one was meant to have available for inspection (which rarely occurred) a ticket specifying the title to be searched. Five shillings (and a green ticket as opposed to the white two shillings ticket) entitled one to a general search (a term generously interpreted). The Justice Department in its then ponderous way took many years to wake up to this mini-rort. It abolished search fees and added two shillings on to the cost of each document registration sometime in the late 1950s. Many who later became pillars of the legal establishment might have been forced to “plead the fifth amendment” if ever challenged over this practice. Employers were tacit accessories after the fact!
Searching involved lugging the large and heavy register books, each containing about 300 parchment titles, on to the top of their metal filing cabinets and noting on thin paper in pencil the salient information from the title being searched. Often the searcher would have to look at a further document using a reference noted on the title, such as a previous dealing, transfer, mortgage, lease, easement or whatever. These documents were all carefully stored and often revealed important information. I think it unfortunate – to say the least – that today’s registration system does not provide for the archiving of registered documents in some public register system. When I was at the Bar and on the Bench, I frequently gained assistance in a variety of cases from the accessibility of such documents, copies of which were provided to the court. One example: the forged mortgage in Frazer v Walker was able to be searched and viewed at the LTO and was made available to the Court.
Searching was done by law clerks, by practitioners who had no staff (and there were a few of these) and by the small cohort of search agents – many of whom were “characters”, such as the late Bill Bird. There were also some solicitors – especially when the South Auckland area was run from Auckland – whose main source of income was searching for country law firms. No such thing as a guaranteed search in those days. Some pesky caveator could ruin your effort to obtain a clear title for the client. Hence LTO settlements for transactions where there was some risk of a spoiling caveat or other upsetting document obtaining a prior registration.
The fears of registration rejection
Registering documents was usually a task for the junior law clerk who had to queue for the attentions of one of the registration officers who could reject any document deemed unsatisfactory in some aspect, such as the legal description on a transfer not coinciding with the legal description on the duplicate certificate of title. (Have younger practitioners ever heard of that particular casualty of the land transfer reforms?) These officers varied in degrees of strictness, with the more lenient being heavily patronised. Rejection was to be avoided. Not only would your employer be displeased (even if the deficiency were his fault – there were almost no women solicitors then). The client might have to be contacted with profuse apologies and required to initial or re-sign. Each document bore a notation by the registering officer of the time when it had been presented for registration, which was vital information for the registration system. Experience as a registration clerk taught one quite a bit about conveyancing practice.
A knowledge, however skimpy, of horse racing could sometimes help the anxious law clerk get documents over the line because many of the registration staff had Best Bets as their literature of choice. After documents had been accepted, they had then to be taken to the cashier who presided from a glass box for payment of the registration fees. She was a very pleasant but rather overworked lady called Miss Williams who tried with little success to invigilate the errant and skiving law clerks mentioned earlier.
Inside the Auckland LTO
The earlier incarnation as a church made the layout of the old LTO rather odd. After entering and turning sharp right, past the office of the District Land Registrar whose word was law throughout the LTO, one descended several steps to enter what must have been the congregational area of the old church. To your left was a large wall with a square cut out of it and where you had to stand on tip-toes to submit a piece of paper with a number on it to ask for a deposited plan from the rather taciturn gentleman behind the hole in the wall who was the custodian of all plans.
To the immediate right of the stairs were the counters behind which lurked the registration staff. There were about six of them when all queues were open, which was fairly rare. Ahead was Miss Williams in her glass box. The bulk of the balance of this area was taken up with the large metal benches which housed the register books which had to be hauled on to the top of the bench to enable perusal. There was an established etiquette about searching. Pencil only. Replace the register book when you have finished your search, for example.
Just across from the cashier was where the previously-registered documents were stored. Again the paper with a number on it was needed. This time it was presented to the affable and conversational Norm who made prediction of race results and the offering of hot tips for bets an art form. Around the perimeter were the offices of the knowledgeable specialist staff such as the Examiner of Titles (who helped sort out tricky problems) and the Assistant Land Registrars (ALRs were the ones who actually wrote up the transactions on the register and signed them off). The notations of the ALR occurred both on the register book in the LTO and on the duplicate certificate of title which had to be produced at registration. Both showed the history of ownership, mortgages, leases, etc, of the piece of land concerned unless a new title were to be issued, in which case, suitable references to previous dealings would be provided on a new certificate of title so one could trace the history of ownership and its incidentals right from the time of the first Crown grant if need be. I rather deplore the abolition of the duplicate certificate of title, possession of which had a deep psychological significance for a lot of people – especially when they eventually paid off their mortgage.
It should be emphasised that much of the system worked on trust. I don’t know of any instance of the system of, say, access by any searcher to deposited plans, past registrations or the register books themselves ever having been abused. Nothing worse happened for rocking the boat than the antic of a rather larrikin law clerk who used to intone at 3:59pm “Four O’clock Please” in the Yorkshire accent of the LTO official whose job it was to clear the place at 4pm prior to the official staff departure at 4:35pm. Although there might not be too many around at 4:30.
The people who made it work
Now to some of the personnel at the LTO. They were not faceless bureaucrats but friendly and knowledgeable people who strove to make the system work well for its customers. Those of you who might recall the earlier days of TV in this country (when we had the occasional show worth watching) would remember the series “Gliding On” about life in a fictional civil service office. The LTO people were not like the relaxed civil servants in that comedy series but were people who worked hard at what was a specialist job in a government department which never hit the headlines and which the average citizen didn’t know anything about; one should however note a few peripheral “Gliding On” aspects. Tea breaks and lunch hours were sacrosanct and there were some cardigans on display.
The most memorable and colourful character in the late 1950s must surely be “The Baron” who presided as a registration officer with great panache and style. He obviously came from what my parents’ generation called “The Old Country”. With an RAF handlebar moustache, a flamboyant waistcoat, a very ample physique, a loud and posh voice and the exotic surname of “Hexter-Stabbins”, he entertained all with a great line of repartee. But he knew his job and could reject a document quite airily whilst delivering a quip. He had his own pet names for most legal firms. “Jacket, Bustle, Trunks and Vest” for Jackson, Russell, Tunks and West was but one of the less provocative. In his idiosyncratic nomenclature, the Baron exhibited qualities which today could have him characterised as a typosquatter, ie, someone who tries to register a domain name which is the same as a well-known domain but with one letter added, subtracted or substituted. So, bearing in mind the Baron’s service background, I leave it to you to work out the format in which he typosquatted out loud, as he was dealing with their documents, the name, Public Trust. His larger-than-life personality outgrew the traditional civil service and the Baron became a TV newsreader, flourishing in the early days of that medium.
Other registration people included George who was laid-back with a low document rejection rate and therefore popular. Des, who became an ALR and was a ‘go-to person’ for many problems which the system generated. Boyd, who was fairly strict and who, being legally qualified, became the first DLR in Hamilton. Bob who was fairly direct in his communication skills. Reg, an affable and amusing chap who completed a law degree and left the LTO to join a well-known firm to complement its conveyancing practice.
The DLR in Auckland for most of this period was Wilfred Dowd, ably assisted by Merv Brennan as Examiner of Titles. These gentlemen and their predecessors and successors, with their vast knowledge of land transfer law, helped many lawyers over the years and provided a human face in a system which, for all its faults and labour-intensiveness served New Zealand well. No wonder that most legal firms customarily provided a tangible contribution in kind to the LTO Christmas Party – a custom that in these squeaky-clean times would be frowned upon by officialdom. Anyhow there’s no LTO to which you can send the Yuletide dozen or two of beer.
A past era
Maybe it is a sign of my age or a combination of nostalgia and technophobia which causes me to lament the passing of many aspects of the old system which has been replaced by a system where transactions involving what is the greatest asset of most citizens can be accomplished by a licensed person without any input from or reliance on a regulatory government officer. Maybe the new Act will make compensation for errors or wrongdoing easier to obtain – easier than in at least one recent case of which I have some knowledge. One does not even have to sign a memorandum of transfer, as I found to my amazement recently when an estate of a member of my extended family (where I was sole executor) sold a house. As for the useful practice of retaining in the LTO the documentary evidence of a registered transaction, I am told that lawyers are obliged to keep this evidence for some period of time. No doubt most will do so dutifully, but the sad fact of human nature being what it is means that the incompetent, the addicted and the plain crooked may not do so. Often such documents can be important evidence in any litigation.
There were 12 LTOs across the country, ranging from the large Auckland one to the small ones in Gisborne, Blenheim and Hokitika. Having an LTO conferred a certain cachet on a provincial town. Because of the breadth of the Justice Department’s reach, the local LTO was also the local Companies Office and a place where one could register incorporated societies and other legal oddities like an industrial and provident society. So some then smallish towns like Gisborne or Blenheim were self-contained legally – each with its own land registry, stamp office, district law society and Supreme (High) Court sittings. All LTOs, large and small, were truly part of our legal life and history and deserve to be honoured for what they contributed to society and for the many officials who ensured that the Torrens system prospered and developed in this country.
That nice Mr Bezos recently sold me a book about the future of the legal profession which, although interesting, has many prophecies which are scary for an elderly servant of the law like me. Who will know what the practice of the law will be like in 10 let alone 50 years? I am grateful that my career in the law started with first-hand experience of an institution that contributed so much to the well-being of our legal system – the old LTO.
Sir Ian was admitted as a barrister in 1958, beginning a legal career which saw him in the roles of solicitor, Queen’s Counsel, High Court Judge, law academic, arbitrator and mediator.
A picture from the past with a conveyancing theme. Sir Ian first appeared in LawTalk in issue 17, 9 July 1975. The caption reads: “Your Honour, is it not so…”: Mr R.I. Barker QC in informal garb but characteristic pose at a Canterbury District Law Society seminar held at Ashburton on 20-22 June. Mr Barker presented a session on “Compulsory acquisition of land”.
An indication of the amount of business carried out by the Land Transfer Offices around the country comes from this graphic which appeared in LawTalk 49, 3 February 1977. The information from the Department of Statistics shows just under 50,000 land transfers were registered in 1956, for consideration of a bit over $300 million. As the country’s economy flourished over the 1950s and 1960s transfer numbers rose sharply until 1974 and the oil crisis, when over 120,000 were registered, before plummeting in 1975.