Ausbao (286 Sussex St) Pty Ltd v Registrar-General of NSW

[2020] NSWSC 50

Supreme Court

New South Wales

Medium Neutral Citation:	Ausbao (286 Sussex St) Pty Ltd v Registrar-General of NSW [2020] NSWSC 50
Hearing dates:	4 February 2020
Date of orders:	11 February 2020
Decision date:	11 February 2020
Jurisdiction:	Equity
Before:	Darke J
Decision:	Order that the Amended Notice of Motion be dismissed with costs.
Catchwords:	REAL PROPERTY – Torrens system – claim for compensation from Torrens Assurance Fund – area of parcel of land erroneously overstated in deposited plan – whether compensation excluded by s 129(2)(e) of the Real Property Act 1900 (NSW) – whether loss arose because of an error or miscalculation “in the measurement of land” – real question to be determined – claim not clearly untenable or manifestly groundless – summary dismissal not appropriate PRACTICE AND PROCEDURE – summary dismissal – claim for compensation from Torrens Assurance Fund – whether claim excluded by s 129(2)(e) of Real Property Act 1900 (NSW) – whether loss arose because of an error or miscalculation “in the measurement of land” – real question to be determined – claim not clearly untenable or manifestly groundless – summary dismissal not appropriate
Legislation Cited:	Interpretation Act 1987 (NSW), s 34 Real Property Act 1900 (NSW), s 129 Real Property Amendment (Compensation) Act 2000 (NSW) Uniform Civil Procedure Rules 2005 (NSW), r 13.4
Cases Cited:	Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 Comserv (No 1877) Pty Ltd v Figtree Gardens Caravan Park (1999) 102 LGERA 74; [1999] NSWSC 124 Dey v Victorian Railway Commissioners (1949) 78 CLR 62 General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125 Registrar-General v Rigby (Land and Environment Court – Bannon J, 29 June 1995, unreported) Voudouris v Registrar-General (1993) 30 NSWLR 195
Category:	Procedural and other rulings
Parties:	Ausbao (286 Sussex St) Pty Ltd (Plaintiff) Registrar-General of NSW (Defendant)
Representation:	Counsel: Mr G A Sirtes SC with Mr H Grace (Plaintiff) Mr H Altan (Defendant)   Solicitors: Aequitas Lawyers (Plaintiff) Fiona Harris, Solicitor for the Registrar-General of New South Wales (Defendant)
File Number(s):	2018/00200732
Publication restriction:	None

Judgment

Introduction

1. By an Amended Notice of Motion filed on 1 November 2019, the defendant (the Registrar-General) seeks an order under Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) r 13.4 for the summary dismissal of the plaintiff’s claim. That claim, which is advanced by a Statement of Claim filed on 29 June 2018, is for compensation from the Torrens Assurance Fund pursuant to s 129 of the Real Property Act 1900 (NSW) (“the Act”).

2. In brief, the plaintiff claims that it suffered loss upon its purchase of certain parcels of land in Sussex Street, Sydney, in 2013. It is alleged that in making the purchase it relied upon the site areas of the parcels, as shown in the relevant Deposited Plans, and that the area of one of the parcels (Lot 1 in Deposited Plan 657427) was erroneously overstated. The plaintiff thus invokes ss 129(1)(a) and (c) of the Act, which are in the following terms:

129(1)   Any person who suffers loss or damage as a result of the operation of this Act in respect of any land, where the loss or damage arises from:

(a)   any act or omission of the Registrar-General in the execution or performance of his or her functions or duties under this Act in relation to the land (including any such act or omission of the authorised operator), or

…

(c)   any error, misdescription or omission in the Register in relation to the land, or

…

is entitled to payment of compensation from the Torrens Assurance Fund.

3. The Registrar-General contends that the claim, even taken at its highest, is untenable because it is defeated by s 129(2)(e) of the Act. Section 129(2)(e) provides:

(2)   Compensation is not payable in relation to any loss or damage suffered by any person:

…

(e)   where the loss or damage arises because of an error or miscalculation in the measurement of land, or

…

4. The Registrar-General submits that because s 129(2)(e) operates in the circumstances as pleaded in the Statement of Claim, the Statement of Claim discloses no reasonable cause of action (see UCPR r 13.4(1)(b)).

Principles

5. There was no dispute as to the principles that govern summary judgment applications. Those principles are well-known, and it is only necessary to refer to them briefly.

6. As stated by Barwick CJ in the frequently cited General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129, the power to summarily dismiss proceedings is to be sparingly employed, and only used when the plaintiff’s lack of a cause of action is clear. As Barwick CJ noted, the test to be applied has been expressed in various ways, including that the plaintiff’s case be “so clearly untenable that it cannot possibly succeed” or “manifestly groundless”. In Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 it was stated (at [57]) that all the formulations of the test for summary dismissal “are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way”.

(See also Spencer v Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28 at [53] where reference was made to the need to form “a certain and concluded determination that a proceeding would necessarily fail”.)

7. Summary dismissal of proceedings is not appropriate if it appears that there is a real question to be determined, whether of fact or law, and that the rights of the parties depend upon it (see Dey v Victorian Railway Commissioners (1949) 78 CLR 62 at 91; General Steel Industries Inc. v Commissioner for Railways (NSW) (supra) at 130). However, argument, even of an extensive kind, may be necessary to demonstrate that the plaintiff’s case is so clearly untenable that it cannot possibly succeed (see General Steel Industries Inc. v Commissioner for Railways (NSW) (supra) at 130).

Evidence

8. The Registrar-General did not adduce any evidence in support of its application. It was content to proceed on the basis of the facts asserted in the Statement of Claim. The plaintiff relied upon a report from a surveyor (Mr Gearin), and a report from a title searcher (Mr Williamson). Each of those experts express opinions as to how the erroneous overstatement of the area of Lot 1 in Deposited Plan 657427 occurred.

9. In summary, it appears that the stated area (of 588m2) failed to take into account the fact that an area of about 91m2 had earlier been excised from the parcel as part of a resumption of land for road widening purposes.

10. Mr Gearin stated (at pages 12-13 of his report):

In June 1995, DP657427 (Appendix 3) was created which, based on dimensions shown on the plan, appears to have excised Lot 1 DP 571666, from Lot A DP181693. The new Lot was depicted as PT A in DP657427. It is also known as Lot 1 DP657427. The area of Lot 1 DP657427 is shown on DP657427 as 588m2.

…

Based on the abovementioned, it is my opinion that the discrepancy arose in 1995 when the area of Lot 1 (or PT A) DP657427 was depicted with an area of 588m2, instead of the area of Lot A DP181693 less the area of Lot 1 DP571666.

In my opinion, the error is one of transcription. The error arose when the person responsible for preparing DP657427 failed to account for the road widening area of 91.1m2 from DP571666 and denoted the area of Lot 1 DP657427 as 588m2.

11. Mr Williamson stated (at pages 4-5 of his report):

…

d.   On 23 August 1978, the Registrar General issued Certificate of Title Volume 13683 Folio 1 for the residue of the land comprised in Certificate of Title Volume 4290 Folio 24 after excluding the land contained in Lot 1 in Deposited Plan 571666. A copy of the Certificate of Title Volume 13683 Folio 1 is previously referred to and is attached and marked “H”.

e.   The land in Certificate of Title Volume 13683 Folio 1 was shown to have an area of “588m2”. This was an error. When the Registrar General issued Certificate of Title Volume 13683 Folio 1, the area shown on the title did not account for the 91.1 square metres of land which had been transferred to The Commissioner for Main Roads by way of Memorandum of Transfer Number P251398 on 24 April 1975.

…

h.   Deposited Plan 657427 shows the same land as that shown on the title diagram for Certificate of Title Volume 13683 Folio 1, and is merely a copy of the title diagram which had the seal of the Registrar General transcribed upon it and a metric conversion table added as well. The area of the land in DP657427 is still shown as being 588 square metres. The Registrar General did not consider the area to be incorrect and had perpetuated the earlier error when the Registrar General had prepared Certificate of Title Volume 13683 Folio 1.

…

12. The Registrar-General does not dispute this evidence, at least for the purposes of the present application.

Submissions

13. The Court received written submissions from each of the parties, which were further developed at the hearing of the motion.

14. The Registrar-General made the observation that the object of the Torrens system is to provide certainty of title to land, not to guarantee the accuracy or dimensions of areas of land that are referred to in the records kept on the Register. In this regard, reference was made to statements made in Comserv (No 1877) Pty Ltd v Figtree Gardens Caravan Park (1999) 102 LGERA 74; [1999] NSWSC 124 at [30], Registrar-General v Rigby (Land and Environment Court – Bannon J, 29 June 1995, unreported), and Boyton v Clancy (1998) NSW Conv R 55-872 at 56,838. It was submitted that the decision of this Court in Voudouris v Registrar-General (1993) 30 NSWLR 195, where a claim for compensation against the Assurance Fund was allowed in circumstances where a surveyor’s error led to an overstatement of area on a Certificate of Title, was “anomalous”. The Registrar-General submitted that s 129(2)(e), which was inserted into the Act as one of the amendments introduced by the Real Property Amendment (Compensation) Act 2000 (NSW), was intended to overcome the effect of the decision in Voudouris v Registrar-General (supra). It was submitted that the Minister’s Second Reading Speech clearly supported that conclusion. The Registrar-General submitted that the plaintiff’s claim, which involves loss arising from the erroneous statement of the area in Lot 1 in Deposited Plan 657427, cannot conceivably be other than a claim for loss arising from an error “in the measurement of land”. It was put that the way in which the error came about (whether by erroneous transcription or otherwise) was irrelevant because the error was still an error “in the measurement of land”.

15. In his oral submissions, Counsel for the Registrar-General contended that “measurement” within s 129(2)(e) included a mere statement of a dimension or area of a parcel of land, and should not be understood as confined to the act or process of measuring. Counsel referred to dictionary definitions of “measurement” which do not limit its meaning to an act or process of measuring, and he gave a number of reasons said to show that the construction advanced by the Registrar-General was correct. Counsel nonetheless appeared to accept that there was ambiguity present, such that recourse to the Second Reading Speech was permitted pursuant to s 34(1)(b) of the Interpretation Act 1987 (NSW).

16. The plaintiff noted that the Registrar-General bore the onus of establishing that s 129(2)(e) operated so as to bar the plaintiff’s claim. The plaintiff submitted that the meaning of s 129(2)(e) was not the subject of any decided case, and it was plainly arguable as a matter of fact and construction that the loss for which compensation was sought did not arise “because of an error or miscalculation in the measurement of land”. It was submitted that the term “measurement” refers to the act of measuring, so that s 129(2)(e) excludes claims where the loss arises because of errors or miscalculations that occur in the process of ascertaining the spatial extent of land. The plaintiff submitted that this construction accorded with the ordinary and natural meaning of the word “measurement”, as shown by dictionary definitions, and was congruent with the ordinary meaning of “miscalculation” which refers to errors that occur in the course of a mathematical or arithmetical determination. The plaintiff submitted that the Minister’s Second Reading Speech was of little assistance, but in any event its terms suggested that the mischief intended to be overcome by s 129(2)(e) was liability arising from errors made by surveyors, for which the Registrar-General was not responsible. It was submitted that the overstatement of the area of Lot 1 in Deposited Plan 657427 was not an error or miscalculation in the measurement of land because it did not occur in any process directed toward ascertainment of the spatial extent of the land. Rather, the overstatement was simply the result of the Registrar-General transcribing the area shown on an old plan onto a new plan without appreciating that the area of the relevant land had changed.

17. In his oral submissions, Senior Counsel for the plaintiff noted that it was conceded by the Registrar-General that there was ambiguity in the expression “in the measurement of land”. Senior Counsel submitted that there were real questions to be tried concerning the construction of s 129(2)(e) and the characterisation of the facts concerning the erroneous overstatement of area. Senior Counsel submitted that the inclusion of the overstated area in the plan involved neither measurement nor calculation on the part of the Registrar-General. It was also submitted that the manner in which the error occurred was crucial in determining whether it falls within the ambit of s 129(2)(e).

Determination

18. For the following reasons, I do not consider that it would be appropriate to summarily dismiss the plaintiff’s claim. It appears to me that there is a real question or issue to be determined, upon which the rights of the parties depend. That question or issue may be stated as whether the inclusion of the overstatement of area of Lot 1 in Deposited Plan 657427 was an error or miscalculation in the measurement of land within the meaning of s 129(2)(e).

19. Determination of the matter would involve not only the question of the true construction of s 129(2)(e), but also the proper characterisation of the error, or perhaps miscalculation, involved in the overstatement of the area. I do not accept that the way in which the error came about is irrelevant. The character of the error, which may depend on the precise circumstances in which it occurred, cannot necessarily be divorced from the question whether it is an error (or miscalculation) “in the measurement of land” within s 129(2)(e) as properly construed. There is plainly scope for debate about how the error in this case should be characterised.

20. Moreover, it is my view that the construction of s 129(2)(e) advanced by the plaintiff is not plainly incorrect. Its contentions in that regard seem to me to be reasonably arguable. In other words, the plaintiff advances an available construction even if it might ultimately turn out to be incorrect.

21. Counsel for the Registrar-General suggested that the present application gave the Court the opportunity to construe s 129(2)(e). It is true that in some instances it may be appropriate for a court on a summary dismissal application to determine a question of statutory construction. In the present case, however, it is not appropriate to do so. It would involve deciding which of two available constructions is to be preferred. In addition, the determination would occur without a full examination of the evidence concerning the circumstances in which the error occurred.

22. I do not think that the plaintiff’s claim can be regarded as clearly untenable, or manifestly groundless. I do not feel a high degree of certainty that if the case was allowed to go to trial in the ordinary way, the plaintiff would fail. The plaintiff should in my opinion be allowed to take its case to trial in the ordinary way.

23. Accordingly, the Court declines to summarily dismiss the plaintiff’s claim. The Court will order that the Registrar-General’s Amended Notice of Motion be dismissed with costs.

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Decision last updated: 11 February 2020