Ausbao (286 Sussex St) Pty Ltd v The Registrar-General of New South Wales - [2021] NSWSC 1651

Supreme Court

New South Wales

Medium Neutral Citation: Ausbao (286 Sussex St) Pty Ltd v The Registrar-General of New South Wales [2021] NSWSC 1651
Hearing dates: 31 May 2021, 1-3 June 2021, 8 July 2021, final written submissions 7 October 2021
Date of orders: 15 December 2021
Decision date: 15 December 2021
Jurisdiction: Equity
Before: Robb J
Decision:
The Court orders that the plaintiff’s claim is dismissed with costs. See pars [102], [192], [205], [206], [227], [300], [308], [331], [338], and [405].

Catchwords:
LAND LAW — Torrens title — Compensation for loss of interest in land — Torrens assurance fund — Where the plaintiff claimed compensation from the Torrens Assurance Fund pursuant to s 129(1)(a) or s 129(1)(c) because of an error recorded by the Registrar-General on a deposited plan — Where the plaintiff claimed it suffered loss or damage because it relied on the deposited plan in making the decision to acquire the land — Where the Registrar-General argued that the chapeau to s 129(1) only refers to the operation of the provisions of the Act dealing with title to land and indefeasibility — Where the Registrar-General claimed that as any loss or damage suffered by the plaintiff was not related to title to land or indefeasibility, the Torrens Assurance Fund is not liable to compensate in the circumstances — Where the Court found that the chapeau to s 129(1) did not imply that any loss or damage suffered as a result of the Act must be in relation to title to land or indefeasibility — Where the Court held that the loss or damage suffered by the plaintiff was materially caused by an act of the Registrar-General in the execution or performance of his functions or duties under the Act pursuant to s 129(1)(a) as well as by an error in the Torrens register pursuant to s 129(1)(c)
LAND LAW — Torrens title — Compensation for loss of interest in land — Torrens assurance fund — Where the Registrar-General argued that the plaintiff is excluded from the right to compensation by reason of section 129(2)(a) of the Real Property Act 1900 (NSW) because the loss or damage was a consequence of the act or omission of the plaintiff — Where the Court found that relevant officers of the plaintiff acted upon information in the deposited plan as if they were entitled to assume its accuracy because it was contained in official plans — Where the Court found that the material cause of any loss or damage suffered by the plaintiff was an act or omission of the plaintiff for the purposes of s 129(2)(a) and that the plaintiff’s responsibility for the loss or damage extended to the whole of that loss or damage — Where the Court held that the Registrar-General has established that the plaintiff is excluded from the right to compensation by reason of section 129(2)(a)
LAND LAW — Torrens title — Compensation for loss of interest in land — Torrens assurance fund — Where the Registrar-General argued that the plaintiff is excluded from the right to compensation by reason of section 129(2)(b)(i) of the Real Property Act 1900 (NSW) because the loss or damage was caused by the negligent act or omission of the plaintiff’s solicitors — Where the Registrar-General did not plead section 129(2)(b)(ii) with respect to the loss or damage being compensable under an indemnity given by the solicitors’ professional indemnity insurer — Where the plaintiff’s solicitors and the professional indemnity insurer were not joined to the proceedings — Where the Court found that the solicitors had acted pursuant to their retainer — Where the Court could not make a finding with respect to the professional indemnity insurer because of a lack of evidence — Where the Court held that the Registrar-General had not established that the plaintiff is excluded from the right to compensation by reason of section 129(2)(b)
LAND LAW — Torrens title — Compensation for loss of interest in land — Torrens assurance fund — Where the Registrar-General argued that the plaintiff is excluded from the right to compensation by reason of section 129(2)(e) of the Real Property Act 1900 (NSW) because the loss or damage arose because of an error or miscalculation in the measurement of land — Where the plaintiff argued that the definition of “measurement” was limited to the process of ascertaining a size within the context of s 129(2) — Where the Registrar-General argued the definition included both the process and the outcome — Where the Court found that “measurement” had the meaning as contended for by the Registrar-General — Where the Court held that the Registrar-General has established that the plaintiff is excluded from the right to compensation by reason of section 129(2)(e)
LAND LAW — Torrens title — The register — Whether a deposited plan was registered in the Torrens register under the Real Property Act 1900 (NSW) or in the register of plans under the Conveyancing Act 1919 (NSW) — Where the plaintiff argued the deposited plan was registered in the Torrens register — Where the Registrar-General argued it was registered in the register of plans — Where the Court found that the deposited plan was registered in both the Torrens register and the register of plans

Legislation Cited:
Civil Liability Act 2002 (NSW)
Conveyancing Act 1919 (NSW)
Conveyancing Legislation (Notice of Sale) Amendment Act 1992 (NSW)
Local Government Act 1919 (NSW)
Professional Standards Act 1994 (NSW)
Real Property Act 1900 (NSW)
Real Property Amendment (Compensation) Act 2000 (NSW)
Real Property Amendment (Land Transactions) Act 2009 (NSW)
Real Property and Conveyancing Legislation Amendment Act 2009 (NSW)

Cases Cited:
Australian Executor Trustees (SA) Limited v Kerr [2021] NSWCA 5
Australian Hi-Fi Publications Pty Ltd v Gehl [1979] 2 NSWLR 618
Bank of Western Australia Ltd v Coppola (No 2) [2012] NSWSC 1495
Boyton v Clancy (1998) 9 BPR 16,585
Challenger Managed Investments Ltd v Direct Money Corporation Pty Ltd (2003) 59 NSWLR 452
Chandra v Perpetual Trustees Victoria Ltd [2007] NSWSC 694; (2007) 13 BPR 24,675
Comserv (No 1877) Pty Ltd v Figtree Gardens Caravan Park [1999] NSWSC 124; (1999) 9 BPR 16,791
Diemasters Pty Ltd v Meadowcorp Pty Ltd (2001) 52 NSWLR 572; [2001] NSWSC 495
Emma Tait Nominees Pty Ltd v Laprese [2020] VSC 508
Glensaugh Pty Ltd v Registrar-General [2001] NSWSC 1114; (2001) 10 BPR 19,311
Hawkins v Clayton (1988) 164 CLR 539 at 544; [1988] HCA 15
Henville v Walker (2001) 206 CLR 459; [2001] HCA 52
Kirkland v Quinross Pty Ltd [2008] NSWSC 286; (2008) 14 BPR 26,979
Kumar v Registrar-General of New South Wales [2021] NSWSC 1103
Lincu v Registrar-General [2019] NSWSC 568; (2019) 19 BPR 39,351
National Australia Bank Ltd v Thirup [2011] NSWSC 911
Potts v Miller (1940) 64 CLR 282
Registrar-General v Rigby (Land and Environment Court (NSW), Bannon J, 29 June 1995, unreported)
Registrar-General v Tuckfield (1991) 6 BPR 13,831
Sellars v Adelaide Petroleum NL; Poseidon Ltd v Adelaide Petroleum NL (1994) 179 CLR 332; [1994] HCA 4
South Western Sydney Local Health District v Gould (2018) 97 NSWLR 513; [2018] NSWCA 69
Svanosio v McNamara (1956) 96 CLR 186
Thomas v Registrar-General [2018] NSWSC 1517
Trieste Investments Pty Ltd v Watson (1963) 64 SR (NSW) 98; 81 WN (Pt 2) (NSW) 136
Voudouris v Registrar-General (1993) 30 NSWLR 195
Wassell v Ken Carr Bobcat & Tipper Hire Pty Ltd [2021] NSWSC 1415

Texts Cited:
Brendan Edgeworth, Butt's Land Law (7th ed, 2017, Lawbook Company)
F Ticehurst and P Blair, Baalman and Wells Land Titles Office Practice NSW (5th ed, 1998, looseleaf, Lawbook Co)
Greg Stilianou, Land Titling Law and Practice in NSW (2013, Lawbook Company)
R A Woodman, K Nettle, F Ticehurst, P Butt, L Hughes and J Stuckey-Clarke, Woodman & Nettle, the Torrens system in New South Wales (2nd ed, 1996, looseleaf, Thomson Reuters)

Category: Principal judgment
Parties: Ausbao (286 Sussex St) Pty Ltd (plaintiff)
The Registrar-General of New South Wales (defendant)
Representation:
Counsel:
G A Sirtes SC/ H Grace (plaintiff)
H Altan (defendant)
Solicitors:
Aequitas Lawyers (plaintiff)
Office of the Registrar-General of New South Wales (defendant)

File Number(s): 2018/200732

Judgment

In these proceedings the plaintiff, Ausbao (286 Sussex Street) Pty Ltd (Ausbao 286), makes a claim against the Registrar-General for the payment of compensation from the Torrens Assurance Fund.
The Torrens Assurance Fund was created and is governed by Part 14 of the Real Property Act 1900 (NSW) (the Act). For the sake of brevity, references in these reasons to sections without any identification of the Act to which they belong will be references to sections of the Act.
The Torrens Assurance Fund is established by s 134. Section 129 gives any person who suffers loss or damage as a result of the operation of the Act in certain circumstances a right to compensation from the Torrens Assurance Fund. Ausbao 286 has satisfied the precondition to the commencement of court proceedings for compensation imposed by s 132(2) that it first prosecutes a claim in administrative proceedings lodged with the Registrar-General, and have that claim determined. In this case, the Registrar-General rejected Ausbao 286's claim. Ausbao 286 has otherwise satisfied all requirements of the right to make this claim for compensation.

Acquisition of the Land by Ausbao 286

Ausbao 286 was incorporated for the purpose of acquiring land at 286 Sussex Street in the City of Sydney (the Land), and it is for that reason that it was given the name that it bears. Ausbao 286 is a subsidiary of Ausbao Pty Ltd (Ausbao), which itself is owned by a corporation owned by the People’s Republic of China. Ausbao has engaged in the business of the acquisition and development of commercial and residential properties in Australia through special purpose vehicles such as Ausbao 286.
On 26 November 2013, Ausbao 286 purchased the Land for a price of $55 million. The Land was described in the contract for sale by reference to four lots in identified deposited plans. Those deposited plans described the area of each of the four parcels that made up the Land as having a total site area of 1,337.4 m². Ausbao 286 discovered after the completion of the contract for sale that the total site area of the Land was in fact only 1,255.9 m². Ausbao 286 has treated errors in the areas described in three of the lots as de minimis. The present claim is based on Ausbao 286's discovery that lot 1 in DP 657427 (the Lot) has a site area of 502.3 m², rather than that shown on the plan of the Lot (the Plan) of 588 m², being a discrepancy of 85.7 m².
Ausbao 286 acquired the Land, upon which an existing commercial building was erected, for the purpose of redevelopment. The Land was offered to the market in the information memorandum that was circulated to potential buyers on the basis that redevelopment for commercial or combined commercial and residential purposes represented its highest and best use, and that the site area was 1,337.4 m². The computer folios and the deposited plans for the four lots were included in the electronic data room inspected by Ausbao 286 for the purpose of making its bid in response to the information memorandum and were also annexed to the contract for sale. Ausbao 286 made its bid to purchase the Land based upon its inspection of the deposited plans for the four lots and determined its bid price on the basis that the site area was 1,337.4 m². The site area of the Land was a critical determinant under the relevant planning instruments of the maximum floor area of the completed redevelopment, having regard to floor space ratio limitations. The final estimated floor area of the redevelopment was a critical factor in Ausbao 286's assessment of the market value of the completed development, and consequently the price that Ausbao 286 could commercially offer for the Land, having regard to cost and risk factors and Ausbao 286's judgment as to a satisfactory rate of return.
Ausbao 286's case is that, had it known the true site area of the Lot, it would have offered a price of no more than $47.5 million to $50 million. In par 20 of its amended statement of claim, Ausbao 286 sought compensation of $5.0 million to $7.5 million, as well as the amount of additional stamp duty that it paid because of the higher purchase price, and legal, valuation and other professional costs that it has incurred in making its claim for compensation. At the hearing, Ausbao 286 changed its claim to one based upon the value of the chance that it lost of succeeding in acquiring the Land for a lesser price than $55 million, assessed by Ausbao 286 on the same basis as it originally determined its bid price, but starting from the true site area of the Land as being 85.7 m² less than 1,337.4 m². I will return to the issue of the quantification of Ausbao 286's compensation claim below.

Entitlement to compensation

As observed by Kunc J in Lincu v Registrar-General [2019] NSWSC 568; (2019) 19 BPR 39,351 (Lincu) at [105]: “…Looking at the structure and words of s 129, I accept the RG’s submission that it clearly and unambiguously contains two parts which operate concurrently and invite a two stage inquiry”. Ausbao 286 must first establish that it has suffered loss or damage falling within one of the sub-paragraphs of s 129(1). Ausbao 286 will then be entitled to compensation from the Torrens Assurance Fund unless the loss or damage falls within one or more of the categories listed in s 129(2). In the present case, Ausbao 286 asserts that it has suffered loss or damage falling within s 129(1)(a) and (c). The Registrar-General denies this is so but adds that any loss or damage suffered is wholly denied a right to compensation by the application of s 129(2)(a), (b) and (e).
Sections 129(1) and (2) relevantly provide:

(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.
(2)   Compensation is not payable in relation to any loss or damage suffered by any person—
(a)   to the extent to which the loss or damage is a consequence of any act or omission by that person, or
(b)   to the extent to which the loss or damage—
(i)   is a consequence of any fraudulent, wilful or negligent act or omission by any solicitor, licensed conveyancer, real estate agent or information broker, and
(ii)   is compensable under an indemnity given by a professional indemnity insurer, or
…
(e)   where the loss or damage arises because of an error or miscalculation in the measurement of land, or
…

The Registrar-General accepts that an officer of the Registrar-General made a mistake (to use a presently neutral word) when the area of 588 m² for the Lot was inserted in DP 657427 at the time the Plan was prepared in the Registrar-General's office, for the purpose of describing the Lot in the computer folio that was prepared for the Lot. The manner in which the mistake was made will be considered more fully below. The Registrar-General says that, nonetheless, Ausbao 286's reliance on that area as part of the basis of its determination of the bid price to offer for the Land does not entitle it to compensation from the Torrens Assurance Fund.
Although there was no issue that the site area of the Lot was understated in the Plan, it is also accepted by the parties that the relative location and dimensions of the boundaries of the Lot were correctly stated in the Plan. Although the boundaries comprised straight lines, the Lot is irregular in shape, and it is not possible to compute its true area by any simple arithmetical process based upon the dimensions of the boundaries.

Outline of the parties’ arguments

Ausbao 286's case at trial was relatively straightforward. First, s 129(1)(a) is satisfied because an aspect of the operation of the Act is the execution of the provisions of the Act by the Registrar-General, as authorised by s 4. Section 31B obliged the Registrar-General to maintain a Register, which, in a manner that will be considered below, included the preparation of the Plan and the use of the Plan in the creation of the computer folio for the Land. I will henceforth refer to the Register as the Torrens Register to distinguish it from the Register of Plans maintained by the Registrar-General under the Conveyancing Act 1919 (NSW). The insertion of the incorrect area for the Lot in the Plan was an act of the Registrar-General in the performance of the Registrar-General's functions under the Act in relation to the Land. Ausbao 286's reliance on the incorrect area caused it to suffer loss or damage. Further, s 129(1)(c) is also satisfied because the statement of the incorrect area in the Plan was an error or misdescription in the Torrens Register in relation to the Land.
The Registrar-General's first response was to deny that any loss or damage suffered by Ausbao 286 was a compensable loss arising from the operation of the Act, because the requirements of s 129(1) were not satisfied. The Registrar-General’s case was that the Torrens system maintained by the Act only guarantees title to property and not the validity of subsidiary information that may be included in the Torrens Register such as the dimensions or areas of land. Section 129(1) should be construed having regard to the true objects of the Act and should not give a right to compensation for errors in information with whose accuracy the Act is not concerned. This response focused on the wording found in the chapeau to s 129(1), being "suffers loss or damage as a result of the operation of this Act in respect of any land".
The Registrar-General relied upon a subsidiary argument concerning the operation of s 129(1)(a) to the effect that, if the Act did not require the Registrar-General to perform his functions or duties in a particular way, any error made by the Registrar-General by some action that was not required was not a relevant act or omission. As the Registrar-General was not required to insert areas of lots in deposited plans, the error in the site area in the Plan was not a relevant act or omission of the Registrar-General.
As I will explain below, after the hearing, the Registrar-General relied upon an additional argument as to why any loss suffered by Ausbao 286 was not a result of the operation of the Act. The Registrar-General submitted that the Plan was registered in the Register of Plans maintained by the Registrar-General under the Conveyancing Act and it was not registered in the Torrens Register maintained under the Act, so any error in the Plan did not involve the operation of the Act.
Secondly, the Registrar-General said that s 129(2)(a) applies because the statement of the area of a lot in a deposited plan in connection with the computer folio of that land is neither conclusive under the Act nor accepted, as a matter of long-standing conveyancing principle, as being a sufficiently reliable indication of area to warrant reliance by an intending purchaser. Ausbao 286's loss or damage was, according to the Registrar-General, wholly caused by its own failure to take steps, by proper survey, to satisfy itself as to the true area of the Land, particularly having regard to the significance placed by Ausbao 286 on the site area as the basis for determining a bid price as high as $55 million.
Thirdly, the Registrar-General said that Ausbao 286 is disentitled to compensation from the Torrens Assurance Fund under s 129(2)(b) because its conveyancing solicitor was negligent in himself relying on the site area of the Lot in the Plan and not advising Ausbao 286 that that course was unsafe, and that a survey was the only recognised and reliable way to determine the true area of land proposed to be purchased.

Finally, the Registrar-General said that s 129(2)(e) applies because the statement of the incorrect area of the Lot in the Plan was an error or misdescription in the measurement of land.
Ausbao 286, in turn, responded to the Registrar-General's reliance on s 129(2)(e) by saying that "measurement" in par (e) referred solely to the process of measuring relevant features of land, and not to a statement of the value of some measured attribute of the land, such as its area. In the present case, the Registrar-General's officer did not undertake any process of measurement of the Lot. Instead, the officer transposed the area of the former lot, of which the Lot forms part, from the plan forming part of the relevant earlier certificate of title, without allowing for the fact that the Lot had a reduced area because of an intervening resumption of part of the former lot for road widening purposes.

Relevant history of compensation provisions

As some of the authorities relied upon by the parties concerned the compensation provisions in the Act that were in force before the current provisions, and as a comparison of the structure of the compensation provisions over time may be relevant to the proper construction of the present provisions, it will be useful to examine briefly the earlier provisions.

Precursor to the present compensation provisions

The current provisions of the Act dealing with compensation for loss or damage as a result of the operation of the Act were introduced by the Real Property Amendment (Compensation) Act 2000 (NSW) (the Amendment Act). Relevant amendments were then made by the Real Property and Conveyancing Legislation Amendment Act 2009 (NSW) (the Further Amendment Act) and the Real Property Amendment (Land Transactions) Act 2009 (NSW) (the Land Transactions Act).
Section 126(1) as in force immediately before the commencement of the Amendment Act provided:

(1)    Any person deprived of land or of any estate, or interest in land:
(a)    in consequence of fraud, or
(b)    through the bringing of such land under the provisions of this Act, or
(c)    by the registration of any other person as proprietor of such land, estate, or interest, or
(d)   in consequence of any error, omission, or misdescription in the Register,
may bring and prosecute in any Court of competent jurisdiction an action for the recovery of damages.

The former s 126(2) provided that the right of action was generally required to be brought against the person who had benefited from the deprivation of land that was suffered by the claimant, as described in s 126(2)(a) to (c), being the person:

(a)   upon whose application the land was brought under the provisions of this Act,
(b)   upon whose application the erroneous registration was made, or
(c)   who acquired title to the land, or the estate or interest therein, through the fraud, error, omission or misdescription.

An exception allowed the claim to be brought against the Registrar-General, as nominal defendant, in limited cases where land had been included in two or more folios of the register or where a folio had otherwise incorrectly been created. Section 126(4) provided, in broad outline, that the person against whom an action for the recovery of damages could be brought ceased to be liable upon a transfer of the relevant land bona fide for value. The effect of s 126(5) was that, in cases where the relevant person had ceased to be liable under s 126(4), or that person died, became bankrupt, was insolvent, or could not be found within the jurisdiction, the action for damages could be maintained against the Registrar-General as nominal defendant, and any damages payable could be recovered out of the Torrens Assurance Fund.
Section 127(1) of the Act then provided:

Any person sustaining loss or damages through any omission, mistake, or misfeasance of the Registrar-General or any of the Registrar-General’s officers or clerks in the execution of their respective duties under the provisions of this Act, or by the registration otherwise than under section 45E of any other person as proprietor of land, or by any error, omission, or misdescription in the Register, and who by the provisions of this Act is barred from bringing proceedings in the Supreme Court or the District Court for possession of that land, or other proceedings or action for the recovery of such land, estate, or interest or to whose claim every such proceedings or action would be inapplicable may, in any case in which the remedy by action for recovery of damages as hereinbefore provided is inapplicable, bring an action against the Registrar-General as nominal defendant for recovery of damages.

The structure of the compensation provisions in the former Part 14 is substantially different to the equivalent provisions in the present Part 14. There are two primary differences for present purposes. In certain circumstances, the Registrar-General was made the nominal defendant to a claim for damages by a person who had been deprived of land or of an estate or interest in land within the meaning of s 126(1). For the purposes of such a claim, the four factors set out in pars (a) to (d) (which are broadly equivalent to the present s 129(1)(e), (d), (b) and (c) respectively) only gave rise to a claim for damages if the claimant had been deprived of land or of an estate or interest in land. That limitation probably had the effect of confining the availability of damages to cases that involved the application of the indefeasibility provisions in the Act as a result of the operation of one of the factors. That is, to some extent, the former compensation provisions were drafted in a way that tended to conform with the Registrar-General’s present submission as to how the implied limitation to the operation of the present compensation provisions to loss or damage caused by the operation of the indefeasibility provisions should operate.
Section 127(1) of the Act in its earlier form gave claimants who had sustained loss or damage through any omission, mistake, or misfeasance of the Registrar-General or his officers in the execution of their respective duties under the Act, or the registration of other persons as proprietors of land, or by any error, omission or misdescription in the Torrens Register, a right to claim damages, but only in circumstances where the claimant was barred from bringing proceedings for the possession or recovery of the lost land, estate or interest, or in certain other circumstances. Relevantly, there were no expressly stated restrictions or exceptions such as are now found in s 129(2).
Consequently, the only way that the extent of the Registrar-General’s liability for his own or his officers’ omission, mistake or misfeasance, or his nominal liability for damages payable by others, could be restricted was by finding limitations on the Registrar-General’s liability in the construction of the compensation provisions or by implication. The structure of the present Part 14 is quite different, as the factors giving rise to the right to compensation are listed in s 129(1), and the factors that exclude liability are expressly listed in s 129(2).

The Law Reform Commission Report

The present Part 14 was introduced by the Amendment Act in 2000, following a lengthy review of the recovery and compensation provisions in the Act carried out by the New South Wales Law Reform Commission that culminated in Report 76 (1996) – Torrens Title: Compensation for Loss (the LRC Report).
Relevantly, the Law Reform Commission recommended the establishment of a new compensation scheme in the following terms (footnotes omitted):

5. A New Compensation Scheme
STATE GUARANTEE OF TITLE
Recommendation 1
State guarantee of title should be retained and a new statutory scheme should be introduced with greater focus on insurance principles.
5.1 The Commission recommends the introduction of a new statutory scheme, which will replace the current statutory compensation provisions and preclude any existing common law rights against the Registrar-General. Under the proposed scheme, persons suffering loss will be able to claim directly against the Registrar-General, without commencing a court action. The proposed scheme, in addition to according more closely with genuine compensation and insurance principles, should reduce litigation and related costs. The Registrar-General will be subrogated to any common law or statutory rights of the claimant against any person (including any form of association) which has contributed to the claimant’s loss or any fund which is liable to indemnify the claimant against the loss or the person responsible for the loss. Persons suffering loss as a result of the operation of the Torrens system will still be able to commence proceedings against any third party responsible for the loss without involving the Registrar-General, subject to a notification requirement.
BASIS OF RECOVERY AGAINST REGISTRAR-GENERAL
Recommendation 2
Any person suffering compensable loss arising out of the operation of the Torrens system and its administration should be able to claim compensation directly from the Registrar-General by lodging a claim with the Land Titles Office.
Recommendation 3
Compensation should be available for losses (whether or not involving deprivation of land) arising out of the operation of the Torrens system which result from fraud, negligence, the bringing of land under the Real Property Act, errors in the Register, and errors and loss of documents in the Land Titles Office.
5.2 The Commission is of the view that compensation should be available for losses resulting not only from mistakes in the Land Titles Office and forgery, but also from fraud generally and the negligence of third parties, such as solicitors and surveyors, where neither a mistake in the Land Titles Office nor forgery is involved. The definition of “loss” should include loss arising from the reliance by a claimant or plaintiff on a statement or representation in the Register. This definition, together with the basis for recovery being a loss arising in consequence of any error in the Register, will enable a claimant to recover loss arising from the mistake or negligence of his or her surveyor, solicitor, other agent, or the agent of a predecessor-in-title. Volunteers should not, in principle, be excluded from compensation. If a volunteer does not become entitled to compensation it will not be because he or she is a volunteer, but because he or she has suffered no compensable loss in reliance on the Register.
5.3 Losses which arise from an error or a misdescription in the Register, whether or not involving a mistake by the Registrar-General, should be compensated. Compensation should be available where “errors, omissions or misdescriptions” relate to those entries required by the RPA to be made as well as factual “errors, omissions or misdescriptions.”
…

Although it will not be conclusive for the purpose of determining the proper construction of the relevant provisions in the Act, it may be noted that Recommendation 2 referred to “compensable loss arising out of the operation of the Torrens system and its administration”. The recommendation therefore appears to have gone beyond the position presently adopted by the Registrar-General that compensation is limited to losses arising from the application of the provisions in the Act that deal with title to land. That is because the recommendation extended to losses arising out of the administration of the Torrens system. Further, Recommendation 3 included that compensation should be available for losses not involving deprivation of land.
It appears from a comparison of the recommendations made in the LRC Report and the new Part 14 that the Parliament did not wholly accept the recommendations. The LRC Report recommended a system of compensation based upon insurance principles that would have extended more widely than the compensation available under the new Part 14. In particular, the new Part 14 does not provide for compensation for loss or damage suffered by claimants as a result of the actions of their own agents, such as solicitors. Compensation is also not available for any loss or damage caused by reliance on any statement or representation in the Torrens Register.
The LRC Report did not recommend the adoption of all of the exceptions now found in s 129(2).
On the other hand, the Parliament did accept the recommendation that the availability of compensation be extended to loss or damage that did not involve deprivation of land.

The second reading speech

In the second reading speech in the Legislative Assembly for the Bill that was enacted as the Amendment Act, the Minister said (substantially abbreviated for present relevance):

The Real Property Amendment (Compensation) Bill will modernise and simplify the compensation scheme established under the Real Property Act. The bill will clarify the rights of parties and provide a clear framework for the making and determination of claims by an administrative process. This will assist in the efficient determination of claims on the Torrens Assurance Fund and will benefit genuine claimants by expediting the settlement of claims. The Torrens Assurance Fund underwrites the State guarantee of land titles in New South Wales under the Torrens title system …
The object of the Torrens system is to provide certainty of title to land. The State guarantees the validity of the title of persons who become registered as proprietors without fraud on their own part … The provision of compensation by the State is an essential component of the State guarantee of land titles.
… The Torrens Assurance Fund provides monetary compensation not only to a person who is deprived of land by the operation of the Torrens system but also to a person who suffers loss through a mistake in the Land Titles Office or through an error, omission or misdescription in the register of titles.
…
The amendments contained in this bill have had a long development period and are based on a great deal of research and consultation conducted by the New South Wales Law Reform Commission. In January 1988, the commission received terms of reference to inquire into the operation of the compensation provisions. The commission then published discussion and issues papers in 1989 and released its final report entitled "Torrens Title: Compensation for Loss" in August 1997. The bill is based upon the recommendations of the Law Reform Commission and addresses the practical difficulties that the Registrar-General has encountered in administering the claims scheme.
The bill will not change the underlying principles that have governed the Torrens Assurance Fund since its establishment. At present, the provisions relating to the payment of compensation are contained in part 14 of the Real Property Act, together with provisions relating to the civil rights and remedies that are available to persons who are deprived of land, or who otherwise suffer loss, as a consequence of the operation of that Act. Part 14 also contains provisions relating to the judicial review of the actions of the Registrar-General.
…

I will defer setting out the extract from the second reading speech concerning the purpose of the enactment of s 129(2)(e) until I deal with the proper construction of that provision below.
The explanatory note to the Real Property Amendment (Compensation) Bill 2000 simply said in relation to s 129:

Proposed section 129 specifies the circumstances in which compensation is payable from the Torrens Assurance Fund, and the limitations on the payment of compensation.

The use of the word “specifies” in this context suggests a legislative intention to state exhaustively both the circumstances in which compensation is payable and the limitations on the payment of compensation.
When introduced by the Amendment Act, s 129(1) included pars (a) to (f). Paragraph (g) was then added by the Land Transactions Act. Subsection (2) was amended by the Further Amendment Act which inserted pars (j) to (o), and then the Land Transactions Act which inserted par (p).

The first stage

As I have noted above the first stage in determining Ausbao 286's claim for compensation is to ascertain whether it has proved that the requirements of one or more of the paragraphs of s 129(1) have been satisfied.

Ausbao 286’s case

Ausbao 286 accepted that, having regard to the chapeau to s 129(1), it had to establish that it (i) had suffered loss or damage (ii) "as a result of the operation of this Act" (iii) arising from either an "act or omission of the Registrar-General in the execution or performance of his or her functions or duties under [the] Act in relation to the land” (s 129(1)(a)), or an "error, misdescription or omission in the Register in relation to the land" (s 129(1)(c)).
I will defer consideration of issue (i), being Ausbao 286's claim that it suffered loss or damage, until I consider the issue of compensation at the end of these reasons.
As to the requirements of the chapeau, Ausbao 286 submitted that it was only necessary that it establish that the factors listed in s 129(1) upon which it relied had materially contributed to its loss or damage. Ausbao 286 relied upon the following statement of principle by Austin J in Kirkland v Quinross Pty Ltd [2008] NSWSC 286; (2008) 14 BPR 26,979 (Kirkland) at [70] and [71]:

[70] Earlier in these reasons for judgment I referred briefly to the test of causation applicable in an action for negligence. In my opinion the statutory language (“as a result of the operation" of the Act, and "where the loss or damage arises from" stated matters) enunciates substantially the same test of causality, namely the common sense test expounded by the High Court in March v Stramare. That was the view taken by Bryson J in the Challenger Managed Investments case, at [86]. More recently, his Honour has explored the issue in another s 129 case, Chandra v Perpetual Trustees Victoria Ltd [2008] NSWSC 178 (7 March 2008). There he described tort law's "pragmatic approach rather than one founded in a highly defined enquiry" (at [17]). He added:
Practical limits have to be imposed when deciding causation. At some point which has to be recognized by an assessment based on common sense, facts or events become too remote, or too little connected with an outcome to be treated as causes of the outcome: even though they must have existed for the outcome to occur.

[71] A consequence of applying the negligence test of causation is that s 129(1) can probably be satisfied by showing that the operation of the Real Property Act materially contributed to the loss without being its dominant cause (compare Reiffel v CAN 075 839 266 Ltd (2003) 132 FCR 437 ; 45 ACSR 67; [2003] FCA 194 at [69] and cases there cited).

Kirkland has been cited with approval by Darke J in Thomas v Registrar-General [2018] NSWSC 1517 at [50] and by Kunc J in Lincu at [110], as well as by Quigley J in Emma Tait Nominees Pty Ltd v Laprese [2020] VSC 508 at [23].
The submission made by Ausbao 286 as to why it had satisfied the first stage was, as I have explained above, straightforward. As to s 129(1)(a), it was submitted that the creation of the Plan containing an error as to the site area of the Lot was an act of the Registrar-General in the execution or performance of his functions or duties under the Act in relation to the Land, as the Registrar-General's duties and functions included the maintenance of the Torrens Register under s 31B. In this case, the error occurred in the course of maintaining the Torrens Register, in that the Registrar-General transposed the area that had been shown on an old deposited plan onto a new deposited plan without appreciating that the area of the land to which those deposited plans related had changed. Ausbao 286's loss and damage is said to have arisen from this act of transposition.
Furthermore, Ausbao 286 submitted that s 129(1)(c) was satisfied because the Plan was registered in the Torrens Register in relation to the Land and it contained the error referred to.

The submissions assumed that the Plan had become part of the Torrens Register, which is an assumption belatedly challenged by the Registrar-General. I will deal with the validity of that assumption separately below, and for the moment will accept that the Plan became part of the Torrens Register.

Registrar-General’s response – principal objective of the Act

The Registrar-General submitted that Ausbao 286 had not satisfied the first stage. That was not just because of its submission that the Plan did not become part of the Torrens Register, but because of a submission that s 129(1) was not necessarily satisfied in cases where one of the factors in s 129(1)(a)-(g) was established and that factor had caused the claimant to suffer loss or damage. The Registrar-General submitted that the entitlement to compensation is subject to an additional requirement that arises out of a consideration of the legislative scheme of the Act, which leads to the conclusion that the object of the Torrens system is to provide certainty of title to land. It is not, according to the Registrar-General, and never has been, to guarantee the accuracy of any dimensions or areas of any land that may be referred to in deposited plans or any other records kept on the Torrens Register. It has always been recognised by the common law that dimensions shown in title diagrams and registered plans may not be correct.
The Registrar-General submitted that this object of the Torrens system was inherent in the Act and was a reason for finding that s 129(1) had not been satisfied in this case, quite separately from the Registrar-General's reliance upon the exception available under s 129(2)(e) based upon the submission that the error in the Plan was an error or miscalculation in the measurement of land.
The Registrar-General relied upon the following extract from the judgment of Bryson J (as his Honour then was) in Comserv (No 1877) Pty Ltd v Figtree Gardens Caravan Park [1999] NSWSC 124; (1999) 9 BPR 16,791 at [30], where his Honour said:

… [i]dentifying the land described and accepting the indefeasibility of title to that land are quite different things. The Certificate of Title certifies title and does not certify that the land has all the dimensions and characteristics attributed to it in the Deposited Plan (emphasis added).

The Registrar-General relied upon similar statements in Registrar-General v Tuckfield (1991) 6 BPR 13,831 per Bannon J, Boyton v Clancy (1998) 9 BPR 16,585 and Registrar-General v Rigby (Land and Environment Court (NSW), Bannon J, 29 June 1995, unreported).
The following extract from Butt's Land Law (7th ed, 2017, Lawbook Company) (Butt’s Land Law) at [2.480] was cited by the Registrar-General:

In practice, registered plans (lodged with the Registrar General) are relied on as correctly depicting the boundaries of the land in the plan. However, this reliance is not always justified, for sometimes the plans are inaccurate or ambiguous. And where land is under Torrens title, registration of title based on the plan does not guarantee that stated boundaries are accurate. The “conclusiveness of the Register” does not extend to conclusiveness of the boundaries of the land described in the Register.

The Registrar-General also noted the observations in Baalman and Wells Land Titles Office Practice NSW (5th ed, 1998, looseleaf, Lawbook Co) at [206.675] wherein it is noted that: "In the case of a lot in a compiled plan or a compiled residue lot (that is, where a lot is not defined by survey), there is no certainty that the stated or deducted area is correct", and that “since 1 September 1983 the Registrar-General has not checked the area of any lot in a deposited plan lodged for registration”.
The effect of this argument seems to be that s 129(1) must be construed having regard to the fact that the primary purpose of the Act in maintaining the Torrens System is to guarantee title to land, and not subsidiary matters that may be found in documents on the Torrens Register, such as the dimensions and areas of land. The provisions in the Act providing for compensation should impliedly be restricted to compensating claimants who have suffered loss or damage as a result of the operation of the Act in so far as it provides for indefeasibility of title. As it has historically been understood that information produced in the operation of the Act or recorded under the Act does not establish the accuracy of such subsidiary information, the compensation provisions should be applied in a way that does not compensate claimants who have suffered loss as a result of accepting the accuracy of the subsidiary information.
As I understand the Registrar-General's specific reliance on the words "as a result of the operation of this Act in respect of any land" in the chapeau to s 129(1), he submits that those words have a greater effect than requiring that one of the factors in s 129(1)(a)-(g) be a material cause of the loss or damage suffered by the claimant. In addition, the loss or damage must result from the operation of the Act. That is, the loss or damage must result from the operation or application of a provision in the Act that affects title to land, being primarily the provisions that provide for indefeasibility of title.
This submission appears to distinguish between alternative meanings of the word “operation” in relation to the Act. One meaning would be that everything required or authorised to be done by the Act in the operation of the Torrens System would involve the operation of the Act. The other would give “operation” a narrower meaning in that some provision of the Act would be required to directly cause the circumstance that gives rise to the loss or damage.
The Registrar-General relied upon the observation of Windeyer J in Diemasters Pty Ltd v Meadowcorp Pty Ltd (2001) 52 NSWLR 572; [2001] NSWSC 495 (Diemasters), where his Honour said at [37] that "the purpose of compensation by access to the Fund is to balance disadvantage which can otherwise be brought about by indefeasibility of title." The Registrar-General also relied upon the statement of Johnson J in National Australia Bank Ltd v Thirup [2011] NSWSC 911 at [75] that "the compensation provisions in Part 14 of the Real Property Act 1900 are intended to address the hardship that may be caused by the effects of indefeasibility." The Registrar-General also cited Bank of Western Australia Ltd v Coppola (No 2) [2012] NSWSC 1495 at [52].
While these judicial statements may be accepted as articulating the principal purpose of the compensation provisions in the Act, having regard to the prominence of the provisions that relate to indefeasibility and the manner in which those provisions may cause loss to innocent parties, the Judges who made them were not dealing with the present question, and it should not be assumed that they intended to state exhaustively the purpose of the operation of the Torrens Assurance Fund.
The Registrar-General’s submission requires that the chapeau to the subsection be read narrowly and that the section be read down to conform to the supposed principal object of the Act. Its acceptance would significantly reduce the availability of compensation from the Torrens Assurance Fund. That would run counter to the recommendations in the LRC Report. It would involve the imposition of a limitation on a beneficial change to the Act that is not required by its express terms.

Ausbao 286’s response

Ausbao 286's response to the Registrar-General’s argument relied upon the following observation of Windeyer J in Diemasters at [34]:

The words “as a result of the operation of the Act” are new. It is quite unlikely that they were intended to make access to the Assurance Fund more restrictive than under the old s 126, which it replaced. That is apparent from the report of the New South Wales Law Reform Commission, Torrens Title: Compensation for Loss, No 76 (1996) and the second reading speech of the Minister: (Parliamentary Debates, Legislative Assembly, 3 May 2000 at 5187).

Ausbao 286 noted that this passage has been cited with approval by Kunc J in Lincu at [121]. Ausbao 286 submitted that ordinarily, a person will suffer "loss or damage as a result of the operation of" the Act where he or she is deprived of an interest in land through the registration of some dealing, but submitted that s 129(1) is not limited to that situation.
Diemasters was a case where land was subject to a registered mortgage. The registered proprietor fraudulently procured the discharge of the mortgage by the use of stolen and forged bank cheques. The registered proprietor sold the land to two joint purchasers and delivered a transfer of the land to them. When the mortgagees discovered the fraud, they lodged a caveat to prevent registration of the discharge of mortgage. The purchasers were unable to procure the registration of the transfer to them free of the original mortgage whose discharge had been procured by fraud. Consequently, although the purchasers had paid a price for the land, they could only acquire title subject to the original mortgage. The mortgagees succeeded in obtaining a declaration that they were entitled to have the mortgage remain registered and the discharge of the mortgage delivered up to them for cancellation.
Windeyer J found that one of the joint purchasers was a party to the fraud. The other purchaser applied in separate proceedings for an order for compensation from the Torrens Assurance Fund. The issue was whether, under s 129(1)(e), the applicant had been deprived of land as a consequence of fraud.
Windeyer J dismissed the application for compensation from the Torrens Assurance Fund on the ground that the applicant, though an innocent purchaser, was bound by the fraud of the other purchaser as the contract to purchase was entered into by the two purchasers jointly rather than as tenants in common: see [28].
However, Windeyer J dealt in his reasons with the argument of the Registrar-General that the innocent purchaser had not suffered any loss or damage "as a result of the operation of [the] Act". His Honour said at [32]-[37]:

[32] This is a difficult matter. In general the compensation provisions of the Act were introduced because, in the absence of fraud on the part of a person obtaining title by registration, the act of registration conferred an indefeasible title on the transferee. This left the person subject to the fraud with only a claim for compensation or damages from the Fund or, under the old s 126, from the fraudster. It follows that in the ordinary case deprivation is the result of some interest lost as a result of the doctrine of indefeasibility, through registration of a subsequent dealing obtained by reason of fraud of a party or of mistake on the part of the Registrar-General, although such lost interest can be an unregistered prior interest such as an unregistered mortgage or a mortgage by deposit of title deeds, defeated by fraudulent application for a new certificate of title and subsequent registered mortgage. In the instant case, however, the interest of the mortgagees, which prevents Jain from obtaining an unencumbered title, is not a subsequently acquired registered interest. It is a right or an interest to retain priority as registered mortgagee by having the discharge delivered up for cancellation. The interest of Jain on the other hand arises under contract to purchase an estate in fee simple free from encumbrance and transfer pursuant thereto it being the obligation of Meadowcorp to deliver a clear title.
[33] Had the land been under Old System title Jain, as bona fide purchaser for value without notice, would have taken a clear title had he received a re-conveyance from the mortgagees to Meadowcorp or a statutory discharge operating as a re-conveyance and a conveyance from Meadowcorp. It follows from this that it is because the land is under the Act that the mortgagees have maintained their priority. Thus the fact that Jain has not obtained unencumbered title is because the land is under the Act. The question is whether this failure, which has almost certainly caused damage to Jain, arises as a result of the operation of the Act through Jain having been deprived of an unencumbered title as a consequence of fraud.
…
[37] As I have said this a matter of considerable difficulty. Nevertheless the
purpose of compensation by access to the Fund is to balance disadvantage which can otherwise be brought about by indefeasibility of title. In principle I can see no reason to restrict access to the Fund to persons claiming that their interest has been lost through the registration of some subsequent dealing as a result of fraud. There is no particular logical reason why compensation should not be available to persons suffering damage as a result of fraud which has enabled the proprietor of a registered interest to maintain an indefeasible title to such interest based upon its continued registration. Such damage seems to me to arise out of the operation of the Act.

In substance, the conclusion reached by Windeyer J was that it was not essential to the requirement for loss or damage to be caused by the operation of the Act for a person entitled to a prior interest in land under the Act to be deprived of that interest by reason of the registration of a subsequent interest which gave the person entitled to that subsequent interest an indefeasible title that defeated the interest of the first person. Loss or damage could be caused by the operation of the Act, if the continued registration of a prior interest prevented a person who became entitled to a subsequent interest from becoming entitled to an indefeasible enjoyment of that interest, because of the continued indefeasibility of the prior interest. In both cases the loss or damage was caused by the indefeasibility provisions in the Act.
Consequently, his Honour went no further than to recognise a slightly wider sense in which the indefeasibility provisions in the Act may cause loss or damage than the usual or most common one. Windeyer J’s statement: “Nevertheless the purpose of compensation by access to the Fund is to balance disadvantage which can otherwise be brought about by indefeasibility of title” appears to support the Registrar-General’s submission that the object of the compensation provisions in the Act is to protect claimants who suffer from the application of the indefeasibility provisions. However, it must be remembered that the context in which the statement was made was an application for compensation under s 129(1)(e) on the basis that the claimant had been deprived of an interest in land as a consequence of fraud. Accordingly, it was natural for his Honour to approach the issue from the perspective that the indefeasibility provisions in the Act were the source of the loss or damage suffered by the claimant.
Windeyer J’s observations should not therefore be treated as having been intended to apply to all of the paragraphs of s 129(1).
Ausbao 286 also cited Butt's Land Law at [12.1430] which states (footnotes omitted):

Under s 129 of the Real Property Act 1900 (NSW), as under s 120, compensation is payable only where the loss or damage arises “as a result of the operation of this Act”. So also under s 129 the requirement that the loss or damage be suffered “as a result of” the operation of the Act introduces a causation link, but it is probably satisfied by showing that the operation of the Act materially contributed to the loss or damage, without being its dominant cause. In the normal situation, a person suffers loss “as a result of the operation of this Act” where he or she is deprived of an interest through registration of some subsequent dealing. However, s 129(1) is not restricted to this situation. For example, it can apply where a person suffers loss through the maintenance on the register of a registered interest which the person thought (mistakenly) had been given up. An example is where a purchaser had completed the purchase expecting that a registered mortgage would be removed by registration of a discharge of mortgage, only to find that the mortgagee was able to restrain registration of the discharge on the ground that it had been obtained by fraud; this left the purchaser unregistered and subject to the still-registered mortgage.

Although it is true that the learned author states that s 129(1) is not restricted to the situation where a claimant is deprived of an interest through registration of some subsequent dealing, the alternative examples given still involve the situation where the loss or damage that is suffered is caused by the direct operation of a provision in the Act. The learned author relied on the authority of Diemasters.
Ausbao 286 also relied upon the following statement of Bryson J (as his Honour then was) in Challenger Managed Investments Ltd v Direct Money Corporation Pty Ltd (2003) 59 NSWLR 452 (Challenger) at [84]:

I see s 129 and Pts 13 and 14 as machinery which among other effects, give assurance to the Registrar General that he is to go ahead and administer the Real Property Act in a confident and effective manner, without paying undue attention to the readily discernible possibility that in any particular transaction the Registrar General may have been deceived and may be acting on a wrong basis. If there is something suspicious the Registrar General can investigate it, but if not he can decide to act on what is put before him. The Registrar General is enabled to act on the confident basis that if he has made a decision which is later shown to be wrong, there is an assurance fund out of which any loss or damage can be paid for. The meticulous, expensive and perilous examinations and re-examinations in each transaction of titles, powers and the basis on which action was taking place which characterised the general law or old system of title are replaced by an effective system in which title consist of entries in the Register and the plainly discernible possibility that this will cause loss or damage either through mistakes which inevitably arise in public administration or without any mistake having been made, will be reliably paid for if it matures into fact. Recognising loss or damage and paying compensation become normal parts of the workings of Torrens System, and are not enormities requiring the intervention of the law of tort. The Torrens System pursues efficiency and promptitude in establishing land titles, and deals with the risks which pursuit of these advantages brings with it.

However, his Honour also said (emphasis added):

[67] Conceptions basic to the Torrens System of title by registration, and the primacy given to the Register, require that where the operation of the Torrens System imposes loss or damage, compensation should be made available by the State. It can be readily foreseen that no matter how much care and skill are exercised by public officers who conduct registration processes and maintain the Register, the workings of the Torrens System will from time to time impose loss and damage; and it can also be readily foreseen that no matter how competent and well-intentioned the public officers are, from time to time they will make mistakes which will have consequences in the Register and will cause loss and damage…
…
[74] Where a plaintiff alleges that there has been some fault in an act, omission, error, misdescription or otherwise, the plaintiff may prove it in the course of proving that the loss or damage arises from one of the cases in paras (a) to (f). Paragraph (e), relating to a person’s having been deprived of land as a consequence of fraud, will usually arise in a situation where some fraud has been practised which cannot be said to involve any fault of the Registrar General, who with others was a victim of it. The overall control mechanism in s 129(1) is that the plaintiff must have suffered loss or damage as a result of the operation of the Act; and the workings of indefeasibility will usually have a part in the plaintiffs’ rights’ being in a worse situation than he was entitled to have them but for the operation of the Act.

…
[76] … Overall a regime is established in which loss or damage as a result of the operation of the Act is compensated for as part of the ordinary workings of the Torrens System. Compensation is not an extraordinary remedy, and is not reserved for faults, blunders or enormities. (Emphasis added)

This aspect of Bryson J's judgment was quoted by Kunc J in Lincu with apparent approval at [120].
It is important to note that Bryson J used the word “usually” twice in [74]. His Honour has plainly chosen his words carefully. It would be wrong to attribute to his Honour an intention to state a generality when he said that “the workings of indefeasibility will usually have a part in the plaintiffs’ rights’ being in a worse situation than he was entitled to have them but for the operation of the Act”.
Diemasters and Challenger are therefore equivocal on the issue of whether, on the basis of the primary purpose of the Act or the proper construction of the chapeau to s 129(1), the entitlement to compensation is limited to loss or damage that results from the application of the provisions in the Act concerning title to land and indefeasibility, or whether the right to compensation covers any loss or damage that results from the operation of the Act more generally in respect of its administration.

Consideration

The Registrar-General’s submissions give relatively little attention to the wording of the new s 129, which is significantly different in content and structure from the provisions that it replaced. Instead, the submissions focus on the chapeau to s 129(1), the supposed object of the Act, and they seek to impose by implication a narrowing effect on the right to compensation.
As I have already noted, s 129(1) expressly lists the factors that give rise to a right to compensation, while s 129(2) expressly lists the exceptions to that right. It is improbable that the Parliament would adopt this structure with the apparent intention to facilitate clarity in the entitlement to compensation, and then obscure that clarity by implying a tacit limitation on the right to compensation for loss or damage that resulted from the operation of some unidentified provisions in the Act.
To the extent that the Parliament may have intended that compensation be available for loss or damage resulting from the operation of the provisions in the Act that deal with title to land and indefeasibility, that result will follow naturally where the loss or damage arises from one of the factors in s 129(1)(b), (c), (d) or (e). That is, where the loss or damage arises from one of those factors, it will almost certainly be as a result of the direct operation of the indefeasibility provisions in the Act.
If that is so, there is no need to treat the chapeau to s 129(1) as having any effect other than to make clear the requirement that the relevant factors be a material cause of the loss or damage.
On the other hand, there are some factors in s 129(1) that may cause loss or damage but that would not result from the operation of the provisions in the Act that deal with title to land and indefeasibility. The Registrar-General’s argument that only loss or damage caused by the provisions in the Act that deal with title to land and indefeasibility may be the subject of compensation is a generalisation. The validity of that generalisation will be denied if s 129(1) may be satisfied by the occurrence of factors causing loss or damage that do not involve the provisions of the Act that deal with title to land and indefeasibility.
One such factor appears in s 129(1)(g), which provides;

(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—
…
(g) any error of the Registrar-General in recording details supplied in the notice referred to in section 39 (1B),
is entitled to payment of compensation from the Torrens Assurance Fund.

The terms of s 39(1B) are:

(1B)   The Registrar-General may—
(a)    refuse to accept for registration—
(i)    a dealing purporting to transfer or otherwise to deal with or affect any estate or interest in land under the provisions of this Act, or
(ii)   an application to effect a change in the name of a registered proprietor, or
(b)   refuse to register such a dealing or application, or
(c)   reject such a dealing or application,
if it is not accompanied by a fully completed notice in the approved form.

Section 129(1)(g) has the effect that the first stage of the entitlement to compensation from the Torrens Assurance Fund will be satisfied if a claimant suffers loss or damage as a result of any error of the Registrar-General in recording details supplied in the notice. As appears from the Registrar-General’s Guidelines published by NSW Land Registry Services (the Guidelines), the notice referred to in s 39(1B) is called a Notice of Sale or Transfer of Land (NOS) and is Form 10–0520.
Section 39(1B) was inserted into the Act by s 3 and Schedule 1 of the Conveyancing Legislation (Notice of Sale) Amendment Act 1992 (NSW).
The Guidelines provide the following advice:

A Notice of Sale is used by NSW LRS to notify the local council, water supply authority and relevant rating authorities of changes in ownership of the properties. s39(1)(B) [read: s 39(1B)] of the Real Property Act 1900 requires a Notice of Sale to be lodged in all cases where the registered proprietor name on title changes, including a change of name.
Once a dealing is registered the local council, water supply authority and relevant rating authorities are automatically informed of the change and their records are updated.

See also Greg Stilianou, Land Titling Law and Practice in NSW (2013, Lawbook Company) at [12.170].
Section 129(2)(p) was inserted into the Act by the Land Transactions Act at the same time as s 129(1)(g). It provides:

Compensation is not payable in relation to any loss or damage suffered by any person—
…
(p) where the loss or damage arises from the provision by the Registrar-General of information supplied in the notice referred to in section 39 (1B) (subject to subsection (1) (g)).

The purpose of the addition of these two paragraphs to s 129 appears to be to create a right of compensation where loss or damage is caused by an error made by the Registrar-General in recording the details supplied in a notice of sale, but to ensure that compensation is only available where the loss or damage is the result of a recording error by the Registrar-General.
The loss or damage to which s 129(1)(g) is directed is not entirely clear. The Explanatory Note to the Real Property Amendment (Land Transactions) Bill 2009 simply stated that the purpose of the addition of the two paragraphs was to “clarify that compensation is not payable in relation to any loss or damage arising from the provision by the Registrar-General of information supplied in a notice of sale except in relation to an error of the Registrar-General in recording the details supplied in such a notice”. In the second reading speech in the Legislative Assembly, the Minister merely said: “Section 129 of the Real Property Act will be amended to clarify the circumstances in which compensation may be payable from the Torrens Assurance Fund in relation to the information provided in a notice of sale.”
There is a clear implication in the statements of purpose that the objective of the amendments was to place a limit on the circumstances in which compensation would be available for loss or damage that resulted from the provision by the Registrar-General to relevant rating authorities and government agencies of information contained in notices of sale lodged by parties with dealings sought to be registered. Compensation would not be available unless it was the Registrar-General who caused the loss or damage by making an error in recording the information. There is a clear assumption that, absent the amendments, compensation may be payable in respect of loss or damage that simply resulted from the Registrar-General providing the information in a notice of sale to relevant rating authorities and government agencies.
Presumably, the amendments were directed at possible loss or damage caused by the Registrar-General having provided incorrect information to rating authorities and government agencies and that information having been acted upon for such matters as the determination of land tax or council rate obligations. Although the relevant loss or damage does not appear to have been specifically identified, it is clear that it is not loss or damage that results from the application of the provisions in the Act dealing with title to land and indefeasibility.
Similar observations may be made about the application of s 129(1)(f), which applies where the claimant has suffered loss or damage arising from “an error or omission in an official search in relation to the land”.
Official searches are the subject of Part 11A of the Act, which provides a mechanism by which members of the public may requisition the Registrar-General to issue certificates of the result of searches of manual folios and computer folios, as well as searches of the historical record required by s 32 to be kept by the Registrar-General: see ss 96C, 96D and 96G.
Before the enactment of the Amendment Act in 2000, s 96I(1) provided that, where a person dealt with land in reliance on the correctness of an official search, and as a result of an error in, or omission from, that official search the person suffered loss or damage in so acting, the person was permitted to bring an action against the Registrar-General for the recovery of damages. Any damages recovered were to be paid out of the Torrens Assurance Fund.
Section 96I(1) was repealed by the Amendment Act, which replaced the existing Part 14 with the new Part 14 (which includes s 129(1)(f)). It was evidently thought expedient as part of the reform, which replaced the role of the Registrar-General as the nominal defendant for claims for damages by the role of the administrator of claims for compensation from the Torrens Assurance Fund, for the provision governing the entitlement to compensation for loss or damage suffered as a result of errors in official searches to be included in s 129.
Although it may be that the provisions of the Act that deal with indefeasibility of title may provide the background against which losses as a result of claimants acting on erroneous official searches may be suffered, in no real way can it be said that such losses will have resulted from the operation of the Act, where the operation referred to is said to strictly be the effect of the indefeasibility provisions. Rather, the operation of the Act in this context must mean the general administration of the Act in so far as it relates to the issue of official searches.
Thus, the Registrar-General’s argument that the expression “as a result of the operation of this Act” in the chapeau to s 129(1) always refers to the operation of the provisions of the act dealing with title to land and indefeasibility is disproved as a generalisation by the exceptions in s 129(1)(f) and (g). I see no reason why the factor in s 129(1)(a) should be treated differently.
Support for this conclusion may be found in the decision of Austin J in Kirkland. In that case the claimants’ loss arose out of the fact that a developer had sold lots ‘off the plan’ to a number of purchasers who purchased on the basis of the lot numbers in the development plan. On completion of the development, the strata plan was registered and the Registrar-General, acting upon a request that was not consented to by all lot owners, changed the numbers of the lots in the strata plan. This act caused confusion, as purchasers and mortgagees who thought they had interests in lots with particular numbers in fact had interests in lots with different numbers. As Austin J said at [69]: "… The critical question under s 129, in the present circumstances, is whether all or any of the categories of loss or damage claimed by the plaintiffs is recoverable against the Fund on the ground that it is loss or damage ‘as a result of the operation’ of the Act which has arisen out of the act of the Registrar-General in changing lot numbers on 1 February 2005 or out of the misdescription of lot numbers made on that occasion.” Although the lot numbers were changed, the various contracts and mortgages had the effect that the parties acquired interests physically in the correct lots. Those lots simply had different lot numbers than was expected. Ultimately, the Registrar-General corrected the error.
So far as the indefeasibility provisions were concerned, all parties were at all times protected, as they acquired their interests in the correct physical lots. As Austin J said at [20] “… It was also submitted that the re-numbering pursuant to the Request, which was a ‘dealing’, in no way affected the registration of the plaintiffs' mortgage, in light of s 41. That is correct, and it is also correct that the plaintiffs and the other interest-holders had the protection of indefeasibility of title under s 42. But again, that protection did not prevent the Registrar-General from altering lot numbers so that the registered estates or interests, while still estates or interests in respect of the same physical properties, became estates or interests in respect of properties designated by new numbers."
Austin J held that the claimants were entitled to compensation under s 129(1) (a) and (c) for losses suffered as a consequence of the process of causing the correct lot numbers to be given to the lots. Kirkland is authority against the Registrar-General's argument that the chapeau to s 129(1) introduces a requirement that loss or damage is only compensable from the Torrens Assurance Fund if it has resulted from the provisions in the Act dealing with title to land and indefeasibility. In that case, the claimants were found to be entitled to compensation notwithstanding that the claimants at all times had an indefeasible interest in the physical property that they intended to purchase.
I therefore reject the Registrar-General's argument that the entitlement of a claimant to compensation for loss or damage caused by one of the factors in s 129(1) will by implication be limited to loss or damage caused by the operation of the provisions in the Act that deal with title to land and indefeasibility. The purpose of the chapeau to s 129(1) is to require that the occurrence of one of the factors in the paragraphs results from the operation of the Act, in the wider sense of its general administration, so that a material cause of the loss or damage should be the occurrence of one of those factors.
The result is that the two stage process of determining a claimant's entitlement to compensation, as stated by Kunc J in Lincu, is a complete statement of the correct approach, without the necessity for the Court to find in addition that the loss or damage has resulted from the operation of the provisions in the Act dealing with title to land and indefeasibility.

Registrar-General’s response – significance of Registrar-General’s duties

In addition, the Registrar-General put what I understand to be a related but different submission as to why Ausbao 286 had not satisfied the first stage in these proceedings. It was submitted that there could only be an act or omission of the Registrar-General in the execution or performance of his or her functions or duties under the Act in cases where the Act imposed upon the Registrar-General a duty or requirement in the administration of the Act. Such a duty or requirement extended to what should be included in any document prepared by the Registrar-General or document incorporated in the Torrens Register. If the claim relates to a function of the Registrar-General that is not mandated by the Act, or to a duty that is not imposed on the Registrar-General by the Act, then there can be no enlivening of s 129(1).
The Registrar-General submitted that s 129(1) was not satisfied in this case because nothing in the Act required the Registrar-General to insert any area in the Plan. According to this submission, a particular step taken by the Registrar-General will not be a relevant act or omission if the Registrar-General was either not able to take that step or was not required to do so.
The Registrar-General relied on Trieste Investments Pty Ltd v Watson (1963) 64 SR (NSW) 98; 81 WN (Pt 2) (NSW) 136 (Trieste). The issue in Trieste was whether the absence of a recording on a certificate of title that part of the land had been resumed after the creation of the certificate of title fell within the expression "any error, omission, or misdescription in any certificate of title", within the then current wording of s 127(1). The Full Court of this Court decided, by majority of Herron CJ and Nagle J (Ferguson J dissenting), that it did not. Both judges in the majority acknowledged that they found the issue of statutory interpretation to be a difficult one. The Chief Justice said at 102, in relation to the plaintiff’s contention that it was entitled to rely on the certificate of title, and that its loss was due to an error, omission or misdescription in the certificate of title, that: “I concede that there is much to be said for this contention and my mind fluctuated during the argument”. The decision turned on the fact that, in 1929, the relevant time, there existed no statutory provision which required or authorised the registration of a resumption of land for a public road. Herron CJ said at 102-3 (footnotes omitted):

Read in isolation and divorced from a consideration of the scheme of the Act, the words error, omission or misdescription appear to cover the present case. But the fallacy, I think, lies in asserting that the Act achieves complete indefeasibility. For the apparent indefeasibility is qualified. Section 32 contains the authority of the Registrar-General to register dealings. It empowers him to record only particulars of instruments, dealings and matters required by the Act to be registered or entered. Nothing else is to be registered. A public road or highway is not an easement and in New South Wales could not, prior to 1930, be registered: Howell v District Land Registrar.

The Chief Justice's conclusion is found at 104, where his Honour said:

In my opinion the words ‘error or omission’ are subjective in application and connote something more than simply not there or absent from. Whilst misdescription is a word of greater objectivity, none the less it conveys the same notion of a mistake in a description authorized to be made under the Act. Considered in light of the rest of the Act and of the Torrens system generally, I think the first two words relate to errors or omissions in details where such, by the Act, are authorized to have been made and are not made. I do not base my opinion on any want of duty by the Registrar-General but upon the scope of his authority conferred by the Act to note or register this resumption.
As a result the section does not, I think, apply because the certificate does not or because entries on the register do not correspond with the facts. As no registration of the resumption was authorized at the date of its gazettal, it cannot be said to have been an error to omit it…

The other judge in the majority, Nagel J, said at 109 in relation to the use of the words ‘error, omission or misdescription’ in the section:

… Each of these words appears to me to convey the concept of something lacking from the register book which would be expected to be in it, and I do not think that it can be said that there is ‘an error, omission or misdescription’, if, consonant with the provisions of the Act, the particular entry might or might not be found on the register. Unless one closes one’s eyes completely to the remainder of the Act it seems to be difficult to say anything can be in error or omitted or misdescribed unless it is an error, omission or misdescription contemplated by the Act itself.

Claim for compensation

Although I have found that Ausbao 286 has not established an entitlement to compensation from the Torrens Assurance Fund under s 129, it will be appropriate for me nonetheless to consider the claim in the event my primary finding is held to be wrong.

Revision of compensation claim

It is necessary to begin by considering the history of Ausbao 286's compensation claim, as its juridical basis has changed substantially over the course of the proceedings.
In par 20 of its amended statement of claim, Ausbao 286 sought compensation in the range $5.0M - $7.5M (comprising the difference in the amount Ausbao 286 paid for the land (i.e. $55M), on the basis of the misconception that the site area was 1,337.4 m², and the amount it would have paid if it had known that the Land only had an area of 1,255.9 m² (i.e. $47.5M – $50.0M). In addition, Ausbao 286 claimed compensation for the additional stamp duty as well as legal, valuation and other professional costs in making the claim. The reason for the range in the amount claimed was that Ausbao 286 could only establish on the evidence that its bid price would have fallen within the range of $47.5M - $50.0M.
Ausbao 286 maintained this claim for compensation in pars 57 and 58 of its outline of written submissions served before the commencement of the hearing dated 20 May 2021.
The Registrar-General responded to this claim in par 20 of his defence to amended statement of claim by denying that Ausbao 286 had suffered the loss or damage claimed, and alternatively, by denying that Ausbao 286 is entitled to damages assessed by reference to any difference in the amount it would have paid had it known that the Land had a site area which was less than it believed by reason of any error or misdescription in the Plan.
On the first day of the hearing in oral opening, senior counsel for Ausbao 286 stated his understanding of the Registrar-General’s position as being that the Court should apply the principle decided by the High Court in Potts v Miller (1940) 64 CLR 282 at 289 and 297, wherein it was held that the proper measure of damages for the tort of deceit in cases where the plaintiff was induced to acquire property was the difference between the price paid and the fair or real value of the property at the time it was acquired.
Senior counsel explained the new basis of Ausbao 286’s claim, being that it sought compensation for the value of the chance that it could have acquired the Land for a price less than $55M. This new claim was explained in detail in Ausbao 286's final written outline of submissions dated 3 June 2021 at pars 110 to 153. Ausbao 286 encapsulated its case at par 153 in the following terms:

For the foregoing reasons, this Court would find that Ausbao is entitled to damages in the sum of $5,000,000 – $7,500,000 adjusted for the probability that the vendor would have accepted an offer from Ausbao in the order of $47.5m – $50m on the counterfactual that the Deposited Plans accurately depicted the Land's area. Through this adjustment the Plaintiff's loss falls within a range of $4m to $2.5m.

In the Registrar-General's final written submissions dated 3 June 2021, he noted at pars 83 to 88 that Ausbao 286 had changed the basis of its compensation claim without seeking leave to amend its amended statement of claim. The Registrar-General indicated that he was loath to take a pleading point and sought an opportunity to consider Ausbao 286's final submissions and make further submissions of his own. The Registrar-General was given that opportunity.
As it has happened, the Registrar-General has not made a submission that Ausbao 286 is not entitled to formulate its compensation claim in the new way without being given leave to amend its pleadings. The Registrar-General replied in detail to Ausbao 286's new claim in pars 87 to 119 of his further closing submissions in response. Ausbao 286 responded to these submissions in pars 74 to 90 of its 7 October 2021 submissions in reply.

Evidence tendered in support of claim

Before I embark upon a consideration of the validity of Ausbao 286's new compensation claim, it will be appropriate to consider a number of preliminary matters that are material to that determination.
First, Ausbao 286 did not tender any expert valuation evidence as to the value of the Land at the date that it entered into the contract to acquire the Land. Consequently, Ausbao 286 would not have been in a position to prove the quantum of its entitlement to compensation if that entitlement was governed by the Potts v Miller principle.
Although, in respect of the new basis for quantifying its compensation, Ausbao 286 proved in detail how it determined its bid price in fact, and how it would have determined the lower bid price if it had known the true site area of the Lot, it called no evidence at all concerning the bids made by the other two selected bidders and how they determined their bid prices, or the process adopted by the vendor in selecting the bid made by Ausbao 286 and rejecting the other two bids. The result has been that Ausbao 286 has asked the Court to determine the value of its lost opportunity on a basis that is entirely theoretical in so far as it involves a consideration of how the other two selected bidders would have acted, if the site area of the Lot had correctly been stated on the Plan, what their bid prices may have been, and how the vendor may have acted in response to the three bids, if three bids were made. Although Ausbao 286's new compensation claim involves the consideration of a counterfactual involving the possible behaviour of three bidders and one vendor, it is still likely to have been material to the process of the assessment of relevant probabilities by the Court to know what the other bidders and the vendor in fact did in response to circumstances that included the error in the site area of the Lot in the Plan.
As will be seen, this course has led to the position where Ausbao 286 has asked the Court to make some detailed findings as to probable events that would have occurred in the counterfactual on an entirely hypothetical basis. Evidence of what the other bidders and the vendor in fact did may have made it possible for the Court to make findings as to the counterfactual probabilities on a much more sound basis than has been possible, given the forensic course taken by Ausbao 286.

Proper basis for determining compensation

The second preliminary observation is that, in par 89 of his 9 September 2021 submissions, the Registrar-General abandoned the claim that the proper principle to determine any loss suffered by Ausbao 286 was the principle stated in Potts v Miller. The Registrar-General specifically said: "The plaintiff's submissions in PS1 which address the Potts v Miller (1940) 64 CLR 382 basis of assessment can therefore be disregarded in circumstances where the plaintiff has now eschewed it. The Registrar-General makes no submission about damages which the plaintiff does not claim (notwithstanding that the claim as pleaded was on that basis)”. The Registrar-General's submissions were confined to responding to Ausbao 286's loss of opportunity case.
The Registrar-General's response to Ausbao 286’s new claim was encapsulated in par 88 in the following terms:

However, even if the plaintiff had established that it had suffered compensable loss, for the reasons which follow, the plaintiff is not entitled to compensation for the alleged loss of opportunity it seeks in any event, because:
(a) the loss claimed by the plaintiff, being an alleged loss of opportunity to have bid less for the Property and have that bid accepted is, by its nature and/or in all the circumstances of the case, not contemplated by the RPA and is inconsistent with the purpose for which the compensation provisions in the RPA exist; and
(b) the plaintiff has not, in any event, made out its case, from an evidentiary perspective, for the compensation it seeks.

I will deal first with the question of whether Ausbao 286 is, as a matter of law, entitled to claim compensation on the basis of a loss of opportunity to have paid a lower price for the Land than it in fact paid as a result of acting on the error in the site area of the Lot contained in the Plan.
As a result of the course taken by the parties, the Court finds itself in the position that it is required to consider Ausbao 286's entitlement to compensation on a different legal basis than the one the Court considers is truly applicable. Consequently, the reasoning that follows is not only obiter by reason of the fact that I have found that Ausbao 286 is not entitled to compensation, but it also should not be taken to reflect my own considered view of what the applicable legal principles would have been if I had found otherwise on the issue of entitlement to compensation.
In order to explain this observation, it is necessary to focus on the essential nature of the transaction that has given rise to the claim for compensation. Ausbao 286 was successful in the expressions of interest process and it purchased the Land for $55M. Ausbao 286 owns the Land. Ausbao 286 did not lose the opportunity to acquire the Land. That which Ausbao 286 describes as a lost opportunity is the opportunity to have paid a lesser price in the circumstances of the counterfactual based upon all interested parties being aware of the true site area of the Land.
In my view, even though the law may theoretically allow a choice between these two alternative means of quantifying Ausbao 286's loss, in the usual case where the claimant acquires the property, and so has not lost an opportunity to acquire, the proper approach to quantifying the loss is on the basis of the Potts v Miller principle. Simply put, Ausbao 286's loss, as recognised by the law, is the difference between the price that it paid and the objectively determinable true value of the Land.
Ausbao 286 relied in its submissions upon a number of High Court authorities that decided, in the context of the assessment of damages for breach of statutory prohibitions, such as engaging in misleading and deceptive conduct, that while common law approaches to the assessment of damages in tort or contract may sometimes provide appropriate guidelines to determining compensation for the statutory contraventions, the proper approach will depend upon an analysis of the statutory purpose concerned. It is not necessary for present purposes to review all of the authorities relied upon by Ausbao 286. It will be sufficient to state the following extract from the judgment of Gleeson CJ in Henville v Walker (2001) 206 CLR 459; [2001] HCA 52 at [18]:

Section 82 of the Act is the statutory source of the appellants' entitlement to damages. The only express guidance given as to the measure of those damages is to be found in the concept of causation in the word “by”. The task is to select a measure of damages which conforms to the remedial purpose of the statute and to the justice and equity of the case. The purpose of the statute, so far as presently relevant, is to establish a standard of behaviour in business by proscribing misleading and deceptive conduct, whether or not the misleading or deception is deliberate, and by providing a remedy in damages. The principles of common law, relevant to assessing damages in contract or tort, are not directly in point. But they may provide useful guidance, for the reason that they have had to respond to problems of the same nature as the problems which arise in the application of the Act. They are not controlling, but they represent an accumulation of valuable insight and experience which may well be useful in applying the Act.

It is implicit in Ausbao 286’s claim for compensation that the Land was worth less than the price that it paid. That follows from the assertion that a feasibility study based upon the true site area of the Land would have led to Ausbao 286 making a lower offer for the Land than it in fact made. I consider that, on the proper interpretation of Part 14 of the Act, in a case where the claimant is successful in acquiring property, notwithstanding the existence of the error for which the Registrar-General is responsible, the measure of compensation contemplated by the expression "is entitled to payment of compensation from the Torrens Assurance Fund" in s 129(1) is the shortfall between the price paid and the true value.
More significantly, s 129 provides for compensation for loss or damage out of a publicly established fund. If the basis for compensation relied upon by Ausbao 286 in this case were permissible, even if the market value of the Land was in fact $55.0M or higher, Ausbao 286 would be entitled to compensation if it could nonetheless prove that it lost an opportunity to pay a price that was less than market value as a result of the error for which the Registrar-General is assumed to be responsible.
In cases where the claimant has been successful in acquiring the property, the difficulty with determining the claimant's loss by valuing the chance that the claimant has lost an opportunity to acquire the property for a lesser price than was paid is that the Court should not limit its consideration to the possibility that the claimant would acquire the property at a lesser price, but it should also take into account the possibility that its price would be rejected and it would not have acquired the property at all. The Court cannot meaningfully consider the possibility that the claimant's lesser price would have been rejected by the vendor as the known fact is that the claimant has the property.
If Ausbao 286 is entitled to claim compensation on the basis that it lost the value of the chance that it could have acquired the Land at a lesser price, why should the Court not also take into account the fact that it gained the opportunity of selling the completed development at a higher price than it forecast in the feasibility study upon which it based its bid price, because of an unanticipated higher escalation of property values in the City of Sydney? Conventional valuation principles would say that these questions are irrelevant because the theoretical basis of the estimation of the true market value of the Land at the date of the contract for sale is that all possible variables – upsides and downsides – are objectively taken into account in the process of determining market value. Thus, the only meaningful number is the market value.
There is a further practical reason why the Court should determine compensation on the Potts v Miller principle in cases where the claimant has actually acquired the property, and the opportunity to acquire is not the opportunity that has been lost. That reason is that the Court should determine compensation on a basis that is straightforward and objective, in preference to one which requires the determination of counterfactual scenarios that may, as Ausbao 286 would have it in this case, involve almost entirely theoretical processes of reasoning, where the assessment of probabilities must involve significant guesswork.
Had I been asked to do so by the Registrar-General, I would have rejected the submission of Ausbao 286 at par 113 of its 3 June 2021 submissions that this is not a Potts v Miller case. I do not agree with the submission put in that paragraph that Ausbao 286 is entitled to quantify its compensation on the basis that it "does not seek damages for buying an over-valued asset." I consider that that is precisely what Ausbao 286 is doing. It does not matter that Ausbao 286's "evidence is that it did not assess the purchase price of the property on its 'as is' basis but on its development potential." The market value of property is generally always determined on the basis of its highest and best use, and not necessarily on the basis of its present use or the basis upon which it is marketed.
In my view, the present case for compensation is not in principle different from that decided by Hodgson J (as his Honour then was) in Voudouris. It cannot be said that his Honour decided the question, as a matter of principle, that compensation should be quantified as the difference between the price paid by the claimant and the market value in cases where the claimant has acquired the property notwithstanding the relevant error. Rather, his Honour proceeded upon the basis that that was the natural way to determine compensation, and in my respectful view, his Honour was right in doing so.

Registrar-General’s response to loss of chance claim

Ausbao 286 responded to the Registrar-General's submission that compensation quantified on the basis of the value of the lost opportunity was not available in this case, notwithstanding the Registrar-General's abandonment of the Potts v Miller principle, by relying upon the decision of Santow J (as his Honour then was) in Glensaugh Pty Ltd v Registrar-General [2001] NSWSC 1114; (2001) 10 BPR 19,311, where his Honour held, at [68]:

The fact that the loss or damage sustained was of an opportunity to obtain a commercial advantage or benefit rather than a straightforward "actual" loss, is no impediment to a claim for damages, although it may be relevant in determining the quantum of damages awarded: per Mason CJ, Dawson, Toohey and Gaudron JJ in Poseidon Ltd and Sellars v Adelaide Petroleum NL at (1994) (supra) at 355-56; Brennan J at 364. While the loss of a mere opportunity to acquire a benefit is not in itself a loss, the loss of the benefit will be such a loss if the plaintiff, as here, proves that it could and would have taken the opportunity and that the benefit would then have been yielded: per Brennan J at 362.

However, the facts of that case were materially different to the present facts. As stated in the headnote in 10 BPR 97936:

The Registrar-General erroneously showed the title to the subject land as being burdened by a reserved public road. The plaintiff had granted an option to a developer for development of the land but the option was never exercised. The plaintiff claimed that the presence of the reserved road on title prejudiced the development and that was the reason the option was not exercised. The plaintiff claimed compensation under ss 126, 127 of the Real Property Act 1900 (NSW).

In that case, the Registrar-General had acknowledged that the subject land was not burdened by a reserved public road and had subsequently removed the statement that it was so burdened from the title. Thus, in due course, the claimant for compensation came to enjoy the title to the subject land without the incorrect statement that it was burdened by a reserved public road. However, in the meantime, the claimant had granted an option to purchase the subject land to a party who contemplated constructing a golf course on the land. The apparent presence of a reserved public road created a substantial impediment to that development. The party with the option did not exercise it. The claimant proved to the satisfaction of Santow J that a reason why the option was not exercised was the presence on the title of the incorrect notification that the land was burdened by a reserved public road.
The consequence was that the claimant had lost the opportunity to sell the subject land following the exercise of the option, and that loss of opportunity was caused by the error in the title for which the Registrar-General was responsible.
The difference between Glensaugh and the present case was that there the only consequence of the error was that the claimant wholly lost a commercial opportunity to sell the subject land for an advantageous price. In the present case, Ausbao 286 did not lose the opportunity to acquire the Land as it did acquire it.
However, as I have explained, the Registrar-General has abandoned the bulwark of Potts v Miller and elected to oppose the claim for compensation on a different ground.
The Registrar-General put his submissions as to why the basis for quantification of compensation claimed by Ausbao 286 is not available in pars 91 to 105 of his submissions dated 9 September 2021.

I accept the submissions made at pars 92 to 94 that it is necessary to interpret the relevant provisions of Part 14 of the Act in their context and in a manner that would promote the purpose or object underlying the Act.
However, the Registrar-General then submitted in par 95 that the "purpose of the compensation provisions of the RPA and the context in which they exist are to provide for a system of title by registration which is underpinned by the state guarantee of that title … they are to 'balance the disadvantage', or 'address the hardship', that may be caused by the effects of indefeasibility." I have not included reference to the authorities cited in the footnotes to support this submission.
As I understand it, the Registrar-General's argument is encapsulated in par 98 as follows:

There is, accordingly, no scope for the application of the principles relating to the assessment of loss of opportunity cases to the compensation provisions of the RPA as they relate to the circumstances of the plaintiff's claim, which have nothing to do with affectations on the title to the Property.

This submission appears to repeat that which the Registrar-General made about the proper interpretation of the compensation provisions in that they are only intended to have effect to protect claimants from losses that are caused by the operation of the Act concerning title to land and indefeasibility of title.
In par 99, the Registrar-General sought to explain the decision of Santow J in Glensaugh on the basis that:

… However, as submitted earlier, that was a case where the plaintiff lost the commercial opportunity to sell its property as a golf course by reason of the Registrar-General's erroneous registration of a reservation of a Crown road on the title to the plaintiff's land. That error affected the title of the plaintiff in the sense that prospective purchasers did or could have believed that the plaintiff's land was affected by a Crown road when in fact it was not. A Crown road was registered on the title to the property as one of the dealings affecting title to the land, and the plaintiff was able to prove that because of that error, an opportunity to sell the property as a golf course was lost. (emphasis in original)

The Registrar-General therefore attempted to read into the reasoning of Santow J a consideration – which is not found in the reasons – that it mattered to the entitlement to compensation that the error in the title made by the Registrar-General put the holder of the option at risk that its title to the land upon exercise of the option would be subject to a Crown road. As I read the judgment, Santow J did not hold that the entitlement to compensation for the lost opportunity to sell the land depended upon the fact that the error infected the understanding of the holder of the option as to the title to the land.
The second argument put by the Registrar-General, commencing at par 100, was based upon the authorities that have considered the measure of damages in cases involving contraventions of statutory prohibitions and in the cases determining damages for loss of chance that were relied upon by Ausbao 286 in its submissions. The Registrar-General concluded in pars 103 and 104 by submitting: "Nothing in the Error, however, is or can by analogy be said to be a promise to provide a chance or an opportunity", and that the offer to purchase the Land for $55M made by Ausbao 286 was "based entirely on its own internal processes which occurred entirely outside of the ‘operation of this Act’".
I do not accept that these arguments are valid once reliance upon the Potts v Miller principle is abandoned. Representations that are found to be misleading or deceptive are actionable notwithstanding the absence of a promissory element. As in this case, loss is suffered because an incorrect representation is acted upon. Further, it is entirely immaterial that the steps taken by Ausbao 286 to formulate its bid price based upon the error in the site area of the Lot contained in the Plan was an internal process of Ausbao 286.
If the submission made by the Registrar-General that compensation is only intended to be available when the loss of damage is caused by the "operation of this Act" concerning title to land and indefeasibility of title is correct, then the result would be that Ausbao 286 would fail in the first stage of the process identified by Kunc J in Lincu. If it does not have that effect, it would not separately have the effect of denying a claimant a right to compensation based upon the value of a lost opportunity, if the circumstances of the application were such that the quantification of the compensation on the basis of the value of the lost opportunity was the appropriate way to assess compensation.

Amount of compensation

It is therefore necessary to consider whether Ausbao 286 has proved that it has suffered a compensable loss, and if so what the quantum of that loss should be found to be.
I accept Ausbao 286's submission that, if it is entitled to compensation based upon the value of a lost opportunity, then the following statement of principle by Mason CJ, Dawson, Toohey and Gaudron JJ in Sellars v Adelaide Petroleum NL; Poseidon Ltd v Adelaide Petroleum NL (1994) 179 CLR 332; [1994] HCA 4 at 355 is applicable:

On the other hand, the general standard of proof in civil actions will ordinarily govern the issue of causation and the issue whether the applicant has sustained loss or damage. Hence the applicant must prove on the balance of probabilities that he or she has sustained some loss or damage. However, in a case such as the present, the applicant shows some loss or damage was sustained by demonstrating that the contravening conduct caused the loss of a commercial opportunity which had some value (not being a negligible value), the value being ascertained by reference to the degree of probabilities or possibilities. It is no answer to that way of viewing an applicant's case to say that the commercial opportunity was valueless on the balance of probabilities because to say that is to value the commercial opportunity by reference to a standard of proof which is inapplicable.

Ausbao 286 correctly submitted at par 130 of its 3 June 2021 submissions: "This posits a two-stage enquiry: first, the Court must be satisfied that Ausbao lost a commercial opportunity which had some value (not being a negligible value); and, second, the Court must assess the value of the commercial opportunity by reference to the degree of probabilities or possibilities of it materialising."
I accept Ausbao 286's detailed submissions in pars 134 to 136 as to the manner in which Ausbao 286 had determined the initial bid price of $55M and that, had it instead acted upon the true site area of the Lot, it would have offered a bid price of between $47.5M and $50M for the Land. That evidence was not challenged in cross-examination, and it was not in any serious way contested in the Registrar-General's submissions.
In particular, I accept that the site area of the Land was of fundamental importance to the determination of the estimated value of the completed redevelopment, given that the existing use of the Land was not its highest and best use. The true site area of the Land was a crucial integer in the determination of the final permitted floor space ratio. The conventional way for developers to estimate the value of the hypothetical development on completion is on the basis of assigning per square metre values for the whole of the floor space in the completed development for the various intended uses. That is why an error in the site area for the Land can feed directly into the estimation of the value of the completed development, which itself, after allowance for costs, expenses, risk and profit feeds directly into the determination of the price that should be offered for the Land.
I also accept Ausbao 286's submission that the error in the site area of the Lot in the Plan was the probable source of the same error in the information memorandum, and that, if the Registrar-General's officer had not made the error in the first place, the whole of the expressions of interest process would have been conducted on the basis of an expectation by the selected bidders and the vendor that any determination of value would have been based upon an understanding that the site area was 1,255.9 m² rather than 1,337.4 m².
Accordingly, if on the basis of knowledge of the true site area of the Land, Ausbao 286 had offered a bid price of between $47.5M and $50M, there must have been a real or substantial commercial possibility that the other selected bidders would have offered lower prices, and that the vendor would have accepted the lesser bid made by Ausbao 286.
Consequently, I accept that Ausbao 286 has established the first stage of the enquiry required by Sellars.
In pars 143 to 152 of its 3 June 2021 submissions, Ausbao 286 set out its argument as to how the Court should ascertain its loss "by reference to the court's assessment of the prospects of success of that opportunity had it been pursued: Sellars, 355".
For the sake of brevity, I have summarised Ausbao 286's argument in those submissions as follows:

As the Land was sold on the basis of its development potential, all of the participants in the sales process would have offered a lesser price than they did had they known the true site area of the Land.

The format of the bidding process contributed to the likelihood that all the bidders would have offered less if they knew the true site area of the Land.

The Court should infer that all of the potential purchasers intended to redevelop the Land rather than to acquire it for the purpose of its existing use.

All of the participants in the expressions of interest process, including the vendor, were operating on the erroneous assumption that the Land had a site area of 1,337.4 m². If any participant had discovered the true site area, "this would have been raised".

If the correct site area had been included in the Plan, which formed part of the due diligence materials, all prospective purchasers would have learned of the true site area and would have offered less, and the vendor would have been prepared to accept less, than the offers that were in fact made.

The vendor would have considered Ausbao 286 as being "an attractive counterparty" because it was prepared to offer favourable terms to the vendor and had a presence in the Australian property development industry.

In broad terms, I am satisfied that it is appropriate for the Court to accept these submissions. I do so, despite the lack of evidence, because there is some logic in the proposition that the three bidders and the vendor would have acted in the same way that they in fact acted, save that they would have done so with the starting point of an appreciation of the true site area of the Land. My acceptance of the submissions is, however, only on the balance of probabilities. There is considerable uncertainty in the assumption that all bidders and the vendor would in fact have acted as postulated by Ausbao 286, particularly where Ausbao 286 has not provided any evidence to support the assumptions it makes.
At par 147, Ausbao 286 submitted that there are two main variables involved in the Court's assessment of its loss, being the amount that Ausbao 286 would have offered, and the probability that its offer would have been accepted by the vendor.
I accept the submission that there is an abundance of evidence as to the first variable, and that it is in respect of the second variable that the judgment of the Court as to the probabilities must be exercised.
In respect of the second variable, Ausbao 286 made the following submission at par 149:

The factors that inform the probability (or possibility) of the Plaintiff's offer being accepted are as follows:
a.   first, the Court should assume that all the parties were bidding within the same parameters, namely, that the land was the correct size rather than the erroneously inflated size;
b.   secondly, that the parties, acting rationally, would have formulated their offers based on the correct size and, additionally, the vendor's expectations – as reflected in the 'price guidance' offered by its agents, would have been correspondingly tempered;
c.   thirdly, that, for the two preceding reasons, and to the extent there was a 'range’ of sale prices within which the vendor would have treated with the purchaser, the range would have been pushed downwards owing to the fact that the vendor was selling a smaller parcel of land that even it, at the date of exchange (17 December 2013), believed;
d.   fourthly, that the three bidders that were shortlisted continued to behave consistently, that is, the dynamics of the hypothetical bidding contest would have mimicked what in fact occurred albeit with the parties pricing the asset to reflect their knowledge of its true size;
e.   fifthly, the vendor would also have acted consistently;
f.   sixthly, that during the second phase of the tender process the Plaintiff had a one-third chance of succeeding but that it could have improved its chances by adopting a vendor-centric posture in terms of telegraphing it was a determined offeror prepared to agree to a highly expedited settlement period of around three weeks such that this transaction would be completed before the end of the year;
g.   seventhly, we know, from actual events, that the approach adopted by the Plaintiff yielded it success in this three-way contest. That means that its calculation of price was obviously competitive and its amenability for an abbreviated settlement period was, presumably, of significance in signalling it was, to deploy the vernacular, 'cashed up and ready to go'.

Ausbao 286 then, in par 151, set out a table in which it suggested the range of outcomes for alternative bid prices at $50M, $49.5M, $49M, $48.5M, $48M and $47.5M. For each bid price, different ranges of prospects of success are suggested. By way of example, for $50M, the range is 80% to 65%, and for $47.5M, the range is 45% to 33%. The 80% prospect of success of a $50M offer gives a loss of $4M and the lowest prospect of success for a $47.5M offer at 33% gives a loss of $2.5M. There is a range of losses for the different assumed offers and for the different ranges of prospects of success.
The most obvious feature of this approach is that it is entirely theoretical, and perhaps artificial.
As, because of the choice of Ausbao 286 in not leading any evidence at all on the subject, the Court has no idea of the true circumstances of the other bidders or the vendor, the Court does not know whether the exercise proposed by Ausbao 286 has any reality, or whether it is only a numbers game.
Ausbao 286 relied in par 144 on a submission that the assessment of damages in a loss of opportunity case "has many of the characteristics of a discretionary judgment", relying upon the judgment of Mason J (as his Honour then was) in Commissioner of Taxation (Cth) v St Helens Farm (ACT) Pty Ltd (1981) 146 CLR 363 at 381; [1981] HCA 4, as cited by Ward JA (as her Honour then was) in Mistrina Pty Ltd v Australian Consulting Engineers Pty Ltd [2020] NSWCA 223 at [86].
Ausbao 286 also relied upon the following statement of principle by Mason CJ and Dawson J in The Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 at 83; [1991] HCA 54 (footnotes omitted):

The settled rule, both here and in England, is that mere difficulty in estimating damages does not relieve a court from the responsibility of estimating them as best it can. Indeed, in Jones v Schiffmann Menzies J. went so far as to say that the “assessment of damages … does sometimes, of necessity involve what is guess work rather than estimation”. Where precise evidence is not available the court must do the best it can. And uncertainty as to the profits to be derived from a business by reason of contingencies is not a reason for a court refusing to assess damages.

This Court accepts and is bound to follow these authorities. However, the present case poses a difficult question. Given the inherent difficulty in the exercise faced by the Court in making what is in substance a discretionary judgment concerning the valuation of lost opportunities, what is the significance of the claimant choosing not to provide evidence that is apparently available and that would add some element of objectivity to the process of judgment, without providing any explanation as to why the evidence has not been provided? Does the claimant simply have a choice as to whether to provide all of the objective evidence that may be available, or can the claimant simply put the Court in the position of having to determine the value of lost opportunities by making hypothetical guesses?
Ausbao 286's case is that, if it had known the true site area of the Lot, the lowest bid price it would have offered was $47.5 M. If the evidence had shown that the highest bid made by the other two selected bidders was less than $47.5 M, the Court would probably infer that the other bids would have been even less if those bidders had also known the true site area of the Lot. In that counterfactual, the vendor would probably have accepted the lower bid made by Ausbao 286. However, the process of valuing the lost opportunity would become a highly uncertain one if the evidence had shown that the highest of the other bids in fact was in the range $47.5M - $50M. The Court cannot know how the other bidders would have reacted to knowledge of the true site area of the Lot. The difficulty is compounded because the Court has no basis for determining on the evidence whether the other bidders were misled by the error in the site area of the Lot, or even whether they made their bids using the same approach to the determination of the value of the Land as a development site as did Ausbao 286.
The Court cannot know whether in reality better evidence could have been led by Ausbao 286 if it had taken the procedural steps necessary to obtain that evidence. The Court remains bound by authority to make an assessment of the loss suffered by Ausbao 286, even though it has a proper basis for concern that forensic choices made by Ausbao 286 have had the result that the assessment exercise may be much more hypothetical than ought to have been necessary. In my view, in conformity with the authorities considered above, the proper course for the Court to take is to treat the level of objective uncertainty in the evidence as a ground to discount the amount of compensation to reflect a level of contingency that requires the Court to exercise a discretion rather than to make any rational calculation.
Had I been required to determine an amount of compensation payable to Ausbao 286 out of the Torrens Assurance Fund, and on the basis that the position adopted by the Registrar-General would have allowed the Court to assess the compensation as the value of the opportunity lost by Ausbao 286 to acquire the Land at a lesser price, I would have assessed the compensation at $2M. It will be obvious that this amount has been determined by an intuitive assessment of the range of possibilities in the table in par 151 of Ausbao 286’s submission approached conservatively because of the relative absence of any objective basis for the assessment.

Conclusion

For the reasons given above, the Court orders that the plaintiff's claim is dismissed with costs.

**********

Decision last updated: 15 December 2021

Medium Neutral Citation:	Ausbao (286 Sussex St) Pty Ltd v The Registrar-General of New South Wales [2021] NSWSC 1651
Hearing dates:	31 May 2021, 1-3 June 2021, 8 July 2021, final written submissions 7 October 2021
Date of orders:	15 December 2021
Decision date:	15 December 2021
Jurisdiction:	Equity
Before:	Robb J
Decision:	The Court orders that the plaintiff’s claim is dismissed with costs. See pars [102], [192], [205], [206], [227], [300], [308], [331], [338], and [405].
Catchwords:	LAND LAW — Torrens title — Compensation for loss of interest in land — Torrens assurance fund — Where the plaintiff claimed compensation from the Torrens Assurance Fund pursuant to s 129(1)(a) or s 129(1)(c) because of an error recorded by the Registrar-General on a deposited plan — Where the plaintiff claimed it suffered loss or damage because it relied on the deposited plan in making the decision to acquire the land — Where the Registrar-General argued that the chapeau to s 129(1) only refers to the operation of the provisions of the Act dealing with title to land and indefeasibility — Where the Registrar-General claimed that as any loss or damage suffered by the plaintiff was not related to title to land or indefeasibility, the Torrens Assurance Fund is not liable to compensate in the circumstances — Where the Court found that the chapeau to s 129(1) did not imply that any loss or damage suffered as a result of the Act must be in relation to title to land or indefeasibility — Where the Court held that the loss or damage suffered by the plaintiff was materially caused by an act of the Registrar-General in the execution or performance of his functions or duties under the Act pursuant to s 129(1)(a) as well as by an error in the Torrens register pursuant to s 129(1)(c) LAND LAW — Torrens title — Compensation for loss of interest in land — Torrens assurance fund — Where the Registrar-General argued that the plaintiff is excluded from the right to compensation by reason of section 129(2)(a) of the Real Property Act 1900 (NSW) because the loss or damage was a consequence of the act or omission of the plaintiff — Where the Court found that relevant officers of the plaintiff acted upon information in the deposited plan as if they were entitled to assume its accuracy because it was contained in official plans — Where the Court found that the material cause of any loss or damage suffered by the plaintiff was an act or omission of the plaintiff for the purposes of s 129(2)(a) and that the plaintiff’s responsibility for the loss or damage extended to the whole of that loss or damage — Where the Court held that the Registrar-General has established that the plaintiff is excluded from the right to compensation by reason of section 129(2)(a) LAND LAW — Torrens title — Compensation for loss of interest in land — Torrens assurance fund — Where the Registrar-General argued that the plaintiff is excluded from the right to compensation by reason of section 129(2)(b)(i) of the Real Property Act 1900 (NSW) because the loss or damage was caused by the negligent act or omission of the plaintiff’s solicitors — Where the Registrar-General did not plead section 129(2)(b)(ii) with respect to the loss or damage being compensable under an indemnity given by the solicitors’ professional indemnity insurer — Where the plaintiff’s solicitors and the professional indemnity insurer were not joined to the proceedings — Where the Court found that the solicitors had acted pursuant to their retainer — Where the Court could not make a finding with respect to the professional indemnity insurer because of a lack of evidence — Where the Court held that the Registrar-General had not established that the plaintiff is excluded from the right to compensation by reason of section 129(2)(b) LAND LAW — Torrens title — Compensation for loss of interest in land — Torrens assurance fund — Where the Registrar-General argued that the plaintiff is excluded from the right to compensation by reason of section 129(2)(e) of the Real Property Act 1900 (NSW) because the loss or damage arose because of an error or miscalculation in the measurement of land — Where the plaintiff argued that the definition of “measurement” was limited to the process of ascertaining a size within the context of s 129(2) — Where the Registrar-General argued the definition included both the process and the outcome — Where the Court found that “measurement” had the meaning as contended for by the Registrar-General — Where the Court held that the Registrar-General has established that the plaintiff is excluded from the right to compensation by reason of section 129(2)(e) LAND LAW — Torrens title — The register — Whether a deposited plan was registered in the Torrens register under the Real Property Act 1900 (NSW) or in the register of plans under the Conveyancing Act 1919 (NSW) — Where the plaintiff argued the deposited plan was registered in the Torrens register — Where the Registrar-General argued it was registered in the register of plans — Where the Court found that the deposited plan was registered in both the Torrens register and the register of plans
Legislation Cited:	Civil Liability Act 2002 (NSW) Conveyancing Act 1919 (NSW) Conveyancing Legislation (Notice of Sale) Amendment Act 1992 (NSW) Local Government Act 1919 (NSW) Professional Standards Act 1994 (NSW) Real Property Act 1900 (NSW) Real Property Amendment (Compensation) Act 2000 (NSW) Real Property Amendment (Land Transactions) Act 2009 (NSW) Real Property and Conveyancing Legislation Amendment Act 2009 (NSW)
Cases Cited:	Australian Executor Trustees (SA) Limited v Kerr [2021] NSWCA 5 Australian Hi-Fi Publications Pty Ltd v Gehl [1979] 2 NSWLR 618 Bank of Western Australia Ltd v Coppola (No 2) [2012] NSWSC 1495 Boyton v Clancy (1998) 9 BPR 16,585 Challenger Managed Investments Ltd v Direct Money Corporation Pty Ltd (2003) 59 NSWLR 452 Chandra v Perpetual Trustees Victoria Ltd [2007] NSWSC 694; (2007) 13 BPR 24,675 Comserv (No 1877) Pty Ltd v Figtree Gardens Caravan Park [1999] NSWSC 124; (1999) 9 BPR 16,791 Diemasters Pty Ltd v Meadowcorp Pty Ltd (2001) 52 NSWLR 572; [2001] NSWSC 495 Emma Tait Nominees Pty Ltd v Laprese [2020] VSC 508 Glensaugh Pty Ltd v Registrar-General [2001] NSWSC 1114; (2001) 10 BPR 19,311 Hawkins v Clayton (1988) 164 CLR 539 at 544; [1988] HCA 15 Henville v Walker (2001) 206 CLR 459; [2001] HCA 52 Kirkland v Quinross Pty Ltd [2008] NSWSC 286; (2008) 14 BPR 26,979 Kumar v Registrar-General of New South Wales [2021] NSWSC 1103 Lincu v Registrar-General [2019] NSWSC 568; (2019) 19 BPR 39,351 National Australia Bank Ltd v Thirup [2011] NSWSC 911 Potts v Miller (1940) 64 CLR 282 Registrar-General v Rigby (Land and Environment Court (NSW), Bannon J, 29 June 1995, unreported) Registrar-General v Tuckfield (1991) 6 BPR 13,831 Sellars v Adelaide Petroleum NL; Poseidon Ltd v Adelaide Petroleum NL (1994) 179 CLR 332; [1994] HCA 4 South Western Sydney Local Health District v Gould (2018) 97 NSWLR 513; [2018] NSWCA 69 Svanosio v McNamara (1956) 96 CLR 186 Thomas v Registrar-General [2018] NSWSC 1517 Trieste Investments Pty Ltd v Watson (1963) 64 SR (NSW) 98; 81 WN (Pt 2) (NSW) 136 Voudouris v Registrar-General (1993) 30 NSWLR 195 Wassell v Ken Carr Bobcat & Tipper Hire Pty Ltd [2021] NSWSC 1415
Texts Cited:	Brendan Edgeworth, Butt's Land Law (7th ed, 2017, Lawbook Company) F Ticehurst and P Blair, Baalman and Wells Land Titles Office Practice NSW (5th ed, 1998, looseleaf, Lawbook Co) Greg Stilianou, Land Titling Law and Practice in NSW (2013, Lawbook Company) R A Woodman, K Nettle, F Ticehurst, P Butt, L Hughes and J Stuckey-Clarke, Woodman & Nettle, the Torrens system in New South Wales (2nd ed, 1996, looseleaf, Thomson Reuters)
Category:	Principal judgment
Parties:	Ausbao (286 Sussex St) Pty Ltd (plaintiff) The Registrar-General of New South Wales (defendant)
Representation:	Counsel: G A Sirtes SC/ H Grace (plaintiff) H Altan (defendant) Solicitors: Aequitas Lawyers (plaintiff) Office of the Registrar-General of New South Wales (defendant)
File Number(s):	2018/200732