Beames v Leader

[1998] QSC 44

IN THE SUPREME COURT

OF QUEENSLAND  No. 2842 of 1997

Brisbane

Before Mr Justice Muir

[Beames v. Leader]

BETWEEN:
  DOUGLAS MCLEOD BEAMES

Applicant

AND:
  LOREN LEADER
  Respondent

REASONS FOR JUDGMENT - MUIR J.

Judgment delivered 2 April 1998

CATCHWORDS: JUDICIAL REVIEW - s.20(2) Judicial Review Act 1991 - dispute as to watercourse boundaries - Land Title Act 1994 - scope of Registrar of Title's power to refuse registration of instruments - extent of Registrar's power of requisition.

Counsel:Mr B.J. Clarke, with him Mr R.H. Ward for the applicant

Mr P.J. Flanagan for the respondent

Solicitors:Stephens & Tozer for the applicant

B.T. Dunphy, Crown Solicitor for the respondent

Hearing date:               5 February 1998

REASONS FOR JUDGMENT - MUIR J.

Judgment delivered 2 April 1998

This is an application under the Judicial Review Act 1991 for the review of a decision of the Registrar of Titles made on about 26 March 1997 in which he refused registration of survey plan no. 905522 (“the survey plan”) prepared by licensed surveyor George Enever Pty Ltd for the applicant.

There were 9 grounds for review contained in the application.  Grounds 1,2,3,5 and 6 were not in issue on the hearing, either because the matters raised by them were common ground, or because they were no longer central to the applicant’s contentions. 

The application was amended in the course of the hearing to permit the applicant to argue the following further ground:-

“The Registrar, in considering an application to register a plan, is not entitled to consider and make a determination having regard to whether or not the land the subject of the application is, in the view of the Registrar, land which in whole or in part is Crown land or is not contained within the applicant’s certificate of title or deed of grant.”

Another ground raised in addresses on behalf of the applicant was that the Registrar applied the incorrect onus of proof and erred by placing on the applicant the onus of proving either that there were no accretions to lot 29, or if they were, that they were accretions within the common law principles expressed above. 

The other grounds were:-

“4.That the said plan no. 905522 prepared by George Enever Pty Ltd licenced surveyor, accurately shows the location of the mean high water mark boundary of the said lot 29 and ought to be registered;”

“7.The respondent erred as a matter of law in taking into account the question of filling;

8. There was no evidence before the respondent on the issue of fill which the respondent was entitled to take into account in relation to the registration of the said plan 905522.

9. There was no evidence or other material to justify the making of the respondents decision.”

Facts Relevant to the Dispute

The applicant is the registered proprietor of lot 29 on RP 12574 (“lot 29” or “the land”)  which land is situated at 61 Gillan Street, Norman Park.  Lot 29 has 3 boundaries.  One is a surveyed line which marks the boundary between the lot and Gillan Street, another is a surveyed line which marks the boundary between lot 29 and lot 28.  The remaining boundary is Norman Creek.  The plaintiff asserts title to all of the land between these 3 boundaries.  He contends that the Norman Creek  boundary is the mean high water mark line of the creek.  The survey plan purports to show the mean high water mark of the creek.  That line extends outwards from about 6 metres to 11 metres, beyond the line shown as the bank of Norman Creek in RP 12574 prepared and registered in 1915 (“the 1915 plan”). 

The Competing Views as to the Norman Creek Boundary of the Land

The plaintiff contends that the area falling between the line of the creek bank shown in the 1915 plan and mean high water mark shown in the survey plan (“the additional area”) is part of his title.  The Registrar does not accept that this is so.  He takes the view that:-

·at least part of the additional area has come about through filling or reclamation works and is thus Crown land; or

·alternatively, he is not satisfied that the additional area did not come about as a result of filling or reclamation works.

Both parties accept now that the boundary of lot 29 abutting Norman Creek is not determinable by any metes and bounds description but is the mean high water mark.  It is also common ground that common law principles apply in relation to determination of the creek boundary. 

The principle of accretions may be shortly stated as follows.  Gradual and imperceptible accretions to land bounded by the sea or a tidal stream brought about by the operations of nature, whether or not assisted by artificial means, become the property of the owner of the land the recipient of the accretions: see Brighton and Hove General Gas Company v. Hove Bungalows Ltd (1924) 1 Ch 372; Verrall v. Nott (1939) SR (NSW) 89.

The Registrar's Actions

The senior surveyor, on behalf of the Registrar, wrote to the applicant's surveyor on 20 March 1997 stating inter alia:-

“The plan was assessed as not being in conformity with the Survey Requirements of the Department. Your attention is drawn to the following points which may require your attention to your plan:

Plan is incapable of registration. An area of Unallocated State Land has incorrectly been included in lot 29.”

On 15 April 1997 the Registrar wrote to the applicant stating inter alia:-

“... I elect not to register plan 905522 ... in its present state, for the following reasons ...”

The Registrar then set out extensive reasons which explain, amongst other things, the Registrar's view that there had been alterations to the Norman Creek boundary of the land after the 1915 survey which alterations were due to filling of the creek and not to causes which would be considered to result in “accretions” at common law.

The Evidence

The 1915 survey conducted by a Mr C E James shows a location for Norman Creek.  Mr James’s field notes do not show whether he purported to identify on the plan as the boundary of Norman Creek a line representing mean high water mark, the creek bank or some other feature.  At the time of the 1915 survey, clause 65 of the “General Rules and Directions for the Guidance of Surveyors” issued by the Surveyor-General’s Department in 1898 gave, as a general rule in relation to high water mark:-

“Sandy beaches, mangroves, bare mud flats and salt spots are generally to be considered as being below high water mark . . . surveyors, while observing this direction as far as it may fairly apply, must exercise discretion in dealing with the varying conditions to be found along such frontages.”         

Mr Enever, an experience licenced surveyor who is the governing director of George Enever Pty Ltd, swore:-

(a)that he knew, based on his experience, it to be common practice at around the time of the 1915 survey to measure to the high bank and not to the correct boundary of a stream;

(b)that, for reasons he gives, it is more probable than not that Mr James measured the “high bank”. 

(c)that there can be a substantial difference between mean high water mark and the high bank, the difference essentially depending on the steepness of the bank;  the gentler the slope, the greater the discrepancy. 

Mr Enever gave evidence that in his own experience he frequently found that the mean high water mark was 10 metres or more away from the top of the high bank. He did not attempt to relate his general experiences in this regard to the physical circumstances relevant to the part of Norman Creek under consideration. For example, although observing that the distance between mean high water mark and the top of a bank was partly a function of the steepness of the bank, he gave no evidence as to the steepness of the creek bank at relevant times.

In his oral evidence, when asked whether there was any evidence he could present to the Registrar which suggested that Mr James did anything other than identify high water mark in his 1915 survey, he responded “no, I can’t”.

There was, however, some evidence to support the view that the creek boundary line in Mr James’s 1915 survey plan could not have been the mean high water mark.  Douglas & Partners, geotechnical engineers, dug a trench 11.5 chains long and up to about 2 metres deep parallel to the Gillan Street boundary of the land which commenced at a point just short of the existing mean high water mark and ended a little over 2 chains beyond the creek line shown in the 1915 survey plan.  An unchallenged analysis done by Mr Enever, using as a base diagrams and information prepared and ascertained by Douglas & Partners, indicated that there was likely to have been a creek bank at about the line of the creek shown on the 1915 survey plan and that such line was unlikely to have represented mean high water mark.  Mr Enever’s conclusion was that the natural strata at the 1915 Norman Creek line was .6 of a metre above mean high water mark.  He deduced from that that the line could not represent mean high water mark.

Paul Collin was the officer of the Land Titles Office who, as a delegate of the Registrar of Titles, made the decision to reject the plan of survey.   He holds a Bachelor of Applied Science, Surveying degree, and has the role of examining the survey content of plans lodged for registration with the Registrar of Titles.  He accepted that the top of the bank (which he described as “the high water bank”) was in the place identified by Mr Enever on the diagram which became exhibit 6.  He concluded that from the diagram one could form “some sort of idea of the bank that was confronting Mr James in 1915".  He said that the difference between the top of the bank and the actual determined mean high water mark was approximately 1.1 metres horizontally and .6 of a metre vertically.  In cross examination Mr Collin accepted that, having regard to the practice existing in 1915, Mr James may well have adopted the top of the bank as mean high water mark.        The conclusions drawn by Douglas & Partners from the test trench, relevantly, were as follows:-

“The subsurface conditions observed within the test trench comprised either a varying depth of soil filling or a mixture of soil and rubble filling overlying the natural silty clay strata.  At the southern end of the trench (ie. closest to the creek bank) the filling was 1.2-1.4m in thickness and comprised some timber pieces and metal pieces in a sandy or silty matrix.  The filling overlay very soft organic silty clay (creek bank sediments).

Towards the northern end of the trench, the filling comprised silty clay filling (of similar composition to the underlying natural strata) overlying a sloping layer of ash and slag which in turn overlie (sic) the natural soft to firm silty clay.  The depth of filling reduced in thickness towards the northern of the trench, ie. towards lot 29.”

Under “comments” at the conclusion of the report it was stated:-

“Results of the field work indicate that, at the location of the test trench, the subsurface materials (to approximately 1.2-1.4m maximum depth) extending to approximately 10m north of the existing high water mark are of fill origin.

Due to the similarity of the soil filling with the natural silty clays ... at the northern end of the trench, it is considered likely that the soil filling possibly comprises soil excavated during construction of the nearby slipway.  It should be noted that this is a likely occurrence only and the investigation carried out could not confirm this (or otherwise).”     

The report by Keilar Fox and McGhie Pty Ltd, surveyors, dated 1 July 1996 prepared for the applicant observed:-

“Based on the information contained above it can be speculated that the original survey, completed by Mr James determined the boundary of the Norman Creek as the top of the high bank noted above.”           

Reference was made in the report to discussion with previous owners of the land and to anecdotal evidence.  In reliance on that material and on the geotechnical information the surveyors concluded:-

“Based on the evidence gathered it would appear the land between the boundary of Norman Creek determined by Mr James in 1915 and the boundary of Norman Creek determined by Keilar Fox and McGhie in 1995 has altered due to the following (ranked in order of significance):

1.Filling.

2.Changes in determination of ambulatory boundaries by surveyors.

3.Very minor accretion.”

The report reveals that an application was made in about 1964 for purchase from the Crown “of accreted land between the old boundary and the new.” 

If there were reclamation works which may have affected the creek boundary it would seem that at least the bulk of them took place prior to 1946.  Keilar Fox and McGhie inspected aerial photographs from 1946-1991 and concluded that the water boundary has generally remained in the same position over that period.  Mr Enever reached the same conclusion. That evidence was unchallenged.

Mr Collin referred to various works having been done on the land. Some of those works, identified in a 1964 sketch plan, were suggestive of filling having taken place on the creek boundary. In particular, Mr Collin referred to the construction of a concrete retaining wall near the creek bank. It seems that these works were of some antiquity.

Mr Collin inspected a number of survey plans prepared after the 1915 survey plan (which he noted “accepted the boundaries as per” the latter) and concluded that having regard to the difference between the creek boundary shown on the survey plan and that shown on the other plans “the additional areas could not have been as a result of natural slow and imperceptible accretion”.

The Department of Natural Resources prepared a plan (“PC10") which showed the boundaries of the land as depicted on the 1915 plan, a sketch plan prepared by a person named Lamont in 1964 and the survey plan. It also showed the location of various man made features on the land such as the retaining wall, concrete slipway, remains of a jetty and a wooden jetty.

In PC10 the creek boundary shown on the 1915 plan is inside the creek boundary shown on the Lamont plan by distances varying from about 2 metres to 8.2 metres. The creek boundary on the Lamont plan is inside that shown on the survey plan by distances varying from zero (the two boundaries coincide at one point) to about five metres.

Mr Collin said of PC10:-

“The variation in the position of the retaining wall in relation to the high water marks shown in each of the plans drawn in 1915 and 1997 is clear evidence of the action of man reclaiming land external to the title boundary and is not an increase in the land content by natural slow and imperceptible accretion ...”.

The high water mark as presently located extends up to 11.3 metres towards the water from the high water mark located in 1915. This difference presents a significant change in the area which would only have been brought about by the actions of man.”

In response to the contention that there is clear evidence of filling or reclamation work between the creek boundaries set by the survey plan and the 1915 survey respectively, Mr Enever made the following points:-

The test pit which forms the basis of the Douglas Partners report extended over only about 1% of the additional area.

The fill shown on the Douglas Partners diagrams or charts has a depth of no more than 1.5 metres.

There is no point of comparison between the location of mean high tide at the time of the deed of grant and at the time of the 1915 survey.  Many things may have disturbed the subsurface over the years such as farming and clearing.  Some of the additional land once had on it part of an industrial building or buildings, jetty and a concrete retaining wall over parts of it. Removal of those structures would have disturbed the subsurface. Removal of mangroves and slippage of fill placed on the land above mean high water mark would also have had an impact.

The Council did extensive works of dredging and excavation by way of flood mitigation in about 1988, yet aerial photographs show that the relevant part of the bank of Norman Creek is very nearly in the position it was in 1946.

Mr Enever also makes the points that:-

·The 1915 survey should not be regarded as expressing some fundamental truth as “survey plans lodged in the early part of this century were rarely examined for survey content.” Moreover, the evidence tends to establish that the 1915 survey did not attempt to ascertain mean high water mark.

·Mr Collin (and through him the Registrar) was erroneously concerned with the size of the accretions rather than their cause.

·There is no justification for giving much, if any, credence to the sketch plan prepared by Mr Lamont. The sketch does not even show on its face that it was prepared by a registered survey. It does not purport to be a formal plan of survey capable of registration.

I found both Mr Collin and Mr Enever to be credible witnesses. Mr Enever, however, has far more experience as a surveyor than Mr Collin.          

I should note that the Registrar in his letter of 15 April 1997 appeared prepared to concede that the 1915 plan may have shown the creek boundary of the land as being the high bank rather than the mean high water mark. The Registrar's earlier willingness then to embrace the 1915 survey as establishing mean high water mark was ill-founded. It also seems to me that the Registrar placed undue emphasis on the extent of the accretions or, more accurately, on his perception of that extent.

The Registrar's starting point in considering the accretions was the 1915 survey. For the reasons given above, that starting point needed to be approached with caution and allowance should have been made for the likelihood that the creek boundary shown on the 1915 survey was the bank of the creek. Also, there are some 31 years between 1915 and 1946. That is surely time enough for very substantial accretions to have taken place on the bank of a tidal creek. In the absence of expert evidence as to the likelihood of accretions to the order of those in question having been made by natural causes over a period of 30 or so years, the Registrar's conclusion was a fairly bold one. Mr Enever gave evidence, which was unchallenged, of the creek bank's “rejuvenating” itself within a few years of the Council's flood mitigation works in 1988.

Also, one would expect to start an enquiry into boundaries (if one were warranted) from the premise that the true creek boundary was the mean high water mark of the creek, whatever that happened to be, at the time of the enquiry. It is easy to see what excited the Registrar's interest in the creek boundary in this case, but it seems to me that his approach was unduly influenced by the 1915 survey, and that, in consequence, he failed to give proper consideration and weight to matters raised by the applicant's surveyor.

However, in my view, the Registrar was entitled to conclude on the evidence before him that:-

·there had been extensive accretions to lot 29 after the 1915 survey, which accretions may have been extensive;

·the Douglas Partners report provided evidence that the accretions had been caused, in part at least, by filling;

·some filling of the creek beyond mean high water mark may have taken place at a time unknown between 1915 and 1949;

·the extent to which the additional area could be attributed to common law accretions or reclamation or filling works and/or to the difference caused by a possible adoption of the high bank of the creek as the land boundary in the 1915 survey was difficult to gauge. 

Accordingly, grounds 4, 7, 8 and 9 of the application fail.

The Registrar was obliged to register the survey plan, once satisfied that was satisfactory in form

The remaining grounds relied on by the applicant all come down to much the same thing, namely, that the Registrar of Titles is obliged to register instruments which have complied with all the “requirements” of the Act for the registration of such instrument. 

The applicant’s argument relies heavily on s.30 of the Land Title Act 1994. That section provides:-

“Registrar must register instruments

30.(1)  If a person lodges an instrument and complies with the requirements of this Act for its registration, the Registrar must register the instrument.

(2)  However, subsection (1) does not prevent the person withdrawing the instrument.”

Section 49 provides:-

“49.  A `plan of subdivision’ is a plan of survey providing for 1 or more of the following–

(a)division of 1 or more lots;

. . .

(d)redefinition of a lot on a resurvey.”

Section 49A(1) provides:-

“49A.(1)  A plan of subdivision may be registered.

(2)  A lot defined in the plan is created as a lot when the plan is registered.”

Section 50 relevantly provides:-

“Requirements for registration of plan of subdivision

50.  A plan of subdivision must–
 . . .

(g)have been approved by the local government concerned unless the plan of subdivision provides only for the amalgamation of 2 or more lots to create a smaller number of lots, or for the redefinition of a lot on a resurvey); and

(h)if the plan of subdivision provides for the division of 1 or more lots, or the dedication of land to public use–have been approved by the local government concerned.”

It is submitted by the applicant in respect of s.49A that:-

·As the plan contemplated by para.(d) must be a plan providing for redefinition “of a lot” and as all such lots are, by definition, freehold, there is no question of the Registrar determining afresh whether the land resurveyed is freehold. 

·In determining what “lot” is being redefined on a resurvey, the Registrar must resort to the applicant’s certificate of title (and to the deed of grant referred to in it).  The Registrar, for such purpose, may not resort, at least exclusively, to the old or existing plan of survey.

·By resorting to the certificate of title and deed of grant (and by making proper use of the original plan of subdivision (RP 12754)) the Registrar is led inevitably to the conclusion that the survey plan is a plan of resurvey of the lot, as required by s.49A.

·As all requirements of s.50 have been met there is no scope for any exercise of discretion on the part of the Registrar. 

Mr Clarke placed strong reliance on two authorities to support his client’s contentions.  The first was In re The British Bank of Australia Ltd (1899) 21 ALT 148, a decision of the Full Court of the Supreme Court of Victoria. In that case a registered plan of subdivision had some areas marked on it as “parks”. The Registrar of Titles declined to register transfers of part of the land described on the plan as parks without the consent of those persons who had bought allotments marked on the plan. Particular reliance was place on the following passage in the judgement of the court:-

“The Registrar apparently has drawn the inference that because that section requires plans of sub-division to be deposited with the Registrar, it is to be read as though the legislature thereby enacted that all statements on these plans are to be taken to indicate intentions to appropriate portions of the land for the benefit of purchasers.  But we think that is not the meaning of the section.  I think that the plan of sub-division is to be deposited with the Registrar merely for the purpose of facilitating reference.  That that was the intention of the legislature is to be gathered from the following sections, 174 and 175, which relate to other matters which however are kindred to those mentioned in section 172.  The whole set of sections is intended by the legislature to be facilities for the description in certificates of titles of the land comprised in them.  We think therefore there is no alteration of the equities which prevail by law concerning sales or land or the rights arising from, or principles governing plans exhibited at the time of such sales . . .

We therefore think that the Registrar was wrong in his view of the Act, and also wrong in not leaving the matter to the parties to fight it out themselves.”

Both a’Beckett J and Madden CJ expressly stated that they were proceeding upon the basis that the plan expressed no intention of setting aside parks for the purposes of purchasers.  They also noted that they were expressing no opinion on the course which would have been followed had there been an expression on the plan of an intention by the proprietor to set apart parks for the purposes of purchasers.  The decision thus strikes me as providing only limited support for the applicant’s argument.

The other authority was Registrar-General v. Lee (1990) 19 NSWLR 240 (C.A.). The point at issue in that case was whether the Registrar was entitled to refuse to register a plan of subdivision without evidence that the consent to the “subdivision” of the relevant local authority had been given or was not required under the Local Government Act 1919 or the Environmental Planning and Assessment Act 1979. Meagher J.A. said at 255:-

“The appellant contended that even if the `plan of division’ were registerable he had no duty to register it in the circumstances; if the registrability of a plan raised difficult questions, and the right of the respondent to obtain registration was obscure or arguable, he had a discretion to refuse registration, because that would not be unreasonable.  In my view this argument ought be firmly repelled.  The Conveyancing Act ought be construed as imposing on the Registrar-General a duty to register any instrument which is in law registerable, and a duty to refuse registration to all instruments which in law are not registerable.  There can be no further alternative.  No doubt, declaratory relief is always available to decide doubtful cases; but the expedient of refusing registration merely on the grounds of difficulties is a luxury which is not available.”

Kirby P. expressed agreement with the above reasons. 

I note that s.195G(1) of the Conveyancing Act 1919 (NSW) provides that where the Registrar-General is satisfied that a plan lodged under s.195A(2) is in registrable form, he shall register the plan. There is an obvious similarity between s.30(1) of the Act and s.195G(1).

I respectfully adopt the above passage from the judgment of Meagher JA as being generally applicable to the role of the Registrar of Titles under the Act in relation to the registration of plans of sub-division.          A similar approach has been taken in other cases.

In Re Strahorn (1912) 29 WN (NSW) 7 at 8 Rich J. said:-

“... where the Registrar-General has presented to him for registration a properly executed transfer accompanied by the grant or certificate of title ... his duty to register the same is purely ministerial and not judicial:  see s.36 R.P. Act 1900;  Kissing v. Mitchell (3 N.Z.L.R.C.A. 263); ex parte Bettle (14 N.Z.L.R. 135). There being no caveat or injunction against registration, and nothing appearing on the register to interfere with the same, he had no option but to register.”

In R v. Registrar of Titles, ex parte The Commonwealth (1915) 20 CLR 379 at 402 Higgins J. said:-

“The position of the Registrar then is, that the document presented for registration does not show on its face a valid disposition of land.  The duty of the Registrar of Titles is confined to seeing that an instrument presented for registration is in accord with the prescribed practice, and that it is signed by the registered proprietor competent to effect a transaction of the sort disclosed in the instrument.  He is not concerned to inquire into the circumstances, or even to verify the facts stated.  In this case, the Registrar sees what purports to be a lease for 500 years from a municipal corporation; and there is nothing on the face of the instrument taking it out of the general rule forbidding such leases on the part of the Corporation.” (emphasis added)

The authorities, however, suggest that the obligation of the Registrar to register instruments which, on their face, are in registrable form, is not absolute.

Discussion in the authorities of the Registrar's obligations concerning registration.

In Re Lehrer and The Real Property Act (1961) 61 SR (NSW) 365, Jacobs J said at 376 that he did not consider that the Registrar ought refuse registration to an instrument because he formed the view that in law it was a void instrument, unless by registration, some validity could be given to the instrument which it would not otherwise have, or some estate or interest could be created beyond that purported to be dealt with by the instrument itself. He had said earlier (at 374) that:-

“I summarise my view in the opinion that certainly in any case where an indefeasibility of title would be obtained by a bona fide purchase, the Registrar-General has a duty to examine the validity of the dealing submitted and has a discretion to refuse to register the instrument.”

Such an approach is supported by authority.  In Templeton (Registrar of Titles) v. The Leviathan Pty Ltd (1921) 30 CLR 34 at 53, Knox C.J. said:-

“On the facts and documents within the knowledge of the Registrar of Titles in his official capacity, the dealing sought to be registered was a breach of trust ...  In my opinion where it has come to the knowledge of the Registrar that a dealing ... is a breach of trust or that for any other reason the person dealing with the land as registered proprietor is not competent at law or in equity to deal with it in the manner proposed, it is his duty to refuse to register. I do not suggest nor was it contended that where the Registrar merely suspects that a dealing may be a breach of trust or otherwise improper, but knows no facts to justify in concluding that it is so, it is any part of his duty, or that he has any right, to ask for information or make inquiries to ascertain the true facts.  I desire to limit my opinion with regard to his power to refuse registration to those cases in which the facts within his knowledge appear to him to show that the proposed dealing is improper.  The line of demarcation is indicated by the remarks of a`Beckett J in  In re British Bank of Australia ...”

The remarks of a'Beckett J, to which Knox CJ referred, were to the effect that the Court left open the question of whether the Registrar ought be obliged to register a plan if, on the face of documents before the Registrar, there was evidence that what was provided for in the plan was inconsistent with the rights of registered proprietors of land. But there is support in Templeton to reject instruments lodged for registration. In Templeton, Higgins J also concluded that the Registrar was right to refuse registration. He based his conclusion on the view that there was a breach of trust apparent on the face of the documents submitted for registration and, in consequence, their registration would have been an improper dealing within the meaning of s.233(iii) of the Transfer of Land Act.

At 64 he referred to the fact that no caveat had been lodged under s.233 and to the fact that no copy of the will or codicil had been deposited under s.55 and continued:-

“... but these devices are treated as merely means to the end of preventing improper dealings, and it has been repeatedly held that the Registrar may simply refuse to register (In Re British Bank of Australia (1899) 21 A.L.T., 148; Ex parte Briggs (1913) V.L.R. 549; Ex parte Equity Trustees Executors and Agency Co (1911) V.L.R. 197 at p.213). The Registrar has to discharge not merely ministerial but also judicial duties; and it is his duty to ‘prevent instruments from being registered which in law, as well as fact, ought not to be placed on the register’ (Registrar of Titles v. Paterson (1876) 2 App. Cas., 110; Ex parte Bond (1880) 6 V.L.R. (L.), at p.463; R v. Registrar of Titles; Ex parte Briggs (supra); Ex parte National Trustees Executors and Agency Co of Australia (supra). It is not his duty to require proofs negativing any fraud or improper dealing where there is nothing on the face of the documents submitted to suggest it ... or to inquire into unregistered interests as to which the purchaser or person dealing with the registered proprietor is relieved from inquiry under sec.179. But in this case the proposed transaction on its face is a breach of trust, and improper; and the burden of showing that the instruments ought to be registered falls on the applicant for the mandamus ...”

Starke J expressed “complete agreement” with the part of the judgment of Higgins J to which I have referred.

In Re Pellick's Transfer [1987] 1 Qd R 73 at 78, McPherson J referred to “the principle in Templeton v Leviathan” in relation to a question of whether the Registrar of Titles had power to refuse registration to an instrument in registrable form.

Perhaps the most expansive view of the Registrar's powers is to be found in the following passage from the judgment of Isaacs J in Perpetual Executors & Trustees Association of Australia Ltd v Hosken (1912) 14 CLR 286 at 295:-

“Now of course the Registrar is not an automaton; he has a high and responsible public duty to discharge, and he has an obligation to see that the purpose of the Act is neither destroyed nor prejudicially affected. He has the right and the duty to preserve his entries and records from confusion, and to prevent the intrusion of anything calculated to obscure or mislead, or even to impede the ordinary and practical working of his department. He has also in certain cases a necessary discretion, though forms are complied with, to act so as not by undue haste or too facile compliance with any application to do what appears to him may be a wrong to another person, or bring a claim upon the assurance fund. ...

If, however, an instrument in the most perfect form were presented for registration linked with other matters, so as to manifestly encumber the register, or even so as to raise a fair case for the Registrar's consideration as to office difficulties or public inconvenience, it would be difficult to persuade a Court to overrule his refusal to accept the documents. The Act, while prescribing a statutory form as the only expressed essential, assumes reasonable conduct on the part of those lodging the instruments, and a due regard by them for the conduct of public business and the facilities of inspection and investigation. And a Court is not so well able to determine that in a doubtful case as the Registrar.”

The Respondent’s Arguments

I summarise the respondent’s arguments as follows:-

·The Land Title Act, according to its preamble, is “an Act to consolidate and reform the law about the registration of freehold land and interest in freehold land and for other related purposes.”  It follows that an instrument only complies with the requirements of the Act if it relates to freehold land. 

·The combined effect of ss.18A, 50, 153 and 156 is to confer on the Registrar a discretion as to whether to register an instrument or not.

Sections 18A, 153 and 156 relevantly provide:-

“Pre-examination of plans

18A.(1)  Nothing in this Act prevents the Registrar from examining a plan of survey and related instruments deposited before the plan–

(a)is sealed by a local government; or

(b)is lodged for registration.

(2)  Section 156 (Requisitions) applies to a plan and related instruments deposited under subsection (1).”

“When instrument capable of registration

153.  The Registrar may register an instrument only if–

(a)it complies with this Act; and

(b)it appears on its face to be capable of registration.”

“Requisitions

156.(1)  The Registrar may, by written notice (the `requisition’) given to a person who has lodged or deposited an instrument or other document, require the person–

(a)to re-execute, complete or correct the instrument or document if it appears to the Registrar to be wrong, incomplete or defective; or

(b)to produce to the Registrar specified information, or deposit a specified instrument or document, in support of the person’s application to register the instrument.

(2)  The Registrar may require the instrument, document or information to be verified by statutory declaration or affidavit.

(3)  The requisition may specify when, and the place where, it must be complied with.

(4)  The Registrar may extend the time for complying with the requisition.

(5)  The Registrar may refuse to deal with the instrument or document lodged or deposited by the person (and any instrument that depends on it for registration) until the person complies with the requisition.”

Conclusion

I cannot accept the contention that the Registrar has an overriding discretion as to whether to accept or reject for registration an instrument in registrable form which complies with the requirements of the Act. Sections 18A, 153 and 156 are not intended to override s.30. The latter provisions, which must be read together with s.30, are directed, in part at least, towards ensuring that only registrable instruments are registered. The cases discussed earlier show that the authorities (with the possible exception of the passage from the judgment of Isaacs J in Hosken's case quoted above) offer no support for this contention by the Registrar.

The Registrar's second argument, in my view, has rather more substance. Section 30 imposes on the Registrar an obligation to register instruments which comply with the requirements of the Act for registration. The section no doubt contemplates the registration only of instruments which are lawful: cf Re Lehrer and Templeton v The Leviathan. Those cases, and others, suggest that the right or duty to refuse registration may extend further and encompass instruments which, if registered, may result in the loss of rights and interest in real property through fraud or other impropriety. In Wydgee Pastoral Co v Registrar of Titles (1963) WAR 176 Virtue J concluded that the Registrar “... has a duty to refuse to register a document if it is clear that it purports to effect a transaction which the registered proprietor is not by law justified in effecting”.

I accept that the Registrar would not be obliged to register an instrument which was not in respect of freehold land. Such an instrument would not comply with the requirements of the Act for registration because such requirements are based on the premise that land the subject of a dealing is freehold.

In this case, the instrument sought to be registered is in respect of freehold land. It is a plan of re-survey of freehold land contained in a Certificate of Title and which is the subject of an existing registered plan of survey. The Registrar has reason to suspect that the true boundary of the freehold land may not be the mean high water mark of Norman Creek as the applicant for registration and his surveyor contend. If the Registrar's suspicions are well founded the survey plan will encompass an area of Crown land. Is the Registrar entitled to refuse registration in such circumstances? Registration of the survey plan will not have the consequence that land not under the Act will become land contained in a Certificate of Title. Nor will registration of a plan of subdivision, subsequently found to be inaccurate, give rise to claims against the Registrar. Section 189(1) of the Act expressly provides that a person is not entitled to compensation “because of an error in the location of a lot's boundaries ...”.

If it is subsequently determined that the creek boundary shown on the survey plan is incorrect, the Crown, merely by virtue of registration of the survey plan, will not be prevented from asserting its title.

Normally, it would not be within the scope of the Registrar's duties to go behind a plan lodged for subdivision and certified as correct by a registered surveyor: cf Templeton v Leviathan (supra) at 53 and 64. Here, the Registrar has had information presented to him in respect of the land which gives rise to doubt in his mind as to the accuracy of the plan of subdivision.

It is not a function of the Registrar, however, to resolve possible points of contention between persons interested in the same parcel of land. Different considerations may well arise where the instrument sought to be registered is illegal or otherwise tainted by illegality or where its registration might deprive a person of lawful rights of interest in land or assist in implementing an unlawful act or transaction. This is not such a case. Registration of the plan of survey will not change the lawful boundaries of the land contained in the Certificate of Title in respect of the land. And it is not the function of the Registrar to provide a form of quality assurance in respect of the work of registered surveyors preparing plans of subdivision. However it must be a matter of concern that a public register contains an inaccurate plan or inaccurate plans on which members of the public might rely.

Section 156 of the Act, to which I will refer in a moment, confers powers on the Registrar which assist him in maintaining the integrity of the Register.

Section 30(1) provides, in mandatory terms, that a person who has lodged an instrument and who has complied with the requirements of the Act for its registration is entitled to have the Registrar register the instrument. That section provides strong support for the applicant's contentions. However, s.156, which gives the Registrar power to issue requisitions, is a provision which contains “requirements” for the purposes of s.30. Under s.156 the Registrar has power, by requisition, to require a person who has lodged an instrument for registration:

“(a)to re-execute, complete or correct the instrument or document if it appears to the Registrar to be wrong, incomplete or defective; or

(b)to produce to the Registrar specified information, or deposit a specified instrument or document, in support of the person's application to register the instruments.”

Section 156(2) gives the Registrar power to require an instrument document or information to be verified by a statutory declaration or affidavit. Subsection 5 gives the Registrar power to refuse to deal with an instrument “until the person complies with the requisition”. Section 157(1) provides that if the requisition issued under s.156 is not complied with the Registrar may reject the instrument.

The letter of 20 March 1997 from the Department of Natural Resources to the applicant, part of which has been quoted above, may, given a charitable construction, be seen as a requisition requiring the applicant to correct the plan of survey on the basis that it appeared to the Registrar to be wrong insofar as it failed to take into account the fact that there were alterations in the creek boundary to the land brought about by filling rather than “accretions”. The letter of 15 April 1997, which followed a meeting between the Registrar and the applicant and or between their respective representatives, contained detailed reasons for the requisition. The evidence before me and before the Registrar did not suggest that the plan of subdivision did not comply with the requirements of s.50 of the Act. One possible view of s.156, insofar as it relates to plans of subdivision, is that an instrument will be “wrong incomplete or defective” only if it fails to comply with the requirements of s.50. It may be argued that the Registrar's power to requisition is limited to ensuring compliance with other provisions of the Act in respect of the form and content of instruments, such as s.50.

I doubt that s.156 should be confined in this way. The words “wrong, incomplete or defective” are plain in meaning and broad in scope. They seem to me to be sufficient to enable the Registrar, in a case such as this, to take steps to ensure that, so far as is possible, a plan of subdivision containing an erroneous property boundary is not registered.

The Registrar issued a “requisition” which amounted to a rejection of the survey plan on the basis of inaccuracy. The inaccuracy found to exist was that the additional area had not come about through accretions.

In my view the Registrar acted erroneously in reaching that conclusion. In summary, he:-

·incorrectly concluded or assumed that the 1915 survey fixed the Norman Creek boundary of the land by reference to mean high water mark;

·placed undue emphasis on the extent of the accretions and failed to give due weight to the possible causes of the accretions;

·started his enquiry or assessment from the premise that the 1915 survey showed the correct Norman Creek boundary of the land. (The true boundary is the line of mean high water mark unless, by application of the facts and law relevant to accretions, it is shown that the boundary must be determined by reference to changes to such boundary by artificial means.)

In order for the Registrar's decision to be reviewable, the applicant must establish an error falling within one of the grounds in s.20(2) of the Judicial Review Act 1991.

In my view, the Registrar's decision involved an error of law. That is a ground of review in s.20(2).

I now turn to a consideration of the orders which ought be made having regard to the above conclusions.

The applicant is in a most unfortunate position. He purchased the land and an adjoining lot in order to build on the two parcels. After he commenced building, doubts as to the creek boundary of the two parcels emerged and the local authority issued a stop work notice on the basis that the applicant's building extended beyond the property boundaries into Norman Creek. In my view the way in which the applicant has proceeded in this matter is unfortunate. With the advantage of hindsight, it would have been preferable for him to have sought a declaration against the Crown, if the Crown had refused to acknowledge the accuracy of the plan of survey. Success by the applicant on this application will not bind the Crown.

It seems clear on the authorities that the Registrar was not obliged to go behind the plan and its certification by the applicant's surveyor. There is much to be said for the view that, in circumstances such as this where a registered surveyor certifies the accuracy of a plan and produces credible evidence which supports his position, the appropriate course for the Registrar to follow was to leave any issue as to the creek boundary of the land to be decided between the two competing title holders, the applicant and the Crown. I can find no support for the view that the Registrar's rights and duties extend to the detailed and extensive investigation of contentious questions of fact relevant to the accuracy of a plan of subdivision lodged for registration where the applicant for registration has complied with the provisions of the Act and has made out what amounts to a prima facie case for registration.

However I do not consider it appropriate that I direct the Registrar to register the plan of subdivision. The Registrar should have the opportunity of considering these reasons and the evidence led in support of this application, particularly that of Mr Enever. Also, I am not prepared to rule out the possibility that there may be requisitions which the Registrar, legitimately, may make in order to satisfy himself that the survey plan is not wrong, incomplete or defective. I entertain no doubt that having regard to the applicant's present financial predicament, the Registrar will give prompt consideration to the matter.

I order that the decision of the respondent notified to the applicant by letter dated 20 March 1997 and confirmed by letter dated 15 April 1997, be set aside.

I will hear submissions as to costs once the parties have had the opportunity of considering these reasons.