Castle Constructions Pty Limited v Sahab Holdings Pty Ltd & Anor

[2012] HCATrans 366

[2012] HCATrans 366

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S263 of 2012

B e t w e e n -

CASTLE CONSTRUCTIONS PTY LIMITED

Plaintiff

and

SAHAB HOLDINGS PTY LTD

First Defendant

REGISTRAR‑GENERAL

Second Defendant

HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO SYDNEY

ON TUESDAY, 18 DECEMBER 2012, AT 9.46 AM

Copyright in the High Court of Australia

HIS HONOUR:   Mr Einfeld.

MR G.K. BURTON, SC:   May it please the Court, I appear for the applicant on the summons.

HIS HONOUR:   Mr Burton, of course it is you moving.  Sorry, forgive me.

MR BURTON:   I appear for the first respondent in the matter, your Honour.  (instructed by Kanjian & Company)

HIS HONOUR:   Yes, of course.

MR M.L.D. EINFELD, QC:   As your Honour pleases, I appear with MS C. LATHAM, for the appellant.  (instructed by Domain Legal Pty Limited)

MR P.B. WALSH:   If your Honour pleases, I appear for the second respondent.  (instructed by Land and Property Information)

HIS HONOUR:   Now, Mr Burton, due to the vagaries of the courier system our record in Melbourne is perhaps rather thinner than it should be, but I have your summons of 17 December and the affidavit of Mr Kanjian sworn on 15 December 2012.  You move on that summons and I take it you read that affidavit?

MR BURTON:   I do, yes.

HIS HONOUR:   Is there any objection to receipt of ‑ ‑ ‑

MR EINFELD:   No, your Honour.

MR WALSH:   No, your Honour.

HIS HONOUR:   Yes.  Yes, Mr Burton.

MR BURTON:   I also wish to refer to some matters which would be in the Court file but may not be with your Honour.  The first one is an affidavit of Mr Einfeld’s instructor, Mr Germanos, which was sworn in support of an application to extend the page limit on the appellant’s submissions in reply.  I think it was sworn on 30 October.

HIS HONOUR:   Yes.

MR BURTON:   I can read the relevant part to your Honour simply as part of my submissions.

HIS HONOUR:   Yes.

MR BURTON:   If it is convenient, may I proceed on that basis?

HIS HONOUR:   Yes.

MR BURTON:   In essence, it appears that both parties have encountered some difficulty in encapsulating all the matters that they wish to deal with and then putting them in a coherent structure in the page limit.  In the reply, which was due at the end of October, there was an application by letter to the Registrar by the appellant which was granted on the papers.  It was supported by Mr Germanos’ affidavit asking for an extension, doubling the length to 10 pages.  The relevant paragraph was paragraph 5 where Mr Germanos says:

I am informed by counsel and verily believe that due to the sheer number of matters raised in the First Respondent’s submissions, counsel are not able to prepare a reply which adequately addresses all of these matters:

(i)       within the 5 page limit prescribed in the High Court Rules; and

(ii)      by 30 October 2012, as ordered by the Court -

Now, that application was granted and the reply contains a detailed and coherent statement of the appellant’s case in relation to the interaction between indefeasibility and the provisions on which we rely, which are provisions that your Honour is very briefly familiar with from the special leave application, primarily section 12, as well as section 42 and the exception for easements.

In essence, it focuses on the argument that there was an extinction of the registered easement at the time of the removal of the decision, and that that means that principles of indefeasibility apply even though there was no subsequent registration of a dealing to a new purchaser or mortgagee which, of course, would give protection under section 45.  Now, we have dealt with these matters in paragraphs 10, 18, 19, 35 to 38 and 40 of our submissions in‑chief, but because of the way that the submissions were structured, as required, we dealt with them under the heading, “First submissions addressing the arguments on appeal”, and, secondly, addressing our matters that we wish to raise on notice of contention.

Now, in a sense that reversed the process and split the argument because your Honour is possibly aware from the earlier dealing with the special leave application that Sahab’s case at trial and before the Court of Appeal was focused primarily on the matters in the notice of contention and subsidiarily on the matter on which Sahab succeeded in the Court of Appeal, being the special protection for easements in section 42 of the Real Property Act (NSW).

The special protection for easements in section 42 is actually a broader case than the narrow one on which Sahab submits it is entitled to the relief it seeks. Special protection for easements applies even if there is a dealing registered transferring the title to a subsequent registered proprietor or mortgagee. The protection of 45 is not there against the easement if it is omitted or misdescribed. The narrower case which Sahab put was, in essence, that the removal of the registered easement in 2001, the erroneous decision as it now appears to be common ground, was a decision under section 122 that had standing under 121 for a subsequent registered proprietor, that that decision and the rights of review were part of the original removal and therefore did not give Castle the protection of indefeasibility until the right of review was determined, and in this case the determination would ‑ ‑ ‑

HIS HONOUR:   Sorry, put that again, I just do not follow what you are telling me?

MR BURTON:   Yes.  I am sorry.  We have set this out in some – this is the essence of the new submission, to put it in a coherent form and tie these elements together ‑ that the decision to remove in 2001 was a “decision” – that is the word used in section 122.  The statutory right of merits based review which the Supreme Court has under section 122, a complete review on the facts and the law, was part of the actual decision, and that meant that there was no protection ‑ ‑ ‑

HIS HONOUR:   What do you mean part of the actual decision?  That is where I am slipping.  I do not follow what you are telling me.

MR BURTON:   I am sorry.  Maybe if I could read the way that I have put it in the new submission, your Honour - that may be the best way to get the point - that Castle could not get the protection of section 118, one of the indefeasibility provisions, against such a review of the Registrar’s decision to remove because the decision to remove a registered interest to which Castle’s registered title was subject at the time of its registration on purchase and any effect that decision had on title had built into it a statutory right of review and reversal to which any effect on Castle’s title is subject.

Now, to get to that point requires a coherent, we thought, drawing together of the provisions that are in those two separate structures in the existing submissions and that is what the new four and a half page submission which is prepared and signed seeks to do.  It simply seeks to go through the Act and say that the powers of altering the register are in the narrow situation where there has been no change to the title of Castle; there is no subsequent purchaser, there is no subsequent mortgagee ‑ is subject to these provisions, and it seeks to draw those together in a coherent narrative.

It also adds a reference to an article on the centenary of the Real Property Act by Professor Woodman where we respectfully say Professor Woodman says this is orthodox and it, of course, refers to matters that we have referred to in our existing submissions in passing to show that we raised these matters elsewhere.

HIS HONOUR:   Is this notice of contention territory?

MR BURTON:   It is both because it says, in effect, that this narrow ground for relief which is the subject of our notice of contention entitles us to succeed, in addition to the grounds on which we succeeded in the Court of Appeal but, of course, the Court of Appeal also picks it up as part of the broader ground which operates against subsequent registered proprietors.  What we are trying to do is assist the Court by giving a focus and coherence to material that is already there, plus the further reference, by a narrative structure of the actual statutory provisions in one line effectively, and to say this is the way they work together, in our respectful submission, this is why we are entitled to succeed.  As I said to your Honour, it is done in four and a half pages.

It is something we would have done if the Court date for hearing had been 6 February.  We would have applied to put this material into our existing submissions by extending them by a few pages in‑chief, but that is where we are at the moment.  Your Honour will note from the estimates of time that the matter is set down for one day and that both Castle and the Registrar‑General have set time limits which would effectively take the time; we have suggested that the time should be allocated proportionately between the parties.  We think it would be of great assistance to the Court and would certainly shorten our oral argument to have this material in this form.  The propositional outline cannot do it in this way in the three pages with the same coherence and references.  This is a more convenient way to do it, we would respectfully submit.

HIS HONOUR:   Yes.

MR BURTON:   We can file this material now.  If there is anything else I can assist your Honour with in that regard ‑ ‑ ‑

HIS HONOUR:   Yes, thank you, Mr Burton.  What is the attitude of the appellant, Mr Einfeld?

MR EINFELD:   We do not consent to the application, your Honour.  There are just about three or four matters ‑ ‑ ‑

HIS HONOUR:   What would be the consequence of it being granted?

MR EINFELD:   The additional burden of the need to file further submissions in reply (a) at this time of the year, although it is not a significant consideration, but in light of the fact that the first respondent has already filed submissions in reply of some 20 pages, your Honour might have a recollection of them, but they are replete with very extensive and very tiny footnotes which contain much by way of submission rather than just notation.

The affidavit of Mr Kanjian in support of the summons reveals the Registrar’s advice that if an application were to be brought it should be brought before the further submissions be filed was received on 13 November and no affidavit in support of such an application, let alone an application, was made until this week.  In our submission, having regard to the fact that the parties have not been supplied with the submissions ‑ not supplied with a copy of the submissions, it is a little difficult to know whether we can as suggested simply respond in a short form.  We do not know whether the submissions raise new matters or are an expansion of past matters.  From what Mr Burton said this morning, your Honour, it would seem both is likely to be the case.

It is not correct that this question of extinguishment of the easement to which Mr Burton adverted a few minutes ago was raised only in reply.  It appears in our submissions in‑chief, it is in paragraph 38, and it does not, with greatest respect, seem to us that anything has been put forward which justifies the provision of further submissions which would require inevitably, we would respectfully submit, responses by the appellant and by the Registrar‑General. 

In our submission, we would invite the Court to take the view that if the first respondent’s desire is to place before the Court further reference material that can be readily done by identifying the material in the usual way and providing us with copies of the references.

HIS HONOUR:   As I understand it, this is advanced as some distinct argument.  It is said that if you read a number of provisions of the Act together the availability of an application for review somehow trenches upon the nature of the interest as recorded on the register, as best I

understand it.  The difficulty we have is this, I think, Mr Einfeld.  If this argument is going to be advanced it is better that we have it in writing.  It is better that you have a chance to respond to it in writing and see where we go to, but it is unfortunate I think that the affidavit first filed in support of this proposal simply bemoans the factor of how hard it was to reduce the submissions to 20 pages which is a difficulty encountered by counsel in every case.  It is now said that there is to be some new or different slant put on the argument, it seems.

MR EINFELD:   Your Honour, one bears in mind that the substantive appeal involved the very interaction of the numerous provisions of the Real Property Act that are the subject of extensive submissions already and we wish to say no more further than that whilst one appreciates the desire of the Court to have before it in advance an identification of the relevant issues, our submission is that it is going to impose an inevitable and unnecessary burden upon the other parties of the appeal to which they ought not be subject.

HIS HONOUR:   Yes.

MR EINFELD:   That is a matter which may to some extent at least be compensated by appropriate orders as to costs but, in our submission, the considerations which we have adumbrated are sufficient to reject the application.  May it please the Court.

HIS HONOUR:   Yes, thank you.  Mr Walsh, what is the attitude of the Registrar‑General?

MR WALSH:   The Registrar‑General does not consent to the application, but I hear what your Honour says and if it would be of assistance to the Court, well, the Registrar‑General has nothing further to say on the point; it would be a matter for the Court.

HIS HONOUR:   Yes.  If the first respondent has leave to file a further submission not exceeding five pages that, as I understand it, can be effected either today or tomorrow, Mr Burton.  Is that right?

MR BURTON:   Yes, your Honour.  I have one copy in Court, we will print the remainder and file it today if that is convenient.

HIS HONOUR:   Not later than 4.00 pm today.  If then the appellant and I think the Registrar‑General both have leave to file supplementary submissions in each case not exceeding three pages when could those supplementary submissions be filed?  Mr Einfeld?

MR EINFELD:   The appeal is listed for 6 February, your Honour.  If we could have leave to file the response no later than 14 days before the appeal which would bring us to about 23 or 24 January, I think, if that is convenient?

HIS HONOUR:   Just one moment.  Not later than 4.00 pm, 23 January 2013.  In each case do counsel wish to be heard against that?  Now, the costs of today’s summons, why should they not be costs in the appeal?

MR EINFELD:   In our submission, the first respondent ought be ordered to pay the costs of the other parties of today (a) although the submissions have been prepared we have not been provided hitherto with a copy of them - had we been so, then there may have been no need for the attendance of the parties today at all; (b) we reiterate the proposition that although, according to the affidavit evidence in support of the summons, the applicant respondent was informed that an application to the Court would be necessary to gain the leave, that was on 13 November, and according to paragraph 4 of Mr Kanjian’s affidavit, sworn on 13 December in the proceedings – I am not sure that your Honour has that – and it has taken a month for them to do so, to the day and, in our submission, had matters been handled somewhat differently there may not have been any need for the attendance of the parties in Court, nor your Honour may not have needed to be burdened other than with a consent application.  In those circumstances, the appropriate order is that the first respondent pay the costs of the other parties for today.  May it please the Court.

HIS HONOUR:   Yes.  Mr Burton.

MR BURTON:   The Court would, we respectfully submit, still – even if there was a consent application – have a role to decide whether there would be an extension.  The appellant made this application by letter on the last day of its reply submissions.  They were due the day it was made and there was no order as to costs made in that other than that the costs be costs in the appeal and the matter was decided on the papers.  We would respectfully submit there is a parallel, your Honour.

HIS HONOUR:   Yes.  Do you wish to be heard separately, Mr Walsh, in relation to costs?

MR WALSH:   No, your Honour.

HIS HONOUR:   In my opinion, the appropriate order to make for disposing of the costs of today’s summons is that they should be the appellant’s and second respondent’s costs in the appeal, that is to say, if the appellant and second respondents otherwise obtain an order for costs in the appeal they should have the costs of this application.  If they do not, the costs will lie where they fall. 

The first respondent has leave to file not later than 4.00 pm today supplementary submissions not exceeding five pages.  Each of the appellant and the second respondent has leave to file further supplementary written submissions not exceeding three pages in each case not later than 4.00 pm, 23 January 2013. 

The costs order will take the form I have indicated.  Is there anything else that counsel need to raise?

Adjourn the Court.

AT 10.09 AM THE MATTER WAS ADJOURNED