Castle Constructions Pty Ltd v Sahab Holdings Pty Ltd

The case of *Castle Constructions Pty Ltd v Sahab Holdings Pty Ltd* concerned a dispute over an easement registered under the Torrens system. Castle Constructions, the registered proprietor of the servient tenement (134 Sailors Bay Road), had requested the Registrar-General remove an easement from the Register. The easement, originally created in 1921, provided access to the dominant tenement (Strathallen land). The owners of the dominant tenement at the time did not object to the removal, and the Registrar-General subsequently removed the easement from the Register in 2001. Sahab Holdings, a later purchaser of the dominant tenement, sought to have the easement restored to the Register, but the Registrar-General refused. The matter ultimately came before the High Court of Australia.

The High Court was required to determine whether the deliberate removal of an easement from the Register constituted an "omission" within the meaning of s 42(1)(a1) of the *Real Property Act 1900* (NSW). This section provides an exception to the indefeasibility of title in cases of omission. Additionally, the court had to consider whether Sahab Holdings, as a subsequent purchaser, was barred from taking action against the Registrar-General under s 12A(3) of the Act, and whether Sahab Holdings was a "person who is dissatisfied" with the Registrar-General's decision under s 122 of the Act.

The High Court held that the deliberate removal of an easement from the Register, even if later found to be erroneous, could not be characterised as an "omission" for the purposes of s 42(1)(a1). The court reasoned that an omission implies that the easement continues to exist but is not recorded, whereas a deliberate removal signifies that the easement is no longer recorded because it was actively taken off the Register. Furthermore, the court found that s 12A(3) of the Act barred any action against the Registrar-General by a person who had been given notice of a proposed alteration to the Register and had not obtained a court order restraining that action. As Sahab Holdings' predecessors in title had been notified and had not sought such an order, their claim, and by extension Sahab Holdings' claim, was barred.

The High Court allowed the appeal, set aside the orders of the Court of Appeal of the Supreme Court of New South Wales, and ordered that the appeal to that Court be dismissed with costs. The court concluded that Castle Constructions' land was no longer subject to the easement, and consequently, the associated covenants no longer applied. The application for special leave to cross-appeal was refused, and the first respondent (Sahab Holdings) was ordered to pay the costs of the appeal and the application for special leave to cross-appeal.